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2012 Missing Quadrants of Anti-Discrimination


Behavioral realists urge the law to re spond to new scientific discoveries about the reality of contemporary discrimination. But in thinking about how the law might respond, it is easy to frame the question as: When should evidence from scientific instruments, such as the Implicit Association Test, be admissible in a discrimination lawsuit. In other words, should we admit into evidence the results of some “Prejudice Polygraph”? But this framing, which focuses on specific facts, found ex post is too narrow and obscures a much broader range of potential legal responses. Indeed, by considering both specific and general facts, as well as both ex post and ex ante time orientations, four separate quadrants of analysis emerge. Psychologists, legal scholars, and policymakers should not miss these other quadrants of anti-discrimination.

download near final draft @ SSRN