1 DECEMBER 2017 • VOL 358 ISSUE 6367 1137 SCIENCE sciencemag.org
Social cognitions are mental associa- tions between a social group (e.g., Asian American) and some charac- teristic. They can be overall impres- sions or associations with a specific quality (e.g., “technocratic”). Some
social cognitions are implicit; we can’t tell
that we have them simply by asking ourselves. Instead, they must be measured
through some indirect instrument. Over
the past two decades, science has demonstrated that implicit social cognitions exist,
are pervasive, are predictably biased, and
alter judgments that produce discriminatory decisions (1).
The findings are humbling. Although we
seek to be impartial, implicit biases nudge
our behavior in ways contrary to our values.
Various psychological and legal scholars
known as “behavioral realists” have argued
that the law should account for these discoveries. After all, when we get more accurate descriptions of behavior—including
how we imperfectly judge others—shouldn’t
our systems update accordingly?
Not surprisingly, this research threatens
many on the right because it provides an evidence-based challenge to the myth of color
SCIENCE AND THE LAW
The realities of race
A law professor worries that racial justice has been
seduced by science
By Jerry Kang blindness. What is surprising is the anxiety
this has provoked on the left, as exemplified
by Jonathan Kahn’s Race on the Brain.
Kahn, a legal scholar, makes two general
criticisms. First, he rejects privileging science
in the struggle for racial justice. For him, science is too reductionist and omits intricacies
of power, history, and culture. Accordingly, he believes that behavioral realists, seduced by science,
mislocate racism inside neurons
instead of larger social structures.
They then recommend an individ-
ual-focused, technocratic solution
that “not only elevates scientific
authority over legal authority but
also elevates unaccountable ex-
perts over officers and citizen[s]
of a democratic polity.”
Second, Kahn complains that
behavioral realists embrace the
politically conservative frames
embedded in current consti-
tutional doctrine: merit over
distributive justice; individual rights over
group rights; a showing of conscious, in-
tentional discrimination over evidence
of disparate impact. By accepting these
conservative values—even for argument’s
sake—he contends that behavioral realists
abandon the fight for better law and higher
Kahn’s thoughtful criticisms are impor-
tant to keep in mind. He is surely right to
caution against scientific imperialism. Sup-
pose some physicists claimed that fluid
dynamics could solve all climate change
problems. Not only would chemists, biolo-
gists, and environmental scientists rightly
scoff at such disciplinary arrogance, so
would engineers, transportation experts,
urban planners, geographers, economists,
tax scholars, sociologists, and historians.
The same reaction is appropriate whenever
implicit bias is offered as a panacea for all
problems racial. Kahn also rightly warns
of opportunity costs—that attention to im-
plicit bias and working within
existing legal constraints might
drain “attention and resources
away from other approaches to
framing and addressing racism.”
Unfortunately, in raising these
concerns, Kahn erects numerous
strawpersons. For instance, be-
havioral realists aren’t as rigid,
reductionist, and algorithmic
as Kahn claims. The field’s two
leading scientists have publicly
characterized implicit bias as a
cultural filter or the “thumbprint
of the culture on our minds,” the
latter quotation provided by
Kahn himself (emphasis added).
Indeed, the first major legal analysis of im-
plicit bias focused on mass media policy (2).
Specifying how mass media culture mani-
fests cognitively is not to ignore culture but
to document carefully its invisible reach.
Kahn also engages in guilt by association
by intertwining behavioral realism with
Washington v. Davis, the Supreme Court
case that held that self-conscious intent to
harm minorities and not mere disparate
The reviewer is at the UCLA School of Law, University
of California, Los Angeles, Los Angeles, CA 90095, USA.
Situating racism in the brain, instead of placing it in
larger social contexts, is a mistake, argues Kahn.
Race on the Brain
Bias Gets Wrong
About the Struggle for
Press, 2017. 303 pp.
BOOKS et al.