Prevention Perspectives on "Different" Kinds of Discrimination: From Attacking Different "Isms" to Promoting Acceptance in Critical Race Theory, Law and Economics, and Empirical Research
Freshman, Clark, Stanford Law Review
PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION. By Ian Ayres. ** Chicago: University of Chicago Press, 2001. 433 pp. + xi.
CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY. Edited by Francisco Valdes, ([dagger]) Jerome McCristal Culp ([double dagger]) & Angela P. Harris. ([section]) Philadelphia: Temple University Press, 2002. 414 pp. + xxi.
It shall soon be no secret that Ian Ayres's collection of empirical evidence of discrimination in a wide range of "markets," and the new critical race theory (CRT) collection (1) are two of the best and most important books in publishing, academic or otherwise. But both are so engaging and beautifully written that many may fail to notice that neither a book seemingly about critical approaches to "race" nor one that promises evidence of "race" and "gender" discrimination is, really, about "race" or "gender." Before getting too detailed, consider first that the Ayres book includes several studies but only two of them look at women at all--and both conclude that women in general (2) don't face discrimination in either car sales or bail rates. (African-American women pay more for cars, and, by some complex measures, African-American women and Latinas probably (3) pay too much for bail. (4)) And likewise consider that one can't even get past the dedication to the reader in the CRT reader on "race" without the first of many announcements that one really can't look at unfairness involving race without looking at "other" ("interlocking") forms of discrimination. (5) As I've suggested elsewhere, this type of confusion is pervasive in everyday life, law, and social science: We get in the habit of seeing discrimination and prejudice as if they fit some fixed natural category like race or gender. (6) Like other efforts by Ayres and other CRT scholars, then, one might take simply a "second look" at this same issue. (7) In particular, one might look again at the updated works here about how one might prove discrimination in court, change statutes, and take other similar formal action.
Instead this Review looks at this question of categories from a prevention perspective: How does one prevent unfairness (be it "racism" or "sexism" or some other "ism") in the first place? Should employee training include specific information about stereotypes of specific groups or some version of general diversity training? Pairing CRT and Ayres with this prevention focus makes sense for many theoretical, historical, and quite pressing doctrinal reasons. From a theoretical perspective, the often-neglected focus on prevention gives us some room to sidestep other well-worn and often emotionally taxing debates. (8) Consider again the metaphor of "racism" as a "disease." (9) It's easy to get lost in sorting through similarities and differences in diagnosing different diseases and their different causes. Whatever value such distinction-making may have, it may not be necessary for prevention and treatment. Syphilis and strep throat come from very different sources, and yet the best treatment for both may often be exactly the same antibiotic. (10) Likewise something as simple as aspirin may tame headaches, relax sore muscles (whether sore from doing too many bench presses or sipping too much sherry), and even slow aging in general. (11) And prevention of many diseases in the first place may often rely on common "wellness" habits like eating less unhealthy fat, exercising, and so on. So, too, the best way to quiet prejudice and promote socially healthy attitudes of acceptance may rely on quite general approaches. This may make it less necessary to debate which particular diseases deserve the most attention. (12) As we'll see below, both much psychological science and much commercially available training suggest the best approach to combating prejudice will often be a large share of such general approaches to promote acceptance rather than narrower attacks on what might be seen as particular "isms. …