Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial

Melissa L. Breger *

All people harbor implicit biases—which by definition, are not always consciously recognized. Although trial judges are specifically trained to compartmentalize and shield their decisions from their own biases, implicit biases nonetheless seep into judicial decision making. This article explores various strategies to decrease implicit bias in bench trials. Questions are then raised about whether a judge who has faced bias personally would be more amenable and more open to curbing implicit bias professionally. Ultimately, does diversifying the trial court judiciary minimize implicit bias, while also creating a varied, multidimensional judicial voice comprised of multiple perspectives? This article will explore this potential interplay between diversifying the trial court judiciary and reducing implicit bias, while urging future quantitative research.

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*  Professor of Law, Albany Law School. J.D., 1994, University of Michigan Law School; B.S., 1991, University of Illinois at Urbana-Champaign. Thank you to Judge Rachel Kretser who invited me to present a very early iteration of this article in March 2017 during a conference entitled, Balancing the Scales of Justice: The Impact of Judicial Diversity after the screening of the Pioneering Women Judges documentary. Thank you to the audience at Boston University’s Diversity & Law Association for inviting me to present this paper in April 2017. I am grateful for the feedback on earlier drafts by Professors Deseriee Kennedy, Jean Sternlight, Christine Sgarlata Chung, and Beverly Moran. Many thanks for the excellent research assistance of Ashley Milosevic, Nicole Finn, Konstandina Tampasis, and Robert Franklin.

 

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