The Law of Implicit Bias

Abstract

Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of “debiasing through law.” Forthcoming, California Law Review (implicit bias symposium issue) ∗ Professor of Law, Harvard Law School. ** Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. For helpful discussions and suggestions on implicit bias and antidiscrimination law, we thank Ian Ayres, Richard Banks, Elizabeth Bartholet, Bert Huang, Alison Morantz, Eric Posner, Frederick Schauer, Reva Siegel, Peter Siegelman, Matthew Stephenson, Adrian Vermeule, and participants at workshops at Boston University School of Law, Columbia Law School, Fordham Law School, Harvard Law School, Stanford Law School, and Yale Law School. Martin Kurzweil provided outstanding research assistance.