Talk (Work in Progress): Naftali Weinberger (MCMP)

Title:

Incorporating Anti-Subordination Values into the Causal Analysis of Discrimination

Abstract:

In legal discussions of discrimination, “anti-classification” approaches link the wrongness of discrimination to its differentiating individuals based on group membership rather than individual qualities. In contrast, “anti-subordination” approaches see discrimination as not reducing to differential treatment, since the wrongness of discrimination derives in part from the history of stigmatization of specific groups. Although the U.S. Supreme Court increasingly endorses an anti-classification interpretation of discrimination law, anti-subordination values remain important for anyone seeking to understand discrimination as a historical phenomenon and to develop legal strategies for preventing the perpetuation of existing inequalities via facially neutral means. In my talk, I consider whether anti-subordination values can be incorporated into causal analyses of discrimination. Two reasons to think that they cannot are: 1) causal relationships are facts about individuals or (derivatively) groups of individuals, and thus cannot independently weigh group status, and 2) because causal counterfactuals do not “backtrack”, the causal analysis of discrimination cannot take into account historical factors. I propose that both of these concerns can be addressed by a proper understanding of the “path-specific effects” within causal models of discrimination. Although all causal effects are individual effects, path-specific effects enable one to represent a type of partially-backtracking counterfactual that incorporates historical information when evaluating current actions.