Jerry Kang, Judicial Behavioral Realism about Implicit Bias 361-78, in Research Handbook in Psychology and Law (Rebecca Hollander-Blumoff ed. 2024).
Abstract
Over the past two decades, the rise of implicit social cognition has significantly altered how we think about discrimination and its causes. Legal academics have argued that these new empirical understandings, especially about implicit bias, should influence the law through “behavioral realism.” The goal of this chapter is not to describe how judges can prevent implicit biases from corrupting their own decisionmaking, a topic I have analyzed elsewhere. Instead, it is to describe how judges have incorporated empirical findings about implicit bias into their work as they hear specific cases and interpret the law. On the one hand, as discussed in Part II, a focus on the admissibility of scientific expert testimony reveals mixed results. On the other hand, as explained in Part III, it turns out that admissibility might matter much less than first imagined to the behavioral realism project.
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