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  Vol. 32, 2020 Book Review 413

  Book Review: Jennifer Eberhardt,Biased: Uncovering theHiddenPrejudice That Shapes What We See,Think, and Do (New York:Viking,2019).

  byDana E. Prescott*

  I. IntroductionIn her recent book, Biased: Uncovering the HiddenPrejudice

  That Shapes What We See, Think, and Do,1 JenniferEberhardt,Stanford professor of psychology, powerfully examinesimplicitbias: “what it is, where it comes from, how it affects us,and howwe can address it.”2 Dr. Eberhardt then advises the readerthatimplicit bias is “not a new way of calling someone a racist”but a“distorting lens” that is a product of “both the architectureof ourbrain and the disparities in our society.”3 For all thescientificdefinitions and explanations of implicit bias, however, Iwasstruck by this statement as more precise than mostexplanations:“Our experiences in the world seep into our brain overtime, andwithout our awareness they conspire to reshape theworkings ofour mind.”4 Thus, “bias leaks out between the words ofscripteddialogue” and thereby “seeps” into everyday thoughts andlivesin ways that may be unrecognizable or, at minimum, difficulttoevaluate as to impact on the individual and society.5

  * Dana E. Prescott is licensed to practice in Maine andMassachusettsand a partner with Prescott, Jamieson, & MurphyLaw Group LLC, Saco,Maine. The statements in this book review maynot reflect the views of theAAML or the Journal Board but are hisalone. He may be reached atdana@southernmaine.

  1 JENNIFER EBERHARDT, BIASED: UNCOVERING THE HIDDENPREJUDICETHAT SHAPES WHAT WE SEE, THINK, AND DO (2019).

  2 Id at 6.3 Id.4 Id. at 15.5 Id. at 42.

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  The book is phenomenological, as she weaves her lifeexper-iences and those of her family through scholarship whichunder-girds implicit bias and decades of ever-more refined“dogwhistles” which signal racism and bigotry to those so inclined.Asa memoir by a scholar, her book, like Bryan Stevenson’snarra-tive as a lawyer,6 is sometimes painful to read. Yet, it is apower-ful reminder that there is willingness to struggle with theblend ofscience, data, and human imperfections as a means toimprovepolicy and practice.7 I will leave to the reader the chanceto findthe “rest of the story,” but I will offer two passages forthis intro-duction: “My boys were going to grow older and they weregoingto be fearful and cops were going to be fearful-unless weallcould find a way to free ourselves from the tight grip ofhistory”8and “I led the graduates to Harvard Yard, where row uponrowof white wooden chairs faced a stage built just for thispurpose.The PhD students were seated near the front. When I tookmyseat, I felt a flush of relief-that I had carried the flag theentireway, that I had made it through six years of struggle, that Iwasno longer handcuffed to a wall.”9

  Her poignant message is written with the wisdom of a lifeversedin family, community, and academia while doing presenta-tions,researching, and training law enforcement. From each ofthoseexperiences, Dr. Eberhardt retains an optimistic, albeitre-alistic, view that applied learning holds hope for positivechangemuch more so than retrospective blame or bitterness. All ofusenter our work as professionals with histories we may neversharewith others. These experiences carry and drive us to wherewe are aslawyers or psychologists; social workers or physicians;mediatorsand case workers; academics or researchers.

  Although Dr. Eberhardt did not write this book forlawyersspecifically, she did write about the impact of implicitbias onAmerican society and its institutions. Explained in languageac-

  6 BRYAN STEVENSON, JUST MERCY: A STORY OF JUSTICE ANDREDEMP-TION (2014).

  7 It is important to heed a lesson of the past still active inour time. SeeRICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 79(1990) (“In anage not only of science but of hostility to almostall forms of authority, it is easyto forget how many of ourbeliefs, including scientific ones, are based on au-thority ratherthan on investigation.”).

  8 EBERHARDT, supra note 1, at 95.9 Id. at 110.

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  cessible to professionals and laypersons (an art itself), shegath-ers reams of research proving the biological andenvironmentalconditions which render bias so deeply embedded andseemingly,in certain periods of time, intractable to those of usless optimis-tic (or more Hobbesian) about human frailties than Dr.Eber-hardt.10 Of critical consequence, her aggregation ofresearchmakes visible the intersectionality of implicit bias as ameans, forthose with power and privilege, to utilize the law andlegal sys-tems to categorize others as worthy or unworthy of equalor evenequitable protection.11

  Applying research to implicit biases has the benefit ofen-gaging moral and ethical decision making as intentional,rational,

  10 For anyone who wishes to argue that policy and law areaccidentalrather than intentional and instrumental, please take afew moments and readthe background and history which requireddecades before enactment of S.3178 (115TH), JUSTICE FOR VICTIMS OFLYNCHING ACT OF 2018, https://www.govtrack.us/congress/bills/115/s3178/text. The U.S. Department of Justiceissued its own trainingpolicy in 2016. See DEPARTMENT OF JUSTICE, OFFICE OFPUBLIC AFFAIRS,DEPARTMENT OF JUSTICE ANNOUNCES NEW DEPARTMENT-WIDE IMPLICIT BIASTRAINING FOR PERSONNEL (JUNE 27, 2016),https://www.justice.gov/opa/pr/department-justice-announces-new-department-wide-implicit-bias-training-personnel(“Through the new training, over 28,000 de-partment employees willlearn how to recognize and address their own implicitbias, whichare the unconscious or subtle associations that individuals makebe-tween groups of people and stereotypes about those groups.Implicit bias canaffect interactions and decisions due to race,ethnicity, gender, sexual orienta-tion, religion and socio-economicstatus, as well as other factors. Social sciencehas shown that allindividuals experience some form of implicit bias but thattheeffects of those biases can be countered throughtraining.”).

  See Also

  Famous & Notable Nurses in History99 está contratando CX Fintech Analyst em: Greater São Paulo Area | LinkedIn99 está contratando Management & Control Manager - Affirmative for Women em: Greater São Paulo Area | LinkedIn

  11 The concept of “intersectionality” has important applicationwhenstudying the impact of racial bias and governmental andorganizational systems.See Gwendolyn M. Leachman,Institutionalizing Essentialism: Mechanisms ofIntersectionalSubordination within the LGBT Movement, 2016 WIS. L. REV.655, 659(“In a robust body of scholarship spanning nearly four decades,inter-sectionality scholars have documented how identity-basedmovements tend tostake out priorities that address the concerns ofmore privileged movement con-stituents while overlooking theconcerns of movement constituents experienc-ing multiple,intersecting forms of subordination. Pioneers ofintersectionalitytheory in the legal academy have writtenextensively on this dynamic in thecontext of the antiracist andfeminist movements.”); Serena Mayeri, Intersec-tionality and theConstitution of Family Status, 32 CONST. COMMENT. 377, 378(2017)(“Intersectional harms often underpinned legal assaults on familystatusinequalities.”).

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  and cognitive choice.12 Thus, this book review, and the articlesinthis issue of the AAML Journal, are intended to recommenditsreading and application to our professional field. Ratheropenly,it is also intended to challenge judges (who are lawyers),lawprofessors (who are lawyers with students), as well aslawyers(who are lawyers with clients) about the intentionalapplicationof the science of bias when teaching and traininglawyers andpracticing law.13 The legal system in the United Stateshas strug-gled to implement more empirically-based knowledge as ameansto reinforce advocacy and judicial decisions (and conduct)lessprone to implicit bias errors.14 The current generation oflawyers,

  12 See Thomas L. Shaffer, Practice of Law as Moral Discourse, 55NOTREDAME L. REV. 231, 238 (1979) (“The lawyer who serves needs isostensiblymore a servant of the system than the lawyer who serveswants, but both areservants of the system. The moral justificationfor serving the system is that thesystem is a source of goodness.But generalized, principled fealty to the systemis fealty to power,which assumes that power is the way to goodness.”); WilliamH.Simon, The Trouble with Legal Ethics, 41 J. LEGAL EDUC. 65, 69(1991)(“This discussion and its tensions among scholars is not newto the profession oflaw and teaching lawyers to be lawyers. Thetragedy is that the professionalaspiration to connect directly acommitment to general social values with every-day practical tasksis doomed to disappointment. The ethically ambitious lawyercomes tothe profession attracted to the idea that she will contribute tojusticein her day-to-day practice but then finds that her practiceis governed by normsthat frequently oblige her to do things that,if she dares to consider the issue,she believes are unjust.”).

  13 See Justin D. Levinson & Danielle Young, Different Shadesof Bias:Skin Tone, Implicit Racial Bias, and Judgments of AmbiguousEvidence, 112VA. L. REV. 307, 315 (2009) (“Several commentatorshave considered the wayimplicit biases are either facilitated bythe law itself or how legal decision-mak-ers may unintentionallypropagate these biases. These projects can be distin-guished fromstudies of implicit bias in society because instead ofconsideringhow law should react to the implicit biases of societalactors, they consider howthe law itself may propagate bias.”); ChadMichael McPherson & MichaelSauder, Logics in Action: ManagingInstitutional Complexity in a Drug Court,58 ADMIN. SCI. Q. 165, 188(2013) (“Our findings remind us that court decisionsare not made inlegal vacuums and that focusing on standardized proceduresand rolescan only take us so far in explaining how legal decisions arecon-structed. Informal aspects of deliberations, especially theprofessional and insti-tutional considerations in which the courtis embedded, influence decisionmaking and the severity ofoutcomes.’”).

  14 This is a very sensitive subject as it pertains to sustainingthe publictrust in objective judicial decision making but one thathas been and shouldcontinue to be the subject of study andtraining. See Michele Benedetto Neitz,

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  including those who will follow as AAML Fellows, willbenefitfrom reading the themes in this book because, as Dr.Eberhardtargues, “neither our evolutionary path nor our presentculturedooms us to be held hostage by bias. Change requires a kindofopen-minded attention that is well within reach.”15

  II. Bigotry and PrejudiceDr. Eberhardt begins with seeminglysimple questions re-

  lated to various research methodologies, includingneuroscience,social psychology, and well-established aptitudetesting.16 It is

  Socioeconomic Bias in the Judiciary, 61 CLEV. ST. L. REV. 137,165 (2013)(“Studies showing the pervasive nature of implicit biashighlight the need todevote more attention to identifyingsocioeconomic bias in its implicit form.Indeed, a review of FourthAmendment and child custody cases reveals that thisbias is indeedpresent in American courts.”); Gregory S. Parks, JudicialRecusal:Cognitive Biases and Racial Stereotyping, 18 N.Y.U.J. LEGIS. &PUB.POL’Y 681, 696 (2015) (“Judges are human. They suffer from thesame frailties,flaws, and foibles that the rest of us do. Thatincludes being subject to a wholehost of cognitive biases. Giventhe extent to which the valuation of whitenessand devaluation ofblackness permeates American society, it is no surprise thatallracial groups tend to automatically or subconsciously preferencewhitenessover blackness.”).

  15 EBERHARDT, supra note 1, at 7. The tensions betweenapproaches tolaw school education and its efficacy is not new. SeeJerome Frank, Why not aClinical Lawyer-School?, 81 U. PENN. L. REV.907, 915 (1933) (“A medicalschool dominated by teachers who hadseldom seen a patient or diagnosed theailments of flesh-and-bloodhuman beings or actually per formed surgical oper-ations, would notbe likely to turn out doctors equipped with a fourth part ofwhatdoctors ought to know. But our law schools are not doing as muchfor lawstudents.”).

  16 The most well-known and studied of these tests is theimplicit associa-tion test (IAT) which is “designed to measureassociations that we don’t evenknow we have.” EBERHARDT, supra note1, at 39. See generally Frederick L.Oswald, et al., PredictingEthnic and Racial Discrimination: A Meta-Analysis ofIAT CriterionStudies, 105 J. PERSONALITY & SOC. PSYCHOL. 171 (2013). TheIAThas been used to test judges and lawyers in some recent research.Theresults are interesting but most studies do not relate to statefamily law judges,who may be elected or appointed, and the uniqueenvironment of child protec-tion and child custody. See TheodoreEisenberg & Sheri Lynn Johnson, ImplicitRacial Attitudes ofDeath Penalty Lawyers, 53 DEPAUL L. REV. 1539 (2003);Justin D.Levinson, et al., Judging Implicit Bias: A National Empirical StudyofJudicial Stereotypes, 69 FLA. L. REV. 63 (2017); Justin D.Levinson & DanielleYoung, Implicit Gender Bias in the LegalProfession: An Empirical Study, 18DUKE J. GENDER L. & POL’Y 1(2010).

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  relatively simple to look at explicit bias through the behaviorandwords of white nationalists and others who seek to justifyandencourage lynching, genocide, mass deportations, encampments,andisolation as if the other group is a disease or not human atall.17Many of us, privileged by birth and opportunity, know thehistory ofthe last two centuries and how intolerance, hate, andviolence, fedby the evil of ideologues and bigots, has so devas-tatingly harmed,and continues to harm, families andinstitutions.18

  Dr. Eberhardt metaphorically describes her experienceswith thesedifferent schemas as the “The Science of the ScaryMonster”19 drawnfrom a story about her elementary school sonwondering what she didfor work as a social psychologist. As shethought about eugenics andracism, she thought of it anew as a“monstrous bias so scary to me:it never seemed to die.”20 In thecontext of her research and thepowerful connection to dehu-manization and violence as that deeplyembedded monster, shefound herself “disheartened and weary”21 withwhat is too oftentrue: professionals may be more inclined toexpress bias as afunction of research-talk such that “your darkskin is seen as astain that no measure of progress can cleanlyerase. And thatmany of my colleagues—the tribe of myprofession—harboredthose same associations.”22

  17 This balancing of individual rights to free speech and theprotection ofgroups from oppression and communities’ rights to befree from violence anddisruption is not merely a problem in theUnited States. See Jillian Rudge, Aus-tralians’ Right to beBigoted: Protecting Minorities’ Rights from the Tyranny oftheMajority, 41 BROOK. J. INT’L L. 825, 828 (2015) (“Consequently,while Aus-tralians are free to be bigoted under international anddomestic human rightslaws, those laws also guarantee Australiansthe right to be protected from dis-crimination, hate speech, andracial vilification through legal measures like theRDA [RacialDiscrimination Act 1975].”).

  18 Few books can make that point as pessimistically concerningappeals toracism and its effectiveness when inciting a mob asclearly as HANNAH AR-ENDT, THE ORIGINS OF TOTALITARIANISM 157(1951) (new edition with addedprefaces 1973) (“For no matter whatlearned scientists may say, race is, politi-cally speaking, not thebeginning of humanity but its end, not the origin of peo-ples buttheir decay, not the natural birth of man but his unnaturaldeath.”).

  19 EBERHARDT, supra note 1, at 134.20 Id. at 142.21 Id. at148.22 Id.

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  Bias is not, however, the same as bigotry or prejudice.Somepeople might think that obvious, but really it is not sincetheterms are misused for political or tactical advantage indebate.Prejudice may be a preconceived opinion not based on reasonoractual experience, but the terms “bias” and “prejudice” arenotsynonymous: neither is “mutually inclusive nor mutuallyexclu-sive. Prejudice may be more overt and forceful, while biashas atendency to be less overt and more sublime.”23 Bigotry, or theactand agency of being a bigot, is the realm of the ideologuewhichgenerally means a rigid and unwavering reliance on categoriesofgroups based upon strict inclusion and exclusion criteria.24 Inthisway, the “other” is either in or out and pain and death anddepri-vation may be inflicted merely by that status of exclusion orthecategorization of that group as property not persons.25

  Bias, in its categorical forms, is different. Explicit biasesareattitudes and stereotypes that are consciously accessible and,“ifno social norm against these biases exists within a givencontext,a person will freely broadcast them to others,” but suchnorms(outside a group which shares those norms) may mean that“ex-plicit biases can be concealed to manage the impressionsthatothers have of us.”26 By contrast, “implicit biases areattitudesand stereotypes that are not consciously accessiblethrough intro-

  23 Donald C. Nugent, Judicial Bias, 42 CLEV. ST. L. REV. 1, 3(1994).24 There are many sources for this point in socialpsychology and political

  science. See John Corvino, Puzzles About Bigotry: A Reply toMcClain, 99 B.U.L. REV. 2587, 2599 (2019) (“One upshot of theaccount of bigotry sketched hereis that it is an essentiallyinternal vice. Observers have only indirect access tothe operationsof the alleged bigot’s mind and heart. Naming bigotry thus callsforepistemic humility balanced by the urgency of containing its spreadand mit-igating its effects.”); Ken McGrew, Challenging Bigotry inthe Freirean Class-room, 33 INT’L. J. QUALIT. STUD. IN EDUC. 212,214 (2020) (“The Merriam-Webster dictionary defines bigotry as thestate of mind of a bigot, ‘obstinatelyor intolerantly devoted toone’s own opinions and prejudices,’ synonymous withdogmatism,small-mindedness, and sectarianism. Fascism and white supremacyrelyon the dogmatism and bigotry of those who advance them. Fascistandwhite nationalist leaders rely on the willful ignorance of theirfollowers.”).

  25 For an integrated review of literature and various forms ofbigotry, seeKRISTIN J. ANDERSON, BENIGN BIGOTRY: THE PSYCHOLOGY OFSUBTLEPREJUDICE (2010); LINDA C. MCCLAIN, WHO’S THE BIGOT?:LEARNING FROMCONFLICTS OVER MARRIAGE AND CIVIL RIGHTS LAW(2020).

  26 Jerry Kang, et al., Implicit Bias in the Courtroom, 59 UCLAL. REV.1124, 1132 (2011).

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  spection. If we find out that we have them, we may indeedrejectthem as inappropriate.”27 Of critical importance, Dr.Eberhardtexplored the correlative research related to “transmissionofbias” which means that, “unsurprisingly, studies confirm thatbi-ased parents tend to produce biased children who are biasedaswell.”28

  Implicit bias is by no means an excuse for explicitbias,prejudice, or bigotry. The crux of these findings, however,has asubtext from classroom to courtroom. What happens when apro-fessional discipline transmits and imbues its culture withimplicitbiases which may be socio-economic, regional, or based uponste-reotypes or differences from privileged norms? If so, how doweteach and train law students, lawyers, and judges to applythisrich body of science? As Dr. Eberhardt wrote in the contextofrace but applicable to a broader ideal, “When we’re afraid,un-willing, or ill equipped to talk about race, we leave youngpeopleto their own devices to make sense of the conflicts anddisparitiesthey see. In fact, the color-blind approach hasconsequences thatcan actually impede our movement towardequality.”29

  In truth, implicit bias has more appeal as a defense forpro-fessionals because pointing at the unconscious seeminglynegatesa duty to reflect before acting tacitly or intentionallytoward atargeted group.30 This is not much of an argument as theresearchshows that implicit biases are formed by “implicitattitudes (un-conscious preferences) and implicit stereotypes(nonconscious

  27 Id.28 EBERHARDT, supra note 1, at 39.29 Id. at 217–18.30 TheAAML Journal has published various articles pertaining tofamily

  law practice, experts, and implicit bias. See Benjamin D. Garber& Robert A.Simon, Individual Adult Psychometric Testing andChild Custody Evaluations:If the Shoe Doesn’t Fit, Don’t Wear It,30 J. AM. ACAD. MATRIMONIAL LAW.325, 334 (2017) (“We recognize theinvisible and invasive effects of confirma-tional bias and theevaluator’s associated need for checks and balances withregard tomany types of cognitive and implicit bias.”); Dana E. Prescott& Di-ane A. Tennies, Bias Is a Reciprocal Relationship:Forensic Mental Health Pro-fessionals and Lawyers in the FamilyCourt Bottle, 31 J. AM. ACAD.MATRIMONIAL LAW. 427 (2018) (reviewingliterature). For a recent article re-lated to the implications ofbias when using assessment tools (even as the au-thors phrase thepoint differently), see Tess M.S. Neal, et al.,PsychologicalAssessments in Legal Contexts: Are Courts Keeping“Junk Science” Out of theCourtroom?, 20 PSYCHOL. SCI. IN PUB. INT.135 (2019).

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  mental associations between a group and a trait).”31 Implicitbias,for example, in family law court systems may be moresocio-eco-nomic or gender-based given the volume of cases regardingchildprotection and non-married parents, though otherdemographicfactors like race and mental health are often implicatedor over-lapping as well. As our current systems are structured,many ofthese parents appear before family courts with limitedresources,often self-represented or with overwhelmedcourt-appointed law-yers and guardians ad litem and often withoutindependent fo-rensic experts or access to affordable and sustainedmental healthand alternative dispute resolution services.32

  Nevertheless, implicit bias is not a static orone-size-fits-allevent but may change with life experiences, socialnorms, andsystemic pressures on sentencing or child custodydecision mak-ing, for example.33 Knowing that is a part of thehuman condition

  31 Praatika Prasad, Implicit Racial Biases in ProsecutorialSummations:Proposing an Integrated Response, 86 FORDHAM L. REV.3091, 3099 (2017).

  32 See Neitz, supra note 14 at 159 (“Judicial discretion,coupled with thefact that most judges are economically privilegedand may ‘exaggerate’ the im-portance of wealth in a child’s life,creates the potential for implicit socioeco-nomic bias in childcustody cases.”). The concern with gender bias in familycourt is anongoing topic fraught with high stakes but beyond the scope ofthisbook review. See Molly Dragiewicz, Gender Bias in the Courts:Implications forBattered Mothers and Their Children, 5 FAM. &INTIMATE PARTNER VIOLENCEQ. 13 (2012); Ana Jordan, ‘Dads Aren’tDemons. Mums Aren’t Madonnas.’Constructions of Fatherhood andMasculinities in the (Real) Fathers 4 JusticeCampaign, 31 J. SOC.WELFARE & FAM. L. 419 (2009); Joan S. Meier & SeanDickson,Mapping Gender: Shedding Empirical Light on Family Courts’Treat-ment of Cases Involving Abuse and Alienation, 35 LAW &INEQ. 311 (2017).

  33 See Todd Brower, What Judges Need to Know: Schemas, ImplicitBias,and Empirical Research on LGBT Parenting and Demographics, 7DEPAUL J.WOMEN, GENDER & L. 1, 23 (2017) (“Second, judges,psychologists, socialworkers, evaluators, and others who haveschemas about LGBT parents andtheir families may find that implicitbias unconsciously shapes those assess-ments about children’s bestinterests. Indeed, courts have often used the bestinterestsstandard in ways that demonstrate bias against LGBT parents.”);Sa-rah Valentine, When Your Attorney Is Your Enemy: PreliminaryThoughts onEnsuring Effective Representation for Queer Youth, 19COLUM. J. GENDER & L.773, 776-77 (2010) (“It is generallyaccepted that bias or prejudice againstqueers is bothindividualized and part of society at large. Multiple studiesindi-cate that individuals who work in the legal system—whetherthey are judges,attorneys, clerks, or other administrativepersonnel—are susceptible to thesebiases. Sexual orientation biasmay be explicitly evident as when a victim’s sex-ual orientation isthe reason behind a murderer’s lenient sentencing, a mother

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  requires training and the cognitive, not emotional or visceral,ca-pacity for reflection. The risk is that those “heuristics,” ormentalshortcuts, may connect to biases by finding solutions toproblemsquickly but concomitantly implicating the “vice ofintellectual ar-rogance” because “the thinker remains unable toleave his or herown perspective.”34 Stated another way, negativeattitudes to-ward certain social groups or personal characteristicsmay “oftenexist at the margins of awareness and are not easilyaccessible toindividuals.”35

  The problem becomes particularly dangerous when thoserules ofthumb are “self-centered.” This means that “self-centeredness isfound in the general human tendency to use theself as an anchoragainst which the other is compared and theworld is known” so thatwe “tend to assume too early that ourmemories, judgments,intuitions, and beliefs are sufficient for theepistemic task athand.”36 As the authors concluded, self-cen-tered thinking “is not,in-and-of-itself, intellectual arrogance,”but such arrogance may beself-centered thinking when a personholds a belief despite theevidence.37

  Blending bigotry and bias (and its variations) assynonyms,therefore, has serious consequences for the lawyer and thepro-

  losing her child or an eighteen-year-old disabled boy receivinga sentence thir-teen times longer for having sex with an underageboy than he would havereceived if he had sex with an underagegirl.”).

  34 Peter Samuelson & Ian M. Church, When Cognition TurnsVicious:Heuristics and Biases in Light of Virtue Epistemology, 28PHIL. PSYCHOL. 1095,1106 (2015); see also Christine Jolls &Cass R. Sunstein, The Law of ImplicitBias, 94 CALIF. L. REV. 969,973-74 (2006) (“In cognitive psychology and be-havioral economics,much attention has been devoted to heuristics, which arementalshortcuts or rules of thumb that function well in many settings butleadto systematic errors in others.”); Mary Kynn, The ‘Heuristicsand Biases’ Bias inExpert Elicitation, 171 J. ROYAL STAT. SOC’Y:SERIES A (STATISTICS IN SOCI-ETY) 239, 242 (2008) (“One explanationfor these human deficiencies is thathumans use a series ofheuristics for judging probabilities, which may lead toseriousbias. Heuristics are ‘rules of thumb’ that are used to findsolutions toproblems quickly. They may or may not find the bestsolution.”).

  35 William J. Hall, et al., Implicit Racial/Ethnic Bias AmongHealth CareProfessionals and Its Influence on Health Care Outcomes:A Systematic Review,105 AM. J. PUB. HEALTH e60, e61 (Dec.2015).

  36 Samuelson & Church, supra note 34, at 1106.37 Id.

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  fession, as well as clients.38 In the absence of intentional anditer-ative refinement of cognitive and emotional skillsets,implicitbiases may cause lawyers to react emotionally andviscerallybased upon the pressure to conform to the organizationalheuris-tics of a profession demanding speed and volume. Inpractice,bias may generate alliances with a client against anotherparentbased upon no data but the statements of one person. Biasmayreject the intelligent and mindful use of multiple hypothesestoexplain a family system or a child’s distress. Unhinged bias byagroup with power may create thought distortions at all levelsofpolicy and practice and is worthy of discussion incourtrooms.39The fact that something like bias is part of the humanconditiondoes not make it an excuse for professionals failing towork sys-temically to reduce such errors when strategies andmethods areavailable.

  III. Implicit Bias and InjusticeThe phrase “epistemic injustice”has found its way into some

  legal writing when discussing systemic problems with thetreat-ment of minority or oppressed groups or the equitableallocationof resources and access to justice.40 Nevertheless,because getting

  38 See David B. Wilkins, Fragmenting Professionalism: RacialIdentity andthe Ideology of Bleached Out Lawyering, 5 INT’L. J.LEGAL PROF. 141, 143(1998) (“Proponents of bleached outprofessionalism assume that the currentnorms of professionalresponsibility were developed outside of the context ofanyparticular identity. This is simply false. Despite pervasiveappeals to neu-trality and universality, current professional normsreflect the particular biogra-phies, beliefs, and expectations ofthe narrow and relatively hom*ogeneousgroup who created the modernAmerican legal profession; a group from whichblacks (as well asmany others) were scrupulously excluded.”).

  39 See Kang, et al., supra note 26, at 1126 (“Given thesubstantial andgrowing scientific literature on implicit bias, thetime has now come to confronta critical question: What, ifanything, should we do about implicit bias in thecourtroom? Inother words, how concerned should we be that judges, advo-cates,litigants, and jurors come to the table with implicit biases thatinfluencehow they interpret evidence, understand facts, parse legalprinciples, and makejudgment calls?”).

  40 For an interesting discussion concerning the role of supremecourts, seeFederica Liveriero & Daniele Santoro, Proceduralismand the Epistemic Di-lemma of Supreme Courts, 31 SOC. EPISTEMOLOGY310 (2017). The interna-tional literature is robust and provideshelpful guidance for examining forms orepistemic injustice inAmerican family courts. See Dipika Jain & Kimberly M.

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  at the truth of contested facts is at the heart of our courtsystem,“recent attention to epistemic injustice is of specialinterest tothose concerned with the law.”41 There are manydefinitions, butfor purposes of this book review this form ofinjustice occurswhen “one’s capacity as a knower is wrongfullydenied.”42 Forexample, when “a hearer assigns a speaker lesscredibility thanhe or she deserves because of biases, as in ourcase, when ahearer does not rely on the testimony of a person witha mentaldisorder because he or she considers individuals withmental dis-orders to be incapable of rational reasoning.”43 Thisreality couldsubstitute any number of demographics to make the samepointabout what may occur when speakers are seen as less crediblebylawyers, judges, therapists, or forensic evaluators, amongothersoperating in the family court system.

  Legal, psychological, and sociological scholars have allex-amined judicial decision making to determine how judgesdecidecases.44 The methods of analysis and theories posed arevaried,rich, and complex. Some find that political agendas orback-ground and experience inform decision making, while othersar-gue that judges are influenced by precedent. One theme,however,that resonates throughout much of the literature is thatjudges,like all of us, are similarly “swayed by heuristic decisionmaking,friendships, beauty, the strength of a case, public opin-ion, fearof reversal, and the normal set of cognitive biases towhich we allare subject: expectation bias, hindsight bias, confir-

  Rhoten. Epistemic Injustice and Judicial Discourse onTransgender Rights inIndia: Uncovering Temporal Pluralism, 26 J.HUM. VALUES 30, 30 (2020) (“Acourt’s inability to fully see andhear a litigant may (and often does) have signif-icant effects onthe successfulness of their claim. Further, to be legible assub-ject-citizens, and in order to receive remedy from the legalsystem, individualsmust state a claim cognizable by the State.Legal legibility is, thus, essential to acomplainant’s claim;without the words to speak into being a recognized griev-ance, thecourt is a silent room.”).

  41 Michael Sullivan, Epistemic Justice and the Law, in THEROUTLEDGEHANDBOOK OF EPISTEMIC INJUSTICE 294 (Ian James Kidd, etal., eds., 2017).

  42 Rena Kurs & Alexander Grinshpoon, Vulnerability ofIndividuals withMental Disorders to Epistemic Injustice in BothClinical and Social Domains, 28ETHICS & BEHAV. 336, 337(2018).

  43 Id.44 See supra notes 32-33.

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  mation bias, tunnel vision, and so forth.”45 Or, as Dr.Eberhardtstates, “speed and ambiguity are two of the strongesttriggers ofbias” such that when “we are forced to make quickdecisions us-ing subjective criteria, the potential for bias isgreat.”46

  For more than forty years, the complex world of fragilefami-lies has ensured a growing volume of cases that funnelparentsand children through the adversarial portal. Lawyers,judges,clerks, security personnel, mediators, therapists, casemanagers,and many other professionals perform extraordinary featseveryday managing many thousands of family transactions.Neverthe-less, human thoughts and behaviors (professional and lay)gradu-ally conform to such an adversarial environment and therules,rewards, and sanctions imposed by those with authority. Yetthepower of judges (and others with delegated expert or legalau-thority) to sanction or reward means a correlative duty totrainand learn strategies to reduce the influence of implicitbiases orheuristic thinking.47

  If the most educated and privileged should know better butallowthe language of science (think phrenology and eugenics)48

  45 Jane Campbell Moriarty Will History Be Servitude: The NASReport ofForensic Science and the Role of the Judiciary, 2010 UTAHL. REV. 299, 317-18.

  46 EBERHARDT, supra note 1, at 285.47 See Jan L. Jacobowitz,Lawyers Beware: You Are What You Post—The

  Case for Integrating Cultural Competence, Legal Ethics, andSocial Media, 17SMU SCI. & TECH. L. REV. 541, 543 (2014) (“Someof our cultural differencesare explicit and noticeable such as thedifferences in language, religious prac-tice, gender, or age.However, some of our culturally influenced perceptions ofoursurroundings are so deeply ingrained that we are generally unawareof im-plicit biases that may influence our communication andreactions.”); Prasad,supra note 31, at 3099 (“To reduce implicitracial biases’ unfair effects, lawyers,judges, and jurors must bemade aware of the existence and functioning of im-plicit racialbiases, including their own. This will make it more likely thattheseactors will work toward controlling their biases and becognizant of the impactimplicit biases may have on theiractions.”).

  48 I have a full-size phrenology skull which I bring with me tocourt onoccasion to make a point. But that is another story foranother day. For thoseinterested in this topic, a thought-provokingarticle makes many of these pointsabout the nature of law, seePierre Schlag, Law and Phrenology, 110 HARV. L.REV. 877, 917 (1997)(“Phrenology ultimately ran up against certain externalbarriers thebrutal reality of physiological nature. In contrast, it is notalto-gether clear what cold, hard realities can keep thedevelopment of law or itsdiscipline in check. Unlike phrenology,law and its discipline are well positionedto proliferate - toassert their rule with ever more”).

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  as a foundation for epistemic injustice in various forms, thenweneed to weed that out before it invades the courts. As lawyers,wecan react to protect others from these larger and more visibleharmsby employing rules and case law, and appealing to politicalbodiesthrough collective action to challenge behaviorviolatingconstitutional and human rights. These are the rules thatguidetruth-finding, though with fair criticism for rigidity andsome-times looping silliness. What creates reflection for lawyersis thenormative nature of simple questions drawn from our dailylivesand those of clients who enter the judicial portal. As Dr.Eber-hardt suggests as normal daily examples, think about theseex-periences before clients enter the office door or a legalclinic:

  Is clutching your purse when you see a black man a reflectionofprejudice? Is presuming a Latino doesn’t speak English logical orig-norant? Is it bias speaking when you ask a young black womanwhowas admitted to Harvard whether “that’s the one inMassachusetts?”Or when you compliment an Asian student on thosehigh math scores?When you think a teenager’s music is louder thatit is, is that bias?What about asking for a different nurse becauseyours has tattoos?49

  Dr. Eberhardt challenges us with these questions as shebringsscience to the coarse strains of anti-intellectualismandanti-science dominant even today. What then can research teachusabout answers to questions like “how do we know when weare beinginsensitive or unfair” and how “can we learn to checkourselves andmute the negative impact that bias can have?”50 Asshe explored thestory of Tiffany Crutcher and her twin brother’sdeath in a shootingby a police officer, she watched the videotapefollowing theofficer’s acquittal by jury and wrote that the “find-ings of yearsof research on implicit bias assume new clarity andgain newmeaning.”51 As then noted, “the value of science is thatit allowsus to pull back from the isolated case and examinelarger forces atwork.”52 Those larger forces include the debateover epistemicinjustice in the courts and the role of science andresearch inhelping minimize harm and improve the probabilityof systemicjustice.

  49 EBERHARDT, supra note 1, at 42.50 Id. at 43.51 Id. at 57.52Id.

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  Doing epistemic justice, therefore, is not just a matter oftheappearance of impartiality but the delivery of proceduresandoutcomes, equitably and efficiently, for individuals andcommu-nities. As stated in the book’s introduction, “Confrontingimplicitbias requires us to look in the mirror.”53 And this mirrorhasbeen held up to family courts and all who are privileged tobelicensed as lawyers or sworn in as judges.54 The structuralaspectsof lawyer education itself as a mirror may encourageimplicit bias

  53 Id. at 7. Courts in criminal cases have begun to considerspecific juryinstructions and voir dire relative to implicit bias.See State v. Williams, 929N.W.2d 621, 644 (Iowa 2019) (“Inaddition, the advent of the large body ofsocial psychologyliterature on implicit bias means that if a lawyer is to engageineffective voir dire, the advocate cannot skate over the surfacewith collectivequestions to jurors about explicit racial bias,which all will deny in any event. Amore individualized approach isrequired if implicit bias is to be explored.”);State v. Plain, 898N.W.2d 801, 817 (Iowa 2017) (“While there is general agree-mentthat courts should address the problem of implicit bias in thecourtroom,courts have broad discretion about how to do so. One ofthe ways courts haveaddressed implicit bias is by giving juryinstructions similar to the one proposedby Plain in this case. Westrongly encourage district courts to be proactive aboutaddressingimplicit bias; however, we do not mandate a singular method ofdo-ing so.”).

  54 Maine’s attorney oath is purported to be the longestcontinuous onegiven in the United States (as drawn fromMassachusetts when Maine became astate in 1820 but Massachusettstook a break for a bit as the story goes at swear-ing in ceremoniesin Maine). It is still worth reading as an entire course couldbetaught from these very words:

  You solemnly swear that you will do no falsehood nor consent tothedoing of any in court, and that if you know of an intention tocommitany, you will give knowledge thereof to the justices of thecourt orsome of them that it may be prevented; you will notwittingly or will-ingly promote or sue any false, groundless orunlawful suit nor give aidor consent to the same; that you willdelay no man for lucre or malice,but will conduct yourself in theoffice of an attorney within the courtsaccording to the best ofyour knowledge and discretion, and with allgood fidelity, as wellas to the courts, as to your clients. So help youGod.

  4 ME. REV. STAT. § 806 (2019). Family courts have also addressedthe issue ofimplicit bias in custody decisions. See Khawam v.Wolfe, 214 A.3d 455, 461-62(D.C. 2019) (“Ms. Khawam and amicicontend that the necessaries doctrinemust be read narrowly in orderto reduce the effects of implicit bias on custodydecisions,particularly where claims of domestic violence are raised. We donotdoubt that implicit bias is a matter of real concern. See, e.g.,Styczynski v.MarketSource, Inc., 340 F. Supp. 3d 534, 550 (E.D. Pa.2018) (“[T]he judiciaryhas come to recognize the challenges judgesface in overcoming implicit bias

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  as a shorthand or heuristic for teaching how to give clientadviceunder compression in a system with a shortage ofresources.55The lawyer–client relationship is, after all, “ahierarchical one,with lawyers holding the reins of what story totell and how totell it. Class and race can complicate even the mostwell-inten-tioned lawyer’s choices.”56 This means a more preciseandprofound duty to aspiring and current practitioners to assurethatthe skills to listen and receive information are as embeddedinavoiding epistemic injustice as the need to understand therulesof evidence from the classroom to the courtroom.57

  IV. ConclusionThe history of lawyer advocacy for civil rights islong and

  honorable, but the other asymmetrical side of that equationisfilled with stories of lawyers defending racism and bias undertheguise of zealous advocacy.58 I do not mean lawyers taking onthe

  . . . .” “We also do not doubt that implicit bias is a matter ofconcern in theparticular context of family law.”).

  55 See Alan M. Lerner, Using Our Brains: What Cognitive ScienceandSocial Psychology Teach Us About Teaching Law Students to MakeEthical,Professionally Responsible, Choices, 23 QUINNIPIAC L. REV.643, 656 (2004)(“One reason for our persistence on our current pathis, I believe, that we havenot incorporated into our teachingscientific discoveries over the past two orthree decades about howpeople learn, what inhibits and enhances their effec-tive use ofwhat we teach, and the effective use of learning to addressemergingproblems, particularly when those problems areprofessionally threatening tothem.”).

  56 Vicki Lens, Judging the Other: The Intersection of Race,Gender, andClass in Family Court, 57 FAM. CT. REV. 72, 83(2019).

  57 The education of lawyers is not limited to those who may findtheir wayto courtrooms. Lawyers have a role in many forms ofepistemic injustice whichimplicates policy and access to justice.See Michael Doan, Epistemic Injusticeand Epistemic Redlining, 11ETHICS & SOC. WELFARE 177, 183 (2017) (“Ofcourse, advocates ofthe law insist that because the ‘financial emergency’ statusis apolitically neutral, essentially technical measure, the law is fairin the senseof being nondiscriminatory or non-prejudicial. The factthat its implementationjust happens to have disproportionatelyimpacted the state’s African-Americanresidents is simply due to thefact that African-Americans happen to live infiscally distressedcities. But matters are not nearly so simple.”).

  58 See Deborah N. Archer, There Is No Santa Claus: The ChallengeofTeaching the Next Generation of Civil Rights Lawyers in aPost-Racial Society, 4COLUM. J. RACE & L. 55, 57 (2013) (“Butthe next generation of social justiceadvocates will not confront apost-racial world when representing people of

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  representation of the worst among us, since that function isatleast as sacred to the right to justice in the literature andcase lawas representing the best among us.59 Nor do I mean that wedonot work with those who are decidedly unlikable and evenincor-rigible and who present a risk to themselves or thecommunity.The public may not understand that value until they arefacedwith prosecution or loss of a child and then theconstitutionalright to zealous and competent advocacy meanssomething muchmore tangible than just the age-old dinnertimequestion of howcan “you” represent the guilty?

  More to the point, narratives constructed by lawyers andjudgesabout clients may appear in the language of blame, help-lessness,and dependency. The client is seen as an object to be“molded andrehabilitated.”60 Every professional discipline, andeach of us inour own sphere, must daily guard about such think-ing though it isoften hard to do in the reality of long days andsleepless nightspermeated by compression. As Professor Lenswrote concerning familycourts:

  Since most of the respondents were women, gender was always asub-text, as they were accused of violating the sanctity ofmotherhood anddominant beliefs about what constituted goodmothering. There waslittle time or room for drawing out thecomplexity of the parents’ lives,

  color. When I tell my clinic students that not only is race anissue in their case,but that their perspective on race is adetriment to their relationship with theirclient, I feel a littlelike a parent finally telling her child that there is noSantaClaus.”); Anita Bernstein, The Zeal Shortage, 34 HOFSTRA L.REV.1165, 1175(2005) (“This erroneous understanding of zeal makesan obvious mistake.‘Zealotry’ is not a synonym for, but rather apejorative twist on, the nounbefore us. One can no more fairlyequate ‘zeal’ with ‘zealotry’ than one can callreligious faith‘fanaticism,’ precision ‘nitpicking,’ careful teaching ‘pedantry,’aslender person ‘emaciated,“’ a sturdier one ‘morbidly obese,’ andso on. Law-yers, of all people, ought to take better care withtheir words.”).

  59 See David Barnhizer, Princes of Darkness and Angels of Light:TheSoul of the American Lawyer, 14 NOTRE DAME J.L. ETHICS &PUB. POL’Y 371,376 (2000) (“The main premise of this essay istherefore that the person who isperforming the lawyer’s missionwell through providing zealous and competentrepresentation to theclient is simultaneously a ‘prince of darkness’ and an ‘an-gel oflight.’ The metaphor of the ‘prince of darkness’ does not stand forevil,but for the application of power and manipulation of people togain the client’sends. Similarly, the ‘angel of light’ does notrepresent the pursuit of specificends that everyone would consider”good,“ as opposed to legitimate ends thatare allowed as legal byour society.”).

  60 Lens, supra note 56, at 78.

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  which were reduced to the sum of a negative act, rather than thecom-plex whole. And while most parents remained silent asnarratives wereconstructed, some resisted, albeit unsuccessfully,to shift them.61

  The same may be said as well of race, sexual orientation,andpoverty.62 Good intentions and youthful optimism (or itscoun-terpart, old lawyer weary cynicism) may be eventuallysubsumedby volume and the press of human processing. NotSoylentGreen,63 of course, but an outcome-based deus ex machinabe-cause experience guides future prediction and that is, afterall, acore role of a lawyer: intervention and interdiction toreduceharm. What matters is the still relevant warning from JusticeOli-ver Wendell Holmes a century ago. He saw, in stark terms,theimpact of intellectual rigidity and emotional impulsivenesswhichgenerates conditions of war and the consequences tosociety:

  Certitude leads to violence. This is a proposition that has aneasy ap-plication and a difficult one. The easy application is toideologues,dogmatists, and bullies—people who think that theirrightness justifiesthem in imposing on anyone who does not happento subscribe totheir particular ideology, dogma or notion of turf.If the conviction ofrightness is powerful enough, resistance to itwill be met, sooner orlater by force. There are people like this inevery sphere of life, and itis natural to feel that the world wouldbe a better place withoutthem!64

  Experience for lawyers matters, of course, as does adaptionandflexibility for that is what clients need even when theychoose torisk more based upon their own heuristics or emotions.In criminalcases it is plea bargaining and in child custody or

  61 Id.62 See Leah A. Hill, Do You See What I See—Reflections onHow Bias

  Infiltrates the New York City Family Court—The Case of the CourtOrderedInvestigation, 40 COLUM. J.L. & SOC. PROBS. 527, 531(2006) (“That the FamilyCourt is ill-equipped to address the needsof the hundreds of thousands of caseshandled therein is not news.Exploding caseloads, complex problems, and mini-mal resources arejust a few of the ingredients that combine to undermine theCourt’sability to fulfill its promise. What has been given less attentionuntilvery recently is the extent to which the Family Court’sfailures disproportion-ately impact low-income families ofcolor.”).

  63 For that meaning, seehttps://www.youtube.com/watch?v=6zAFA-hamZ0.

  64 Oliver Wendell Holmes, Jr., GOOD READS,https://www.goodreads.com/quotes/360092-certitude-leads-to-violence-this-is-a-proposition-that-has(lastvisited Mar. 23, 2020).

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  child protection cases it is framed as maybe or probablysomedayyou will have a house, child will come back, you will be outofrehab, you will be. . . or other formulations routine betweenlaw-yers and clients. This duty to acquire knowledge of implicitbi-ases, so clearly described by Professor Eberhardt inothercontexts, is a necessary part of becoming and being a lawyerto-day because ignoring implicit bias when giving that advice isnolonger justified as a defense to epistemic injustice.65

  Indeed, the need for teaching and sustaining that knowledgeisnow based upon decades of research. Professor Eberhardt re-viewsthe substantial literature from business employment andpromotionbias to conclude that, “the power of muscle flexing bya citizenrythat is losing its tolerance for explicit displays of big-otry andracism. Implicit bias may not be as easy to recognize andfight, butit can be addressed.”66 Perhaps legal institutions needto considerimplementation of what Joan Williams has labeledfor business andacademia as “bias interrupters” to facilitate or-ganizationalchanges beyond just the temporary.67 What the legal

  65 The complex role of lawyers when serving the “have-nots” andthentaking on administrative roles is another example of thecomplexity of episte-mic injustice within legal systems. See BethHarris, Representing Homeless Fam-ilies: Repeat PlayerImplementation Strategies, 33 LAW & SOC’Y REV. 911, 912(1999)(“As lawyers collaborate with administrative actors and becomeincreas-ingly integral to the implementation process, however, theymay also compro-mise their own capacity to challenge the legalityof official policies.”).

  66 EBERHARDT, supra note 1, at 293. In a recent andwell-publicized caseinvolving Harvard University’s admissionstandards, the federal district courtconcluded that,“Notwithstanding the fact that Harvard’s admissions programsurvivesstrict scrutiny, it is not perfect. The process would likelybenefit fromconducting implicit bias trainings for admissionsofficers, maintaining clearguidelines on the use of race in theadmissions process, which were developedduring this litigation, andmonitoring and making admissions officers aware ofany significantrace-related statistical disparities in the rating process.”Studentsfor Fair Admissions, Inc. v. President & Fellows ofHarvard College, 397 F.Supp. 3d 126, 204 (D. Mass. 2019).

  67 See Joan C. Williams, Hacking Tech’s Diversity Problem, 92HARV.BUSINESS REV. 94 (2014). This concept was not familiar to mebut was gener-ously shared by Professor Nancy Levit who edits, withgrace and patience, au-thors for the AAML Journal. The credit forits inclusion is important because,as I read the literature, thereis a transferable body of knowledge which maybenefit judicial andlegal academic systems. See Cynthia L. Cooper, Can BiasInterruptersSucceed Where Diversity Efforts Have Stalled?, 25 PERSPECTIVES4(2017).

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  profession cannot ignore is the adoption of interventionswhichreduce the impact and intransience of implicit biases fromclass-room to office to bench trial in family matters given thehighstakes for individuals and society.68

  One of our most prominent AAML Fellows recently wrotethat,“Lawyers are in the persuasion business, not the truth busi-ness.We generally do not know what the truth is: we get infor-mationfrom our clients and-as long as we have no reason tobelieve it isuntrue-present it to the court.”69 For trial lawyers ofour vintagethat is what we were taught and practiced as func-tions of clientloyalty and duty to the system itself. Times havechanged. We needto remind newer lawyers of the historical roleof trials and lawyersas advocates, its strengths and its limitations.We, as lawyers, donot, however, have the luxury of ignoring cur-rent research whichestablishes that the search for truth is morethan just what clientssay and we can reasonably rely upon. Truthis a function of voiceand communication streamed live throughthe minds of lawyers andjudges who then transform and inter-pret that truth.

  In in an adversarial system which exercises power and au-thorityover so many vulnerable populations, the legal professionisrequired to give explicit recognition to bias and its role inre-cycling systemic injustice. The concern is that noteducatingabout implicit bias as part of a larger structural systemexcludesor devalues rather than amplifies voices of the oppressedand dis-enfranchised. All of this discussion does not mean biasesby law-yers should not be grounded in a realistic measureofprobabilities framed by law and guided by lawyer experienceswithjudges, colleagues, and the legal system.70 It does, however,

  68 See Melissa L. Breger, Making the Invisible Visible:Exploring ImplicitBias, Judicial Diversity, and the Bench Trial, 53U. RICH. L. REV. 1039, 1053(2018) (“When one is a judge and a solefinder of fact, even if the decisionmaker is unaware that biascould be shaping the outcome, the consequences canbeserious.”).

  69 Stephen Kolodny, Challenging Retention Bias and AdversarialAlle-giance in Expert Testimony, FAM. LAW. MAG. Fall, 2019, at15.

  70 In an article which explores why caution is needed wheneverscience isbeing used for legal and social change, the author wroteconcerning broadclaims about the IAT, “These kinds of claimsreflect a tradition within academiaof somewhat mischaracterizingwhat has gone before in order to make one’sclaim for the startlingoriginality of the Next Big Thing. No judgment: I have

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  mean that knowledge of implicit bias may avoid a visceralre-sponse to that client in a world where speed matters morethanpeaceful Zen-like thoughts before giving advice. AsProfessorEberhardt generously shared her journey she finished herbookwith optimism: “So many people among us are probing,reaching,searching to do good in the best way they know how. Andthereis hope in the sheer act of reflection. This is where thepower liesand how the process starts.”71 An excellent point and oneworthreplicating.

  used this traditional ploy myself. However, such histories bearabout the samerelationship to what actually happened that theAmerican Law Institute Re-statements bear to the law on the ground.Both are tales told to achieve a stra-tegic goal.” Joan C.Williams, Double Jeopardy? An Empirical Study withImplications forthe Debates over Implicit Bias and Intersectionality, 37 HARV. J.OFL. & GENDER 185, 220 (2014); see also note 16, supra.

  71 EBERHARDT, supra note 1, at 302.

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