The REP has you covered for the latest round of legal scholarship on implicit bias and structural racism. Take a look.

Ivan E. Bodensteiner, THE IMPLICATIONS OF PSYCHOLOGICAL RESEARCH RELATED TO UNCONSCIOUS DISCRIMINATION AND IMPLICIT BIAS IN PROVING INTENTIONAL DISCRIMINATION, 73 Mo. L. Rev. 83 (2008).

• Summary: Professor Bodensteiner examines the elements necessary to establish intent under statutory and constitutional disparate treatment claims in light of implicit bias science. In addition to offering a compelling critique of intent requirements Professor Bodensteiner argue that “existing proof schemes should be modified or adjusted, with more emphasis on the direct method and the mixed-motive defense.”
• Note: The Missouri Law Review post their current edition on the internet. As of the date of this posting, however, Professor Bodensteiner’s article has not yet been posted.

Note, “TRADING ACTION FOR ACCESS”: THE MYTH OF MERITOCRACY AND THE FAILURE TO REMEDY STRUCTURAL DISCRIMINATION, 121 Harv. L. Rev. 2156 (2008)

• Summary: This note argues that there are “two contrasting explanations of inequality in the workplace, the reasons individuals might attribute inequality to one of the two explanations, and the detrimental consequences of such attributions. The first explanation of workplace inequality suggests that the workplace is meritocratic and therefore individuals, through the choices they make, are responsible for any resulting inequality. The second takes the position that discrimination in the form of institutional, structural, and organizational constraints on the achievement of women and minorities still exists, and that numerical disparities in the workplace can largely be attributed to such discrimination. This Note argues that the first explanation–the myth of meritocracy–has its origin in the ‘just world phenomenon,’ the cognitive desire to view our society, the organizations of which we are a part, and ourselves as just and legitimate. Even individuals who are members of groups that have been traditionally disadvantaged–individuals who might perceive subtle discrimination more readily–may perpetuate the myth of meritocracy, especially if they are upwardly mobile. This myth co-opts possible system challengers, who instead legitimize the existing social structures. It also gets translated into law by judges who assume that individual failings–and not structural discrimination–are responsible for the numerical disparity between races and sexes. The resulting stringent legal standards make it difficult to prove the existence of structural discrimination.”