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Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering 02__LEVINSON.DOC 12/6/2007 8:48:07 AM FORGOTTEN RACIAL EQUALITY: IMPLICIT BIAS, DECISIONMAKING, AND MISREMEMBERING JUSTIN D. LEVINSON† ABSTRACT In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this phenomenon perpetuates racial bias in case outcomes. To test the hypothesis that judges and jurors misremember case facts in racially biased ways, I conducted an empirical study in which participants were asked to recall facts of stories they had read only minutes earlier. Results of the study confirmed the hypothesis that participants remembered and misremembered legally relevant facts in racially biased ways. For example, participants who read about an African-American story character were significantly more likely to remember aggressive facts from the story than participants who read about a Caucasian story character. Other results indicated that these racial memory biases were not related to explicit racial preferences. The presence and power of implicit memory bias in legal decisionmaking raises concerns about the legal system’s ability to achieve social justice. Multifaceted responses, including debiasing techniques and cultural change efforts, are needed. Debiasing Copyright © 2007 by Justin D. Levinson. † Assistant Professor of Law, University of Hawai‘i, William S. Richardson School of Law. The author would like to thank Charles Lawrence, Jerry Kang, Liz Page-Gould, Antony Page, Eric Yamamoto, Melody MacKenzie, Debra Lieberman, Susan Serrano, Leina‘ala Seeger, Carl Christiansen, and Jeanine Skorinko for their comments and support. Dean Aviam Soifer provided generous summer research support. Michael Colon, Sonny Ganaden, and Dina Shek provided outstanding research assistance. 02__LEVINSON.DOC 12/6/2007 8:48:07 AM 346 DUKE LAW JOURNAL [Vol. 57:345 techniques, which use interventions such as diversity training to lessen the negative effects of implicit bias, hold promise for at least temporarily reducing the harms of implicit memory bias. The response with the greatest permanent potential, however, requires embracing cultural responsibility for the presence of negative racial stereotypes and coordinating efforts for change. TABLE OF CONTENTS Introduction............................................................................................. 347 I. Implicit Racial Bias Exposed: Psychological Evidence and Legal Discourse .................................................................... 351 A. Psychological Evidence of Implicit Racial Bias..................... 353 1. Implicit Social Cognition ..................................................... 354 2. Explicit Racial Preference, Implicit Bias, and Social Dominance ......................................................... 360 3. Cultural Responsibility for Implicit Racial Attitudes and Stereotypes............................................................. 362 B. Connecting Implicit Biases and Legal Theory....................... 364 II. Misremembering Legal Facts in Racially Stereotyped Ways..... 373 A. Memory Errors Are Normal and Meaningful........................ 374 B. Stereotypes Drive Recall Errors and False Memory Generation.............................................................................. 376 C. Legal Memories Gone Wrong: Source Attribution Errors..................................................... 381 D. Connecting Memories to Decisionmaking ............................. 384 E. Can Deliberations Cure Memory Errors?.............................. 387 III. Forgotten Equality: An Empirical Study...................................... 390 A. Methods...................................................................................... 390 1. Participants............................................................................ 390 2. Materials ................................................................................ 391 B. Hypotheses................................................................................. 397 C. Limitations of the Study ........................................................... 397 D. Results: Failed Memories and Racial Minorities................... 398 1. Remembering and Misremembering Aggression in The Confrontation......................................................... 398 2. Remembering and Misremembering Mitigating Factors in The Confrontation....................................... 401 3. Instances of Failed Recall and False Memory in Employment Story........................................................ 402 4. Implicit Memory Bias and Explicit Racial Preferences ... 404 02__LEVINSON.DOC 12/6/2007 8:48:07 AM 2007] FORGOTTEN RACIAL EQUALITY 347 IV. Implicit Biases, Cultural Responsibility, and Debiasing............. 406 A. Debiasing of Memory Errors and Stereotypes ...................... 407 1. Improving Memory Accuracy and Reducing False Memories ....................................................................... 407 2. Temporarily Reducing Implicit Biases............................... 411 3. Future Directions.................................................................. 417 B. Cognitive Biases, Cultural Change, and Social Justice ......... 417 Conclusion............................................................................................... 420 Appendix A: Dependent Variable Measures..................................... 422 Appendix B: Individual Recall Results............................................... 424 THE CONFRONTATION Tyronne, a 23 year old African American man, first encountered James when they accidentally bumped elbows in a crowded bar. An hour after leaving the bar, Tyronne and a friend spotted James outside a local diner. They approached James slowly, and Tyronne said: “Why did you bump into me back there?” James said: “Hey listen . .it sounds like you had too much to drink. Let it go.” Tyronne’s friend took a step towards James and said: “What if we won’t let it go?” When he took another step towards James, James moved forward, shoved him with both hands, and said: “Get out of my face.” Without hesitating, Tyronne then stepped forward and tried to shove James in the chest, but missed and hit him in the face. James fell back slightly. He then turned around, took a couple steps away from Tyronne, and appeared to reach for something in his pocket. Tyronne quickly pursued James from behind and punched him in the side of the head. James fell to the ground. Tyronne’s friend stepped forward and kicked James. INTRODUCTION Judges and jurors may unintentionally and automatically “misremember” facts in racially biased ways during all facets of the legal decisionmaking process. In delegating both factfinding and decisionmaking authority to judges and juries, the American legal system makes a supposedly elementary but unsupported psychological assumption—that these individuals can cognitively process, evaluate, and weigh the facts that were presented during 02__LEVINSON.DOC 12/6/2007 8:48:07 AM 348 DUKE LAW JOURNAL [Vol. 57:345 trial.1 The accuracy of this assumption has been challenged by behavioral law and economics scholars, who have demonstrated that cognitive biases affect the way people process information.2 Yet perhaps an even more vulnerable part of this psychological assumption is implicated by systematic biases in memory recall. Unlike most cognitive biases, which are assumed to operate independent of race, unintentionally biased memory failures by judges and jurors may propagate racial biases through the legal process itself. Despite this challenge to basic assumptions of legal decisionmaking, scholarship has not yet examined whether judicial factfinders and decisionmakers systematically “misremember” facts in racially biased ways. This Article undertakes such an examination and concludes that implicit memory biases taint the legal decisionmaking process. Since the late 1980’s, legal scholars have identified various ways in which unconscious or implicit racial biases3 influence the legal 1. See Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 551 (2004) (“The prevailing trial design rests on the assumption that the complex and vast amount of testimony, presented over the course of days and weeks, can be encoded, retained, and retrieved from memory in an unaltered state. [But] [t]he findings from coherence-based reasoning research are markedly inconsistent with these assumptions.”). 2. These scholars aim to create a psychologically accurate model of legal decisionmaking. See Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1489–1508 (1998); Kim A. Kamin & Jeffrey J. Rachlinski, Ex Post ≠ Ex Ante: Determining Liability in Hindsight, 19 LAW & HUM. BEHAV. 89, 99–101 (1995); Russell Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L. REV. 1227, 1256–92 (2003); Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV. 571, 588–95 (1998). Some cognitive biases, such as the hindsight bias, operate in close connection with memory processes. See Rachlinski, supra at 575. By separating behavioral law and economics discussions from my discussion of implicit memory biases, I do not mean to imply that other cognitive biases do not involve memory.
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