AuthorTitleCitationSummaryYear
William M. Carter, Jr. Whren's Flawed Assumptions Regarding Race, History, and Unconscious Bias 66 Case Western Reserve Law Review 947 (Summer, 2016) My heartfelt thanks to CWRU Law School and the Law Review for having me here. I am an alumnus of CWRU Law, a former faculty member here from 2001-07, and a native Clevelander, so it's always nice to be back home. This symposium marks the 20th anniversary of Whren, which happens to coincide with the 20th anniversary of my first year of law school... 2016
Maria Greco-Danaher With a Lack of Policy and Staff Training, Employers Could Face Liability for a Nonemployee's Racial Bias 18 No. 11 Lawyers Journal 7 (May 27, 2016) Most - if not all - employers are aware that both federal and state laws preclude employment discrimination based upon the race or national origin of an employee, and know that illegal activity can include both discriminatory actions and biased statements. Most employers, however, are unaware that certain of those laws preclude discrimination by a... 2016
Meera E. Deo A Better Tenure Battle: Fighting Bias in Teaching Evaluations 31 Columbia Journal of Gender and Law L. 7 (2015) As legal education undergoes significant changes with regard to both student enrollment and faculty hiring, the fight to keep law faculty tenure is at the forefront. But the focus on tenure should be about the standards themselves. A better approach would be to change tenure requirements to create a more just and inclusive set of standards and... 2015
Cynthia Lee A New Approach to Voir Dire on Racial Bias 5 UC Irvine Law Review 843 (November, 2015) Introduction. 843 I. Voir Dire. 847 A. The Process of Voir Dire. 848 B. The Supreme Court's Jurisprudence on Voir Dire into Racial Bias. 852 II. Social Science Research on Race Salience. 860 A. Implicit Bias. 860 B. Race Salience. 861 III. Social Science Research on Racial Perceptions of Crime and Support for Punitive Criminal Justice Policies. 863... 2015
E. Gary Spitko A Reform Agenda Premised upon the Reciprocal Relationship Between Anti-lgbt Bias in Role Model Occupations and the Bullying of Lgbt Youth 48 Connecticut Law Review 71 (November, 2015) Employment discrimination in role model occupations on the basis of LGBT status has long been used systematically to define negatively the LGBT identity and to reinforce the associations between the non-LGBT majority and certain positive qualities, values, and institutions. This Article argues that a reciprocal relationship exists between such... 2015
Sabreena El-Amin Addressing Implicit Bias Employment Discrimination: Is Litigation Enough? 2015 Harvard Journal on Racial and Ethnic Justice Online 1 (2015) After the election of America's first Black president, many commentators--of all races--began to exclaim that Black people have no more excuses for failure. For these commentators, this historical moment seemed to symbolize that all obstacles had been lifted and that persisting racial disparities had to be the result of agency issues within the... 2015
Bryan Scott Ryan Alleviating Own-race Bias in Cross-racial Identifications 8 Washington University Jurisprudence Review 115 (2015) Over the past 80 years, courts, social scientists, and legal scholars have come to agree that eyewitness testimony is largely unreliable due to a variety of confounding factors. One prominent factor that makes eyewitness testimony faulty is own-race bias; individuals are generally better at recognizing members of their own race and tend to be... 2015
Arusha Gordon , Ezra D. Rosenberg Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21st Century 21 Michigan Journal of Race and Law 23 (Fall, 2015) While much has been written regarding unconscious or implicit bias in other areas of law, there is a scarcity of scholarship examining how implicit bias impacts voting rights and how advocates can move courts to recognize evidence of implicit bias within the context of a voting rights claim. This Article aims to address that scarcity. After... 2015
Stephanie Francis Ward Battling Bias 101-DEC ABA Journal 15 (December, 2015) A recent U.S. Supreme Court opinion that addressed unconscious discrimination in a low-income housing case could have far-reaching effects on future civil rights and criminal cases involving implicit bias. The June 2015 opinion dealt with a claim against the Texas Department of Housing and Community Affairs. It alleged that the department... 2015
Sarah Anne Mourer Believe it or Not: Mitigating the Negative Effects Personal Belief and Bias Have on the Criminal Justice System 43 Hofstra Law Review 1087 (Summer, 2015) I know that most men, including those at ease with problems of the greatest complexity, can seldom accept even the simplest and most obvious truth if it be such as would oblige them to admit the falsity of conclusions which they have delighted in explaining to colleagues, which they have proudly taught to others, and which they have woven, thread... 2015
George C. Chen Beneath the Surface: Why Diversity and Inclusion Matter for Lawyers of Color, and What Lawyers Can Do to Address Implicit Bias in the Legal Profession 62-JUN Federal Lawyer 28 (June, 2015) It would not be surprising to hear that an Asian Pacific-American attorney was mistaken to be a translator or paralegal when she walked into a boardroom to lead complex negotiations on behalf of her client. Similarly, African-American and Hispanic lawyers are far too often assumed to be defendants when they enter courtrooms to defend their clients... 2015
Robert R. Kuehn Bias in Environmental Agency Decision Making 45 Environmental Law 957 (Fall, 2015) Allegations of bias in administrative environmental decisions are common and seemingly increasing because of the significant economic and political interests in many disputes. From high profile national oil spills to local land use matters, parties to environmental proceedings allege conflicts of interest, favoritism, prejudgment of outcomes,... 2015
Nareissa L. Smith Built for Boyhood?: a Proposal for Reducing the Amount of Gender Bias in the Advertising of Children's Toys on Television 17 Vanderbilt Journal of Entertainment and Technology Law 991 (Summer, 2015) While the last half-century has seen a dramatic increase in the number of US women in the workforce, women remain underrepresented in STEM (Science, Technology, Engineering, and Mathematics) fields. For years, researchers and social commentators have tried to explain the persistence of this gender gap. Some have even argued that genetic differences... 2015
Regina A. Schuller, Caroline Erentzen, Alice Vo, David Li, York University Challenge for Cause: Bias Screening Procedures and Their Application in a Canadian Courtroom 21 Psychology, Public Policy, and Law 407 (November, 2015) Although there is a presumption of juror impartiality in Canadian law, this presumption may be set aside where there is evidence of widespread racial bias in the community from which the jury will be drawn. Following R. v. Parks (1993), defendants are entitled to challenge potential jurors if they believe that racial bias will interfere with the... 2015
James Babikian Cleaving the Gordian Knot: Implicit Bias, Selective Prosecution, & Charging Guidelines 42 American Journal of Criminal Law 139 (Spring 2015) I. Introduction. 139 II. Prosecutorial Discretion & Prosecutorial Bias. 141 A. The Scope of Prosecutorial Power. 141 B. Discriminatory Effects & Implicit Bias. 144 III. Selective Prosecution Doctrine & Implicit Bias. 149 A. Overview of the Armstrong Standard. 150 1. Discriminatory Effect. 151 2. Discriminatory Intent. 152 B. Difficulties Litigating... 2015
Ashok Chandran Color in the "Black Box": Addressing Racism in Juror Deliberations 5 Columbia Journal of Race and Law 28 (2015) The idea of trial by an impartial jury lies at the core of American criminal justice. Yet racism--both explicit and implicit--often has profound impacts on the administration of criminal law and criminal procedure. Such bias manifests itself at all levels of the system, including the deliberative process itself. Currently, however, defendants of... 2015
Mona Lynch Criminal Justice and the Problem of Institutionalized Bias--comments on Theory and Remedial Action 5 UC Irvine Law Review 935 (November, 2015) Introduction. 935 I. The Assertions. 936 II. What Is Racial Bias?. 939 Conclusion. 943 2015
Mario L. Barnes Criminal Justice for Those (Still) at the Margins--addressing Hidden Forms of Bias and the Politics of Which Lives Matter 5 UC Irvine Law Review 711 (November, 2015) Americans believe in the reality of race as a defined, indubitable feature of the natural world. Racism--the need to ascribe bone-deep features to people and then humiliate, reduce, and destroy them--inevitably follows from this inalterable condition. In this way, racism is rendered as the innocent daughter of Mother Nature, and one is left to... 2015
Masua Sagiv Cultural Bias in Judicial Decision Making 35 Boston College Journal of Law & Social Justice 229 (Spring, 2015) Abstract: This Essay describes the phenomenon of cultural bias in judicial decision making, and examines the use of testimonies and opinions of cultural experts as a way to diminish this bias. The Essay compares the legal regimes of the United States and Israel. Whereas in the United States, the general practice of using cultural experts in courts... 2015
Scott W. Howe Deselecting Biased Juries 2015 Utah Law Review 289 (2015) Critics of peremptory-challenge systems commonly contend that they inevitably inflict inequality harm on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach... 2015
Russell G. Pearce , Eli Wald , Swethaa S. Ballakrishnen Difference Blindness Vs. Bias Awareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse Partnerships 83 Fordham Law Review 2407 (April, 2015) This Article uses the example of BigLaw firms to explore the challenges that many elite organizations face in providing equal opportunity to their workers. Despite good intentions and the investment of significant resources, large law firms have been consistently unable to deliver diverse partnership structures -- especially in more senior... 2015
Elayne E. Greenberg Fitting the Forum to the Pernicious Fuss: a Dispute System Design to Address Implicit Bias and 'Isms in the Workplace 17 Cardozo Journal of Conflict Resolution 75 (Fall 2015) We can't solve problems by using the same kind of thinking we used when we created them. Albert Einstein This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to... 2015
Todd E. Pettys Free Expression, In-group Bias, and the Court's Conservatives: a Critique of the Epstein-parker-segal Study 63 Buffalo Law Review Rev. 1 (January, 2015) On May 6, 2014, the New York Times reported on a new study conducted by three prominent political scientists -- Professors Lee Epstein, Jeffrey Segal, and Christopher Parker -- concerning Supreme Court justices' voting patterns in First Amendment free-expression cases. After analyzing all such cases decided between the Court's 1953 and 2010 terms,... 2015
Patrick C. Brayer Hidden Racial Bias: Why We Need to Talk with Jurors about Ferguson 109 Northwestern University Law Review Online 163 (February 23, 2015) As recent tragic events confirm, issues of race frame our national identity and define our capacity to achieve true equality for all individuals. By its very nature and traditions, the law is a profession tasked with confronting inequality and discrimination in our society. As issues of race continue to influence our communities, nation, and world,... 2015
Sean D. O'Brien , Kathleen Wayland Implicit Bias and Capital Decision-making: Using Narrative to Counter Prejudicial Psychiatric Labels 43 Hofstra Law Review 751 (Spring 2015) Psychiatric labels are often used in judicial proceedings involving issues of life, liberty, or access to rehabilitative treatment. The Hofstra Law Review invited us to expand our recent discussion of the use of such labels to invoke prejudicial stereotypes in death penalty cases. Our previous discussion urged courts to reconsider the admissibility... 2015
Nicole E. Negowetti Implicit Bias and the Legal Profession's "Diversity Crisis": a Call for Self-reflection 15 Nevada Law Journal 930 (Spring 2015) Introduction. 930 I. The Legal Profession's Diversity Crisis . 934 II. Brief Overview of Implicit Bias Research. 935 III. The Effect of Implicit Bias on Diversity in the Legal Profession. 941 A. Implicit Bias in Attorney Hiring. 942 B. Implicit Bias and Lawyer Evaluations. 945 IV. Reason for Concern: The Importance of Diversity. 949 V. Mitigating... 2015
Justin D. Levinson , Koichi Hioki , Syugo Hotta Implicit Bias in Hawai'i: an Empirical Study 37 University of Hawaii Law Review 429 (Spring, 2015) More than twenty years after pervasive implicit racial bias began to be documented by social scientists, a tremendous body of scholarship teaches citizens and scholars alike about the power and breadth of implicit racial bias in America and beyond. Hundreds of empirical studies have found, using wide-ranging methodologies, that people possess a... 2015
Tawnee Sakima, Scott Schmidtke Implicit Biases and Hawai'i's Educational Landscape: an Empirical Investigation 37 University of Hawaii Law Review 501 (Spring, 2015) Students at the William S. Richardson School of Law conducted a multi-part study seeking empirical evidence of implicit biases related to education in Hawai'i. The objective was to discover whether implicit biases based on education exist in Hawai'i and, if so, collect meaningful data that could help to understand how implicit biases might distort... 2015
L. Song Richardson Implicit Racial Bias and the Perpetrator Perspective: a Response to Reasonable but Unconstitutional 83 George Washington Law Review 1008 (April, 2015) In their Article, Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. United States, Professor Chin and Mr. Vernon not only provide a withering critique of the U.S. Supreme Court's unanimous decision in Whren v. United States but they also present novel doctrinal arguments for reversing its problematic dicta... 2015
Lori A. Buiteweg Improve Our Profession with Unconscious Bias Awareness and Correction 94-NOV Michigan Bar Journal B.J. 8 (November, 2015) A my and Susan are first-year students at Tulane Law School in New Orleans. Amy is from Baton Rouge, Susan from Des Moines. Both women are passionate about equality and volunteered for student rights organizations during their undergraduate careers. The first Sunday morning after classes begin, Susan and Amy go out for breakfast and review their... 2015
Douglas N. Frenkel , James H. Stark Improving Lawyers' Judgment: Is Mediation Training De-biasing? 21 Harvard Negotiation Law Review 1 (Fall, 2015) When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic... 2015
Tasha Hill Inmates' Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine with Implicit Bias to Eviscerate Inmate Civil Rights 62 UCLA Law Review 176 (January, 2015) The United States incarcerates a larger percentage of our population than any other country. Minority populations make up a substantially disproportionate percentage of those incarcerated. For a variety of reasons, violence perpetrated against incarcerated persons, including sexual assault, is epidemic, while inmates have very limited opportunities... 2015
Kathleen Mahoney QC, FRSC Judicial Bias: the Ongoing Challenge 2015 Journal of Dispute Resolution 43 (Spring, 2015) This article calls for a renewed commitment to judicial education on the roles that gender, race, class and other biases can have on judicial decisions and impartiality. This article also calls for the appointment of a more representative and diverse judiciary. An explosion of activity occurred for about a decade between the late 1980s until the... 2015
Gregory S. Parks Judicial Recusal: Cognitive Biases and Racial Stereotyping 18 NYU Journal of Legislation and Public Policy 681 (2015) Introduction. 681 I. The Realities of Judicial Race Bias. 683 II. White-on-Black Bias. 686 III. Black-on-White Bias. 689 IV. Black-on-Black Bias. 693 Conclusion. 696 2015
Nancy S. Marder Juror Bias, Voir Dire, and the Judge-jury Relationship 90 Chicago-Kent Law Review 927 (2015) Jury selection in the United States begins with voir dire, but not all countries with juries follow this practice. For example, in England, Australia, and Canada, there is a right to a jury trial in criminal cases, and yet, there is no voir dire or questioning of prospective jurors as part of their jury selection. Rather, in these three countries,... 2015
Breann Nu'uhiwa Language Is Never about Language: Eliminating Language Bias in Federal Education Law to Further Indigenous Rights 37 University of Hawaii Law Review 381 (Spring, 2015) Language is power, life and the instrument of culture, the instrument of domination and liberation. -Angela Carter Before infants utter their first words or learn to assign meaning to speech, they develop preferences for those who speak their native languages in native accents. As children move into the preschool environment, language differences... 2015
Bruce A. Green Legal Discourse and Racial Justice: the Urge to Cry "Bias!" 28 Georgetown Journal of Legal Ethics 177 (Spring, 2015) C1-2Table of Contents Introduction. 177 I. Criminal Justice Discourseand Implicit Biases. 180 II. NYC Stop-and-Frisk Litigation: A Case Study. 185 A. THE LONG LEAD-UP TO JUDGE SCHEINDLIN'S REMOVAL. 186 B. THE SECOND CIRCUIT'S QUESTIONABLE PROCESS. 191 C. THE SECOND CIRCUIT'S QUESTIONABLE EXPLANATIONS. 195 D. THE OPPORTUNITY TO ATTRIBUTE... 2015
Charles R. Lawrence III , Featuring a Poem by Kathy Jetnil-Kijiner Local Kine Implicit Bias: Unconscious Racism Revisited (Yet Again) 37 University of Hawaii Law Review 457 (Spring, 2015) In 1987, I introduced the idea that anti-discrimination law should take cognizance of unconscious bias in an article titled The Id, The Ego and Equal Protection: Reckoning with Unconscious Racism. I argued that the purposeful intent requirement found in Supreme Court equal protection doctrine and in the Court's interpretation of anti-discrimination... 2015
Elizabeth Ingriselli Mitigating Jurors' Racial Biases: the Effects of Content and Timing of Jury Instructions 124 Yale Law Journal 1690 (March, 2015) This Note examines, through an experimental design, whether juror biases against black defendants are explained by aversive racism theory or social identity theory and whether procedural justice can be used to decrease biases. The Note also examines whether the timing of debiasing jury instructions affects judgments of guilt. The experiment finds... 2015
Kenneth D. Chestek Of Reptiles and Velcro: the Brain's Negativity Bias and Persuasion 15 Nevada Law Journal 605 (Spring 2015) Introduction. 606 I. Bad Is Stronger Than Good. 608 A. Social Science Findings. 609 B. Public Policy Example. 612 II. Why Is Bad Stronger Than Good?. 613 III. What Does This Have to Do with Persuasion?. 617 A. Are Judges Affected by the Negativity Bias?. 617 1. System 1 and System 2 Thinking. 618 2. Stake in the Outcome. 619 B. Addressing Adverse... 2015
Erik J. Girvan On Using the Psychological Science of Implicit Bias to Advance Anti-discrimination Law 26 George Mason University Civil Rights Law Journal L.J. 1 (Fall 2015) Prologue: Three Portraits of Modern-Day Race Discrimination Job Opportunities. In a field study exploring employment discrimination, White and Black actors matched for physical characteristics and interpersonal skills applied to entry-level jobs with 340 New York City employers operating restaurants, retail sales, car washes, shipping and moving... 2015
Kenneth Lawson Police Shootings of Black Men and Implicit Racial Bias: Can't We All Just Get along 37 University of Hawaii Law Review 339 (Spring, 2015) I am an invisible man. No, I am not a spook like those who haunted Edgar Allen Poe; nor am I one of your Hollywood movie ectoplasms. I am a man of substance, of flesh and bone, fiber and liquids--and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me. Like the bodiless heads you see sometimes... 2015
Rachel D. Godsil , James S. Freeman Race, Ethnicity, and Place Identity: Implicit Bias and Competing Belief Systems 37 University of Hawaii Law Review 313 (Spring, 2015) The concept of wahi pana merges the importance of place with that of the spiritual .. [T]his value links [Hawaiians to our past and our] future. Edward L. H. Kanahele You are where you came from. There are no disembodied selves. There are only humans embedded in practices, places, and cultures. Adrian McKinty We are constituted in significant part... 2015
Robert J. Smith Reducing Racially Disparate Policing Outcomes: Is Implicit Bias Training the Answer? 37 University of Hawaii Law Review 295 (Spring, 2015) While public defenders, civil rights organizations, and academics have long championed the reduction of racially disparate policing outcomes, their chorus has added some transformational actors recently. Attorney General Eric Holder, for instance, has called for rigorous new standards to help end racial profiling. The police chief of Richmond,... 2015
Melinda A. Marbes Reshaping Recusal Procedures: Eliminating Decisionmaker Bias and Promoting Public Confidence 49 Valparaiso University Law Review 807 (Spring, 2015) I. Introduction. 809 II. Partiality Problems. 811 A. Financial or Other Personal Interests in the Case. 812 B. Relational Interests in the Case. 814 C. Political Interests in the Case. 816 D. Personal Bias for or Against a Party or Participant. 817 E. A Common Thread in Partiality Problems. 819 III. Current Substantive Standards and Procedural... 2015
Maurice R. Dyson Still Using the Wrong Yardstick: Measuring Quality by the Proxies of Bias, Conformity, and Rumor 31 Columbia Journal of Gender and Law 154 (2015) It is well overdue to confront the three main ill-advised measurements that perpetuate persistent discrimination in legal academia: bias, conformity, and rumor. When proxies for quality are measured by benchmarks of innuendo, it does a disservice to the legal academy, the individual faculty, the student body, and the legal profession that is shaped... 2015
Sarah Jane Forman The #Ferguson Effect: Opening the Pandora's Box of Implicit Racial Bias in Jury Selection 109 Northwestern University Law Review Online 171 (February 23, 2015) It is a warm autumn night in St. Louis. The Cardinals are celebrating a 2-1 victory over the Los Angeles Dodgers in game four of the National League Championship Series. The bitter racial divisions that have erupted in this city following the shooting of unarmed teenager Michael Brown momentarily dissolve into a sea of red and white as fans dressed... 2015
Erik J. Girvan , Grace Deason , Eugene Borgida , University of Oregon, University of Wisconsin-La Crosse, University of Minnesota The Generalizability of Gender Bias: Testing the Effects of Contextual, Explicit, and Implicit Sexism on Labor Arbitration Decisions 39 Law and Human Behavior 525 (October, 2015) Decades of social-psychological research show that gender bias can result from features of the social context and from individual-level psychological predispositions. Do these sources of bias impact legal decisions, which are frequently made by people subject to factors that have been proposed to reduce bias (training and accountability)? To answer... 2015
Holly N. Boyer The Measure of Misconduct 38-NOV Los Angeles Lawyer 21 (November, 2015) JURORS, like all human beings, are imperfect. While the jury system may be imperfect, courts have long protected a litigant's constitutional right to a jury trial with 12 randomly selected impartial jurors capable and willing to decide the case solely on the evidence before it. Jurors are instructed only to consider the evidence presented to... 2015
Dayna Bowen Matthew Toward a Structural Theory of Implicit Racial and Ethnic Bias in Health Care 25 Health Matrix: Journal of Law-Medicine 61 (2015) C1-2Contents Introduction. 61 I. Background. 64 II. The Social Science Record on Implicit Bias in Health Care. 66 III. The Shortcomings of the Symbolic Interactionism Perspective. 73 IV. Toward a New Paradigm. 81 Conclusion. 84 2015
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