Implicit Bias, Behavioral Realism, and the Purposeful Intent Doctrine

Abstract

Implicit social cognition examines the mental processes that affect social judgments without full self-awareness or control. Over the past quarter century, scientific findings in implicit social cognition generally and implicit bias specifically have challenged our traditional understandings of racial discrimination. Legal analysts and mind scientists have argued that these new empirical findings should influence the development of anti-discrimination law. This chapter provides a brief primer on implicit bias and examines how its discovery has catalyzed legal reform across multiple and distinct areas of legal doctrine through a school of thought called “behavioral realism.” We may be witnessing not the beginning of the end, but the end of the beginning, of the dominance of the purposeful intent standard for racial discrimination.

Keywords: implicit bias, discrimination, behavioral realism, judging, civil rights, intent