PULSE - Program on Understanding Law, Science & Evidence


FEBRUARY 21, 2013

Video Recording of Talk


Racialized harms can be caused by “good” intentions that have disastrous consequences.  The intention is in some sense laudable – a white person seeking to ensure that a person of color does not consider him racist. But a strategy that protects onself from seeming racist often ignores potential negative consequences.  For example, the law firm partner or teacher who provides less critical feedback on writing to a Black associate or student than to her white counterpart may be motivated by a desire to prevent the perception of bias, but the outcome is that the student or associate learns less and ultimately may be set up to fail. 

In some instances, the individuals will be unaware that they are treating people differently because of race.  Their desire to think of themselves as non-racist will result in cognitive defense mechanisms in which they presume that their actions are the result of some other characteristic than race.  Those who are more conscious of their behavior – worrying consciously that a student or associate will be offended if they criticize their work – presumably rationalize their behavior as necessary not to upset the individual with whom they are dealing.  In either context, the self-realization that their actions have caused harm in the past and the willingness to alter behaviors will be rare.  Only when the behavior is identified as causing a racialized harm will the person be aware that their good intentions have backfired. Potential legal liability could trigger such self-awareness. 

Current civil rights doctrine is poorly equipped to address white stereotype threat. The focus on “intent” as well as recent Supreme Court jurisprudence requiring detailed pleading will shield actors whose “white stereotype threat” causes harm.  Ultimately, the most effective means to address the anxiety at the root of white stereotype threat is likely to be collaborations in which the actors are given tools to allow their “good” intentions to be realized by allaying their racial anxiety.  Law is often a useful vehicle for encouraging such collaborations – particularly when the work is difficult and often uncomfortable.  A simple amendment to current civil rights statutes – both Title VI and Title VII – is likely sufficient; the challenge is to engage the political will to address publicly the continuing salience of race and the need for interventions

Co-sponsored by the Critical Race Studies Program

JANUARY 24-25, 2013

Judging Evidence
This panel explores both the procedural rules that structure what evidence gets heard in court, and how judges and other factfinders make sense of the evidence they hear. How and when do procedural rules influence evidentiary determinations? How do the domains’ quite different standards of review – typically abuse of discretion for evidence determinations and de novo for significant procedural resolutions like summary judgment – affect judges’ behavior and litigants’ strategy? To what extent do procedural and evidentiary rules protect judges and factfinders from cognitive bias and other evaluation errors, and to what extent might their design exacerbate these concerns? More generally, to what degree do these rules, in combination, achieve their intended goals of efficiency and justice?

  • Jennifer Mnookin, UCLA School of Law
  • Judge Andrew Wistrich, U.S. District Court for the Central District of California
  • Michael Risinger, Seton Hall University School of Law
  • Judge John Wiley, Los Angeles Superior Court

Evidence and Procedure: The Odd Couple?

Both evidence and civil procedure provide frames for the litigation process, structuring what information is heard and the mechanisms by which the litigation proceeds. They are both procedural domains, in this sense – but procedure and substance are, inevitably, inextricably connected. This roundtable explores what evidence scholars and their civil procedure colleagues can learn from each other. This roundtable additionally asks how these procedural domains affect legal substance. How do both evidence and procedure manage problems of uncertainty and imperfect knowledge?

  • David Sklansky, Berkeley Law
  • Barry Cappello, Cappello & Noel LLP
  • Michael Risinger, Seton Hall University School of Law
  • Judge Carolyn Kuhl, Los Angeles Superior Court
  • Kent Syverud, Washington University School of Law