Beyond The Prejudice Polygraph Analysis

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Beyond the “Prejudice Polygraph” 1 Running Head: BEYOND THE “PREJUDICE POLYGRAPH” The Missing Quadrants of Anti-discrimination: Going Beyond the “Prejudice Polygraph” Jerry Kang UCLA School of Law (c) by author Please do not quote, without explicit permission. cite, copy, or distribute further, Electronic copy available at: http://ssrn.com/abstract=1968276 Beyond the “Prejudice Polygraph” 2 Abstract Behavioral realists urge the law to respond 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…show more content…
For example, should judges embrace “mind reading” and issue orders based on mere fMRIs? Intentionally crude and tendentious, this sentence was meant to demonstrate that focusing too narrowly on such cases can impoverish our understanding of how science can interact with law. To avoid this fate, we should systematically investigate four separate quadrants, produced by intersecting two conceptual axes based on “specificity” and “time.” Axis of Specificity. Making new law or applying existing law both require some understanding of the “facts”—either the factual contours of a problem to be solved or the factual particularities necessary to apply general legal principles to a specific case. But as legal scholars have noted, facts can be specific or general (e.g., Faigman, 2008). For instance, we might have a general scientific understanding that cigarette smoking causes lung cancer. However, in a tort lawsuit, the more relevant question is whether the particular victim’s lung cancer was specifically caused by smoking a particular brand, which is a different (and much harder) question. Because lung cancer can have other causes, the specific finding must at least rule out confounding causes. In other words, even when there is universal scientific consensus about some general fact—e.g., smoking causes cancer—there can still be doubt about a specific factual allegation—e.g., smoking a particular brand caused this particular cancer in this…show more content…
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