EXPLORING THE INTERPRETATION AND APPLICATION OF PROCEDURAL RULES: THE PROBLEM OF IMPLICIT AND INSTITUTIONAL RACIAL BIAS.

• Author: Purcell, Edward A.

1. ASPIRATION AND REALITY 2584 II. ALTERNATE PERSPECTIVES 2585 III. IMPLICIT AND INSTITUTIONAL RACIAL BIAS IN AMERICAN 2593 PROCEDURAL LAW: THREE VARIATIONS A. Dismissal for Lack of Standing: Implicit Racial Assumptions in Allen v. Wright 2594 B. Limited Discovery: The Implicit Differential Racial Impact of Harlow v. Fitzgerald 2599 C. Summary Judgment: Implicit and Institutional Racial Bias Under Rule 56 2609 IV. TWO CONCLUSIONS 2636 A. The Law in the Supreme Court 2636 B. The Law in the Real World 2640 I. ASPIRATION AND REALITY

   Modern American civil procedure seeks to be clear, fair, and rational. The goal of the Federal Rules of Civil Procedure, the centerpiece of modern procedural reform, was to eliminate arcane technicalities and get to the substantive issues. Consequently, the original drafters sought to streamline pleading, ensure the presence of properly interested parties, gather all the relevant facts, and enable courts to make well-founded decisions on the merits. (1)

   As everyone now knows, the drafters did not quite accomplish their loftiest goal of making federal litigation "just, speedy, and inexpensive." (2) Ambiguities appeared in the rules, lawyers proved imaginative in exploiting them, interpretive complexities arose, and the gathering of facts proved ever more frustrating and burdensome. Expanding waves of cases began streaming into the courts during the second half of the twentieth century, and a so-called "litigation explosion" generated growing pressures for courts to dispose of ever larger numbers of cases with greater efficiency, less discovery, and more dispositions without trial. (3)

   Those changes prompted an escalating battle over procedural reform that highlighted the underlying truth challenging efforts to create a clear, fair, and rational procedural system. It is pointless, we learned, to consider procedural rules abstractly and to judge them only by their purported "simplicity," "rationality," and "fairness." Proceduralists have increasingly recognized that they can never know the actual significance of any procedural rule--however fair and rational it might appear on its face--without empirical evidence showing its uses and practical results.

   Changes occur in the interpretation of procedural rules, the impact they have on one another, the social contexts in which they operate, the nature of the parties who use them, and the practical results the parties seek to achieve. (4) The jurisdictional amount for federal diversity jurisdiction, for example, now an almost trivial matter, was for more than half a century one of the most significant economically distributive rules in the American legal system. (5) Similarly, as Stephen Burbank and Sean Farhang have explained, Rule 68 of the Federal Rules of Civil Procedure was designed as a neutral, efficiency-seeking provision meant to encourage settlements, yet it evolved into a tool that defendants used to undermine fee-shifting statutes that Congress had enacted to aid plaintiffs. (6) Now it is a recognized truism that procedural analysis must focus on the way that rules operate in practice and how they serve--or disserve--different social groups and interests. (7)

2. ALTERNATE PERSPECTIVES

   Stephen Burbank has long urged the necessity of empirical studies of civil procedure, and his numerous substantial contributions to the field together with those of many other scholars have shown the value and necessity of such work. (8) Increasingly sophisticated statistical analyses of caseloads and judicial decisionmaking have been quite revealing, while the varied research of historians, political scientists, sociologists, and psychologists have all deepened our understanding of the complex and changing role that procedural rules play in the American legal system. They have demonstrated that social factors of all kinds--political, cultural, economic, religious, and ideological--shape both the content and interpretation of procedural rules as well as the ways in which diverse parties use these rules to achieve their desired results. A staggering variety of extralegal social factors can influence and determine the outcome of even the simplest case. (9)

   Drawing on insights from social psychology, for example, Neal Devins and Lawrence Baum recently advanced a new theory of Supreme Court decisionmaking. They stress the importance not simply of recognized influences on the justices, such as judicial policy preferences and changes in public opinion, but of an additional factor: the informing role of the "elite social networks that the Justices are a part of." (10) Relying on a "psychological model" of judicial behavior, they argue that judges are acutely sensitive to the views and values of other elites, especially to the relatively cohesive networks of opposed elites that gather together in such activist ideological organizations as the conservative Federalist Society and the liberal American Constitution Society. The Federalist Society seemed particularly significant to them because it has become a de facto judicial employment agency for Republican administrations. (11) All five Republican justices serving on the Court when Devins and Baum wrote had connections with the society, and four of the five were actively involved in the society's events. (12)

   The Devins and Baum study suggests more broadly the potential value of drawing on social psychology and other similar fields, such as anthropology and media studies, in an effort to better understand how and why judges and scholars interpret legal rules as they do. Such broadened approaches raise fascinating and exceptionally complex questions. To what extent, for example, do the views and values of individuals fuse with the cultural and ideological views of the groups they join and influence the way they interpret and apply procedural rules? (13) Again, to what extent do broader social and cultural patterns of belief explain interpretive differences in the way judges construe procedural rules and apply them in different social contexts?

   Legal scholars, of course, are well aware of the danger of relying too heavily on social science theories, perhaps psychological ones especially. Those theories have often changed over time and subsequently been targeted for harsh criticisms by later generations. (14) Thus, it is always prudent to use such explanatory theories with great care and, above all, to stay close to both the applicable formal law and established social facts.

   With that caution in mind, I suggest three propositions in advancing an alternate approach to the study of civil procedure that employs the psychological theory of "implicit bias." (15) Specifically, I suggest the following three hypotheses:

   1. An understanding of implicit bias and a recognition of its influence may help illuminate the content, interpretation, and application of procedural rules.

   2. Implicit bias is especially likely to be influential when procedural rules are applied to issues involving or implicating race, especially issues involving Black Americans. (16)

   3. Implicit racial bias can influence both individuals (especially in areas where they are exercising discretion) as well as institutional groups, including the judiciary (in the organized practices that judges develop and the standard interpretations they accept). (17)

   Social scientists have methodically studied implicit bias and demonstrated its widespread presence among Americans through a variety of tests and experiments. Central to their results is the finding that, as a general matter, white people have negative associations with Black people and often act or react on the basis of unrecognized and often deeply ingrained negative feelings and stereotypes. This pattern has revealed itself even among those consciously committed to racial equality and sincerely convinced that they themselves harbor no racial prejudice. (18) While there is an extensive literature evaluating and critiquing various implicit bias tests, (19) virtually no scholar or social scientist denies the existence and potential significance of implicit biases on human behavior, especially those involving racial interactions. One study, for example, found that such biases among schoolteachers led to racial disparities in school discipline, (20) while numerous studies have shown the significant influence of implicit racial bias on medical doctors in the disparate treatments they give their patients. (21)

   Understandably, social scientists studying implicit bias have turned their attention to legal issues and institutions. One study of jurors, for example, showed that implicit racial bias influenced determinations about who should suffer the death penalty and who should not. Examining data on Black people convicted of capital crimes in Philadelphia from 1979 to 1999, researchers "found a huge stereotypicality effect. Of the men rated low in stereotypical [Black racial] features, only 24 percent were sentenced to death. But more than 57 percent of the 'highly stereotypical' Black defendants were sentenced to die for their crimes." (22)

   That finding "takes implicit bias to a whole other level," explained Jennifer L. Eberhardt, a social psychologist at Stanford University who specializes in bias training for police departments. (23) That "other level" showed that "an individual's physical appearance triggers the sort of pernicious stereotypes that suggest that blacks are inherently so dangerous they deserve extermination." (24) That finding was "a sign," Eberhardt concluded, "that our perspectives, our criminal justice process, and our institutions are still influenced by primitive racial narratives and imagery." (25) In the 1950s and 1960s, for example, the Los Angeles Police Department readily and regularly enforced morals offenses against black women because its officers identified "sexual deviance with blackness." (26)

   Legal scholars have drawn on findings about implicit bias to examine a...