SuperBias : The Collision of Behavioral Economics and Implicit Social Cognition

The rapid growth of two prominent areas of legal scholarship with social scientific similarities, behavioral law and economics and implicit racial bias, has overshadowed the fact that scholars have largely failed to consider what happens when phenomena from the two areas collide. In particular, commentators have not investigated whether powerful implicit racial stereotypes may trump even well established behavioral economic principles when decision-makers make risk allocation decisions. Without considering and empirically testing whether behavioral economic principles yield to racial stereotypes, legal scholars not only risk embracing an incomplete model of human behavior, but they also risk advocating policies that may actually reinforce people’s non-conscious need to maintain social hierarchies. This Article considers behavioral economic phenomena in light of implicit social cognition research. It argues that human “irrational” behavior yields to racial stereotypes, and employs an empirical study to test this hypothesis. The results of the study are mixed, but in some circumstances confirm the hypothesis that racial stereotypes are powerful enough to alter economic irrationalities, and therefore function as a “SuperBias,” a bias so powerful that it modifies even existing biases. Building on these results, the Article proposes the creation of a stereotype competent model of behavioral law and economics