Gregory Mitchell

University of Virginia | UVa · School of Law

The concept of implicit bias – the idea that the unconscious mind might hold and use negative evaluations of social groups that cannot be documented via explicit measures of prejudice – is a hot topic in the social and behavioral sciences. It has also become a part of popular culture, while interventions to reduce implicit bias have been introduced...

The history of public policy is littered with failures to solve large-scale social problems using interventions derived from behavioral science theories. In contrast, numerous small-scale problems have been solved through applications of behavioral science. This difference in outcomes reflects a mismatch between methods and aspirations. Behavioral...

Differences in employee evaluations due to gender bias may be small in any given rating cycle, but they may accumulate to produce large disparities in the number of women and men promoted to the top of an organization. A highly cited simulation by Martell et al. (1996) demonstrates this cumulative advantage process in a multilevel organization. We...

Fingerprint examiners use a variety of terms and phrases to describe a finding of a match between a defendant’s fingerprints and fingerprint impressions collected from a crime scene. Despite the importance and ubiquity of fingerprint evidence in criminal cases, no prior studies examine how jurors evaluate such evidence. Two studies examined the imp...

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most lega...

Scott Lilienfeld warned that psychology’s ideological uniformity would lead to premature closure on sensitive topics. He encouraged psychologists to question politically convenient results and did so himself in numerous areas. We follow Lilienfeld’s example and examine the empirical foundation beneath claims that positive illusions about societal c...

Until social psychology devotes as much attention to construct and external validity as it does to internal validity, the field will continue to produce theories that fail to replicate in the field and cannot be used to meliorate social problems.

General Audience Summary Behavioral and social scientists have long enjoyed vast discretion in data-analysis choices. This permissive regime has enabled scholars to engage in many deceptive analytic techniques that facilitated false claims and undercut the field’s collective credibility. Recent adoption of new transparency norms has slowed these tr...

Our target article proposed that normalizing adversarial collaborations (ACs) will catalyze progress in the behavioral sciences (Clark et al., 2022). ACs require scholars to state their own positions precisely, address the real (not caricatured) version of their opponents’ claims, and work with their adversary to design studies that all parties agr...

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most lega...

The present study examined whether a defense rebuttal expert can effectively educate jurors on the risk that the prosecution’s fingerprint expert made an error. Using a sample of 1716 jury‐eligible adults, we examined the impact of three types of rebuttal testimony in a mock trial: (a) a methodological rebuttal explaining the general risk of error...

How can compliance be tested? Corporations must comply with a dizzying array of laws and regulations. To accomplish this complex task, corporations increasingly turn not just to the legal department and outside counsel but also an in-house group composed of non-lawyer specialists who seek to educate and motivate personnel with respect to their obli...

Fingerprint examiners regularly participate in tests designed to assess their proficiency. These tests provide information relevant to the weight of fingerprint evidence, but no prior research has directly examined how jurors react to proficiency testing information. Using a nationally representative sample of American adults, we examined the impac...

Liberals appear to view integrative complexity as mere window dressing and are less liable to shift their attitude in response. In contrast, conservatives are highly influenced by manipulations of integrative complexity. Listening to arguments of greater integrative complexity appeared to make conservatives more open-minded.

The phenomenon of implicit bias is much discussed but little understood. This article answers basic conceptual and empirical questions about implicit bias, including what it is, how it is measured, what effects it may have on behavior, and whether it can be changed. Consensus now exists among implicit bias researchers that current measures of impli...

Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court's Daubert ruling, strengthened judicial review of the reliability and the validity of an expert's methods. Judges and scholars, however, have neglected the threshold question for expert evidence: w...

Fingerprint examiners traditionally express conclusions in categorical terms, opining that impressions do or do not originate from the same source. Recently, probabilistic conclusions have been proposed, with examiners estimating the probability of a match between recovered and known prints. This study presented a nationally representative sample o...

We can properly call a number of nudges libertarian nudges, but the territory of libertarian nudging is smaller than is often realized. The domain of libertarian nudges is populated by choice-independent nudges, or nudges that only assist the decision process and do not push choosers toward any particular choice. Some choice-dependent nudges pose n...

If implicit bias reflects the accessibility of concepts linked to a social category, as Payne and colleagues contend, then it logically follows that sequential priming and implicit association tests create bias because they pair social categories with evaluative and trait terms and observe reactions to the pairings. So long as social groups have di...

Scholarly discussions of prejudice fail to agree on how implicit prejudice connects to other forms of prejudice; it is unclear whether different measures of implicit prejudice measure the same thing; the meaning of “implicit” in the phrase “implicit prejudice” is contested; and implicit measures of prejudice are no better at predicting behavior, ev...

Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make jurors over-reliant on forensics — a so-called CSI effect. There is little empirical evidence of such a CSI effect among jury-eligible laypersons; any such influence also depends upon a case proceeding to a...

This study compared two forms of accountability that can be used to promote diversity and fairness in personnel selections: identity-conscious accountability (holding decision makers accountable for which groups are selected) versus identity-blind accountability (holding decision makers accountable for making fair selections). In a simulated applic...

Owing to concerns about the willingness and ability of people to report their attitudes accurately in response to direct inquiries, psychologists have developed a number of unobtrusive, or implicit, measures of attitudes. The most popular contemporary implicit measures equate spontaneous responses to stimuli with attitudes about those stimuli. Alth...

Greenwald, Banaji, and Nosek (2015) present a reanalysis of the meta-analysis by Oswald, Mitchell, Blanton, Jaccard, and Tetlock (2013) that examined the effect sizes of Implicit Association Tests (IATs) designed to predict racial and ethnic discrimination. We discuss points of agreement and disagreement with respect to methods used to synthesize t...

We take mild issue with some of the conclusions Gross draws from his research into the political commitments of academics, and we draw attention to other research that suggests there are epistemic costs associated with the political imbalance that Gross observes. We question whether incentives and controls currently existing within the social scien...

The modal distribution of the Implicit Association Test (IAT) is commonly interpreted as showing high levels of implicit prejudice among Americans. These interpretations have fueled calls for changes in organizational and legal practices, but such applications are problematic because the IAT is scored on an arbitrary psychological metric. The prese...

The modal distribution of the Implicit Association Test (IAT) is commonly interpreted as showing high levels of implicit prejudice among Americans. These interpretations have fueled calls for changes in organizational and legal practices, but such applications are problematic because the IAT is scored on an arbitrary psychological metric. The prese...

This article documents the extent to which expert opinions regarding implicit bias rely on research that evades careful scrutiny by either the academic journals or the courts that admit the expert’s testimony, discuss the arguments that shield the data underlying research from discovery, argue for discovery of secondary data notwithstanding the arg...

Greenwald, Banaji and Nosek (2015) present a reanalysis of the meta-analysis by Oswald, Mitchell, Blanton, Jaccard and Tetlock (2013) that examined the effect sizes of Implicit Association Tests designed to predict racial and ethnic discrimination. We discuss points of agreement and disagreement with respect to methods used to synthesize the IAT st...

The modal distribution of the Implicit Association Test (IAT) is commonly interpreted as showing high levels of implicit prejudice among Americans. These interpretations have fueled calls for changes in organizational and legal practices, but such applications are problematic because the IAT is scored on an arbitrary psychological metric. The prese...

The past twenty years have witnessed a surge in behavioral studies of law and law-related issues. These studies have challenged the application of the rational-choice model to legal analysis and introduced a more accurate and empirically grounded model of human behavior. This integration of economics, psychology, and law is breaking exciting ground...

Fingerprint examiners use a variety of terms and phrases to describe a finding of a match between a defendant's fingerprints and fingerprint impressions collected from a crime scene. Despite the importance and ubiquity of fingerprint evidence in criminal cases, no prior studies examine how jurors evaluate such evidence. We present two studies exami...

This article reports a meta-analysis of studies examining the predictive validity of the Implicit Association Test (IAT) and explicit measures of bias for a wide range of criterion measures of discrimination. The meta-analysis estimates the heterogeneity of effects within and across 2 domains of intergroup bias (interracial and interethnic), 6 crit...

We present experimental results demonstrating how ideology shapes evaluations of technology aimed at detecting unconscious biases: (1) liberals supported use of the technology to detect unconscious racism but not unconscious anti-Americanism, whereas conservatives showed the reverse pattern, (2) liberals and conservatives opposed punishing individu...

Anderson, Lindsay, and Bushman (1999) compared effect sizes from laboratory and field studies of 38 research topics compiled in 21 meta-analyses and concluded that psychological laboratories produced externally valid results. A replication and extension of Anderson et al. (1999) using 217 lab-field comparisons from 82 meta-analyses found that the e...

This article provides an oveview of social science expert evidence and Us proper uses in labor and employment cases, discusses important recent rulings and developments in the area of social science expert evidence, and provides some practical tips on the effective management of social science evidence.

This essay responds to comments on our earlier paper discussing the American Sociological Association’s amicus brief in the Wal-Mart v. Dukes case. We identify areas of agreement and disagreement with the commentators and close with proposed meta-norms that should govern experts who seek to apply social science research to the facts of a particular...

The American Sociological Association (“ASA”) filed an amicus brief in Wal-Mart v. Dukes in which the ASA defended the testimony of the plaintiffs’ sociological expert. Unfortunately, the ASA’s portrayal and defense of the method and opinions of this expert do not match the actual method used, and opinions offered, by the expert in the Wal-Mart cas...

Comments on an article by J. D. Heider and J.J. Skowronski (see record 2007-05078-004). The authors reanalyzed data from a set of studies—J. D. Heider and J.J. Skowronski (2007)—that explored links between the race IAT and discriminatory behavior. The studies in that report were designed to have methodological improvements over past studies of pred...

Dukes v. Wal-Mart provides the Supreme Court the opportunity to resolve the tension perceived by some lower courts between Eisen and Falcon with respect to the level of scrutiny to be applied to evidence offered on class certification. Because contested expert testimony was integral to the certification decision in Dukes, the case also provides the...

Conceptual distinctions that loom large to philosophers-such as the distinction between utilitarian and deontic decision norms-may be far less salient to most other mortals. Building on an intuitive-politician model of judgment and choice and on the empirical work reported by Bennis, Medin, and Bartels (2010, this issue), we argue that the overridi...

Experts often seek to apply social science to the facts of a particular case. Sometimes experts link social science findings to cases using only their expert judgment, and other times experts conduct case-specific research using social science principles and methods to produce case-specific evidence. This article addresses the scientific and legal...

This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make many of the same judgments and decisions that ordinary people make and consider how our knowledge about judgment and decision-making in general applies to...

Much of the interest in empirical studies of judges lies in the comparison of actual to ideal behavior to reach conclusions about judicial competence. We may decompose any empirical study that attempts to address the competence of judges or the quality of judging into three basic components: (1) the specification of a normative benchmark; (2) the c...

Much of the interest in empirical studies of judges lies in the comparison of actual to ideal behavior to reach conclusions about judicial competence. We may decompose any empirical study that attempts to address the competence of judges or the quality of judging into three basic components: (1) the specification of a normative benchmark; (2) the c...

Ten minutes after witnessing a bank robbery, Ms. Barnes is interviewed by the first police officer on the scene. She describes the robber as a white male, clean-shaven, medium height, husky, wearing sunglasses and a baseball hat. Three months later, Ms. Barnes is deposed by the defense attorney, and she is asked again to describe the robber. This t...

The positions that experts take on whether organizations do enough to ensure equal-opportunity hinge on the assumptions they make about the potency of prejudice. Prominent scholars have challenged the conventional notion that anti-discrimination norms, backed by legal sanctions, can check implicit bias. The strongest form of this argument is that i...

This volume both reflects and exemplifies the recent resurgence of interest in the social and psychological characteristics and processes that give rise to ideological forms. Ideology is an elusive, multifaceted construct that can usefully be analyzed in terms of “top-down” processes related to the social construction and dissemination of ideology,...

An important debate is brewing over the proper scope of expert witness testimony that purports to summarize general social science evidence to provide context for the factfinder to decide case-specific questions. In a recent article, we argued that experts who provide this 'social framework' testimony should be restricted from making any linkages b...

The authors reanalyzed data from 2 influential studies-A. R. McConnell and J. M. Leibold and J. C. Ziegert and P. J. Hanges-that explore links between implicit bias and discriminatory behavior and that have been invoked to support strong claims about the predictive validity of the Implicit Association Test. In both of these studies, the inclusion o...

The rebuttals offered by the authors whose data we reanalyzed -A. R. McConnell & J. M. Leibold; J. C. Ziegert & P. J. Hanges-address secondary issues that do not alter our primary message: The evidence for the predictive validity of the race Implicit Association Test is too fragile to support the strong claims that have been made about the pervasiv...

This essay replies to critics of our earlier article reviewing efforts to apply psychological research on implicit bias to antidiscrimination law. We document that we do not hold the normative position ascribed to us by our leading critic, Professor Bagenstos, and that he misconstrued our scientific arguments and has accepted at face value empirica...

Biases in judgment and decision-making often arise at the level of first-order thoughts. If these initial thoughts are not overridden by second-order thoughts, they may lead to biased outputs. Current psychological models of legal actors assume that individuals are largely incapable of overcoming these first-order biasing thoughts and that these th...

In Dukes v. Wal-Mart, the Ninth Circuit upheld the certification of the largest employment discrimination class in history, with more than 1.5 million women employees seeking over $1.5 billion in damages. A crucial piece of evidence supporting class certification came from a sociologist who testified that he performed a social framework analysis to...

Psychological social psychologists have devoted great effort to measuring the elusive construct of unconscious prejudice. However, recent work underscores both the psychometric flaws of these measures and the weaknesses in claims that they predict behavior in realistic organizational settings. Before accepting unconscious prejudice as an inevitable...

Perceptions of proximity matter to people. When something that harms them was nearly avoided, or when they narrowly escape being harmed by something, or when they almost acquire something they want, but nevertheless fail to do so, they tend to react more strongly than when a harm that befalls them was unavoidable or when a potential harm never came...

Recent legal scholarship challenges the default psychological assumption in antidiscrimination law that discrimination is a function of psychological processes under the conscious control of the discriminator, and replaces it with the assumption that discrimination is the result of unconscious, or implicit, psychological processes that operate auto...

In this draft of a chapter forthcoming in a book on political psychology, we advocate blending thought experiments with laboratory experiments via a technique we call "the hypothetical society paradigm," which is designed to bring out the inferential advantages of both approaches while minimizing their disadvantages. We discuss the primary benefits...

We report the results of three experiments examining the long-standing debate within tort theory over whether corrective justice is independent of, or parasitic on, distributive justice. Using a "hypothetical societies" paradigm that serves as an impartial reasoning device and permits experimental manipulation of societal conditions, we first teste...

Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. In this article, we consider how paternalistic policies fare under a dynamic account of decision-making that incorporates learning and motivation effects....

This essay considers the concept of libertarian paternalism recently advanced by Sunstein and Thaler and argues that, on close inspection, this attempt to reconcile the traditionally opposed concepts of libertarianism and paternalism fails to succeed. Most significantly, Sunstein and Thaler neglect alternative approaches to dealing with irrational...

This paper considers how the scientific status of empirical legal scholarship might be enhanced. The leading proposal for making empirical legal research more scientific is to move to a system of peer review for research reports. Although a move to pre-publication peer review might well improve the quality of empirical legal research, the probabili...

In two experiments, participants judged the fairness of different distributions of wealth in hypothetical societies. In the first study, the level of meritocracy in the hypothetical societies and the frame of reference from which participants judged alternative distributions of wealth interacted to influence fairness judgments. As meritocracy incre...

This article critically examines the use of single-observation case studies to develop causal explanations for significant legal events, detailing the evidential and inferential problems inherent in this methodology. Most significant among these problems is that focus on a single case necessitates the use of counterfactual thought experiments to te...

This paper, written in reply to Professor Robert Prentice's forthcoming paper analyzing my skeptical approach to behavioral law and economics (Robert A. Prentice, Chicago Man, K-T Man, and the Future of Behavioral Law and Economics, 56 VAND. L. REV. (forthcoming 2003)), offers some additional thoughts in favor of a modest approach to revising the l...

This paper advances a contextualist approach to empirical legal research, arguing that legal scholars should seek to map behavioral regularities in discrete legal contexts rather than develop a broad theory of legal judgment. The need for this cartographic approach to legal behavior, and the inadequacy of a strictly nomothetic approach, is illustra...

This study examined whether first-year law students exhibit optimistic bias in their predictions about performance in law school. At four points during the school year, first-year law students predicted what their class rank would be after the first year of law school and following completion of law school. Within the group of full-time students, m...

In two experiments, participants judged the fairness of different distributions of wealth in hypothetical societies. In the first study, the level of meritocracy in the hypothetical societies and the frame of reference from which participants' judged alternative distributions of wealth interacted to influence fairness judgments. As meritocracy incr...

Legal scholars increasingly rely on a behavioral analysis of judgment and decision-making to explain legal phenomena and argue for legal reforms. The main argument of this new behavioral analysis of the law is twofold: (1) all human cognition is beset by systematic flaws in the way that judgments and decisions are made, and these flaws lead to pred...

The emerging movement within legal scholarship known as behavioral law and economics seeks to replace the perfect rationality assumption found in law and economics with an equal incompetence assumption: drawing on empirical research in psychology and behavioral economics, behavioral law and economics scholars assert that all people systematically f...

Today, most constitutional errors at trial are subject to harmless error review. In deciding whether an error was harmless, appellate courts apply one of the three harmless error tests endorsed by the Supreme Court. The first test focuses on the error's likely impact on the verdict. The second test focuses on whether the properly admitted evidence...

In Planned Parenthood of Southern Pennsylvania v. Casey, the U.S. Supreme Court directly confronted the question of Roe v. Wade's continuing viability. Many commentators speculated that Roe would be overruled, tossing the abortion issue to Congress and state legislatures. Yet a majority of the Justices refused to overrule the central holding of Roe...

Political economists agree that a trade-off exists between equality and efficiency. Using a hypothetical society paradigm, the mean income (representing efficiency) and income variability (representing equality) of distributions of wealth and the correlation between wealth and effort within a society were manipulated. Ss made all pairwise compariso...

Justice, equity, and fairness are central concerns of everyday life, whether we are assessing the fairness of individual acts, social programmes, or institutional policies. This book explores how the distribution of costs and benefits determine our intuition about fairness and why individual behaviour sometimes deviates from normative theories of j...

Paul Meehl observed some time ago that many legal doctrines de-pend less for their origins on systematic empirical research than on the lawyer's "fireside inductions," or "commonsense empirical gener-alizations about human behavior which we accept on the culture's authority plus introspection plus anecdotal evidence from ordinary life." 1 As any ev...

Thesis (Ph. D. in Psychology)--University of California, Berkeley, Dec. 1994. Includes bibliographical references (leaves 56-67).