| Author | Title | Citation | Summary | Year |
| Bill Kanasky, Jr. |
Juror Confirmation Bias: Powerful, Perilous, Preventable |
33 No. 2 Trial Advocate Quarterly 35 (Spring, 2014) |
People tend to interpret new information in a way that confirms their existing beliefs. This is called confirmation bias. Psychologist Bill Kanasky explains here that confirmation bias affects both potential jurors and trial attorneys, and suggests some strategies for minimizing its effect. In science, you move closer to the truth by seeking... |
2014 |
| Equal Justice Society, Wilson Sonsini Goodrich, Rosati |
Lessons from Mt. Holly: Leading Scholars Demonstrate Need for Disparate Impact Standard to Combat Implicit Bias |
11 Hastings Race and Poverty Law Journal 241 (Summer, 2014) |
I always loved my home and was glad that I could provide housing to my children, grandchildren, and great grandchild. I also always loved my neighborhood as there is a strong sense of community here for us. We have known many of our neighbors for many years and we raised our families together. . . . When in 2003 we heard about the Township's plans... |
2014 |
| Nicole E. Negowetti |
Navigating the Pitfalls of Implicit Bias: a Cognitive Science Primer for Civil Litigators |
4 St. Mary's Journal on Legal Malpractice & Ethics 278 (2014) |
Abstract. Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a... |
2014 |
| Dov Fox |
Neuro-voir Dire and the Architecture of Bias |
65 Hastings Law Journal 999 (May, 2014) |
Courts and commentators routinely assume that bias on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and... |
2014 |
| Brock Boone |
The Curious Case of Child Support Magistrate Lu Ann Ballew: a Demonstration of the Problem with Religious Bias in Judicial Decisionmaking |
27 Georgetown Journal of Legal Ethics 391 (Summer, 2014) |
Columbia Law professor Kent Greenawalt stated in 1996 that [a]t this stage of United States history, one does not find explicitly religious grounds in opinions, even when courts reach beyond standard legal sources to comment on the social benefits or harms of a possible ruling. Almost twenty years later, Child Support Magistrate Lu Ann Ballew... |
2014 |
| Nickolas Kaplan |
'The Fire [This] Time': Ferguson, Implicit Bias, and the Michael Brown Grand Jury |
20 Public Interest Law Reporter 52 (Fall 2014) |
America has continued to witness countless police and vigilante killings of young, unarmed black men in the last decade. Each killing, acquittal, and non-indictment renews scrutiny over America's violent racial oppression in the postracial 21st century. , Even when community activism yields prosecutorial action, implicit biases and representation... |
2014 |
| Jamie Bigayer |
Voir Dire for Dummies: Using Visual and Auditory Cues and Question Design to Avoid the Pitfalls of Bunk Science, Gender Stereotypes, Perceptual Errors, and the Social Desirability Bias |
21 Duke Journal of Gender Law & Policy 369 (Spring, 2014) |
Introduction. 370 I. Pitfalls To Avoid. 372 A. Bunk Science. 372 B. Stereotypes. 375 C. Perceptual Errors. 377 II. Deciphering Visual and Auditory Cues. 378 A. Introduction. 378 B. Establish a Baseline. 382 C. Visual Cues. 383 D. Auditory Cues. 390 E. Use A Partner. 394 III. Question Design. 395 A. Introduction. 395 B. Construct Validity. 395 C.... |
2014 |
| Govind Persad |
When, and How, Should Cognitive Bias Matter to Law? |
32 Law & Inequality: A Journal of Theory and Practice 31 (Winter 2014) |
Findings about cognitive bias drawn from behavioral science have been used to justify rejecting stare decisis, changing consumer credit laws, regulating performance-enhancing drugs, revising the doctrine of fiduciary responsibility, and ceasing to treat some juvenile convictions as strikes under a three strikes law. These arguments share a... |
2014 |
| Susan Navarro Smelcer, Amy Steigerwalt, and Richard L. Vining, Jr. |
Where One Sits Affects Where Others Stand Bias, the Bar, and Nominees to Federal District Courts |
98 Judicature 35 (July-August 2014) |
The federal judicial appointment process receives substantial attention from social scientists. Numerous studies of Senate confirmation votes, the duration of confirmation processes, and the presidential selection of judicial nominees have added to our knowledge. However, a relatively small body of literature examines the vetting of judicial... |
2014 |
| Michael J. Higdon |
A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias |
87 Saint John's Law Review 171 (Winter 2013) |
Everywhere you look in modern America--in the Hollywood Hills or the canyons of Wall Street, in the Nashville recording studios or the clapboard houses of Cambridge, Massachusetts--you see elites mastering the art of perpetuating themselves. - The Economist, January 1, 2005 The Japanese macaque, or snow monkey as it is often called, is one of... |
2013 |
| Daniella A. Schmidt |
Bathroom Bias: Making the Case for Trans Rights under Disability Law |
20 Michigan Journal of Gender & Law 155 (2013) |
Disability law is one of the more successful tools currently being used to protect trans people from discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated... |
2013 |
| Robin Walker Sterling |
Children Are Different: Implicit Bias, Rehabilitation, and the "New" Juvenile Jurisprudence |
46 Loyola of Los Angeles Law Review 1019 (Spring, 2013) |
In several recent Supreme Court decisions, the Court has expanded the protections available to juvenile offenders in the criminal justice system, based on adolescent brain development research demonstrating that children merit different considerations than adults. This Article chronicles the Court's recent juvenile justice decisions from Roper v.... |
2013 |
| Lance D. Reich |
Cognitive Biases |
10 No. 1 SciTech Lawyer 4 (Fall, 2013) |
The natural cause of the human mind is certainly from credulity to skepticism. --Thomas Jefferson People often read stories of trials that make apparently fantastic factual determinations. For example, an award of billions in damages for a company's production of a chemical whose link to causing harm is very tenuous. Or an engineer is held liable... |
2013 |
| Kerri L. Pickel, Todd C. Warner, Tarah J. Miller, Zachary T. Barnes, Ball State University, University of Virginia, Ball State University |
Conceptualizing Defendants as Minorities Leads Mock Jurors to Make Biased Evaluations in Retracted Confession Cases |
19 Psychology, Public Policy, and Law 56 (February, 2013) |
Criminal suspects who confess during interrogations sometimes retract their confessions and go to trial. Jurors must then evaluate the voluntariness and authenticity of the confession and determine guilt. Previous research indicates that focusing the camera on the detective and defendant equally (rather than on the defendant alone) while recording... |
2013 |
| Valena Elizabeth Beety |
Criminality and Corpulence: Weight Bias in the Courtroom |
11 Seattle Journal for Social Justice 523 (Winter, 2013) |
Despite being a weight-obsessed culture, the United States and other western countries are becoming heavier. Being fat is no longer personal. In study after study, hostility toward fat, also known as weight bias, is increasing at a rate that outpaces the rate of obesity. American society condemns size and weight because individuals as viewed as... |
2013 |
| Andrew E. Taslitz |
Curing Own Race Bias: What Cognitive Science and the Henderson Case Teach about Improving Jurors' Ability to Identify Race-tainted Eyewitness Error |
16 NYU Journal of Legislation and Public Policy 1049 (2013) |
This article examines the role eyewitness identifications tainted by the own race bias may play in jury deliberations. It discusses the causes of own race bias in eyewitness identifications, and provides recommendations for how jurors should be informed about own race bias in order to identify race-tainted eyewitness error. It argues that both... |
2013 |
| Matthew I. Fraidin |
Decision-making in Dependency Court: Heuristics, Cognitive Biases, and Accountability |
60 Cleveland State Law Review 913 (2013) |
On tens of thousands of occasions each year, state court judges wrongly separate children from their families and place them in foster care. And while a child is in foster care, judges are called on to render hundreds of decisions affecting every aspect of the child's life. This Article uses insights from social psychology research to analyze the... |
2013 |
| Debra Lyn Bassett |
Deconstruct and Superstruct: Examining Bias Across the Legal System |
46 U.C. Davis Law Review 1563 (June, 2013) |
Introduction. 1563 I. Deconstruct: The Psychology of Unconscious Bias. 1565 II. Superstruct: Implicit and Unconscious Bias in the Context of Legal Proceedings. 1573 Conclusion. 1582 The fourth edition of Webster's New World College Dictionary defines bias as a mental leaning or inclination; partiality; bent[,] . . . to cause to have a bias;... |
2013 |
| Philip E. Tetlock, Gregory Mitchell, L. Jason Anastasopoulos |
Detecting and Punishing Unconscious Bias |
42 Journal of Legal Studies 83 (January, 2013) |
We present experimental results demonstrating how ideology shapes evaluations of technology aimed at detecting unconscious biases: (1) liberals supported use of the technology to detect unconscious racism but not unconscious anti-Americanism, whereas conservatives showed the reverse pattern, (2) liberals and conservatives opposed punishing... |
2013 |
| Christopher Cerullo |
Everyone's a Little Bit Racist? Reconciling Implicit Bias and Title Vii |
82 Fordham Law Review 127 (October, 2013) |
Since its enactment as part of the Civil Rights Act of 1964, Title VII's main purpose has been to end all forms of employment discrimination. Through a flexible judicial interpretation of Title VII that reached newly discovered forms of discrimination, and through occasional intervention by Congress to update the statute, Title VII has been largely... |
2013 |
| Abbey L. Thompson |
Evidence--is Rule 606(b) Constitutional When it Is Applied to Bar Testimony about Jury Racial Bias?--united States V. Shalhout, 507 F. App'x 201 (3d Cir. 2012) |
37 American Journal of Trial Advocacy 225 (Summer, 2013) |
Federal Rule of Evidence 606(b) faces potential constitutional hurdles when, after the verdict has been rendered, a juror attempts to provide evidence or testify about racial prejudices during jury deliberations. Rule 606(b) provides, [d]uring an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made... |
2013 |
| Freddy Rubio |
Hispanic Litigants and Jury Bias in Alabama |
33 Alabama Association for Justice Journal 43 (Spring, 2013) |
The Sixth Amendment of the United States Constitution guarantees [i]n all criminal prosecutions, the accused shall enjoy the right to . a trial, by an impartial jury. Furthermore, the Seventh Amendment provides that in civil trials the right of trial by jury shall be preserved. Despite these statements in the Constitution, juries may be far... |
2013 |
| Jordan Gross |
If Skilling Can't Get a Change of Venue, Who Can? Salvaging Common Law Implied Bias Principles from the Wreckage of the Constitutional Pretrial Publicity Standard |
85 Temple Law Review 575 (Spring, 2013) |
Fifty years ago, the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors' ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant's right to an impartial... |
2013 |
| Casey Reynolds |
Implicit Bias and the Problem of Certainty in the Criminal Standard of Proof |
37 Law & Psychology Review 229 (2012-2013) |
The heightened standard of proof in criminal cases is crafted to allocate the risk of error to the state in order to protect the defendant from wrongful conviction. I reviewed empirical research to determine whether juries actually understand and follow this standard, and whether current attempts to define reasonable doubt adequately protect the... |
2013 |
| L. Song Richardson, Phillip Atiba Goff |
Implicit Racial Bias in Public Defender Triage |
122 Yale Law Journal 2626 (June, 2013) |
Despite the promise of Gideon, providing the guiding hand of counsel to indigent defendants remains unmanageable, largely because the nation's public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which... |
2013 |
| Mona Lynch |
Institutionalizing Bias: the Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment |
41 American Journal of Criminal Law 91 (Winter 2013) |
I. Introduction. 91 II. Two Contemporary Systems of Punishment. 93 A. The Federal Sentencing System in the Guidelines Era. 93 B. The Modern American Capital Sentencing System. 97 III. What is (Institutionalized) Racial Bias?. 100 A. Predominant Social Scientific Perspectives on Racism. 100 B. Contemporary Legal Understandings of Racism. 103 C.... |
2013 |
| Cynthia Lee |
Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-racial Society |
91 North Carolina Law Review 1555 (June, 2013) |
This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving self-defense claims. Judges and juries are often unaware that implicit racial bias can influence their perceptions of threat, danger, and suspicion in cases involving minority defendants and victims. Failure to recognize the effects of... |
2013 |
| Tanya Asim Cooper |
Racial Bias in American Foster Care: the National Debate |
97 Marquette Law Review 215 (Winter, 2013) |
In disproportionately high numbers, Native American and African American children find themselves in the American foster care system. Empirical data establish that these children are removed from their families at greater rates than other races and stay in foster care longer, where they are often abused, neglected, and then severed from their... |
2013 |
| Melinda A. Marbes |
Refocusing Recusals: How the Bias Blind Spot Affects Disqualification Disputes and Should Reshape Recusal Reform |
32 Saint Louis University Public Law Review 235 (2013) |
Abstract. 237 I. Presumptions and Perceptions of Judicial Impartiality. 239 A. The Importance Of Judicial Impartiality. 239 B. Procedural and Other Safeguards Protecting Judicial Impartiality. 240 C. Differing Presumptions About Judicial Impartiality. 243 D. Shifting Disqualification Standards. 245 II. The Bias Blind Spot and Related Cognitive... |
2013 |
| Kyle C. Velte |
So You Want to Have a Second Child? Second Child Bias and the Justification-suppression Model of Prejudice in Family Responsibilities Discrimination |
61 Buffalo Law Review 909 (August, 2013) |
Discrimination against pregnant women and caregivers potentially affects every family in the United States. What is killing women today is motherhood. And that's just indefensible. In a country that is so committed to family values, that is indefensible. Even if a new mother and her employer can cope with one child, the second baby is often... |
2013 |
| Michele Benedetto Neitz |
Socioeconomic Bias in the Judiciary |
61 Cleveland State Law Review 137 (2013) |
Judges hold a prestigious place in our judicial system, and they earn double the income of the average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This Article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the unselfconscious... |
2013 |
| Ali Eacho |
Surviving Implicit Bias: Why the Appellate Court's Interpretation of the 2012 Amendment to the Racial Justice Act Will Be a Life or Death Decision for North Carolina Death Row Prisoners |
21 American University Journal of Gender, Social Policy and the Law 647 (2013) |
I. Introduction. 649 II. Background. 650 A. The Supreme Court's Racial Bias Jurisprudence Reflects a Focus on Addressing Explicit Bias in the Courtroom. 650 B. The Court Has Failed to Address Implicit Bias That Pervades Jury Selection in the Death Penalty Process. 651 C. The 2009 Racial Justice Act Accounts for Both Explicit and Implicit Racial... |
2013 |
| Luke A. Boso |
Urban Bias, Rural Sexual Minorities, and the Courts |
60 UCLA Law Review 562 (February, 2013) |
Urban bias shapes social perceptions about sexual minorities. Predominant cultural narratives geographically situate sexual minorities in urban gay communities, dictate the contours of how to be a modern gay person, and urge sexual minorities to come out and assimilate into gay communities and culture. This Article contests the urban presumption... |
2013 |
| Anna Roberts |
(Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias |
44 Connecticut Law Review 827 (February, 2012) |
This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious, bias, but also... |
2012 |
| Melody Finnemore |
A Case of Bias |
72-MAY Oregon State Bar Bulletin 32 (May, 2012) |
Many Americans who consider themselves of strong moral and ethical standing will shudder at the thought of prejudice, whether it's against a group a particular religion, ethnicity, gender, sexual orientation, income bracket or other segment of the population that differs from their own. And yet, maybe we can't help but feel biased against certain... |
2012 |
| Willy E. Rice |
Allegedly "Biased," "Intimidating," and "Incompetent" State Court Judges and the Questionable Removal of State Law Class Actions to Purportedly "Impartial" and "Competent" Federal Courts-a Historical Perspective and an Empirical Analysis of Class Action D |
3 William & Mary Business Law Review 419 (April, 2012) |
Judges as well as members of plaintiffs' and defense bars agree: a class action is a superior, efficient, and inexpensive procedural tool to litigate disputes that present similar questions of fact and law. To be sure, corporations and insurers have a long history of filing successful class actions against each other in state courts. Yet those... |
2012 |
| Bill Mordan |
Are We Hopelessly Biased? |
30 No. 6 ACC Docket 108 (July/August, 2012) |
Would you consider hiring this attorney? He was born and raised in Alabama-- white, paunchy, in his mid-40s. You've never heard of his hometown, but it sounds quite rural. He attended local Alabama public schools, and his extended family still lives near his childhood home. No matter how worldly and objective you are, the description above... |
2012 |
| Ruqaiijah Yearby |
Breaking the Cycle of "Unequal Treatment" with Health Care Reform: Acknowledging and Addressing the Continuation of Racial Bias |
44 Connecticut Law Review 1281 (April, 2012) |
Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 (Title VI) and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never... |
2012 |
| L. Song Richardson |
Cognitive Bias, Police Character, and the Fourth Amendment |
44 Arizona State Law Journal 267 (Spring 2012) |
I. Introduction. 268 II. Cognitive Biases. 269 A. Fundamental Attribution Error. 269 B. Implicit Racial Bias. 271 1. Biased Interpretation of Ambiguous Behavior. 272 2. Acting with Aggression. 273 C. Malleability of Cognitive Biases. 274 III. Doctrinal Implications. 277 A. Jurisprudential Ignorance. 277 B. Exacerbating Psychological Biases. 279 C.... |
2012 |
| Pamela A. Wilkins |
Confronting the Invisible Witness: the Use of Narrative to Neutralize Capital Jurors' Implicit Racial Biases |
115 West Virginia Law Review 305 (Fall 2012) |
How can capital defense lawyers craft narratives that neutralize jurors' unconscious racial and ethnic biases? A well-developed body of research in cognitive psychology indicates that despite even the best of intentions and the absence of conscious prejudice, most Americans harbor unconscious biases against African Americans. These biases influence... |
2012 |
| Jonathan Feingold, Karen Lorang |
Defusing Implicit Bias |
59 UCLA Law Review Discourse 210 (2012) |
The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insufficient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is... |
2012 |
| Lisette M. McCormick |
Diversity Collaborative Committee Sponsors Innovative Program on "Implicit Bias" |
14 No. 10 Lawyers Journal 3 (May 18, 2012) |
Consider for a moment the vast amount of information human beings process in a typical day. Of course, there are the usual e-mails, phone calls, texts, and written documents that we read and respond to in the course of a day. Add to that the stimuli we receive, at any given moment, in our immediate environments, the blowing of the office air... |
2012 |
| Sean Robertson |
Exception to Excess: Tactical Use of the Law by Outgroups in Bias Crime Legislation |
37 Law and Social Inquiry 456 (Spring, 2012) |
US bias crime jurisprudence follows the discrimination model and ejects hate from scrutiny. It is suggestive of improvements that should be made to Canadian law insofar as it also better tracks the enactment of discrimination against difference occasioned in the everyday. Criminal law, however, remains weak at preventing crime. And where the law... |
2012 |
| Amy Barasch, Esq. |
Gender Bias Analysis Version 2.0: Shifting the Focus to Outcomes and Legitimacy |
36 New York University Review of Law and Social Change 529 (2012) |
Twenty-five years ago, the New York State Unified Court System created the New York Task Force on Women in the Courts to study how women fared in the court system, a problem referred to in other contemporaneous reports as gender bias. In 1986, the Task Force published their Report (The Report). Today, it is important to review the achievements... |
2012 |
| Catherine J. Wasson , Barbara J. Tyler |
How Metacognitive Deficiencies of Law Students Lead to Biased Ratings of Law Professors |
28 Touro Law Review 1305 (2012) |
[H]e who knows most, knows best how little he knows. This course sucks. To [sic] much emphasis on grammer [sic]. Admit it! You have long felt that teaching law students should come with a warning: Student ratings can be hazardous to your career! Not to mention hazardous to your mental health. Thousands of articles have been published about... |
2012 |
| Michael Callahan |
If Justice Is Not Equal for All, it Is Not Justice: Racial Bias, Prosecutorial Misconduct, and the Right to a Fair Trial in State V. Monday |
35 Seattle University Law Review 827 (Spring, 2012) |
If prosecutors are permitted to convict guilty defendants by improper, unfair means then we are but a moment away from the time when prosecutors will convict innocent defendants by unfair means. Prosecutors have a duty to provide defendants with fair trials. Part of this duty is that prosecutors may not make racist arguments or appeal to racial... |
2012 |
| Jerry Kang, Judge Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson, Jennifer Mnookin |
Implicit Bias in the Courtroom |
59 UCLA Law Review 1124 (June, 2012) |
Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance... |
2012 |
| Todd A. Berger |
Jimmy Carter's "Malaise" Speech, Social Desirability Bias, and the Yuppie Nuremberg Defense: the Real Reason Why Law Students Say They Want to Practice Public Interest Law, Yet So Few Actually Do |
22-FALL Kansas Journal of Law & Public Policy 139 (Fall 2012) |
Various surveys spanning the course of several decades demonstrate that large numbers of first year law students say they would like to practice public interest law upon graduation. However, a very small percentage of these students actually go on to do so after completing law school. Legal Scholars have termed this phenomenon public interest... |
2012 |
| Jennifer K. Elek, David B. Rottman, and Brian L. Cutler |
Judicial Performance Evaluation |
96 Judicature 65 (September-October 2012) |
State judicial performance evaluation (JPE) programs promise to help courts achieve a variety of central goals (e.g., more informed judicial selection, retention, and/or assignment decisions; improvements in judicial quality; greater transparency). However, recent criticisms leveled against these programs and supported by preliminary empirical... |
2012 |
| Krista L. Nelson , Jacob J. Stender |
Like Wolves in Sheep's Clothing: Combating Racial Bias in Washington State's Criminal Justice System |
35 Seattle University Law Review 849 (Spring, 2012) |
Racial bias in the United States' criminal justice system is a serious problem, and Washington State is no exception. The groundbreaking Preliminary Report on Race and Washington's Criminal Justice System (Task Force Report) revealed striking evidence of racial and ethnic bias at various stages of criminal proceedings and highlighted the need for... |
2012 |