63 Pages Posted: 21 Mar 2012 Last revised: 12 Nov 2012
Date Written: March 20, 2012
Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.
Keywords: implicit bias, IAT, implicit association test, behavioral realism, jury bias, judicial bias, debiasing, police, Iqbal, merit, discrimination
Suggested Citation: Suggested Citation
Kang, Jerry and Bennett, Mark W. and Carbado, Devon W. and Casey, Pamela and Dasgupta, Nilanjana and Faigman, David L. and Godsil, Rachel D. and Greenwald, Anthony G. and Levinson, Justin D. and Mnookin, Jennifer, Implicit Bias in the Courtroom (March 20, 2012). UCLA Law Review, Vol. 59, No. 5, 2012; UCLA School of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2026540
By Orin Kerr