ARTICLEImplicit Bias in the Courtroom
Jerry Kang, Judge Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin*
59 UCLA L. Rev. 1124
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.
* Jerry Kang is Professor of Law at UCLA School of Law.
Judge Mark Bennett is a U.S. District Court Judge in the Northern District of Iowa.
Devon Carbado is Professor of Law at UCLA School of Law.
Pam Casey is Principal Court Research Consultant of the National Center for State Courts.
Nilanjana Dasgupta is Associate Professor of Psychology at the University of Massachusetts at Amherst.
David Faigman is John F. Digardi Distinguished Professor of Law at UC Hastings College of the Law; Director, UCSF/UC Hastings Consortium on Law, Science and Health Policy; Professor, UCSF School of Medicine, Dept. of Psychiatry.
Rachel Godsil is Eleanor Bontecou Professor of Law at Seton Hall University School of Law.
Anthony G. Greenwald is Professor of Psychology at the University of Washington.
Justin Levinson is Associate Professor of Law and Director of Culture and Jury Project at the University of Hawai’i William S. Richardson School of Law.
Jennifer Mnookin is Professor of Law at UCLA School of Law.
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