As with any promising new science, implicit bias has its critics. Two of the most vocal critics of implicit bias in the last few years have been Gregory Mitchell and Philip Tetlock.

The current issue of Harvard Law & Policy Review includes a compelling response by Professor Bagenstos, Washington University School of Law, to Mitchell’s and Tetlock’s most recent attempt to attack implict bias and its relevance to law.

Samuel R. Bagenstos, Implicit Bias, “Science” and Antidiscrimination Law, 1 Harv. L. & Pol’y Rev. 477 (2008).

• Summary: Bagenstos argues that “Mitchell and Tetlock’s argument does not at all undermine the case for taking account of implicit bias in antidiscrimination policy. Even if one accepts every “scientific” critique they offer of the implicit bias literature–and there is substantial dispute within psychology on some of those critiques–the case for using the law to respond to the problem of implicit bias remains strong. In the end, many of Mitchell and Tetlock’s critiques of implicit bias research rest, not on any scientific ground, but on normative assumptions about what kinds of discrimination the law should seek to prevent and punish. In particular, they rest on a very narrow view, based on notions of individual fault, that the law should prohibit only discrimination that results from self-conscious, irrational animus. That narrow view may resonate politically, but antidiscrimination doctrine and theory have consistently rejected it.”