Skip to main content Accessibility help
×
Home
Hostname: page-component-99c86f546-4hcbs Total loading time: 0.367 Render date: 2021-12-08T07:34:50.535Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

4 - Torts

Implicit Bias–Inspired Torts

Published online by Cambridge University Press:  05 June 2012

Justin D. Levinson
Affiliation:
University of Hawaii, School of Law
Robert J. Smith
Affiliation:
University of North Carolina, School of Law
Get access

Summary

Bias based on race, religion, gender, color, national origin, ancestry, disability, sexual orientation, physical appearance, and a myriad of other largely immutable characteristics is still ubiquitous today. These biases are not as easy to detect as old-fashioned, explicit racism (even for the beholder). Yet twenty-first century bias has the same old consequences: employment discrimination; discriminatory charges, arrests, prosecutions, convictions, and sentences; defamation and invasion of privacy; and harassment and other interpersonal antisocial conduct, such as ostracism. The loss of employment opportunities, liberty infringement, emotional pain, and other harm caused by the constant manifestations of implicit bias are unquantifiable. Because most of us are oblivious to this social problem, proactive measures to combat the injustices that flow from implicit bias have yet to be initiated on a meaningful scale.

Implicit bias is a social issue, not an individual problem. Accordingly, it is socially desirable to expose implicit bias and instigate public discourse concerning its pervasiveness and harmful social effects. The benefit to victims is self-evident, but perpetrators and all members of society stand to gain self-awareness through enlightenment about the inner workings of their minds, which may be contrary to the dictates of their consciences. Publicizing the existence and injurious effects of implicit bias could further self-actualization and individual liberty and would create social awareness, which could benefit society in many ways. However, it seems doubtful that a public education campaign about the perverse consequences of implicit bias would be sufficient to eradicate its operation. Could the law of torts be of service in this regard?

This chapter considers how tort remedies for implicit bias could publicize this serious social problem, awaken individuals to their own implicit biases, stimulate robust public and private discussion about the problem, and deter its antisocial and often grossly unfair social consequences. The first issue to explore is the propriety of engaging tort liability as a means of combating implicit bias. Next, assuming tort law can and should respond to this social problem, a few examples of tortious behavior caused by implicit bias are provided, and tort remedies are proposed. Anticipated challenges to the proposed tort remedies are identified and addressed in the last portion of this chapter.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1984
Calabresi, GuidoSome Thoughts on Risk Distribution and the Law of Torts 90 1961
Keating, Gregory C.The Theory of Enterprise Liability and Common Law Strict Liability 54 2001
Sunstein, Cass R.On the Expressive Function of Law 144 2026 1996
McAdams, RichardThe Origin, Development, and Regulation of Norms 96 1997
Posner, Richard A.Rational Choice, Behavioral Economics, and the Law 50 1998
Korobkin, Russell B.Ulen, Thomas S.Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics 88 2000
Pollard, Deana A.Sex Torts 91 819 2007
Kahan, Dan M.Social Influence, Social Meaning, and Deterrence 83 377 1997
Durrant, Joan E.19 1996
1965
Pollard, Deana A.Implicit Bias and Self-Critical Analysis: The Case for a Qualified Evidentiary Equal Employment Opportunity Privilege 74 922 1999
Ward, Russell A.Typifications of Homosexuals 20 1979
1992
Green, Tristin K.Discrimination In Workplace Dynamics: Toward A Structural Account of Disparate Treatment Theory 38 2003
1978
Bertrand, MarianneMullainathan, SendhilAre Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination 94 2004
Lawrence III, CharlesUnconscious Racism Revisited: Reflections on the Impact and Origins of “The Id, The Ego, and Equal Protection,” 40 957 2008
1950
1955
Tversky, AmosKahneman, DanielAvailability: A Heuristic for Judging Frequency and Probability 5 207 1973
1957
1979
Delgado, RichardWords that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling 17 1982
Kagan, ElenaRegulation of Hate Speech After R.A.V 60 1993

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Send book to Dropbox

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

Available formats
×