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94 Calif. L. Rev. 997 (2006)
Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment

handle is hein.journals/calr94 and id is 1017 raw text is: Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment Linda Hamilton Krieger? Susan T. Fiskeft 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. ft Professor, Department of Psychology, Princeton University (Green Hall). 1. OLIVER WENDELL HOLMES, THE COMMON LAW 167 (1963). 997

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