In this Meador Lecture, Prof. Jerry Kang briefly reviews the state of scientific understanding of implicit bias, including its predictive validity of real-world behavior. Invoking a commitment to behavioral realism, he then explores what these findings might mean for equal protection doctrine viewed as a black box “machine.” Aspects addressed include intent and impact, the triggers for strict scrutiny, and the underlying functions or purposes of the doctrinal machine. He concludes with suggestions for doctrinal redesign, including more serious scientific investigation about the causes and consequences of ethnic and racial balkanization.
(forthcoming Alabama Law Review 2015)
This paper was delivered as part of the 2014 Meador Lecture series focusing on equality.