Darren Lenard Hutchinson "CONTINUALLY REMINDED OF THEIR INFERIOR POSITION": SOCIAL DOMINANCE, IMPLICIT BIAS, CRIMINALITY, AND RACE 46 Washington University Journal of Law & Policy 23 (2014) The intersection of race and criminal law and enforcement has recently received considerable attention in US media, academic, and public policy discussions. Media outlets, for example, have extensively covered a series of incidents involving the killing of unarmed black males by law enforcement and private citizens. These cases include the killing... 2022
Breann Nu'uhiwa "LANGUAGE IS NEVER ABOUT LANGUAGE": ELIMINATING LANGUAGE BIAS IN FEDERAL EDUCATION LAW TO FURTHER INDIGENOUS RIGHTS 37 University of Hawaii Law Review 381 (Spring, 2015) Language is power, life and the instrument of culture, the instrument of domination and liberation. -Angela Carter Before infants utter their first words or learn to assign meaning to speech, they develop preferences for those who speak their native languages in native accents. As children move into the preschool environment, language differences... 2022
Tess M. S. Neal , Pascal Lienert , Emily Denne , Jay P. Singh A GENERAL MODEL OF COGNITIVE BIAS IN HUMAN JUDGMENT AND SYSTEMATIC REVIEW SPECIFIC TO FORENSIC MENTAL HEALTH 46 Law and Human Behavior 99 (April, 2022) Objective. Cognitive biases can impact experts' judgments and decisions. We offer a broad descriptive model of how bias affects human judgment. Although studies have explored the role of cognitive biases and debiasing techniques in forensic mental health, we conducted the first systematic review to identify, evaluate, and summarize the findings.... 2022
Ande Davis A PREPONDERANCE OF BIAS: WHY ARTIFICIAL INTELLIGENCE SHOULD BE QUALIFIED IMMUNITY'S FATAL FLAW 61 Washburn Law Journal 565 (Spring, 2022) In the wake of the 2020 police killings of Breonna Taylor in Louisville, Kentucky, and George Floyd in Minneapolis, Minnesota, the public discussion of criminal accountability for law enforcement was accompanied by a related discussion around civil remedies for victims. This secondary discussion brought new public attention to the impediments posed... 2022
Elizabeth Lashley-Haynes AB 3070 REMEDIES JUROR SELECTION BIAS 44-FEB Los Angeles Lawyer 10 (February, 2022) California Assembly Bill 3070, which took effect on January 1, 2022, is a welcome effort to unravel decades of deeply embedded laws and practices-- whether formal or informal--that enabled (or at a minimum failed to prevent) the biased exclusion of specific groups of people from serving on a jury. In sum, AB 3070, as codified in Section 231.7 in... 2022
Robert R. Kuehn ADDRESSING BIAS IN ADMINISTRATIVE ENVIRONMENTAL DECISIONS 37 Journal of the National Association of Administrative Law Judiciary 693 (Fall, 2017) Allegations of bias in administrative environmental decisions are common and seemingly increasing because of the significant economic and political interests in many disputes. From high profile national oil spills to local land use matters, parties to environmental proceedings allege conflicts of interest, favoritism, prejudgment of outcomes,... 2022
Craig A. Raabe ADMINISTRATIVE LAW-DECISIONMAKER BIAS AND THE PROCEDURAL DUE PROCESS RIGHTS OF WITHDRAWING EMPLOYERS UNDER THE MPPAA 9 Western New England Law Review 227 (1987) The Court of Appeals for the Third Circuit recently found that a vital provision of the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) violates the fifth amendment due process rights of contributing employers. In United Retail & Wholesale Employees Teamsters Union Local 115 Pension Plan v. Yahn & McDonnell, Inc., a federal court of... 2022
R. Mitchell McGrew ANALYSIS OF A BIAS-BASED EXCEPTION TO THE DOCTRINE OF EXHAUSTION IN WILSON V. BULL 39 American Indian Law Review 617 (2014-2015) The jurisdictional reach of U.S. federal courts invokes a number of complicated questions and requires a delicate balancing act. Courts and legislators must weigh the guiding and limiting parameters of the Constitution as well as important policy considerations. The waters become even muddier when tribal concerns are involved. The courts are... 2022
Amr A. Shalakany ARBITRATION AND THE THIRD WORLD: A PLEA FOR REASSESSING BIAS UNDER THE SPECTER OF NEOLIBERALISM 41 Harvard International Law Journal 419 (Spring, 2000) Revolution ought to be spooky. This Article investigates disciplinary bias in international commercial arbitration. More specifically, it is an attempt to readdress what are generally dismissed today as outmoded Third World concerns that arbitration has tended to resolve international trade and investment disputes in favor of the economic... 2022
Rohit Asirvatham, Michael D. Frakes ARE CONSTITUTIONAL RIGHTS ENOUGH? AN EMPIRICAL ASSESSMENT OF RACIAL BIAS IN POLICE STOPS 116 Northwestern University Law Review 1481 (2022) Abstract--This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops--such as the one announced by the Supreme Court in Whren v. United States-- contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional... 2022
Cynthia Willis-Esqueda, Ph.D. BAD CHARACTERS AND DESPERADOS: LATINXS AND CAUSAL EXPLANATIONS FOR LEGAL SYSTEM BIAS 67 UCLA Law Review 1204 (November, 2020) Although there is a long history of prejudice and discrimination against Latinxs within the U.S. legal system, there is a dearth of research seeking to understand the causal underpinnings of the biased decisionmaking that works against them. While this Article discusses the experience of those who identify as Latinx broadly, in several areas it... 2022
Darryl K. Brown BATSON v. ARMSTRONG: PROSECUTORIAL BIAS AND THE MISSING EVIDENCE PROBLEM 100 Oregon Law Review 357 (2022) Introduction. 358 I. Where and When are Prosecutors Biased?. 365 A. Evidence Linking Racial Bias and Prosecutorial Discretion. 365 B. Bias in Charges, Dismissals, Plea Bargains and Sentencing. 369 C. Bias in Jury Selection. 374 D. Implications for Equal Protection Litigation. 375 II. Batson v. Armstrong Doctrine. 376 A. Procedural Structure of... 2022
Joan C. Williams , Rachel M. Korn , Sky Mihaylo BEYOND IMPLICIT BIAS: LITIGATING RACE AND GENDER EMPLOYMENT DISCRIMINATION USING DATA FROM THE WORKPLACE EXPERIENCES SURVEY 72 Hastings Law Journal 337 (November, 2020) This Article joins other voices in challenging what I will call the implicit bias consensus in employment discrimination law, first crystallized in the work of Susan Sturm and Linda Hamilton Krieger. The implicit bias consensus has two basic components. The first is that most employment discrimination today is what Sturm christened second... 2022
Kathleen A. Tarr BIAS AND THE BUSINESS OF SHOW EMPLOYMENT DISCRIMINATION IN THE "ENTERTAINMENT" INDUSTRY 51 University of San Francisco Law Review Forum 1 (2016) I can't mount a film of this budget . and say that my lead actor is Mohammad so-and-so from such-and-such. I'm just not going to get it financed. So the question [of casting non-White actors] doesn't even come up. - Ridley Scott, Director You would think actors' equity association (AEA)--of all unions--would remember its Shakespeare: A rose by... 2022
Robert F. Maslan, Jr. BIAS AND THE LOUDERMILL HEARING: DUE PROCESS OR LIP SERVICE TO FEDERAL LAW? 57 Fordham Law Review 1093 (May, 1989) In Cleveland Board of Education v. Loudermill, the Supreme Court held that a public employee who holds a constitutionally protected interest in his job must be granted a hearing before being terminated. This requirement protects the employee from erroneous discharge and is derived from the due process clauses of the fifth and fourteenth amendments... 2022
Veronika Fikfak , Daniel Peat , Eva van der Zee BIAS IN INTERNATIONAL LAW 23 German Law Journal 281 (April, 2022) (Received 03 March 2022; accepted 11 March 2022) This special issue looks at how cognitive bias matters to international law. We wish to shed light on the legal frames, labels, and cognitive biases that shape our understanding of international rules, the application of these rules, and outcomes of international adjudicatory processes. Adopting the... 2022
Rachel S. Fleischer BIAS IN, BIAS OUT: WHY LEGISLATION PLACING REQUIREMENTS ON THE PROCUREMENT OF COMMERCIALIZED FACIAL RECOGNITION TECHNOLOGY MUST BE PASSED TO PROTECT PEOPLE OF COLOR 50 Public Contract Law Journal 63 (Fall, 2020) Facial recognition technology is increasingly ever-present in today's society, shaping and redefining integral aspects of human life. While this ubiquitous technology was created to be objective and neutral in its application, it is not immune to discriminatory biases. These biases have led to a highly disturbing situation, where, while being used... 2022
Sandra Wachter , Brent Mittelstadt , Chris Russell BIAS PRESERVATION IN MACHINE LEARNING: THE LEGALITY OF FAIRNESS METRICS UNDER EU NON-DISCRIMINATION LAW 123 West Virginia Law Review 735 (Spring, 2021) Western societies are marked by diverse and extensive biases and inequality that are unavoidably embedded in the data used to train machine learning. Algorithms trained on biased data will, without intervention, produce biased outcomes and increase the inequality experienced by historically disadvantaged groups. Recognizing this problem, much work... 2022
Reema Sood BIASES BEHIND SEXUAL ASSAULT: A THIRTEENTH AMENDMENT SOLUTION TO UNDER-ENFORCEMENT OF THE RAPE OF BLACK WOMEN 18 University of Maryland Law Journal of Race, Religion, Gender and Class 405 (Fall, 2018) Devaluation of Black women's bodies derives from the long history of slavery in this country. The treatment of Black women, from slavery to the present, ties closely to the systemic tactics of oppression utilized by White slave owners after our country's founding. In removing autonomy and control over Black female slaves' bodies, slave owners... 2022
J. Mark Ramseyer BIASES THAT BLIND: PROFESSOR HYMAN AND THE UNIVERSITY 2014 University of Illinois Law Review 1229 (2014) This Essay is a response to Professor Hyman's piece, Why Did Law Professors Misunderestimate the Lawsuits Against PPACA. In this Essay, Ramseyer argues that the statements made by law professors about the constitutionality of the PPACA often reflected partisan loyalty more than thoughtful legal analysis. As the anthropologist remembered it, the... 2022
Cynthia M. Ho BIOSIMILAR BIAS: A BARRIER TO ADDRESSING AMERICAN DRUG COSTS 99 Denver Law Review 517 (Spring, 2022) Forty percent of spiraling drug costs in the United States stem from a mere 2% of all drugs--biologic drugs (biologics) made from living cells and administered by injection or infusion. Drug costs will continue to rise as new biologics are approved by the Food and Drug Administration. Biologies are expensive because they cannot be mass-produced,... 2022
Jules M. Epstein BRAIN SCIENCE AND BIAS 37-SUM Criminal Justice 59 (Summer, 2022) Do the photographs, paintings, or flags in a courthouse or jury deliberation room affect how a case is decided? That question led to the reversal of a criminal conviction in Tennessee, part of the ongoing discussion of race, racism, and implicit bias that continues in the criminal justice system. And that reversal was based in part on psychological... 2022
Robert Katz COMBATING ANTI-JEWISH BIAS THROUGH LAW 66-AUG Res Gestae 30 (July/August, 2022) As president of the IUPUI Jewish Faculty and Staff Council, I work to raise awareness about Jewish concerns on campus, including antisemitism. As an educator, I've carried this work into my classroom by discussing the legal dimensions of antisemitism alongside regular discussions of racism, sexism, and homophobia. This comes as a surprise to most... 2022
Tim O'Brien COMPOUNDING INJUSTICE: THE CASCADING EFFECT OF ALGORITHMIC BIAS IN RISK ASSESSMENTS 13 Georgetown Journal of Law & Modern Critical Race Perspectives 39 (Winter, 2021) The increasing pervasiveness of algorithmic tools in criminal justice has led to an increase in research, legal scholarship, and escalating scrutiny of automated approaches to consequential decisionmaking. A key element of examination in literature focuses on racial bias in algorithmic risk assessment tools and the correlation to higher likelihoods... 2022
Patrick Barry CONFIRMATION BIAS 106 Georgetown Law Journal Online 25 (2017) Supreme Court confirmation hearings are vapid. Supreme Court confirmation hearings are pointless. Supreme Court confirmation hearings are harmful to a citizenry already cynical about government. Sentiments like these have been around for decades and are bound to resurface each time a new nomination is made. This essay, however, takes a different... 2022
Josh Gupta-Kagan CONFRONTING INDETERMINACY AND BIAS IN CHILD PROTECTION LAW 33 Stanfor Law and Policy Review 217 (September, 2022) The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection... 2022
Shannah Colbert CONSTITUTIONAL LAW--DEVICE SEARCHES ABSENT REASONABLE SUSPICION ALLOW SECURITY INTERESTS TO OUTWEIGH PRIVACY CONCERNS AND AMPLIFY BIAS AT THE U.S. BORDER--ALASAAD v. MAYORKAS, 988 F.3D 8 (1ST CIR. 2021) 27 Suffolk Journal of Trial and Appellate Advocacy 295 (2021-2022) The Constitution of the United States sets forth fundamental principles that create a national government, divide its power, and protect individual liberties. Although the Fourth Amendment forbids unreasonable searches and seizures, some searches, such as those conducted at the United States border, are subject to exceptions. In Alasaad v.... 2022
Dr. Robin Broad , Professor, American University CORPORATE BIAS IN THE WORLD BANK GROUP'S INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES: A CASE STUDY OF A GLOBAL MINING CORPORATION SUING EL SALVADOR 36 University of Pennsylvania Journal of International Law 851 (Summer, 2015) 1. Introduction and Overview. 853 2. A Brief History of ICSID. 854 3. El Salvador & Gold Mining: From Local, to National, to Global. 857 3.1. At the local level. 858 3.2. At a national level. 860 3.3. At the global level and ICSID. 862 4. From Case Study to ICSID. 868 5. The Urgency for Change. 871 If you wanted to convince the public that... 2022
Tim Hirschel-Burns COUNTERING COMPLEXITY'S CORPORATE BIAS: TAX SIMPLIFICATION AS A STRATEGY TO REDUCE PROFIT SHIFTING IN THE AFRICAN EXTRACTIVE SECTOR 47 Yale Journal of International Law 165 (Winter, 2022) Introduction. 165 I. Profit Shifting. 168 A. Forms of Profit Shifting. 168 i. Debt Shifting. 169 ii. Transfer Pricing. 170 iii. Intangible Assets. 171 B. Focus on Profit Shifting, not Distinguishing Evasion and Avoidance. 172 C. The OECD's Base Erosion and Profit Shifting Project. 173 II. Extractives and Revenue Collection in Africa. 176 A. The... 2022
Matthew A. Gasperetti CRIME AND PUNISHMENT: AN EMPIRICAL STUDY OF THE EFFECTS OF RACIAL BIAS ON CAPITAL SENTENCING DECISIONS 76 University of Miami Law Review 525 (Winter, 2022) Racism has left an indelible stain on American history and remains a powerful social force that continues to shape crime and punishment in the contemporary United States. In this article, I discuss the socio-legal construction of race, explore how racism infected American culture, and trace the racist history of capital punishment from the Colonial... 2022
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