Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases

, and | September 1, 2020 | Torts: Intentional Torts to Persons

This article was originally published in Southern California Law Review. The following is the introduction. 

They say that black lives matter, but how much relative to white lives? Political activists and legal theorists have debated whether the injuries suffered by African Americans are devalued relative to the injuries of whites. This study is one of the first comprehensive experimental examinations of how race affects judgments of tort injuries. We tested the role of the litigant’s race and the impact of implicit racial bias in tort case decision making. Using scenarios based on classic tort cases, we systematically varied the race of the plaintiff and the race of the defendant to create multiple versions of each scenario. Participants read one version of each scenario, judged whether the defendant ought to be legally responsible for the injury, and gave an award in money damages. As an added layer, participants also completed the Implicit Association Test (“IAT”) for black and white races.

The results revealed that race—and implicit racial bias—matter in evaluating the responsibility and remedies for tort injuries. Participants who had high IAT scores attributed significantly more legal responsibility to black defendants than to white defendants and recommended higher awards for plaintiffs who sued black defendants. The dollar awards for the injuries suffered by black plaintiffs were lower than awards for the same injuries experienced by white plaintiffs. These results offer troubling new evidence of how race, responsibility, and injury are intertwined. The results are complex and nuanced, revealing once again that the role of implicit bias in legal decision making—particularly in the torts arena—is ripe for further study.

View the full article here.  

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W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi  is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

Valerie P. Hans

Cornell Law School

Valerie P. Hans is the Charles F. Rechlin Professor of Law at Cornell Law School. She conducts empirical studies of law and the courts, and is one of the nation's leading authorities on the jury system. Trained as a social scientist, she has carried out extensive research and lectured around the globe on juries and jury reform as well as the uses of social science in law.

Gregory Parks

Wake Forrest University School of Law

Gregory Parks is a professor at Wake Forest Law. Professor Parks' research focuses on both race and law issues as well as social science and law issues. While generally interested in the application of cognitive and social psychology to law, his work, to date, has specifically focused on what implicit (automatic/unconscious) attitudes and biases portend for the law. Professor Parks' scholarship also focuses on black fraternal networks and their relation to the law--e.g., biographies of prominent African American lawyers and judges who were/are life-long members of these organizations, the role of these organizations in African Americans' quest for social justice and civil rights, and the legal issues around violent hazing within these organizations.

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