The following articles are suggested reading for those seeking to understand more about implicit bias. Copies of the articles are linked to their titles.
1. Who, Me? Am I guilty of Implicit Bias? In this 13 page article Judge Dana Leigh Marks, past president of the National Association of Immigration Judges, describes instances in which she made assumptions about individuals appearing before her based on their physical characteristics and manner of speaking. Upon reflection she realized that her assumptions had led her to distrust the individuals’ veracity and motivations, possibly unfairly. In acknowledging her own implicit bias and distinguishing it from explicit bias, Judge Marks underscores the importance of minimizing the negative effects of implicit bias through consistent application of proven strategies. The Judges’ Journal, ABA Publication, Vol. 54 No. 4, 2015. [Doc. 220]
2. Judges: 6 Strategies to Combat Implicit Bias on the Bench, is an ABA article from Sept. 2016 that provides a summary of a 10 minute training video for judges produced by the ABA Commission on Diversity and Inclusion 360. It highlights 6 strategies to counter implicit bias, mentioning first and foremost: becoming aware that it exists. Additional constructive suggestions include: taking the Implicit Association Test (IAT) and actively seeking out examples of positive images to counter stereotypic images. [Doc. 230]
3. You Can’t Change what you Can’t See: Interrupting Racial & Gender Bias in the Legal Profession, an executive summary (36 pages) of a longer report prepared for the ABA Commission on Women in the Profession and the Minority Corp Counsel Assn. by Joan Williams, Marina Multhaup, Su Li, and Rachel Korn at the University of California Hastings College of Law. The ABA Commission on Women in the Profession had conducted a survey in April 2016, which garnered responses from 2,827 attorneys, both in-house and at law firms. This article reviews common indicators of implicit bias that may ring familiar to many women and minorities, such as “PIA” or “provide it again” where the lawyers not only need to prove that they can do the job, but must provide prove it again, and again. The article includes specific steps that could be taken by both law firms and in-house corporate counsel to interrupt implicit bias. The importance of not only hiring diverse candidates but in providing them opportunities to work on meaningful assignments is also discussed. [Doc. 30]
4. Implicit Bias in the Courtroom is a lengthier UCLA Law Review article from 2012 (63 pages). This article covers the negative impact of implicit bias in both criminal and civil cases. In criminal cases, it elaborates upon the well-documented disparate treatment of minorities on such matters as the police encounter, seeing a weapon more readily (even if there is none), disparity in the charges being brought, plea bargaining, setting bail, ruling on admissibility of evidence, and sentencing. In the section on civil litigation, the article focuses on the context of filing suit in a federal employment discrimination case and how implicit bias can impact that process. To those not familiar with such matters, the extent to which a judge’s preliminary rulings can terminate a case prior to discovery may be startling, where the judge makes decisions based on the plausibility of the claim with only the existing, pre-discovery information. “How are courts supposed to decide what is Twombly [fn] plausible when the motion to dismiss happens before discovery, especially in civil rights cases in which the defendant holds the key information?” According to the Court, “determining whether a complaint states a plausible claim for relief will…be a context-specific and that requires the reviewing court to draw on its judicial experience and common sense.” [Doc. 240]
5. Implicit Bias in Employment Litigation by Judge Nancy Gertner and Melissa Hart. This 28 page article from 2012 provides further insight into U.S.S.C. employment discrimination cases. It cites examples of when judicial discretion could play a crucial role, such as determining what is a mere “stray remark” made by an employer, what is an “honest belief” even when it’s inaccurate, and a how a termination might be deemed acceptable where the “same decision maker” was involved who hired the plaintiff. [Doc. 250]
6. Shadowing the Bar: Attorneys’ Own Implicit Bias a 2018 Berkeley La Raza Law Journal, by Chris Chambers Goodman (32 pages), details the results of various IAT experiments and the conclusions that can be drawn from them. “Research demonstrates that people frequently engage in motivated reasoning in selection decisions that we justify by changing merit criteria on the fly, often without conscious awareness. In other words, as between two plausible candidates that have different strengths and weaknesses, we first choose the candidate we like – a decision that may well be influenced by implicit factors – and then justify that choice by molding our merit
standards accordingly.” [Doc. 260]