AN INTRODUCTION TO IMPLICIT BIAS
Understanding and reducing implicit bias in the legal profession has become a priority among many judges, lawyers, academics, and legal professional associations. This reflects the growing consensus that the legal community needs to know what implicit bias is, and that implicit bias among judges, advocates, litigants and jurors, interferes with the goals of fairness and impartiality in the civil and criminal justice systems.
In 2012, ten legal academics, scientists, researchers, and a sitting federal judge, wrote an article entitled “Implicit Bias in the Courtroom.” They asked the question “What, if anything, should we do about implicit bias in the courtroom?” That question has resonated though the profession.
In 2016, the American Bar Association (ABA) passed Resolution 116 which advocated that courts instruct juries on implicit bias, and take actions to reduce implicit biases of juries. In August 2017, the ABA passed Resolution 121 urging all courts to develop plans of action to make debiasing training an important part of both initial judicial training and continuing judicial education. Resolution 121 also urged state and local bar associations to work with courts to offer debiasing training to judicial officers free of cost and at the convenience of the courts.
In 2018, the ACBA responded by approving a project requested by its Women in the Law Division (WLD) to assist persons providing Continuing Judicial Education (CJE) programs in integrating implicit bias content in their programs regardless of topic. To accomplish this goal, the WLD recruited and trained a panel of ACBA members who work with CJE planners to generate ideas and offer resources for incorporating implicit bias content into their programs.
The WLD also convened a sub-committee to provide information and resources about implicit bias through the ACBA’s website. This Implicit Bias website contains this Introduction about what implicit bias is, why members of the legal profession have become interested in these implicit biases, the existence of tools for interrupting specific biases against various classifications of people; and strategies for accomplishing the debiasing of court proceedings and other activities occurring in the legal profession.
Following this Introduction is a section on Helpful Articles which contains summaries of articles and materials that the sub-committee selected as the most useful for judges and lawyers to learn about implicit bias.
This website will also provide additional guidance on how implicit biases occur and how they should be addressed in criminal cases and in family law cases. Such material is forthcoming.
The last section contains a bibliography of articles and authorities selected by the sub-committee as relevant to members of the legal profession. The literature on implicit bias has multiplied in the past six years. It is the intention of the WLD to periodically update the materials and bibliography on this website.
1 The authors of “Implicit Bias in the Courtroom,” 59 UCLA Law Rev. 1124 (2012), are Jerry Kang, Judge Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson, and Jennifer Mnookin. That article is summarized below in the Helpful Articles Section of this website. [Doc. 240]