Nothing personal: On statistical discrimination

Journal of Political Philosophy

Volumn 15, Issue 4, 2007, Pages 385-403

  Lippert Rasmussen, Kasper ^a  

^a UNIVERSITY OF COPENHAGEN   (Denmark)

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[No Author keywords available]

Indexed keywords

EID: 36148982703     PISSN: 09638016     EISSN: 14679760     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2007.00285.x     Document Type: Article

References (24)

1. I thank Linda Barclay, Theresé Björkholm, Alexander W. Cappelen, Eli Feiring, Lena Halldenius, Nils Holtug, Sune Lægaard, Raino Malnes, Søren Flinch Midtgaard, Jouni Reinikainen, Paul Robinson, Dag Einar Thorsen, Leif Wenar and three anonymous JPP referees for helpful comments.
2. Fred Lucas, 'The Right Way to Profile in NYC', FrontPageMagazine, August 17, 2005; available at: http://www.frontpagemag.com/Articles/ReadArticle.asp?ID= 19163 (accessed November 22, 2006).
3. The judgements about responsibility at stake here are about what Scanlon calls 'substantive responsibility', i.e. judgements about who ought to pick up the costs and benefits of certain acts or practices. See Thomas M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998), pp. 248-9.
4. Richard Arneson Against Rawlsian equality of opportunity Philosophical Studies, 93 (1999 77 112 What makes wrongful discrimination wrongful? Biases, preferences, stereotypes, and proxies University of Pennsylvania Law Review, 141 (1992 151 219 Racism, sexism, and preferential treatment: an approach to the topics UCLA Law Review, 24 (1977 581 622.
5. Kasper Lippert-Rasmussen Private discrimination: a prioritarian, desert-accommodating account San Diego Law Review, 43 (2006 818 56.
6. Because I restrict the scope of this claim to statistically discriminatory policies, I am not denying that in a legal context, where the relevant issue about the use of statistical information often concerns one-off decisions about members of socially non-salient groups, the cases of first and foremost interest are different. I thank an anonymous referee for pointing out the need to state this qualification.
7. Samuel R. Bagenstos "Rational discrimination", Accommodation, and the Politics of (Disability) Civil Rights Virginia Law Review, 89 (2003 825 923 Kelman Concepts of discrimination in "general ability" in job testing Harvard Law Review, 104 (1991 1157 247.
8. J. Angelo Corlett Racism and affirmative action Journal of Social Philosophy, 24 (1993 163 75 Statistical badness Journal of Social Philosophy, 23 (1992 30 41.
9. Mark Colyvan, Helen M. Regan Scott Ferson Is it a crime to belong to a reference class? Journal of Political Philosophy, 9 (2001 168 81 Tillers If wishes were horses: discursive comments on attempts to prevent individuals from being unfairly burdened by the reference classes Law, Probability and Risk, 4 (2005 33 49 Tillers Introduction: Three Contributions to Three Important Problems in Evidence Scholarship Cardozo Law Review, 1997 (18 1875 89 Allen Michael S. Pardo The problematic value of mathematical models of evidence Journal of Legal Studies, 36 (2007 107 40.
10. What kind of statistical evidence is the best available depends not only on how reliable a predictor a certain feature is, but also on how costly it would be to establish whether a certain individual possesses the relevant predictor-feature. A very reliable predictor is of little use if it is very costly to establish whether a person has it.
11. ' On Levin's "Responses to race differences in crime" Journal of Social Philosophy, 24 (1993 155 62 Scheffler What is egalitarianism? Philosophy and Public Affairs, 31 (2003 5 39 Scheffler Choice, circumstance, and the value of equality Politics, Philosophy, and Economics, 4 (2005 5 28 Anderson What is the point of equality? Ethics, 109 (1999 287 337 Schauer Richard Zeckhauser Regulation by generalization Regulation and Governance, 1 (2007 68 87.
12. Some such view might underpin the suggestion that in a legal setting statistical evidence of misconduct based on the defendant's own previous behaviour is preferable to statistical evidence based on the behaviour of others who are believed to be similar in relevant respects, see Colyvan et al., 'Is it a crime?' p. 175. (The reference class problem does not disappear in the former case: the problem becomes determining which parts of the defendant's previous behaviour are relevant for the assignment of probabilities.)
13. Arneson, 'Against Rawlsian', pp. 105-106. As Arneson points out, this situation violates Rawls's principle of fair equality of opportunity.
14. Ronald Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1985), p. 190. According to Joel Feinberg the basic principle of comparative justice is that people should be treated alike provided that there are no relevant differences between them: see his Social Philosophy (Englewood Cliffs, N.J.: Prentice Hall, 1973), pp. 98-9. From this perspective, my claim is that the unequal treatment involved in statistical discrimination may map on to relevant differences.
15. One particularly strong version of this objection says that it is unfair that the objects of statistical discrimination are being punished for what others do. When 'punishment' is understood literally, the objection is obviously flawed, since statistical discrimination need not involve any expression of an authoritative judgement that the targeted individuals have violated rules good citizens are supposed to respect: see Scanlon, What We Owe, p. 266. To avoid this riposte the objector must construe 'punishment' as something like the imposition of costs, in which case the objection really is no different from the one discussed in the main text.
16. Tillers, who is otherwise favourably disposed towards the judicial use of statistical evidence and who in any case thinks its use in one form or another is unavoidable, notices that it saddles individuals 'with disabilities resulting from situations that [they] happen to find themselves in, through no fault or doing of their own', to which he remarks 'that life is unfair', see his 'If Wishes Were Horses', p. 46. The view presently under discussion is very similar to the position seemingly endorsed by Colyvan et al. which was mentioned in note 25.
17. Saul Smilansky The paradox of moral complaint Utilitas, 18 (2006 284 90.
18. The distinction I make between the fairness complaint and the individual treatment complaint is related to, but different from, Matt Cavanagh's distinction between a complaint based on the responsibility principle (i.e. 'the idea that it is wrong to treat people differently according to differences for which they are not responsible') and a complaint based on 'the principle that a person's prospects should depend on facts about him rather than on facts about some group of which he happens to be a member': see his Against Equality of Opportunity (Oxford: Clarendon Press, 2002), pp. 186-7. It differs because the first kind of complaint in Cavanagh's account concerns what 'we are allowed to regard as ultimately relevant' whereas the latter concerns 'ways we can pursue the things we regard as relevant' (p. 187). As I have construed the complaints, both concern the latter.
19. Arthur Isak Applbaum, 'Response: racial generalization, police discretion, and Bayesian contractualism', Handled, ed. Kleinig, pp. 145-157 at pp. 150-1; Thomas M. Scanlon, 'Contractualism and Utilitarianism', Utilitarianism and Beyond, ed. A. Sen and B. Williams (Cambridge: Cambridge University Press, 1982), pp. 103-28 at pp. 122-3.
20. It might be replied that while the imposition of a marginal burden on the hunters is, all things considered, fair, it is still in one respect unfair that they are made to bear a burden, however small, on account of what other non-vegetarians choose to do. To accommodate this concern, let us stipulate that the non-vegetarians who choose to raise cattle have no acceptable alternative to doing so.
21. ' The badness of discrimination Ethical Theory and Moral Practice, 9 (2006 167 85 Racial profiling versus community Journal of Applied Philosophy, 23 (2006 141 55.
22. G. A. Cohen, 'Incentives, inequality and community', Tanner Lectures on Human Values, ed. G. Petersen (Salt Lake City: University of Utah Press, 1992), vol. 13.
23. Since the relevant causal link goes through the choices of many members of the underprivileged group, an appeal by the privileged group to the relevant statistical facts becomes less problematic the more these choices are free.
24. Similarly, we might believe that it is morally permissible to punish known criminals despite the fact that they have become criminals partly as a result of others' unjust actions. Still, it would be morally problematic for the latter to appeal to the fact that the former have violated the law in justifying the meting out of punishment.