AuthorTitleCitationSummaryYear
Ivan E. Bodensteiner The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination 73 Missouri Law Review 83 (Winter, 2008) In most cases alleging discrimination in violation of a federal statute or the U.S. Constitution, the plaintiff must prove disparate treatment, i.e., intentional discrimination. These cases arise under several federal statutes that prohibit race discrimination, including (a) Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits... 2008
Catherine Smith Unconscious Bias and "Outsider" Interest Convergence 40 Connecticut Law Review 1077 (May, 2008) In 1987, Charles Lawrence articulated an inherent flaw of the discriminatory intent requirement in equal protection jurisprudence by leveraging social science research to demonstrate that the behavior that produces racial discrimination is influenced by unconscious racial motivation. Twenty years later, the debate continues with increasing social... 2008
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
Janine Robben Elimination of Bias 66-MAR Oregon State Bar Bulletin Bull. 9 (February/March, 2006) West Linn attorney Diane Gruber is mad as hell that she has to take classes on elimination of bias if she wants to be able to practice law in Oregon. So mad that she promoted a petition to allow bar members to vote on whether the Minimum Continuing Legal Education (MCLE) requirement should be retained. I've attended seven diversity seminars in... 2006
Maria Greco Danaher, For The Lawyers Journal Employer Liable for a Termination Based on Biased Supervisor's Recommendation 8 No. 14 Lawyers Journal J. 3 (July 7, 2006) A number of appellate courts have held that employers may not insulate themselves from Title VII liability by ensuring that decision makers are isolated from the affected employee. The Tenth U.S. Circuit Court of Appeals recently joined this group by holding that a termination based solely upon a biased supervisor's recommendation could lead to... 2006
Carmel Sileo Executive Women Drive Rise in Pregnancy Bias Lawsuits 42-JUL Trial 18 (July, 2006) Sarah Babb, a manager at Merisant--the company that makes the artificial sweetener Equal--got pregnant last year. But what should have been a joyous time soon turned bitter: In her ninth month of pregnancy, Babb lost the baby. Two months later, she lost her job. Babb is suing the Chicago-based company over her firing, claiming Merisant... 2006
Anthony G. Greenwald , Linda Hamilton Krieger Implicit Bias: Scientific Foundations 94 California Law Review 945 (July, 2006) The assumption that human behavior is largely under conscious control has taken a theoretical battering in recent years. Although this assault in some ways resembles the previous century's Freudian revolution, there are important differences between the two. Freud's views of unconscious mechanisms were embedded in a theory that never achieved... 2006
Hillel Y. Levin, John W. Emerson Is There a Bias Against Education in the Jury Selection Process? 38 Connecticut Law Review 325 (February, 2006) Herbert Spencer famously said that a jury is a group of twelve people of average ignorance. That is not a particularly rosy picture of juror competence, but it presents a far better view than the one held by many--if not most--modern commentators. The more common contemporary sentiment was captured by Mark Twain when he wrote, in his inimitable... 2006
Tobin A. Sparling Keeping up Appearances: the Constitutionality of the Model Code of Judicial Conduct's Prohibition of Extrajudicial Speech Creating the Appearance of Bias 19 Georgetown Journal of Legal Ethics 441 (Spring, 2006) C1-3Table of Contents I. Introduction. 443 II. Diverging Conceptions of Judges and Judging. 445 A. TRADITIONALIST JURISPRUDENCE. 445 B. REVISIONIST JURISPRUDENCE. 447 III. The Model Code of Judicial Conduct. 449 IV. Republican Party of Minnesota v. White. 454 V. Conflicting Approaches to the Appearance of Extrajudicial Bias. 460 A. MISSISSIPPI... 2006
Rene Bowser Medical Civil Rights: the Exclusion of Physicians of Color from Managed Care: Business or Bias? 4 Hastings Race and Poverty Law Journal J. 1 (Fall 2006) The United States is rapidly becoming more diverse, as demonstrated by the fact that nonwhite racial and ethnic minorities will likely constitute a majority of Americans later in this century. The representation of African Americans, Latino/as, Asian Americans, and Native Americans in medicine, however, has grown only modestly over the past 25... 2006
Michael I. Norton , Joseph A. Vandello , Samuel R. Sommers , John M. Darley , Harvard Business School, University of South Florida, Tufts University, Princeton University Mixed Motives and Racial Bias 12 Psychology, Public Policy, and Law 36 (February, 2006) Recent high-profile court rulings addressing the influence of illegitimate informationsuch as raceon decision making have highlighted the difficulty of establishing whether and when discrimination has occurred. One factor complicating such efforts is that decision makers are often simultaneously influenced by racial and nonracial information. The... 2006
Lyombe Eko New Medium, Old Free Speech Regimes: the Historical and Ideological Foundations of French & American Regulation of Bias-motivated Speech and Symbolic Expression on the Internet 28 Loyola of Los Angeles International and Comparative Law Review 69 (Winter 2006) One of the most contentious issues in Internet governance at the national and international levels is bias-motivated or hate speech. This type of communication is characterized by vitriolic expressions of hatred towards individuals or groups on the basis of their race, ethnicity, religion, national origin, or sexual orientation. In the Internet... 2006
Therese A. Huston Race and Gender Bias in Higher Education: Could Faculty Course Evaluations Impede Further Progress Toward Parity? 4 Seattle Journal for Social Justice 591 (Spring/Summer, 2006) Colleges and universities are making uneven progress towards reaching gender and racial equity. Although great strides have been made to increase the proportion of female to male students at the undergraduate level, less progress has been made in balancing the proportion of female to male faculty. Likewise, certain racial and ethnic groups have... 2006
Tracy Agyemang Reconceptualizing Child Sexual Exploitation as a Bias Crime under the Protect Act 12 Cardozo Journal of Law & Gender 937 (Summer 2006) At sunset in San Jose, Costarica [sic] the day for Lilliana is just beginning. She leaves to work at 6:00 pm, wearing a short skirt, a little blouse, high heels, and a tired glance. Tonight Lilliana will sell her body to any bidder, whoever pays by her services, she has different tariffs, if oral sex, she charges 5000 colonos, about 15 dollars, if... 2006
Christine Jolls , Cass R. Sunstein The Law of Implicit Bias 94 California Law Review 969 (July, 2006) Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently... 2006
Susan D. Rozelle The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation 38 Arizona State Law Journal 769 (Fall 2006) I. Introduction. 770 II. Gathering Forces. 772 III. The Issues at Stake. 775 A. Death Qualification's Ostensible Function. 775 B. The Pink Elephant in the Room: Capital Juries' Bias in Favor of Guilt and Death. 777 1. Early Studies. 778 2. Lockhart v. McCree's Challenge. 782 3. The Capital Jury Project's Answer. 784 a. Automatic Death Penalty... 2006
Aubra Fletcher The Real Id Act: Furthering Gender Bias in U.s. Asylum Law 21 Berkeley Journal of Gender, Law & Justice 111 (2006) This article examines the specific and disproportionate effects of recent changes in U.S. asylum law on individuals fleeing gender-related persecution. Even prior to such changes, these asylum seekers faced greater legal obstacles than most others due to an institutionally biased interpretation and application of refugee law. The REAL ID Act of... 2006
Daniel R. Cahoy , Min Ding The Stakes Matter: Empirical Evidence of Hypothetical Bias in Case Evaluation and the Curative Power of Economic Incentives 80 Saint John's Law Review 1275 (Fall 2006) Jury research plays a critical role in the modern legal environment. In the private dispute context, trial consulting companies commonly run mock trial simulations in order to determine the effect of facts or issues particular to a client's case. Additionally, a growing number of courts employ a technique known as a summary jury trial that makes... 2006
Evan R. Seamone Understanding the Person Beneath the Robe: Practical Methods for Neutralizing Harmful Judicial Biases 42 Willamette Law Review Rev. 1 (Winter 2006) I. Introduction. 2 II. Defining Judicial Bias From a Practical Standpoint. 10 A. State Task Forces and Inconsistent Definitions of Bias . 13 B. The Checklist Method to Judicial Debiasing. 18 1. Checklists Trigger False Alarms. 19 2. Checklists Limit Self-Reflection to Single Cases. 20 3. Checklists Defy the Judge's Intuition. 21 4. Checklists... 2006
Susan Seitz Wld Program Addresses Racial, Ethnic and Gender Bias in the Justice System 8 No. 25 Lawyers Journal J. 6 (December 8, 2006) This article is the third in a series of articles about issues surrounding women attorneys. On Oct. 24, 2006 the Rivers Club played host to a well-attended symposium sponsored by the ACBA's Women in the Law Division. The purpose of the program, entitled Three Years Later: A Progress Report on Addressing Racial, Ethnic and Gender Bias in the... 2006
John Gibeaut Challenging Peremptories 91-AUG ABA Journal 16 (August, 2005) Justice thurgood marshall praised his colleagues when the U.S. Supreme Court moved to end racial discrimination in criminal trials by banning prosecutors from using peremptory challenges to cover racially motivated strikes of black jurors. The court's opinion cogently explains the pernicious nature of the racially discriminatory use of peremptory... 2005
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