| Author | Title | Citation | Summary | Year |
| Honorable Janet Bond Arterton |
Unconscious Bias and the Impartial Jury |
40 Connecticut Law Review 1023 (May, 2008) |
In these remarks, Judge Arterton examines the relationship between the scholarly research into unconscious bias and the judiciary's role in addressing the phenomenon in courtroom practice. Through several decades of evolution, the Supreme Court has acknowledged the existence of covert prejudice and recognized its pervasiveness in formulating... |
2008 |
| Dale Larson |
Unconsciously Regarded as Disabled: Implicit Bias and the Regarded-as Prong of the Americans with Disabilities Act |
56 UCLA Law Review 451 (December, 2008) |
Much scholarly work has been written detailing the shift away from the original congressional intent behind the Americans with Disabilities Act (ADA), starting with the landmark U.S. Supreme Court decision in Sutton v. United Air Lines. While the U.S. Congress intended the protections under the ADA to be broad, courts have interpreted the act very... |
2008 |
| Jessica Fink |
Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-defendants |
38 New Mexico Law Review 333 (Spring, 2008) |
Since the passage of Title VII of the Civil Rights Act of 1964, countless individuals have turned to the courts to redress alleged violations of their civil rights. Indeed, in the four-plus decades since the passage of Title VII, discrimination claims brought under Title VII (along with its counterparts within the federal antidiscrimination... |
2008 |
| Keaton Wong |
Weighing Influence: Employment Discrimination and the Theory of Subordinate Bias Liability |
57 American University Law Review 1729 (August, 2008) |
Introduction. 1729 I. Background. 1735 A. The Anti-Discrimination Statutes. 1735 B. Agency Principles. 1737 II. The Theory of Subordinate Bias Liability. 1739 A. The Mere Influence or Involvement Standard. 1740 1. Influence. 1741 2. Involvement. 1742 3. Influence and involvement. 1743 B. The Actual Decision-Maker Standard. 1744 C. The Causal Nexus... |
2008 |
| Stephen F. Befort , Alison L. Olig |
Within in Grasp of the Cat's Paw: Delineating the Scopre of Subordinate Bias Liability under Federal Antidiscrimination Statutes |
60 South Carolina Law Review 383 (Winter 2008) |
I. Introduction. 383 II. The Origins of Subordinate Bias Liability. 387 III. Current Circuit Court Positions. 389 A. The Lenient Standard. 389 B. The Strict Standard. 392 C. The Intermediate Standards. 395 IV. Three Crucial Issues. 397 A. Causation. 398 1. Proving Causation. 398 2. Causation in the Context of Subordinate Bias Liability. 401 B.... |
2008 |
| Amitai Aviram |
Bias Arbitrage |
64 Washington and Lee Law Review 789 (Summer, 2007) |
The production of law-including the choice of a law's subject matter, the timing of its enactment and the manner in which it is publicized and perceived by the public-is significantly driven by an extra-legal market in which politicians and private parties compete over the opportunity to engage in bias arbitrage. Bias arbitrage is the extraction of... |
2007 |
| Sandra T. Azar , Phillip Atiba Goff |
Can Science Help Solomon? Child Maltreatment Cases and the Potential for Racial and Ethnic Bias in Decision Making |
81 Saint John's Law Review 533 (Summer 2007) |
Over the last three decades, there has been an increasing debate, both domestically and internationally, regarding the consideration that is given to children's rights within the legal system. Nowhere has the protection of children's rights been upheld more strongly than in the passage and application of child protection reporting laws and related... |
2007 |
| Dorothy E. Roberts |
Constructing a Criminal Justice System Free of Racial Bias: an Abolitionist Framework |
39 Columbia Human Rights Law Review 261 (Fall 2007) |
In her last speech before her death in 1965, playwright Lorraine Hansberry incisively described the nature of racial bias in America. She did not speak about a fairer way of punishing the crimes of black people; rather, she identified the paramount crime in the United States as the refusal of its ruling classes to admit or acknowledge in any way... |
2007 |
| David G. Savage |
Court Takes Cases out of the Office |
6 No. 14 ABA Journal E-Report E-Report 4 (April 6, 2007) |
Decisions about employees--whom to hire or fire, to promote or not--tend to be group affairs. A supervisor may manage a few workers. An office manager or site manager may, in turn, oversee those lower-level supervisors. In most companies and agencies, the human resources department oversees the process of hiring and firing employees. And at the top... |
2007 |
| Marybeth Herald |
Deceptive Appearances: Judges, Cognitive Bias, and Dress Codes |
41 University of San Francisco Law Review 299 (Winter 2007) |
THERE WAS A TIME when bartending was considered men's work. Michigan even passed a law to ensure that the professional pouring of alcohol remained a male-only occupation. When women challenged the restriction as a violation of equal protection principles, the Supreme Court rebuffed the argument, applied the weak rational basis relationship standard... |
2007 |
| Leah A. Hill |
Do You See What I See? Reflections on How Bias Infiltrates the New York City Family Court - the Case of the Court Ordered Investigation |
40 Columbia Journal of Law and Social Problems 527 (Summer 2007) |
I am an invisible man. No, I am not a spook like those who haunted Edgar Allan 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... |
2007 |
| |
Employment Law -- Title Vii -- Tenth Circuit Clarifies Causation Standard for Subordinate Bias Claims. -- Eeoc V. Bci Coca-cola Bottling Co. Of Los Angeles, 450 F.3d 476 (10th Cir. 2006), Cert. Granted, 127 S. Ct. 852 (2007). |
120 Harvard Law Review 1699 (April, 2007) |
In order to fulfill Title VII's purpose of rooting out discrimination in employment, courts have held that employers may be liable for subordinate bias. Under this theory, also known as cat's paw or rubber-stamp liability, an employer is liable when the plaintiff's supervisor, who has no official decisionmaking authority, is biased against... |
2007 |
| Justin D. Levinson |
Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering |
57 Duke Law Journal 345 (November, 2007) |
In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this... |
2007 |
| Samuel R. Bagenstos |
Implicit Bias, "Science," and Antidiscrimination Law |
1 Harvard Law & Policy Review 477 (Summer, 2007) |
In recent years, scholars of antidiscrimination law have increasingly focused on the problem of implicit or unconscious bias. They have pointed to an expanding mass of evidence from experimental psychology that appears to demonstrate the pervasiveness of unconscious bias based on race, gender, and other legally protected characteristics,... |
2007 |
| Michael Vitiello |
Liberal Bias in the Legal Academy: Overstated and Undervalued |
77 Mississippi Law Journal 507 (Winter 2007) |
By many accounts, universities are hotbeds of left-wing radicalism. Often fueled by overreaching administrators, right-wing bloggers and radio talk show hosts rail against the suppression of free speech by the politically correct left wing. Over the past twenty years, numerous and mostly conservative commentators have published books decrying... |
2007 |
| David Rudovsky |
Litigating Civil Rights Cases to Reform Racially Biased Criminal Justice Practices |
39 Columbia Human Rights Law Review 97 (Fall 2007) |
The roadblocks to reform of racially biased and other unfair and unconstitutional practices and policies in the criminal justice system that have emerged in the era following the Supreme Court's decision in McCleskey v. Kemp are daunting. The Supreme Court has placed significant obstacles to the pursuit of racial justice and equality in the... |
2007 |
| Lenese Herbert |
Othello Error: Facial Profiling, Privacy, and the Suppression of Dissent |
5 Ohio State Journal of Criminal Law 79 (Fall, 2007) |
In this article, Professor Herbert challenges the U.S. Transportation Security Administration's post-September 11, 2001, use of Paul Ekman and Wallace Friesen's Facial Action Coding System (FACS) to identify potential terrorists in American airports. Professor Herbert asserts that invasive visual examination of travelers' faces and facial... |
2007 |
| Deborah L. Brake |
Perceiving Subtle Sexism: Mapping the Social-psychological Forces and Legal Narratives That Obscure Gender Bias |
16 Columbia Journal of Gender and Law 679 (2007) |
In early January of 2007, the AALS Section on Women in Legal Education held a panel discussion on Subtle Sexism in Our Everyday Lives at the AALS Annual meeting in Washington, D.C. Such discussions about the barriers facing women in the legal profession often trigger a fatigue with talking about gender and a denial by some that gender remains... |
2007 |
| Stephen J. Choi, G. Mitu Gulati |
Ranking Judges According to Citation Bias (As a Means to Reduce Bias) |
82 Notre Dame Law Review 1279 (March, 2007) |
Most view the ideal judge as a neutral and unbiased decision maker; the scales of justice are not supposed to tilt one way or the other. Judges are not supposed to come to cases with preconceptions that defendants of a particular race or ethnicity are guilty, securities fraud lawsuits are frivolous, or that tax fraud cases involve cheats.... |
2007 |
| Daniel A. Smith |
Representation and the Spatial Bias of Direct Democracy |
78 University of Colorado Law Review 1395 (Fall 2007) |
Daniel Smith analyzes whether direct democracy favors urban and suburban voters' interests at the expense of rural voters' interests. After reviewing existing academic literature on the (sub)urban rural divide in direct democracy contests, the author performs an empirical analysis of county-level voting data on numerous recent Colorado ballot... |
2007 |
| Alex Geisinger |
Rethinking Profiling: a Cognitive Model of Bias and its Legal Implications |
86 Oregon Law Review 657 (2007) |
Sometimes referred to as Driving While Black, but actually encompassing any time that law enforcement uses a person's race as the basis for acting, racial profiling has become a matter of serious public concern. Academic debate of profiling has taken a variety of forms but often returns to a basic question regarding the rationality of police... |
2007 |
| Brian W. Collins |
Tackling Unconscious Bias in Hiring Practices: the Plight of the Rooney Rule |
82 New York University Law Review 870 (June, 2007) |
This Note analyzes the National Football League's (NFL) 2002 decision to implement an innovative--and controversial--policy aimed at increasing the League's number of minority head coaches. Designated the Rooney Rule, the policy mandates that every NFL team interview at least one minority candidate upon the vacancy of a head coaching position or... |
2007 |
| E. Earl Parson, B.A., J.D., LLM , Monique McLaughlin, B.A., J.D. |
The Persistence of Racial Bias in Voting: Voter Id, the New Battleground for Pretextual Race Neutrality |
8 Journal of Law in Society 75 (Summer, 2007) |
The right to vote is the cornerstone of our representative form of government. It is the one right, perhaps more than any other, upon which all other constitutional rights depend for their effective protection. It must be zealously safeguarded. Universal suffrage is one of the most cherished concepts of American democracy despite a history of... |
2007 |
| Anand Swaminathan |
The Rubric of Force: Employment Discrimination in the Context of Subtle Biases and Judicial Hostility |
3 Modern American 21 (Spring, 2007) |
When the United States Supreme Court instructed lower federal courts to enforce Brown v. Board of Education with all deliberate speed, it made vagueness and gradualism its official policy for social advancement. Fifty years along the path of gradualism, has our society lost the ability to make continuing progress in combating racial... |
2007 |
| Frank P. Andreano |
Voir Dire: New Research Challenges Old Assumptions |
95 Illinois Bar Journal 474 (September, 2007) |
Voir dire, the literal translation of which is to see and speak the truth, is generally considered one of the most critical aspects of a trial. During this pre-trial interview, prospective jurors are asked to provide information about their background, attitudes and beliefs. In theory, these self-disclosures reveal any bias or prejudice that... |
2007 |
| Melanie Gart |
A. Permitting Unsubstantiated Own-race Bias Arguments in Summation Invites Juror Confusion and Irrelevant Racial Considerations into Criminal Trials |
65 Maryland Law Review 1018 (2006) |
In Smith v. State, the Court of Appeals considered for the first time whether a defense counsel may attack a white victim's identification of two black defendants with unsupported own-race bias (ORB) arguments during summation. The court held that the criminal defendant's right to effective advocacy entitled him to attack the credibility of the... |
2006 |
| |
Advisory Vote: Mcle Elimination of Bias Requirement |
66-MAR Oregon State Bar Bulletin 13 (February/March, 2006) |
QUESTION: Should the rules of professional conduct governing the practice of law be amended to provide that no member of the Oregon State Bar shall be subject to suspension, or otherwise be subject to any sanction, for failing to complete or report any MCLE credit hours on the subject of elimination of bias? RESULT OF YES VOTE: Yes vote... |
2006 |
| Linda Hamilton Krieger , Susan T. Fiske |
Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment |
94 California Law Review 997 (July, 2006) |
The first call of a theory of law is that it should fit the facts. - Oliver Wendell Holmes Although they serve different social functions and employ different methods and tools, both law and the empirical social sciences need, use, and produce theories of human behavior. But their respective relationships to these theories differ in significant... |
2006 |
| Michèle Alexandre |
Dance Halls, Masquerades, Body Protest and the Law: the Female Body as a Redemptive Tool Against Trinidad's Gender-biased Laws |
13 Duke Journal of Gender Law & Policy 177 (Spring 2006) |
Male domination of the female body is the basic material reality of women's lives; and all struggle for dignity and self-determination is rooted in the struggle for actual control of one's own body . . . . The very word erotic comes from the Greek word eros, the personification of love in all its aspects-born of Chaos, and personifying creative... |
2006 |
| R. Richard Banks, Jennifer L. Eberhardt, Lee Ross |
Discrimination and Implicit Bias in a Racially Unequal Society |
94 California Law Review 1169 (July, 2006) |
For most of American history, racial discrimination was legally permissible and racial bias was openly espoused. African Americans, in particular, were regarded as inferior to Whites and subjected to the most rank forms of overt discrimination. Now, our society seems to have developed a broad consensus in opposition to racial bias and to... |
2006 |