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Evidence of Discrimination

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  • Nicola Persico

Abstract

This paper develops a decision-theoretic model of evidence production in the context of a discrimination trial. Producing evidence is assumed to be costly, and the cost can vary depending on what type of defendant behavior (and plaintiff characteristics) the evidence bears upon. The goal of the trial is to uncover a possible behavioral bias in the defendant (intent to discriminate). I then ask how a social planner would structure the production of evidence in a trial in order to best achieve this objective, taking into account the cost of evidence production. I show that it is sometimes efficient to sequence the production of different kinds of evidence (burden shifting) or even to allow a decision based on limited evidence (for example, disparate impact alone, as a proxy for intent to discriminate). A key variable is the availability of evidence concerning the productivity of the plaintiff.

Suggested Citation

  • Nicola Persico, 2012. "Evidence of Discrimination," The Journal of Legal Studies, University of Chicago Press, vol. 41(2), pages 321-346.
    • Handle: RePEc:ucp:jlstud:doi:10.1086/667398
    DOI: 10.1086/667398
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    References listed on IDEAS

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    1. John Knowles & Nicola Persico & Petra Todd, 2001. "Racial Bias in Motor Vehicle Searches: Theory and Evidence," Journal of Political Economy, University of Chicago Press, vol. 109(1), pages 203-232, February.
    2. John R. Walter, 1995. "The fair lending laws and their enforcement," Economic Quarterly, Federal Reserve Bank of Richmond, issue Fall, pages 61-77.
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