Michael L. Perlin, Esq. "IN THESE TIMES OF COMPASSION WHEN CONFORMITY'S IN FASHION": HOW THERAPEUTIC JURISPRUDENCE CAN ROOT OUT BIAS, LIMIT POLARIZATION, AND SUPPORT VULNERABLE PERSONS IN THE LEGAL PROCESS 10 Texas A&M Law Review 219 (Winter, 2023) This Article considers the extent to which caselaw has--either explicitly or implicitly--incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law's influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people's lives. Two of the... 2023
Garanique Williams A MEANS TO AN END: A WAY TO CURB BIAS-BASED POLICING IN NEW YORK CITY 2023 Cardozo Law Review de novo 90 (2023) C1-2Table of Contents Introduction. 91 I. Background. 95 A. Explaining the New York City Housing Authority (NYCHA). 95 B. The Rise of Police Service Areas (PSAs). 96 C. The Problem with PSAs. 98 D. Section 14-151 of the Administrative Code's Offered Protections to Bias-Based Profiling. 101 E. The Constitutional Protections to the Problem of... 2023
Jessica Saunders , Greg Midgette A TEST FOR IMPLICIT BIAS IN DISCRETIONARY CRIMINAL JUSTICE DECISIONS 47 Law and Human Behavior 217 (February, 2023) Objective: Our goal was to develop a framework to test for implicit racial bias in discretionary decisions made by community supervision agents in conditions with increasing information ambiguity. Hypotheses: We reasoned that as in-person contact decreases, community supervision officers' specific knowledge of clients would be replaced by... 2023
The Honorable Cherron Payne ALL CASES MATTER: MITIGATING BIAS IN THE ADMINISTRATIVE LAW JUDICIARY 43 Journal of the National Association of Administrative Law Judiciary 1 (Spring, 2023) C1-2Table of Contents Introduction. 3 I. Bias. 6 A. Explicit Bias. 8 B. Implicit Bias. 13 II. The Neuroscience Of Implicit Bias. 19 A. Implicit Bias and the Amygdala. 23 III. Individual And Systemic Factors That Influence Implicit Bias. 25 IV. Administrative Law Judiciary and its Susceptibility to Bias. 27 V. Mitigating Bias in the Administrative... 2023
Jens Frankenreiter, Michael A. Livermore ARE LAWYERS' CASE SELECTION DECISIONS BIASED? A FIELD EXPERIMENT ON ACCESS TO JUSTICE 52 Journal of Legal Studies 273 (June, 2023) The attorney-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how demographic information (encoded in potential clients' names) affects how attorneys respond to initial inquiries in private injury cases. On the basis of prior literature, we hypothesize that race... 2023
Luca CM Melchionna BIAS AND FAIRNESS IN ARTIFICIAL INTELLIGENCE 95-AUG New York State Bar Journal 29 (July/August, 2023) An attorney has taken on a multifaceted case and can't decide whether to use artificial intelligence to meet discovery demands involving 100,000 sensitive documents (see Attorney Professionalism Forum on page 52). While AI can save money by selecting only the most pertinent documents, the lawyer does not want to risk the client's privacy by... 2023
Dorothea Endres , Luisa Hedler , Kebene Wodajo BIAS IN SOCIAL MEDIA CONTENT MANAGEMENT: WHAT DO HUMAN RIGHTS HAVE TO DO WITH IT? 117 AJIL Unbound 139 (2023) In a global context where political campaigning, social movements, and public discourse increasingly take place online, questions regarding the regulation of speech by social media platforms become ever more relevant. Companies like Facebook moderate content posted by users on their platforms through a mixture of automated decision making and human... 2023
Maytal Gilboa BIASED BUT REASONABLE: BIAS UNDER THE COVER OF STANDARD OF CARE 57 Georgia Law Review 489 (Winter, 2023) Inequities in the healthcare distribution are widely acknowledged to plague the United States healthcare system. Controversies as to whether antidiscrimination law allows individuals to bring lawsuits with respect to implicit rather than intentional bias render negligence law an important avenue for redressing harms caused by implicit bias in... 2023
Hillel J. Bavli CHARACTER EVIDENCE AS A CONDUIT FOR IMPLICIT BIAS 56 U.C. Davis Law Review 1019 (February, 2023) The Federal Rules of Evidence purport to prohibit character evidence, or evidence regarding a defendant's past bad acts or propensities offered to suggest that the defendant acted in accordance with a certain character trait on the occasion in question. However, courts regularly admit character evidence through an expanding set of legislative and... 2023
Stephanie A. Cardenas, John Jay College of Criminal Justice, City University of New York, Department of Psychology, Williams College CHARGED UP AND ANCHORED DOWN: A TEST OF TWO PATHWAYS TO JUDGMENTAL AND DECISIONAL ANCHORING BIASES IN PLEA NEGOTIATIONS 29 Psychology, Public Policy, and Law 435 (November, 2023) Prosecutors sometimes threaten defendants with disproportionately severe potential trial sentences (PTS) to coerce their plea acceptance. Three experiments tested whether the PTS act as an anchor that biases evaluations of the plea deal at deep (vs. shallow) processing level by encouraging asymmetric consideration of information consistent--but not... 2023
Lori N. Ross CHILDBEARING UNDER UNBEARABLE CIRCUMSTANCES: THE IMPORTANCE OF ABORTION BAN EXCEPTIONS FOR VICTIMS OF SEXUAL VIOLENCE AND THE CURRENT BIAS AGAINST SEX TRAFFICKING VICTIMS 52 University of Baltimore Law Review 251 (Spring, 2023) I. INTRODUCTION. 253 II. SEMINAL U.S. SUPREME COURT PRECEDENT ON ABORTION. 257 A. Roe v. Wade. 258 B. Dobbs v. Jackson Women's Health Organization. 266 1. The Majority Opinion. 266 2. The Dissenting Opinion. 278 III. THE LEGAL LANDSCAPE OF ABORTION POST-DOBBS. 288 A. Federal Action: Presidential Executive Orders. 288 1. First Executive Order:... 2023
Laura Smalarz, Rose E. Eerdmans, Megan L. Lawrence, Kylie Kulak, Jessica M. Salerno, School of Social and Behavioral Sciences, Arizona State University COUNTERINTUITIVE RACE EFFECTS IN LEGAL AND NONLEGAL CONTEXTS 47 Law and Human Behavior 119 (February, 2023) Objective: Despite documented racial disparities in all facets of the criminal justice system, recent laboratory attempts to investigate racial bias in legal settings have produced null effects or racial-bias reversals. These counterintuitive findings may be an artifact of laboratory participants' attempts to appear unprejudiced in response to... 2023
Keith Cunningham-Parmeter DISCRIMINATION BY ALGORITHM: EMPLOYER ACCOUNTABILITY FOR BIASED CUSTOMER REVIEWS 70 UCLA Law Review 92 (June, 2023) From Uber to Home Depot to Starbucks, companies are increasingly asking customers to rate workers. Gathering data from these ratings, many firms utilize algorithms to make employment decisions. The proliferation of customer ratings raises the possibility that some customers may review workers negatively for racist, sexist, or other illegal reasons.... 2023
Arthur S. Leonard DISTRICT COURT REJECTS CONSTITUTIONAL CHALLENGE TO FEDERAL HATE CRIME PROSECUTION IN ANTI-LGBTQ+ BIAS CASE 2023 LGBT Law Notes 11 (February, 2023) Chief U.S. District Judge Brian Morris rejected John Russell Howald's argument that Howald could not be prosecuted for violating the federal Hate Crimes Prevention Act (HCPA), 18 USC Sec. 249 (a)(2), because, he argued, it exceeds Congress's power under the Commerce Clause to federalize criminal law. United States v. Howald, 2023 WL 35049, 2023... 2023
Dushiyanthini (Toni) Kenthirarajah , Nicholas P. Camp , Gregory M. Walton , Aaron C. Kay , Geoffrey L. Cohen DOES "JAMAL" RECEIVE A HARSHER SENTENCE THAN "JAMES"? FIRST-NAME BIAS IN THE CRIMINAL SENTENCING OF BLACK MEN 47 Law and Human Behavior 169 (February, 2023) Objective: Using archival and experimental methods, we tested the role that racial associations of first names play in criminal sentencing. Hypotheses: We hypothesized that Black defendants with more stereotypically Black names (e.g., Jamal) would receive more punitive sentences than Black defendants with more stereotypically White names (e.g.,... 2023
  ELECTION LAW--REDISTRICTING--WISCONSIN SUPREME COURT ADOPTS NEW ELECTION MAPS THAT CHANGE EXISTING DISTRICTS LEAST, REGARDLESS OF PARTISAN BIAS.--JOHNSON v. WISCONSIN ELECTIONS COMMISSION, 972 N.W.2D 559 (WIS. 2022) 136 Harvard Law Review 998 (January, 2023) When political deadlock prevents a state from redistricting, the job falls to courts. It is an uncomfortable assignment, and judges have differed widely over how to tackle it. Recently, in Johnson v. Wisconsin Elections Commission (Johnson III), the Wisconsin Supreme Court was forced to redistrict in the legislature's stead. Reaffirming the... 2023
Julia L. Ernst ELIMINATING BIAS AGAINST LGBTQ+ LEGAL PROFESSIONALS: CONTINUING THE CONVERSATION 98 North Dakota Law Review 187 (2023) In the spring of 2022, the University of North Dakota School of Law hosted a continuing legal education (CLE) program on Eliminating Bias against LGBTQ+ Legal Professionals, sponsored by two law student organizations along with the Women Lawyers Section of the State Bar Association of North Dakota (SBAND). This piece provides a transcript of... 2023
Lieutenant Colonel Susan E. Upward, USMC EMPANELING "FAIR AND IMPARTIAL" MEMBERS: THE CASE FOR INCLUSION OF AN IMPLICIT BIAS INSTRUCTION AT COURTS-MARTIAL 32 Southern California Review of Law & Social Justice 333 (Spring, 2023) C1-2TABLE OF CONTENTS I. INTRODUCTION. 334 II. BACKGROUND. 335 A. Fifty Years of Documented Research Pointing to Racial Bias. 335 1. Post-World War II: Racial Integration of the Armed Forces 2. The Twenty-First Century: Racial Disparity Persists in the Military. 336 III. ISSUE. 340 A. Defining Implicit Bias. 340 B. Recognizing the Implicit Bias... 2023
Ryan J. Fitzgerald , Colin G. Tredoux , Stefana Juncu ESTIMATION OF EYEWITNESS ERROR RATES IN FAIR AND BIASED LINEUPS 47 Law and Human Behavior 463 (August, 2023) Objective: The risk of mistaken identification for innocent suspects in lineups can be estimated by correcting the overall error rate by the number of people in the lineup. We compared this nominal size correction to a new effective size correction, which adjusts the error rate for the number of plausible lineup members. Hypotheses: We hypothesized... 2023
Evan D. Beecher, Joanne Braddock Lambert, Nathan A. Searcy, John A. Snyder HOW IMPLICIT BIAS TRAINING IN THE REAL ESTATE INDUSTRY CAN ACHIEVE ENHANCED EFFECTIVENESS 39 Practical Real Estate Lawyer 24 (Jul-23) In recent years, the nation has made efforts to raise awareness of implicit bias in the workplace. Several states, such as California and New York, now require real estate professionals to complete implicit or unconscious bias training courses as part of their pre-licensing or continuing education requirements. Much of this training has routinely... 2023
John L. Shahdanian II , Asaad K. Siddiqi , Valentina Scirica IMPLICIT BIAS 342-JUN New Jersey Lawyer, the Magazine 50 (June, 2023) On Jan. 31, the New Jersey Appellate Division addressed issues of first impression when it rendered its decision in State of New Jersey v. William L. Scott. The Appellate Division held for the first time that implicit bias can be a basis for establishing a prima facie case of police discrimination under the burden-shifting standard adopted in the... 2023
Wayne J. Boehle, Ana M. Sambold IMPLICIT BIAS--NOT A NEW CONCERN FOR ATTORNEYS 45-FEB Los Angeles Lawyer 34 (February, 2023) Assembly Bill 242 mandating that the State Bar of California enact rules incorporating the topic of implicit bias and bias-reducing strategies into its MCLE curriculum for all attorneys took effect January 31, 2023. At least two hours of credit are required for the elimination of bias--one hour at a minimum to focus on implicit bias and the... 2023
Caden Pociask IN THE BEST INTERESTS OF WHOM?: AN ANALYSIS OF JUDICIAL BIAS IN CUSTODY DISPUTES INVOLVING TRANSGENDER CHILDREN 98 Indiana Law Journal 1275 (Spring, 2023) Anti-transgender discrimination and bias loom large in many areas of our society, but perhaps one of the most concerning settings is within the four walls of a courtroom. Evidence suggests that judicial decision making in custody determinations involving transgender children are influenced by anti-transgender bias. In this Note, I examine the... 2023
Alicia R. Jackson INHERENTLY UNEQUAL: THE EFFECT OF STRUCTURAL RACISM AND BIAS ON K-12 SCHOOL DISCIPLINE 88 Brooklyn Law Review 459 (Winter, 2023) The true character of society is revealed in how it treats its children.-- Nelson Mandela Overly harsh and discriminatory school discipline policies and biased decision-making practices have led to the disproportionate punishment of Black children, causing them to be excluded from classroom learning and creating a separate and unequal education... 2023
Keri S. Turner IT'S ALL IN YOUR HEAD: A LEGAL ANALYSIS OF JUROR BIAS AGAINST MENTALLY ILL CRIMINAL DEFENDANTS AND HOW DEFENSE ATTORNEYS CAN MITIGATE IT 23 Journal of Law in Society 101 (Winter 2023) C1-2CONTENTS Abstract. 101 Introduction. 102 i. Background. 103 A. General Definition of Bias. 103 B. Bias Towards Mental Illness. 104 C. Jury Bias. 106 D. Bias Towards Mental Illness in Juries. 107 ii. Mitigating Bias Towards Mental Illness in Juries. 108 A. For-Cause Dismissal of Jurors. 108 1. Current Law. 108 2. Proposed Law: For-Cause... 2023
Hamra Ahmad, Jacqueline Franchetti, Linda Lopez, Dr. Carolyn Springer, Shain Filcher, Rachel Braunstein, DIRECTOR OF LAW AND POLICY, HER JUSTICE, EXECUTIVE DIRECTOR & KYRA'S MOM, KYRA'S CHAMPIONS, DEPUTY DIRECTOR OF THE LEGAL CENTER, SANCTUARY FOR FAMILIE KEYNOTE PANEL 2: HOW BIAS MANIFESTS IN NEW YORK STATE'S FAMILY LAW SYSTEM 44 Columbia Journal of Gender and Law 76 (Fall, 2023) Good morning. My name is Hamra Ahmad, and I am the director of Law and Policy at Her Justice. I will introduce our panelists in just a moment. Over the past several years we have seen increased attention surrounding the devastating consequences of bias in the criminal justice system, and litigants, survivors, practitioners, and other stakeholders... 2023
Rebecca C. Ying, Andrew M. Smith, Gary L. Wells, Department of Psychology, Iowa State University LAY (MIS)PERCEPTIONS OF SUSPECT-IDENTIFICATION ACCURACY FROM BIASED AND UNBIASED LINEUPS 29 Psychology, Public Policy, and Law 288 (August, 2023) Suspect identifications from unbiased lineups (fair lineups) are more accurate than suspect identifications from biased lineups (Wixted & Wells, 2017). We examined whether laypersons were sensitive to the fact that suspect-identification accuracy is higher for unbiased than for biased lineups. Laypersons were presented with biased and unbiased... 2023
Allison E. Lloyd, Erika N. Fountain, Psychology Department, University of Maryland MEASURING TRANS YOUTHS' PERCEPTIONS OF POLICE AND POLICE BIAS: EXPLORING THE USE OF THE PERCEPTIONS OF POLICE SCALE 29 Psychology, Public Policy, and Law 336 (August, 2023) Recently there have been record-breaking increases in policies prohibiting, and even some proposals to criminalize, normative behavior of gender-diverse youth. These policies inherently expand law enforcement's surveillance of trans and gender-expansive youth. Despite this, we know very little about how trans and gender-expansive youth perceive the... 2023
Max Londberg MENDES HERSHMAN WINNER ABSTRACT: "HIRING CRITERIA AND TITLE VII: HOW ONE MANIFESTATION OF EMPLOYER BIAS EVADES JUDICIAL SCRUTINY" 2023-APR Business Law Today 1 (April, 2023) The Mendes Hershman Student Writing Contest is a highly regarded legal writing competition that encourages and rewards law students for their outstanding writing on business law topics. Papers are judged on research and analysis, choice of topic, writing style, originality, and contribution to the literature available on the topic. The... 2023
Bethany O'Neill , Cresston Gackle , David Schultz MINNESOTA'S RACIALLY BIASED JURY POOLS AND HOW TO FIX THEM 80-APR Bench and Bar of Minnesota 16 (April, 2023) Individuals accused of crimes are entitled to a trial before an impartial jury of their peers. This is a bedrock principle of American law, with origins that date to medieval England. The idea is embodied in the Sixth Amendment, which requires the pool from which a jury is drawn to reflect a representative cross-section of the community. Yet what... 2023
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