| Author | Title | Citation | Summary | Year |
| Justin D. Levinson , Robert J. Smith , Koichi Hioki |
Race and Retribution: an Empirical Study of Implicit Bias and Punishment in America |
53 U.C. Davis Law Review 839 (December, 2019) |
Retribution stands at the forefront of America's criminal justice system. Yet, as Justice Anthony Kennedy cautioned, retribution is also the motive for punishment that most often can contradict the law's own ends. This Article proposes, and then tests empirically, the existence of a novel contradiction of retribution--the idea that race and... |
2019 |
| Rachel DiBenedetto |
Reducing Recidivism or Misclassifying Offenders?: How Implementing Risk and Needs Assessment in the Federal Prison System Will Perpetuate Racial Bias |
27 Journal of Law & Policy 414 (2019) |
Your Honor, I understand the appeal of using this sentencing software, EVALUATE. I do. It appears to be efficient, precise, immune to emotion and lapses in logic. It seems fair and unbiased, so shouldn't we attempt to be fair and unbiased in evaluating whether it actually works? 32, 19, 34 . 32% is the federal recidivism rate. 19%? 19% is the... |
2019 |
| Tim Friehe, Ansgar Wohlschlegel |
Rent Seeking and Bias in Appeals Systems |
48 Journal of Legal Studies 117 (January, 2019) |
We analyze a litigation contest in which plaintiff and defendant seek to win in trial court, and the losing litigant may appeal. In our setup, the appeals court's judgment depends on the trial court's judgment, the merits of the litigants' arguments, and their efforts in the appeals stage. We find that the possibility of appeal increases the... |
2019 |
| Norman L. Reimer , NACDL, Washington, DC, 202-465-7623, Email nreimer@nacdl.org, Website www.nacdl.org, Twitter @NACDL |
Rooting out Bias: How a Bad Stop Can Make Good Law |
43-FEB Champion Champion 9 (January/February, 2019) |
NACDL's robust and often lauded amicus curiae program is not known for its work in civil cases. But a dubious 2014 traffic stop of a young man in the Town of Wallingford, Vermont, provided a unique opportunity for NACDL to further its mission to redress systemic racism in the criminal justice system. In February 2018, NACDL submitted an amicus... |
2019 |
| Jennifer Bennett Shinall |
Settling in the Shadow of Sex: Gender Bias in Marital Asset Division |
40 Cardozo Law Review 1857 (April, 2019) |
Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital... |
2019 |
| Alison M. Nelson |
Spotlight on Bias |
62-FEB Advocate 31 (February, 2019) |
Are organizations that support the advancement of women in law really necessary in this day and age? Don't all employers (especially lawyers) understand that it's neither legal nor appropriate to discriminate against an employee on the basis of gender? Early in my career, I asked myself these very questions. By the time I had started practicing,... |
2019 |
| Michael Nesbitt , Robert Oxoby , Meagan Potier |
Terrorism Sentencing Decisions in Canada since 2001: Shifting Away from the Fundamental Principle and Towards Cognitive Biases |
52 U.B.C. Law Review 553 (June, 2019) |
Today, the spectacle of terrorist acts and terrorism trials has unfortunately become rather commonplace, with over 50 prosecutions in Canada in the last 15 years. Prior to 2001, a terrorism offence did not exist in Canada, at least not according to the Criminal Code. It was not until the 9/11 terrorist attack on the World Trade Centers that... |
2019 |
| Jonathan Kahn, J.D., Ph.D. |
The 911 Covenant: Policing Black Bodies in White Spaces and the Limits of Implicit Bias as a Tool of Racial Justice |
15 Stanford Journal of Civil Rights & Civil Liberties 1 (February, 2019) |
Introduction. 1 I. The Narrative of Implicit Bias. 3 A. What is Implicit Bias?. 4 B. Implicit Bias is Everyone's Problem. 7 C. Implicit Bias Marginalizes Racism. 8 D. Implicit Bias Consigns Racism to the Dustbin of History. 9 II. A Social Inflection Point?. 12 III. A Legal Inflection Point. 15 A. Revisiting and Revising Jody Armour's Reasonable... |
2019 |
| Melissa Hamilton |
The Biased Algorithm: Evidence of Disparate Impact on Hispanics |
56 American Criminal Law Review 1553 (Fall, 2019) |
Automated risk assessment is all the rage in the criminal justice system. Proponents view risk assessment as an objective way to reduce mass incarceration without sacrificing public safety. Officials thus are becoming heavily invested in risk assessment tools--with their reliance upon big data and algorithmic processing--to inform decisions on... |
2019 |
| Jaclyn Alcantara |
The Impact of Implicit Bias on Female Patent Applicants in an Age of Increasingly Vague Patent Standards |
88 UMKC Law Review 161 (Fall, 2019) |
No aspect of U.S. patent law explicitly or implicitly excludes women from patenting their inventions. Yet among the inventors listed on the thousands of patent applications filed each year in the United States, women remain vastly underrepresented. The names of female inventors were only listed on 21% of patents granted in 2016, with women making... |
2019 |
| David Yokum, Christopher T. Robertson, Matt Palmer |
The Inability to Self-diagnose Bias |
96 Denver Law Review 869 (Summer, 2019) |
Litigants are guaranteed the right to an impartial jury--one that bases its judgment only on the evidence presented in the courtroom. The Supreme Court, as recently as in Skilling v. United States, has instructed courts on how to screen for potentially impartial jurors: simply ask them. The empirical presumption behind this directive is that jurors... |
2019 |
| Teri A. McMurtry-Chubb |
The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice |
58 Washburn Law Journal 531 (Summer, 2019) |
At a point early in the first semester of my first year of law school, the entire 1L class gathered together for the last session of our mandatory legal reasoning course. We were a class of slightly more than 100 students with approximately 30 students of color, the majority of whom were African American. As per usual, most of us were seated in... |
2019 |
| Laura Victorelli |
The Right to Be Heard (And Understood): Impartiality and the Effect of Sociolinguistic Bias in the Courtroom |
80 University of Pittsburgh Law Review 709 (Spring, 2019) |
Working for Justice can take many forms, but for linguists, we believe it should include listening to vernacular dialects more closely and hearing their speakers more clearly and more fairly, not only in courtrooms, but also in schools, job interviews, apartment searches, doctors' visits, and everywhere that speech and language matter. --John... |
2019 |
| Lori Andrews |
The Technology Enterprise: Systemic Bias Against Women |
9 UC Irvine Law Review 1035 (July, 2019) |
Who Designs Technology?. 1037 Who Funds Technology?. 1045 Who Patents Technology?. 1048 How Is Technology Marketed?. 1050 What Is the Impact of Technology--and on Whom?. 1055 Conclusion. 1061 |
2019 |
| Artika R. Tyner |
Unconscious Bias, Implicit Bias, Microaggressions |
36 No. 4 GPSolo 30 (July/August, 2019) |
Effective leaders build organizational cultures where employees can thrive, customers/clients experience excellence in service, and contributions can be made to the betterment of society. Because leadership is manifested through the active pursuit of learning, leaders typically pursue these goals by attending seminars, enlisting the support of a... |
2019 |
| Christian B. Sundquist |
Uncovering Juror Racial Bias |
96 Denver Law Review 309 (Winter, 2019) |
The U.S. Supreme Court in Peña-Rodriguez v. Colorado recognized for the first time in this Nation's history that trial courts could consider post-verdict evidence of juror racial bias under the Sixth and Fourteenth Amendments, notwithstanding the common law no-impeachment rule and its federal counterpart (Federal Rule of Evidence 606). Trial courts... |
2019 |
| Alfred Ray English |
Understanding Implicit Bias |
55-MAR Arizona Attorney 10 (March, 2019) |
A white guy, a black guy and a cop walk into a bar .. We'll get to the punchline in a moment, but while I have your attention I am hoping to shed a bit of light on implicit bias. Implicit or unconscious bias are terms that have permeated society over the last couple of years in ways we've never seen before. Whether you think it is political... |
2019 |
| Ryan D. Budhu |
Understanding the Role of Implicit Bias on |
12 Albany Government Law Review 149 (2018-2019) |
In 1869, four years after the end of the Civil War, the New York Times reported on a small controversy in the independent city of Brooklyn. The controversy, stemming from the construction of a canal on Third Avenue, involved questions as to the appropriate role of the Brooklyn Corporation Counsel. The Corporation Counsel and the Mayor of Brooklyn,... |
2019 |
| Grace Manning |
Valuing Procedure over Substance: Racial Bias in the Capital Jury Room |
56 American Criminal Law Review Online 52 (Spring, 2019) |
Keith Tharpe is an African American inmate on Georgia's death row. Nearly thirty years ago, a jury found him guilty of capital murder and sentenced him to death. Over seven years later, Tharpe's attorneys discovered that one of his jurors, who was white, harbored deeply racist views in connection with his vote for Tharpe's death. Since then, Tharpe... |
2019 |
| Sydney Melillo |
Vegas Rule: Jury Deliberation Edition: Should the Sixth Amendment Exception for Alleged Racial Bias in Deliberations Extend to Gender? |
11 Drexel Law Review 705 (2019) |
Federal Rule of Evidence 606(b) and its jurisprudence generally prohibit jurors from impeaching the validity of their verdicts. This general preclusion of juror testimony, derived from eighteenth-century English common law, aims to protect the public from the inherent danger of dissecting private jury deliberations, which are supposed to be free... |
2019 |
| Ashley London, Chris Miller |
Wld Members Share Insights with Law Students to Confront Overt and Implicit Bias in Workplace |
21 No. 6 Lawyers Journal 12 (March 15, 2019) |
Powerful, moving, relatable - all words that students in Duquesne Law Professor Ashley London's Professional Responsibility class used to describe a recent presentation made by the WLD's Committee to Advance Professionalism and End Bias. The presentation included a discussion of implicit bias, examples of bias experienced by members of the... |
2019 |
| Renee Nicole Allen, Deshun Harris |
#Socialjustice: Combatting Implicit Bias in an Age of Millennials, Colorblindness & Microaggressions |
18 University of Maryland Law Journal of Race, Religion, Gender and Class 1 (Spring, 2018) |
Law schools, in an effort to produce practice-ready graduates, are in an opportune position to take the lead in confronting social justice. Many schools are shifting from traditional classroom instruction to more experiential learning environments which place students early in their academic pursuits in contact with clients and legal problems.... |
2018 |
| Norrinda Brown Hayat |
Accommodating Bias in the Sharing Economy |
83 Brooklyn Law Review 613 (Winter, 2018) |
Airbnb spent an estimated $5 million for its 30-second #weaccept advertisement to air during the 2017 Super Bowl. The advertisement was a montage of faces of people of different nationalities while an uplifting melody play[ed], and a caption about inclusion appear[ed] .. The caption read: We believe no matter who you are, where you're from,... |
2018 |
| Gregory Mitchell |
An Implicit Bias Primer |
25 Virginia Journal of Social Policy and the Law 27 (Winter, 2018) |
Introduction. 28 I. What is implicit bias, and how is it measured?. 30 II. What causes the response patterns from which implicit bias is inferred?. 33 III. Is implicit bias synonymous with unconscious bias?. 39 IV. Is implicit bias related to discriminatory behavior?. 45 V. Can implicit bias be changed through training or education?. 52 Conclusion:... |
2018 |
| Bryan Neft, ACBA President |
Anecdotes Drive Home the Need for Anti-bias Training |
20 No. 22 Lawyers Journal 3 (October 26, 2018) |
Do you remember going for that first job interview, worrying about if your clothes were spot on, and your hair perfectly in place? When you submitted a resume to a firm, did you ever worry that your name looked too ethnic or that an organization you belonged to would skew the reviewer's opinion about you before they even got to know you and your... |
2018 |
| Lydette S. Assefa |
Assessing Dangerousness Amidst Racial Stereotypes: an Analysis of the Role of Racial Bias in Bond Decisions and Ideas for Reform |
108 Journal of Criminal Law and Criminology 653 (Fall, 2018) |
The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial... |
2018 |
| Alex Reed |
Associational Discrimination Theory & Sexual Orientation-based Employment Bias |
20 University of Pennsylvania Journal of Business Law 731 (2018) |
Introduction. 731 I. Associational Sex Discrimination in the Academic Literature. 735 II. The EEOC and Associational Sex Discrimination. 738 III. Associational Sex Discrimination: An Imperfect Means of Redressing Sexual Orientation-Based Employment Bias. 742 A. Expanding Coverage Beyond Race. 743 B. Demonstrating Membership in a Protected Class.... |
2018 |
| Brian Sanford |
Attitude Adjustment |
81 Texas Bar Journal 848 (December, 2018) |
[I]mplicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. The U.S. Supreme Court recognized the concept of implicit bias in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project: Recognition of disparate impact liability under the FHA also plays a... |
2018 |
| Christina Shu Jien Chong |
Battling Biases: How Can Diverse Students Overcome Test Bias on the Multistate Bar Examination |
18 University of Maryland Law Journal of Race, Religion, Gender and Class 31 (Spring, 2018) |
Drafters of standardized tests, such as the Law School Admissions Test (LSAT) and Multistate Bar Examination (MBE), strive to eliminate biases in multiple-choice questions by assembling representatives of diverse backgrounds to screen and discard prejudicial questions. But in reality, intelligence tests will always contain some aspect of bias... |
2018 |
| John M. Malutinok |
Beyond Actual Bias: a Fuller Approach to an Impartiality in School Exclusion Cases |
38 Children's Legal Rights Journal 112 (2018) |
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. -Justice Hugo W. Black Arthur Newsome, a sixteen-year old junior, was accused of selling marijuana cigarettes on the grounds of his Ohio high school. When the school principal... |
2018 |
| LaToya Baldwin Clark |
Beyond Bias: Cultural Capital in Anti-discrimination Law |
53 Harvard Civil Rights-Civil Liberties Law Review 381 (Fall, 2018) |
This Article explores race and class inequality in the distribution of special education benefits pursuant to the Individuals with Disabilities Education Act (IDEA). Scholarship in this area has focused on the disproportionately high representation of black children in special education and in the most stigmatized disability categories. The... |
2018 |
| Debbie A. Thomas |
Bias in the Boardroom: Implicit Bias in the Selection and Treatment of Women Directors |
102 Marquette Law Review 539 (Winter 2018) |
In light of the stagnation in growth of women directors on corporate boards, board diversity advocates and corporate leaders should look to the role implicit gender bias plays in the board nomination process and in challenges women directors face while serving on boards. Relevant stakeholders often overlook how implicit bias barriers prevent women... |
2018 |
| Mikah K. Thompson |
Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom |
2018 Michigan State Law Review 1243 (2018) |
C1-2Table of Contents Introduction. 1244 I. The Prevalence and Impact of Racial Bias Among Jurors. 1246 A. Stereotypes and Character Assessment. 1253 B. Stereotypes and Witness Credibility Assessment. 1258 C. Stereotypes, Fact Interpretation, and Recall. 1266 1. Ambiguous Facts. 1267 2. Fact Recall. 1271 II. Current Methods for Identifying and... |
2018 |
| Crystal Powell |
Bias, Employment Discrimination, and Black Women's Hair: Another Way Forward |
2018 Brigham Young University Law Review 933 (2018) |
C1-2Contents I. Introduction. 933 II. History of Black Hair, Implicit Bias, and Workplace Grooming Standards. 937 A. History of Black Hair Texture and Hairstyle: Centuries of Stereotyping. 938 B. Clean, Neat, and Kept Versus Extreme, Eye-Catching, and Unprofessional: Workplace Grooming Policies Reflect Racial Stereotypes. 943 III. Should Black... |
2018 |
| Maureen Hanlon |
Biased Adults, Brash Youth, and Uneven Punishment: the Need for Increased Legal Protections for Youth |
62 Saint Louis University Law Journal 969 (Summer, 2018) |
Our legal jurisprudence has only recently begun to take notice of adolescence as a stage of life from childhood and adulthood. Yet common notions of this unique developmental period stretch back at least 400 years to an old Shepherd's lament in A Winter's Tale: I would there were no age between sixteen and three-and-twenty, or that youth would... |
2018 |
| Dr. Bridgette Baldwin |
Black, White, and Blue: Bias, Profiling, and Policing in the Age of Black Lives Matter |
40 Western New England Law Review 431 (2018) |
Most middle-class whites have no idea what it feels like to be subjected to police who are routinely suspicious, rude, belligerent, and brutal. Benjamin Spock On July 17, 2014, in Staten Island, New York, Eric Garner lost his life to an illegal chokehold at the hands of police officer Daniel Pantaleo. With his last words, Garner uttered the... |
2018 |
| McKenzie Raub |
Bots, Bias and Big Data: Artificial Intelligence, Algorithmic Bias and Disparate Impact Liability in Hiring Practices |
71 Arkansas Law Review 529 (2018) |
With artificial intelligence, we are summoning the demon. You know all those stories where there's the guy with the pentagram and the holy water and he's like, yeah, he's sure he can control the demon? Doesn't work out. While this is perhaps dramatic, many Americans share Elon Musk's underlying anxieties about artificial intelligence's increasing... |
2018 |
| Anjanette H. Raymond , Emma Arrington Stone Young , Scott J. Shackelford |
Building a Better Hal 9000: Algorithms, the Market, and the Need to Prevent the Engraining of Bias |
15 Northwestern Journal of Technology & Intellectual Property 215 (Spring, 2018) |
Abstract--As sci-fi fans will recall, the movie 2001: A Space Odyssey is focused on the interaction between humans and artificial intelligence. In the movie, HAL (Heuristically programmed Algorithmic Computer) 9000 computer is an artificial intelligence and the onboard computer on the spaceship Discovery 1. HAL 9000, more commonly called Hal, is... |
2018 |
| Kate Sablosky Elengold |
Clustered Bias |
96 North Carolina Law Review 457 (January, 2018) |
Agencies, advocates, and courts regularly and repeatedly fail plaintiffs who have experienced intersectional discrimination based on more than one personal identity trait. Nearly thirty years after intersectionality theory was first introduced to legal scholarship, however, its insights have yet to be effectively integrated into antidiscrimination... |
2018 |
| Christopher T. Stein , Michelle Drouin |
Cognitive Bias in the Courtroom: Combating the Anchoring Effect Through Tactical Debiasing |
52 University of San Francisco Law Review 393 (2018) |
JUDGES AND JURIES ARE the heart of the American legal system. We entrust them to fairly apply the facts to the law and render justice through their judgment. Judges are relied on daily to resolve multimillion dollar claims, decide guilt or innocence, and even impose life or death sentences. We have long assumed, or perhaps merely hoped, that judges... |
2018 |
| Morgan A. Birck |
Do You See What I See? Problems with Juror Bias in Viewing Body-camera Video Evidence |
24 Michigan Journal of Race and Law 153 (Fall, 2018) |
In the wake of the Michael Brown shooting in Ferguson, Missouri, advocates and activists called for greater oversight and accountability for police. One of the measures called for and adopted in many jurisdictions was the implementation of body cameras in police departments. Many treated this implementation as a sign of change that police officers... |
2018 |
| Christina LaRocca |
Evidence as an Avenue for Bias and Prejudice: What Is Missing from the Model Code of Judicial Conduct Rule 2.3 |
31 Georgetown Journal of Legal Ethics 705 (Fall, 2018) |
The role of the judge includes the responsibility of determining the admissibility of evidence in cases before the court, as well as assigning levels of significance to each piece of evidence. Adjudicators are meant to provide impartial assessments of the facts and evidence before them, and determine how the relevant law applies to them. The... |
2018 |
| Jessica A. Clarke |
Explicit Bias |
113 Northwestern University Law Review 505 (2018) |
Abstract--In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of... |
2018 |
| Patrick C. Brayer |
Gender Nonconforming Expression and Binary Thinking: Understanding How Implicit Bias Becomes Explicit in the Legal System, Considering the Shooting Death of Philando Castile |
55 American Criminal Law Review Online 44 (2018) |
While lawyers and activists fighting for transgender rights have been temporarily halted in their efforts, theorists, poets, and artists are taking the lead in advancing the conversation about gender fluidity and the plight of people with non-binary gender identities. This essay is about what practitioners who combat implicit bias in the legal... |
2018 |
| Amanda Levendowski |
How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem |
93 Washington Law Review 579 (June, 2018) |
Abstract: As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI's technological gains and potential benefits. While legal and computer... |
2018 |
| Sharon Price-Cates |
Implicit Bias |
313-AUG New Jersey Lawyer, the Magazine 65 (August, 2018) |
Research by social scientists and neuroscientists has made available more accurate models on how the brain works, explaining how people think and behave. This research is informing the legal community that while racial bias and discrimination certainly can be intentional, it is just as likely to be unconscious implicit bias. Implicit bias refers... |
2018 |
| Yvonne Elosiebo |
Implicit Bias and Equal Protection: a Paradigm Shift |
42 New York University Review of Law and Social Change 451 (2018) |
In a society that touts grand egalitarian principles, one must reckon with the reality of racial, financial, carceral, educational, and health disparities. Certain groups consistently differentially perform in almost every metric, despite the contention that they are accorded the same opportunities. This article explores how unconscious bias has... |
2018 |
| Khiara M. Bridges |
Implicit Bias and Racial Disparities in Health Care |
43 Human Rights 19 (2018) |
Why are black people sicker, and why do they die earlier, than other racial groups? Many factors likely contribute to the increased morbidity and mortality among black people. It is undeniable, though, that one of those factors is the care that they receive from their providers. Black people simply are not receiving the same quality of health care... |
2018 |
| Samuel R. Bagenstos |
Implicit Bias's Failure |
39 Berkeley Journal of Employment and Labor Law 37 (2018) |
Introduction: The Political Project of Implicit Bias Research. 37 I. The Failure of Depoliticization. 43 II. The Failure of Depersonalization. 48 Conclusion. 51 |
2018 |
| Praatika Prasad |
Implicit Racial Biases in Prosecutorial Summations: Proposing an Integrated Response |
86 Fordham Law Review 3091 (May, 2018) |
Racial bias has evolved from the explicit racism of the Jim Crow era to a more subtle and difficult-to-detect form: implicit racial bias. Implicit racial biases exist unconsciously and include negative racial stereotypes and associations. Everyone, including actors in the criminal justice system who believe themselves to be fair, possess these... |
2018 |