A Future History of Implicit Social Cognition and the Law

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