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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section

January 2017, vol. 47, no. 6

Chair’s column: A bias-free profession

The fairness and legitimacy of the legal system depends on it being bias-free. This means we lawyers and judges must recognize and set aside our own natural biases. But like many consequential challenges in life, this is easier said than done.

Until recently, explicit bias seemed to have dissipated, but the hyper-contentious presidential campaign has encouraged hate-mongers, xenophobes, and racists to be open about their prejudices. Meanwhile, implicit bias, which, whether we like it or not, exists within just about everyone, has entered into the national consciousness and evolved into a subject of some controversy, especially as it relates to law enforcement.

Implicit bias, also known as “unconscious” or “hidden” bias, refers to attitudes or stereotypes that unknowingly affect our decisions and behavior. Implicit bias happens quickly and without conscious thought, and can result in compromised judgments, degrading generalizations, derogatory attitudes, impaired objectivity, and unjustified perceptions about personal or demographic characteristics. These personal or demographic characteristics include a person’s gender, appearance, age, socio-economic class, sexual orientation, marital status, religion, physical ability, or race. Our personal background, culture, and life experiences all influence the implicit bias that we each carry.

It has been said that denying that you are subject to implicit bias is like denying your own reflection in a mirror. The human brain simply cannot be stripped of implicit biases as if it contained an electric current with a shutoff switch.

“Once lodged in our minds, hidden biases can influence our behavior toward members of particular social groups, but we remain oblivious to their influence,” observe Professors Mahzarin Banaji and Anthony Greenwald, co-authors of Blind Spot.

Implicit bias has emerged as a prominent issue in the legal profession, too. Every lawyer and judge has an ethical obligation, and, I suggest, a moral obligation as well, to, as much as humanly possible, halt the harm that implicit bias can unleash on our work and our lives.

Loosening the hold of implicit bias requires that we commit ourselves to recognizing and challenging our biases and predispositions, not to mention recognizing and challenging biases that are embedded in the legal system itself.

One way to begin unmasking hidden biases is to take the Implicit Association Test (IAT). In 1998, Banaji and Greenwald helped develop the IAT as an instrument to measure subconscious preferences for one type of person over another. The IAT is on-line, takes a few minutes, and is free. You may not agree with the results, but the IAT has been studied thoroughly. Find the IAT at <>.

Because implicit bias occurs outside our awareness, experts on the subject have said we can minimize its effects by slowing down our thought processes and responding in a deliberate rather than automatic fashion. Several studies confirm that taking the time to reflect and reason leads to less biased decision-making.

Studies also have found that we will not be able to defuse implicit bias unless we train ourselves to regularly challenge its possible presence. That is, we have to question our beliefs, our instincts, and our thought processes. And we have to do so as a matter of course. In addition, we can place ourselves in the shoes of those we see as “others,” which has the power to open us up to a balanced and less stereotyped perspective. Finally, we can take seminars and read books and articles on implicit bias. The more we understand implicit bias, the better equipped we will be to handle our encounters with it.

A bias-free profession is the goal. While it is essentially an impossible goal, justice demands that each of us try.

Rehearing: “A great many people think they are thinking when they are merely rearranging their prejudices.”–William James, 19th Century psychologist.

This column is republished by permission of the CBA Record, November 2016 issue.