Implicit Bias, 'Science,' and Antidiscrimination Law
Samuel R. Bagenstos
University of Michigan Law School
Washington U. School of Law Working Paper No. 07-04-01
Harvard Law and Policy Review, Forthcoming
In recent years, scholars of antidiscrimination law have increasingly come to focus on the problem of implicit or unconscious bias. They have pointed to an expanding mass of evidence from experimental psychology that appears to demonstrate the pervasiveness of unconscious bias on the basis of race, gender, and other legally salient characteristics, and that raises troubling questions about the effects of that bias on legally relevant behaviors. Now, however, the arguments for using antidiscrimination law to respond to implicit bias face a new, more fundamental challenge. Gregory Mitchell and Philip Tetlock contend, in a recent piece, that the psychological research purporting to demonstrate the pervasiveness of implicit bias fails to satisfy key scientific tests of validity. Mitchell and Tetlock make some effective points. But this essay, which is framed as a response to their piece, contends that Mitchell and Tetlock's argument does not at all undermine the case for taking account of implicit bias in antidiscrimination policy. Even if one accepts every scientific critique they offer of the implicit bias literature - and there is substantial dispute within psychology on some of those critiques - the case for using the law to respond to the problem of implicit bias remains strong. In the end, many of Mitchell and Tetlock's critiques of implicit bias research rest, not on any scientific ground, but on normative assumptions about what kinds of discrimination the law should seek to prevent and punish. Mitchell and Tetlock's argument thus does not demonstrate the scientific weakness of implicit bias research; instead, it points the way to the normative work to which advocates of the implicit bias law-reform project must turn their attentions.
Number of Pages in PDF File: 18
Keywords: Antidiscrimination, Implicit Bias
JEL Classification: J70, J71, J78Accepted Paper Series
Date posted: March 16, 2007
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