The Journal of The DuPage County Bar Association

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Implicit Bias in the Law: An Important Focus for 2017
By Ted A. Donner

During the first Presidential Debate in the 2016 general election, Hillary Clinton mentioned implicit bias in answer to a question posed by moderator Lester Holt. Holt asked her, “Secretary Clinton, last week, you said we’ve got to do everything possible to improve policing, to go right at implicit bias. Do you believe that police are implicitly biased against black people?” Her response was immediate: “Lester, I think implicit bias is a problem for everyone, not just police. I think, unfortunately, too many of us in our great country jump to conclusions about each other. And therefore, I think we need all of us to be asking hard questions about, you know, why am I feeling this way?”1

President-Elect Donald Trump criticized Clinton’s response as “a bad thing” when he appeared at a rally a few days later. “[I]n our debate this week, she accuses the entire country – including all of law enforcement – of implicit bias,” he said, “essentially suggesting that everyone, including our police, are basically racist and prejudiced. You heard that. And I’m standing there in front of this massive crowd of people...And I said to myself: ‘Did she really say that?’ She said it. It’s a bad thing she said...How can Hillary Clinton try to lead this country when she has such a low opinion of its citizens...? How can she lead this country when she thinks America is full of racists...?”2

However tone deaf Secretary Clinton and President-Elect Trump both were in their choice of words at the time, their dialogue highlighted a struggle that most of us are having these days. Whether we lament our own prejudices or worry over those of others, the political climate these last few years has certainly compelled all of us to rethink what we think. President- Elect Trump may not have been wrong to express his surprise in Secretary Clinton’s choice of words but Secretary Clinton was, likewise, pointing out something important. When we are aware of our own biases, when we acknowledge or admit our own prejudices, we are dealing with what social scientists consider “explicit bias.” When we talk about biases that affect our judgment on a less conscious level, we are talking about “implicit bias,”3 the bias that Secretary Clinton was referencing during that first debate.

It may be a “bad thing” to point out, but it is indeed increasingly clear that all of us, regardless of how we see ourselves, harbor implicit biases. As Professor Mahzarin Banaji and Professor Anthony Greenwald explained in Blindspot: Hidden Biases of Good People,4 even the most ostensibly open-minded among of us can be quick to stereotype:

“A father and his son are in a car accident. The father dies at the scene and the son, badly injured, is rushed to the hospital. In the operating room, the surgeon looks at the boy and says, ‘I can’t operate on this boy, he is my son.’ If your immediate reaction is puzzlement, that’s because automatic mental associations caused you to think ‘male’ on reading ‘surgeon.’ The association surgeon = male is part of a stereotype...”5

Banaji and Greenwald’s work started at Harvard University with Project Implicit, a program they developed in 1998 with Professor Brian Nosek which studied how people react to different images on screen over a period of 10-15 minutes.6 In the almost 20 years since, over five million people have taken the Implicit Association Test (“IAT”) online, and the results have been fairly clear. Most everyone appears to harbor at least some implicit bias – bias which we as attorneys – like judges, police officers and others involved in the law – would do well to study. As Jolls and Sunstein concluded in their article on “The Law of Implicit Bias”:

““[I]mplicit bias as measured by the IAT has proven to be extremely widespread.... It might not be so disturbing to find implicit bias in experimental settings if the results did not predict actual behavior, and in fact the relationship between IAT scores and behavior remains an active area of research. But we know enough to know that some of the time, those who demonstrate implicit bias also manifest this bias in various forms of actual behavior.... In the employment context in particular, even informal differences in treatment may have significant effects on employment outcomes, particularly in today’s fluid workplaces. If this is so, then the importance to legal policy is clear. If people are treated differently, and worse, because of their race or another protected trait, then the principle of anti-discrimination has been violated, even if the source of the differential treatment is implicit rather than conscious bias”7

The subject thus deserves more study and so the DuPage County Bar Association has a number of interesting programs lined up in the coming months through which our members can do just that. Linda Rothnagel of Prairie State Legal Services is presenting “Cognitive Processes and the Law: Using and Addressing Biases” at this year’s Mega Meeting, for example. Our Diversity Program Chair, Erin Birt, has scheduled CLE programs on gender bias for February, our Professional Responsibility Section, chaired by Glenn Gaffney, will be looking at the new ABA Model Rules on Discrimination and Harassment (Amended Model Rule 8.4) in March, and our Law Day Chair, Melissa Piwowar, is planning programs for April and May around the Law Day theme for this year: “The Fourteenth Amendment,  ransforming
American Democracy.”

Don’t know whether you’d find these programs useful? Think about what Banaji and Greenwald went on to say about their car accident example:

“For those who are strong believers in women’s equal rights and abilities, being tripped up by this riddle is especially annoying. Feminists are not likely to suspect that they possess the automatic surgeon = male association – but most of them do. Consider that feminist just a bit further. Why should he base his thinking on a stereotype that clashes with his personal views?”

“Did you just discover,” Banaji and Greenwald then asked, “that you have a feminist = female association?”8

1. Aaron Blake, The First Trump-Clinton Presidential Debate Transcript, Annotated, Washington Post (September 26, 2016).
2. Jenna Johnson, Trump Responds to Clinton Implicit Bias Comments, Washington Post (September 28, 2016).
3. See, e.g. Banaji and Greenwald, Blindspot: Hidden Biases of Good People (2013); Ross, Everyday Bias: Identifying and Navigating Unconscious Judgments in Our Daily Lives (2014); Levinson and Smith, Implicit Racial Bias Across the Law (2012).
4. Mahzarin R. Banaji and Anthony G. Greenwald, Blindspot: Hidden Biases of Good People (2013).
5. Mahzarin R. Banaji and Anthony G. Greenwald, Blindspot: Hidden Biases of Good People 71-72 (2013).
6. https://implicit.harvard.edu/implicit/aboutus.html
7. Christine Jolls and Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969, 970 (2006)
8. Mahzarin R. Banaji and Anthony G. Greenwald, Blindspot: Hidden Biases of Good People 71-72 (2013).

Ted A. Donner is the President of the DuPage County Bar Association. The owner of Donner & Company Law Offices LLC in Wheaton, Illinois, his practice is concentrated in commercial litigation and transactional work for small business. Recognized as DCBA’s Lawyer of the Year in 2011, he has been AV-Rated and recognized by Super Lawyers in each of the last ten years. He is an Adjunct Professor with Loyola University Chicago School of Law and the author of two treatises for Thomson Reuters (West), including Jury Selection: Strategy & Science and Attorneys Practice Guide to Negotiations.


DuPage County Bar Association

OFFICERS
Ted A. Donner
President
Gerald A. Cassioppi
President-Elect
J. Matthew Pfeiffer
2nd Vice President
Stacey A. McCullough
3rd Vice President
James J. Laraia
Immediate Past President
Shawn S. Kasserman
General Counsel
Richard J. Veenstra
Assoc. Gen’ l Counsel
John A. Pleviak
Secretary/Treasurer
Tricia Buhrfiend
Assist. Treasurer


DIRECTORS
Gregory P. Adamo
Terrence Benshoof
Mark S. Bishop
Ashley M. Bump
Patrick L. Edgerton
David S. Friedland
James S. Harkness
Wendy M. Musielak
John J. Pcolinski, Jr.
Amalia M. Romano
Arthur W. Rummler

Executive Director
Robert Rupp
 
ISBA Liaison
Kent A. Gaertner


Legislative Liaison

A. John Pankau, Jr.


Brief Editor

James L. Ryan
 
 
DCBA Brief