Racial Bias Among Criminal Defense Lawyers

Andrea Lyon recently posted her article, “Race Bias and the Importance of Consciousness for Criminal Defense Attorneys” (Seattle University Law Review, Vol. 35, p. 755, 2012) on SSRN. Here is the abstract.

The problems of racial bias pervade the criminal justice system. In this paper a subject that is not much talked about — the issue of how racial bias affects defense attorneys and the need for defense attorneys to acknowledge implicit and explicit racial biases as a matter of practice — is examined. Specifically, the paper covers problems of racial bias when defense attorneys make assumptions about (1) their clients, and (2) veniremen during voir dire.

Download the paper for free here.

Related Situationist posts:

Implicit Bias in the Law Conference – This Thursday

• Implicit Bias Symposium (with links to videos)
• The Situation of ‘Common Sense’
• Pushback from the Left
• Why Race May Influence Us Even When We “Know” It Doesn’t
• Perceptions of Racial Divide
• Black History is Now
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• The Situation of Litigators
• Tierney’s Skepticism at the New York Times
• Measuring Implicit Attitudes
• What Are the Legal Implications of Implicit Biases?
• Confronting the Backlash against Implicit Bias
• Legal Academic Backlash – Abstract
• Naïve Cynicism in Election 2008: Dispositionism v. Situationism?
• Implicit Bias and Strawmen
• The Situation of Situation in Employment Discrimination Law – Abstract.”

Implicit Bias in Employment Discrimination Litigation

Judge Nancy Gertner and Melissa Hart have recently posted their chapter, titled “Implicit Bias in Employment Discrimination Litigation,” (in Implicit Racial Bias Across the Law, Cambridge University Press, 2012) on SSRN.  Here is the abstract.

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.

Download the chapter for free here.

Related Situationist posts:

• Nancy Gertner on the Situation of Feminism
• Judge Nancy Gertner on her Situation
• The Gendered Situation of Recommendation Letters
• The Double-Binded Situation of Even Women Lawyers
• Examining the Gendered Situation of Harvard Business School
• A Rose by any other Name Might Become a Judge
• Not Just Whistling Vivaldi
• The Nerdy, Gendered Situation of Computer Science
• The Situation of “Opting Out”
• The Gendered Situation of Science & Math
• The Situation of Sexism
• Sexual Harassment at Wal-Mart?
• Women’s Situation in Economics
• The Situation of Gender in the Workplace

Race and Dehumanization

I was very sorry to miss the Implicit Racial Bias Across the Law Book Launch Conference yesterday.  It’s rare for such a great set of law and mind sciences speakers to assemble in one spot and the topic continues to be of great importance for all those committed to ironing out injustice in our legal system.  But stuck in Philly, I did manage to “participate” vicariously . . . or, perhaps, more accurately: while doing some background research for some experiments that I am running with Penn’s Geoff Goodwin, I came across an article that I had overlooked a few years back that is of certain interest to all those who study law and race.

The article, Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, offers a fascinating investigation of the mental association between Blacks and apes and its devastating consequences.  As the authors (Phillip Atiba Goff, Jennifer L. Eberhardt, Melissa J. Williams, and Matthew Christian Jackson) explain,

Historical representations explicitly depicting Blacks as apelike have largely disappeared in the United States, yet a mental association between Blacks and apes remains. Here, the authors demonstrate that U.S. citizens implicitly associate Blacks and apes. In a series of laboratory studies, the authors reveal how this association influences study participants’ basic cognitive processes and significantly alters their judgments in criminal justice contexts. Specifically, this Black–ape association alters visual perception and attention, and it increases endorsement of violence against Black suspects. In an archival study of actual criminal cases, the authors show that news articles written about Blacks who are convicted of capital crimes are more likely to contain ape-relevant language than news articles written about White convicts.  Moreover, those who are implicitly portrayed as more apelike in these articles are more likely to be executed by the state than those who are not. The authors argue that examining the subtle persistence of specific historical representations such as these may not only enhance contemporary research on dehumanization, stereotyping, and implicit processes but also highlight common forms of discrimination that previously have gone unrecognized.

Check out the whole article here.

Related Situationist posts:

• Why Race May Influence Us Even When We “Know” It Doesn’t
• Perceptions of Racial Divide
• Black History is Now
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• The Situation of Presidential Death Threats
• The Situation of the Obama Presidency and Race Perceptions
• Racial Attitudes in the Presidential Race
• Black History is Now

Race and Racism Among Children

From CNN:

Anderson Cooper details a study that seeks to gain insight into the way black and white children perceive each other.

A sample of related Situationist posts:

• The Pretense of Colorblindness
• “Talk to an Iraqi” from This American Life 
• The Situation of the Obama Presidency and Race Perceptions
• Color Conscious Situation of Neighborhood Choice
• The Legal and Procedural Situation of Segregation
• Perceptual Segregation – Abstract
• Blood & Race
• Wages Are Only Skin Deep – Abstract
• Why Race May Influence Us Even When We “Know” It Doesn’t

Implicit Bias in the Courtroom

Situationist Contributor Jerry Kang and his numerous co-authors, Mark Bennett, Devon Carbado, Pamela Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony Greenwald, Justin Levinson, and Jennifer Mnookin, have just posted their important paper, “Implicit Bias in the Courtroom” (forthcoming UCLA Law Review, Vol. 59, No. 5, 2012) on SSRN.  Here’s the abstract:

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.

Download paper for free.

Related Situationist posts:

• Implicit Bias Symposium (with links to videos)
• The Situation of ‘Common Sense’
• Pushback from the Left
• Why Race May Influence Us Even When We “Know” It Doesn’t
• Perceptions of Racial Divide
• Black History is Now
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• The Situation of Litigators
• Tierney’s Skepticism at the New York Times
• Measuring Implicit Attitudes
• What Are the Legal Implications of Implicit Biases?
• Confronting the Backlash against Implicit Bias
• Legal Academic Backlash – Abstract
• Naïve Cynicism in Election 2008: Dispositionism v. Situationism?
• Implicit Bias and Strawmen
• The Situation of Situation in Employment Discrimination Law – Abstract.”

Race, Guns, and the Danger of Private Law Enforcement

It is heartbreaking to read the details that are emerging concerning the killing of Trayvon Martin in Sanford, Florida.

Various theories have been advanced to explain how Trayvon, an unarmed African-American teenager, was shot in the chest by a neighborhood watch captain in a gated community.  Some have focused on the potential bad disposition of the shooter, while others have cast Trayvon as a potential aggressor.  But the most compelling explanation may relate to the impact of implicit racial bias.

Indeed, the tragedy of this case may ultimately come down to a toxic combination of negative stereotypes (linking blacks and crime) and a culture increasingly encouraging private law enforcement.

A little over a year ago, I wrote an article (Quick on the Draw: Implicit Bias and the Second Amendment) that takes up this precise topic.  Below is the abstract:

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us – our friends, family, and neighbors – who show no animus toward African Americans and who profess genuine commitments to equality.

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Our commonsense narratives about racism and guns – centered on a conception of humans as autonomous, self-transparent, rational actors – are outdated and strongly contradicted by recent evidence from the mind sciences.

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Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

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Given recent expansions in gun rights and gun ownership – and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year – this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

s

In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

If you’d like to read a free copy of the entire article, click here.

Related Situationist posts:

• If Guns Don’t Kill People, Sometimes Gun-Saturated Situations Do
• The Psychology of Guns and Race
• Why Race May Influence Us Even When We “Know” It Doesn’t
• He’s a Banana-Eating Monkey, but I’m Not a Racist
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• A Situationist Considers the Implications of Simpson Sentencing
• The Situation of Handguns on Urban Streets-Abstract
• The Situation of First-Person Shooters
• Guilt and Racial Prejudice
• Perceptions of Racial Divide
• Banaji & Greenwald on Edge – Part IV

Nancy Gertner on the Situation of Feminism

From Harvard Gazette:

Nancy Gertner is a former federal judge, the author of a recent memoir (“In Defense of Women”), a professor of practice at Harvard Law School, and an authority on sentencing, jury system discrimination, forensic evidence, and other legal areas.

But go back to June 1971, the month she had a loud argument with her mother in their kitchen in Flushing, Queens, N.Y. Gertner was about to graduate from Yale Law School and assume a prestigious clerkship in Chicago. But her mother wanted her to take the test to be a Triborough Bridge toll taker — just in case.

For a young woman lawyer at the time, “just in case” wasn’t a bad idea. The law was a man’s world. But just a decade later, the culture seemed to swing toward what feminists worked for: parity. By the late 1980s, first-rate law firms were hiring men and women in equal numbers. “We thought the numbers would do everything,” Gertner said during a lunchtime talk on Feb. 23 that was sponsored by the Women and Public Policy Program at the Harvard Kennedy School. (Weekly talks there are part of the program’s mission to create gender equality.)

But faith in the raw numbers turned out to be “dramatically wrong,” said Gertner. “Advancement has stalled.” Half of all new lawyers are women, she said, but only 16 percent of equity partners in law firms are female. And of lawyers who leave the profession, most are women — and most do it because of family and social concerns.

Gertner used the lens of the legal profession to speculate why, after earlier rapid advances, feminism’s cultural agenda seems to have stalled. (Universities, she said, are in an analogous position, with plenty of women graduating as Ph.D.s, but few getting to the top of the academic game.)

During her years on the bench from 1994 to 2011, Gertner got used to being trotted out at events as an example of progress. “You’re supposed to say: ‘Things are fabulous,’ ” she told her audience at the Taubman Building’s Cason Seminar Room. But they are not. The women’s movement was not just about having more choices, she said, but about “revolutionary” changes in the workplace and at home that have not happened yet.

In today’s “imperfectly transformed world,” said Gertner, it is social expectations and an “unfriendly workforce” that mean a woman — if anyone — usually will stay home with the children. (She called this reality “the maternal wall.”)

Gertner cited one study that showed 30 percent of women leaving the law, including 15 percent of equity partners, those with a financial stake in a firm. Another study, she said, showed that 34 percent of female law graduates have worked part time, compared with only 9 percent of their male counterparts.

So without a corresponding transformation of family responsibilities, feminism is likely to stay stalled, she said. “We’ve hit a wall.”

It’s not a situation that discrimination lawsuits can correct, said Gertner, because so many women are “leaning out” of their professions — that is, anticipating future pressures and so choosing career paths that enable them to leave the workplace more readily. (She gave as an example the woman who chooses a small family-practice firm over a larger one that presents more challenges and opportunities.) “If women are leaning out” of their own volition, said Gertner, “then their failure to advance can’t be the subject of a lawsuit.”

Besides, she added, overt gender discrimination in the workplace has gone the way of discos and bell-bottoms, “a world that no longer exists.” What is left, said Gertner, is “implicit bias,” which has the same stalling effect on feminism as the maternal wall.

There is also an issue with executing the law itself — a denial of the power of context. The gender discrimination lawsuits that do make it to court are weakened by a tendency to “slice and dice” the circumstances of alleged discrimination, said Gertner. “You don’t look at them as a course of conduct,” but as separate events. “Discrimination in the real world does not fit into the legal models we have.”

One way to counteract this tendency in the law is to have judges on the bench who are aware of the way the world works. “I had an appreciation of context,” said Gertner of her time as a judge. “I never saw the law as legal rules on the page.” (That appreciation, in part, was biographical. Her judicial tenure was influenced by her early childhood in a tenement on Manhattan’s lower East Side, by championing unpopular clients as a young lawyer, and by becoming a mother at age 39.)

In the absence of overt gender discrimination, it is hard to get legal redress, said Gertner. For young women in the workplace today, “it’s the opacity of discrimination” that makes advancement difficult, she said, instead of the stark realities of discrimination in the 1970s. Gertner said, “It was easier for me.”

With feminism stalled by social pressures at home and the workplace, she offered a radical idea. “The government needs to step up to the plate,” Gertner said, beginning by providing incentives for day care that would make it easier for women to combine career and work.

After all, there is a “business case” to be made for gender equality in law firms and workplaces, “beyond the obvious need to tap a rich vein of talent,” said Gertner. In a diverse world, workplace diversity adds to “the texture and the richness of the dialogue,” she said.

In the end, feminism’s mission of workplace parity has been stalled by the three factors of the maternal wall, implicit bias, and the opacity of discrimination, Gertner said.

She said advocates have a list of things to do: parse workplace discrimination by collecting the right data; engage in collective action; and challenge the government to underwrite day care and other engines of cultural change.

But all this is not enough. “The most important thing is: We have to be unsatisfied,” Gertner told her largely female, professional audience. “We have to not believe that this was the accomplishment of the women’s movement — that I’m here and that you’re here is somehow all we can achieve.”

Reltated Situationist posts:

• Judge Nancy Gertner on her Situation
• “The Gendered Situation of Recommendation Letters,”
• “The Double-Binded Situation of Even Women Lawyers,”
• “Examining the Gendered Situation of Harvard Business School,”
• “A Rose by any other Name Might Become a Judge,”
• “Not Just Whistling Vivaldi,”
• “The Nerdy, Gendered Situation of Computer Science,”
• “The Gendered Situation of Science & Math,” and
• “Women’s Situation in Economics.”

Image by Jon Chase/Harvard Staff Photographer.

Pushback from the Left

Situationist Contributor Jerry Kang recently posted his thoughtful essay, “Implicit Bias and the Pushback from the Left” (St. Louis University Law Journal, Vol. 54, p. 1139, 2010) on SSRN.  Here’s the abstrct.

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Over the past three decades, the mind sciences have provided remarkable insights about how our brains process social categories. For example, scientists have discovered that implicit biases – in the form of stereotypes and attitudes that we are unaware of, do not consciously intend, and might reject upon conscious self-reflection – exist and have wide-ranging behavioral consequences. Such findings destabilize our self-serving self-conceptions as bias-free. Not surprisingly, there has been backlash from the political Right. This Article examines some aspects of the more surprising pushback from the Left.

Part I briefly explains how new findings in the mind sciences, especially Implicit Social Cognition, are incorporated into the law, legal scholarship, and legal institutions, under the banner of “behavioral realism.” Part II describes the pushback from the Left. Part III responds by suggesting that our deepest understanding of social hierarchy and discrimination requires analysis at multiple layers of knowledge. Instead of trading off knowledge, for example, at the cognitive layer for the sociological layer (or vice versa), we should seek understanding at each layer, and then interpenetrate the entire stack.

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Download the essay for free here.  For a sample of related Situationist posts, see

Examining the Gendered Situation of Harvard Business School

Julia Brau, Paayal Desai, Alexandra Germain, Akmaral Omarova, Jung Paik,  and Julie Sandler are all students at Harvard Business School (HBS) who last week published a thoughtful article in their student newspaper The Harbus.  With potential lessons and relevance for many institutions, the piece discusses recent efforts  to understand and address sources of gender discrepancies in academic performance at HBS.  Here are some excerpts.

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Are men and women equal at HBS? It’s a question that has been front of mind at HBS in recent weeks. . . .

One of these many efforts is a field study that focuses on analyzing and addressing the current differences between the male and female academic experience at HBS. As The Harbus published in a Fall article, “WSA Academic Initiative Survey,” there is a marked discrepancy between male and female academic performance: though comprising 38% of the Class of 2010 student body, female students make up only 23% of first year honors recipients and an estimated 55% of the students asked to take leave from HBS after the RC [i.e., first] year in 2009. Females in past years with similar class compositions have comprised 11-14% of Baker Scholars.

This semester, a group of ECs partnered with faculty and HBS administration to understand some of the root causes driving these trends. The study was completed through three workstreams. First, a series of focus groups was conducted with a variety of students – men and women, honors recipients, sectionmates and non-sectionmantes – to try to identify root causes of grading inequities and generate a catalog of academic best practices that could be helpful to future students. Second, interviews with faculty explored academic root causes of underperformance from the faculty’s perspective and identified potential areas for improvement. Finally, all these efforts coincided with a data-focused workstream that included analysis of publicly available honors, class card and other information to understand if certain factors such as relationship status, age or work background play a part in determining male and female performance.

Preliminary findings on root causes have been grouped into five areas to be examined in another field study this fall.

Comment Frequency and Delivery
Survey and focus group results, along with faculty feedback, confirmed previous findings that women feel less comfortable speaking in class. Women also speak less frequently and with less confidence. Most notably, they are less willing to potentially offend or challenge classmates than their male peers are.

Section Dynamics
Some sections reported better female performance (i.e. many more female honors recipients, fewer females asked to take leave) than others, suggesting that the social and academic tone of a given section could impact men and women differently. Data analysis also showed that a much higher percentage of female honors students than average are married, suggesting further underlying social dynamics at work. Given this information, directed focus groups attempted to illuminate the role of social dynamics in predicting performance across genders. It seemed clear from focus groups that students take into account their social relationships with section peers when deciding whether to speak and what to say. Furthermore, focus group feedback indicated that dramatic in-class bonding experiences, Skydecks that avoided personal attacks, and engaged officers (leadership & values representatives, education representatives and presidents) all played a role in setting the tone for a positive learning environment for both men and women.

Potential Unconscious Faculty Biases
There is a body of research that shows that male and female comments are unconsciously processed differently. Focus group and Fall survey data further suggest that people perceive that women are raising their hands less and consequently getting called on less than men. Professor interviews exposed a wide range of faculty opinions on this unconscious bias issue; some professors care deeply about performance of different minorities and actively manage calling patterns and in-class interactions, while other professors feel they do not have any biases to manage. Faculty, for the most part, admitted that unconscious biases may exist and in turn asked for help in identifying these biases.

Admissions Differences:
Focus group feedback showed some students thought differences in grades might be explained by differences between men’s and women’s backgrounds and admissions profiles. Admissions data cannot be used for purposes other than admissions, but preliminary analysis using the classcards and honors list statistics of four representative sections yielded some interesting results. People with backgrounds in consulting and/or finance made up 84% of the honors list. In the four sections studied, women were actually more likely than men (70% women versus 60% men) to come from these finance or consulting backgrounds. On the flip side, first year honors recipients from the sections studied had a little more work experience than average while women across the four sections on average had fewer years’ work experience than men. Follow-up research in the fall will look into this issue further.

Lack of Female Role Models
Fall survey and focus group data highlighted female discomfort with the current lack of female professors and case protagonists. Psychology research supports the notion that women could be at a disadvantage from not seeing more female role models at HBS.

Summary of Findings and Next Steps
While HBS is still a long way from achieving grading parity, much has been accomplished through this field study and other ongoing efforts around this issue. Detailed analysis of grade and classroom data is helping the administration to better understand what factors contribute to performance. This May, HBS professors will have the opportunity to attend one of two sessions with Harvard psychologist [and Situationist Contributor] Mahzarin Banaji to understand how implicit biases affect how males and females are perceived differently in class settings. Efforts are underway to have next year’s RCs see a case that directly addresses gender dynamics in the workplace. In addition, extra sessions on class participation with Professor Frances Frei will be opened up to all students. Future students will receive a Survival Guide with updated information on difference between male and female academic performance. In addition, a series of recommendations ranging from opening analytics to all students to sharing EC exam grades and more detailed mid-semester RC participation feedback has been presented to the HBS administration.

Finally, a large part of this effort has been focused on keeping a dialogue open on issues surrounding female academic performance. An important study (Shih, Pittinsky & Ambady, Psychological Science, 1999) showed that Asian women performed better on math exams when their ethnic identities were activated than when their gender identities were activated by a series of questions at the start of the test. There was an internal implicit bias that made these women do worse when they self-identified as women than when they self-identified as Asian. A second study (Kray, Thompson & Galinsky, Journal of Personality & Social Psychology, 2001) showed that when this tendency to underperform was made explicitly known to test-takers in advance, the effect completely disappeared. One of the most important goals of the ongoing Women’s Initiative is to make explicit the underlying factors that can lead to grade disparity at HBS so that women can knowingly work to overcome them.

While there is some question as to whether or not HBS prepares women best for the “real world” by mirroring existing social conditions or by implementing changes to be “better” than the norm, the administration tends to come down on the side that says HBS should be a leader in the business community that sets, rather than follows, the larger social tone. The question for the HBS administration seems to be not whether to do anything, but what can be done to best ensure equality in grading. In the meantime, student movements like the Women’s Initiative will seek to help women understand the existing issues and try to give all students better tools to succeed both at HBS and in the workplace.

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For a sample of related Situationist posts, see “A Rose by any other Name Might Become a Judge,” “Not Just Whistling Vivaldi,” “The Nerdy, Gendered Situation of Computer Science,” “The Situation of Gender-Science Stereotypes,” “Women’s Situational Bind,” “The Situation of Gender and Science,” “Stereotype Threat and Performance,” “The Gendered Situation of Science & Math,” “Gender-Imbalanced Situation of Math, Science, and Engineering,” “Sex Differences in Math and Science,” “You Shouldn’t Stereotype Stereotypes,” “The Situation of Standardized Test Scores,” “Women’s Situation in Economics,” and “Your Group is Bad at Math.”

Liability for Unconscious Discrimination?

Patrick Shin recently posted his excellent article, titled “Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law” (forthcoming Hastings Law Journal) on SSRN.  Here’s the abstract.

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A steadily mounting body of social science research suggests that ascertaining a person’s conscious motives for an action may not always provide a complete explanation of why he did it. The phenomenon of unconscious bias presents a worrisome impediment to the achievement of fair equality in the workplace. There have been numerous deeply insightful articles discussing various aspects of this problem and canvassing its implications for antidiscrimination law.

My purpose in this paper is to focus directly on what might be called a more naïve question: should implicit bias be a basis of disparate treatment liability under Title VII? The question might fairly be regarded as naïve insofar as any proposal for such liability would surely be unripe for present implementation, in light of serious issues pertaining to problems of proof in individual cases, not to mention intramural disputes among experts about the proper practical inferences that can be drawn from extant social science research.

My interest, however, is more theoretically basic. I want to understand whether and how the notion of unconsciously biased action fits into our operative legal concept of actionable discrimination. To reach that issue, I devise a thought experiment in which I assume, first, that unconscious or implicit bias is real in a sense that I will make explicit, and second, that unconscious discrimination is provable – i.e., that the influence of implicit bias on an agent’s action is something that can, in principle, be proved in individual cases. With these assumptions, I construct an hypothetical test case that squarely raises what I regard to be the hard question for theorizing about unconscious discrimination. Should an employment action give rise to liability when that action was provably affected by the actor’s unconscious bias in respect of a statutorily protected classification, even when the actor consciously acted only on legitimate, nondiscriminatory reasons? The payoff of this thought experiment is not only a clearer picture of the theoretical commitments entailed by liability based on unconscious bias, but also a keener understanding of our currently prevailing notions of actionable discrimination.

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You can download the paper for free here.  For a sample of related Situationist posts, see “Krieger on the Situation of Discrimination in France,” “What Are the Legal Implications of Implicit Biases?,” “Colorblinded Wages – Abstract,” “Firefighters and the Situation of “Merit”,” and “The Situation of Situation in Employment Discrimination Law – Abstract.” For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

The Situation of Burritos

Majorie Florestal recently posted her intriguing article, “Is a Burrito a Sandwich? Exploring Race, Class and Culture in Contracts” (14 Michigan Journal of Race and Law (2008)) on SSRN.

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A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts – so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on ‘common sense’ and a single definition of sandwich – ‘two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.’ The only barrier to the burrito’s entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court’s definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the ‘primitive formalism’ Judge Cardozo derided nearly ninety years ago when he said ‘[t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a broader view today.’ Does it? Despite the title of this piece, my goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, I explore what lies beneath the ‘primitive formalism’ or somewhat smug determination of the court that common sense answers the question for us. I suggest Judge Locke’s gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. I explore this bias by examining the determination of this case and the impact of race, class and culture on contract principles.

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To download the article for free, click here.  For a sample of related Situationist posts, see “Alcohol, Hotdogs, Sexism, and Racism,” “Why Race May Influence Us Even When We “Know” It Doesn’t,” and “The Cognitive Costs of Interracial Interactions.”

The Situation of Litigators

Situationist Contributor Jerry Kang, Nilanjana Dasgupta, Kumar Yogeeswaran, and Gary Blasi, recently posted their terrific new paper “Are Ideal Litigators White? Measuring the Myth of Colorblindness” on SSRN.  Here’s the abstract.

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This study examined whether explicit and implicit biases in favor of Whites and against Asian Americans would alter mock jurors’ evaluation of a litigator’s deposition. We found evidence of both explicit bias as measured by self-reports, and implicit bias as measured by two Implicit Association Tests. In particular, explicit stereotypes that the ideal litigator was White predicted worse evaluation of the Asian American litigator (outgroup derogation); by contrast, implicit stereotypes predicted preferential evaluation of the White litigator (ingroup favoritism). In sum, participants were not colorblind, at least implicitly, towards even a “model minority,” and these biases produced racial discrimination. This study provides further evidence of the predictive and ecological validity of the Implicit Association Test.

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To download the paper for free, click here. To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.

The Situation of Pollworkers and Voting Booths – Abstract

Antony Page and Michael J Pitts recently posted their  intriguing article, “Poll Workers, Election Law, and the Problem of Implicit Bias” (forthcoming in Michigan Journal of Race & Law) on SSRN.  Here’s the abstract.

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Racial bias in election administration – more specifically, in the interaction between pollworkers and voters at a voting booth on election day – may be implicit, or unconscious. Indeed, the operation of a polling place may present an “optimal” setting for unconscious racial bias to occur. Pollworkers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law does not explicitly allow for a pollworker to exercise discretion, there is a strong possibility that unconscious bias could play a role in pollworker decision-making. Whether a poll workers’ discretion is de jure or de facto, the result may be race-based discrimination between prospective voters. This article addresses how unconscious bias may play a role in the interaction between pollworkers and prospective voters and discusses some ways in which the potential for unconscious bias to operate in America’s polling places may be mitigated.

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For a sample of related Situationist posts, see “The Racial Situation of Voting,” “Why Race May Influence Us Even When We “Know” It Doesn’t,” “The Interior Situation of Undecided Voters,” “On Being a Mindful Voter,” “Implicit Associations in the 2008 Presidential Election,” “The Situation of Political Animals,” and “Your Brain on Politics.”

To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.

Image from The Virginia Pilot.

Tierney’s Skepticism at the New York Times

Recently, John Tierney who writes a Science column in the New York Times has shown great skepticism about the concept of implicit bias, how it might be measured (through the Implicit Association Test), and whether it predicts real-world behavior. See, e.g.,  Findings column (Nov. 17, 2008).    I write to make provide praise, critique, and cultural commentary.

First, praise.  I praise Tierney’s skepticism, which is fundamental to critical inquiry generally and good science especially.  Serious, critical inquiry is why most of us got into academics, and it’s why you the reader are reading this blog.

Second, critique.  But skepticism should not be one-sided.  Tierney’s columns suggest that one side is just asking for good, skeptical science, whereas the other side is pushing along a politically correct agenda recklessly.  That is hardly fair and balanced.  To take one example, Tierney gives prominent weight to Prof. Phil Tetlocks’ criticisms of the implicit bias research.   But let’s probe further.  In an article by Tetlock and Prof. Gregory Mitchell (UVA Law) attacking the science, the authors suggest that one of the reasons that Whites may perform worse on the Black-White IAT is because of a phenomenon called “stereotype threat”.  They write that Whites “react to the identity threat posed by the IAT by choking under stress–and performing even worse on the IAT, thus confirming the researchers’ original stereotype of them.” 67 Ohio St. L.J. 1023, 1079 (2006).

For this “choke under threat” explanation, Tetlock and Mitchell cite a single study.  Moreover, they do not turn their powerful skepticism against this body of work, launched by Prof. Claude Steele at Stanford, which explains why negative stereotypes can depress test performance.  This body of work, if taken as seriously as Tetlock and Mitchell do in a throw-away line, challenges the use of standardized examinations in university admissions.  But I doubt that that’s what Tetlock and Mitchell would call for, as a matter of policy.  So why not be methodologically pure and go after the stereotype threat work with equal vigor and skepticism?  Instead, they deploy “stereotype threat” science without raising an eyebrow, since it fits their arsenal of critique of the “implicit bias” science.

The general point is that it’s facile to think that one side has the scientific purists — just seeking good data and good science, and the other side has the political hacks.  And self-serving reasoning no doubt infects us all, on both sides.  This is why we should trust long-run scientific equilibrium and be skeptical of both aggressive claims and their backlashes.

Third, cultural commentary.  The readers’ comments to the Tierney articles are fascinating because they largely give no deference to scientific expertise.  From the large N of 1, those who have taken the IAT conclude that the test must be nonsense and raise myriad confounds (without bothering to read the FAQs that explain how stimuli are randomized, etc.)  If geneticists were debating the meaning of some expressed sequence tags or if astrophysicists were debating new evidence of dark matter, I wonder if readers would bother to chime in aggressively with their views.  “I have plenty of genes, and that view about inheritability is nonsense!”  “I’ve seen stars, and if I can’t see ’em they must not exist!”

I suggest that we feel so personally connected to race and to gender (most of the comments focus on race) and are so personally invested in not being biased that we feel compelled toward such participation.  Again, if some “coffee increases likelihood of ulcers” study came out, would people write in:  “I drink coffee, and I don’t have an ulcer!!!”  I don’t think so.   What does that say about our current cultural moment?  Perhaps it reveals a sort of intellectual prejudice­-a proclivity not to take race research seriously, as nothing more than personal opinion, regardless of the scientific and statistical bona fides.

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Look, science always involves conflict.  And in the long run, there’s no reason to think that this controversy won’t be resolved through the traditional scientific method and reach a long-run equilibrium consensus.  But getting there has already been rocky and will continue to be.   Maybe the implicit bias work, which is far more extensive than just the implicit association test (IAT), will turn out to be nothing more than “intelligent design”–just ideology (in that case religious) wrapped up in pseudo-science.  Or, and I think this is far more likely, it will be another inconvenient truth that is established, as global warming ultimately was:  We are not as colorblind as we hope to be, and on the margins, implicit associations in our brain alter our behavior in ways that we would rather they not.  Certainly the balance of peer-reviewed studies in number and quality point in that direction.

In the end, time truly will tell.  The real question is which side will maintain its scientific integrity when the results come in.

Full disclosure:  I’m a co-author of Mahzarin Banaji, whose work is discussed in Tierney’s pieces.  You can read my implicit bias work at:

http://jerrykang.net/Research/Race

The Situation of a Situationist – Mahzarin Banaji

Billy Baker wrote a nice article, titled “She Explores Inner Workings of Bias,” about Situationist contributor Mahzarin Banaji in last week’s Boston Globe.  Here are some excerpts.

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For two decades, Banaji has been a leading researcher into the nature of our implicit, unconscious biases, particularly as they unfold in a social context. Bias, she has found through her experiments into memory and its associations, is a part of being human. Every person divides up the world in certain ways.

Most of the time, she said, people show an unconscious preference toward their social group. By participating in her own experiments, Banaji has found that she favors women over men, and Harvard over MIT. But there are exceptions to these findings, which is what makes this election so intriguing to her.

“There is an aspect of our minds that operates largely in unconscious mode,” she said. “We can say one thing and behave in a way that’s completely opposite.”

In experiments designed to test our unconscious biases, the experimental psychologist has found that 80 percent of whites show a white preference, while 40 percent of blacks show a black preference. But blacks, much more so than whites, are more vocal in saying that they prefer blacks.

So if we say one thing and do another, what will really happen come Election Day? Is Senator Barack Obama at risk for the so-called Bradley Effect, where people will say they’re going to vote for a black candidate and then won’t? . . . .

“I don’t think so,” she said as she fiddled with her tortoise-shell eyeglasses. This election year has already flown in the face of expectations, she said.

“We might even see some reverse-Bradley”, said Banaji. “Who would have thought we’d have an election where the younger white men all dropped out early?” With a tone of cautious optimism, she adds: “That tells us that, in our conscious minds, we’ve come a long way.” But our unconscious, she has found, is often unpredictable. Banaji uses something called an Implicit Association Test – rapid-fire quizzes based on word and image associations – to study a person’s bias. Every time she develops a new test, she and her colleagues take bets on what they think the results will say. “I’m continually wrong,” she said.

In a recent study, she asked participants to choose a quiz team mate from two candidates: an overweight person and a thin person. The overweight person, they were told, had a higher IQ. The majority chose the thin person.

“Our biases are not rational,” she said. “They lead us to do things that are not even in our own best interest.”

Banaji came to her line of work naturally and, not surprisingly, somewhat unconsciously. She grew up a Zoroastrian – a small religion and philosophy with only about 100,000 followers left in the world – in Hyderabad, India. “It was an unusual upbringing,” she said. “You’re a part of a community of 6,000 living in a city of 6 million and nobody knows about you.”

Still, she said, “It never struck me consciously that I was interested in these questions because of my own experience of being different.”

People like understanding their biases, she believes, just as medical patients want to know their risk factors. Over 7 million tests have been completed on Project Implicit, a Harvard website she helped create to allow people to participate in the Implicit Association Tests – and gives the test-taker an immediate analysis of their biases. (It can be found at https://implicit.harvard.edu/implicit/.)

For all her years of research, and her outsider background, Banaji admits that she is not without her own biases. But she thinks that by acknowledging them, people can better attempt to counter them.

She uses the screensaver on her office computer to display images of people from far-flung places, or in unfamiliar roles (a female construction worker, say), in an effort to rewire her associations.

“You can change a behavior even if your attitude doesn’t change,” she said. One example? She encourages people to smile at a random old person on the street.

“And maybe the change in behavior will provoke a change in attitude.”

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Read the entire article here.  Go to Project Implicit here.

Take the Policy IAT here.

For some posts examining the the role of implicit associations in elections, see “The Situation of Being ‘(un)American,’“ “Patricia Devine on Resisting Implicit Associations,” “The Interior Situation of Undecided Voters,” “On Being a Mindful Voter,” “Lopez-Torres, Justice Scalia, and the Situation of Elections,” “Your Brain on Politics,” “Implicit Associations in the 2008 Presidential Election,” “The Situation of Political Animals,” “Political Psychology in 2008,” “Perceptions of Racial Divide,The Psychology of Barack Obama as the Antichrist,” and “The Interior Situation of Undecided Voters.”

To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here. For other Situationist posts on the 2008 Presidential Election, click here.