AuthorTitleCitationSummaryYear
Danielle L. Macedo WHAT KIND OF JUSTICE IS THIS? OVERBROAD JUDICIAL DISCRETION AND IMPLICIT BIAS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 24 Journal of Gender, Race and Justice 43 (Spring, 2021) I.Introduction. 44 II.Black American History and the Criminal Justice System: Setting the Stage. 48 A. Before the Civil Rights Movement: Explicit Bias in America. 51 B. The Civil Rights Movement and Beyond: Implicit Bias in America. 55 C. Black Lives Matter. 59 D. The Fight for Racial Equality Continues. 63 III.Criminal Sentencing Procedure and... 2021
Professor Elayne E. Greenberg WHEN PUBLIC DEFENDERS AND PROSECUTORS PLEA BARGAIN RACE--A MORE TRUTHFUL NARRATIVE 47 Ohio Northern University Law Review 605 (2021) Change will not come if we wait for some other person or some other time. We are the ones we've been waiting for. We are the change that we seek. Barack Obama This paper challenges prevailing stereotypes about public defenders and prosecutors and updates those stereotypes with a more accurate narrative about how reform-minded public defenders and... 2021
Kevin Drakulich , Kevin H. Wozniak , John Hagan , Devon Johnson WHOSE LIVES MATTERED? HOW WHITE AND BLACK AMERICANS FELT ABOUT BLACK LIVES MATTER IN 2016 55 Law and Society Review 227 (June, 2021) White Americans, on average, do not support Black Lives Matter, while Black Americans generally express strong support. The lack of support among white Americans is striking, and we argue that it matters why this racial gap exists. Using a nationally representative survey collected during the crest of the first wave of widespread attention to the... 2021
Sybil Dunlop, Jenny Gassman-Pines WHY THE LEGAL PROFESSION IS THE NATION'S LEAST DIVERSE (AND HOW TO FIX IT) 47 Mitchell Hamline Law Review 129 (February, 2021) I. Introduction. 129 II. Why Does It Matter?. 133 A. The Legitimacy of Our Judicial System Depends on Diversity. 133 B. Diverse Teams Generate Better Outcomes. 134 C. Non-Diverse Organizations Increasingly Face Censure. 136 III. Methods. 137 IV. Why Is The Legal Profession Struggling?. 139 V. Explicit Racism & Sexism. 140 VI. Implicit Bias. 141 A.... 2021
Michele Goodwin WOMEN ON THE FRONTLINES 106 Cornell Law Review 851 (May, 2021) This Article takes aim at the troubling and persistent disempowerment and invisibility of women generally, and particularly marginalized women of color even one hundred years after the ratification of the Nineteenth Amendment. It observes how the persistence of sexism, toxically combined with racism, impedes full political, economic, and social... 2021
Tasnim Motala WORDS STILL WOUND: IIED & EVOLVING ATTITUDES TOWARD RACIST SPEECH 56 Harvard Civil Rights-Civil Liberties Law Review 115 (Winter, 2021) C1-3Table of Contents R1-2Introduction . L3116 I. Racial Insults: A Harm Without a Remedy. 119 A. Dignitary Harms. 120 B. Psychological Harms. 122 C. Societal Harms. 125 II. Responses to Racial Insults. 126 A. Societal Responses to Racial Insults. 126 B. Legal Responses to Racial Insults. 130 1. Human Rights Commissions. 130 2. Criminal Law. 132... 2021
Merle H. Weiner YOU CAN AND YOU SHOULD: HOW JUDGES CAN APPLY THE HAGUE ABDUCTION CONVENTION TO PROTECT VICTIMS OF DOMESTIC VIOLENCE 28 UCLA Women's Law Journal 223 (Summer, 2021) C1-2Table of Contents Introduction. 224 I. Judges Often Feel Conflicted When Adjudicating a Hague Convention Case Involving Domestic Violence. 231 A. Domestic Violence Is Not Expressly Relevant to the Hague Convention. 233 B. Return of a Child Can Harm the Child, the Taking Parent, and Other Survivors. 236 C. It's Up to Judges to Reach Just Results... 2021
Emily Haney-Caron, JD, PhD, Erika Fountain, PhD YOUNG, BLACK, AND WRONGFULLY CHARGED: A CUMULATIVE DISADVANTAGE FRAMEWORK 125 Dickinson Law Review 653 (Spring, 2021) The term wrongful conviction typically refers to the conviction or adjudication of individuals who are factually innocent. Decades of research has rightfully focused on uncovering contributing factors of convictions of factually innocent people to inform policy and practice. However, in this paper we expand our conceptualization of wrongful... 2021
Nicole Pijon YOUTH IN ADULT COURT: RETHINKING ILLINOIS' USE OF DISCRETIONARY TRANSFER 41 Children's Legal Rights Journal 135 (2021) Our state, home of the country's first juvenile court and once a leader in juvenile justice reform, should not be a place where we boast of locking up juveniles and throwing away the key. Illinois should be a place where youth matters .. --Justice Mary J. Theis In 1899--well over a century ago--Illinois laid a cornerstone for juvenile justice... 2021
Annie Sloan "WHAT TO DO ABOUT BATSON?": USING A COURT RULE TO ADDRESS IMPLICIT BIAS IN JURY SELECTION 108 California Law Review 233 (February, 2020) In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court attempted to eliminate racial discrimination in jury selection by prohibiting the use of peremptory challenges to intentionally strike prospective jurors based on their race. Today, more than thirty years later, Batson's now-familiar three-part framework is widely considered to be a... 2020
Ted A. Donner, J.D., Richard K. Gabriel § 32:1.Significance of questions concerning racial bias Jury Selection Strategy and Science § 32:1 (2020) There is a difference between racism on the part of attorneys and racial bias among jurors. As Justice Kennedy found in his concurring opinion in J.E.B. v. Alabama: We do not prohibit racial and gender bias in jury selection only to encourage it in jury deliberations. Once seated, a juror should not give free rein to race or gender bias of his or... 2020
Ted A. Donner, J.D., Richard K. Gabriel § 32:2.Questioning about Gender Bias Jury Selection Strategy and Science § 32:2 (2020) Gender bias, like racism, plays a problematic role in any group dynamic. But, unlike racism, the idea that men and women are different" remains an idea which many embrace and which thus still maintains a foothold both in life experience and in the academic literature. However biased such views may be 2020
Roger Park, Tom Lininger § 6.2 IDEOLOGICAL BIAS Aspen Publishers § 6.2 (2020) The term ideological bias refers to general ideas and preconceptions that might cause a witness to favor or disfavor a party. The crucial question is whether general ideological bias manifests itself in aversion or sympathy with respect to a particular party. Perhaps the plainest example of bias is racism. A witness who generally harbors enmity... 2020
Lisa Blue, Ph.D., J.D. and , Robert B. Hirschhorn, J.D. Appendix K. Peremptory Challenges and Implicit Bias: Inherent Conflicts in How the Justice System Struggles With Racism Blue's Guide to Jury Selection APP K (2020) In August, 2016, a New York Supreme Court considered whether Time Warner should be allowed to request footage from investigations conducted by the New York City Police Department. Their stated goal was to discover how pervasive racial bias was within the department and its impact on the ways in which investigations were being conducted: Video... 2020
Candace White BIAS AND GUILT BEFORE INNOCENCE: HOW THE AMERICAN CIVIL LIBERTIES UNION SEEKS TO REFORM A SYSTEM THAT PENALIZES INDIGENT DEFENDANTS 83 Albany Law Review 657 (2019-2020) For decades, the United States has debated the concept of a money-bail system, which has been documented to disenfranchise individuals of lower socioeconomic statuses. Because the accused's financial status is often not assessed during bail and arraignment hearings, judges often set bail in excess of the defendant's financial means. As a result,... 2020
Brooks Holland CONFRONTING THE BIAS DICHOTOMY IN JURY SELECTION 81 Louisiana Law Review 165 (Fall, 2020) C1-3Table of Contents Introduction. 166 I. The Bias Dichotomy. 174 II. The Failed Batson Solution. 186 III. A Cautious Defense of the Peremptory Challenge. 194 IV. Confronting the Bias Dichotomy . Again: Washington GR 37. 204 Conclusion: Looking Forward. 213 2020
Jonathan Cardi , Valerie P. Hans , Gregory Parks DO BLACK INJURIES MATTER?: IMPLICIT BIAS AND JURY DECISION MAKING IN TORT CASES 93 Southern California Law Review 507 (March, 2020) They say that black lives matter, but how much relative to white lives? Political activists and legal theorists have debated whether the injuries suffered by African Americans are devalued relative to the injuries of whites. This study is one of the first comprehensive experimental examinations of how race affects judgments of tort injuries. We... 2020
Frank Harty, Haley Hermanson IMPLICIT BIAS EVIDENCE: A COMPENDIUM OF CASES AND ADMISSIBILITY MODEL 68 Drake Law Review 1 (2020) Implicit bias theory suggests a person's thoughts and actions are influenced by subconscious racist tendencies. While this is hardly a novel concept, its popularity and celebrity have skyrocketed in recent years--attributable in no small part to the so-called Implicit Association Test (IAT) which is available online. Scholars and scientists have... 2020
Charles R. Lawrence III IMPLICIT BIAS IN THE AGE OF TRUMP: BIASED: UNCOVERING THE HIDDEN PREJUDICE THAT SHAPES WHAT WE SEE, THINK, AND DO. BY JENNIFER L. EBERHARDT. NEW YORK, N.Y.: VIKING. 2019. PP. 340. $28.00 133 Harvard Law Review 2304 (May, 2020) We inhabit a nomos--a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. --Robert Cover I am watching a video of Donald Trump, the forty-fifth President of the... 2020
Marcus Lind-Martinez LATINIDAD, WHITE SUPREMACY, AND REFORMING FIRST-YEAR MOOT COURT COMPETITIONS TO CONFRONT RACIAL AND ETHNIC BIAS 23 Harvard Latinx Law Review 125 (Spring, 2020) I. Framing the Moot Court Experience with Narrative. 125 II. Critical Analysis of First-Year Moot Court Competitions. 128 A. The Brief. 129 B. May it Please the Court. 131 C. Your Honor. 133 D. Ridiculous. 135 III. Reflections on the First-Year Curriculum. 138 A. Building Cultural Competency and Empathy. 138 B. Developing Anti-Racist Methods... 2020
Walter I. Gonçalves, Jr. NARRATIVE, CULTURE, AND INDIVIDUATION: A CRIMINAL DEFENSE LAWYER'S RACE-CONSCIOUS APPROACH TO REDUCE IMPLICIT BIAS FOR LATINXS 18 Seattle Journal for Social Justice 333 (Spring, 2020) When a criminal defense attorney is assigned a case and shows up at the first court appearance, more often than not the client will be of color. Depending on the region, the client has a greater chance of being African American, Latinx, or Native American compared to white. This is true for most federal district courts in the United States. To make... 2020
Irene Oritseweyinmi Joe REGULATING IMPLICIT BIAS IN THE FEDERAL CRIMINAL PROCESS 108 California Law Review 965 (June, 2020) Like other supervisory lawyers, federal judges have twin responsibilities. They must comport with ethical and professional rules that govern their own behavior while simultaneously monitoring other attorneys to ensure they are not violating similarly controlling rules. The judicial robe, however, adds an extra dimension of responsibility in the... 2020
Christine Kumar THE AUTOMATED TIPSTER: HOW IMPLICIT BIAS TURNS SUSPICION ALGORITHMS INTO BBQ BECKYS 72 Federal Communications Law Journal 97 (May, 2020) C1-3Table of Contents I. Introduction. 98 II. The Wrongful Mobilization of the Police: How Implicit Bias in Humans and Technologies can Influence Policing. 101 A. Implicit Bias in Human and Police Interactions. 102 B. Big Data, Machine Learning and the Police. 104 III. Legal Mechanisms that can Protect Against Implicit Bias in Police-Used Machine... 2020
Hon. Pamela J. White THIRTY YEARS LATER: RECALLING THE GENDER BIAS REPORT AND ASKING "WHAT'S NEXT?" IN THE LEGAL PROFESSION 80 Maryland Law Review Online 13 (2020) The front-page newspaper headlines on May 4, 1989 were jolting to read: Sex Bias Pervades Md. Courts, Panel Finds: Discrimination Reported by Litigants, Judicial Candidates Alike; Sex bias in courts found to hurt women the most,; Gender Bias Is Widespread in Md. Courts, Study Finds: Committee Urges End to Sex Discrimination; Study finds... 2020
Molly Griffard A Bias-free Predictive Policing Tool?: an Evaluation of the Nypd's Patternizr 47 Fordham Urban Law Journal 43 (December, 2019) Introduction. 44 I. Background on Predictive Policing. 46 A. A Short History of Predictive Policing. 47 B. Critiques of Predictive Policing and Actuarial Justice. 49 i. Racial Biases. 49 ii. Unchecked Error: Data, Social Science, and Cognitive Biases. 52 1. Data Entry Errors. 53 2. Flawed Social Science. 53 3. Cognitive Biases. 54 iii.... 2019
Cynthia M. Ho A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection 94 Indiana Law Journal 773 (Summer, 2019) This Article argues that pharmaceutical marketing to doctors should be more critically evaluated and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court's 2011 decision in Sorrell. In particular, the Article argues that more information to doctors in the form of pharmaceutical marketing does not... 2019
Alisa Micu Addressing Racial Bias in the Jury System: Another Failed Attempt? 35 Georgia State University Law Review 843 (Spring, 2019) A long-standing rule of evidence, Rule 606(b), also referred to as the no-impeachment rule, establishes that testimony of jurors regarding events in deliberations cannot be used to question the validity of a verdict. Courts have held that the no-impeachment rule is the general tenet governing the use of juror testimony when a defendant seeks a new... 2019
Joseph J. Avery An Uneasy Dance with Data: Racial Bias in Criminal Law 93 Southern California Law Review Postscript 28 (June, 2019) Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking. The founder of the largest hedge fund in the world has argued that nearly everything important going on in an organization should be captured as data. Similar beliefs have permeated medicine. A team of researchers has taken over 100... 2019
The Honorable Bernice B. Donald, Sarah Redfield Arcing Toward Justice 34-SUM Criminal Justice 18 (Summer, 2019) Author's Note: This article is rich in citation, much referencing statistics or science journals. To keep it more readable, we have deviated from our usual citation approach and used a + symbol to indicate that further citation detail is available. Anyone wanting full citations or further background should reach out to Professor Redfield at... 2019
Avani Mehta Sood Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal Attempt 71 Stanford Law Review 593 (March, 2019) Abstract. How do jurors construe and apply facts and law to decide the point at which a defendant's thoughts and actions cross the line from being legally innocent to criminal? And under what doctrinal circumstances are such lay constructions of criminality vulnerable to legal misunderstanding and bias? Although these are high-stakes questions, the... 2019
Brenda M. Bauges , Tenielle Fordyce-Ruff Avoiding Gatekeeper Bias in Hiring Decisions 62-JUL Advocate 39 (June/July, 2019) Bias in hiring used to be overt. For instance, during her keynote address at the Idaho Women Lawyers 2019 Gala, the Honorable Mary M. Schroeder, Senior Judge of the United States Court of Appeals for the Ninth Circuit, shared her experiences trying to find a job after moving to Phoenix, Arizona, in the 1960's. She suffered through several meetings... 2019
Dustin Rynders Battling Implicit Bias in the Idea to Advocate for African American Students with Disabilities 35 Touro Law Review 461 (2019) The disproportionate representation, discipline, and restrictive placement of African American students in special education is an urgent problem and a hotly contested issue. Currently, African American students are overrepresented in special education when compared to their white peers. African American students are also disciplined at higher... 2019
Scott Dodson Beyond Bias in Diversity Jurisdiction 69 Duke Law Journal 267 (November, 2019) The long-running debate over the propriety and proper scope of diversity jurisdiction has always centered on the traditional justification for diversity jurisdiction: the need to avoid actual or perceived state court bias against out-of-state parties. Supporters of diversity jurisdiction assert that such bias continues to justify diversity... 2019
M. Eve Hanan , UNLV William S. Boyd School of Law, Las Vegas, Nevada, 702-895-2368, Email eve.hanan@unlv.edu, Twitter @eve_hanan Bias and the Remorse Discount 43-MAY Champion 16 (May, 2019) The decision to credit a client's remorse may make the difference in sentencing. While little research has been undertaken to document implicit racial bias in remorse assessments, a look at two areas of existing research-- judicial assessments of remorse and implicit racial bias--points to a likelihood that judges unconsciously discount African... 2019
Sandra G. Mayson Bias In, Bias out 128 Yale Law Journal 2218 (June, 2019) Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input... 2019
Dana E. Prescott , Diane A. Tennies Bias Is a Reciprocal Relationship: Forensic Mental Health Professionals and Lawyers in the Family Court Bottle 31 Journal of the American Academy of Matrimonial Lawyers 427 (2019) The profession of law and its belief in the adversarial system as a means to discern factual truths in child custody litigation is deeply rooted in centuries of political and constitutional theory. Beyond political rhetoric and academic discourse, the definition of who is a parent and who has rights and responsibilities for children may mean that... 2019
Joseph W. Yockey Bias Response on Campus 48 Journal of Law and Education Educ. 1 (Winter, 2019) Bias Assessment and Response Teams (BARTs) are becoming ubiquitous at universities in the United States. These programs rely on administrative personnel to investigate and intervene in alleged bias incidents on campus. BART proponents maintain that the programs play an important role in promoting safety, diversity, and inclusivity. Critics, on the... 2019
Tressa Bussio Blatantly Biased: Expanding Peña-rodriguez to Cases of Bias Against Sexual Orientation, Religion, and Sex 26 William and Mary Journal of Race, Gender, and Social Justice 167 (Fall, 2019) Introduction I. Tensions Between the Sixth Amendment and Federal Rule of Evidence 606 A. Promises of the Sixth Amendment and Evidentiary Requirements of Rule 606(b) B. Court Compromises II. The Gravest and Most Important Case: Peña-Rodriguez v. Colorado A. Statement of Facts B. A Sixth Amendment Issue Masquerading as a Fourteenth Amendment Issue... 2019
Peter Hyndman Body Cameras Won't Bring Justice: Why Pennsylvania's Chapter 67a Does Not Promise Police Accountability 91 Temple Law Review 321 (Winter, 2019) On August 9, 2014, Ferguson, Missouri, police officer Darren Wilson shot and killed Michael Brown, an unarmed, black eighteen-year-old. The killing sparked immediate and prolonged protests in Ferguson and elsewhere, with demonstrators taking to the streets to challenge what they viewed as yet another instance of police brutality against people of... 2019
Robert W. Emerson , Steven A. Hollis Bound by Bias? Franchisees' Cognitive Biases 13 Ohio State Business Law Journal 1 (2019) Cognitive biases play a fundamental part in franchisor-franchisee deal making. Ordinarily, franchisors have more power and information than do franchisees. The disparity between these parties is often exacerbated by the franchisees' psychological dispositions. Are franchisees biased or uninformed to the extent that they cannot evaluate the... 2019
Kimberly A. Houser Can Ai Solve the Diversity Problem in the Tech Industry? Mitigating Noise and Bias in Employment Decision-making 22 Stanford Technology Law Review (2019) (Spring, 2019) After the first diversity report was issued in 2014 revealing the dearth of women in the tech industry, companies rushed to hire consultants to provide unconscious bias training to their employees. Unfortunately, recent diversity reports show no significant improvement, and, in fact, women lost ground during some of the years. According to a Human... 2019
Fanta Freeman Do I Look like I Have an Attitude? How Stereotypes of Black Women on Television Adversely Impact Black Female Defendants Through the Implicit Bias of Jurors 11 Drexel Law Review 651 (2019) Do you watch television? What kind of shows do you watch on a weekly basis? Do any of the shows you watch have black female characters? If so, how are the women portrayed? It is not typical for these questions to be asked during voir dire. Yet these questions may be imperative to identify jurors who may be biased toward black female defendants as... 2019
Jonathan Simon Explicit Bias: Why Criminal Justice Reform Requires Us to Challenge Crime Control Strategies That Are Anything but Race Blind 54 Tulsa Law Review 331 (Winter, 2019) Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Harvard University Press 2017). Pp.464. Paperback $18.95. Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America's Largest Criminal Court (Stanford University Press 2016). Pp. 272. Hardcover $16.95. These books rely upon... 2019
  Explicit Reactions to Implicit Bias 55-MAY Arizona Attorney Att'y 8 (May, 2019) Understanding Implicit Bias by ASU's Dean Ray English (March 2019) addresses a critical issue in today's political and civil discourse. I think the joke with which the article began could be used better to bring the message home with a different punch line. The joke begins, A white guy, a black guy and a cop walk into a bar .. I suggest... 2019
Professor Shlomit Yanisky-Ravid, Cynthia Martens From the Myth of Babel to Google Translate: Confronting Malicious Use of Artificial Intelligence--copyright and Algorithmic Biases in Online Translation Systems 43 Seattle University Law Review 99 (Fall, 2019) Many of us rely on Google Translate and other Artificial Intelligence and Machine Learning (AI) online translation daily for personal or commercial use. These AI systems have become ubiquitous and are poised to revolutionize human communication across the globe. Promising increased fluency across cultures by breaking down linguistic barriers and... 2019
Isabel Bilotta , Abby Corrington , Saaid A. Mendoza , Ivy Watson , Eden King How Subtle Bias Infects the Law 15 Annual Review of Law and Social Science 227 (2019) subtle bias, law, decision making, selection This review describes the ways in which contemporary forms of prejudice and stereotypes, which are often subtle and unconscious, give rise to critical problems throughout the legal system. This summary highlights dominant themes and understudied issues at the intersection of legal and psychological... 2019
Veena Bansal Immigration Status in Jury Trials: State Legislature & State Supreme Court Involvement in Combatting Jury Bias 56 American Criminal Law Review Online Online 1 (Winter, 2019) In 2018, immigration was a controversial issue. On July 18, 2018 Mollie Tibbetts, a 20-year old student, was abducted while jogging through the rural town of Brooklyn, Iowa. She disappeared without a trace and her story took the news by storm. Over a month later, police arrested alleged undocumented immigrant, Cristian Rivera, for Mollie's murder.... 2019
Yasir Billoo Implicit Bias and its Application in the Life of a Lawyer 93-APR Florida Bar Journal 10 (March/April, 2019) Early in my career, while I was litigating in Arizona, I met men and women from a local Native American tribe who believed it was disrespectful to look someone in the eyes during a conversation. Before I learned about their beliefs, every time I met with witnesses who were members of that tribe, I thought they were being untruthful. Later I found... 2019
S. Grace Acosta Implicit Bias in Attorney Evaluation of Judges and Why it Applies to Everyone, Even You 32-AUG Utah Bar Journal 18 (July/August, 2019) This fall, we can expect to receive surveys asking us to evaluate the performance of judges before whom we have appeared. It happens every other year. These surveys are an important professional duty to support a strong judiciary. Judges benefit from constructive feedback, and attorney surveys are a critical part of the Judicial Performance... 2019
Thomas C. Grella Implicit Bias: a Hidden Obstacle to Exemplary Firm Culture 45 No. 3 Law Practice 62 (May/June, 2019) THE WEEKEND BEFORE I completed this column, it was my privilege to walk my daughter down the aisle. Rebekah met her fiancé while at college in Winston-Salem, North Carolina. Though he had lived in the United States from the first day of his freshman year in high school through finishing his master's at Syracuse University, Sungju Moon is a South... 2019
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