Jolls & Sunstein, “The Law of Implicit Bias” — & Economic Analysis as Ally, Not Enemy, of Feminism

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The latest work by one of the more prolific duos in progressive economic analysis of law, Christine Jolls of Yale (newly relocated from Harvard, in case you’re confused) and Cass Sunstein of U.Chicago, is The Law of Implicit Bias.   This article is just the latest in a long line of fascinating scholarship about how we’re all hopelessly racist and sexist how a great deal of discrimination is, although clear disparate treatment of groups A and B, committed by those unaware of their own biases:

ABSTRACT: Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have animplicit 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.”

For those who aren’t econ geeks like I am:   This article typifies how econ-minded scholarship no longer is dominated by Ayn Randian free-marketeers (e.g. Richard Epstein) who  insist that employment discrimination laws are unnecessary and inefficient meddling  with  free markets, because free markets  would not tolerate inefficient discrimination (which implies either (1) that discrimination either cannot exist, (2) that any discrimination that occurs  must be efficient, or (3) that big government leaves markets too un-free to elimimate discrimination).   Sure, some still make those free-market fundamentalist arguments — but increasingly, modern economic thought has left them behind.

I know some feminists think law & economics is the enemy, but it’s really just badly done law & economics that’s the enemy.   When reasonably nuanced and mindful of the social science evidence of how people actually behave in the real world, economic analysis  can be quite supportive of feminist causes and observations.

- Scott Moss

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