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Excerpted From: Justin D. Levinson, Superbias: The Collision of Behavioral Economics and Implicit Social Cognition, 45 Akron Law Review 591 (2011-2012)(257 Footnotes) (Full Document)


JustinDLevinson02Legal scholars have thrived in incorporating the mind sciences into legal theory, particularly on two fronts. Behavioral law and economics, relying in part on the Nobel Prize winning roots of Prospect Theory, has made great strides in providing a realist critique of Law and Economics. Implicit racial bias scholarship, emerging from the field of implicit social cognition, has successfully challenged the law's purported race-neutrality by showing that people automatically exhibit racially biased attitudes. The prominence and rapid growth of these two fields of legal scholarship, however, has overshadowed the fact that, despite their social scientific similarities, scholars have largely failed to consider what happens when phenomena from the two areas collide. In particular, scholars have not investigated whether powerful implicit racial stereotypes may trump even well-established behavioral economic principles when decision-makers make risk allocation decisions. Without considering and empirically testing whether behavioral economic principles yield to racial stereotypes, legal scholars not only risk embracing an incomplete model of human behavior, but they also risk advocating policies that may actually reinforce people's non-conscious need to maintain social and racial inequality. The interaction between behavioral economics and implicit social cognition must therefore be explored.

Behavioral economic theory has been embraced as a sophisticated behavioral update to legal decision-making models. It has introduced an overwhelming array of evidence that, rather than following rational wealth maximizing principles as homo economicus (or rational wealth maximizers), people make decisions in predictably irrational ways. A few of the more prominent examples of this legal scholarship include expositions of hindsight bias, anchoring effect, and the endowment effect, among others. These cognitive biases and heuristics demonstrate that people are quite susceptible to situational influences, including whether outcome information is known (people overestimate the ex-ante likelihood of events occurring) and whether “anchor” amounts are given (people cannot ignore the effect of the anchor on their economic calculation). Each of these deviations from rationality has implications for legal theory designed to predict and shape human behavior, and scholars have celebrated the building of a more accurate model of decision-making.

But what if this model, despite its improvement on the law and economics paradigm, overlooks the interaction between economic decision-making and implicit racial biases? One risk of a model that focuses too narrowly on cognitive biases, without considering racial context, is that it might propose legal responses to these cognitive biases that may work to further subordinate already subordinated groups. This Article considers, and empirically tests, behavioral economic phenomena in light of implicit social cognition research. It argues that an undiscovered piece of human “irrational” behavior is that it systematically yields to racial stereotypes, and employs an empirical study to test this argument. The results of the study are mixed, but in some circumstances confirm the hypothesis that racial stereotypes are powerful enough to blunt economic irrationalities, and therefore function as what I call a “SuperBias”-a bias so powerful that it modifies even existing biases. Building on these results, the Article proposes the creation of a stereotype competent model of behavioral law and economics.

Consider a brief example of the way stereotype information may act to overcome the predictably irrational effects of the “hindsight bias.” Research on the hindsight bias shows consistently that people are unable to disregard known outcome information in making judgments of the likelihood of a certain event occurring. Thus, a juror in an attempted murder trial who knows that the victim survived an attack (as jurors would) will be likely to overestimate the likelihood that the victim would survive the attack. And because “intent to kill” is a key element of the crime of attempted murder, jurors who underestimate the likelihood of the victim's death may similarly underestimate the defendant's level of intent in striving to cause death. No matter how hard the judge tries to offset the effects of hindsight, jurors will overestimate the chances of the victim's survival, and therefore may be more likely to acquit the defendant. Now factor in implicit racial bias. In the same hypothetical attempted murder trial, if a young black male perpetrator harms the victim, jurors may be less likely to be influenced by the hindsight information (that the victim survived) because they are more influenced by the stereotype of the perpetrator-that he is an aggressive killer-than the hindsight information. Thus, hindsight bias will result in extra acquittals for white defendants, while racial stereotypes will counter the hindsight bias relating to black defendants. Legal interventions intended to counter hindsight bias could exacerbate the effects.

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. The Article is organized as follows. 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. The emerging social cognition theory called System Justification Theory helps to explain why people may discriminate as part of an unconscious need to maintain the social and economic status quo. This unconscious need may directly conflict with decision-makers' other implicit motivations that drive supposedly race-neutral cognitive errors described by behavioral economics.

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. Participants in the study read information (related to an attempted murder trial) that was designed to trigger both hindsight bias and anchoring effect. The race of the defendant was varied. It was hypothesized that when participants read about a black defendant, both hindsight bias (related to the likelihood of the victim dying) and anchoring effects (relating to minimum jail sentence) would be diminished significantly. The results of the study confirmed the first hypothesis: bucking hindsight bias, mock jurors were significantly more likely to believe that a crime victim would die when shot by a black perpetrator compared to a white perpetrator. It was less clear, however, whether they would adhere to a given anchor when they were asked the minimum sentence for a crime and the crime had been committed by a black male.

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.

. . .

Legal scholarship is in the midst of a sophisticated and fruitful updating of its model of human decision-making. Recent decades have brought vast improvements to legal theory that have begun to recognize the true and complex nature of the human mind. Yet for all the successes of this updating, it has not been perfect. In the same way that other areas of scholarship have overlooked the role of race, culture, and inequality, behavioral economics has done the same. It has assumed that even behavioral deviations from rationality are connected to a drive for individual self-enhancement and improvement that overlooks the role of powerful cultural and social forces on the human mind. Fortunately, implicit social cognition research has separately brought to light many of the effects of these powerful forces. This inequality-focused mind science has sent a powerful message to scholars concerned about racial justice. Yet the same message has been missed even by those who understand its sophisticated empirical research and statistical methods. With the embracing of a race-competent model of behavioral law and economics, scholars will be taking a major step in bringing an accurate and fair model of decision-making to the law.

Associate Professor of Law and Director, Culture and Jury Project, University of Hawai'i at M noa.