American Judges Association


Date of this Version



Court Review, Volume 49, Issue 1 (2013)


Copyright American Judges Association. Used by permission.


Fairness is a fundamental tenet of American courts. Yet, despite substantial work by state courts to address issues of racial and ethnic fairness,2 public skepticism that racial and ethnic minorities receive consistently fair and equal treatment in American courts remains widespread.3 Why?


Perhaps one explanation may be found in an emerging body of research on implicit cognition. During the last two decades, new assessment methods and technologies in the fields of social science and neuroscience have advanced research on brain functions, providing a glimpse into what National Public Radio science correspondent Shankar Vedantam refers to as the “hidden brain.”4 Although in its early stages, this research is helping scientists understand how the brain takes in, sorts, synthesizes, and responds to the enormous amount of information an individual faces on a daily basis.5 It also is providing intriguing insights into how and why individuals develop stereotypes and biases, often without even knowing they exist.

The research indicates that an individual’s brain learns over time how to distinguish different objects (e.g., a chair or desk) based on features of the objects that coalesce into patterns. These patterns or schemas help the brain efficiently recognize objects encountered in the environment. What is interesting is that these patterns also operate at the social level. Over time, the brain learns to sort people into certain groups (e.g., male or female, young or old) based on combinations of characteristics as well. The problem is when the brain automatically associates certain characteristics with specific groups that are not accurate for all the individuals in the group (e.g., “elderly individuals are frail”). Scientists refer to these automatic associations as implicit—they operate behind-the-scenes without the individual’s awareness.