SuperBias: The Collision of Behavioral Economics and Implicit Social Cognition

This Article explores what happens when behavioral law and economics and implicit social cognition collide, and presents an empirical study designed to test the hypothesis that racial stereotypes overpower behavioral economic phenomena...Section II details behavioral law and economics as well as implicit social cognition. It examines the social science basis of each field and explores the similar cognitive mechanics underlying them. Section III investigates what happens when race is introduced into economic decision-making and considers how racial stereotypes may specifically affect economic decisions already at risk of irrationality. Research has documented that economic decision-making is often discriminatory; new evidence suggests that these decisions may be predicted by implicit racial bias...Building on these rationale for considering behavioral economics and implicit social cognition together, section IV presents the empirical study I conducted to test the hypothesis that implicit racial stereotypes can overpower economic-based cognitive biases...Section V considers the results of the empirical study in light of behavioral law and economics literature as well as implicit bias scholarship. It proposes that all discussions of behavioral economics must become race competent and provides a research agenda for future empirical study. Section VI concludes

Valuing Cultural Differences in Behavioral Economics

Behavioral economic research has tended to ignore the role of cultural differences in economic decision-making. The authors suggest that a systematic bias affects existing behavioral economic theory-- cognitive biases are often assumed to be universal. To examine how cultural background informs economic decision-making, and to test framing effects, morality effects, and out-group effects in a cross-cultural study, the authors conducted an experiment in the United States and China. The experiment was designed to test cultural and cognitive effects on a fundamental economic phenomenon-- how people estimate the financial values of objects over time. Results of the experiment demonstrated dramatic cultural differences in financial value estimations, as well as on the influence of variables such as framing effects. Chinese participants made higher object value estimates than Americans did, even when adjusting for differing national inflation rates. In addition, the results showed that contextual information, such as framing, morality information, and group membership affected judgments of financial values in complex ways, particularly for Chinese participants. The results underscore the importance of understanding the influence of cultural background on economic decision-making. The authors discuss the results in the context of behavioral law and economics, and propose that importing cultural competence into behavioral models can lead to cognitive debiasing, both temporary and permanent

The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion

The Article is organized as follows: Part II provides an introduction to implicit bias research, orienting readers to the important aspects of implicit bias most relevant to prosecutorial discretion. Part III begins the examination of implicit bias in the daily decisions of prosecutors. The Part presents key prosecutorial discretion points and specifically connects each of them to implicit bias. Part IV recognizes that, despite compelling proof of implicit bias in a range of domains, there is no direct empirical proof of implicit bias in prosecutorial decision-making. It thus calls for an implicit bias research agenda designed to further examine how and when implicit bias affects prosecutorial decision-making, including studies designed to test ways of reducing the harms of these biases. It then begins a necessarily early look at potential remedies for the harms associated with implicit bias in prosecutorial discretion

The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion

The Article is organized as follows: Part II provides an introduction to implicit bias research, orienting readers to the important aspects of implicit bias most relevant to prosecutorial discretion. Part III begins the examination of implicit bias in the daily decisions of prosecutors. The Part presents key prosecutorial discretion points and specifically connects each of them to implicit bias. Part IV recognizes that, despite compelling proof of implicit bias in a range of domains, there is no direct empirical proof of implicit bias in prosecutorial decision-making. It thus calls for an implicit bias research agenda designed to further examine how and when implicit bias affects prosecutorial decision-making, including studies designed to test ways of reducing the harms of these biases. It then begins a necessarily early look at potential remedies for the harms associated with implicit bias in prosecutorial discretion

Deadly \u27Toxins\u27: A National Empirical Study of Racial Bias and Future Dangerousness Determinations

Since the beginning of the modern Death Penalty Era, one of the most important—and fraught—areas of capital punishment has been the so-called “future dangerousness” determination, a threshold inquiry that literally rests the defendant’s life or death on jurors’ predictions of the future. An overwhelming majority of capital executions have occurred in jurisdictions that embrace the perceived legitimacy of the future dangerousness inquiry, despite its obvious flaws and potential connection to the age-old racial disparities that continue to plague capital punishment. This Article presents, and empirically tests, the hypothesis that jurors’ future dangerousness assessments cannot be separated from their racial and ethnic biases held against Black and Latino defendants. It does so by examining two pathways whereby future dangerousness judgments may function in inappropriately racialized ways: First, it studies the domain of implicit bias and investigates, using Implicit Association Tests (IATs) we designed, whether jurors implicitly and automatically associate future danger with Black and Latino men, and conversely, associate future safety with White men. Second, it considers the domain of explicit bias and measures whether jurors’ self-reported racial animus may function as a driving force in future dangerousness judgments. The results of the studies show that, indeed, both implicit and explicit biases are inexorably linked with future dangerous determinations. After presenting the studies in detail, the Article situates the findings within death penalty jurisprudence and concludes that future dangerousness can no longer pass constitutional muster as a mandatory or permissible factor in capital cases

Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes

American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars must seek to fully understand the role of implicit bias in judicial decision-making. Research from the field of implicit social cognition has long documented negative implicit biases towards a wide range of group members, some of whom may well be harmed in various ways across the legal system. Unfortunately, legal scholarship, and particularly empirical legal scholarship, has lagged behind in terms of investigating how implicit biases, beyond Black and White, may lead to unfair outcomes in a range of legal areas, including those relevant to judges’ potentially landmark legal decisions. This Article proposes, and then empirically tests, the proposition that even today negative implicit biases may manifest in federal and state judges against even so-called privileged minorities, such as Asian- Americans and Jews. We present the results of an original empirical study we conducted on 239 sitting federal and state judges (including 100 federal district judges representing all Circuits) and consider the ways in which these judicial implicit biases may manifest. The study found that the judges harbored strong to moderate negative implicit stereotypes against Asian-Americans and Jews, while holding favorable implicit stereotypes towards Whites and Christians. These negative stereotypes associate Asians and Jews with immoral traits, such as “greedy,” “dishonest,” and “controlling,” and associate Whites and Christians with moral traits, such as “trustworthy,” “honest,” and “giving.” The study further found that federal district court judges sentenced Jewish defendants to marginally longer prison terms than identical Christian defendants and that implicit bias was likely the cause of the disparity. This Article suggests, and the empirical study supports the claim, that automatic biases and cognitions indeed influence a much broader range of judicial decisions than has previously been considered