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8 Ohio St. J. Crim. L. 187 (2010-2011)
Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test

handle is hein.journals/osjcl8 and id is 189 raw text is: Guilty By Implicit Racial Bias: The Guilty/Not Guilty
Implicit Association Test
Justin D. Levinson,* Huajian Cai,** and Danielle Young*
Legal scholarship on racial discrimination has turned to the science of implicit
social cognition to explain how the human mind automatically manifests biases
against disfavored social groups.' Much of this discourse on implicit bias focuses
on the potential for massive, but hard to detect discrimination in the employment
context.2 Yet, other legal domains where implicit racial bias may lead to persistent
racial inequalities remain underexplored, most notably in criminal law.
Specifically, a crucial question still needs to be answered: do implicit biases affect
jury guilty/not guilty verdicts in racially biased ways?
Despite the broad incorporation of social science knowledge into legal
discourse, a critical chasm continues to deter legal scholarship from fully achieving
the social cognition-informed perspective it craves. Namely, legal scholarship on
implicit bias lacks law-focused science.3 Legal analysts have implicitly assumed
Copyright 0 2010 by Justin D. Levinson, Huajian Cai, and Danielle Young
Associate Professor of Law, University of Hawai'i. The authors would like to thank Susan
Serrano, Dina Shek, Kapua Sproat, and Elizabeth Page-Gould for their contributions to earlier stages
of this project. Sara Ayabe provided outstanding research assistance. Dean Aviam Soifer supplied
generous summer research support to the first author. Please address correspondence to Justin
Levinson, justinl@hawaii.edu, or Huaijan Cai, caihj@psych.ac.cn.
** Professor, Key Laboratory of Mental Health, Institute of Psychology, Chinese Academy of
Department of Psychology, University of Hawai'i.
See, e.g., Jerry Kang, Trojan Horses of Race, 118 HARv. L. REv. 1489, 1497-1539 (2005);
Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to
Discrimination and Equal Employment Opportunity, 47 STAN. L. REv. 1161 (1995); Justin D.
Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57
DUKE L.J. 345 (2007) [hereinafter Forgotten Racial Equality]; Antony Page, Batson's Blind-Spot:
Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. REv. 155 (2005).
2 See Samuel R. Bagenstos, The Structural Turn and the Limits ofAntidiscrimination Law,
94 CALIF. L. REv. 1 (2006) [hereinafter The Structural Turn]; Melissa Hart, Subjective
Decisionmaking and Unconscious Discrimination, 56 ALA. L. REv. 741 (2005); Krieger, supra note 1;
Ann C. McGinley, !Viva La Evolucion!: Recognizing Unconscious Motive in Title VIl, 9 CORNELL
J.L. & PUB. POL'Y 415 (2000); Deana A. Pollard, Unconscious Bias and Self-Critical Analysis: The
Case for a Qualified Evidentiary Equal Employment Opportunity Privilege, 74 WASH. L. REv. 913
(1999); Audrey J. Lee, Note, Unconscious Bias Theory in Employment Discrimination Litigation, 40
HARv. C.R.-C.L. L. REv. 481 (2005).
There have been a few empirical studies of implicit bias in the legal setting. See infra
Section 1I-C for an overview of this empirical legal scholarship.


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