Friday, March 21, 2014
My latest on systemic disparate treatment law and the (mis)use of statistical significance is now on SSRN, available here. From the abstract:
This paper is the second in a series of two papers addressing the influence of priors in systemic disparate treatment discrimination law. The first paper, Hidden Priors, argued that Bayesian probability theory could harmonize two divergent strands of scholarship on systemic disparate treatment law. . . . While a few scholars have advocated a transition to a Bayesian approach in employment discrimination law, there has been virtually no scholarly treatment of the difficult second-order questions raised by the recognition of priors. These second-order questions were highlighted at the conclusion of Hidden Priors. They include hard, but not intractable, questions such as: Whose priors matter? How should priors be incorporated into civil litigation procedures? And, what are legitimate sources of priors? The lack of scholarly attention to these second-order questions may explain the stubborn refusal of courts, litigants, and most employment discrimination scholars to acknowledge the role of priors in systemic disparate treatment cases. This second article in the series is meant to spur a healthy scholarly discussion of the second-order questions, even if it cannot provide definitive answers to them. This article argues that the procedural devices of our civil litigation system–flawed though they may be–are actually well-suited to properly allocate responsibility among legislatures, appellate judges, trial judges, and fact-finders for estimating the prior likelihood of discrimination. This article demonstrates that, once acknowledged, priors can be transparently managed by thoughtful implementation of these civil procedure devices.