AuthorTitleCitationSummaryYear
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
Gregory S. Cusimano Implicit Unconscious Bias 79 Alabama Lawyer 418 (November, 2018) It was a Thursday afternoon, April 12. Joe and Ted walked into a coffee shop. Joe walked over to the manager and asked if he could use the restroom. He was told only paying customers could use the restroom, so they took a seat at a table. The manager walked over and asked if he could help with water or other drinks. They thanked him and said they... 2018
Julian R. Murphy. Is it Recording?--racial Bias, Police Accountability, and the Body-worn Camera Activation Policies of the Ten Largest Metropolitan Police Departments in the Usa 9 Columbia Journal of Race and Law 141 (2018) In recent years, there has been a growing belief that the pressing problem of racial bias in policing might be ameliorated by a technical fix--namely, police body-worn cameras. Accordingly, body-worn cameras have been introduced in police departments across the country, giving rise to a variety of different internal guidelines and policies. This... 2018
Robert I. Correales Is Peña-rodriguez V. Colorado Just a Drop in the Bucket or a Catalyst for Improving a Jury System Still Plagued by Racial Bias, and Still Badly in Need of Repairs? 21 Harvard Latinx Law Review 1 (Spring, 2018) Historically, race-based jury bias has maintained the most prominent place in the hierarchy of social ills that have plagued the American Criminal Justice System. Relying on Due Process and Equal Protection principles, the United States Supreme Court and lower federal courts have chipped away at the problem with mixed results. State Courts have... 2018
Ashley Badesch Lady Justice: the Ethical Considerations and Impacts of Gender-bias and Sexual Harassment in the Legal Profession on Equal Access to Justice for Women 31 Georgetown Journal of Legal Ethics 497 (Fall, 2018) Over twenty-five years ago, the American Bar Association (ABA) adopted a recommendation resolving to take action on the problem of sexual harassment in the workplace and legal profession. The report, compiled by the ABA Commission on Women in the Profession, was released in the wake of Anita Hill's testimony during the Supreme Court confirmation... 2018
Kristina M. Lagasse Language, Gender, and Louisiana Law: Removing Gender Bias from the Louisiana Civil Code 64 Loyola Law Review 187 (Spring, 2018) I. INTRODUCTION. 187 II. THE GRAMMATICAL GENDER DICHOTOMY IN THE ENGLISH LANGUAGE. 190 A. Linguistic Prescriptivism: The Masculine Rule. 191 B. Replacing the Masculine Rule with Gender-Neutral Language. 193 III. CONVENTIONS ON STYLE: GENDER-NEUTRAL PRINCIPLES AS AN EMERGING STANDARD AMONG THE STATES. 199 A. Gender-Neutral Language Guidelines in... 2018
Megan Quattlebaum Let's Get Real: Behavioral Realism, Implicit Bias, and the Reasonable Police Officer 14 Stanford Journal of Civil Rights & Civil Liberties 1 (February, 2018) Constitutional law is not particularly sophisticated about bias, and so it is not very good at protecting people from it. This is nowhere more evident than in the Supreme Court's jurisprudence around racial profiling. The Supreme Court has conceptualized racial profiling as something only bad police officers do; it has equated bad stops with bad... 2018
Loretta A. Moore, Ph.D. , Candis Pizzetta, Ph.D. , Angela Mae Kupenda, J.D. , Evelyn J. Leggette, Ph.D. Normalizing the Recognition of Implicit Bias as a Precursor to Normalizing Blackness: the Jsu Advance Implicit Bias Think Tank--mitigating Implicit Bias Against Black Female Faculty in Stem at Hbcus in the Deep South, and Other Groups More Broadly 12 Southern Journal of Policy and Justice 3 (Fall, 2018) Blackness is routinely considered as being outside the norm of America and more specifically, outside the norm of whiteness. As a result, blackness is feared, despised, scrutinized, and underrated--to use just a few verbs. Some bias against blackness was quite overt in the past. In today's America, overt and state sanctioned bias is regarded as... 2018
Diana R. Donahoe Not-so-great Expectations: Implicit Racial Bias in the Supreme Court's Consent to Search Doctrine 55 American Criminal Law Review 619 (Summer, 2018) The Supreme Court's creation of the social expectation doctrine in third-party consent to search cases, where it equated a police officer demanding entrance to a suspect's home with a house call from a social visitor, is emblematic of the implicit bias that pervades the United States criminal justice system. This perception of friendly officers... 2018
Kristyn A. Jones , William E. Crozier, Deryn Strange , John Jay College of Criminal Justice and The Graduate Center of the City University of New York, John Jay College of Criminal Justice of the City University of New York Objectivity Is a Myth for You but Not for Me or Police: a Bias Blind Spot for Viewing and Remembering Criminal Events 24 Psychology, Public Policy, and Law 259 (May, 2018) Now more than ever, people have access to police footage, yet people still disagree about what some footage depicts. This is not surprising given that research on attention, perception, and memory demonstrates that motivations, biases, and context shape what people see and remember. However, we do not know whether people are attuned to the fact... 2018
Natalie A. Spiess Peña-rodriguez V. Colorado: a Critical, but Incomplete, Step in the Never-ending War on Racial Bias 95 Denver Law Review 809 (Spring, 2018) The realization of America's oft-cited promise of equality and justice for all has long been inhibited by the pervasive racism that permeates all aspects of American life. For centuries, courts and legislatures have worked to eliminate racial bias and its crippling effects from the nation's laws and courts. However, one place where racial bias has... 2018
Gregory S. Parks Race, Cognitive Biases, and the Power of Law Student Teaching Evaluations 51 U.C. Davis Law Review 1039 (February, 2018) Decades of research shows that students' professor evaluations are influenced by factors well-beyond how knowledgeable the professor was or how effectively they taught. Among those factors is race. While some students' evaluative judgments of professors of color may be motivated by express racial animus, it is doubtful that such is the dominant... 2018
M. Eve Hanan Remorse Bias 83 Missouri Law Review 301 (Spring, 2018) C1-2Table of Contents I. Introduction. 302 II. Judging Remorse. 310 A. The Debated Relevance of Remorse. 310 B. How Remorse Affects Sentencing. 313 C. Assessing Remorse and Extrapolating Character. 316 1. Remorse in the Face of Punishment. 317 2. Authenticity in the Courtroom. 318 3. Variances in Nonverbal Behavior. 320 4. Required Content: What We... 2018
Chris Chambers Goodman Shadowing the Bar: Attorneys' Own Implicit Bias 28 Berkeley La Raza Law Journal 18 (2018) Everything we see, is a shadow of that which we do not see. Martin Luther King, Jr. INTRODUCTION. 18 PART ONE: IMPLICIT BIAS RESEARCH. 19 A. Identifying Bias. 19 B. The Stereotypic Association Between African Americans and Violence. 21 C. The Stereotypic Association Between African Americans and Crime. 23 D. Critiquing Implicit Bias. 25 E. The... 2018
Michele N. Struffolino The Devil You Don't Know: Implicit Bias Keeps Women in Their Place 38 Pace Law Review 260 (Spring, 2018) I. Introduction. 261 II. Implicit Bias Becomes the Focus of Discrimination Disclosure. 265 A. Implicit Social Cognition Theory. 266 B. The Implicit Association Test. 270 C. The Effects of Implicit Bias in the Legal System. 272 III. Gender Bias Affects Every Day Life. 275 A. Lessons Learned from Finding of Gender Bias in the Workplace. 276 B. The... 2018
Cheyne R. Scott The Evolution of Diversity Training and Impact of Unconscious Bias on the Legal Profession 313-AUG New Jersey Lawyer, the Magazine 23 (August, 2018) An estimated $10 billion per year is being spent on diversity training in workplaces around the country. Many high-profile discrimination lawsuits are settled with a requirement that the company impose diversity or sensitivity training. Apparently, according to a 1997 article in Forbes magazine, these requirements led to money making opportunities... 2018
Natalie Salmanowitz , Stanford Program in Neuroscience and Society, Stanford Law School, Stanford, CA, 94305, USA, Corresponding author. E-mail: nsalmanowitz@jd19.law.harvard.edu The Impact of Virtual Reality on Implicit Racial Bias and Mock Legal Decisions 5 Journal of Law & the Biosciences 174 (April, 2018) Implicit racial biases are one of the most vexing problems facing current society. These split-second judgments are not only widely prevalent, but also are notoriously difficult to overcome. Perhaps most concerning, implicit racial biases can have consequential impacts on decisions in the courtroom, where scholars have been unable to provide a... 2018
Tryon P. Woods The Implicit Bias of Implicit Bias Theory 10 Drexel Law Review 631 (2018) Legal liberalism, as well as critical race theory, has examined issues of race, racism, and equality by focusing on the exclusion and marginalization of those subjects and bodies marked as different and/or inferior. The disadvantage of this approach is that the proposed remedies and correctives to the problem-- inclusion, protection, and greater... 2018
Sherri Lee Keene The Influence of Implicit Racial Bias in Police Stops 35 No. 3 GPSolo 70 (May/June, 2018) In the criminal courtroom, race can often feel like the elephant in the room. Yet, for a criminal defense attorney, the inability to discuss how race may have impacted a defendant's case can result in missed opportunities to advocate effectively on behalf of the client. Discussions of race can be limited in the courtroom for a number of reasons,... 2018
Janyl Relling Smith The Legacy of Slavery, Cognitive Shortcuts, and Biased News: the Mass Media's Vilification of Black Males and the Resulting "Reasonableness" of Excessive Force by Law Enforcement 8 University of Miami Race & Social Justice Law Review 23 (Summer, 2018) I. Introduction. 24 II. Early Vilification, Policing the Outgroup, and Stifling Assimilation: A Brief Historical Look at Institutionalized Racism. 29 A. Law, Procedure, Early Policing, and Legal Sentiments of the High Court: Systems and Institutions as They Related to Blacks in an Antebellum America. 30 1. Slave Codes. 30 2. Fear and Subsequent... 2018
P. Jeffrey Brantingham The Logic of Data Bias and its Impact on Place-based Predictive Policing 15 Ohio State Journal of Criminal Law 473 (Spring, 2018) Predictive policing refers to a three-part process: (1) data of one or more type are ingested; (2) algorithmic methods use ingested data to forecast the occurrence of crime in some domain of interest; and (3) police use forecasts to inform strategic and tactical decisions in the field. A primary goal of predictive policing is to reduce uncertainty... 2018
Michael Selmi The Paradox of Implicit Bias and a Plea for a New Narrative 50 Arizona State Law Journal 193 (Spring, 2018) Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (IAT), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts... 2018
Terrence W. McCarthy The Racial Bias Exception to the General Rule That Precludes Jurors from Offering Testimony to Impeach Their Own Verdict 42 American Journal of Trial Advocacy Advoc. 1 (Fall, 2018) The no-impeachment rule generally provides that a juror may not testify about statements made during jury deliberations if the statement is offered to challenge the validity of a verdict or indictment. This longstanding rule has roots dating back to English common law and the rule is codified in Rule 606(b) of both the Federal and Alabama Rules... 2018
Lorena Espino-Piepp The Violence Against Women Act, Implicit Bias, and Judicial Training 24 Cardozo Journal of Equal Rights & Social Justice 347 (Spring, 2018) C1-2TABLE OF CONTENTS TABLE OF CONTENTS. 347 INTRODUCTION. 348 I. HISTORY OF VAWA, IMMIGRATION LAWS, AND THE FAMILY COURT. 350 A. The Violence Against Women Act. 351 B. Domestic Violence and Latina Immigrant Women. 352 C. Immigration Laws and Domestic Violence. 353 D. VAWA's Response to the Specific Problems Faced by Immigrant Women in Accessing... 2018
Samia E. McCall Thinking Outside of the Race Boxes: a Two-pronged Approach to Further Diversity and Decrease Bias 2018 Brigham Young University Education and Law Journal 23 (2018) Diverse perspectives and experiences are central to academic quality because they expand creative thought and analysis, test unexamined assumptions, challenge accepted truths, and broaden understanding of ourselves and our world .. - Reverend Paul L. Locatelli In spite of increases in diversity across university campuses nationwide, American... 2018
Mario L. Barnes, Erwin Chemerinsky What Can Brown Do for You?: Addressing Mccleskey V. Kemp as a Flawed Standard for Measuring the Constitutionally Significant Risk of Race Bias 112 Northwestern University Law Review 1293 (2018) Abstract--This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court's opinion reinforced the cramped understanding that constitutional claims require evidence of... 2018
Dallan F. Flake When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions? 102 Minnesota Law Review 2169 (May, 2018) Following a checkup at the local medical clinic, Mark stops by the reception desk to fill out an anonymous survey about his visit in exchange for ten dollars off his bill. Mark skims the questionnaire, rates his doctor, Melanie Flowers, mostly threes (out of five), and is on his way. When the clinic is forced to lay off one of its doctors two... 2018
Jody Armour Where Bias Lives in the Criminal Law and its Processes: How Judges and Jurors Socially Construct Black Criminals 45 American Journal of Criminal Law 203 (Spring, 2018) I. Introduction. 204 II. Denials of Racially Biased Constructions of Black Criminals: Why Paradigms Matter. 205 A. Evidence of Biased Constructions of Black Criminals in Character-Based Approaches to Mens Rea. 206 B. Concrete Illustration. 208 III. Prevailing Mens Rea Paradigm Ignores Room for Biased Social Construction of Black Criminals. 218 IV.... 2018
Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology 106 California Law Review 263 (April, 2018) The Fourth Amendment protects against unreasonable searches and seizures, but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question depends on and reflects the reasonable expectations of ordinary members of the public concerning their own privacy. For... 2018
Judge Joe Donald A Private Conversation on Implicit Bias and Race 90-MAR Wisconsin Lawyer 64 (March, 2017) To make progress resolving the issue of mass incarceration, we have to become aware of our own implicit biases and confront their influence on arrest, bail, and sentencing decisions. At the State Bar President's Symposium on Disparate Incarceration in February, I began my remarks by stating we need to have a private conversation about implicit bias... 2017
Stephen Gillers A Rule to Forbid Bias and Harassment in Law Practice: a Guide for State Courts Considering Model Rule 8.4(g) 30 Georgetown Journal of Legal Ethics 195 (Spring, 2017) After twenty-two years of failed efforts to add a rule forbidding bias and harassment in law practice to the American Bar Association's Model Rules of Professional Conduct, the ABA's House of Delegates approved one by voice vote in August 2016. Model Rule 8.4(g) will now move to the states. The goal of this Article is to aid state courts and bar... 2017
Prescott Loveland Acknowledging and Protecting Against Judicial Bias at Fact-finding in Juvenile Court 45 Fordham Urban Law Journal 283 (December, 2017) As a public defender, I often represent young people from twelve to seventeen years old in juvenile court. My juvenile clients face a wide range of accusations and they come from various family circumstances. Nearly all of my juvenile clients, however, are young people of color from under-resourced communities. Many find themselves arrested for... 2017
Debra Chopp Addressing Cultural Bias in the Legal Profession 41 New York University Review of Law and Social Change 367 (2017) Over the past two decades, there has been an outpouring of scholarship that explores the problem of implicit bias. Through this work, commentators have taken pains to define the phenomenon and to describe the ways in which it contributes to misunderstanding, discrimination, inequality, and more. This article addresses the role of implicit cultural... 2017
Anthony Kakoyannis Assessing the Viability of Implicit Bias Evidence in Discrimination Cases: an Analysis of the Most Significant Federal Cases 69 Florida Law Review 1181 (July, 2017) The theory of implicit bias occupies a rapidly growing field of scientific research and legal scholarship. With the advent of tools measuring individuals' subconscious biases toward people of other races, genders, ages, national origins, religions, and sexual orientations, scholars have rushed to explore the ways in which these biases might affect... 2017
Mark Walsh Bias Behind Closed Doors 103-MAY ABA Journal 20 (May, 2017) A case about racial bias in the jury room would seem to have all the makings of a provocative and headline-grabbing decision. However, Peña-Rodriguez v. Colorado, a case containing just such bias, hovered a bit below the radar, even during this relatively low-key U.S. Supreme Court term. Justice Anthony M. Kennedy appeared to be doing what he could... 2017
Vida B. Johnson Bias in Blue: Instructing Jurors to Consider the Testimony of Police Officer Witnesses with Caution 44 Pepperdine Law Review 245 (2017) Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness. Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial. Jurors are to accept that police are no... 2017
Solangel Maldonado Bias in the Family: Race, Ethnicity, and Culture in Custody Disputes 55 Family Court Review 213 (April, 2017) This essay examines the role of racial, ethnic, and cultural bias in custody cases. It analyzes cases where the court explicitly considered the parents' racial, ethnic, or cultural background and cases where the court did not acknowledge these factors but where it is clear from the court's opinion that biases influenced its decision. It then... 2017
Blanche Bong Cook Biased and Broken Bodies of Proof: White Heteropatriarchy, the Grand Jury Process, and Performance on Unarmed Black Flesh 85 UMKC Law Review 567 (Spring, 2017) The intention in torture of humans is . to silence the other's voice by wrecking his or her body; it is to make the tortured speak the torturer's words instead of his own. Margaret A. Farley Although scholars have theorized about systemic racialized police violence, less attention has been given to systemic practices in the investigations and grand... 2017
Jamillah Bowman Williams Breaking down Bias: Legal Mandates Vs. Corporate Interests 92 Washington Law Review 1473 (October, 2017) Abstract: Bias and discrimination continue to limit opportunities and outcomes for racial minorities in American institutions in the twenty-first century. The diversity rationale, touting the broad benefits of inclusion, has become widely accepted by corporate employers, courts, and universities. At the same time, many view a focus on... 2017
Julianne Hill Caught on Tape 103-FEB ABA Journal 12 (February, 2017) THE USE OF SLOW-MOTION VIDEO HAS become common in criminal cases. But a new study has found that watching crimes at slower speeds leads viewers to falsely believe perps have more time to think about their actions and act with intent, potentially skewing verdicts against defendants. In a joint study out of the University of Chicago, University of... 2017
Dr. Cedric L. Alexander Community Policing as a Counter to Bias in Policing: a Personal Perspective 126 Yale Law Journal Forum 381 (January 31, 2017) Some forty years ago, I was a very young black man living in the Florida panhandle. My dream was to get into law enforcement, but I first needed to get into the state academy, which required the endorsement of a Florida police executive. The chief of the Florida Agricultural and Mechanical University Police Department--a black chief in an... 2017
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