New Article: Seeing Through Colorblindness: Implicit Bias and the Law

July 2nd, 2010

From SSRN, an interesting new article titled “Seeing Through Colorblindness: Implicit Bias and the Law.” The abstract:

Once upon a time, the central civil rights questions were indisputably normative. What did “equal justice under law” require? Did it, for example, permit segregation, or was separate never equal? This is no longer the case. Today, the central civil rights questions of our time turn also on the underlying empirics. In a post-civil rights era, in what some people exuberantly embrace as post-racial, many assume that we already live in a colorblind society. Is this in fact the case? Recent findings about implicit bias from mind scientists sharply suggest other-wise. This Article summarizes the empirical evidence that rejects facile claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a “behaviorally realist” account of these findings, and maps systematically how it might do so in sensible, non-hysterical, and evidence-based ways. Recognizing that this call may be politically naive, the Article examines and answers three objections, sounding in “junk science” backlash, “hard-wired” resignation, and “rational” justification.

And from the article:

“Behavioral realism” insists that the law account for the most accurate model of human thought, decisionmaking, and action provided by the sciences.3 Theories and data from the mind sciences are sharpening that model, and as a new scientific consensus emerges, the law should respond. Either the law should change to reflect that more accurate model, or provide reasons why it cannot or will not do so.

The article argues that the law should take notice of the perceived cognitive biases against true colorblindness. I haven’t had time to consider the legal arguments, but the empirical data are very intriguing. How the latter should affect the former, is a separate question. This is not so much a legal paper, as a policy paper suggesting changes to our laws based on pure empirical data.