Paul L. Caron

Tuesday, May 19, 2020

The Flaws Of Implicit Bias — And the Need For Empirical Research In Legal Scholarship And In Legal Education

Adam Lamparello (Former Associate Dean of Experiential Learning, Indiana Tech), The Flaws of Implicit Bias — And the Need for Empirical Research in Legal Scholarship and in Legal Education:

Nowhere is the necessity of using empirical research methods and statistics in formulating legal arguments more obvious than in recent legal scholarship concerning implicit bias.

By way of background, the concept of implicit, or unconscious, bias has recently enjoyed its ‘fifteen minutes of fame,’ garnering substantial support from many scholars, including some law professors, who contend that implicit biases cause discriminatory behavior, including behaviors that disparately impact traditionally marginalized groups. Indeed, scholars have advocated for programs and policies that instruct incoming law students and faculty regarding the existence of its implicit bias and its alleged role in perpetuating overt and subtle racism.

But there is a problem — a very big problem — that plagues legal scholarship in this area and that casts doubt on these policies.

Specifically, recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. In fact, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior.

You wouldn’t know this from reading the many law review articles concerning implicit bias, or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior.

Legal Ed Scholarship, Legal Education | Permalink


If, as the authors assert, “implicit bias is not predictive of biased behavior,” then the many very expensive, time consuming, and often mandatory diversity and/or inclusion sessions to which incoming college students are often subjected will not reduce incidences of racist, misogynistic, homophobic, or similar biased behavior, even if they do somehow “cure” bias.

For example, following the posting on Snapchat of two female students holding an empty banana peel, and a caption “Izzy: ‘I’m 1/16 black.,” my George Washington University launched a mandatory diversity and inclusion training for all new students. Despite this new program, and only about a year later, there appeared another Snapchat photo showing the front of a plantation gift shop with the caption “I wonder if they sell slaves.”

Similarly, the expensive, time consuming and often mandatory programs students are often required to participate in to change their views regarding women and consent, or biases regarding rape, do not seem to have any impact on reducing the number of actual rapes on campuses.

Perhaps, as some have previously suggested, these programs are largely for show and to mollify outraged students - much sound and fury signifying nothing - and should be reexamined in light of new evidence.

Posted by: LawProf John Banzhaf | May 19, 2020 2:20:17 PM

Implicit bias fuels the continuation of bias training. If its validity is debunked, trainers will lose their jobs.

As Upton Sinclair wrote: "It is difficult to get a man to understand something when his salary depends upon his not understanding it."

Posted by: AMTbuff | May 20, 2020 6:56:30 PM

Hi MM,

That is the most recent data available. This is a website for lawyers, law professors, and tax professionals. If you think I'm wrong about the data, feel free to present contrary evidence. Otherwise you are the one that's trolling, i.e. being argumentative without any substance or evidence to back up your bluster. Toodles.

Posted by: Unemployed Northeastern | May 22, 2020 1:19:21 PM


A) You posted this in the wrong thread. B) You still haven't cited any sources for the alleged "facts" you rambled off. And C) You have yet to actually address the substance of the article, namely the low unemployment in the legal profession TODAY, per the BLS.

And when you're challenged on the facts, say for example, on the Harvard endowment, you disappear and hide under your bed.

You shouldn't call other people trolls with a dismal track record like that, sir.

Posted by: MM | May 22, 2020 7:12:03 PM

Your post makes no sense UNE. What are you talking about?

Posted by: Scott Fruehwald | May 22, 2020 9:26:02 PM