The National Center for State courts have produced terrific resources for the problem of implicit bias and the courts.

“Helping Courts Address Implicit Bias” is available at: http://www.ncsconline.org/D_Research/ref/implicit.html

From NCSC:

The resources include the report of the three pilot educational programs on implicit bias and shorter excerpts from the large report that can be used as stand-alone pieces for presentations, judicial education programs, committee meeting discussions, and so forth. Specifically, the four resources include:

1. Helping Courts Address Implicit Bias: Resources for Education describes and evaluates the three pilot judicial education programs on implicit bias and offers lessons learned. It also includes appendices with resource materials for programs on implicit bias.

2. Addressing Implicit Bias in the Courts briefly describes the implicit bias phenomenon and outlines potential strategies that court professionals can use to combat implicit bias.

3. Implicit Bias: Frequently Asked Questions addresses some common questions about implicit bias and what contemporary science tells us about this cognitive phenomenon.

4. Strategies to Reduce the Influence of Implicit Bias identifies conditions that may give rise to implicitly biased judgment or behavior and details seven general approaches to address implicit bias in the courts based on current scientific research.

Related to this is a paper called “Implicit Bias in the Courtroom” that I co-authored with eight others including Tony Greenwald (inventor of the IAT), Judge Mark Bennett, and Pam Casey (principal researcher at the NCSC).

It’s been 20 years since Los Angeles burned in 1992, after the acquittal of the officers who beat Rodney King.  Not surprisingly, there are many community and academic events to take account.

I’ve been working with a Consortium of academics and NGOs to plan a conference on April 28, in Koreatown.

Download flyer | tentative program (coming soon)

Saturday, April 28, 2012 | 9am-5pm
Garden Suites Hotel, 681 S. Western Ave., LA, 90005

Other events:

• USC Conference, From the Ashes

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: