Chief Justice Paula M. Carey (Ret.) GOING BEYOND EQUALITY AND STRIVING TOWARD EQUITY: ADDRESSING SYSTEMATIC RACISM AND BIAS IN THE COURTS 66 Boston Bar Journal 26 (2022) State court systems must provide services and deliver justice in a manner that inspires public trust and confidence. All individuals must be treated fairly and impartially in every interaction with the court system. To achieve public trust and confidence, the existence of systemic racism in the courts must be acknowledged. Specifically, courts must... 2022
Cass R. Sunstein GOVERNING BY ALGORITHM? NO NOISE AND (POTENTIALLY) LESS BIAS 71 Duke Law Journal 1175 (March, 2022) As intuitive statisticians, human beings suffer from identifiable biases-- cognitive and otherwise. Human beings can also be noisy in the sense that their judgments show unwanted variability. As a result, public institutions, including those that consist of administrative prosecutors and adjudicators, can be biased, noisy, or both. Both bias and... 2022
Max Londberg HIRING CRITERIA AND TITLE VII: HOW ONE MANIFESTATION OF EMPLOYER BIAS EVADES JUDICIAL SCRUTINY 91 University of Cincinnati Law Review 516 (2022) Writing in 1988, feminist and critical race scholar Kimberlé Williams Crenshaw described the Civil Rights Act of 1964 (commonly known as Title VII) as contributing to the removal of most formal barriers and symbolic manifestations of subordination. But the Act and other reforms ultimately fell short, for a challenge to the legitimacy of... 2022
Itiel E. Dror HOW CAN FRANCIS BACON HELP FORENSIC SCIENCE? THE FOUR IDOLS OF HUMAN BIASES 50 Jurimetrics Journal 93 (Fall, 2009) ABSTRACT: In this paper, I try to find ways to improve forensic science by identifying potential vulnerabilities. To this end, I use Francis Bacon's doctrine of idols, which distinguishes between different types of human biases that may prevent scientific and objective inquiry. Bacon's doctrine contains four sources for such biases: idola tribus... 2022
Haley Loquercio HOW FREE IS FREE SPEECH: MEDIA BIAS, PRETRIAL PUBLICITY, AND DEFENDANTS' NEED FOR A UNIVERSAL APPELLATE RULE TO COMBAT PREJUDICED JURIES 126 Penn State Law Review 875 (Spring, 2022) The media is a prevalent, persuasive force in American society. Americans, on average, spend over twelve hours per day consuming both traditional and digital media. While most Americans recognize that the media they consume is biased, the media maintains its grip on the American psyche. The media's effects have also seeped into courtrooms. When a... 2022
Norman L. Greene HOW GREAT IS AMERICA'S TOLERANCE FOR JUDICIAL BIAS? AN INQUIRY INTO THE SUPREME COURT'S DECISIONS IN CAPERTON AND CITIZENS UNITED, THEIR IMPLICATIONS FOR JUDICIAL ELECTIONS, AND THEIR EFFECT ON THE RULE OF LAW IN THE UNITED STATES 112 West Virginia Law Review 873 (Spring, 2010) L1-2Introduction L3875 A. The Fundamental Questions. 875 B. Suppose Justice Is Not Impartial. 876 C. The U.S. Supreme Court and Impartiality. 877 D. Some Observations on the International Promotion of the Rule of Law. 879 E. Judicial Impartiality as a Fundamental Part of the Rule of Law. 883 I. Judicial Impartiality, Judicial Elections, and... 2022
Michael Conklin I KNEW IT ALL ALONG: THE PROMISING EFFECTIVENESS OF A PRE-JURY INSTRUCTION AT MITIGATING HINDSIGHT BIAS 74 Baylor Law Review 307 (Spring, 2022) Of all the forms of wisdom, hindsight is by general consent the least merciful, the most unforgiving. -John Fletcher Jurors are often given the difficult task of determining the likelihood of injury given the defendant's behavior. This is particularly challenging because it requires jurors to disregard the fact that, in hindsight, an injury did... 2022
Ted A. Donner ILLINOIS COURTS STRUGGLE WITH IMPLICIT BIAS AND JUSTICE STEVENS'S LEGACY: WHY ILLINOIS SHOULD REVISIT HIS DISSENTING OPINION IN PURKETT v. ELEM 53 Loyola University Chicago Law Journal 717 (Summer, 2022) Contemporary racial justice movements and increased interest in implicit bias are shining a spotlight on the role of peremptory challenges in jury selection and how best to combat prejudice in this essential step of the criminal justice system. States such as Arizona and Washington have undertaken reforms designed to shift a dynamic that, under... 2022
The Hon. George Phelan, Annelise Araujo, Donald G. Tye IMMIGRATION BIAS IN FAMILY LAW PRACTICE 44-WTR Family Advocate 29 (Winter, 2022) Lawyers and judges who identify as white, cisgender, heterosexual men have long been overrepresented in the family law bar. Meanwhile, immigrants, first-generation Americans, and LGBTQ+ people are appearing before the court more often. As these demographic shifts continue, family law practitioners are more likely than ever to encounter parties... 2022
Glen M. Vogel , Robert Costello IMPLICIT BIAS IS NOT A FAIRYTALE: FROM THE CLASSROOM TO THE COURTROOM: THE CONNECTION BETWEEN RACIAL BIAS IN EARLY EDUCATION AND ITS IMPACT ON STEREOTYPES AND INTERACTIONS WITH THE CRIMINAL JUSTICE SYSTEM 20 Seattle Journal for Social Justice 695 (Spring, 2022) Even though great strides have been achieved in the area of racial equality over the last half century, the reality is that people of color, particularly Black Americans, continue to face discrimination across all facets of life and, in particular, face adverse treatment and outcomes in education and in the criminal justice system. A person of... 2022
Moira Gray , Fall 2021 Intern, NDAA IMPLICIT BIAS TRAININGS: THE FUTURE OR A FAILURE? (INTERN EDITION) 56-JAN Prosecutor 30 (January, 2022) Following the racial tension and protests of 2020, many municipalities are seeking ways to display their commitment towards racial equality and equity. Law enforcement agencies must prove to their constituents that they are fighting against racism, both structurally and with accountability for individuals. The conversation on improving our criminal... 2022
Leonard E. Birdsong IN QUEST OF GENDER-BIAS IN DEATH PENALTY CASES: ANALYZING THE ENGLISH SPEAKING CARIBBEAN EXPERIENCE 10 Indiana International & Comparative Law Review 317 (2000) I. L2-3,T3Introduction 317 II. L2-3,T3A Perspective on the Death Penalty in the Caribbean 319 A. The Death Penalty Debate. 319 B. Pratt and Morgan. 321 III. L2-3,T3Trinidad, Women on Death Row, and Ramjattan 323 A. Trinidad. 323 B. Women on Death Row. 324 C. The Ramjattan Case. 324 D. The Privy Council Ruling. 326 IV. L2-3,T3Back to the Court of... 2022
Phyllis C. Taite INEQUALITY BY UNNATURAL SELECTION: THE IMPACT OF TAX CODE BIAS ON THE RACIAL WEALTH GAP 110 Kentucky Law Journal 639 (2021-2022) Table of Contents. 639 Introduction. 640 I. Social Darwinism. 641 II. Real Estate Investment Trusts and Mass Incarceration. 643 A. What Is a Real Estate Investment Trust?. 643 B. What Is the Relationship Between Mass Incarceration and Tax Policy?. 646 i. The Rise of Private Prisons and Detention Centers. 646 ii. Show Me the Money!. 648 C. The... 2022
Ann Mead Hooker, J.D. and Doctor of Forestry & Environmental Studies Program Analyst, Forest Service U.S. Department of Agriculture Washington, D.C. U.S.A. INTRODUCTION TO WORLD FORESTRY; THE LAST TREE: RECLAIMING THE ENVIRONMENT IN TROPICAL ASIA; GENDER BIAS: ROADBLOCK TO SUSTAINABLE DEVELOPMENT; MANAGING THE WORLD'S FORESTS: LOOKING FOR BALANCE BETWEEN CONSERVATION AND DEVELOPMENT 33 Natural Resources Journal 529 (Spring, 1993) During the 1980s, conservationists drew world attention to the issue of tropical rainforest destruction. Concern soon broadened to the general problem of forest conservation, and in June 1992 at the United Nations Conference on Human Development and the Environment in Rio de Janeiro, the international community agreed on a set of forest principles.... 2022
Leigh Harvis-Nazzario IT'S NOT THE ALGORITHMS, IT'S THE PEOPLE: PREVENTING BIAS IN AUTOMATED HIRING TOOLS STARTS WITH HUMANS 49 Rutgers Computer and Technology Law Journal 138 (2022) I. INTRODUCTION. 139 II. BACKGROUND. 139 A. A Recipe for Algorithms. 140 B. Algorithms in the Hiring Process. 142 C. Bias in Recruitment Algorithms. 144 D. Examples of Algorithmic Discrimination. 147 III. ANTI-DISCRIMINATION LAWS IN THE CONTEXT OF PREDICTIVE HIRING SOLUTIONS. 151 A. The Equal Employment Opportunity Commission (EEOC). 152 1. Office... 2022
Elizabeth Low KEEPING CULTURAL BIAS OUT OF THE COURTROOM: HOW ICWA "QUALIFIED EXPERT WITNESSES" MAKE A DIFFERENCE 44 American Indian Law Review 43 (2019) For centuries, Indians were regarded as an inferior people causing the government to make efforts to assimilate--and later to dismantle--Indian families to improve and protect the identity of the United States. In the 1970s, the government embraced an era of self-determination for American Indians by creating laws that would simultaneously protect... 2022
Donald J. Polden , Jenna M. Anderson LEADERSHIP TO ADDRESS IMPLICIT BIAS IN THE LEGAL PROFESSION 62 Santa Clara Law Review 63 (2022) This Article discusses the problem of implicit bias within the legal profession; why its persistence impedes the work that lawyers do; and the need for leaders to take steps to recognize, understand, and ameliorate it. Implicit biases, also referred to as unconscious biases, are prejudices that people have, but are unaware of their existence. These... 2022
McKenzi B. Baker MADE WHOLE: THE EFFICACY OF LEGAL REDRESS FOR BLACK WOMEN WHO HAVE SUFFERED INJURIES FROM MEDICAL BIAS 57 Harvard Civil Rights-Civil Liberties Law Review 321 (Summer, 2022) Kira Johnson died a preventable death when physicians at Cedars-Sinai Medical Center failed to adequately respond to hemorrhaging from what was supposed to be a routine cesarean section. After waiting twelve hours for imperative attention that could have saved her life, Kira's husband was callously told that she was just not a priority. Four hours... 2022
W. Nicholson Price II MEDICAL AI AND CONTEXTUAL BIAS 33 Harvard Journal of Law & Technology 65 (Fall, 2019) C1-2Table of Contents I. Introduction. 66 II. The Promise of Black-Box Medicine. 70 A. Advancing Medical Knowledge. 70 B. Automating the Routine. 71 C. Democratizing Expertise. 73 1. Diagnostics and Treatment Recommendations. 74 a. Diagnostics. 74 b. Treatment Recommendations. 76 2. Contexts of Application. 77 III. Where Medical AI Is... 2022
Kristin M. Kostick-Quenet, I. Glenn Cohen, Sara Gerke, Bernard Lo, James Antaki, Faezah Movahedi, Hasna Njah, Lauren Schoen, Jerry E. Estep, J.S. Blumenthal-Barby MITIGATING RACIAL BIAS IN MACHINE LEARNING 50 Journal of Law, Medicine & Ethics 92 (Spring, 2022) Keywords: Algorithmic Bias, Racial Bias, Machine Learning, Artificial Intelligence, Ethics Abstract: When applied in the health sector, AI-based applications raise not only ethical but legal and safety concerns, where algorithms trained on data from majority populations can generate less accurate or reliable results for minorities and other... 2022
Jeffrey Fagan NO RUNS, FEW HITS, AND MANY ERRORS: STREET STOPS, BIAS, AND PROACTIVE POLICING 68 UCLA Law Review 1584 (February, 2022) Equilibrium models of racial discrimination in law enforcement encounters suggest that in the absence of racial discrimination, the proportion of searches yielding evidence of illegal activity (the hit rate) will be equal across races. Searches that disproportionately target one racial group, resulting in a relatively low hit rate, are inefficient... 2022
Michael R. Curran ON COMMON GROUND: USING CULTURAL BIAS FACTORS TO DECONSTRUCT ASIA-PACIFIC LABOR LAW 30 George Washington Journal of International Law and Economics 349 (1996-1997) C1-3Table of Contents I. Introduction: The World's Web. 351 II. Cultural Bias Factors in Comparative Labor Law. 355 III. Asian Growth: Political, Economic, and Legal Factors Affecting Organized Labor. 360 A. The Example of Thailand. 361 B. Important Regional Political, Economic, and Labor Law Factors. 367 1. Political and Economic Aspects. 367 2.... 2022
Bryce P. Harp ONE NATION? REEXAMINING TRIBAL SOVEREIGN IMMUNITY IN THE MODERN ERA OF SELF-DETERMINATION 46 Tulsa Law Review 449 (Spring 2011) The concept of sovereign immunity is a remnant of early English common law. Under this doctrine, the King is immune from suit because the [K]ing can do no wrong. This concept still survives today, though abrogated to some degree by the federal government and most state and local governments, in the form of tribal sovereign immunity. Similar to... 2022
Jordan Buckwald OUTRUNNING BIAS: UNMASKING THE JUSTIFICATIONS FOR EXCLUDING NON-BINARY ATHLETES IN ELITE SPORT 44 Harvard Journal of Law & Gender 1 (Winter, 2021) The inclusion of intersex and transgender athletes in sport has long been the subject of vigorous debate. Elite sport governing bodies like the International Association of Athletics Federations have attempted to articulate policies limiting the extent to which such athletes can compete in the female category. The most common reasons given to... 2022
  Perpetuating the Presumption of Guilt: The Role of Implicit Racial Bias in Forensic Testimony 58 Criminal Law Bulletin ART 1 (2022) Executive Director, Forensic Justice Project; J.D., Seattle University School of Law, B.S., New York University. Thank you to my brother and sister, who are my lifelong friends, and to Andy, my partner and champion. 2022
Mark W. Cordes POLICING BIAS AND CONFLICTS OF INTEREST IN ZONING DECISIONMAKING 65 North Dakota Law Review 161 (1989) Courts have traditionally reviewed zoning decisions for substantive correctness, applying in most instances the deferential arbitrary and capricious standard. In recent years, however, courts have increasingly reviewed zoning decisions for procedural correctness, such as the satisfaction of notice and hearing requirements. This reflects a growing... 2022
Ann Marie Janus PROFESSIONAL RESPONSIBILITY - JUDICIAL DISQUALIFICATION FOR APPEARANCE OF BIAS - JENKINS v. STERLACCI, 849 F.2D 627 (D.C. CIR. 1988). 62 Temple Law Review 1075 (Fall, 1989) In Jenkins v. Sterlacci, the United States Court of Appeals for the District of Columbia held that waiver of judicial disqualification under 28 U.S.C. § 455(e) may be implied when a party has only constructive knowledge of facts supporting an appearance of impropriety claim and fails to object. The court held that the waiver may be implied even... 2022
Linda A. Malone PROTECTING THE LEAST RESPECTED: THE GIRL CHILD AND THE GENDER BIAS OF THE VIENNA CONVENTION'S ADOPTION AND RESERVATION REGIME 3 William & Mary Journal of Women and the Law 1 (Spring, 1997) Your children are not your children They are the sons and daughters of life's longing for itself They come through you but they are not from you and though they are with you They belong not to you You can give them your love but not your thoughts They have their own thoughts They have their own thoughts You can house their bodies but not their... 2022
Katherine M. Becker RACIAL BIAS AND PRISON DISCIPLINE: A STUDY OF NORTH CAROLINA STATE PRISONS 43 North Carolina Central Law Review 1 (2021) Black and Indigenous people receive disproportionate disciplinary write-ups in the North Carolina state prison system. As a result, incarcerated Black and Indigenous people are more likely than their white counterparts to experience disciplinary sanctions, including solitary confinement. In this Article, I analyze data from the North Carolina... 2022
Amy Sings In The Timber, Randi Mattox RACIAL BIAS AND WRONGFUL CONVICTIONS 47-MAR Montana Lawyer 11 (February/March, 2022) Innocence work is evolving. The drivers of wrongful convictions are not changing. Rather, advocates around the country are beginning to recognize and acknowledge how racial equity plays a role in ending unjust incarceration in our criminal legal system. Considering who is most often wrongfully convicted and the motivations behind locking up... 2022
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