Articles (Loosely Categorized)
Gary Blasi & John Jost,System Justification Theory: Implications for Law, Legal Advocacy and Social Justice, 94 Calif. L. Rev. 1119 (2006).
This Article explains and expands on human theory proposed by John Jost that there is a general human tendency to support and defend the social status quo. SJT suggests that people are motivated to accept and perpetuate features of existing social arrangements, even if those features were arrived at arbitrarily, or unjustly and this Article explores how SJT impacts law.
Implicit.Harvard.edu,Project Implicit: IAT Homehttps://implicit.harvard.edu/implicit/demo/ (last visited April 28, 2011).
This site allows you to take various Implicit Association Tests which reveal some of our implicit biases.
Virginia Valian, Why So Slow? The Advancement of Women (MIT Press 1999).
This book discusses gender schema and unintentional but none the less unfair and damaging results on women.
Malcolm Gladwell, Blink: The Power of Thinking without Thinking (Black Bay Books 2007)
This book describes that most thinking is occurring on stream of consciousness than we realize and thiscan have profound impact on how we think, and act.
Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 86 Calif. L. Rev. 1251 (1998).
Written in the wake of the adoption of California’s Proposition 209, this Article discusses the social cognition and social identity as they offer value, or not, for consideration of affirmative action policies. The author reviews various kinds of discrimination—1) discrimination against the outgroup; 2) discrimination in favor of the ingroup; and 3) discrimination in favor of the ingroup and against the outgroup—and offers examples from psychology research as illustration. Krieger finds research support for the view that affirmative action may perpetuate bias, but finds other existing ways to combat bias (in particular, “a colorblindness model of nondiscrimination, reliance on an objective concept of merit, and the use of individual disparate treatment adjudication”) to be insufficient and concludes that in the absence of a better model rejecting affirmative action is premature.
Hart Blanton, James Jaccard, Patricia M. Gonzales &Charlene Christie,Decoding the Implicit Association Test: Implications for Criterion Prediction, J. of Experimental Social Psychol., June 2005 at 1, available athttp://psychology.tamu.edu/Faculty/blanton/blanton.jaccard.gonzales.christie.pdf
This Articlediscusses the theory, methods and analytic strategies surrounding the IAT in the context of criterion prediction to determine measurement and causal models a researcher embraces (knowingly or unknowingly) by using the test. For example, the article explains that a IAT test researcher must develop a way to inventory or explain how observable responses such as responding to a questionnaire are influenced by the unobserved latent constructs these responses are thought to measure, such as racial prejudice. This is referred to as creating Psychometric inventories.
The article ultimately reveals that the IAT revolves around interpretation of two distinct relative constructs, one at the conceptual level and one at the observed level. The article also discusses the complicated implications of this finding.
Max Weisbuch & Nalini Ambady, Unspoken Cultural Influence: Exposure to and Influence of Nonverbal Bias, J. of Personality andSoc. Psychol., 96 Am. Psychol. Ass’n1104 (2009),available at,http://ase.tufts.edu/psychology/ambady/pubs/2009WeisbuchJPSP.pdf
The authors examined the extent to which nonverbal behavior contributes to culturally shared attitudes and beliefs.
Douglas A. Bernstein, Louis A. Penner , Alison Clarke-Stewart, & Edward Roy, Psychology (9th ed. 2011)
Text book on psychology.
Alexander Green, Dana Carney, Daniel Pallin, Long H. Ngo, Kristal Raymond, Lisa Iezzoni and Mahzarin Banaji, Implicit Bias among Physicians and its Prediction of Thrombolysis Decisions for Black and White Patients, 22 J. of General Internal Med. 1231 (2007), available at http://dash.harvard.edu/bitstream/handle/1/4454169/2219763.pdf?sequence=1
This study represents the first evidence of unconscious (implicit) race bias among physicians, its dissociation from conscious (explicit) bias,and its predictive validity. Results suggest that physicians' unconscious biases may contribute to racial/ethnic disparities in use of medical procedures such asthrombolysis for myocardial infarction.
Po Bronson & Ashley Merryman, See Baby Discriminate, Newsweek, September 5, 2009, available athttp://www.newsweek.com/2009/09/04/see-baby-discriminate.html
This Article reports on a research study at the Children's Research Lab at the University of Texas that shows early tendency to discriminate on the basis of skin color: “Asked how many white people are mean, these children commonly answered, "Almost none." For the same question for blacks, many answered, "Some," or "A lot." Even kids who attended diverse schools answered the questions this way. …Vittrup also asked all the kids a very blunt question: "Do your parents like black people?" Fourteen percent said outright, "No, my parents don't like black people"; 38 percent of the kids answered, "I don't know." The research involved various interventions— multiculturally themed videos, checklisted conversations with parents around multiculturally themed videos, and checklisted conversations only with parents, all as compared to a control group—to attempt to change these perceptions but the interventions were largely unsuccessful.However, “Combing through the parents' study diaries, Vittrup realized why. Diary after diary revealed that the parents barely mentioned the checklist items. Many just couldn't talk about race, and they quickly reverted to the vague ‘Everybody's equal’ phrasing.Of all those Vittrup told to talk openly about interracial friendship, only six families managed to actually do so. And, for all six, their children dramatically improved their racial attitudes in a single week. Talking about race was clearly key.”
*For more on this research, particularly as it relates to the media, see an interview with Professor Vittrup at http://www.racebending.com/v4/interviews/birgitte-vittrup-early-childhood-development-and-education-researcher/
Nilanjana Dasgupta & Shaki Asgari, Seeing Is Believing: Exposure to Counterstereotypic Women Leaders and Its Effect on the Malleability of Automatic Gender Stereotypes, 40 J. Experimental Soc. Psychol. 642 (2004).
This Article and underlying experiment are included in the California video series and mentioned in other writings on the subject of bias. The experiment involved comparable groups of women attending all-women’s and coeducation schools. Both groups of young women showed an implicit gender bias towards men before school. At the end of their first year, the women at the coed school showed increased gender stereotyping, while the women at the all-women’s school with a significant number of women professors showed none. The authors concluded that the “more women see counterstereotypic ingroup members in their immediate environment, the more it undermines their automatic gender stereotypes.”
Film: Lunch Date, (Adam Davison 1989) available at,http://www.youtube.com/watch?v=epuTZigxUY8Link provided in tool resource box.
This is a film of encounter of black man white woman in train station, (sharing) lunch. Have to watch it to see the point, but subtitled appropriately as a study of perception.
Powerpoint: Social Cognition and Decision Making, (Shawn C. Marsh November 2009), available athttp://www.ncsconline.org/D_Research/ref/implicit.html
This is a basic PowerPoint Presentation by the Director, Juvenile and Family Law Department, National Council of Juvenile and Family Court Judges, University of Nevada – Reno that offers an orientation to implicit biases. The presentation includes exercises (without explanation) and easy to follow information on the issue. [This is Part of materials developed/tested by National Council of State Judges in their toolbox for judiciary on bias.]
Keith Payne &Daryl Cameron, Divided Minds, Divided Morals: How Implicit Social Cognition Underpins and Undermines Our Sense of Social Justice (Held on file by University ofNorth Carolina at Chapel Hill, Department of Psychology), available at http://www.unc.edu/~bkpayne/publications/PayneCameron.pdf
These social scientists review the research on implicit social cognition with an eye toward the implications for social justice. They examine whether and how implicit social cognition actually shapes our moral values, and then consider the implications of both in terms of justice. The Articleincludes a good list of references for further reading, including some unpublished manuscripts.
Claude M. Steele, Whistling Vivaldi and Other Clues to How Stereotypes Affect Us (Henry Louis Gates, Jr. ed., W. W. Norton & Company Inc.) (2010).
Shankar Vedantam, See No Bias, Wash. Post Mag., January 23, 2005, at W12, available at http://www.washingtonpost.com/ac2/wp-dyn/A27067-2005Jan21?language=printer
This is a good popular press discussion of the development and history of the IAT, including the story of Mahzarin Banaji’s and civil rights activists’ bias scores. The Article also discusses views from those critical of the IAT.
Tim Wise, Denial is a River, Wider than the Charles: Racism and Implicit Bias in Cambridge, July 27, 2009, http://www.timwise.org/2009/07/denial-is-a-river-wider-than-the-charles-racism-and-implicit-bias-in-cambridge/
This is a thoughtful discussion of the Gates/Sergeant confrontation in Cambridge framed by a discussion of relevant research on bias, e.g., that “Americans, at a subconscious level, perceive aggression in blacks, as opposed to other whites,” shoot/hold fire studies; misremembered studies; and the like.
Rhiannon N. Turner & Richard J. Crisp, Imagining Intergroup contact reduces implicit prejudice, 49Brit.J.of Psychol.120 (2010), available at http://www.leeds.ac.uk/lihs/psychiatry/courses/dclin/cpd/past_events/positive_psychology/intergroup.pdf
This Article reviews recent research which demonstrates that imagining intergroup contact can be sufficientto reduce explicit prejudice directed towards out-groups and can improve intergroup relations. In this research, the impact of contact-related mental imagery on implicit prejudice was examined and measured by the implicit association test. The study also found that, relative to a control condition, young participants who imagined talking to an elderly stranger subsequently showedmore positive implicit attitudes towards elderly people in general. The Article also discusses a second study, were relative to a control condition, non-Muslim participants who imagined talking to a Muslim stranger subsequently showed more positive implicitattitudes towards Muslims in general.
Justin Levinson, Culture, Cognitions and Legal Decision-Making, in Handbook of Motivation and Cognition across Cultures (Elsevier Press 2008).
Article within handbook with many articles about unconscious cognition.
Sylvia Stevens, Cultural Competency: Is There an Ethical Duty, 2009 Oregon State Bar Bulletin, available at http://www.osbar.org/publications/bulletin/09jan/barcounsel.html
Article promotes cultural awareness as a crucial necessity to being an effective lawyer. The article explains that “a lawyer who doesn’t recognize cultural differences may be insensitive to a client’s cultural taboos, expectations, family norms, or communication and conflict-resolution styles. The lawyer will be less effective in establishing a relationship of trust and confidence with clients from other cultures, and the failure to understand the significance of cultural differences and misinterpretation of client behavior may lead the lawyer to implement ineffective case strategies.”
PBS, Race: The Power of an Illusion, http://www.pbs.org/race/000_General/000_00-Home.htm (last visited Apr. 27, 2011).
This is the online companion to a PBS special 3 part documentary that can be purchased at this site. The site has background readings and other resources that are helpful for debias.
National Center for State Courts, Race and Ethnic Fairness in the Courts, http://www.ncsconline.org/Projects_Initiatives/RaceEthnicFairness/index.htm (last visited Apr. 27, 2011).
UPDATE (Apr. 15, 2019): https://www.ncsc.org/Topics/Access-and-Fairness/Gender-and-Racial-Fairness/State-Links.aspx?cat=Racial%20Fairness%20Task%20Forces%20and%20Reports
American Bar Association, Building Community Trust: Improving Cross-Cultural Communication in the Criminal Justice System, http://www.americanbar.org/groups/criminal_justice/pages/buildingcommunity.html (last visited April 27, 2011).
This site provides online training and other resources for building trust across cultural barriers within the justice system.
Robin M. Hogarth, Educating Intuition (U Chi. Press 2001).
Film: Test Your Awareness- Do the Test (London Dept. of Transport, Date unknown) http://www.youtube.com/watch?v=Ahg6qcgoay4&feature=player_embedded
This short 2 minute video makes the point that "it's easy to miss something you are not looking for.”
Rohini Anand, Teaching Skills and Cultural Competence: A Guide for Trainers (NMCI 2004).
This book provides general training material for cultural awareness.
Ida Abbott, Fostering Cultural Competence is Necessary- and Profitable, 4 The Complete Lawyer (2008).
Article written by a professional business practice Consultant.
Bertram Gawronski, Galen V. Bodenhausen, & Andrew P. Becker, I like it, because I like myself: Associative Self-anchoringand post-decisional change of implicit evaluations, 43 J. of Experimental Soc. Psychol.221 (2007).
This article explains that people prefer and stay loyal to what we can identify with or what looks like us.
Film: Checker Board Shadow Optical Illusion, (Feb.2, 2010), http://www.youtube.com/watch?v=4gPcV56dbzw&feature=related.
This is a short film exhibiting how our eyes will adjust our vision to show us what we are looking for…in this case it shows that when we are looking for one square to be darker than another, we actually see that, then the video reveals that both squares were the same color.
Christine Jolls, AntidiscriminationLaw'sEffectson Implicit Bias(Yale Law Sch., Public Law Working Paper, No. 148, 2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=959228##
This 2005 Article, referenced in Jolls & Sunstein infra, discusses ways in which antidiscrimination law has a positive influence on implicit bias: “For all of its unquestioned limitations in addressing implicitly biased behavior, existing antidiscrimination law nonetheless plays an important role in reducing the level of implicit bias across a wide range of contexts. While this law is certainly not perfect, it is just as certainly not the hopeless creature it is often depicted to be by antidiscrimination law scholars.” Jolls focuses on part of the implicit bias research which she describes as having garnered little attention, i.e., that “discrete changes in either the population make-up of a group or the physical and sensory features of an environment can substantially reduce the degree of implicit bias exhibited by those present” and suggests antidiscrimination laws bring these changes.
EqualJusticeSociety.org, Law and Policy: Redefining Discrimination, http://www.equaljusticesociety.org/law/redefiningdiscrimination/ (last visited Apr. 19 2011).
The Equal Justice Society EJS is interested in redefining discrimination. Its website reviews the law on intent as it has developed and describes its work for change: “EJS is intricately connected with what has come to be known as ‘radical’ or ‘collaborative’ lawyering. In fact, our core partnerships are with organizations and groups that operate explicitly within anti-racism and other anti-oppression lenses. We also work with anti-discrimination attorneys and other legal advocates who rely on more traditional litigation strategies…that is, until we engage them. EJS has challenged a number of litigators to think beyond their individual clients or complaints, resulting in a new understanding of their roles as actors within a broad racial justice movement.”
Gregory Parks, Shane Jones & Jonathan Cardi,Ed., Critical Race Realism: Intersections of Psychology, Race, and Law New York: New Press (2008).
Anthology of writings aimed at helping legal decision makers fight the habit of prejudice. This collection discusses how racial bias plays out in all aspects of the legal system including witness identification, jury selection, defense decisions and prosecutorial deals and how to use psychological discoveries to overcome these biases.
Alison C. Smith and Edith Greene, Conduct and Its Consequences: Attempts at Debiasing Jury Judgments, 29 Law and Human Behavior505 (2005), available athttp://0-www.jstor.org.cardcatalog.law.unh.edu/stable/pdfplus/4499437.pdf?acceptTC=true
Several studies have shown that a cognitive heuristic known as hindsight bias can skew post hoc judgments of jurors. Thus, jurors who must evaluate the actions of a defendant may be influenced inappropriately by the consequences of those actions. The purpose of the Article was to examine the effectiveness of two procedural techniques intended to reduce or eliminate the impact of hindsight bias in negligence cases -multiple admonitions from a judge about the proper use of evidence-and bifurcation (actually withholding irrelevant evidence from jurors). Results showed that admonitions were generally ineffective in guiding jurors to the proper use of evidence but that bifurcation was relatively more effective. Deliberations had no curative effect on jurors' misapplication of evidence.
Marla Greenstein,Standing Column on Judicial Ethics: A Diverse Bench, A Broader View 48 Judges’ J. 41(2009).
This Article discusses the Model Code of Judicial Conduct (Rule 2.3 A and B), which requires judges to perform their duties without bias and prejudice. This Article also discusses the obligation of lawyers appearing before judges to refrain from manifesting bias prejudice. The reason for these requirements is reflected in the recognition that judges bring their diverse life experiences with them to the bench. The Article suggests that since diversity leads to an awareness of bias and prejudice, and awareness can lead to bias defeat, it follows that the bench should diversify.
Adam Benforado and Jon Hanson, The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy 57 Emory L. J. 311 (2008).
This Article reveals that social scientists find that humans are subject to significant attributional biases. We tend to rely heavily on familiar stories of thinking, preferring, willing, and choosing to explain human actions.
This Articleadvances five main arguments. First, there is a gaping divide arising from two fundamentally different ways of explaining behavior and events. That is, beneath the surface of most law-related discussions, there are two conflicting and competing attributional presumptions: dispositionism and situationism. Second, dispositionism is the default attributional outlook for most Americans, despite the fact that situationism is the more accurate presumption. Third, although dispositionism is generally dominant, there are a number of factors or conditions that can encourage individuals or groups to adopt a relatively situationist perspective. Fourth, those conditions vary depending upon certain recognizable demographic and societal circumstances. There are, certain occupations, identities, or cultural or environmental forces that can encourage one attributional tendency or another. Fifth, the familiar liberal-conservative divide that is so prominent in policy discourse is loosely the same as the less-familiar situationist-dispositionist divide discussed.
Taken together, the Article explains that knowing this should help understand law and policy making as almost every major policy debate today is defined and animated by the great attributional divide.
Michael A. Olsen & Russell H. Fazio, Reducing Automatically Activated Racial Prejudice Through Implicit Evaluative Conditioning, 34 Personality and Soc. Psychol. 421 ( 2006), available at http://faculty.psy.ohio-state.edu/fazio/fazio/documents/OlsonFazioPSPB2006.pdf
This Article explores the use of an implicit evaluative conditioning procedure to reduce automatically activated prejudice. The first experiment demonstrated thatparticipants were unaware of the repeated conditioned stimulus–unconditioned stimulus (CS-US) pairings of Black-goodand White-bad. In the second experiment, the procedure was found to beeffective in reducing prejudice as indicated by an evaluativepriming measure of automatically activated racial attitudes. InExperiment 3, this reduction in prejudice was found to persistthroughout a 2-day separation between the conditioning procedureand the administration of the dependent measure, the Article also discusses how this may be used and its implications.
Shawn Marsh, The Lens of Implicit Bias, Summer 2009 Juvenile and Fam. Just. Today 17, available at http://www.ncsconline.org/D_Research/ref/IMPLICIT%20BIAS%20Marsh%20Summer%202009.pdf
This is a good basic resource Article that defines terminology and explains, we all “got bias,” and why it is good/bad. The Article also references techniques for addressing some of negatives of implicit bias, namely, 1) education around awareness that implicit bias exists; 2) reducing cognitive load to allow more time and space for accurate reflection; 3) encouraging high effort processing for more careful attention to information and to one’s own thinking errors; 4) employing checklists to assure thought at certain points; 5) encouraging mindfulness to increase understanding of own thought processes to watch out for thinking errors; 6) exposure to people from different groups to “help counteract biased thinking”’ 7) reducing bias-related cues within environment; 8) reviewingorganizational behavior for bias; 9) debiasing by putting “safeguards in place to “correct for” biased decisions.”
Amy L. Wax, Discrimination as Accident, 74 Ind. L. J. 1229 (1999).
This article seeks to address how the law should deal with implicit bias in the workplace and how implicit bias affects employees and employers, especially resulting in disparate treatment. The Article also seeks to answer whether unconscious disparate treatment should be addressed within the framework established by current laws covering workplace discrimination. Using familiar principles of accident law, this article concludes that extending the framework created by existing antidiscrimination statutes to cover unconscious workplace disparate treatment is not a good ideabecause it is unlikely to serve the principal goals of a liability scheme.
Paul M. Secunda, Cultural Cognition at Work, 38 Fla. St. U.L. Rev. 107 (2010).
This article discusses judicial decision-making from a Cultural cognition theory point of view in context of two US Supreme Court labor and employment decisions. The Article suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decision making. Last the article contends that judges fight over the legally consequential facts not ideology.
Justin D. Levinson and Danielle Young, Implicit Gender Bias in the Legal Profession: An Empirical Study, 18 Duke J. Gender L. & Pol’y 1 (2010), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1790742
This article seeks to address how implicit gender bias affects women in the legal profession.
Lauren Nile, Developing Diversity Training for the Workplace: A Guide for Trainers (9th Ed. 2008).
This book contains a series of mini lectures regarding diversity at work, but applicable for diversity in the court rooms.
Claudia Goldin& Cecilia Rouse, Orchestrating Impartiality: The Impact of "Blind" Auditionson Female Musicians, St. Louis L. J. 755 (2010), available at http://www.uh.edu/~adkugler/Goldin&Rouse.pdf
Reveals that blind auditions for an Orchestra result in higher rates of hired women.
Angela Onwuachi-Willig,Teaching Civil Rights: Teaching Employment Discrimination 54 St. Louis L. J. 755 (2010).
Discusses how implicit bias creates challenges to teaching law in today’s society. Especially, the challenges to teaching civil rights to this generation's law students who think civil rights struggles are things of the past. This generation looks up to diverse pop and rap singers and has been the first to elect a black president. Their life experience and lack of awareness about this country's sordid racial history has caused many to declare we are past a race conscious society. Even in light of the reality that law schools are not yet racially diverse. Since birth, they have been taught that only action with bad intent is wrong. This article talks about reminding students that subconscious bias still exists.
Kate Zernike, Gains and Drawbacks for Female Professors,N. Y. Times, March 21, 2011 at A15, available athttp://www.nytimes.com/2011/03/21/us/21mit.html?_r=1
This Article discusses gender inequality at MIT and how this has been addressed by adding more female staff, but also warning that the societal changes need to be made outside of MIT since there is a strong dislike for the perceived “uneven playing field” that is created by hiring more female professors.
David Faigman, Nilanjana Dasgupta, & Cecilia L. Ridgeway, A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 Hastings L.J. 1389 (2008).
This Article discusses the role of science in the law, the ideas of scientific fit and legal fit to analyze the relationship between implicit bias and Title VII litigation. In reviewing the psychological and sociological science, the Article looks at implicit gender bias in the workplace, including the influence of stereotype perpetuation in employment decisions. Reflecting on the stereotype that “Men are generally seen as more competent at the "things that count most" and more worthy of high status roles than are women, even though each sex is thought to have its specialized set of skills,” the Article reviews studies in which participants rated managers and political leaders on agenic and communal characteristics and found that men evaluated their own competence to be higher than that of their female team members. The Article reviews research from psychology, sociology, and organizational behavior using multiple conceptual paradigms, methods, measures, and samples (students, adults, employers) to illustrate that descriptive and prescriptive gender stereotypes do indeed bias judgments and evaluations of women compared to men in professional roles.
Mitu Gulati, ed., NYU Selected Essays on Labor and Employment Law: Behavioral Analysis of Workplace Discrimination(Kuwler L. Intern’l 2007).
This book reviews how unintended discrimination permeates all aspects of employment, including hiring, movement decisions of women and minorities in corporate and other work environments.
Melissa Hart, Subjective Decision Making and Unconscious Discrimination,56 Ala. L. Rev. 741 (2005).
This Article explores the influence of unconscious bias on employment decisions and recaps case analysis for employment bias case law, concluding that since judges are also susceptible to bias, these are “hard cases” to win.
Audrey J. Lee., Unconscious Bias Theory in Employment Discrimination Litigation, 40 Harv. C.R.-C.L.L. Rev. 481, 483 (2005).
“This Article exploresidentifies specific strategies to apply the theory of unconscious bias to employment discrimination litigation. Part I examines the social science research underpinning the theory of unconscious biasand recent trends in employment settings that may facilitate the operation of unconscious bias. Part II highlights cases where courts have specifically stated that Title VII reaches unconscious bias. Part III examines current theoretical approaches to making unconscious bias actionable. Part IV assesses practical litigation strategies to incorporate unconscious bias theory in employment discrimination litigation and will present thoughts on the viability of its actual incorporation.”
Eric Uhlmann and Geoffrey Cohen, Constructed Criteria: Redefining Merit to Justify Discrimination, 16 Psychol. Science 474 (2005), available at, http://www.socialjudgments.com/docs/Uhlmann%20and%20Cohen%202005.pdf.
This article’s discusses gender bias in employment. It concludes that there are less gender biased decisions made where employment is reviewed with predetermined criteria.
Katharine T. Bartlett., Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 Va. L. Rev. 1893 (2009).
This article’s summary explains that this author “brings together several strands of social science research showing that (1) implicit bias is not only invisible and largely unintended, but not readily reachable through legal coercion; (2) people whose motivation to act in nondiscriminatory ways is based on an internal commitment to nondiscriminatory norms - or "good intentions" - are less likely to engage in stereotyping of others than people who feel pressured by the law; (3) people internalize nondiscrimination values best when they feel a sense of autonomy, competence, and relatedness; (4) the conditions that support these characteristics in the workplace include strong, unambiguous norms, trust, teamwork, leadership, positive example, and opportunities to grow and advance; and (5) excessive legal control and pressure undermine people's sense of autonomy, competence, and relatedness and thus their commitment to nondiscrimination norms.”
This Article concludes by suggesting that instead of provoking shame, guilt or resentment, which will lead to avoidance and resistance, positive strategies, should be used to affirm people’s good intentions.
Marianne Bertrand &Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,(June 20, 2004) (Unpublished Paper, on file with author), available at http://www.economics.harvard.edu/faculty/mullainathan/files/emilygreg.pdf
The answer to the question is yes! This MIT / University Chicago research project sent resumes with stereotypical white or black-sounding names. The white-sounding resumes prompted 50% more calls for interviews than the black—despite a stated desire for more candidates of color. Higher credentials paired with black sounding names did not change the gap. While higher quality resumes receive more callbacks, blacks were called back at a lower rate than whites for similar improvements in their credentials.
Barbara Reskin, Unconsciousness Raising, 2005 Q1Regional Review 33, available athttp://www.bos.frb.org/economic/nerr/rr2005/q1/section3a.pdf.
This Article addresses bias against women in the workplace and stresses that both unconscious and conscious bias needs to be addressed to change how women are perceived and in turn their ability to surpass the metaphorical glass ceiling.
Barbara Reskin,Rethinking Employment Discrimination, inThe New Economic Sociology:Developments in an Emerging Field,218-44(Mauro F. Guillen, Randall Collins, Paula England, and Marshall Meyer, eds. 2001.)
William T. Bielby,Minimizing Workplace Gender and Racial Bias, 29 Contemporary Sociology 120, (2000), available athttp://www.jstor.org/stable/2654937.
Joan C. Williams &Stephanie Bornstein, Symposium: The evolution of FRED- Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias,59 Hastings L.J. 1311 (2009).
This Article talks about implicit bias in employment and how some courts have begun to acknowledge this for title VII plaintiffs. According to the Article, having to show a decision makers’ discriminatory intent at the time of the disputed employment decision overlooks the inferential value of learned, ingrained stereotypes and bias. Such implicit bias can infect objective as well as subjective decision making throughout the employment process and cause discrimination, even without an employer's explicit intent to discriminate. The Article discusses several federal courts decisions where the courts have recognized this phenomenon and acknowledged that acting upon stereotypes and biases can constitute discrimination even if done without conscious or explicit intent; while other courts have not reached this level of acknowledgement.
Linda Loubert, Discrimination in Education Funding2005 The Rev. of Black Pol. Econ.,available athttp://www.radicalmath.org/docs/DiscriminationEdFunding.pdf.
Looks at unconscious thread that continues to perpetrate/penetrate people's belief system, such that as a society, policies are made that deny/prevent equal education and funding for black students. Shows that today, the evidence of discrimination can be seen in the contrast of run-down, rodent and insect infested school buildings provided for poor black inner city students to the clean, modern buildings provided for white suburban students. It can be found in the contrast of tenure of teachers for each group, or even the amount of money a district provides to the school for books, playgrounds, and/or academic programs.
American Association of Colleges and University, Diversity & Inclusive Excellence Resources, http://www.aacu.org/resources/diversity/index.cfm (last visited Apr. 26, 2011).
Lists resources such as articles, publications, and upcoming forums for discussing improving inclusiveness in education.
Melanie Killen & Adam Rutland, Children and Social Exclusion: Morality, Prejudice and Group Identity (Wiley Blackwell 2011).
This book discusses children’s social behavior and how children will create in and out groups who they either identify with or exclude and how this creates prejudice.
Anthony G. Greenwald, T.Andrew Poehlman, Eric Uhlmann, & Mahzarin Banaji,Understanding and using the Implicit Association Test: III. Meta-analysis of predictive validity, 97 No. 1 J. of Personality and Soc. Psychol. 17(2009), available athttp://faculty.washington.edu/agg/pdf/GPU&B.meta-analysis.JPSP.2009.pdf
This article discusses implicit bias and its relationship with biased correlation. It summarizes research conducted to evaluate the validity of the IAT measures. The article concludes that the validity of IAT measures is improved when taken with implicit measure tests.
John M. Darley & Paget H. Gross, A Hypothesis-Confirming Bias in Labeling Effects, 44 J. Personality & Soc. Psychol. 20 (1983).
This Article discusses the way our expectations influence our perceptions and conclusions. The research involved showing participants a video of a 4th-grade female student, Hannah, in two settings, one urban and poor, one suburban and rich appearing and measuring the observers’ expectations as to Hannah’s academic ability. Some participants were also shown a second video where Hannah answered achievement-test type questions. The study showed that when participants did not feel they had much information (just the first video), their expectations as to Hannah’s abilities remained limited, and they preferred not to make judgments. But when they had more information to couple with their first set of expectations (the second video), then their first expectations played out. That is, “a marked expectancy-confirmation effect was evident for those perceivers who evaluated the child after witnessing an ability-relevant performance. Those who believed the child came from a high socioeconomic class reported that her performance indicated a high ability level, whereas those who believed the child came from a low socioeconomic class reported that the identical performance indicated a substantially lower level of ability.”
Christopher L. Aberson, Carl Shoemaker & Christina Tomolillo, Implicit Bias and Contact: the Role of Interethnic Friendships, 144 Humboldt J. of Soc. Psychol. 335 (2004), available athttp://www.humboldt.edu/psychology/fs/aberson/jsp%202004.pdf
This Article points to two studies regarding the role of interethnic friendship with
African Americans or Latinos in predicting implicit and explicit biases against these groups. White participants completed the Implicit Association Test, several self-report bias measures, and a friendship questionnaire. Overall participants with close friends who were members of the target group exhibited less implicit prejudice than participants without close friends from the target group. Friendship influenced only 2 of the 7 explicit measures, a result that likely stems from social desirability bias rather than truly nonprejudiced attitudes. Results support the importance of contact, particularly interethnic friendship, in improving intergroup attitudes.
Willhem Hoffman, Bertram Gawronski, Tobias Gschwender, Huy Le, Manfred Schmitt, A Meta-Analysis on the Correlation Between the ImplicitAssociation Test and Explicit Self-Report Measures, 31 The Personality and Soc. Psychol. Bulletin (2005) available at,http://faculty.washington.edu/agg/IATmaterials/PDFs/Hofmann%20&%20al%20(PSPB,2005).pdf.
This Article explains that there is a low correlation between the IAT and explicit measures for implicit bias. It explains some reasons for this, such as motivational bias which expresses itself in self-reporting of the explicit tests.
Bertram Gawronski, Etienne P. Lebel and Kurt R. Peters, What Do Implicit Measures Tell Us? Scrutinizing the Validity of Three Common Assumptions,2 Perspectives on Psychol. Sci.181 (2007), available athttp://www.psych.utoronto.ca/users/spa/news/data/files/Gawronski_implicit_perspectives_paper.pdf.
The Article addresses the validity of three widespread assumptions in implicit bias research and concludes that the validity of all three assumptions is equivocaland that theoretical interpretations should be adjustedaccordingly. The Article provides an alternative conceptualization.
John F. Dovidio, Kerry Kawakami, Craig Johnson, Brenda Johnson and Adiah Howard,On the Nature of Prejudice: Automatic and Controlled Processes,33 J. of Experimental Soc. Psychol., 510 (1997), available athttp://www.psych.yorku.ca/kawakami/documents/Onthenatureofprejudice_000.pdf
This Article describes the existence of negative implicitattitudes of Whites toward Blacks. The article investigates the relationship between explicit measuresof racial prejudice and implicit measures of racial attitudes, and explores the relationshipof explicit and implicit attitudes to race-related responses and behavior by conducting three tests. The article concludes by stating that those aware of their own implicitly biased reactions will be able to control or have a controlled rather than automatic process response to race related stimuli and that participants who find out they have implicit attitudes which are inconsistent with their more egalitarian explicit attitudes are motivated to act against their implicit bias.
Oliver R. Goodenough & Kristin Prehn,A Neuroscientific Approach to Normative Judgment in Law and Justice,359PhilosophicalTransactions:Biological Sciences 1709 (2004), available athttp://0-www.jstor.org.cardcatalog.law.unh.edu/stable/4142156.
Exploring questions about normative judgment with explanations rooted in neurobiology.
Sheri Levy & Melanie Killen (ed.), Intergroup Attitudes and Relations in Childhood through Adulthood (Oxford University Press 2008).
This book discusses people’s minority/majority and sex based prejudices through different levels of cognitive development.
Terry A. Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field 30 Lawand Human Behavior 119 (2006), available athttp://0-www.jstor.org.cardcatalog.law.unh.edu/stable/4499465
This Article pronounces that law and emotion intersect. The Article defines and discusses this intersection by creating a taxonomy for different law/emotion based phenomena. The author uses this to determine which of these phenomena it takes to focus legal decision making and understand when implicit emotions are taking over
Laurie A. Rudman, Sources of Implicit Attitudes13 Current Directions in Psychol. Sci.79, (2004), available at http://0-www.jstor.org.cardcatalog.law.unh.edu/stable/20182915.
This Article covers theoretical explanations for why implicit attitudes often differ from explicit or self-reported attitudes. The article also propounds that implicit attitudes which come from four majorsources are stronger than the explicit attitudes people consciously hold. Early experience, affective experiences, cultural bias, and cognitive consistency principles all affect implicit attitudes. The article propounds that implicit attitudes are stronger than the explicit attitudes people hold and that wide held cultural “appraisals can bias people’s automatic evaluations irrespective of their personal beliefs.”
Bertram Gawronski & Keith Payne, eds., Handbook of Implicit Social Cognition: Measurement, Theory, and Applications (Guilford Press 2010).
The publisher summarizes the book: “Virtually every question in social psychology is currently being shaped by the concepts and methods of implicit social cognition. This tightly edited volume provides the first comprehensive overview of the field. Foremost authorities synthesize the latest findings on how automatic, implicit, and unconscious cognitive processes influence social judgments and behavior. Cutting-edge theories and data are presented in such crucial areas as attitudes, prejudice and stereotyping, self-esteem, self-concepts, close relationships, and morality. Describing state-of-the-art measurement procedures and research designs, the book discusses promising applications in clinical, forensic, and other real-world contexts. Each chapter both sums up what is known and identifies key directions for future research. This book will be useful to researchers and graduate students in social and cognitive psychology; also of interest to readers in applied contexts, including health, clinical, forensic, consumer, and political psychology. It will also serve as a supplemental text in graduate-level courses in social cognition and psychology research methods.”
Jerry Kang & Kristine Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465 (2010).
This Article summarizes the empirical evidence that rejects claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a "behavioral realist" account of these findings and maps systematically how it might do so in evidence-based ways. The Article also discussesthree major objections made against the theory of implicit bias, including objections that the science of implicit bias is “junk Science,” objections asserting that we are too “hardwired” to fight bias and last what the article terms as the “rational” objection. The rational objection contends that the implicit biases actually reflect reality and therefore, it is rational to act based on them.
Anthony Greenwald, Professor of Psychology at the University of Washington, Lecture at the Allen Edwards Psychology Lecture Series at the University of Washington, The Psychology of Blink - Part 1 of 2:Understanding How Our Minds Work Unconsciously (Dec. 1, 2008), available at, http://www.youtube.com/watch?v=xRUs9Ni3Bv8
This lecture on video describes explicit bias as Second level thinking and the IAT as a window into our second level or automatic thoughts.
Lisa Cooper, Washington University, Lecture at the Allen Edwards Psychology Lecture Series at the University of Washington, The Psychology of Blink - Part2 of 2:Understanding How Our Minds Work UnconsciouslyLecture at the Allen Edwards Psychology Lecture Series at the University of Washington (Dec. 1, 2008), available athttp://www.youtube.com/watch?v=Vx3h332Sd90
Second lecture to go with A. Greenwald’s part 1.
Tim Wise, ColorBlind: The Rise of Post-Racial Politics and the Retreat from Racial Equity (City Lights Open Media 2010).
This book focuses on disparities in employment, housing, education, and healthcare. Wise advocates that the best way toward equality in society is to become more and not less conscious of race and how it affects us.
Cass Sunstein,Behavioral Law and Economics , (Cambridge University Press 2000).
This book presents new findings in cognitive psychology and behavioral economics, which show that people are frequently both unselfish and over-optimistic; that people have limited willpower and limited self-control; and that people are "boundedly" rational, in the sense that they have limited information-processing powers, and frequently rely on mental short-cuts and rules of thumb. Understanding this kind of human behavior has large-scale implications for the analysis of law. Behavioral Law and Economics offers many new insights into these fields and suggestions for legal reform. Available in the UNH School of Law Library.
Robert Post, Anthony Appiah, Prejudicial Appearances: The Logic of American Anti-discrimination Law (Duke University Press 2001).
This book focuses on disparities shaped by stereotypes and how this shapes law.
Justin D. Levinson, Media, Race and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009).
This Article discusses how implicit social cognition impacts death penalty cases and develops two preliminary hypotheses that apply social cognition theory to the capital context: (1) Death Penalty Priming Hypothesis, which posits that the supposedly race-neutral death qualification of jurors unintentionally and automatically elicits implicit racial bias in the final jury panel, and (2) Racial Bias Masking Hypothesis, which proposes that complex empirical studies examining race and the death penalty may unintentionally cover up racial bias because they rely on racially biased case facts.
Chris Guthrie & Jeffrey J. Rachlinski, Insurers, Illusions of Judgment & Litigation, 59 Vand. L. Rev. 2017(2006).
This Article explains that psychological research on litigants' decision-making supports the intuition that most litigants fail to evaluate their options in a cool, clear fashion or to select those options that promise the greatest return. This research reveals that litigants are susceptible to anchoring effects and self serving bias.
The Article explains that both lawyers and judges have been shown to suffer from some of the same kinds of cognitive errors that affect litigants while insurers (who are involved in almost all liability litigation) are less susceptible to these errors. The Article’s data suggest that insurers might have developed cognitive skills that enable them to avoid many common errors in judgment that appear to plague other actors during the litigation process.This may provide some ways to lessen bias by creating the same situations that enable insurers to make more rational decisions.
Justin D. Levinson, Huajian Cai and Danielle Young, Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim L. 187 (2010).
This Article provides an overview of IAT tests and finds that implicit associations affect legal decision making. Unequivocally the answer was yes. Some studies showed that participants held implicit associations between Black and Guilty compared to White and Guilty, and that these associations predicted mock-juror evaluations of ambiguous evidence.
Elizabeth Neeley, Racial and Ethnic Bias in the Courts: Impressions for Public Hearings, 40. Am. Judges Ass’n Court Rev 26 (2004), available at: http://ppc.nebraska.edu/userfiles/file/Documents/projects/IndigencyScreenerProject/RacialEthnicBiasintheCourts.pdf
This Article provides useful data on the perspectives of some minority groups about the courts as reported by minorities at a public hearing.
Solangel Maldonado, Discouraging Racial Preferences in Adoption, 39 U. C. Davis L. Rev. 1415(2006).
This Article discusses how implicit bias impacts adoption preferences and draws on cognitive bias literature in discussing and debunking myths about domestic and international adoptions. This Articles focus is geared at reaching people involved in adoption and adoption law professionals; however, it also provides another insight into another aspect of society impacted by implicit bias.
Anthony G. Greenwald & Linda Hamilton Krieger, Symposium on Behavior Realism: Implicit Bias: Scientific Foundations94 Cal. L. Rev. 945 (2006).
This Article debunks the assumption that human behavior is largely under conscious control and discusses theories of implicit bias. It also explains that understanding implicit bias measures is significantly better in predicting discriminatory behavior than understanding explicit bias factors.
Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,47 Stan. L. Rev. 1161 (1995).
In this Article, Krieger argues that the way in which Title VII jurisprudence constructs discrimination is inadequate to address the subtle and most prevalent discrimination, that is, unconscious forms of bias. She examines cognitive bias in four parts. First, the analytical structure of Title VII’s disparate treatment model and the rhetoric courts employ in analyzing disparate treatment cases. Second, explores empirical and theoretical research in cognitive social psychology. Third, she examines the consequences of what the research reveals, that the assumptions used to create the Title VII jurisprudence are no longer true. Last she searches for solutions to this problem.
Nancy Levit, Confronting Conventional Thinking: The Heuristics Problem in Feminist Legal Theory, 28 Cardozo L. Rev. 391 (2006).
Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 909,969-82 (2006).
Recognizing the findings regarding unconscious bias and that at least some of the time, decisionmakers act in accord with their biases, the Article focuses on ways that current law can operate to control against implicit bias and might be expanded to a strategy of “debiasing through law.” In particular the Article discusses antidiscrimination laws, prohibitions against hostile environments, actions of employers seeking to avoid vicarious liability by displaying positive exemplars, and affirmative action policy in this context. Antidiscrimination laws are themselves reviewed as an example; by increasing diversity in various environments (through application of antidiscrimination laws), one can expect a reduction in implicit bias in those places, assuming that bias was based on an error in fact rather than an accurate perception.
Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005).
This Article starts with illustrations from current research and paints this image: “implicit racial meanings have simply attached like barnacles since our infancy.” Kang discusses various consequences of these perceptions. He reviews implicit bias research and law and sets an “intellectual agenda” to explore this information further. The Article also offers a focus on the implications of the Federal Communications Commission order regarding broadcast ownership to increase local news, news which the author observes includes violent crimes “prominently featuring racial minorities” and which “the social cognition research suggests, exacerbates our implicit biases.” This is where the title of the Article lies: watching the local news is seen as the equivalent of downloading a Trojan horse virus that then increases implicit bias.
Jerry Kang, Implicit Bias: A Primer for Courts (National Center for State Courts August 2009), available athttp://aja.ncsc.dni.us/conferences/2010Annual/SpeakerMaterials/17%20-%20Lowenbach%20and%20Gardner%20ImplicitBiasPrimer%20-%20Kang.pdf.
This piece is part of the National Campaign to Ensure the Racial and Ethnic Fairness of America's State Courts and, as its name suggests, offers a short informational primer on terminology and issues of implicit bias: 1) Schemas and Implicit Cognitions (or “mental shortcuts”) or as author describes it "thoughts about people you didn’t know you had”); Stereotypes and attitudes; implicit bias as including implicit stereotypes and attitudes; and implicit bias measuring devices. Kang comments on the pervasiveness of implicit bias that “it ain’t no accident,” that bias is everywhere but varied. Article ends with a discussion on research of real-world consequences, i.e. why we should care. [This is Part of materials developed/tested by National Council of State Judges in their toolbox for judiciary on bias.]
Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of Affirmative Action, 94 Calif. L. Rev. 1063 (2006).
This excerpt from the Article explains its title and offers an overview: “[E]vidence from hundreds of thousands of individuals across the globe shows that (1) the magnitude of implicit bias toward members of outgroups or disadvantaged groups is large, (2) implicit bias often conflicts with conscious attitudes, endorsed beliefs, and intentional behavior, (3) implicit bias influences evaluations of and behavior toward those who are the subject of the bias, and (4) self, situational, or broader cultural interventions can correct systematic and consensually shared implicit bias. Specifically, the science of implicit social cognition (ISC) can help us revise the very meaning of certain affirmative action prescriptions by updating our understanding of human nature and its social development. Second, and closely connected, we update the scientific case for the mismeasurement of merit ISC suggests experimenting with debiasing mechanisms different from the traditionally recommended peer-to-peer social contact; potential techniques include self-propelled attitude makeovers, mental "contact" through imagery, and exposure to debiasing agents. A nomenclature clarification: although we use the term ‘affirmative action,’ we find it too freighted to be analytically useful. As we make specific recommendations based on our analysis of ISC, we employ where possible a different term, ‘fair measures. (1083-84)
Russell K. Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093, 1134 (2008).
This Article discusses not only perception of “other” race, but of how race influences perception. Robinson describes “pervasive racial differences in perceiving” allegations of discriminatory behavior: “A reasonable outsider might perceive discrimination based on facts that would not persuade a reasonable insider.” That is, “White employees may feel that the employer has created a racially diverse workforce so long as there are a handful of visible people of color. Blacks, by contrast, might view the few people of color as tokens …”
Hon. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149 (2010).
This Article begins with a startling story the Reverend Jesse Jackson once told an audience, "'There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery . . . . Then look around and see somebody white and feel relieved.'“ The Article discusses Jackson's observation which reflects an unfortunate but often held belief, one that even a famous and deeply committed national civil rights leader cannot escape, implicit bias. The Article explains what implicit bias is and how this affects the justice system during jury selection and in judicial bias situations. The Article also suggests that training and cognitive correction can help empower a person to refuse to act upon implicit bias.
LEGAL. GENERAL. ANTIDISCRIMINATION& STRATEGY
Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with unconscious Racism, 39 Stan. L. Rev. 317, 324-25 (1987).
The summary of this classic article provides: “Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional -- in the sense that certain outcomes are self-consciously sought -- nor unintentional -- in the sense that the outcomes are random, fortuitous, and uninfluenced by the decisionmaker's beliefs, desires, and wishes. Americans share a common historical and cultural heritage in which racism has played and still plays a dominant role. Because of this shared experience, we also inevitably share many ideas, attitudes, and beliefs that attach significance to an individual's race and induce negative feelings and opinions about nonwhites. To the extent that this cultural belief system has influenced all of us, we are all racists. At the same time, most of us are unaware of our racism. We do not recognize the ways in which our cultural experience has influenced our beliefs about race or the occasions on which those beliefs affect our actions. In other words, a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation. By insisting that a blameworthy perpetrator be found before the existence of racial discrimination can be acknowledged, the Court creates an imaginary world where discrimination does not exist unless it was consciously intended."
Eugene Sadler Smith, Inside Intuition (Routledge 2008).
This book calls implicit cognition intuition. It describes it as our “gut feelings” and describes the social and cognitive science beyond gut reactions or decision-making, the book aims at showing the reader how to maximize their gut feelings to make better use of intuition and harness it for decision making.
Objection to Def. Motion for Services Other than Counsel Expert on Unconscious Racial Bias, State of New Hampshire v. Addison, No 07-S-0254 (Hillsborough N. D. Jan. 30, 2008), available athttp://www.courts.state.nh.us/caseinfo/pdf/addison/2008/jan/013008AddisonStsObjMoServicesExprtRaclBias.pdf
Eva Paterson, Kimberly T. Rapp & Sara Jackson, The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175 (2008).
The Article discusses unconscious bias and institutionalized discrimination in the context of developing a theory and strategy to change intent requirements to address this kind of bias successfully using Equal Protection doctrine.
LEGAL. CRIMINAL JUSTICE
Michael Lynch, ed., Britt Patterson & Kristina Childs,Racial Divide: Racial and Ethnic Biases in the Criminal Justice System (Criminal Justice Press 2008).
This book provides an anthology discussing whether the criminal justice system is guilty of bias. The Book explores whether minority overrepresentation can be attributed to justice system processing biases.
American Bar Ass’n, Criminal Justice Section:Racial Justice Improvement Project,http://www.americanbar.org/groups/criminal_justice/pages/RacialJustice.html (last visited April 28, 2011).
This site provides articles and information used by the task forces from NY, MN, LA, and DE to deal with racial issues within the court.
Bureau of Justice Statistics, Jail Inmate Characteristics, http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=122 (last visited Apr. 27, 2011).
This site provides information about jail inmate populations that is recalibrated every 5 years. The site informs that “at midyear 2010, whites represented 44% of all jail inmates; blacks, 38%; and Hispanics, 16%. These percentages have remained nearly stable since midyear 2005”.
Robert Johnson, Racial Bias in the Criminal Justice System and Why We Should Care, Criminal Justice, Winter 2007, available at, http://www2.americanbar.org/sections/criminaljustice/PublicDocuments/unit%202%20johnson.pdf
This article discusses bias in the criminal justice system, especially bias as perceived by minorities. The article states that some minority community members think the following is an appropriate maxim“Do not inform on the gang, the system
is not to be trusted; Do not testify, the system, is not to be trusted; Do not engage in discussionswith law enforcement, they will find a way to act against family or neighbors.” Last this short article offers a few remedies.
Justin D. Levinson & Danielle Young,Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence 112 W. V. U. L. Rev. 307,316-323 (2010).
This Article reviews studies which show participants who saw a photo of a dark skinned perpetrator judged subsequent evidence as more supportive of a guilty verdict compared to participants who saw a photo of a lighter-skinned perpetrator. “Justin Levinson relied on implicit bias research to propose that death qualification, the process of qualifying jurors to sit on capital cases, might unintentionally trigger implicit racial biases. ... Participants who implicitly associated Black and Guilty were more likely to make harsher judgments of ambiguous evidence. ... Although they have not tested the role of implicit bias in decision-making, these studies have laid the foundation for understanding how race might affect the way jurors think and make decisions”.
Wayne MacKenzie, VERA Institute of Justice Director of Prosecution and Racial Justice Program, Testimony, for Racial Disparities in the Criminal Justice System at the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security (Oct. 29, 2009), available at http://judiciary.house.gov/hearings/pdf/McKenzie091029.pdf
Mr. MacKenzie’s testimony before the Judiciary subcommitteediscusses prosecutorial discretion and the role it plays in disparities in the criminal justice system, and Vera Institutes work to uncover, reduce, and guard against unwarranted racial disparities and inconsistentoutcomes in prosecutions.
Mr. Maraesa Issacs-Shockley Cultural Competence and the Juvenile Justice System: Irreconcilable Differences?8 Focal Point Summer, available athttp://www.pathwaysrtc.pdx.edu/focalpoint.shtml
Implicit Bias against minority youth leads to unfair results in juvenile justice system.
Ralph Richard Banks & Richard Thompson Ford, How Does Unconscious Bias Matter: Politics Law and Racial Equality 58 Emory L. J. 1053(2009).
The Article warns that although helpful because of its popularity and its ability to allow a person a perceived removal from personal conscious discrimination, implicit bias doctrine is a way to bypass making more productive strides in reaching anti discrimination reform. The author stresses the unimportance of distinguishing between conscious and unconscious bias and just doing something about it. The author explains that racial disparities should be alleviated by alleviating the substantive inequalities and not by the eradication of unconscious bias.
John F. Irwin & Daniel Real Judicial Ethics and Accountability: At Home and Abroad: Unconscious Influences on Judicial Decision-Making: The Illusion of Objectivity 42 McGeorge L. Review 1 (2010).
This Article introduces the concept of implicit bias and more nuanced discussions of the subject and its ramifications for judicial decision making both in terms of quick, heat-of-trial decisions (known as blinking) and in terms of carefully considered and weighed decisions (known as staring). Finally, this Article proposes some avenues of thought for future consideration about implicit bias' potential influences and possible steps toward minimizing harmful effects it might have on judicial decision-making.
R. Richard Banks, Jennifer L. Eberhardt, & Leet Ross, Discrimination and Implicit Bias in a Racially Unequal Society, 94 Cal. L. Rev. 1169 (2006).
The Article focuses on research and racially discriminatory outcomes re: decisions in investigation, lethal force, and criminal sentencing.(1171). The authors focus on implicit bias as it relates to behavior (1187-89) and argue that the consensus that “bias and discrimination are wrong and should be eliminated” is “imperiled by the racial inequality that pervades our society. The apparent consensus operates at a high level of generality and fractures as one applies it to concrete cases in our racially stratified society. (1189)
Kerala Thie Cowart, Symposium Response: On Responsible Prosecutorial Discretion, 44 Harvard C. R.-C. L. L. Rev. 597 (2009).
In this Article Cowart advocates for paying more attention to sociological context and to unconscious bias in prosecutors’ decisions; includes a summary section on strategies to counteract bias (604-8) such as debiasing, compensating.
David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts, 44 J.L. & Econ. 285, 300 (2001).
The author’s summary is apt: “This paper examines 77,236 federal offenders sentenced under the Sentencing Reform Act of 1984 and concludes the following. First, after controlling for extensive criminological, demographic, and socioeconomic variables, I found that blacks, males, and offenders with low levels of education and income receive substantially longer sentences. Second, disparities are primarily generated by departures from the guidelines, rather than differential sentencing within the guidelines. Departures produce about 55 percent of the black-white difference and 70 percent of the male-female difference. Third, although black-white disparities occur across offenses, the largest differences are for drug trafficking. The Hispanic-white disparity is generated primarily by those convicted of drug trafficking and firearm possession/trafficking. Last, blacks and males are also less likely to get no prison term when that option is available; less likely to receive downward departures; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females.”
Mary Kreiner Ramirez, Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing, 57 Drake L. Rev. 592 (2009).
Ramirez discusses discretion as a counter to associational bias in the context of federal judicial sentencing.
Joshua Larson, What Happens in North Minneapolis Doesn't Stay in North Minneapolis: Arguing Credibility in a Criminal Trial, Rebutting Implicit Jury Bias, and Taking a New Look at Why a Prosecutor Would Tell Jurors that Civilian Witnesses are from a Different World 4 Crim. L. Brief 59 (2009).
This Article discusses eliminating prejudice in the courtroom by drawing attention to our differences. However, to achieve this goal by persuading jurors to move past their prejudices, a prosecutor may have to alert jurors of these prejudices.
This Article suggests that the "different world" argument seeks to eliminate jury bias and prejudice. The "different world" argument may be a reasonable and fair way to emphasize the credibility of civilian witnesses when prosecutors speak to a jury of citizens from a community of diverse socioeconomics and human experience. The key for the prosecutor is to appreciate the potential dangers of making a "different world" argument. The key for the court is to understand and respect the purpose of such an argument so that it can provide proper constraints and clear instruction to attorneys to ensure that the defendant receives a fair trial.
John A. Martin, Marcus Reinkensmeyer, Hon. Barbara Mundell, Jose Guillen,Becoming a Culturally Competent Court(Mar. 2007). http://www.courts.ca.gov/xbcr/partners/CultComp.pdf
Describes a seven step process for overcoming implicit bias in the courts. According to the authors, these include: 1)Building cultural competency Teams; 2)Identifying where, when and how culture matters; 3)describe community context the court is in; 4) assess your court’s culture; 5) assess critical processes, programs and services where culture matters; 6) develop and implement culturally appropriate processes, services and 7) Monitor the courts performance.
Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, Duke L. J. 345 (2007).
Levinson uses empirical research to argue that implicit bias contributes to judges and jurors misremembering —implicit memory bias—relevant facts in ways that are racially biased and that this tendency continues racially biased outcomes. The Article suggests that interventions such as diversity training are needed for short-term improvement, but that longer-term change requires “embracing cultural responsibility.”
Chris Guthrie, Jeffrey J. Rachlinski & Andrew Wistrich Inside the Judicial Mind 86 Cornell L. Rev. 777 (2001).
This report explores judicial cognitive processes; explaining that experimental evidence shows that judges are susceptible to heuristics and biases when making judgments.
Andrew Wistrich, Chris Guthrie & Jeffrey Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding 153 U. Pa. L. Rev. 1251 (2005).
Reporting experimental evidence showing that judges have difficulty deliberately disregarding relevant but inadmissible evidence when making merits decisions.
Jeffrey J. Rachlinski, Chris Guthrie, Andrew Wistrich,Inside the Bankruptcy Judges’ Judicial Mind 86 B.U.L. Rev. 1227 (2006).
Exploring whether specialized bankruptcy judges are similarly susceptible to heuristics and biases. The Article reports that the answer to the question is unclear after studying the impact of framing, omission bias, the debtor's race, the debtor's apology, and terror managementhave on judges. Only anchoring and framing were previously tested on generalist judges- the bankruptcy judges performed much like the generalist judges previously studied. With regard to the four phenomena not tested previously, the studies found that the bankruptcy judges were impervious to each. They resisted the effectsof the omission bias, were unaffected by the race of the debtor, were indifferent to an apology, and were not affected by a transient emphasis on their own mortality.
National Judicial Education Program, When Bias Compounds: Insuring Equal Justice for Women of Color in the Courts, http://www.legalmomentum.org/our-work/vaw/njep-task-forces.html.
The National Judicial Education Programs promoted a series of state-based task forces to review gender bias. The project developed a series of publications on how to establish such task forces and on their work, including methods for implementation and evaluation. Further information is available at Legal Momentum, the Women’s Legal Defense and Education Fund, Gender Bias and Equity, Gender Bias in the Courts, http://www.legalmomentum.org/our-work/njep/njep-task-forces.html and at the Stanford University Law School’s Women in the Legal Profession site, http://womenlaw.stanford.edu/modelpolicies.html#gender.
New York State Judicial Committee on Women in the Courts, On the Bench: Judicial Response to Gender Bias,http://www.courts.state.ny.us/ip/womeninthecourts/OntheBench.pdf.
This piece is true to its title and includes an excellent set of scenarios with responses from sitting judges and authors about possible appropriate response. Useful for discussion group/training.
Pennsylvania Commission,Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, Achieving Fairness through Bias-Free Behavior: A Pocket Guide for the Pennsylvania Courts(2009), http://www.pa-interbranchcommission.com/_pdfs/achieving_fairness.pdf.
This is the Pennsylvania study on implicit bias / demeaning behavior directed to women and minorities and offers a set of bullet points re: improvement to eliminate bias, e.g. “Judges shall exhibit leadership and set the standard for non-biased communication and disposition in the courtroom and judicial operations.”
Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich, & Chris Guthrie, Does Unconscious Racial Bias Affect Trial Judges?84 Notre Dame L. Rev. 1195 (2009).
This Article begins, “Justice is not Blind” and offers examples of research demonstrating this in various parts of the justice system including bail, sentences, and capital punishment. Seeking an explanation, the Article offers “Implicit bias” as that explanation, showing that “1) Judges hold implicit racial bias. 2) These bias can influence their judgment. 3) Judges can, at least in some instances, compensate for their implicit bias.” The Article is based on a study of trial judges.
Jeffrey J. Rachlinski, Andrew J. Wistrich, & Chris Guthrie, Blinking on a Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007).
This article seeks to explore whether judges use deliberative formulaic ways of deciding cases or whether judges rely on intuition and hunches to decide cases. The article concludes that Judges use both and that intuitive decision making appears to have a strong effect on judicial decision making and that using intuitive decision making may lead to injustice and that the legal system needs to increase the likelihood that judges will decide cases in a predominately deliberate way.