In 2015, the Supreme Court upheld a legal standard under the Fair Housing Act that allowed lenders to be punished for even unintended discrimination. While this was a loss for the industry, experts foresee potentially favorable outcomes regarding fair lending if Brett Kavanaugh is confirmed.

There are two deals that are likely to come up while Kavanaugh is in high court. The first deals with whether the 2015 ruling can be extended to the Equal Credit Opportunity Act; the second explores whether cities can claim damages from lending policies that have allegedly harmed minorities, citing the policies as a "proximate cause" of injuries.

"Where we think the law can develop is in further establishing what exactly is that robust causality, what is that proximate cause. That's where we think the court could set a very high bar," said Richard Andreano, practice group leader of Ballard Spahr's Mortgage Banking Group. "While it would allow the claims still to exist, it could set the bar very high to really limit it to cases where the plaintiff clearly showed that the practice they were complaining of did in fact lead to the disparate results that they're citing."

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