Article | Tort Law
Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases
by Jonathan Cardi,
* Valerie P. Hans & Gregory Parks

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 507 (2020)

Keywords: Implicit Racial Bias, Tort Decision Making

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.

*. Jonathan Cardi is Professor of Law and Executive Associate Dean for Academic Affairs, Wake Forest University School of Law. The research was supported by Wake Forest University School of Law and Cornell Law School. Conversations with Anthony Burrow, Stephen Ceci, Kayla Burd, Krystia Reed, Jeffrey Rachlinski, and Doron Teichman about research on implicit bias were helpful to us. Jasmine Burgess provided excellent research assistance; Francoise Vermeylen gave excellent statistical advice; and Nan Smith and Peter Hook helped us with the tables and figures. Presentations at the Aix Remedies Discussion Forum (June 27, 2018), a Cornell Law School Faculty Workshop (June 27, 2018), and the Conference on Empirical Legal Studies (November 9, 2018) were extraordinarily useful in helping us think about our results.
†. Valerie P. Hans is Charles F. Rechlin Professor of Law, Cornell Law School.
‡. Gregory Parks is Professor of Law and Associate Dean of Research, Public Engagement, and Faculty Development, Wake Forest University School of Law.

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