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Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment Linda Hamilton Kriegert Susan T. Fiskett "The first call of a theory of law is that it should fit the facts." - Oliver Wendell Holmes' INTRODUCING BEHAVIORAL REALISM Although they serve different social functions and employ different methods and tools, both law and the empirical social sciences need, use, and produce theories of human behavior. But their respective relationships to these theories differ in significant ways, and for this reason, law and so- cial science often stand in tension with each other when they meet in the courtroom or the case reporter. For its part, law needs, uses, and produces theories of human behavior when judges elaborate constitutional or common law doctrines or interpret ambiguous statutory provisions that implicate human motivation, subjec- tive experience, or choice. Legal actors (judges, jurors, administrative fact finders, dispute handlers, and disputants) also use behavioral theories when they evaluate, litigate, or adjudicate specific disputes, as they attempt, for example, to attribute causation, assess witness credibility, or determine Copyright © 2006 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Professor of Law, University of California at Berkeley, School of Law (Boalt Hall). This work was supported by the Radcliffe Institute for Advanced Study at Harvard University and the Russell Sage Foundation. Helpful research was provided by I. Alejandra G6chez. Thanks to Mahzarin Banaji, Anthony Greenwald, Jerry Kang, Richard Banks, Gary Blasi, Vicki Shultz, Christine Jolls, Cass Sunstein, Ian Ayres, Ronald Allen, Brian Leiter, Laura Beth Neilson, Robert Nelson, Philip Frickey, Daniel Farber, Jan Vetter, Paul Schwartz, and Gillian Lester, who provided helpful comments on earlier drafts, and to participants at conferences, workshops, and lectures at the American Bar Foundation, Stanford Law School, New York University School of Law, The University of Georgia School of Law, the Harvard University Department of Psychology, the Radcliffe Institute for Advanced Study, U.C. Berkeley's Boalt Hall and U. C. Berkeley's Goldman School of Public Policy. tt Professor, Department of Psychology, Princeton University (Green Hall). 1. OLIVER WENDELL HOLMES, THE COMMON LAW 167 (1963). CALIFORNIA LA W RE VIEW [Vol. 94:997 whether particular evidentiary facts constitute persuasive circumstantial evidence of some ultimate fact at issue in a particular case. Acceptance of judicial authority depends heavily on jurisprudential stability, continuity, and adherence to precedent. As a result, judges are understandably hesitant to endorse proposed changes to the unstated psy- chological models underpinning legal doctrine, particularly if this would require modifying the doctrine itself. Consequently, as this Article dis- cusses, behavioral theory change2 comes slowly to law, when it comes at all. In contrast to law, the empirical social sciences construct and use theories of human behavior with a more accepting eye toward their possi- ble emendation, supplementation, or even outright replacement. While change in the behavioral theories embedded in law is viewed, most sympa- thetically, as a periodic necessary evil fraught with institutional peril, theo- retical revision in the empirical social sciences codes as progress. To be sure, scientific communities resist fundamental theory change, as historians of science have vividly described.' Nonetheless, the point re- mains: empirical social scientists expect that as empirical investigation continues and progress is made, the behavioral theories structuring their fields will evolve. In short, empirical psychology progressively refines its descriptive theories of human behavior because it is the goal of empirical psychology to do just that. It is not the goal of law, however, to refine behavioral theories-even the behavioral theories embedded within legal doctrines. It is the goal of law to structure public and private ordering, to provide mechanisms for efficacious dispute resolution, and, in the process, to safeguard popular perceptions of judicial legitimacy. While the enterprise we call empirical social science is fundamentally descriptive, law is fundamentally norma- tive. So, as we will describe, when law uses behavioral theories, it does so not in the interests of the theories themselves, but in pursuit of other goals. For these and other reasons, the behavioral theories embedded in legal doctrines often go unstated. Even when stated, they are often unexamined, and they are almost never empirically tested, except perhaps by a small cadre of empirical "law and" scholars whose articles judges seldom read.4 2. To clarify, when in this Article we use the term "theory change" in reference to law, we are not referring to changes in legal theories themselves (e.g. disparate impact or disparate treatment theory in discrimination cases, or the theory of constructive intent in tort). Rather, we are speaking of the behavioral theories used by judges in constructing, applying, or justifying those legal theories. Our focus is on the psychological metatheories underpinning legal theories, not the legal theories themselves. 3. See, e.g., THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (3d ed. 1996) (1962). 4. A fair amount of circumstantial evidence supports the claim that judges rarely read legal scholarship. See, e.g., Louis J. Sirico, Jr., The Citing of Law Reviews by the Supreme Court: 1971-1999, 75 IND. L.J. 1009, 1009-10 (2000) (reporting a decline in Supreme Court citation of legal scholarship); 2006] BEHA VIORAL REALISM IN EMPLOYMENT DISCRIMINATION LA W 999 Sometimes, behavioral theories enter case law as mere rhetorical flour- ishes, used to justify legal decisions made for reasons having nothing to do with the empirical validity of the theories themselves. However, once em- bedded in published decisions, a behavioral theory can develop preceden- tial legitimacy, and for that reason be difficult to modify, even if it is empirically unsound. When litigants attempt to use social scientific theories in factual adju- dication, rules of evidence provide at least some institutionalized gatekeep- ing role in scrutinizing those theories' validity.' But there is no systematic method through which the validity of behavioral theories used in legal rea- soning is tested. Behavioral theories can thus enter and remain embedded in legal doctrine long after they have been disconfirmed or superseded by advances in the empirical social sciences. The resulting inconsistencies between the real world and the phe- nomenological models embedded in law can be highly problematic. As Professor Krieger has argued in earlier work on antidiscrimination law, discontinuities between jurisprudential models of intergroup bias and the real world phenomena those models purport to represent have serious nega- tive effects. These negative effects include normative ambiguity, adjudica- tive inefficiency and inaccuracy, and perhaps even an exacerbation of the very intergroup tensions antidiscrimination laws were enacted to diffuse.6 As Oliver Wendell Holmes, Jr. wrote in 1881, "The first call of a theory of law is that it should fit the facts."7 In context, of course, Holmes was referring to descriptive theories of law; he was not constructing, at least at that point, a prescriptive theory of judicial decision making. More recently, however, as typified by Justice Souter's dissent in United States v. Morrison,8 Holmes's "first call" principle has emerged as a rallying cry against the premising of legal doctrines on inaccurate conceptions of real world conditions. Used in this way, Holmes's "first call" principle points to Michael D. McClintock, The Declining Use of Legal Scholarship by Courts: An Empirical Study, 51 OKLA. L. REV. 659, 660 (1998) (finding a 47% decline in the use of legal scholarship by courts over the previous two decades, with the most notable decline in the 1990s); see also Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992) (complaining that much of interdisciplinary legal scholarship is impractical and useless to courts); Richard A. Posner, Legal Scholarship Today, 115 HARV. L. REV. 1314, 1324 (2002) (observing that "interdisciplinary legal scholarship is intended to be read by professors... rather than by practitioners (including judges)"). 5. See discussion infra p. 1022 and note 81. 6. Linda Hamilton Krieger, The Content of Our Categories:A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1238-41 (1995) [hereinafter Krieger, The Content of Our Categories]. 7. HOLMES, supra note 1. 8. 529 U.S. 598, 655 (2000) (Souter, J., dissenting) (arguing that, in declaring the Violence Against Women Act unconstitutional, the majority's conception of the nature of twenty-first century interstate commerce and the nature of the state-federal relationship failed Holmes's basic test that a theory of law should "fit the facts"). 1000 CALIFORNIA LA W REVIEW [Vol. 94:997 a prescriptive principle of adjudication, related to but distinct from the le- gal realism Holmes presaged. This new principle, which the contributors to this Symposium call "behavioral realism," holds that as judges develop and elaborate substan- tive legal theories, they should guard
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