Civil rights litigation often concerns the causal effect of some characteristic on decisions made by a governmental or socioeconomic actor. An analyst may be interested, for example, in the effect of victim race on jury imposition of the death penalty, in the effect of gender on a firm's hiring or promotion decisions, or in the effect of candidate ethnicity on election results. For the past 30 years, such analyses have primarily been accomplished via regression. But as used in civil rights litigation, regression suffers from several shortcomings: it facilitates biased, result-oriented thinking by expert witnesses; it encourages judges and litigators to believe that all questions are equally answerable; and it gives the wrong answer in situations where such might be avoided. These difficulties, and several others, all stem from the fact that regression does not begin with a paradigm for drawing causal inferences. This paper argues for a wholesale change in thinking in this area, from a focus on regression coefficients to an explicit framework of causation called “potential outcomes.” The potential outcomes theory of causal inference, which (for lawyers) may be analogized to but-for causation with a renewed emphasis on time, addresses many of the shortcomings of regression as the latter is currently used in modern civil rights litigation, and it does so within a framework courts, litigators, and juries can understand. This paper unpackages the potential outcomes paradigm and discusses its application in death penalty, employment discrimination, and redistricting settings.
Date of Authorship for this Version
Greiner, D. James, "Causal Inference in Civil Rights Litigation" (2008). Harvard Law School Faculty Scholarship Series. Paper 16.