Anticipatory discrimination: How attorneys’ assumptions about fact triers’ biases sustain race and gender inequality in the civil legal system

Abstract

Sociolegal research has shown that structural and interpersonal discrimination produce race and gender inequality in access to civil justice. This article draws on interviews with civil attorneys who represent sexual violence victims to theorize “anticipatory discrimination” as a related but distinct explanation for inequality. Attorneys worried about the potential racism and sexism of imagined fact triers (i.e., judges and jurors). They preempted anticipated discrimination by taking fewer cases from Black and Latino victims and from victims whose experiences deviated from dominant gender ideologies. When they did take cases from victims who they anticipated might experience structural or interpersonal discrimination, attorneys lowered their case valuation and demanded they meet higher evidentiary thresholds than similarly situated but less marginalized victims. This article challenges acclamations of the civil legal system as a promising route to redress for sexual violence victims by presenting evidence of race and gender inequality in victims’ access to and experience of civil justice. In so doing, this article extends sociolegal and social cognition research on inequality by showing that actions taken in anticipation of discrimination may sustain inequality separate and apart from existing structural and interpersonal discrimination, a process this article terms “anticipatory discrimination.”