University of Miami Law Review


Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between “us” versus “them” on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, which in turn trigger the brain’s tendency toward us versus them thinking. This research speaks to the considerations underlying antidiscrimination law and suggests that social neuroscientists and antidiscrimination theorists should be in conversation.

Indeed, my investigation shows that social neuroscience and legal antidiscrimination theory are reaching a “consilience”—meaning an unlikely agreement in approaches between disparate academic subjects. Both agree on the importance of promoting tolerance for human behavioral difference. The time is ripe to explore this consilience more deeply. I do so preliminarily in this Article, proposing that antidiscrimination law should pay more attention to (1) the ways in which discrimination occurs through decision-makers’ distaste for those who “act differently” (rather than identity status alone), and (2) the need for more theory supporting a general human right to “act differently” within reasonable bounds.