Law students writing about Asian American legal issues should submit their paper to this competition. Here are the details:

Recently, I heard about a group focusing on Implicit Bias and Philosophy.  Looks interesting, and to be sure, some theoretical clarification about bias, grounded in what we know from the sciences, would be very useful. Patrick Shin has a paper called “Liability for Unconscious Discrimination? A Thought Experiment…. that’s on point.

This is old news, but back in January 2011, the Committee on Research of the AALS (American Assoc. of Law Schools) held a plenary session on implicit bias.  Tony Greenwald, one of the creators of the Implicit Association Test, was there, and both I and Gregory Mitchell commented. Prof. Greg Mitchell, UVA is one of the most strident critics of the science of implicit bias and its use in law and policy making. See, e.g., Gregory Mitchell & Philip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 Ohio St. L.J. 1023 (2006).

The AALS took a very long time getting the audio available, but I received a copy in late Fall, so I’m posting about it now (stream or download by (right) clicking on link and selecting “save as” from dropbox) (mp3 162MB).  After the Intro is Tony’s talk.

My comments start around 50:20, where I introduce a 4-quadrant model of importing implicit bias into the law (covered in Seeing through Colorblindness 2010).  My direct challenge to Mitchell and claims of politicization starts at 1:07:35.

Mitchell responds at 1:13:30.  Here are some highlights of his comments:

• 1:14:47 — calls implicit bias work not “junk science” but “wonderful science”
• 1:16:45 — doesn’t dispute at all that IAT measures construct-relevant variance
• 1:17:31 — states that IAT is measuring something important and doing it better than other implicit measures
• but there are problems
• 1:18:10 — measures only relative attitudes
• 1:21:00 — calls Tony (greenwald) “much smarter”
• 1:25:10 — challenges meta-analysis for using broad definition of behavior
• 1:26:17 — states that use as social framework evidence is no problem; it’s applying to specific cases that’s the problem
• 1:26:40 — calls himself an “anti-reductionist”
• 1:27:05 — jokes that he’s probably implicitly deceiving himself
• 1:27:30 — goal is to complicate things
• 1:27:40 — concerned about perverse effects

Given the tone of his writings and expert testimony work, I expected Mitchell to be much more critical and negative than he was in person.

As for anti-reductionism, who wants to be reductionist? That said, there is an inevitable trade-off between simplifying models and complex reality. The real question is why we insist on simplifications in some contexts but complexity in others. See, e.g., Gregory Mitchell, Why Law and Economics’ Perfect Rationality Should Not Be Traded for Behavioral Law and Economics’ Equal Incompetence, 91 GEO. L.J. 67 (2002) (preferring the simplicity of rational choice over the complexity of behavioral law and economics).

I gave a quick e-mail interview to Fast Company, about BART’s decision to cut off mobile communications to avoid a social media-assisted protest.  Here is the quotation:

Another expert on telecommunications law, Jerry Kang of the UCLA Law School, seconded the fact that BART’s decision took the transit provider into a legal gray area. According to Kang, “It is illegal for persons to ‘willfully or maliciously interfere with or cause interference to any radio communications.’ [...] But there is a difference between affirmatively jamming a signal sent by a carrier and deciding not to provide, repeat, or boost that carrier’s signal. Mobile providers have been granted licenses to use spectrum frequencies by the FCC. In addition to the spectrum, they need to put up antennas. Usually, they contract with private parties to site these antennas. Due to basic physics, the above-ground signals don’t penetrate underground. Therefore, the mobile providers must have created some agreement with BART to site some antennas (repeaters) underground.”

Kang notes that BART’s agreements and contracts with mobile providers will also influence the legality of the case. At time of writing, it is also unclear whether BART had agreements with individual providers that would allow them to shut off service in extreme circumstances. Messages seeking comment left by Fast Company for BART’s community relations department were not returned.

Here some other information that might be useful in understanding the situation that did not make it into the article:

The terms of that contract are critical, including the specifics about who owns what and what’s being leased. Assuming that the equipment is owned by the carriers, then there must be some site leasing arrangement. On the one hand, if BART was given some discretion to cut the signal, for example, for safety reasons, then the mobile providers would have no contract claim against BART. On the other hand, if BART reserved no discretion, there might be a plausible legal claim. Think about a guy who allows a cell tower to be built on top of his building. That lease doesn’t give him the right to pull the plug on the tower willy-nilly.

There might be two issues that interest your readers: public forum doctrine and net neutrality. First, the reason why BART is emphasizing in its official statement that “[n]o person shall conduct or participate in assemblies or demonstrations … on the paid areas of BART” is to avoid any finding that the BART areas and/or communications service enabled by BART’s repeaters constitute a “public forum”. If it’s not a public forum, then BART can take advantage of the fact that it owns the property. As the owner, it can reasonably regulate behavior, including speech, by folks on that property. By contrast, if it is a public forum, then BART gets no leverage from the property ownership and must confront harder First Amendment scrutiny.

Second, think about net neutrality, which asks whether Internet providers can pick and choose what content is carried or must they deliver all lawful content without discrimination? Most readers probably don’t appreciate that unless all their voice call is common carriage, their data access is not. Unless the FCC’s recent open Internet rules stick, there would be nothing necessarily unlawful with the mobile carriers pulling the plug on texts and messages simply because they disagree with their political message. If folks are outraged at BART doing this, shouldn’t they also be concerned about granting that power to the mobile carriers?

With Jennifer Mnookin, I codirect the pulse program at UCLA Law school. We recently uploaded video from the very interesting second annual symposium.

APILSA is sponsoring a talk at the law school on Asians in the Library, which I’ll be moderating.  Great panelists.  Promises to be an interesting conversation.

See also Asians in the Library post.

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A UCLA student recorded a video rant complaining about about Asians in the library, which went viral (caution re the anonymous comments–they may be offensive).  [Update:  according to the Sacramento Bee, the video may have been a trial balloon for a larger blog presence.]

Since I am teaching communications law and policy right now, this poses a teaching moment on subjects such as:

• the reach of social media;
• the right of reply (fairness doctrine v. youtube response videos);
• privacy (and the lack thereof) since the speaker’s name, address, phone number, and e-mail were almost immediately posted in various comments;
• intermediary liability (what UCLA might do regarding comments posted on its various sites and blogs; see 47 U.S.C. § 230(c)(2));
• “bad” content (racist speech v. swear words v. sexual indecency v. violence) and freedom of expression;
• racism, sexism, violence.

I have asked my students to consider:

• What advice do you give if you’re an in house lawyer to UCLA?
• What advice do you give if you’re the speaker’s lawyer?
• What advice do you give to someone who’s outraged?
• Are you really shocked by this? See the Rush Limbaugh clip below.

Interesting response videos (some of this may be PG-13):

• Chancellor Gene Block’s official response
• from 123waveatme
• very creative  musical response from jimmy (hat tip to one of my commlaw students)

Story on Rush Limbaugh:

Updated 1/9/2012 3:53 PM

I sometimes get inquiries from folks about  implicit bias.  I’ve written quite a bit about the subject.  Here’s a guide on which articles you might want to read.

Quick and Dirty Primers

• 2009 Implicit Bias Primer for Courts (brief primer written for the National Center for State Courts)

Detailed Introduction to the Science

• 2005 Trojan Horses of Race (first half of paper; this is the first major treatment in the law reviews)
• 2007 Implicit Social Cognition and Law (first half)
• 2010 Seeing through Colorblindness (first part)

Real world implications / experiments

• 2010 Are Ideal Litigators White? (showing correlation between implicit bias and evaluation of depositions)

Legal and Policy Implications

• Discrimination in evaluation
• 2010 Seeing through Colorblindness (after the science summary) (behavioral realism and four quadrants of possible response).
• Affirmative action / race consciousness
• 2006 Fair Measures (implications for “affirmative action”-like policies)
• Media Policy
• 2005 Trojan Horses of Race (second half of paper; mass media policy)
• 2012 Bits of Bias (implicit biases from media and cyberspace)
• Personal responsibility / culture
• 2011 New Cultural Defense (brief comment on chapter discussing whether implicit biases are “personal” or just “cultural”)
• 4 quadrants analysis — going beyond just the prejudice polygraph.
• 2012 Missing Quadrants (for a psychology audience)
• 2010 Seeing through Colorblindness (includes similar analysis, more for a legal audience)

Political Reactions

• 2010 Implicit Bias and Pushback from Left (brief essay re resistance from the Left)
• 2010 Seeing through Colorblindness (sections discussing Right wing backlash)

Implicit Bias in the Courtroom: Theoretical Problems and Concrete Solutions

Public Conference: March 3, 2011

The problems of overt discrimination have received an enormous amount of attention from lawyers, judges, and policy-makers. While explicit sexism, racism, and other forms of bias still exist, they have become less prominent and public as compared to earlier periods of our shared history.   But explicit bias and overt discrimination are only part of the problem.  Perhaps equally important are questions surrounding implicit bias — stereotypes or attitudes that affect our behavior, our understanding, and the decisions that we make, without our even realizing it.

How prevalent and significant are these implicit, unintentional biases? Over the past decade, cognitive and social psychologists have discovered novel ways to measure their existence.  A growing body of research strongly suggests that they are pervasive, large in magnitude, and have substantial real-world effects.   These fascinating discoveries, which have migrated from the science journals into the law reviews and popular media, are beginning to reshape fundamental understandings of discrimination and fairness.

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question:  What if anything should we do about implicit bias in the courtroom? How concerned should we be that judges, advocates, and jurors are coming to the table with implicit biases that influence how they interpret evidence, understand the facts, and make judgment calls?  In what circumstances are these risks most acute? Are there practical ways to reduce the effects of implicit biases? To what extent can awareness of these biases mitigate against their impact? What other ‘debiasing’ strategies might work?  The 2nd annual symposium of PULSE: Program on Understanding Law, Science, and Evidence at UCLA School of Law takes up these pressing questions in an exciting one-day symposium.

Bringing together leading scientists (including Anthony Greenwald, the inventor of the Implicit Association Test), federal and state judges, judicial educators, and legal academics, the Symposium will explore the scientific state-of-the-art regarding implicit bias research and examine the various institutional responses to date.  The Symposium will also raise possibilities and complications, ranging from the theoretical to practical, from the legal to the scientific.  The ultimate goal of this one-day event is to identify areas of consensus and dissensus so as to identify concrete solutions and next steps for researchers, educators, lawmakers, and the judiciary.  Our central goals are to better understand this phenomenon and the potential risks it poses to justice, and to explore what practical and institutional steps can be taken to minimize implicit bias in the courtroom.

Please join us on March 3, 2011, at the UCLA School of Law for what promises to be an intellectually exciting day.

To attend the conference, you must register.

7.0 hours MCLE credit available for Registrants
UCLA School of Law is a State Bar of California approved MCLE provider

Profs. Jerry Kang & Jennifer Mnookin

Co-Directors, PULSE: Program on Understanding Law, Science, and Evidence