AuthorTitleCitationSummaryYear
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
Christopher S. Elmendorf Making Sense of Section 2: of Biased Votes, Unconstitutional Elections, and Common Law Statutes 160 University of Pennsylvania Law Review 377 (January, 2012) This Article develops a fresh account of the meaning and constitutional function of the Voting Rights Act's core provision of nationwide application, Section 2, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. I argue that Section 2 delegates authority to the courts to develop a... 2012
Clayton Mosher , J. Mitchell Pickerill Methodological Issues in Biased Policing Research with Applications to the Washington State Patrol 35 Seattle University Law Review 769 (Spring, 2012) In the mid-to-late 1990s, media attention intensified around the issue of racial profiling. The increased attention was partially due to concerns that law enforcement were biased and targeting members of minority groups, and that incarceration rates were racially disproportionate. Literally hundreds of articles appeared on the topic of racial... 2012
Sahar Fathi Race and Social Justice as a Budget Filter: the Solution to Racial Bias in the State Legislature? 47 Gonzaga Law Review 531 (2011-2012) Introduction. 532 I. Why Is There Racial Bias in the Legal System?. 534 A. Institutional Racism. 534 B. Historical Evidence of Institutional Racism. 535 II. What Is a Racial Impact Statement and What Are Some of the Current Models that Exist in the Country?. 540 A. Iowa and Connecticut. 540 B. Minnesota. 542 C. The City of Seattle. 542 III. The... 2012
Andrea D. Lyon Race Bias and the Importance of Consciousness for Criminal Defense Attorneys 35 Seattle University Law Review 755 (Spring, 2012) When I worked at the public defender's office in Chicago, I found that stereotypes and prejudice are problems for everyone, not just the prosecution or the judiciary--although it was more acute there. I entered the office thinking that public defenders were liberal (which is, in my mind, a good thing) and thus good on race issues. Not so much.... 2012
The Honorable Barbara Madsen, Chief Justice, Washington State Supreme Court Racial Bias in the Criminal Justice System 47 Gonzaga Law Review 243 (2011-2012) Keynote Address at the Conference on Race and Criminal Justice in the West Gonzaga University School of Law Saturday, September 24, 2011 In 2008, in his speech, A More Perfect Union, candidate Barak Obama called for a national conversation on race in America. In that speech, he reminded us in the words of William Faulkner: The past isn't dead... 2012
L. Elizabeth Sarine Regulating the Social Pollution of Systemic Discrimination Caused by Implicit Bias 100 California Law Review 1359 (October, 2012) Incidents of discrimination due to implicit bias, or an unconscious prejudice in favor of or against certain groups, are extremely difficult to challenge in court because plaintiffs alleging discrimination in violation of the Equal Protection Clause must prove that the discrimination was purposeful. Since our legal system often fails to provide... 2012
Jordan Blair Woods Systemic Racial Bias and Rico's Application to Criminal Street and Prison Gangs 17 Michigan Journal of Race and Law 303 (Spring 2012) This Article presents an empirical study of race and the application of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to criminal street and prison gangs. A strong majority (approximately 86%) of the prosecutions in the study involved gangs that were affiliated with one or more racial minority groups. All but one of the... 2012
Hannah Alsgaard The Beauty Bias: the Injustice of Appearance in Life and Law by Deborah L. Rhode. New York: Oxford University Press, 2010. 252 Pp. $24.95 Hardback, $17.95 Paperback. 27 Berkeley Journal of Gender, Law & Justice 142 (Winter 2012) The Dove website advertises its soap and bath products with a Social Mission and an official Vision. The Dove Movement for Self-Esteem asks consumers to [i]magine a world where beauty is a source of confidence, not anxiety. The campaign states that, since its launch in 2004, it has served as a starting point for widening the definition and... 2012
Robert J. Smith, Justin D. Levinson The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion 35 Seattle University Law Review 795 (Spring, 2012) The disproportionate incarceration of minorities is one of the American criminal justice system's most established problems. In spite of a societal backdrop in which descriptive claims of a post-racial America prosper, the problematic racial dynamics of criminal justice persist. The numbers are stark and clear: one out of every twenty-nine black... 2012
Jordan S. Rubin The Interpretation of Umpires' Dreams: Testing Supreme Court Nominees' Racial Biases 13 Rutgers Race & the Law Review 147 (2012) And he who at every age, as boy and youth and in mature life, has come out of the trial victorious and pure, shall be appointed a ruler and guardian of the State . . . But him who fails, we must reject. I am inclined to think that this is the sort of way in which our rulers and guardians should be chosen and appointed. I speak generally, and not... 2012
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