Leonard M. Niehoff , Deeva Shah The Resilience of Noxious Doctrine: the 2016 Election, the Marketplace of Ideas, and the Obstinacy of Bias 22 Michigan Journal of Race and Law 243 (Spring, 2017) The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model-- often called the marketplace of ideas,... 2017
Daniel Masakayan The Unconscious Discrimination Paradox: How Expanding Title Vii to Incorporate Implicit Bias Cannot Solve the Issues Posed by Unconscious Discrimination 25 George Mason Law Review 246 (Fall, 2017) The greater our knowledge increases the more our ignorance unfolds. John F. Kennedy For some journalists and commentators, the election of Barack Obama as America's first African-American president, and the candidacy of Hillary Clinton as the first female major party presidential candidate signaled a shift in a major social framework--a shift... 2017
Jeanette L. Schroeder The Vulnerability of Asylum Adjudications to Subconscious Cultural Biases: Demanding American Narrative Norms 97 Boston University Law Review 315 (January, 2017) Introduction. 316 I. Background. 316 II. The Importance of Credibility Determinations in the Asylum Context. 319 A. The Legal Process for Obtaining Asylum. 319 1. The Affirmative Asylum Process. 320 2. The Defensive Asylum Process. 322 3. Applicable Law. 323 B. The Necessity of a Favorable Crediblity Determination. 325 III. The Effects of... 2017
Catherine Ross Dunham Third Generation Discrimination: the Ripple Effects of Gender Bias in the Workplace 51 Akron Law Review 55 (2017) I. Introduction. 55 II. Considering the Role of Implicit Bias in the Factual Context of Gender-Based Workplace Discrimination Suits. 59 A. Bias and Discrimination Generally. 59 B. Pao v. Kleiner. 62 C. Wal-Mart v. Dukes. 67 III. Implicit Gender Bias and Second Generation Discrimination. 72 A. First Generation Discrimination. 73 B. Second Generation... 2017
Antuan M. Johnson Title Ix Narratives, Intersectionality, and Male-biased Conceptions of Racism 9 Georgetown Journal of Law & Modern Critical Race Perspectives 57 (Spring, 2017) For decades, men have sexually harassed and sexually assaulted women on college campuses with impunity. Although Title IX was passed in 1972 to provide sex equality in education, that equality still does not exist. In recent years, campus sexual assault has been recognized as a national epidemic and a manifestation of sex inequality. The U.S.... 2017
Amber Hall Using Legal Ethics to Improve Implicit Bias in Prosecutorial Discretion 42 Journal of the Legal Profession 111 (Fall, 2017) Racial consideration and evidence of its disparaging effects on prosecutorial discretion were not compelling enough to convince the Supreme Court to place limits on the power of the prosecutor. In McCleskey v. Kemp, petitioner McCleskey, an African-American male, attempted to prove that his capital sentence was unconstitutional due to the risk of... 2017
David D. Savage , Richard Bales Video Games in Job Interviews: Using Algorithms to Minimize Discrimination and Unconscious Bias 32 ABA Journal of Labor & Employment Law 211 (Winter, 2017) On a summer day in 2002, Billy Beane sat in a roomful of baseball scouts trying to create a list of high school and college athletes his team hoped to draft seven days later. Beane, in his fifth year as general manager of the Oakland Athletics, a Major League Baseball team, grew tired of the players his scouts suggested, most of whom never reached... 2017
Gail B. Murrow , Richard Murrow A Valid Question: Could Hate Speech Condition Bias in the Brain? 3 Journal of Law & the Biosciences 196 (April, 2016) KEYWORDS: dehumanization, hate speech, neuroscience, implicit bias, empathy Here, we respond to three peer commentaries on our paper, A hypothetical neurological association between dehumanization and human rights abuses'. In that paper, we hypothesized that dehumanizing implicit biases dampen the response of neural mechanisms of pain empathy to... 2016
Jonathan J. Koehler , John B. Meixner Jr. An Empirical Research Agenda for the Forensic Sciences 106 Journal of Criminal Law and Criminology 1 (Winter, 2016) After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an... 2016
Victor Li An Explicit Step 102-DEC ABA Journal 66 (December, 2016) In June, as Paulette Brown was nearing the end of her term as ABA president, she got a nice farewell present from the U.S. Department of Justice. Having been in contact with various Justice Department officials, Brown knew the DOJ was planning on introducing mandatory training for all federal prosecutors designed to prevent implicit bias--defined... 2016
Christy Krawietz An Overture to Equality: Preventing Subconscious Sex and Gender Biases from Influencing Hiring Decisions 39 Seattle University Law Review 1051 (Spring, 2016) C1-2Contents Introduction. 1051 I. The Problem of Subconscious Gender Bias. 1053 A. Conflating Gender and Sex. 1054 1. Separating Sex and Gender Identity. 1055 2. Assuming Gender in Others. 1058 B. Neurological Gender? Debunking Neurofallacies and Innate Difference. 1059 C. Gender Bias in the Employment Context. 1062 II. Current Law Fails to... 2016
Brooks Holland Anticipatory Self-defense Claims as a Lens for Reexamining Zealous Advocacy and Anti-bias Disciplinary Norms 49 Texas Tech Law Review 89 (Fall, 2016) I. Introduction. 89 II. Anticipatory Self-Defense Claims and Gender Bias. 94 A. Defining Anticipatory Self-Defense. 94 B. Anticipatory Self-Defense and Gender Bias. 100 III. Zealous Advocacy and Anticipatory Self-Defense Claims. 104 A. The Role of Zealous Advocacy in Criminal Defense. 104 B. Zealous Advocacy and Bias in Anticipatory Self-Defense... 2016
Michael J. Higdon Beyond the Metatheoretical: Implicit Bias in Law Review Article Selection 51 Wake Forest Law Review 339 (Summer, 2016) The eye sees only what the mind is prepared to comprehend. --Henri Bergson In the early 1970s, the leading symphonies in the United States were composed almost entirely of men. In fact, only about five percent of the musicians comprising those symphonies were female. Of course, given the time period, such disparity is hardly surprising. After... 2016
Ronald M. Sandgrund, Esq., InQ. Can We Talk? Bias, Diversity, and Inclusiveness in the Colorado Legal Community 45-FEB Colorado Lawyer 49 (February, 2016) This is the fourth article series by The InQuiring Lawyer addressing a topic that Colorado lawyers may consider often but may not discuss publicly in much depth. The topics in this column are being explored through dialogues involving lawyers, judges, law professors, law students, and law school deans, as well as entrepreneurs, journalists,... 2016
Caleb J. Fountain Client Perjury, Implicit Bias, and the Problem of Actual Knowledge 30 Notre Dame Journal of Law, Ethics & Public Policy 49 (June, 2016) The Model Rules of Professional Conduct require a lawyer, including defense counsel in a criminal proceeding who actually knows that her client has committed or intends to commit perjury, to take remedial measures, up to and including disclosure to the tribunal. This rule has justly caused considerable handwringing among academics, practitioners,... 2016
  Criminal Law--bias-intimidation Laws--new Jersey Supreme Court Holds That Conviction Based on Victim's Reasonable Belief That Bias Motivated the Offense Violates Due Process.-- State V. Pomianek, 110 A.3d 841 (N.j. 2015) 129 Harvard Law Review 867 (January, 2016) In 2010, Dharun Ravi used a webcam to spy on his Rutgers roommate, Tyler Clementi, having sex with another man. The situation garnered national attention when Clementi leapt to his death from the George Washington Bridge. Ravi was convicted under New Jersey's bias-intimidation statute when the jury determined that Clementi reasonably believed... 2016
Molly J. Walker Wilson Defense Attorney Bias and the Rush to the Plea 65 University of Kansas Law Review 271 (December, 2016) We have rejected an approach to individual liberties that abstracts from the right to its purposes, and then eliminates the right. --Justice Antonin Scalia The pervasiveness of plea bargains in our criminal justice system is of concern to many, and scholars in the legal academy have often been critical of the practice. One reason for the unease... 2016
Sarah C. Haan , Dominic Lovotti Eliminating Bias, Harassment, and Discrimination in the Legal Profession: Proposed Changes to Model Rule 8.4 59-AUG Advocate 23 (August, 2016) Is a lawyer who makes unwanted sexual advances to a legal assistant in violation of the Idaho Rules of Professional Conduct? Under existing rules, which essentially track the ABA's Model Rules of Professional Conduct, probably not, unless the lawyer's acts are prejudicial to the administration of justice. However, if Idaho adopts proposed revisions... 2016
Anthony W. Flores, Kristin Bechtel, Christopher T. Lowenkamp, California State University, Bakersfield, Crime and Justice Institute at CRJ, Administrative Office of the United States Courts, Probation and Pretrial Services Office False Positives, False Negatives, and False Analyses: a Rejoinder to "Machine Bias: There's Software Used Across the Country to Predict Future Criminals. And It's Biased Against Blacks." 80-SEP Federal Probation 38 (September, 2016) The validity and intellectual honesty of conducting and reporting analysis are critical, since the ramifications of published data, accurate or misleading, may have consequences for years to come. --Marco and Larkin, 2000, p. 692 PROPUBLICA RECENTLY RELEASED a much-heralded investigative report claiming that a risk assessment tool (known as the... 2016
Ann Mallatt Killenbeck Ferguson, Fisher, and the Future: Diversity and Inclusion as a Remedy for Implicit Racial Bias 42 Journal of College and University Law 59 (2016) Introduction. 60 I. Fisher II: Fictions and Facts. 63 II. Bakke to Grutter. 71 A. Not Theoretical But Real: The Importance of Outcomes. 71 B. Preparing for Work and Citizenship: Beyond the College Years. 78 III. Diversity and Inclusion: From Theory to Fact?. 81 A. Grutter: The Benefits of Contact Are Real. 82 B. Unappealing Truths: Implicit Bias,... 2016
Connie Lee Gender Bias in the Courtroom: Combating Implicit Bias Against Women Trial Attorneys and Litigators 22 Cardozo Journal of Law & Gender 229 (Winter, 2016) C1-2Table of Contents Introduction. 230 I. The History of Gender Bias in the Legal Profession. 231 II. Empirical Data Demonstrate the Impact of Gender Bias in the Courtroom. 235 A. Scientists Use the Implicit Association Test to Measure Gender Biases in the Legal Profession. 236 B. The Challenge of the Double Bind: Studies of Juries Reveal... 2016
Jessica Blakemore Implicit Racial Bias and Public Defenders 29 Georgetown Journal of Legal Ethics 833 (Fall, 2016) African American men are significantly more likely to be incarcerated than either white or Hispanic men, and throughout the American criminal justice system, black Americans face a significantly greater chance of arrest, conviction, sentencing, and incarceration than white Americans. It is likely that soon, one third of African American men will... 2016
Paulette Brown Inclusion ≠ Exclusion 102-JAN ABA Journal 8 (January, 2016) In today's society, the attitudes and stereotypes that we all hold in our hearts can affect our understanding, actions and decisions in an unconscious manner. The phenomenon is called implicit bias and it is very real. It does not in any way make people unsavory, but implicit bias can impede not only diversity and inclusion, but also implementation... 2016
Mark Johnson Roberts Invidious Harassment and Discrimination as Professional Misconduct 76-JUL Oregon State Bar Bulletin Bull. 9 (July, 2016) Last year, Oregon became one of 23 states, plus the District of Columbia, to amend their black-letter ethics rules to prohibit intimidation and harassment that is based on a person's protected class status. Helen Hierschbiel, Keeping Up with a Changing World: New Rules of Professional Conduct, OSB Bulletin (April 2015). The new rules added an RFC... 2016
Clifford Clapp, Esq. Latino Jury Nullification: Resisting Racially & Ethnically Biased Crimmigration Through Civil Disobedience 17 Rutgers Race & the Law Review 167 (2016) In 1995, over twenty years ago, Paul Butler argued for jury nullification by African-American jurors in cases where black defendants commit crimes that do not affect public safety, such as public drunkenness, minor drug possession, gambling and other victimless crimes. He opines that racial considerations by African-American jurors are legally and... 2016
Melaine Shannon Rothey, ACBA President Lend Your Voice to Effort to Eradicate Bias, Prejudice 18 No. 22 Lawyers Journal 3 (October 28, 2016) Diversity, inclusion, and the elimination of bias in our profession - seems like it should be a simple undertaking. However, much to my dismay, it has proven to be a rather arduous task, even in light of the fact that one of the stated goals in our mission statement is the promotion of equality and diversity among our members. Studies and surveys... 2016
Graham R. Cronogue Lies, Damn Lies, and Batson Challenges: the Right to Use Statistical Evidence to Prove Racial Bias 6 University of Miami Race & Social Justice Law Review 103 (Summer, 2016) This Article provides two principal contributions to the study of wrongful convictions. First, it fills a gap in the literature by clarifying the scope of a capital defendant's constitutional right to use statistics when attacking a wrongful conviction caused by racial bias in jury selection. In doing so, the Article not only examines the content... 2016
Sarah Q. Simmons Litigators Beware: Implicit Bias 59-APR Advocate 35 (March/April, 2016) We have no prejudices. We are fair evaluators of just the facts. We can separate our personal judgments from our professional assessments. Right? Wrong. Lawyers are just human and our nature dictates that subconscious bias permeates our analyses and decisionmaking--unless we acknowledge the bias and bring it into the light. Although the majority... 2016
Laura R. McNeal Managing Our Blind Spot: the Role of Bias in the School-to-prison Pipeline 48 Arizona State Law Journal 285 (Summer, 2016) That all citizens will be given an equal start through a sound education is one of the most basic, promised rights of our democracy.--Senator Paul Wellstone For decades, we have witnessed the increased criminalization of our nation's youth, especially youth of color and students with disabilities, through the implementation of zero tolerance... 2016
Clark Freshman , Shauna Shapiro , Sarah de Sousa Mindful "Judging" 1.5: the Science of Attention, "Lie Detection," and Bias Reduction - with Kindness 2016 Journal of Dispute Resolution 281 (Fall, 2016) Federal Judge Jeremy Fogel, Director of the Federal Judicial Center, recently published Mindfulness and Judging on the Center's official website. From one view, this further confirms the growing embrace of mindfulness in law. Yet some still doubt mindfulness and the science behind its effectiveness. At a recent conference on mindfulness and legal... 2016
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