The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education
17 Pages Posted: 9 Apr 2020 Last revised: 10 May 2021
Date Written: March 19, 2020
Nowhere is the necessity of using empirical research methods and statistics in formulating legal arguments more obvious than in recent legal scholarship concerning implicit bias.
By way of background, the concept of implicit, or unconscious, bias has recently enjoyed its ‘fifteen minutes of fame,’ garnering substantial support from many scholars, including some law professors, who contend that implicit biases cause discriminatory behavior, including behaviors that disparately impact traditionally marginalized groups. Indeed, scholars have advocated for programs and policies that instruct incoming law students and faculty regarding the existence of its implicit bias and its alleged role in perpetuating overt and subtle racism.
But there is a problem – a very big problem – that plagues legal scholarship in this area and that casts doubt on these policies.
Specifically, recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. In fact, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior. You wouldn’t know this from reading the many law review articles concerning implicit bias, or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior.
Keywords: implicit bias, biased behavior in higher education, discrimination, disparate impact, unconscious bias
JEL Classification: K30, K40
Suggested Citation: Suggested Citation