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Hastings Law Journal

Abstract

This Article examines the "fit" between the law of discrimination and the science of implicit bias, including consideration of the legal standards that apply and a broad overview of the sociological and psychological literatures that are relevant to those standards. The Authors first set forth the legal framework within which the psychological and sociological research literatures must be considered. Although the legal standard is not entirely unambiguous, scientific research on implicit bias appears relevant to the basic empirical issues put in issue by the law. The Authors then review the general research literature on the phenomenon of "implicit biases" in order to determine whether it is sufficient to support expert opinion on this subject and, if so, in what ways. This review leads the Authors to conclude that the research available on implicit bias should be admitted in order to inform jurors generally about the existence of implicit bias, so that they might determine whether it was a "motivating factor" in the decision at issue in the case. The research literature, however, does not support allowing the expert witness to opine regarding whether the particular decision at issue was itself a result of implicit bias.

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