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94 Calif. L. Rev. 1063 (2006)
Fair Measures: A Behavioral Realist Revision of Affirmative Action

handle is hein.journals/calr94 and id is 1083 raw text is: Fair Measures: A Behavioral Realist Revision of Affirmative Action Jerry Kangt Mahzarin R. Banajitt Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become the country's law and practice. - Justice Ginsburg, dissenting in Adarand Constructors, Inc. v. Pena' One thing I have learned in a long life: that all our science, measured against reality, is primitive and childlike-and yet it is the most precious thing we have. - Albert Einstein2 INTRODUCTION: A NEW BEGINNING The term affirmative action includes a broad range of policies and practices designed to promote equality in ways not strictly required by Copyright © Jerry Kang and Mahzarin R. Banaji t Professor of Law, UCLA School of Law (kang@law.ucla.edu) (http://jerrykang. net). tt Richard Clarke Cabot Professor of Social Ethics, Department of Psychology, Carol K. Pforzheimer Professor at the Radcliffe Institute for Advanced Study, Harvard University. (MahzarinBanaji@harvard.edu) (http://www.peoplefas.harvard.edu/-banaji) (www.implicit.harvard.edu) Helpful research assistance was provided by Tami Kameda, Kathryn Padbury, Jennifer Roche, Gwen Sedney, and the Hugh & Hazel Darling Law Library at UCLA School of Law. We benefited from talks given at Maryland Law School, Georgetown Law Center, UCLA School of Law's Critical Race Studies Program, Yale Law School, and Virginia Law School. For helpful comments, we thank: Ian Ayres, members of the Banaji Lab, Richard Banks, Gary Blasi, Devon Carbado, Dolly Chugh, Jennifer Eberhardt, Richard Fallon, Susan Fiske, Mark Greenberg, Anthony Greenwald, Lani Guinier, Christine Jolls, John Jost, Louis Kaplow, Ken Karst, Sung Hui Kim, Bill Klein, Russell Korobkin, Linda Hamilton Krieger, Tom Newkirk, Kristina Olson, Jeff Rachlinski, Judith Resnik, Russell Robinson, Lee Ross, Michael Selmi, Margaret Shih, Reva Siegel, Gerry Spann, Cass Sunstein, Michael Rip Verkerke, Eugene Volokh, Robin West, Joan Williams, and Noah Zatz. This work was supported in part by Georgetown University Law Center; FAS, Harvard University; Radcliffe Institute for Advanced Study at Harvard University; Russell Sage Foundation; Third Millennium Foundation; UCLA School of Law; and the UCLA Asian American Studies Center. 1. 515 U.S. 200, 274 (1995) (Ginsburg, J., dissenting). 2. ALBERT EINSTEIN, THE EXPANDED QUOTABLE EINSTEIN 261 (Alice Calaprice ed., 2000). 1063

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