Rethinking Intent and Impact: Some Behavioral Realism About Equal Protection
25 Pages Posted: 5 Jan 2015 Last revised: 4 Feb 2015
Date Written: January 3, 2015
In this Meador Lecture, Prof. Jerry Kang briefly reviews the state of scientific understanding of implicit bias, including its predictive validity of real-world behavior. Invoking a commitment to behavioral realism, he then explores what these findings might mean for equal protection doctrine viewed as a black box "machine." Aspects addressed include intent and impact, the triggers for strict scrutiny, and the underlying functions or purposes of the doctrinal machine. He concludes with suggestions for doctrinal redesign, including more serious scientific investigation about the causes and consequences of ethnic and racial balkanization.
Keywords: Implicit bias, behavioral realism, equal protection, Implicit Association Test, predictive validity, balkanization
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