Abstract
Scientific studies show that implicit biases operate insidiously in the legal system, often harming disfavored social groups. Helpfully, the Equal Protection Clause prohibits government discrimination, which logically would include actions driven by implicit bias. District Court Judge Clyde Cahill found just that in the 1994 case United States v. Clary, which struck down the sentencing disparity between crack and powder cocaine as a consequence of “unconscious racism.”
But the Eighth Circuit overturned Judge Cahill, and other courts have almost uniformly rejected arguments that actions resulting from implicit bias violate Equal Protection. One of the courts’ concerns is that even if implicit bias exists, it is too difficult to detect in a given case. This Essay contests that point by looking to another area of law: copyright. Under copyright’s subconscious copying doctrine, courts have assessed unconscious influence for a century. And there is no reason they cannot do the same in the equal protection context. This Essay thus looks to copyright law to offer a legally practicable way to revitalize Clary’s unconscious racism doctrine.
Copyright’s subconscious copying doctrine relies on the dual concepts of “access” and “similarity”— two prongs equally applicable to the equal protection context. A copyright-informed unconscious discrimination doctrine would thus find Equal Protection violations when state actors (1) accessed discriminatory inputs when contemplating their decisions and (2) made decisions that are similar to or reflect expressions in those discriminatory inputs.
