A Future History of Implicit Social Cognition and the Law

46 Pages Posted: 22 Aug 2009 Last revised: 18 Aug 2010

See all articles by Jerry Kang

Jerry Kang

University of California, Los Angeles (UCLA) - School of Law

Kristin Lane

Bard College Program in Psychology

Date Written: August 12, 2009

Abstract

The science of “implicit social cognition” (ISC) has demonstrated that we have implicit biases, in the form of stereotypes and attitudes that we are unaware of. Nevertheless, these implicit biases can alter our behavior, including how we might give an interview, hire a candidate, or even shoot a gun. As evidence mounts on this front, the law will have no choice but to respond to this revised understanding of human behavior and decisionmaking. To accelerate on-the-merits analysis, we offer a “future history” of how a new scientific consensus might be reached and how it might be incorporated into the law. First, this Article provides a current, concise, and accurate primer on the science. Second, it elucidates a call for “behavioral realism,” which asks that the law account for the most accurate model of human thought, decisionmaking, and action provided by the mind sciences. Third, it predicts critical markers in our future, which we label denial, minimization, politicization, resignation, and justification. This stylized future history provides us an analytic vocabulary for intellectual engagements incipient and soon-to-come; avoids unhelpful confusions, misreadings, or strawmen; answers reasonable objections to the extent that current scientific and legal understandings permit; and points us toward a broader research agenda for the next decade.

Keywords: implicit bias, IAT, implicit association test, behavioral realism, behavioral economics, discrimination, backlash, social cognition

Suggested Citation

Kang, Jerry and Lane, Kristin, A Future History of Implicit Social Cognition and the Law (August 12, 2009). UCLA School of Law Research Paper No. 09-26. Available at SSRN: https://ssrn.com/abstract=1458678 or http://dx.doi.org/10.2139/ssrn.1458678

Jerry Kang (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-7298 (Phone)
310-206-7010 (Fax)

Kristin Lane

Bard College Program in Psychology ( email )

Annandale-on-Hudson, NY 12504-5000
United States

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