Judging Implicit Bias: A National Empirical Study Of
Judicial Stereotypes

51 Pages Posted: 27 Apr 2017  

Justin D. Levinson

University of Hawaii - William S. Richardson School of Law

Mark W. Bennett

U.S. District Court (Northern District of Iowa); Unaffiliated Authors - Independent

Koichi Hioki

Kobe University - Graduate School of Business Administration

Date Written: January 2016

Abstract

American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars must seek to fully understand the role of implicit bias in judicial decision-making. Research from the field of implicit social cognition has long documented negative implicit biases towards a wide range of group members, some of whom may well be harmed in various ways across the legal system. Unfortunately, legal scholarship, and particularly empirical legal scholarship, has lagged behind in terms of investigating how implicit biases, beyond Black and White, may lead to unfair outcomes in a range of legal areas, including those relevant to judges’ potentially landmark legal decisions.

This Article proposes, and then empirically tests, the proposition that even today negative implicit biases may manifest in federal and state judges against even so-called privileged minorities, such as Asian-Americans and Jews. We present the results of an original empirical study we conducted on 239 sitting federal and state judges (including 100 federal district judges representing all Circuits) and consider the ways in which these judicial implicit biases may manifest. The study found that the judges harbored strong to moderate negative implicit stereotypes against Asian-Americans and Jews, while holding favorable implicit stereotypes towards Whites and Christians. These negative stereotypes associate Asians and Jews with immoral traits, such as “greedy,” “dishonest,” and “controlling,” and associate Whites and Christians with moral traits, such as “trustworthy,” “honest,” and “giving.” The study further found that federal district court judges sentenced Jewish defendants to marginally longer prison terms than identical Christian defendants and that implicit bias was likely the cause of the disparity.

Suggested Citation

Levinson, Justin D. and Bennett, Mark W. and Hioki, Koichi, Judging Implicit Bias: A National Empirical Study Of Judicial Stereotypes (January 2016). Florida Law Review, Vol. 69, 2017. Available at SSRN: https://ssrn.com/abstract=2959065

Justin D. Levinson (Contact Author)

University of Hawaii - William S. Richardson School of Law ( email )

2515 Dole Street
Honolulu, HI 96822-2350
United States

Mark W. Bennett

U.S. District Court (Northern District of Iowa) ( email )

320 6th St.
Sioux City, IA 51101
United States
712-233-3909 (Phone)

Unaffiliated Authors - Independent ( email )

No Address Available

Koichi Hioki

Kobe University - Graduate School of Business Administration ( email )

3-7-2 Shimiyoshiyamate
Higashinada-ku
Kobe, Hyogo 658-0063, Hyogo 657-8501
Japan

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