Implicit Bias in the Courtroom

Situationist Contributor Jerry Kang and his numerous co-authors, Mark Bennett, Devon Carbado, Pamela Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony Greenwald, Justin Levinson, and Jennifer Mnookin, have just posted their important paper, “Implicit Bias in the Courtroom” (forthcoming UCLA Law Review, Vol. 59, No. 5, 2012) on SSRN.  Here’s the abstract:

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Download paper for free.

Related Situationist posts:

• Implicit Bias Symposium (with links to videos)
• The Situation of ‘Common Sense’
• Pushback from the Left
• Why Race May Influence Us Even When We “Know” It Doesn’t
• Perceptions of Racial Divide
• Black History is Now
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• The Situation of Litigators
• Tierney’s Skepticism at the New York Times
• Measuring Implicit Attitudes
• What Are the Legal Implications of Implicit Biases?
• Confronting the Backlash against Implicit Bias
• Legal Academic Backlash – Abstract
• Naïve Cynicism in Election 2008: Dispositionism v. Situationism?
• Implicit Bias and Strawmen
• The Situation of Situation in Employment Discrimination Law – Abstract.”

Race Effects on Ebay

Ian Ayres, Situationist Contributor Mahzarin Banaji, and Christine Jolls recently posted their paper, titled “Race Effects on Ebay” on SSRN.  Here’s the abstract.

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We investigate the impact of seller race in a field experiment involving baseball card auctions on eBay. Photographs showed the cards held by either a dark-skinned/African-American hand or a light-skinned/Caucasian hand. Cards held by African-American sellers sold for approximately 20% ($0.90) less than cards held by Caucasian sellers, and the race effect was more pronounced in sales of minority player cards. Our evidence of race differentials is important because the on-line environment is well controlled (with the absence of confounding tester effects) and because the results show that race effects can persist in a thick real-world market such as eBay.

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Download the paper for free here.

Related Situationist posts:

• The Situation of Retail Discrimination
• Racial Prejudice in Real Estate Markets,
• What Are the Legal Implications of Implicit Biases?
• Why Race May Influence Us Even When We “Know” It Doesn’t,
• Black History is Now,
• Jennifer Eberhardt’s “Policing Racial Bias” – Video,
• Unequal Juries
• Unconscious Racial Attitudes
• Race and Implicit American-ness
• Why Race May Influence Us Even When We “Know” It Doesn’t, and
  
• What Are the Legal Implications of Implicit Biases?.

Policy Implications of Implicit Social Cognition

Situationist Contributor Brian Nosek and Rachel Riskind recently posted their paper, “Policy Implications of Implicit Social Cognition” on SSRN.  Here is the abstract.

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Basic research in implicit social cognition demonstrates that thoughts and feelings outside of conscious awareness or conscious control can influence perception, judgment and action. Implicit measures reveal that people possess implicit attitudes and stereotypes about social groups that are often distinct from their explicitly endorsed beliefs and values. The evidence that behavior can be influenced by implicit social cognition contrasts with social policies that implicitly or explicitly assume that people know and control the causes of their behavior. We consider the present state of evidence for implicit social cognition and its implications for social policy. We conclude that considering implicit social cognition can contribute usefully to policy, but that most uses of implicit measures themselves as selection or evaluation devices is not easily justified.

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Download the paper for free here.

Related Situationist posts:

• The Situation of ‘Common Sense’
• “Measuring Implicit Attitudes,”
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “Legal Academic Backlash – Abstract,”
• “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,” and
• “Implicit Bias and Strawmen,”

For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Clarifying Judicial Understanding of “Stereotyping”

Kerri Lynn Stone recently posted her article, “Clarifying Stereotyping”  (59 Kansas Law Review 2011) on SSRN. Here’s the abstract.

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People make comments all the time that include or invoke stereotypes. Sometimes those comments are indicative of their belief systems or values. Sometimes they are feeble – or genuine – attempts at humor or wit. Sometimes people speak rashly and in anger. Many times, people are misunderstood, and their true feelings are belied by a clumsy choice of words. Much of the law of employment discrimination necessarily implicates a searching probe into the often undisclosed – sometimes even to oneself – motivations, beliefs, and intentions that underlie an impel acts alleged to have been discriminatorily premised on someone’s race, gender, or protected class status. Rarely in this day and age does one who suspects that discrimination has befallen him have a “smoking gun” or an admission to that effect. Generally, the undisclosed mindset of a discriminatory decision-maker, far from a simple hidden secret, is actually a complex tapestry of unvoiced beliefs, assumptions, and associations. This tapestry, a victim of discrimination soon realizes, is typically too tightly woven to easily extricate the needed, discrete strand of thought that shows a predisposition to see or judge certain groups differently.

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It then explains the widespread extrapolation of Hopkins by lower courts and the framework in which the case now operates.

This Article posits that Hopkins furnished guidance that is less than clear as to when so-called “stereotyping” is evidence that warrants evaluation by a trier of fact and when a comment is harmless or too attenuated from an adverse action to permit an allegation of discrimination to survive. The Article also identifies the various smaller, often unarticulated questions bound up in the larger issues of when impermissible stereotyping has occurred and how various courts’ failures to specify these questions and their answers may have led to the confused state of stereotyping jurisprudence. The Article aims to dispel the myth, propagated in part by courts’ misreading of Hopkins, that there is such a discrete cause of action as “stereotyping.” At the same time, it reviews the myriad of cases that have tried to decide, as a matter of law, when a stereotyped comment sufficed to create an issue of fact as to intentional discrimination and breaks down this complex question. Courts appear to have no real uniform standards for evaluating when a statement alleged to have stereotyped a plaintiff is probative and when it can only reasonably be seen as a misspeak, a mistake, or otherwise too “stray” to suffice as evidence that impermissible discrimination took place.

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Download the article for free here.

Related Situationist posts:

• Susan Fiske on “Inclusive Leadership, Stereotyping and the Brain”
• Sexual Harassment at Wal-Mart?
• The Situation of Sexual Harassment
• Susan Fiske’s New Book
• Susan Fiske Discusses her Work on Different Types of Prejudices
• “The Situation of Objectification,”
• “Women’s Situational Bind,” and
• “You Shouldn’t Stereotype Stereotypes.”

The Situational Effects of Iqbal

Victor Quintanilla recently posted his paper, “Beyond Common Sense: A Social-Psychological Study of Iqbal’s Effect on Claims of Race Discrimination”  on SSRN.  Here’s the abstract.

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This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social-psychological perspective, and empirically studies Iqbal’s disparate effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups.

Decades of social-psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit associations will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace.

A statistical analysis of 212 cases examined judicial decision making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies demonstrate that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.0% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 shows that White and Black judges are applying Iqbal differently. White judges dismiss these claims at a higher rate (57.4%) than Black judges (28.6%). Study 3 suggests that it is 2.0 times more likely that a White judge, compared to a Black judge, will dismiss these claims.

In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups.

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Download the paper for free here.

Related Situationist posts:

• The Rhetorical Situation of Law, and the Situation of Rhetoric
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “The Situation of Situation in Employment Discrimination Law – Abstract.”
• “Why Race May Influence Us Even When We “Know” It Doesn’t,”
• “Black History is Now,”
• “Jennifer Eberhardt’s “Policing Racial Bias” – Video,”
• “Perceptions of Racial Divide,” and
• “Banaji & Greenwald on Edge – Part IV.”

The Rhetorical Situation of Law, and the Situation of Rhetoric

Theresa Beiner recently posted her article, “Shift Happens: The U.S. Supreme Court’s Shifting Antidiscrimination Rhetoric” (forthcoming in University of Toledo Law Review) on SSRN.  Here’s the abstract.

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The United States Supreme Court’s discourse on discrimination affects how fundamental civil rights – such as the right to be free from gender and race discrimination – are adjudicated and conceptualized in this country. Shortly after Congress passed Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer conduct. While the Court was more reluctant to presume such discrimination by governmental actors, it was deferent to Congress’s ability to set standards that would presume discrimination. Over time, however, that presumption and the Court’s deference to Congress has dissipated, and today, the Court actually presumes non-discrimination, absent some evidence that shows an employer or governmental actor was intentionally discriminating. This article will describe the shift in the Supreme Court’s rhetoric over time, with an eye toward trying to understand why this shift has occurred and what the implications of this shift are for those who have suffered discrimination and wish to pursue their rights in court. In addition, this article will consider non-legal sources to determine whether such a shift is warranted by a decrease in race and gender discrimination in American society.

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Download the paper for free here.

Related Situationist posts:

• Responding to Subtle Racial Harassment
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “The Situation of Situation in Employment Discrimination Law – Abstract.”
• Patrick Shin at Harvard Law School
• Liability for Unconscious Discrimination?
• Tolerating Hostility in the Workplace
• “Women’s Situational Bind,”
• “Brenda Cossman on the Situation of Women in the Workplace,” and
• “The Situation of Situation in Employment Discrimination Law – Abstract.”

Negotiating the Situation

Lu-in Wang,  has posted an intriguing situationist paper, titled “Negotiating the Situation: The Reasonable Person in Context ” (forthcoming Lewis & Clark Law Review, Vol. 14, p. 1285, 2010) on SSRN.  Here’s the abstract.

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This Essay argues that our understanding of the reasonable person in economic transactions should take into account an individual’s race, gender, or other group-based identity characteristics – not necessarily because persons differ on account of those characteristics, but because of how those characteristics influence the situations a person must negotiate. That is, individuals’ social identities constitute features not just of themselves, but also of the situations they inhabit. In economic transactions that involve social interaction, such as face-to-face negotiations, the actor’s race, gender, or other social identity can affect both an individual actor and those who interact with him or her, because those characteristics often create expectations, based largely on group-based stereotypes, that influence the parties on both sides of the transaction. Individuals’ social identities thereby can influence their constraints and incentives, and accordingly their choices, behavior, and outcomes.

This Essay offers a couple of well-known examples of the influence of social stereotypes on individuals’ choices, behavior, and outcomes in economic transactions. It then provides a more extended examination of the effect of social identity on economic transactions by drawing upon a recent, growing, and fascinating area of social psychological research into the effect of gender on negotiations. The findings of this research are both disturbing and promising: disturbing because they show that stereotypes can influence the behavior of both women and men in negotiations, to the detriment of women, even if the individuals do not believe the stereotypes to be true, and that stereotypes can interact with other features of the situation to aggravate their tendency to promote unequal outcomes. The findings are promising as well, however, because they also show that gender stereotypes can be moderated or even counteracted by yet other features of the situation. Appreciating the situation-altering yet situation-sensitive influence of social identities such as gender provides us with a richer understanding of the circumstances in which people interact and shows that, sometimes, common economic transactions take place in different places for different people.

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Download the paper for free here.

Related Situationist posts:

• “The Gendered Situation of Recommendation Letters.”
• “Not Just Whistling Vivaldi,”
• “Women’s Situational Bind,”
• “Performing Under Pressure,”
• “Social Psychologists Discuss Stereotype Threat,”
• “Stereotype Threat and Performance,” and
• “No Contract for Old Men.”

Patrick Shin at Harvard Law School

On Tuesday, the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Suffolk Law professor Patrick Shin entitled “Unconscious Bias and the Legal Concept of Discrimination.”

Professor Shin is a professor of law at Suffolk University Law School. He conducts research into the meaning and value of diversity in antidiscrimination law. He has applied psychology to real-world problems of employment discrimination law.

Professor Shin will be speaking in Austin East from 12:00 – 1:00 p.m.

Free burritos will be provided! For more information, e-mail salms@law.harvard.edu.

Liability for Unconscious Discrimination?

Patrick Shin recently posted his excellent article, titled “Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law” (forthcoming Hastings Law Journal) on SSRN.  Here’s the abstract.

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A steadily mounting body of social science research suggests that ascertaining a person’s conscious motives for an action may not always provide a complete explanation of why he did it. The phenomenon of unconscious bias presents a worrisome impediment to the achievement of fair equality in the workplace. There have been numerous deeply insightful articles discussing various aspects of this problem and canvassing its implications for antidiscrimination law.

My purpose in this paper is to focus directly on what might be called a more naïve question: should implicit bias be a basis of disparate treatment liability under Title VII? The question might fairly be regarded as naïve insofar as any proposal for such liability would surely be unripe for present implementation, in light of serious issues pertaining to problems of proof in individual cases, not to mention intramural disputes among experts about the proper practical inferences that can be drawn from extant social science research.

My interest, however, is more theoretically basic. I want to understand whether and how the notion of unconsciously biased action fits into our operative legal concept of actionable discrimination. To reach that issue, I devise a thought experiment in which I assume, first, that unconscious or implicit bias is real in a sense that I will make explicit, and second, that unconscious discrimination is provable – i.e., that the influence of implicit bias on an agent’s action is something that can, in principle, be proved in individual cases. With these assumptions, I construct an hypothetical test case that squarely raises what I regard to be the hard question for theorizing about unconscious discrimination. Should an employment action give rise to liability when that action was provably affected by the actor’s unconscious bias in respect of a statutorily protected classification, even when the actor consciously acted only on legitimate, nondiscriminatory reasons? The payoff of this thought experiment is not only a clearer picture of the theoretical commitments entailed by liability based on unconscious bias, but also a keener understanding of our currently prevailing notions of actionable discrimination.

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You can download the paper for free here.  For a sample of related Situationist posts, see “Krieger on the Situation of Discrimination in France,” “What Are the Legal Implications of Implicit Biases?,” “Colorblinded Wages – Abstract,” “Firefighters and the Situation of “Merit”,” and “The Situation of Situation in Employment Discrimination Law – Abstract.” For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Krieger on the Situation of Discrimination in France

Situationist Contributor Linda Hamilton Krieger is the French-American Foundation’s scholar-in-residence at Sciences Po.  She recently appeared on a France24 debate to discuss French and American strategies for fighting discrimination in hiring and education.  You can watch the roughly six-minute video of the interview below.

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To review a sample of related Situationist posts, see see “Implicit Associations on Oprah,” “Afraid of Knowing Ourselves,” “Why Race May Influence Us Even When We “Know” It Doesn’t,” “Geoffrey Cohen on “Identity, Belief, and Bias”,” “Colorblinded Wages – Abstract,” “The Cognitive Costs of Interracial Interactions,” “Measuring Implicit Attitudes,” “Firefighters and the Situation of “Merit”,” “The Situation of Situation in Employment Discrimination Law – Abstract.”

The Motivated Situation of Inequality and Discrimination

Aaron C. Kay, Danielle Gaucher, Jennifer M. Peach, Kristin Laurin, Justin Friesen, Mark P. Zanna, and Steven J. Spencer have recently published their article, “Inequality, Discrimination, and the Power of the Status Quo: Direct Evidence for a Motivation to See the Way Things Are as the Way They Should Be” (97 Journal of Personality and Social Psychology 421– 434 (2009).  Here’s the abstract.

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How powerful is the status quo in determining people’s social ideals? The authors propose (a) that people engage in injunctification, that is, a motivated tendency to construe the current status quo as the most desirable and reasonable state of affairs (i.e., as the most representative of how things should be); (b) that this tendency is driven, at least in part, by people’s desire to justify their sociopolitical systems; and (c) that injunctification has profound implications for the maintenance of inequality and societal change. Four studies, across a variety of domains, provided supportive evidence. When the motivation to justify the sociopolitical system was experimentally heightened, participants injunctified extant (a) political power (Study 1), (b) public funding policies (Study 2), and (c) unequal gender demographics in the political and business spheres (Studies 3 and 4, respectively). It was also demonstrated that this motivated phenomenon increased derogation of those who act counter to the status quo (Study 4). Theoretical implications for system justification theory, stereotype formation, affirmative action, and the maintenance of inequality are discussed.

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In 2008, Situationist Contributor Aaron Kay presented some of research underlying that article at the Second Annual Project on Law and Mind Sciences Conference at Harvard Law School.  Below you can watch videos of his presentation in three parts.

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For a sample of related Situationist posts see “Thanksgiving as “System Justification”?,” “Cheering for the Underdog,”The Unconscious Situation of our Consciousness – Part IV,” and “The (Unconscious) Situation of our Consciousness – Part III.”  To review all of the Situationist posts that discuss system justification motive, click here. “

The Situation of Litigators

Situationist Contributor Jerry Kang, Nilanjana Dasgupta, Kumar Yogeeswaran, and Gary Blasi, recently posted their terrific new paper “Are Ideal Litigators White? Measuring the Myth of Colorblindness” on SSRN.  Here’s the abstract.

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This study examined whether explicit and implicit biases in favor of Whites and against Asian Americans would alter mock jurors’ evaluation of a litigator’s deposition. We found evidence of both explicit bias as measured by self-reports, and implicit bias as measured by two Implicit Association Tests. In particular, explicit stereotypes that the ideal litigator was White predicted worse evaluation of the Asian American litigator (outgroup derogation); by contrast, implicit stereotypes predicted preferential evaluation of the White litigator (ingroup favoritism). In sum, participants were not colorblind, at least implicitly, towards even a “model minority,” and these biases produced racial discrimination. This study provides further evidence of the predictive and ecological validity of the Implicit Association Test.

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To download the paper for free, click here. To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.

What Are the Legal Implications of Implicit Biases?

A federal judge and regular reader of The Situationist recently sent me a thoughtful e-mail containing the following paragraph.  The judge is asking for input regarding the practical legal consequences of IAT research for employment law.

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A thought about the IAT and employment law from a practicing judge–even if the law as it now stands does not effectively address some instances of bias, where do we go with that insight? I see no practical, effective way to utilize the IAT in actual employment cases.  Moreover, by far the biggest problem in employment law that any one studying our actual cases would discern is the surfeit of meritless cases.  The ease with which many weak cases get by summary judgment and the likelihood of substantial litigation expense lead to settlement of  hundreds, and perhaps thousands, of  cases throughout the country each year brought by plaintiffs you or almost any one else reasonably objective (if I can still use that word) would have fired, not promoted, chosen for layoff, etc.  A statutory approach designed to help people get a foot in the door–when that door had
for so long been unfairly closed–is now almost exclusively used by plaintiffs who got the job, got the opportunity. The sense that employment litigation has become something of a settlement racket has led to cynicism in the work place, among the bar, and to some extent even on the bench. I think this is tragic, and a disgrace to the legacy of those who suffered to advance the cause of equality under law.  I am conscious of my own general frustration, and I really do try to be open-minded and fair in dealing with each individual case-  and there are still  meritorious ones that come my way. While I am not a spokesman for the judiciary in even the slightest way, I do think most judges see the area of law as I do, and most, despite concern or frustration, also try very hard to remain open-minded in approaching each individual case. I wonder, do scholars writing about implicit bias and employment law generally have any sense of what the actual cases are like?  Any thoughts?

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Situationist friend and legal scholar Tamara Piety responds as follows:

The judge’s comments raise important issues. But I think these issues have more to do with the problems of the structure of litigation, the cost of litigation and how the presence of financial incentives create a particular sort of (predictable) distortion in outcomes insofar as they depart from what an observer might conclude is the “truth” about the facts. Litigation is binary.

With some qualifications about the way in which the amount of damages can be used as a sort of Solomonic device to split the difference and not clearly find for either party, litigation is binary and you either win or you lose. Moreover, it costs something. So in every civil case that involves a business entity (the purpose of which is to make money not to reform social policy), the persons making decisions on behalf of the entity weight the relative costs of pursuing or defending an action against the financial benefits likely to accrue rather than on the “principle” at issue.

This is true of personal injury lawsuits, intellectual property disputes, contract disputes, in short, disputes of all kinds. So if it is the case that such a racket exists, it is arguably as much due to the financial incentives for defendants to settle as it is the evidence or legal standards, or at least they are inextricably intertwined. Should we blame defendants for “frivolously” settling and thus contributing to the situation of which the judge complains? Probably not, as it would seem awfully burdensome to say that defendants must continue to defend cases where the defense is meritorious, no matter the cost to themselves not to mention economically unsound. The same may not be true of fired, dismissed or non-promoted defendants whose livelihoods are at stake and who *may* (in some circumstances) have few options beyond suing. For these individuals (and for unions) bringing the lawsuit may not be solely about the financial benefit but about dignity, setting and example for others, self-defense, etc.

I am also struck by many aspects of the judge’s comments that draw a picture that contains many implicit assumptions. It is not self-evident to me that the existing employment laws that grant such broad and virtually unreviewable discretion to employers to discharge employees at will is a good thing that any reasonably objective person would agree strikes the appropriate balance of power between employee and employers so that anyone would agree that a particular person should not have been retained or promoted.

Maybe it does, but I am not sure about that. And what if a part of the explanation for the poor performance is a hostile environment that exacerbated the employee’s deficiencies? Moreover, the comment seems to assume that damages are a sufficient incentive to bring such a suit, even though the fact of having filed a lawsuit against a previous employer may make an employee virtually unemployable in their chosen profession. Given the seriousness of the consequences for at least some plaintiffs, I wouldn’t be as apt to conclude that cases without merit were brought frequently (although clearly the judge is in a far better position to judge the current situation in the courts than I).

And, just as it is possible to behave in a discriminatory manner while not intending to do so, that is with a pure heart, I think it might be possible to file a law suit as a plaintiff in the sincere belief that you have been discriminated against even if you have not been.

I also don’t think it is entirely accurate to say that the laws against discrimination were intended “solely” to allow people to get a “foot in the door.” It is of little merit to give someone an opportunity if that opportunity is not a real one because you will be applying standards that the employee cannot meet. I think we have perhaps entered the stage in the country’s development where some of the biggest problems of racial, gender and other bias are not in problems of overt and intentional discrimination, but in trying to ferret out the ways in which we may not be applying standards or rules as even-handedly as we imagine we are, or indeed as we want to do in order to ensure equality of opportunity for all.

The IAT information speaks to that issue. As someone who teaches Evidence I would respond that the place for the IAT evidence is as one piece of evidence that may be offered by a plaintiff – not determinative or conclusive evidence, perhaps not sufficient evidence, but evidence nonetheless. The judge seems frustrated that these cases don’t reach the truth of discrimination and create bad will and hostility to the goals of equality through the promotion of frivolous lawsuits.

I understand that frustration since I experienced that frustration when I practiced law. But it seems to me to be an observation that could be made about litigation generally – contract disputes, shareholder suits, trademark disputes, property disputes, etc. and is not the special province of discrimination suits and certainly no reason to exclude important, relevant evidence from consideration.

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Please post your responses or thoughts as comments.   To read some recent, related Situationist posts, see “Confronting the Backlash against Implicit Bias,” and “The Situation of Situation in Employment Discrimination Law – Abstract.”  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

The Situation of Human Trafficking – Abstract

Jonathan Todres has recently posted a fascinating article, titled “Law, Otherness, and Human Trafficking” (49 Santa Clara Law Review 605-672 (2009) on SSRN. Here’s the abstract.

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Despite concerted efforts to combat human trafficking, the trade in persons persists and, in fact, continues to grow. This article suggests that a central reason for the limited success in preventing human trafficking is the dominant conception of the problem, which forms the basis for law developed to combat human trafficking. Specifically, the author argues that “otherness” is a root cause of both inaction and the selective nature of responses to the abusive practice of human trafficking. Othering operates across multiple dimensions, including race, gender, ethnicity, class, caste, culture, and geography, to reinforce a conception of a virtuous “Self” and a devalued “Other.” This article exposes how this Self/Other dichotomy shapes the phenomenon of human trafficking, driving demand for trafficked persons, influencing perceptions of the problem, and constraining legal initiatives to end the abuse. By examining human trafficking through an otherness-aware framework, this article aims to elucidate a deeper understanding of human trafficking and offer a prescription for reducing the adverse effects of otherness on both efforts to combat human trafficking and the individuals that now suffer such abuses.

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You can download the article for free here.  For a sample of related Situationist posts, see “The Situational Effect of Groups,” “The Situational Benefits of Outsiders,” “Racism Meets Groupism and Teamism,” “‘Us’ and ‘Them,’” “Team-Interested Decision Making,” “Some (Interior) Situational Sources War – Part I,” and “March Madness.”

Wages Are Only Skin Deep – Abstract

Joni Hersch recently posted a fascinating paper, titled “Color, Discrimination, and Immigrant Pay” on SSRN.  This is her latest paper in a larger set of articles on the topic.  Here’s the abstract.

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In “Profiling the New Immigrant Worker: The Effects of Skin Color and Height,” (Journal of Labor Economics 2008), I present strong evidence of a wage penalty to darker skin color among new legal immigrants to the United States. Immigrants with the lightest skin color earn on average 17 percent higher wages than comparable immigrants with the darkest skin color, taking into account Hispanic ethnicity, race, country of birth, education, English language proficiency, family background, and occupation in the source country. This current paper demonstrates that the penalty to darker skin color is not a spurious consequence of omitted variables bias. Instead, discrimination on the basis of skin color is the most likely explanation of the findings.

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To download the paper for free, click here. To read some related Situationist posts, see “Colorblinded Wages – Abstract,” “Shades of Fairness and the Marketing of Prejudice,” and “Black History is Now.”

Fractured Bonds – Abstract

Bela August Walker recently posted her fascinating article, “Fractured Bonds: Policing Whiteness and Womanhood Through Race-Based Marriage Annulments” (forthcoming DePaul Law Review) on SSRN. In it she explores the role of law in shaping stereotypes. Here’s the abstract.

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In the hundred years before the United States Supreme Court declared miscegenation statutes unconstitutional in Loving v. Virginia, state courts decided thirteen recorded race-based annulment cases. This article presents a unified analysis of all race based annulment cases for the first time. Simultaneously public and private affairs, these dramas impacted far more than the individual couples or courtrooms, sending out shockwaves that reverberated beyond their points of origin. The results of the cases are startling and contrary to previous work on the subject.

Using this unique set of cases, this article argues that while declaring these women white appears like a deviation from white supremacy, the courts’ decisions were used to preserve white racial dominance. Through the annulment case decisions, the court stepped in to protect women with a taint of blackness, declaring them pure and worthy of the mantle of whiteness. By legally erasing the women’s potential racial taint, the court seemingly chooses to protect obedient women against their husbands, affirming marriage and domesticity over racial prejudices. In contrast, the court acted to protect the ideology of whiteness. To preserve notions of white womanhood, this status had to be defended, even as it violated standards of racial purity.