Thursday, April 9, 2020
The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education by Adam Lamparello
"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."
Note: Lamparello's study is not a criticism of cognitive bias theory based on the work of Daniel Kahneman and others. (He does not mention Kahneman in his paper.) Kahneman's approach has been thoroughly tested by cognitive scientists.