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ABA Section of Litigation Tackles Implicit Bias

By Mark A. Drummond, Litigation News Associate Editor – February 1, 2011

The bad news is that most of us are biased.  Even worse, the bias is unconscious.  The good news is that the bias can be eliminated through awareness and the ABA Section of Litigation is leading the way.

Implicit Bias Research
“It is no exaggeration whatsoever to say that the research Professor Rachlinski and his colleagues are doing is probably the most important research about the justice system that is being conducted anywhere in the country today,” said Judge Delissa A. Ridgway of the U.S. Court of International Trade as she kicked off the plenary session on implicit bias at the Section’s January 2011 Winter Leadership meeting.  Ridgeway is cochair of the Section of Litigation’s Task Force on Implicit Bias.

Professor Jeffrey J. Rachlinski of Cornell Law School took Section leaders through the current research on implicit bias.  With the help of an electronic polling system, he involved leadership while they took a shortened version of the Implicit Association Test or “IAT.”  The IAT is designed to uncover a variety of invidious associations such as white/good and black/bad or male/career and female/family.  He followed this with an eyewitness test where subjects who err in identification generally tend to pick more “stereotypically African-American” suspects out of a street scene, based on characteristics such as darker skin, when they were told the crime was one of violence versus a crime of fraud.

The Section’s Efforts to Foster Awareness
“The plan all along has been to put together a ‘tool box’ of information by which, initially our Task Force, and then others would be able to go out and make presentations,” says Hilarie Bass, Miami, FL, chair of the Section. “If we do nothing more than make people realize that, even though they think they are completely unbiased and race and gender neutral, that all of us are unconsciously affected by subliminal biases we do not even know exist.  The best cure thus far for this implicit bias is awareness.”

The Section will partner with the National Center of State Courts to address implicit bias in the judicial system. The “tool box” will include such resources as, (1) how to administer the IAT, (2) a video on the problem of implicit bias in the justice system, and (3) a follow-up outline that can be tailored to specific jurisdictions.

“We wanted to get people the resources they need to present these issues to their firms, bar associations or at judicial conferences,” adds Bass. “We are doing the final editing of the video so that our Task Force can go out and make presentations and eventually those in leadership and others can follow.” 

Ridgway says that the video of the plenary session will be posted on the Section’s website for members to watch.  “In addition to providing the ‘tool box’ on the website, our plan is to do four to eight showcase programs in high-profile venues to raise awareness.”

Practical Impact
U.S. District Judge Bernice B. Donald of the Western District of Tennessee, a member of the panel at the 2011 Winter Leadership Meeting and cochair of the Section’s ABA Resource Committee, particularly focused on the need for detailed voir dire to probe these issues.  She made the research come alive to the audience through a story from her courtroom about stereotyping.

“I remember selecting a jury once in a drug case,” recalled Donald.  “A public defender stepped up with her African-American defendant seated behind her at the table. She asked, ‘how many of you know what a drug dealer looks like?’ and the hands shot up. She didn’t say anything else. Then, you could see the hands slowly go down as the people recognized what they were saying. The defendant sitting at the table looked like someone right out of central casting. If she had asked them to describe a ‘drug dealer’ they would have described her client."

Keywords: litigation, implicit bias

Related Resources

  • » Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges? Notre Dame L. Rev.84:3 (2009). 

  • February 2, 2011 – This is the stuff that keeps the ABA relevant. It is important to attack the impediments to justice, wherever they exist and the subject of racial bias in the courtroom is the pink elephant in the room. It is ironic that we have difficulty acknowledging this subject precisely because of its perenially pervasive impact. But it will never go away unless and until we take the bull by the horns, as the ABA Litigation Section is courageously doing here. This is truly God's work. Best wishes and good luck to you all.


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