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date: 13 May 2021

Abstract and Keywords

Despite the ‘Age of Genomics’, many scholars who study race and the law resist biological insights into human psychology and behaviour. Contemporary developments make this resistance increasingly untenable. This chapter synthesizes recent findings in genomics and evolutionary psychology, which suggest cause for concern over how racial concepts function in the law. Firstly, racial perceptions engage a ‘folk-biological’ module of psychology, which generates inferences poorly adapted to genomic facts about human populations. Racial perceptions are, therefore, prone to function in ways more prejudicial than probative of many issues relevant to criminal and civil liability. Secondly, many folk biological inferences function automatically, unconsciously, and without animus or discriminatory intent. Hence, current equal protection doctrine, which requires a finding of discriminatory intent and is a central mechanism for guaranteeing people equal treatment under the law, is poorly suited to that task. These facts support but complicate several claims made by Critical Race Theorists.

Keywords: race, implicit bias, genetics, genomics, discrimination, psychology, folk biology, essentialism, equal protection

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