| Author | Title | Citation | Summary | Year |
| 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 |
| Blanche Cook |
Complicit Bias: Sex-offender Registration as a Penalty for Obstructing Sex-trafficking Prosecutions |
96 Nebraska Law Review 138 (2017) |
C1-3TABLE OF CONTENTS I. Introduction. 139 II. Case Synopsis. 145 III. The Federalization of Human Sex Trafficking. 147 IV. The Canons of Statutory Interpretation. 152 A. Plain Language of §§ 1591 and 16911. 152 B. The Legislative History. 160 1. Section 1591's Legislative History. 160 2. The Use of the T-Visa in Discouraging Obstruction. 166 3.... |
2017 |
| Gregory S. Parks, Hon. Andre M. Davis |
Confronting Implicit Bias: an Imperative for Judges in Capital Prosecutions |
42 Human Rights 22 (2017) |
The esteemed lawyer Jonathan Rapping, founder and director of the non-profit Gideon's Promise, has often said that the most obvious feature of our legal system is the disparate treatment of African Americans. In no context is this observation more true and profound than in the administration of capital punishment. Therefore, our evolving... |
2017 |
| Erwin Chemerinsky |
Confronting Racial Bias |
53-JUL Trial 56 (July, 2017) |
Issues concerning race were central to a significant number of cases before the US. Supreme Court in its October 2016 Term. Strikingly, these cases span many areas--criminal law, voting, free speech, and federal statutes. Twice this Term, the Court has spoken powerfully about the need to eradicate the taint of racial discrimination from criminal... |
2017 |
| Valeria Vegh Weis |
Criminal Selectivity in the United States: a History Plagued by Class & Race Bias |
10 DePaul Journal for Social Justice 1 (Summer, 2017) |
The United States is at a pivotal moment in terms of rethinking class and racial inequality within the criminal justice system. However, there is a lack of shared conceptual tools to frame this debate. First, there is no clear or comprehensive theoretical tool to describe, categorize, or analyze class and racial inequality throughout the criminal... |
2017 |
| Vernellia Randall, Tshaka Randall |
Cutting Across the Bias: Teaching Implicit Bias in a Healthcare Law Course |
61 Saint Louis University Law Journal 511 (Spring, 2017) |
Law faculty train students to believe that the law is objective in development, adoption, and application. Law faculty tend to teach discrimination in the law as either a historical oddity or very infrequent occurrence. When the law deals with discrimination, it does so narrowly, focusing on discrimination driven by intent, explicit stereotypes,... |
2017 |
| Cristal Harris |
Dark Innocence: Retraining Police with Mindfulness Practices to Aid in Squelching Implicit Bias |
51 University of San Francisco Law Review 103 (2017) |
I was suddenly woken to yells and screams. I shared a bunk bed with my cousin. I had not heard much except Leonard Brown! It ain't him! She ain't him! My eyes went ablaze searching around frantically. Dreams broken to reality. There were guns everywhere. Men like giants. Deadly black pieces of metal drawn, ready to shoot at whoever dared move... |
2017 |
| Sean Darling-Hammond |
Designed to Fail: Implicit Bias in Our Nation's Juvenile Courts |
21 U.C. Davis Journal of Juvenile Law & Policy 169 (Summer, 2017) |
Our nation's juvenile courts espouse the admirable mission of creating a fair court of empathy capable of helping youth that have erred take a more positive path and become productive citizens, regardless of their backgrounds. Yet juvenile court dispositions yield troubling racial disproportionalities, and the proceedings themselves seem riddled... |
2017 |
| Amelia M. Wirts |
Discriminatory Intent and Implicit Bias: Title Vii Liability for Unwitting Discrimination |
58 Boston College Law Review 809 (March, 2017) |
Abstract: Studies consistently show that African Americans face more employment scrutiny and negative employment actions than their white coworkers. Recognizing that much of the explicit racism of the twentieth century has given way to subtle and often unconscious discriminatory biases, this Note argues that current Title VII jurisprudence contains... |
2017 |
| Lisa Blomgren Amsler, Alexander B. Avtgis, M. Scott Jackman |
Dispute System Design and Bias in Dispute Resolution |
70 SMU Law Review 913 (Fall, 2017) |
This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bureaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Service. Mediation represents a forum of accountability in... |
2017 |
| Jennifer K. Wagner |
Dna, Racial Disparities, and Biases in Criminal Justice: Searching for Solutions |
27 Albany Law Journal of Science and Technology 95 (2017) |
[W]e remain imprisoned by the past as long as we deny its influence in the present. ~Justice Brennan The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. ~Universal Declaration on the Human Genome and Human Rights I. Maryland v. King. 99 Facts... |
2017 |
| Gilat J. Bachar , Deborah R. Hensler |
Does Alternative Dispute Resolution Facilitate Prejudice and Bias? We Still Don't Know |
70 SMU Law Review 817 (Fall, 2017) |
By the time Professor Richard Delgado and his colleagues wrote their seminal article on the risk of alternative dispute resolution (ADR) facilitating prejudice, ADR programs were well-established in the United States, supported by legislative and court mandates, private contracts, and U.S. Supreme Court decisions. Fairness and Formality: Minimizing... |
2017 |
| Maurice R. Dyson |
Excessive Force, Bias, and Criminal Justice Reform: Proposals for Congressional Action |
63 Loyola Law Review 27 (Spring, 2017) |
INTRODUCTION: A NATIONAL EPIDEMIC OF TARGETED HARASSMENT & KILLINGS. 27 1. A ROUTINE OCCURRENCE. 29 2. MYOPIC MENTALITY & DIVISIVE RHETORIC. 30 3. COUNTERARGUMENTS TO THE POPULAR RHETORIC. 33 4. EVEN WHEN THE OFFICER IS A MINORITY, IT IS STILL INSTITUTIONALLY ENFORCED RACIAL OPPRESSION. 34 5. BRAINWASHED & WHITE WASHED: SOCIETAL & MEDIA PERCEPTIONS... |
2017 |
| Carol Izumi |
Implicit Bias and Prejudice in Mediation |
70 SMU Law Review 681 (Summer, 2017) |
Mediators aspire and endeavor to meet their ethical duty of neutrality in mediation. Yet their ability to actually conduct mediations without bias, prejudice, or favoritism toward any party is extraordinarily difficult, if not impossible. Research shows that unconscious mental processes involving stereotypes and attitudes affect our judgments,... |
2017 |
| Annika L. Jones |
Implicit Bias as Social-framework Evidence in Employment Discrimination |
165 University of Pennsylvania Law Review 1221 (April, 2017) |
The role of implicit bias as evidence in employment discrimination claims continues to evolve, as does research attempting to explain and quantify the concept of implicit bias. In Walmart Stores, Inc. v. Dukes, the Supreme Court curbed plaintiffs' use of implicit bias as evidence in support of the commonality requirement of Rule 23. Post-Dukes,... |
2017 |
| Rakesh Beniwal |
Implicit Bias in Child Welfare: Overcoming Intent |
49 Connecticut Law Review 1021 (February, 2017) |
Albert Einstein said that [w]e can't solve problems by using the same kind of thinking we used when we created them. In spite of the wisdom of this quote, the field of child protection attempts to do just that--often couching seemingly new initiatives within old business methods and ways of thinking. The result is a system that disparately... |
2017 |
| Professor Keith B. Maddox , Professor Samuel R. Sommers |
Implicit Bias in Daily Perceptions and Legal Judgments |
50 University of Michigan Journal of Law Reform 723 (Spring, 2017) |
In today's demonstration, we explored the audience's positive and negative associations with blacks and whites. The demonstration is an adaptation of the Implicit Association Test (www.projectimplicit.net), a computer-based task designed to explore mental connections between various concepts. Participants were presented with a list of concepts... |
2017 |
| Asha Amin |
Implicit Bias in the Courtroom and the Need for Reform |
30 Georgetown Journal of Legal Ethics 575 (Fall, 2017) |
The judiciary serves an important role in our democratic society: it protects individuals and keeps the government from overreaching into one's rights. The impartiality of a judge is at the heart of this administration of justice. If the public does not believe that judges are fair and impartial, it will lose confidence in the courts, disregard... |
2017 |
| Ted A. Donner |
Implicit Bias in the Law: an Important Focus for 2017 |
29 DCBA Brief Brief 5 (January, 2017) |
During the fi rst Presidential Debate in the 2016 general election, Hillary Clinton mentioned implicit bias in answer to a question posed by moderator Lester Holt. Holt asked her, Secretary Clinton, last week, you said we've got to do everything possible to improve policing, to go right at implicit bias. Do you believe that police are implicitly... |
2017 |
| Camille A. Olson, Gina R. Merrill, Kaitlyn F. Whiteside, Needhy Shah |
Implicit Bias Theory in Employment Litigation |
63 No. 5 Practical Lawyer 37 (October 1, 2017) |
The term implicit bias is commonly used to refer to ingrained beliefs, whether positive or negative, about other individuals or groups that are triggered automatically. These beliefs are not conscious thoughts but rather represent reflexive reactions at the unconscious level. The developers of the theory, social psychologists Anthony Greenwald... |
2017 |
| |
Implicit Bias: a Concept Worth Consideration |
43-WTR Vermont Bar Journal B.J. 5 (Winter 2017) |
As we enter court hearings, discussions with clients, engagements with fellow attorneys and interact with legislators and other policy makers, we are regularly faced with the intersection of our laws and the behaviors of people in our society. The ideal point of intersection is not always clear, and we are frequently asked to consider real world... |
2017 |
| Caroline Turner |
Implicit or Unconscious Bias: How Do We Overcome It? |
19 No. 4 TortSource 1 (Summer, 2017) |
We generally put an adjective, like implicit or unconscious, in front of the word bias. Bias can be positive as well as negative, but the term generally brings to mind negative rather than positive thoughts about people and groups. No one wants to have outright bias! An adjective softens it. Or we use a less accusatory term. McKinsey &... |
2017 |
| L. Song Richardson |
Implicit Racial Bias and Racial Anxiety: Implications for Stops and Frisks |
15 Ohio State Journal of Criminal Law 73 (Fall, 2017) |
I. Introduction. 74 II. Implicit Racial Bias and Racial Anxiety. 75 A. Judgments of Suspicion: The Influence of Implicit Racial Bias. 75 1. Increased Scrutiny. 76 2. Biased Evaluations of Ambiguous Behaviors. 76 B. Interactions: The Influence of Racial Anxiety. 78 III. Implications for Policing and the Fourth Amendment. 81 A. Acting on Racial... |
2017 |
| Briggs Depew, Ozkan Eren, Naci Mocan, Utah State University, Louisiana State University, Louisiana State University |
Judges, Juveniles, and In-group Bias |
60 Journal of Law & Economics 209 (May, 2017) |
We investigate the existence of in-group bias (preferential treatment of one's own group) in court decisions. Using the universe of juvenile-court cases in a US state between 1996 and 2012 and exploiting random assignment of juvenile defendants to judges, we find evidence for negative racial in-group bias in judicial decisions. All else being... |
2017 |
| Justin D. Levinson , Mark W. Bennett , Koichi Hioki |
Judging Implicit Bias: a National Empirical Study of Judicial Stereotypes |
69 Florida Law Review 63 (January, 2017) |
American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars... |
2017 |
| Sidney D. Watson |
Lessons from Ferguson and Beyond: Bias, Health, and Justice |
18 Minnesota Journal of Law, Science & Technology 111 (Winter, 2017) |
Introduction. 111 I. Racial Bias, Health, and Health Care. 115 II. Affordable Care Act: A Health Equity Agenda. 126 III. Section 1557 of the Affordable Care Act. 131 Conclusion. 141 |
2017 |
| Wendell Y. Tong |
Looking Within for Implicit Bias |
53-JUN Trial 27 (June, 2017) |
The civil justice system is strengthened toy diverse advocates-and it starts in attorneys' own practices. The path to achieving diversity in our practices requires proactive, deliberate efforts--which means reflecting on our implicit biases to overcome hurdles that we've unconsciously placed in the way. The diversity problem in the plaintiff bar is... |
2017 |
| Florina Altshiler |
Memory, Perception, and Confirmation Bias Unintentionally False Eyewitness Testimony |
12 No. 3 In-House Defense Quarterly 23 (Summer, 2017) |
on a crowded, midtown Manhattan street. NY Times Police Shoot Hammer-Wielding Man Sought in 4 Manhattan Attacks May 13, 2015. There were eyewitnesses to the incident. Almost all of the witness reports were incorrect. Several people inaccurately reported that the police officers shot an unarmed man while he was on the ground and handcuffed. The... |
2017 |
| Francis X. Shen |
Minority Mens Rea: Racial Bias and Criminal Mental States |
68 Hastings Law Journal 1007 (June, 2017) |
The American criminal justice system relies upon jurors to regularly decode the mental states of criminal defendants. These determinations are often of black and Hispanic defendants, making minority mens rea a centerpiece of the justice process. This Article presents an empirical investigation of how jury eligible subjects decode minority mens... |
2017 |
| Chris Chambers Goodman |
Nevertheless She Persisted: from Mrs. Bradwell to Annalise Keating, Gender Bias in the Courtroom |
24 William and Mary Journal of Women and the Law 167 (Fall, 2017) |
Introduction I. Background A. Bias, Stereotypes, and Schemas B. Stereotypes About Women Applied in the Law C. How the Media Evidences, Influences, and Exacerbates Gender Bias II. The Impacts of Gender Stereotypes and Bias in the Law A. Stereotypical Female Speech B. Do Looks Matter? C. The Role and Toll of Emotions III. Reducing the Impacts of... |
2017 |
| Ruth Leah Perrin |
Overcoming Biased Views of Gender and Victimhood in Custody Evaluations When Domestic Violence Is Alleged |
25 American University Journal of Gender, Social Policy and the Law 155 (2017) |
I. Introduction. 156 II. What Drives Custody Evaluators' Recommendations?. 156 A. Evaluators' Knowledge of Domestic Violence. 157 B. Evaluators' Beliefs About Domestic Violence and Custody. 160 1. Domestic Violence is Irrelevant to an Abuser's Ability to Parent.. 161 2. Allegations of Domestic Violence and Child Abuse Are Often False.. 162 3. The... |
2017 |