Justin Levinson - Academia.edu (original) (raw)

Papers by Justin Levinson

Bepress Legal Series, Aug 1, 2006

Tyronne first encountered James when they accidentally bumped elbows in a crowded bar… An hour af... more Tyronne first encountered James when they accidentally bumped elbows in a crowded bar… An hour after leaving the bar, Tyronne and a friend spotted James outside a local diner. They approached James slowly, and Tyronne said: "Why did you bump into me back there?" James moved forward, shoved him with both hands, and said: "Get out of my face." …Without hesitating, Tyronne then stepped forward and tried to shove James in the chest, but missed and hit him in the face. James fell back slightly. He then turned around, took a couple steps away from Tyronne, and appeared to reach for something in his pocket. Tyronne quickly pursued James from behind and punched him in the side of the head. James fell to the ground. Tyronne's friend stepped forward and kicked James…

Depaul Law Review, 2009

automatic and unintentional cognitive processes may foster racial bias in the legal system. 3 Thi... more automatic and unintentional cognitive processes may foster racial bias in the legal system. 3 This Article pursues three goals related to this endeavor: first, to introduce implicit social cognition research to death penalty scholars and scholar advocates; second, to propose new hypotheses that help explain why capital cases may be automatically infused with racial bias and why research to date may cover up existing racial disparities; and third, to stimulate interdisciplinary collaboration and empirical examination of a wide range of social cognitive factors in capital punishment. Since the 1990s, social scientists have demonstrated that many Americans harbor implicit racial biases that frequently conflict with their self-reported racial attitudes. 4 These biases manifest automatically and without conscious awareness in a variety of basic circumattentional control.

Behavioral economic research has tended to ignore the role of cultural dif-ferences in economic d... more Behavioral economic research has tended to ignore the role of cultural dif-ferences in economic decision-making. The authors suggest that a systematic bias affects existing behavioral economic theory– cognitive biases are often as-sumed to be universal. To examine how cultural ...

Bepress Legal Series, 2004

The ability to posit mental states in other people is among the most subtly remarkable of human f... more The ability to posit mental states in other people is among the most subtly remarkable of human feats. ... Despite a varied and sometimes confused history, the mens rea inquiry looks at a specific actor's subjective mental state at the time of the crime. ... Psychological research, therefore, has taught us two important lessons: that mental state judgments truly matter in criminal culpability judgments, and that understanding how people judge others' mental states is a worthwhile and manageable endeavor. ... To test cultural differences in mens rea judgments, I conducted an analysis of variance on mental state judgments. A "one-way" ANOVA on the culture variable revealed statistically significant cultural differences on mental state judgments. ... By looking at the regression analysis for each mental state judgment, I could see which other questions acted together to allow a statistically significant prediction on the mental state judgment at issue. ... For Chinese, judgments of responsibility of the actor, another psychological measure, constituted the only significant predictor of recklessness judgments. ... By failing to investigate how people make state of mind decisions in the legal setting, discussion of mens rea and other mental state inquires have focused too narrowly on policy and not enough on the psychological reality of legal standards. ... HIGHLIGHT: "The ability to posit mental states in other people is among the most subtly remarkable of human feats." n1 TEXT:

SSRN Electronic Journal, 2000

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a ... more White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission's intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide range of advocacy groups. In November 2015, the Commission's publicly announced proposed amendments became law without Congressional change. These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate, empirically based penal justifications. This Article portrays the historical tension between the Federal Sentencing Commission and federal judges, presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms, and includes specific recommendations to reform the current sentencing scheme for these crimes.

Duke Journal of Gender Law Policy, Aug 1, 2010

Commentators have marveled at the continuing lack of gender diversity in the legal profession's m... more Commentators have marveled at the continuing lack of gender diversity in the legal profession's most influential and honored positions. After achieving near equal numbers of male and female law school graduates for approximately two decades, the gap between men and women in law firms, legal academia, and the judiciary remains stark. Several scholars have argued that due to negative stereotypes portraying women either as workplace cutthroats or, conversely, as secretaries or housewives, decision-makers continue to subordinate women to men in the highest levels of the legal profession. Despite these compelling arguments, no empirical studies have tested whether implicit gender bias might explain the disproportionately low number of women attorneys in leadership roles. In order to test the hypothesis that implicit gender bias drives the continued subordination of women in the legal profession, we designed and conducted an empirical study. The study tested whether law students hold implicit gender biases related to women in the legal profession, and further tested whether these implicit biases predict discriminatory decision-making. The results of the study were both concerning and hopeful. As predicted, we found that implicit biases were pervasive; a diverse group of both male and female law students implicitly associated judges with men, not women, and also associated women with the home and family. Yet the results of the remaining portions of the study offered hope. Participants were frequently able to resist their implicit biases and make decisions in gender neutral ways. Taken together, the results of the study highlight two conflicting sides of the ongoing gender debate: first, that the power of implicit gender biases persists, even in the next generation of lawyers; and second, that the emergence of a new generation of egalitarian law students may offer some hope for the future.

Seattle University Law Review, 2011

particular, there has been noticeable progress. Recent empirical projects have begun the pursuit ... more particular, there has been noticeable progress. Recent empirical projects have begun the pursuit of assessing how implicit racial bias likely affects police, judicial, and juror decision-making. 3 But scholars have yet to conduct an in-depth examination of how implicit bias might affect one of the most noteworthy parts of the criminal justice system-prosecutorial discretion-and no empirical projects focused on implicit bias have gained access to prosecutors as study participants. The idea that prosecutors might be partially responsible for propagating inequality in the criminal justice system is far from new. 4 Until now, however, it has been difficult to explain in detail why prosecutors-the vast majority of whom would never intend to hold double-standards based on race-might nonetheless be unwitting propagators of bias. From the arrest of a suspect to the sentencing of a defendant, consider the range of discretion-based decisions that prosecutors must make on a daily basis: Should an arrested citizen be charged with a crime? At what level should bail be recommended? Should bail be opposed? What crime or crimes will be charged? Should charges be dropped? Should a 3.

The rapid growth of two prominent areas of legal scholarship with social scientific similarities,... more The rapid growth of two prominent areas of legal scholarship with social scientific similarities, behavioral law and economics and implicit racial bias, has overshadowed the fact that scholars have largely failed to consider what happens when phenomena from the two areas collide. In particular, commentators have not investigated whether powerful implicit racial stereotypes may trump even well established behavioral economic principles when decision-makers make risk allocation decisions. Without considering and empirically testing whether behavioral economic principles yield to racial stereotypes, legal scholars not only risk embracing an incomplete model of human behavior, but they also risk advocating policies that may actually reinforce people’s non-conscious need to maintain social hierarchies. This Article considers behavioral economic phenomena in light of implicit social cognition research. It argues that human “irrational” behavior yields to racial stereotypes, and employs an...

Despite the historical racial imbalance in capital punishment, interdisciplinary scholarship has ... more Despite the historical racial imbalance in capital punishment, interdisciplinary scholarship has failed to investigate fully how the human mind may automatically and systematically facilitate racial bias against African-American defendants in capital cases. Considered in the legal context, well-developed social science principles may help reveal how people’s automatic and unintentional cognitive processes may either propagate racial disparities in the death penalty or serve as a masking agent in covering up those disparities. This Article introduces implicit social cognition research to the death penalty context and proposes new hypotheses that help explain why capital cases may be automatically infused with racial bias and why research to date may unintentionally cover up existing racial disparities. The author presents two preliminary hypotheses that apply social cognition theory to the capital context. Death Penalty Priming Hypothesis posits that the supposedly race-neutral death...

Handbook of Motivation and Cognition Across Cultures, 2008

Given the substantial and growing scientific literature on implicit bias, the time has now come t... more Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Implicit Racial Bias Across the Law, 2012

Implicit Racial Bias Across the Law, 2012

Implicit Racial Bias Across the Law, 2012

SSRN Electronic Journal, 2000

ABSTRACT Despite cultural progress in reducing overt acts of racism, stark racial disparities con... more ABSTRACT Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This book is for anyone who wonders why race still matters and is interested in what emerging social science can contribute to the discussion. The book explores how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, Implicit Racial Bias Across the Law examines both the continued subordination of historically disadvantaged groups and the legal system's complicity in the subordination.

Abstract: The disproportionate incarceration of minorities is one of the American criminal justic... more Abstract: The disproportionate incarceration of minorities is one of the American criminal justice system's most established problems. In spite of a societal backdrop in which descriptive claims of a “post-racial” America prosper, the problematic racial dynamics of ...

Bepress Legal Series, Aug 1, 2006

Tyronne first encountered James when they accidentally bumped elbows in a crowded bar… An hour af... more Tyronne first encountered James when they accidentally bumped elbows in a crowded bar… An hour after leaving the bar, Tyronne and a friend spotted James outside a local diner. They approached James slowly, and Tyronne said: "Why did you bump into me back there?" James moved forward, shoved him with both hands, and said: "Get out of my face." …Without hesitating, Tyronne then stepped forward and tried to shove James in the chest, but missed and hit him in the face. James fell back slightly. He then turned around, took a couple steps away from Tyronne, and appeared to reach for something in his pocket. Tyronne quickly pursued James from behind and punched him in the side of the head. James fell to the ground. Tyronne's friend stepped forward and kicked James…

Depaul Law Review, 2009

automatic and unintentional cognitive processes may foster racial bias in the legal system. 3 Thi... more automatic and unintentional cognitive processes may foster racial bias in the legal system. 3 This Article pursues three goals related to this endeavor: first, to introduce implicit social cognition research to death penalty scholars and scholar advocates; second, to propose new hypotheses that help explain why capital cases may be automatically infused with racial bias and why research to date may cover up existing racial disparities; and third, to stimulate interdisciplinary collaboration and empirical examination of a wide range of social cognitive factors in capital punishment. Since the 1990s, social scientists have demonstrated that many Americans harbor implicit racial biases that frequently conflict with their self-reported racial attitudes. 4 These biases manifest automatically and without conscious awareness in a variety of basic circumattentional control.

Behavioral economic research has tended to ignore the role of cultural dif-ferences in economic d... more Behavioral economic research has tended to ignore the role of cultural dif-ferences in economic decision-making. The authors suggest that a systematic bias affects existing behavioral economic theory– cognitive biases are often as-sumed to be universal. To examine how cultural ...

Bepress Legal Series, 2004

The ability to posit mental states in other people is among the most subtly remarkable of human f... more The ability to posit mental states in other people is among the most subtly remarkable of human feats. ... Despite a varied and sometimes confused history, the mens rea inquiry looks at a specific actor's subjective mental state at the time of the crime. ... Psychological research, therefore, has taught us two important lessons: that mental state judgments truly matter in criminal culpability judgments, and that understanding how people judge others' mental states is a worthwhile and manageable endeavor. ... To test cultural differences in mens rea judgments, I conducted an analysis of variance on mental state judgments. A "one-way" ANOVA on the culture variable revealed statistically significant cultural differences on mental state judgments. ... By looking at the regression analysis for each mental state judgment, I could see which other questions acted together to allow a statistically significant prediction on the mental state judgment at issue. ... For Chinese, judgments of responsibility of the actor, another psychological measure, constituted the only significant predictor of recklessness judgments. ... By failing to investigate how people make state of mind decisions in the legal setting, discussion of mens rea and other mental state inquires have focused too narrowly on policy and not enough on the psychological reality of legal standards. ... HIGHLIGHT: "The ability to posit mental states in other people is among the most subtly remarkable of human feats." n1 TEXT:

SSRN Electronic Journal, 2000

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a ... more White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission's intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide range of advocacy groups. In November 2015, the Commission's publicly announced proposed amendments became law without Congressional change. These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate, empirically based penal justifications. This Article portrays the historical tension between the Federal Sentencing Commission and federal judges, presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms, and includes specific recommendations to reform the current sentencing scheme for these crimes.

Duke Journal of Gender Law Policy, Aug 1, 2010

Commentators have marveled at the continuing lack of gender diversity in the legal profession's m... more Commentators have marveled at the continuing lack of gender diversity in the legal profession's most influential and honored positions. After achieving near equal numbers of male and female law school graduates for approximately two decades, the gap between men and women in law firms, legal academia, and the judiciary remains stark. Several scholars have argued that due to negative stereotypes portraying women either as workplace cutthroats or, conversely, as secretaries or housewives, decision-makers continue to subordinate women to men in the highest levels of the legal profession. Despite these compelling arguments, no empirical studies have tested whether implicit gender bias might explain the disproportionately low number of women attorneys in leadership roles. In order to test the hypothesis that implicit gender bias drives the continued subordination of women in the legal profession, we designed and conducted an empirical study. The study tested whether law students hold implicit gender biases related to women in the legal profession, and further tested whether these implicit biases predict discriminatory decision-making. The results of the study were both concerning and hopeful. As predicted, we found that implicit biases were pervasive; a diverse group of both male and female law students implicitly associated judges with men, not women, and also associated women with the home and family. Yet the results of the remaining portions of the study offered hope. Participants were frequently able to resist their implicit biases and make decisions in gender neutral ways. Taken together, the results of the study highlight two conflicting sides of the ongoing gender debate: first, that the power of implicit gender biases persists, even in the next generation of lawyers; and second, that the emergence of a new generation of egalitarian law students may offer some hope for the future.

Seattle University Law Review, 2011

particular, there has been noticeable progress. Recent empirical projects have begun the pursuit ... more particular, there has been noticeable progress. Recent empirical projects have begun the pursuit of assessing how implicit racial bias likely affects police, judicial, and juror decision-making. 3 But scholars have yet to conduct an in-depth examination of how implicit bias might affect one of the most noteworthy parts of the criminal justice system-prosecutorial discretion-and no empirical projects focused on implicit bias have gained access to prosecutors as study participants. The idea that prosecutors might be partially responsible for propagating inequality in the criminal justice system is far from new. 4 Until now, however, it has been difficult to explain in detail why prosecutors-the vast majority of whom would never intend to hold double-standards based on race-might nonetheless be unwitting propagators of bias. From the arrest of a suspect to the sentencing of a defendant, consider the range of discretion-based decisions that prosecutors must make on a daily basis: Should an arrested citizen be charged with a crime? At what level should bail be recommended? Should bail be opposed? What crime or crimes will be charged? Should charges be dropped? Should a 3.

The rapid growth of two prominent areas of legal scholarship with social scientific similarities,... more The rapid growth of two prominent areas of legal scholarship with social scientific similarities, behavioral law and economics and implicit racial bias, has overshadowed the fact that scholars have largely failed to consider what happens when phenomena from the two areas collide. In particular, commentators have not investigated whether powerful implicit racial stereotypes may trump even well established behavioral economic principles when decision-makers make risk allocation decisions. Without considering and empirically testing whether behavioral economic principles yield to racial stereotypes, legal scholars not only risk embracing an incomplete model of human behavior, but they also risk advocating policies that may actually reinforce people’s non-conscious need to maintain social hierarchies. This Article considers behavioral economic phenomena in light of implicit social cognition research. It argues that human “irrational” behavior yields to racial stereotypes, and employs an...

Despite the historical racial imbalance in capital punishment, interdisciplinary scholarship has ... more Despite the historical racial imbalance in capital punishment, interdisciplinary scholarship has failed to investigate fully how the human mind may automatically and systematically facilitate racial bias against African-American defendants in capital cases. Considered in the legal context, well-developed social science principles may help reveal how people’s automatic and unintentional cognitive processes may either propagate racial disparities in the death penalty or serve as a masking agent in covering up those disparities. This Article introduces implicit social cognition research to the death penalty context and proposes new hypotheses that help explain why capital cases may be automatically infused with racial bias and why research to date may unintentionally cover up existing racial disparities. The author presents two preliminary hypotheses that apply social cognition theory to the capital context. Death Penalty Priming Hypothesis posits that the supposedly race-neutral death...

Handbook of Motivation and Cognition Across Cultures, 2008

Given the substantial and growing scientific literature on implicit bias, the time has now come t... more Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Implicit Racial Bias Across the Law, 2012

Implicit Racial Bias Across the Law, 2012

Implicit Racial Bias Across the Law, 2012

SSRN Electronic Journal, 2000

ABSTRACT Despite cultural progress in reducing overt acts of racism, stark racial disparities con... more ABSTRACT Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This book is for anyone who wonders why race still matters and is interested in what emerging social science can contribute to the discussion. The book explores how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, Implicit Racial Bias Across the Law examines both the continued subordination of historically disadvantaged groups and the legal system's complicity in the subordination.

Abstract: The disproportionate incarceration of minorities is one of the American criminal justic... more Abstract: The disproportionate incarceration of minorities is one of the American criminal justice system's most established problems. In spite of a societal backdrop in which descriptive claims of a “post-racial” America prosper, the problematic racial dynamics of ...