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
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