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Excerpted from: Melissa L. Breger, Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial, 53 University of Richmond Law Review 1039 (May 2019) (241 Footnotes) (Full Document)


MelissaBregerThe exploration of implicit bias is flourishing within the academy. The particular intersection of law and implicit bias is a burgeoning area of thought-provoking study, combining concepts of law, legal decision making, brain science, psychology, and human behavior.

This article contributes to the existing body of literature by exploring implicit bias in trial courts, particularly in bench trials with a single decision maker. It addresses courts that encounter litigants who have appeared before the bench multiple times, such as in family courts and criminal courts. It also presents potential remedies for countering implicit bias in the courtroom. Ultimately, this article suggests exploring research pertaining to judicial diversity and its potential nexus to decreasing implicit bias in the courtroom.

Implicit biases have been described as the thoughts and preconceived notions that flow through our minds--often subconsciously--pertaining to particular people, groups, or situations. All humans harbor implicit biases in one way or another. Thus, it follows that judges themselves are not immune to implicit bias. Nonetheless, judges are specifically trained to compartmentalize and shield their decisions from any extraneous influences, including any of their own biases, implicit or otherwise. “[J]udges are expected to” cull through and “transcend such internal biases.”

Yet, even if judges attempt to shield their decisions from their explicit biases, implicit biases may seep into judicial decision making. This could be particularly consequential in trial courts when juries are not utilized, or when the same litigants appear before the same judges repeatedly.

How judges can recognize implicit bias--or even mitigate it--is the subject of ongoing research about human behavior and its relationship to bias. Research has identified ideas to reduce implicit bias ranging from the simple idea of identifying implicit bias as a reduction tool to novel ideas such as using technology, neuroscience, and virtual paraphernalia to reduce the effects of bias. This article addresses potential bias reduction remedies and also raises the idea that perhaps a diverse judiciary would be more prone toward reducing implicit bias. In other words, if a judge has faced bias and discrimination personally, would that judge then be more open to curbing his or her own biases professionally? If so, perhaps this awareness and sensitivity to implicit bias is an additional reason why diversifying the judiciary is beneficial, beyond creating a varied, multidimensional judicial voice comprised of multiple perspectives. This article urges further research to explore whether there is an actual association between a judge who has experienced bias personally and the amenability of that judge to identify and reduce implicit bias in courtroom decision making.

This article will address judicial diversity, implicit bias, and the potential ways in which they may be interrelated.

In Part I, the article will provide definitions of implicit bias and cite to the pertinent social science literature on the topic.

Part II will discuss how implicit bias impacts the legal system at the bench trial level, how litigants may perceive potential bias, and then proffer some suggestions for overcoming this bias.

In Part III, the article introduces the possibility that a judge who has personally been discriminated against in life could be more amenable to eradicating his or her own implicit biases. In other words, if a judge has faced bias on a personal level, that judge is acutely aware of the pernicious effects of bias and may therefore be more cognizant of his or her own personal biases in decision making. The article then concludes with an urging for further quantitative research.

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In sum, judges must be mindful of the inevitable implicit biases they harbor, as every human admittedly does. If judges could be made aware of their particularized implicit biases, they may be successful in minimizing these biases from seeping into their own decision making. Furthermore, as this article outlines, there are a whole host of other strategies for judges to try to reduce their implicit biases. Thinking even beyond such strategies, perhaps judges who have faced personal biases in their own lived experiences would more readily or more honestly embrace the exercise of reducing implicit bias and seek more insight into the effect that implicit bias has upon their case decisions. There are numerous reasons why diversifying the judiciary is a benefit to society as a whole. Reducing bias may be yet one additional and invaluable benefit to strive toward. Research awaits.

Professor of Law, Albany Law School. J.D., 1994, University of Michigan Law School; B.S., 1991, University of Illinois at Urbana-Champaign.