80 Pages Posted: 2 Apr 2007 Last revised: 6 May 2010
This Article argues that judges and jurors unknowingly propagate racism through their legal decisions because they misremember case facts in implicitly biased ways. Such an argument bridges discourse in implicit social cognition, memory studies, and legal decision-making. Social cognition research indicates that implicit racial biases are automatic, pervasive, and often operate without conscious awareness. Memory studies demonstrate that memory errors are meaningful and systematic, and are often facilitated by stereotypes. Decision-making theory teaches that memory errors can not only affect the results of individual decision-making processes, but also that group deliberations are unlikely to resolve these errors. The author argues that these three areas converge, resulting in a model that explains how implicit memory errors are made unconsciously and in racially biased ways. These unconscious and pervasive implicit memories biases consequently have the ability to affect a variety of legal outcomes.
To test the theory, the author conducted an empirical study that examined how people remember legally relevant facts. In the study, participants read two short stories resembling legal cases - one about a fight and another about an employment termination. The race of the characters in the stories was varied so that some participants read about African Americans, some read about Hawaiians, and others read about Caucasians. Participants were later asked to recall facts of the stories. Results of this recall task indicated that people systematically misremembered legally relevant facts in racially biased ways. For example, participants who read about an African American or Hawaiian involved in a fight were significantly more likely to remember aggressive actions from the fight, compared to participants who read about a Caucasian. Participants even sometimes generated false memories about an African American, erroneously believing that he had engaged in aggressive behaviors when he had not. Other results indicated that implicit memory biases are not related to consciously racist attitudes or preferences - even less "racist" people manifested systematic implicit racial biases. The results strongly support the theory that implicit memory biases operate in the legal setting, and that they operate without the conscious knowledge of judges or jurors.
The extension of an implicit racial bias model to legal decision-making raises concerns about the legal system's ability to achieve social justice. It also indicates that a stereotype-driven and historically discriminatory culture may still be causing harms through implicit memory biases in legal decision-making. Responding to such a systemic problem requires a multifaceted effort. Attempts to "debias" implicit racism have been mixed - reducing harms temporarily is possible but longer term change is resistant to scientific efforts. The only foolproof suggestion for eliminating implicit racial biases is for cultural change to occur over time and through coordinated efforts. In the meantime, however, the author argues that a variety of temporary debiasing measures must be pursued.
Keywords: implicit racial bias, psychology and law, race, bias, memory, implicit, discrimination, cultural change
JEL Classification: J15, J70, J71, J78, J79, K10, K14, K19, K30, K41
Suggested Citation: Suggested Citation
Levinson, Justin D., Forgotten Racial Equality: Implicit Bias, Decision-Making and Misremembering. Duke Law Journal, Vol. 57, November 2007. Available at SSRN: https://ssrn.com/abstract=975793