Abstract

Excerpted From: Neil A. Lewis, Jr., What the Law Can—and Cannot—Do About Bias in the Mind, 75 DePaul Law Review 513 (Winter 2026) (119 Footnotes) (Full Document)

In 1857, eighty-one years after declaring to the world that the United States is a nation in which “all men are created equal, that they are endowed by their Creator with certain unalienable rights”, the Supreme Court of that very nation ruled overwhelmingly (7-2) that all are not, in fact, equal. In what is now considered one of their most infamous decisions, the Court ruled that the rights and protections that people are entitled to in the U.S. are dependent on their ancestry. If one descended from “beings of an inferior order,” the Chief Justice wrote in the majority opinion, then one had no rights that the descendants of beings of an ostensibly superior order were bound to respect.

One hundred sixty-eight years have passed since the Supreme Court made its infamous Dred Scott v. Sandford ruling, but the fundamental issues that the case dealt with continue to be contested in modern life. As this Essay was written in the spring and summer of 2025, the current Supreme Court--as well as the lower courts--were in the midst of deciding a series of cases that hinged on the question of whether certain classes of people were entitled to due process rights in immigration proceedings or whether the executive branch of the federal government is entitled to deport them to prisons in other countries without due process. The contemporary case came about because the executive branch began deporting people of Venezuelan descent to a prison in El Salvador and justified doing so by invoking an old wartime statue. Some of those deportations occurred (by the executive’s own admission) due to “administrative error”. Despite the admitted errors, the executive asserted that it has no obligation to bring those it deported back to U.S. soil for due process proceedings because, even if the government did deport people in error, the immigrants it deported are violent gang members and thus they are not entitled to fundamental due process rights. Another way of interpreting the executive’s argument is: even in 2025, if one is a descendant of a group of people the U.S. government considers to be inferior, then one has no rights that the government must respect.

These arguments, from the conclusions reached by the Taney Court of the 1850s, to the arguments currently being made before the Roberts Court of 2025, are both fascinating and important to attend to for those interested in the interplay between the law and human psychology. They are illustrative of some of the pathways psychologists have suggested influence the development and maintenance of social biases in both individual minds as well as in broader society. The original Dred Scott case highlighted some of the ways in which individuals who hold deep-seated negative attitudes about members of groups who are different than themselves can create laws and policies that minimize the likelihood of them having to interact with those they deem inferior; similar processes continue to operate in modern life. And, the fact that essentially the same arguments are being made 168 years after Dred Scott illustrates that, once those laws and policies are enacted, they can have long-term effects on the biases that subsequent generations of people develop. In this Essay, I will walk through some of these pathways, and their implications for the perennial question of what role the legal system plays in addressing issues of prejudice and discrimination. In other words, I will attempt to answer the question of what the law can--and cannot--do about bias in the mind.

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If laws cannot directly change people’s intergroup attitudes, but egalitarian lawmakers want to use the legal and policy tools at their disposal to reduce biases and improve intergroup relations, what can they do? To begin answering that question, let us quickly consider an example of a legal decision that ended up influencing attitudes about the role of women in one of the most gender segregated work sectors: the military. In the United States v. Virginia, the Supreme Court ruled (7-1) that the Virginia Military Institute’s admissions policy of only admitting male students was unconstitutional. Opponents believed that making the school co-educational would ruin the institution, but Justice Ginsburg, who wrote the majority opinion, told VMI cadets as well as skeptics--including her dear friend and dissenter Justice Scalia--that they simply needed to “wait and see.” Ginsburg believed that using the law to integrate the school would improve the school over time and the students who attended it.

Was Ginsburg overly optimistic? Not exactly. Her hypothesis turns out to be well supported by the science of intergroup relations. When lawmakers and organizational leaders make decisions about how to structure social institutions--such as schools, workplaces, and neighborhoods--those laws and policies end up having profound implications for the intergroup attitudes that people develop. The key thing to be aware of, though--which was highlighted in Ginsburg’s “wait-and-see” commentary about the decision--is that those changes in attitudes take time. They take time because they operate through the indirect mechanisms of intergroup contact and perceived norms. If a law or policy changes, then one should not expect to see immediate changes in attitudes; short-run changes are unreasonable to expect. Instead, attitudes change over longer periods of time.

Part II discussed research documenting that implementing policies such as mandating short bias trainings does not produce lasting changes in biases. Well, research shows that changes in laws and policies that integrate institutions and provide opportunities for productive intergroup contact do produce long lasting and meaningful changes in bias. Consider, for example, laws that regulate universities’ ability to consider demographic characteristics when making admissions decisions (i.e., affirmative action laws). It turns out that by changing the demographic composition of those social institutions, those laws can end up changing long-term intergroup attitudes.

How do laws do this? First, they provide opportunities for meaningful intergroup interactions that students would not otherwise have the opportunity to have, given the segregated nature of the rest of society in which they grew up. Researchers who have studied these dynamics have found that living alongside people from a variety of racial and ethnic backgrounds in college ends up diversifying students’ friendship networks over time. That diversification effect matters in the long-run. Being regularly exposed to a variety of experiences and viewpoints opens people up to listening to and learning from each other. Researchers have found, for instance, that white college students who were randomly assigned to live with roommates from different racial backgrounds not only became less anxious in interracial settings over time, but also develop more positive intergroup attitudes and have more positive interracial interactions throughout their time in college.

Another group of researchers found comparable effects when examining what happens in medical schools. Specifically, they were curious about whether medical school diversity had any effects on the racial biases that doctors develop--biases that the medical profession has been trying to get rid of for decades. In this latter study, researchers conducted a six-year longitudinal study of physicians in training, and found that having frequent and quality interactions with black people throughout the medical training experience reduced both explicit and implicit bias of non-black physicians. Another notable finding in this latter study was that it directly compared the effect of diversity training to everyday interracial interactions. The researchers found that diversity training did not matter; however, the more routine opportunities for interactions did. This suggests laws that regulate medical schools’ ability to construct diverse classes of students matter for the kinds of biases that the physician workforce ultimately develops.

The reason that integration laws have such profound effects on intergroup attitudes is because they affect people’s opportunities to engage in what social scientists have begun calling “perspective getting.” For multi-ethnic and pluralistic democracies to function, people need opportunities to learn about and understand the range of perspectives and experiences that members of different groups have within the society. When people remain separated, they do not gain those perspectives; instead, they learn about other groups through mediated communication channels and thus get incomplete (and sometimes inaccurate) portrayals of different groups.

One way to overcome that limitation is to bring people together to get real perspectives rather than mediated caricatures that can fuel “affective polarization,” otherwise known as outgroup hate. A large and growing body of research has documented that when that happens, it bridges a remarkable number of intergroup divides, for example divisions over trans rights, divisions between Christians and Muslims in post-ISIS Iraq. On a more basic level, it brings together strangers who might otherwise think they have nothing in common and nothing to learn from each other.

Laws may not be able to solve all problems of intergroup relations, but they can at least facilitate the process of bringing people together to think through and talk about those problems. When laws facilitate that process of bringing people together, that alone can be enough to initiate the process of improving how members of those different groups think about and engage with each other, reducing the biases in each of our minds.

Department of Communication, Cornell University, Ithaca, NY, USA, Division of General Internal Medicine, Weill Cornell Medicine, New York, NY, USA, Jeb E. Brooks School of Public Policy, Cornell University, Ithaca, NY, USA.