Wednesday, April 25, 2018

Stereotype, Bias, Racism

What will it take for the United States to eradicate racist ideas?

 

 Original Article, The Guardian, July 4, 2017

 


IbramKendiIn his keynote address at the Democratic National Convention in Boston on 27 July 2004, before 9 million viewers, Barack Obama presented himself as the embodiment of racial reconciliation and American exceptionalism. He had humble beginnings and a lofty ascent, and in him both native and immigrant ancestry and African and European ancestry came together. “I stand here knowing that my story is part of the larger American story … and that in no other country on Earth is my story even possible,” he declared. “America, tonight, if you feel the same energy that I do, if you feel the same urgency that I do, if you feel the same passion that I do, if you feel the same hopefulness that I do, if we do what we must do, then I have no doubt that all across the country … the people will rise up in November, and John Kerry will be sworn in as president.” Kerry lost the election, of course, and Bush seemed poised to embody the future of the Republican party. But Barack Obama seemed poised to embody the future of the Democratic party

Kerry lost the election, of course, and Bush seemed poised to embody the future of the Republican party. But Barack Obama seemed poised to embody the future of the Democratic party

Two weeks after his exhilarating keynote address, Barack Obama’s memoir, Dreams from My Father: A Story of Race and Inheritance, was republished. It rushed up the charts and got rave reviews in the final months of 2004. Toni Morrison, the queen of American letters, deemed Dreams from My Father “quite extraordinary”. Obama had written the memoir in 1995 as he prepared to begin his political career in the Illinois senate. In his most anti-racist passage, Obama reflected on assimilated biracial blacks like “poor Joyce,” his friend at Occidental College in Los Angeles. In Joyce and other black students, he “kept recognising pieces of myself”, Obama wrote. People like Joyce spoke about “the richness of their multicultural heritage, and it sounded real good, until you noticed that they avoided black people. It wasn’t a matter of conscious choice, necessarily, just a matter of gravitational pull, the way integration always worked, a one-way street. The minority assimilated into the dominant culture, not the other way around. Only white culture could be ‘neutral’ and ‘objective’. Only white culture could be ‘nonracial’ … Only white culture had ‘individuals’.”

Only white culture had ‘individuals’.”

Advertisement

Obama’s anti-racist litany continued in his critical revelation of the “extraordinary negro” complex. “We, the half-breeds and the college-degreed … [are] never so outraged as when a cabbie drives past us or the woman in the elevator clutches her purse, not so much because we’re bothered by the fact that such indignities are what less fortunate coloureds have to put up with every single day of their lives – although that’s what we tell ourselves – but because [we] … have somehow been mistaken for an ordinary nigger. Don’t you know who I am? I’m an individual!”

Ironically, racist Americans of all colours would in 2004 begin hailing Barack Obama, with all his public intelligence, morality, speaking ability and political success, as the extraordinary negro. The extraordinary-negro hallmark had come a mighty long way from the poet Phillis Wheatley to Barack Obama, who became the nation’s only African American in the US senate in 2005. Since Wheatley, segregationists had despised these extraordinary-negro exhibits of black capability and had done everything to take them down. But Obama – or rather Obama’s era – was different. Segregationists turned their backs on their predecessors and adored the Obama exhibit as a proclamation of the end of racism. They wanted to end the discourse on discrimination.


“He’s the first mainstream African American who is articulate and bright and clean and a nice-looking guy.” Presidential hopeful and Delaware senator Joe Biden might as well have labelled Barack Obama the extraordinary negro. Biden’s evaluations of his presidential rivals appeared in the New York Observer days before Obama stood in front of the Old State Capitol building in Springfield, Illinois, and formally announced his presidential candidacy on 10 February 2007. Obama brimmed with words of American unity, hope and change.

Advertisement

But Joe Biden’s comments – which he later “deeply” regretted – became a sign of things to come. What was to come over the course of the campaign was a reflection of the audacity of racist minds – from George W Bush to radio mega-personality Rush Limbaugh to Democratic stalwarts – who all viewed Obama as an extraordinary negro. In February 2007, Time magazine speculated that African Americans were expressing greater support for New York senator Hillary Clintonbecause of questions over whether Obama was “black enough”. It couldn’t be because they saw Obama as a long shot. It had to be that they did not see Obama as ordinarily black like them, meaning inarticulate and ugly and unclean and unintelligent.

Pundits were dubbing Hillary Clinton the “inevitable” nominee until Barack Obama upset her on 3 January 2008, in the Iowa primary. By Super Tuesday on 5 February 2008, Americans had been swept up in the Obama “Yes We Can” crusade of hope and change – themes he embodied and spoke about so eloquently in his stump speeches that people started to hunger. In mid-February, his perceptive and brilliant wife, Michelle Obama, told a Milwaukee rally: “For the first time in my adult life, I am really proud of my country, and not just because Barack has done well, but because I think people are hungry for change.”

Barack Obama in 2005, then the only African American member of the US senate.
 Barack Obama in 2005, then the only African American member of the US senate. Photograph: Tim Sloan/AFP/Getty

Racist commentators searched for dirt on the Obamas. When no dirt could be found, investigative reporters started checking their associates. In early March 2008, ABC News released snippets of sermons from one of black America’s most revered liberation theologians, the recently retired pastor of Chicago’s large Trinity United Church of Christ. Jeremiah Wright had married the Obamas and had baptised their two daughters. In an ABC News report, Wright was quoted proclaiming, in a sermon, that “the government gives them the drugs, builds bigger prisons, passes a three-strike law and then wants us to sing ‘God Bless America’. No, no, no … God damn America for treating our citizens as less than human.” Wright had discarded the very old racist lesson that had first been taught to slaves: that African Americans were supposed to love the US and consider it the world’s greatest country, no matter how they were treated. On top of his rejection of American exceptionalism, Wright had the audacity to preach that American “terrorism” abroad had helped bring on the tragic events of 9/11. To put it lightly, Americans everywhere were livid.

Advertisement

When Obama’s flippant characterisations of Wright as a fraught “old uncle” did not calm Americans down, Obama decided to address the controversy. On 18 March 2008, he stepped into the spotlight and gave a “race speech,” entitled A More Perfect Union, at Philadelphia’s National Constitutional Center. Having taught constitutional law, worked in civil rights law, and overseen successful political campaigns (including his current campaign, which analysts were already regarding as masterful), Obama could easily be regarded as an expert on many things: constitutional law, civil rights law, Chicago politics, Illinois politics, campaigning, and race and politics.

Obama dismissed Jeremiah Wright’s “profoundly distorted view”, but courageously refused to totally disown Wright. And then he opened his general lecture on race, explaining that socioeconomic racial inequities stemmed from the history of discrimination. From this firm anti-racist opening, he pivoted to the consensus racist theory of the “pervasive achievement gap”, to the disproven racist theory of “the erosion of black families” that “welfare policies … may have worsened”, and to the unproven racist theory that racial discrimination had bequeathed blacks a “legacy of defeat”. According to Obama, this “legacy of defeat” explained why “young men and, increasingly, young women” were “standing on street corners or languishing in our prisons”. He ignored the fact that this population was facing some of the nation’s highest unemployment and policing rates.

Those anti-racists like Jeremiah Wright, their “anger is not always productive”, Obama continued. “Indeed, all too often it distracts attention from solving real problems; it keeps us from squarely facing our own complicity within the African American community in our condition.”

It was a classic assimilationist retort: calling anti-racists “angry” for truly believing in racial equality, for not seeing anything wrong with black people, and for seeing everything wrong with discrimination. Like civil rights activists WEB Du Bois and Martin Luther King before him, Obama lumped these “angry” anti-racists in with angry, anti-white cynics to discredit them and distinguish himself from them. But Du Bois and King ultimately had to ward off the same “angry” and anti-white labels they had helped to produce. And now, Obama was doing the same thing, unaware that he was reproducing a label that his opponents would stamp on to him whenever and wherever he uttered another anti-racist word after this speech. 

Obama encouraged African Americans to fight discrimination, take personal responsibility, be better parents and end the “legacy of defeat”. Obama did not offer any childrearing or psychological lessons for the presumably parentally and psychologically superior white Americans. He merely asked them to join him on the “long march” against racial discrimination – “not just with words but with deeds”. He left the Philadelphia platform on 18 March 2008, as he began, expressing the half-truthful analogy of continuous racial progression. “This union may never be perfect,” he said, “but generation after generation has shown that it can always be perfected.”

Advertisement

Segregationist and anti-racist critiques were drowned out by the eruption of praise across the ideological aisle. MSNBC political analyst Michelle Bernard framed it as “the best speech and most important speech on race that we have heard as a nation since Martin Luther King’s ‘I Have a Dream’ speech”. And it was not just Democrats who were fawning. Prominent Republicans – everyone from presidential candidates Mike Huckabee and John McCain to the Bush administration’s Condoleezza Rice and Colin Powell, and the Clintons’ old foe, Newt Gingrich – were also praising the speech.

Meanwhile, Republican producers of racist ideas got down to business, demanding to see Obama’s birth certificate, questioning whether Barack Hussein Obama was really an American, and suggesting that only real Americans, who were white like McCain, could live in the White House of the United States. The Obama campaign released a scanned copy of his US birth certificate, but the rumours of Obama being born in Kenya or some Islamic anti-American nation did not suddenly go away. They were not started out of ignorance, so why would they go away out of knowledge?


On 4 November 2008, a 64-year-old recently retired professor cast a vote for a major political party for the first time in her voting life. She had retired from academia, but not from her very public activism of four decades. She was still travelling the country trying to rouse an abolitionist movement against prisons. In casting her vote for Democrat Barack Obama, Angela Davis joined roughly 69.5 million Americans. But more than voting for the man, Davis voted for the grassroots efforts of the campaign organisers, those millions of people demanding change.

When the networks started announcing that Obama had been elected the 44th president of the United States, happiness exploded from coast to coast, and from the US around the anti-racist world. Davis was in the delirium of Oakland, California. People she did not know came up and hugged her as she walked along the streets. She saw people singing and dancing. And the people Angela Davis saw and all the others around the world who were celebrating were not enraptured from the election of an individual; they were enraptured by the pride of the victory for black people, by the success of millions of grassroots organisers, and because they had shown all those disbelievers, who had said that electing a black president was impossible, to be wrong. Most of all, they were enraptured by the anti-racist potential of a black president.

Behind the scenes of exploding happiness that November night and over the next few weeks, was the exploding fury of hate attacks on black people. The establishment was working overtime to take down some of the colour-blind rhetoric that had prevented consumers from seeing discrimination for a decade. It was working to put up something better: a portrait of America conveying that there was no longer any need for protective or affirmative civil rights laws and policies – and no longer any need to ever talk about race. “Are we now in a post-racial America? … Is America past racism against black people?” John McWhorter, professor at Columbia, asked in Forbes weeks after the election. “I say the answer is yes.”


When will the day arrive when black lives matter to Americans? It depends largely on what anti-racists do – and on the strategies they use to stamp out racist ideas. Racial reformers have customarily requested or demanded that Americans, particularly white Americans, sacrifice their own privileges for the betterment of black people. And yet, this strategy is based on one of the oldest myths of the modern era, a myth continuously produced and reproduced by racists and anti-racists alike: that racism materially benefits the majority of white people, that white people would lose and not gain in the reconstruction of an anti-racist America.

It has been true that racist policies have benefited white people in general at the expense of black people (and others) in general. That is the story of racism, of unequal opportunity in a nutshell. But it is also true that a society of equal opportunity, without a top 1% hoarding the wealth and power, would actually benefit the vast majority of white people much more than racism does.

A Black Lives Matter protest in Minnesota last month.

Anti-racists should stop connecting selfishness to racism, and unselfishness to anti-racism. Altruism is wanted, not required. Anti-racists do not have to be altruistic. Anti-racists do not have to be selfless. Anti-racists merely have to have intelligent self-interest, and to stop consuming those racist ideas that have engendered so much unintelligent self-interest over the years. It is in the intelligent self-interest of middle- and upper-income blacks to challenge the racism affecting the black poor, knowing they will not be free of the racism that is slowing their socio-economic rise until poor blacks are free of racism.

It is in the intelligent self-interest of white Americans to challenge racism, knowing they will not be free of sexism, class bias, homophobia and ethnocentrism until black people are free of racism. The histories of anti-Asian, anti-Native and anti-Latina/o racist ideas; the histories of sexist, elitist, homophobic, and ethnocentric ideas: all sound eerily similar to this history of racist ideas, and feature some of the same defenders of bigotry in America. Supporting these prevailing bigotries is only in the intelligent self-interest of a tiny group of super-rich, Protestant, heterosexual, non-immigrant, white, Anglo-Saxon males. Those are the only people who need to be altruistic in order to be anti-racist. The rest of us merely need to do the intelligent thing for ourselves.

Advertisement

Historically, black people have by and large worked out that the smartest thing we could do for ourselves is to promote the notion of uplift. Beginning around the 1790s, abolitionists urged the growing number of free blacks to exhibit upstanding behaviour in front of white people, believing they would thereby undermine the racist beliefs behind slavery. Black people would acquire “the esteem, confidence and patronage of the whites, in proportion to your increase in knowledge and moral improvement,” as the abolitionist William Lloyd Garrison lectured free blacks in the 1830s.

History shows not only that uplift has failed, but that, generally speaking, the opposite of its intended effect has occurred. Racist Americans have routinely despised those black Americans the most who uplifted themselves, who defied those racist laws and theories that individuals employed to keep them down. So upwardly mobile black people have not persuaded away racist ideas or policies. Quite the contrary. Uplift has brought on the progression of new racist policies and ideas after blacks broke through the old ones.


Everyone who has witnessed the historic presidency of Barack Obama – and the historic opposition to him – should now know full well that the more black people uplift themselves, the more they will find themselves on the receiving end of a racist backlash. Uplift, as a strategy for racial progress, has failed. Black individuals must stop worrying about what other people may think about them. Individual blacks are not race representatives. They are not responsible for those Americans who hold racist ideas. Black people need to be their imperfect selves around white people, around each other, around all people. Black is beautiful and ugly, intelligent and unintelligent, law-abiding and law-breaking, industrious and lazy – and it is those imperfections that make black people human, make black people equal to all other imperfectly human groups.

The other major strategy that racial reformers have used is educational persuasion. As a strategy for racial progress, educational persuasion has failed, because it has been predicated on the false construction of the race problem: the idea that ignorance and hate lead to racist ideas, which lead to racist policies. In fact, self-interest leads to racist policies, which lead to racist ideas, leading to all the ignorance and hate.

Advertisement

Racist policies were created out of self-interest. And so, they have usually been voluntarily rolled back out of self-interest. The popular and glorious version of history saying that abolitionists and civil rights activists have steadily educated and persuaded away American racist ideas and policies sounds great. But it has never been the complete story, or even the main story. Politicians passed the civil and voting rights measures in the 1860s and the 1960s primarily out of political and economic self-interest – not an educational or moral awakening. And these laws did not spell the doom of racist policies. The racist policies simply evolved. There has been a not-so-glorious progression of racism, and educational persuasion has failed to stop it, and Americans have failed to recognise it.

History is clear. Sacrifice, uplift, persuasion and education have not eradicated, are not eradicating, and will not eradicate racist ideas, let alone racist policies. Power will never sacrifice self-interest, cannot be educated away from its self-interest. Those who have the power to abolish racial discrimination have not done so thus far, and they will never do so as long as racism benefits them in some way.

Activist Angela Davis, who cast her first-ever vote for a major political party in supporting Obama in 2008.
 Activist Angela Davis, who cast her first-ever vote for a major political party in supporting Obama in 2008. Photograph: Theo Wargo/Getty Images

I am certainly not stating that there are no Americans in positions of power who have ever tried to end racial disparities in their sphere of influence. But these courageous anti-racist powerbrokers are more the exception than the rule. As Americans have discarded old racist ideas, new racist ideas have constantly been produced for their consumption. That’s why the effort to educate and persuade away racist ideas has been a never-ending affair in America. That’s why education will never bring into being an anti-racist America.

Advertisement

To undermine racial discrimination, Americans must focus their efforts on those who have the power to undermine racial discrimination. History has shown that those Americans who have had the power to undermine racial discrimination have rarely done so. They have done so, however, when they realised that eliminating some form of racial discrimination was in their interest, much as Abraham Lincoln chose to end slavery to save the union. They have also conceded to anti-racist change as a better alternative than the disruptive, disordered, politically harmful and/or unprofitable conditions that anti-racist protesters created.

The most effective protests have been fiercely local; they are protests started by anti-racists focusing on their immediate surroundings: their blocks, neighbourhoods, schools, colleges, jobs and professions. These local protests have then become statewide protests, and statewide protests have then become national protests, and national protests have then become international protests. But it all starts with one person, or two people, or tiny groups, in their small surroundings, engaging in energetic mobilisation of anti-racists into organisations; and chess-like planning and adjustments during strikes, occupations, insurrections, campaigns and fiscal and bodily boycotts, among a series of other tactics to force power to eradicate racist policies. Anti-racist protesters have created positions of power for themselves by articulating clear demands and making it even clearer that they will not stop – and that policing forces cannot stop them – until their demands are met.

But protesting against racist policies can never be a long-term solution to eradicating racial discrimination in America. Just as one generation of powerful Americans could decide or be pressured by protest to end racial discrimination, when the conditions and interests change, another generation could once again encourage racial discrimination. That’s why protesting against racist power has been a never-ending affair in America.

Protesting against racist power and succeeding can never be mistaken for seizing power. Any effective solution to eradicating American racism must involve Americans committed to anti-racist policies seizing and maintaining power over institutions, neighbourhoods, counties, states, nations – the world. It makes no sense to sit back and put the future in the hands of people committed to racist policies, or people who sail with the wind of self-interest. An anti-racist America can only be guaranteed if principled anti-racists are in power, and then anti-racist policies become the law of the land, and then anti-racist ideas become the common sense of the people, and then the anti-racist common sense of the people holds those anti-racist leaders and policies accountable.

Advertisement

And that day is sure to come. No power lasts for ever. There will come a time when Americans will realise that the only thing wrong with black people is that they think something is wrong with black people. There will come a time when racist ideas will no longer obstruct us from seeing the complete and utter abnormality of racial disparities.

There will come a time when we will love humanity, when we will gain the courage to fight for an equitable society for our beloved humanity, knowing, intelligently, that when we fight for humanity, we are fighting for ourselves. There will come a time. Maybe, just maybe, that time is now.

Main illustration by Christophe Gowans

Adapted from Stamped from the Beginning: The Definitive History of Racist Ideas in America by Ibram X Kendi, published by Bodley Head on 6 July. Buy it for £16.14 at bookshop.theguardian.com

 


Contribute to Race, Racism and the Law and get great rewards.
http://patreon.com/profvrandall/

Implicit Bias (Law Review Articles and Journals) - January 2018

This is a list of law review and journal articles on implicit bias jor January 2018. The list includes 58 articles. Each of the articles used the term “implicit bias” or “unconscious bias”. Each article includes a direct quote. Below is a list of 10 articles that we found most interesting. We chose the articles based on the title alone. If you are a Patreon, please vote on which of the selected articles you would like to see a longer abstract.

Selected 10 Articles Please go to to vote https://www.patreon.com/posts/16566662

  1. BUILDING MOVEMENT: RACIAL INJUSTICE, TRANSFORMATIVE JUSTICE AND REIMAGINED POLICING 
  2. CHALLENGING A CLIMATE OF HATE AND FOSTERING INCLUSION: THE ROLE OF U.S. STATE AND LOCAL HUMAN RIGHTS COMMISSIONS
  3. DIFFERENT SHADES OF BIAS: SKIN TONE, IMPLICIT RACIAL BIAS, AND JUDGMENTS OF AMBIGUOUS EVIDENCE
  4. DO ALTERNATIVE DISPUTE RESOLUTION PROCEDURES DISADVANTAGE WOMEN AND MINORITIES? 
  5. POLICE IN AMERICA: ENSURING ACCOUNTABILITY AND MITIGATING RACIAL BIAS 
  6. RECONSIDERING PREJUDICE IN ALTERNATIVE DISPUTE RESOLUTION FOR BLACK WORK MATTERS 
  7. REMOVING RACE FROM THE JURY DELIBERATION ROOM: THE SHORTCOMINGS OF PEÑA-RODRIGUEZ v. COLORADO AND HOW TO ADDRESS THEM 
  8. SMOKING GUNS: THE SUPREME COURT’S WILLINGNESS TO LOWER PROCEDURAL BARRIERS TO MERITS REVIEW IN CASES INVOLVING EGREGIOUS RACIAL BIAS IN THE CRIMINAL JUSTICE SYSTEM 
  9. THE NATURAL PERSISTENCE OF RACIAL DISPARITIES IN CRIME-BASED REMOVALS 
  10. THE VIOLENT STATE: BLACK WOMEN’S INVISIBLE STRUGGLE AGAINST POLICE VIOLENCE

1. REVIVING THE VOTING RIGHTS ACT POST-SHELBY COUNTY: A NEW STANDARD FOR VOTE DENIAL AND VOTER ID LAW ANALYSIS UNDER SECTION TWO
Hastings Constitutional Law Quarterly Winter, 2018 45 Hastings Const. L.Q. 373

The concept of the right to vote is fundamentally embedded within the notion of a democratic system of government. Democracy, “rule of the people,” exists when citizens exercise power directly or elect representatives from among themselves to form a governing body. In American democracy, the ideal is to create a “government of the people, by the...

...of the test with a method for introducing evidence of implicit bias and demonstrating the state’s interest in regulating voting, this Note...
...it exists in a particular context of racial inequality and implicit bias. In addition to surmounting the obstacle of an unclear...

2. THE POWER OF ONE
West Virginia Lawyer Winter, 2017-2018 2018-WTR W. Va. Law. 6

With everything that is going on in this world from earthquakes to hurricanes; forest fires to flooding; mass incarceration to mass shootings; racial profiling to domestic terrorism all the way to politics pitting fellow Americans against fellow Americans it is vitally important that we understand and embrace the individual power we possess to...

...others nor is the self-reflection to recognize our own implicit biases, but by having the courage to face what might be...
...of which we are not aware. The American Bar Association’s Implicit Bias Initiative takes it a step further by discussing how biases...

3. CALIFORNIA ENVIRONMENTAL QUALITY ACT LAWSUITS AND CALIFORNIA’S HOUSING CRISIS
Hastings Environmental Law Journal Winter, 2018 24 Hastings Envtl. L.J. 21

The California Environmental Quality Act (“CEQA”) continues to play a vital role in assuring that our state and local agencies carefully evaluate, disclose, and avoid or reduce the potentially adverse environmental consequences of their actions. In addition, CEQA ensures that agencies consider and respond to public and agency comments on these...

...interviews with environmental professionals and survey data highlight alienation and “ unconscious bias ” as factors hampering recruitment and retention of talented people of...

4. REMOVING RACE FROM THE JURY DELIBERATION ROOM: THE SHORTCOMINGS OF PEÑA-RODRIGUEZ v. COLORADO AND HOW TO ADDRESS THEM
University of Richmond Law Review January, 2018 52 U. Rich. L. Rev. 475

Justice Kennedy began his recently decided Peña-Rodriguez v. Colorado majority opinion by saying, “The jury is a central foundation of our justice system and our democracy.” The case grappled with the question of whether the long-standing federal rule that jury members cannot testify about any aspect of the deliberation process should give way in...

...gauge whether the prospective juror is willing to overcome their implicit biases for the sake of the trial. [FN104] It is suggested...
...FN124] Such documentation could allow the jurors to recognize the implicit bias they used in crafting their decision and enable them to...

5. THE RACE-NEUTRAL WORKPLACE OF THE FUTURE
U.C. Davis Law Review December, 2017 51 U.C. Davis L. Rev. 719

C1-2Table of Contents Introduction. 719 I. Bias and Technology. 721 A. Bias in the Workplace. 721 B. Technological Solutions?. 723 II. Legal Implications. 727 III. Philosophical Implications. 728 Conclusion. 729

...and names from LinkedIn profiles to reduce the effects of unconscious bias in recruiting. [FN17] Another is Interviewing.io, an anonymous technical interviewing...
...and acknowledge that in some situations all of us experience implicit bias. And it is hard for people to identify these tendencies...

6. THE DESERT OF THE UNREAL: INEQUALITY IN VIRTUAL AND AUGMENTED REALITY
U.C. Davis Law Review December, 2017 51 U.C. Davis L. Rev. 499

The world we live in is structured by inequality: of gender, race, class, sexual orientation, disability, and more. Virtual and augmented reality technologies hold out the promise of a more perfect world, one that offers us more stimulation, more connection, more freedom, more equality than the “real” world. But for such technologies to be truly...

...Using the associational Implicit Association Test (“IAT”), which tests for unconscious bias using the strength of associations between negative and positive concepts...
...This in turn resulted in a reduction in their negative implicit biases. In other words, the integration of different sensory signals can...

7. AMERICAN EQUAL PROTECTION AND GLOBAL CONVERGENCE
Fordham Law Review December, 2017 86 Fordham L. Rev. 1251

Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First,...

...also because laws with harmful discriminatory effects may arise from unconscious biases. [FN67] This wall, however, has developed significant cracks. Justice Sandra...
...pervasiveness of biases that people hold unconsciously, also known as implicit biases, see Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law , 58 UCLA L. Rev. 465, 465-89...

8. THE ORAL HISTORY OF JAN JONES BLACKHURST
UNLV Gaming Law Journal Winter 2017 8 UNLV Gaming L.J. 25

Jan Jones Blackhurst served as the first female mayor of Las Vegas from 1991 to 1999. Following her second term as mayor, she joined Caesars Entertainment, where she created the casino industry’s first regulatory practices for problem gaming. Today, Jones Blackhurst continues to make a lasting impact on Las Vegas and its gaming industry as Caesar...

...security. Because, you know, a lot of it is an unconscious bias that people do not even know that they have. And...
...in men, often times it’s in women, as well. That unconscious bias can cause you to make choices, which could be wrong...


9. A RIGHT TO RATIONAL JURIES? HOW JURY INSTRUCTIONS CREATE THE “BIONIC JUROR” IN CRIMINAL PROCEEDINGS INVOLVING DNA MATCH EVIDENCE
California Law Review December, 2017 105 Cal. L. Rev. 1807

This Note explores the intersections of science and the law in trials involving DNA evidence. The DNA match process is a forensic technique used to identify unknown individuals by the characteristics of their DNA. This procedure is extremely useful in criminal cases where the identity of the perpetrator is in question. While use of DNA match...

...shows how unreliable fingerprinting can be. See Gretchen Gavett, Can Unconscious Bias Undermine Fingerprint Analysis? KPBS Frontline (Apr. 16, 2012), http://www.pbs.org/wgbh/frontline/article/can- unconscious- bias-undermine-fingerprint-analysis [https://perma.cc/GM35-YEE6] . [FN171] See John...

10. ENTREPRENEURIAL ADMINISTRATION
Boston University Law Review December, 2017 97 B.U. L. Rev. 2011

Introduction. 2012 I. The Traditional Model and Emerging Realities. 2015 A. The Limits of the Traditional Regulatory Approach. 2017 B. The Promise of Co-Regulation. 2020 C. The Role of Best Practices and Agency Convened Efforts. 2021 D. Private Regulation. 2024 E. Hacking the Bureaucracy. 2028 II. Criteria for Sound Institutional Design and...

...dynamic for governmental leaders to address is the impact of unconscious bias. It is normal for those involved in a project to...

11. THE HARVARD PLAN THAT FAILED ASIAN AMERICANS
Harvard Law Review December, 2017 131 Harv. L. Rev. 604

In November 2014, Students for Fair Admissions (SFFA) filed a complaint against Harvard College in federal district court. SFFA claims that Harvard discriminates against Asian Americans by holding them to higher admissions standards than any other racial group, including whites. Because Harvard is an institution that accepts federal funds, it...

...aim to cap Asian enrollment, they are nevertheless subject to implicit racial biases. In particular, implicit biases influence how university administrators conceptualize diversity and the ways in...

12. DUE PROCESS--UNIVERSITY DISCIPLINARY HEARINGS-- FIFTH CIRCUIT HOLDS THAT DUE PROCESS STANDARDS MAY BE LOWERED IN THE PRESENCE OF “OVERWHELMING” VIDEO AND PHOTOGRAPHIC EVIDENCE OF GUILT.--PLUMMER v. UNIVERSITY OF HOUSTON, 860 F.3D 767 (5TH CIR. 2017), REH’G DENIED, NO. 15-20350 (5TH CIR. JULY 25, 2017)
Harvard Law Review December, 2017 131 Harv. L. Rev. 634

As national attention to sexual assaults on college campuses has intensified in recent years, so too has the debate about the constitutional due process protections to which students are entitled in campus disciplinary hearings. In 2011, the U.S. Department of Education, Office for Civil Rights, promulgated a “Dear Colleague” letter offering...

...vulnerable to judges perceiving their actions as criminal. [FN62] Conversely, implicit biases shaping perceptions of credibility may lead judges to interpret a...

13. A STABILITY BIAS EFFECT AMONG DECEIVERS
Law and Human Behavior December, 2017 41 Law & Hum. Behav. 519

Research examining how truth tellers’ and liars’ verbal behavior is attenuated as a function of delay is largely absent from the literature, despite its important applied value. We examined this factor across 2 studies in which we examined the effects of a hypothetical delay (Experiment 1) or actual delay (Experiment 2) on liars’ accounts. In...

...time (e.g., Koriat et al., 2004) as a result of implicit biases and false beliefs regarding memory performance (Loftus et al., 1980...

14. FEDERALISM 3.0
California Law Review December, 2017 105 Cal. L. Rev. 1695

Presented at the Brennan Center Jorde Symposium on October 20, 2016 (University of California, Berkeley) and March 1, 2017 (New York University). I. Federalism 1.0 and the New Deal. 1698 A. The New Deal “Deal”. 1698 B. Toward a New Process Federalism. 1703 C. The New Process Federalism in Practice. 1705 II. Federalism 2.0 and the Civil Rights Era....

...and it’s poorly suited to beating back the effects of implicit bias or structural discrimination. Many equality fights-- including those to change...

15. ARTIFICIAL INTELLIGENCE POLICY: A PRIMER AND ROADMAP
U.C. Davis Law Review December, 2017 51 U.C. Davis L. Rev. 399

C1-2Table of Contents I. Background. 404 A. What Is AI?. 404 B. Where Is AI Developed and Deployed?. 406 C. Why AI “Policy”?. 407 II. Key Questions for AI Policy. 410 A. Justice and Equity. 411 1. Inequality in Application. 411 2. Consequential Decision-Making. 413 B. Use of Force. 415 C. Safety and Certification. 417 1. Setting and Validating...

...See Amanda Levendowski, How Copyright Law Can Fix Artificial Intelligence’s Implicit Bias Problem , 93 Wash. L. Rev. (forthcoming 2018) (manuscript at 23...


16. THE OTHER SECURITIES REGULATOR: A CASE STUDY IN REGULATORY DAMAGE
Tulane Law Review December, 2017 92 Tul. L. Rev. 339

Although the Securities and Exchange Commission is the primary securities regulator in the United States, the Department of Labor also engages in securities regulation. It does so by virtue of its authority to administer the Employee Retirement Income Security Act (ERISA), the statute that governs the investment of retirement assets. In 2016, the...

...III suggests. Moreover, it is conceivable that the fiduciary rule’s implicit bias could make capital formation less efficient, such as by influencing...

17. THE MIRAGE OF USE RESTRICTIONS
North Carolina Law Review December, 2017 96 N.C. L. Rev. 133

The Fourth Amendment strikes a balance between Americans’ privacy interests and the government’s need to investigate crime. It does so almost exclusively by placing restrictions on how the government collects information: if the government surveillance constitutes a “search,” the government must meet certain legal standards before it can engage in...

...131-32 (2017) ( “Police data remains colored by explicit and implicit bias.” [FN256] . The revelations of the NSA’s mass surveillance program led...

18. JUDICIAL POLITICS AND DECISIONMAKING: A NEW APPROACH
Vanderbilt Law Review November, 2017 70 Vand. L. Rev. 2051

In twenty-five different experiments conducted on over 2,200 judges, we assessed whether judges’ political ideology influences their resolution of hypothetical cases. Generally, we found that the political ideology of the judge matters, but only very little. Across a range of bankruptcy, criminal, and civil cases, we found that the aggregate effect...

...disposition (albeit only through an interaction with a measure of implicit bias). As Table 4A, shows, the Republicans sentenced the shoplifter to...
...judges. [FN94] Although the Republicans expressed a greater degree of implicit bias than the Democrats, this divergence was also too small to...

19. CHANGING WELFARE AS WE KNOW IT, AGAIN: REFORMING THE WELFARE REFORM ACT TO PROVIDE ALL DRUG FELONS ACCESS TO FOOD STAMPS
Boston College Law Review November, 2017 58 B.C. L. Rev. 1659

Abstract: Approximately half a million Americans are currently incarcerated for drug convictions at the state and federal level. President Clinton’s 1996 enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”) affects this enormous class of individuals by including a provision that places a lifetime ban on access...

...FN198] Id. [FN199] See Cheryl Staats, State of the Science: Implicit Bias Review Klrwan Inst. for the Study of Race & Ethnicity 19 (2016), http://kiraninstitute.osu.edu/wp-content/uploads/2016/07/ implicit- bias-2016.pdf [https://perma.cc/E8NX-U7ZP] (explaining what implicit bias is, and how it impacts the criminal justice system). Implicit biases, defined as “[t] he attitudes or stereotypes that affect our understanding...
...See id. ; see also Amelia M. Wirts, Discriminatory Intent and Implicit Bias: Title VII Liability for Unwitting Discrimination , 57 B.C.L. Rev. 809, 814-15 (2017) (discussing implicit bias in the employment discrimination context). [FN200] See Jamie Fellner, Race...

20. PUBLIC PERCEPTIONS OF GENDER BIAS IN THE DECISIONS OF FEMALE STATE COURT JUDGES
Vanderbilt Law Review November, 2017 70 Vand. L. Rev. 1845

How are women on the bench, and their decisions, perceived by the public? Many scholars find that gender influences the voting behavior of judges and the assessment of judges by state judicial systems and the American Bar Association. However, few scholars have examined how judge gender affects the way in which the public responds to judicial...

...supra note 45, at 8; see also Rebecca D. Gill, Implicit Bias in Judicial Performance Evaluations: We Must Do Better Than This...
...575. [FN71] Id [FN72] See Justin D. Levinson & Danielle Young, Implicit Gender Bias in the Legal Profession: An Empirical Study , 18 Duke J...

21. NEVERTHELESS SHE PERSISTED: FROM MRS. BRADWELL TO ANNALISE KEATING, GENDER BIAS IN THE COURTROOM
William and Mary Journal of Women and the Law Fall, 2017 24 Wm. & Mary J. Women & L. 167

Introduction I. Background A. Bias, Stereotypes, and Schemas B. Stereotypes About Women Applied in the Law C. How the Media Evidences, Influences, and Exacerbates Gender Bias II. The Impacts of Gender Stereotypes and Bias in the Law A. Stereotypical Female Speech B. Do Looks Matter? C. The Role and Toll of Emotions III. Reducing the Impacts of...

...a fair court proceeding.” [FN28] Even law students have an implicit bias against females being associated with judges as opposed to paralegals...
...this Article gives some brief background on the nature of implicit gender biases, and discusses the evolution of gender bias against female attorneys...

22. DOES ALTERNATIVE DISPUTE RESOLUTION FACILITATE PREJUDICE AND BIAS? WE STILL DON’T KNOW
SMU Law Review Fall, 2017 70 SMU L. Rev. 817

By the time Professor Richard Delgado and his colleagues wrote their seminal article on the risk of alternative dispute resolution (ADR) facilitating prejudice, ADR programs were well-established in the United States, supported by legislative and court mandates, private contracts, and U.S. Supreme Court decisions. Fairness and Formality: Minimizing...

...ethnic, and class prejudice. More recent cognitive psychology research on implicit bias adds support to Delgado et al.’s proposition that ADR facilitates prejudicial outcomes. “ Implicit bias ” is the term adopted to refer to stereotypical associations that...
...attitude object (i.e., the target group). [FN11] These associations reflect unconscious bias, of which people are largely unaware. [FN12] Importantly, because people...


23. CHALLENGING A CLIMATE OF HATE AND FOSTERING INCLUSION: THE ROLE OF U.S. STATE AND LOCAL HUMAN RIGHTS COMMISSIONS
Columbia Human Rights Law Review Fall, 2017 49 Colum. Hum. Rts. L. Rev. 129

C1-2Contents Introduction. 130 I. The Domestic Legal Context. 136 A. Surge in Hate, Bias, and Intimidation. 136 B. Recent Commission Initiatives to Tackle Bias, Discrimination, and Harassment, and Foster Inclusion. 143 1. Community Outreach and Data Collection. 143 2. Policy Initiatives. 148 II. State And Local Human Rights Commissions: A First...

...well as how to respond to manifestations of conscious and unconscious bias and discrimination. [FN201] Public campaigns should have maximum reach and...
...strong evidence of discrimination). [FN44] See, e.g. , Audrey J. Lee, Unconscious Bias in Employment Discrimination Litigation , 40 Harv. Civ. Rts.-Civ. Liberties...

24. THE LOST PROMISE OF ARBITRATION
SMU Law Review Fall, 2017 70 SMU L. Rev. 849

This article disputes the notion that arbitration, a historically informal process, tends to disadvantage minority disputants or provide them with quick decisions tainted by prejudice. Responding to Richard Delgado’s seminal work, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, this article attempts to...

...Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich & Chris Guthrie, Does Unconscious Racial Bias Affect Trial Judges? , 84 Notre Dame L. Rev 1195, 1197...
...often overlooked. Id . at 24-25 Rothman also suggests that implicit bias may prevent well-qualified women from being selected as arbitrators...

25. POLICE IN AMERICA: ENSURING ACCOUNTABILITY AND MITIGATING RACIAL BIAS
Northwestern Journal of Law & Social Policy Fall, 2017 11 NW J. L. & Soc. Pol’y 354

UNDERSTANDING AND OVERCOMING IMPLICIT BIAS held at Northwestern Pritzker School of Law, Thorne Auditorium, 375 East Chicago Avenue, Chicago, Illinois, on the 13 day of November, A.D. 2015. FEATURED SPEAKER: Professor Destiny Peery; Introduction by Professor Locke Bowman. PROFESSOR BOWMAN: Good morning and welcome, everyone. My name is Locke Bowman....

...LAW AND SOCIAL POLICY NINTH ANNUAL SYMPOSIUM UNDERSTANDING AND OVERCOMING IMPLICIT BIAS held at Northwestern Pritzker School of Law, Thorne Auditorium, 375...
...others. What can we do about this? Is this about implicit bias? Is this about explicit bias? Do we address it through...

26. SMOKING GUNS: THE SUPREME COURT’S WILLINGNESS TO LOWER PROCEDURAL BARRIERS TO MERITS REVIEW IN CASES INVOLVING EGREGIOUS RACIAL BIAS IN THE CRIMINAL JUSTICE SYSTEM
Marquette Law Review Fall, 2017 101 Marq. L. Rev. 205

The systematic foreclosure of federal-court review of even the most meritorious federal constitutional challenges of state criminal convictions has made review on the merits of an inmate’s claim that a state court violated the U.S. Constitution in adjudicating a criminal case exceedingly rare. Nonetheless, over the past two terms, the Supreme Court...

...seen whether this willingness will extend to more systemic and implicit biases. The hope of this Article is that the Court will...
...that willingness extend to the more subtle, hidden, and systemic implicit biases that plague the system? Part II of this Article provides...

27. TRANSFORMING INTERNATIONAL CONFLICT RESOLUTION TO CATCH UP WITH THE TWENTY-FIRST CENTURY (PROMOTING COLLECTIVE INNOVATION)
Wisconsin International Law Journal Fall, 2017 35 Wis. Int’l L.J. 39

International conflict resolution has not advanced significantly in almost a century despite a highly connected global world, emerging powers like Brazil and India, and emerging interdisciplinary fields of study in negotiation and conflict resolution. This article encourages Norway, the world’s most trusted and seasoned nation mediator, to coin a...

...Steven Wall eds., 2015). [FN210] See, e.g. , Howard Ross, Exploring Unconscious Bias, 2 CDO Insights Aug. 2008, at 1-3. [FN211] Erbe...

28. THE “REASONABLE INVESTOR” OF FEDERAL SECURITIES LAW: INSIGHTS FROM TORT LAW’S “REASONABLE PERSON” & SUGGESTED REFORMS
Journal of Corporation Law Fall, 2017 43 J. Corp. L. 77

Federal securities law defines the materiality of corporate disclosures by reference to the views of a hypothetical “reasonable investor.” For decades the reasonable investor standard has been a flashpoint for debate--with critics complaining of the uncertainty it generates and defenders warning of the under-inclusiveness of bright-line...

...own knowledge and experience,” which “introduces a serious risk of unconscious bias.” [FN133] Until recently, district courts would also occasionally decide materiality...

29. THE VIOLENT STATE: BLACK WOMEN’S INVISIBLE STRUGGLE AGAINST POLICE VIOLENCE
William and Mary Journal of Women and the Law Fall, 2017 24 Wm. & Mary J. Women & L. 39

Introduction I. The Historical View A. Stereotypes About Black Women 1. Black Women as Governed by Libido and Loose Morals 2. Black Women as Liars 3. Black Women as “Man-Like” and Aggressive II. Black Women Are Murdered and Assaulted by the Police A. Invisible Homicides Committed by the Police 1. Black Women with Mental Health Issues Are...

...use of violence by the police examined the intersection of implicit bias, stereotype threat, and threat to masculinity. [FN157] The study concludes...
...from bias, to use excessive force against Black males. [FN158] Implicit bias is being discussed more frequently recently, to help explain why...

30. ACHIEVING AMERICAN RETIREMENT PROSPERITY BY CHANGING AMERICANS’ THINKING ABOUT RETIREMENT
Stanford Journal of Law, Business & Finance Autumn, 2017 22 Stan. J.L. Bus. & Fin. 189

Abstract: There are many decisions that Americans have to make about retirement before, at, and after retirement. For example, Americans have to decide when to start saving for retirement, how much to save, how to invest those savings, when to retire, when to claim social security, and how to take required minimum distributions from 401(k) plans or...

...that people choose poorly in many settings because of systematic, unconscious cognitive biases. [FN320] As an economist stated: there is “a great deal...

31. DISPUTE SYSTEM DESIGN AND BIAS IN DISPUTE RESOLUTION
SMU Law Review Fall, 2017 70 SMU L. Rev. 913

This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bureaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Service. Mediation represents a forum of accountability in...

...some linkage among workplace bullying, gender, race, and ethnicity. [FN117] Implicit biases may play out in differences regarding our varying definitions of...
...Work Matters , 70 SMU L. Rev 639 (2017) ; Carol Izumi, Implicit Bias and Prejudice in Mediation , 70 SMU L. Rev 681 (2017...

32. DO ALTERNATIVE DISPUTE RESOLUTION PROCEDURES DISADVANTAGE WOMEN AND MINORITIES?
SMU Law Review Fall, 2017 70 SMU L. Rev. 891

When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This...

...838. [FN88] See generally Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations , 94 Cal L. Rev 945 (2006) ; Melissa Hart...
...741 (2005) ; Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias , 94 Cal L. Rev 969 (2006...

33. THE PRO SE REVOLUTION
Illinois Bar Journal October, 2017 105 Ill. B.J. 22

Cases involving at least one self-represented litigant are making up most of the civil docket outside Cook County. What does this mean for courts and lawyers in Illinois? IT’S NOT UNUSUAL TO HEAR JUDGES AND LAWYERS - MOSTLY JUDGES-TALK ABOUT how many pro se litigants they encounter these days. And the eye-popping statistics more than bear out the...

...little more patient and treat them fairly. “Sometimes there’s this implicit bias against pro se litigants,” Clift adds. “You want to overcome...

34. THE NATURAL PERSISTENCE OF RACIAL DISPARITIES IN CRIME-BASED REMOVALS
University of Saint Thomas Law Journal Fall, 2017 13 U. St. Thomas L.J. 532

This Article suggests that the replacement of Secure Communities with the Priority Enforcement Program (PEP) did not, and would not have ameliorated the problem of disparate criminal immigration deportation of Latina/o noncitizens. It explores the implications of de-coupling criminal and immigration enforcement and gives theoretical consideration...

...not a killing is involved, but instead the result of implicit bias and the way in which the criminal justice system has...
...FN115] Crime “control” arrests often lack probable cause and mask implicit bias. As Angelica Cházaro explains, in the context of addressing the...

35. SUCCESS, MERIT, AND CAPITAL IN AMERICA
Marquette Law Review Fall, 2017 101 Marq. L. Rev. 1

I. Introduction. 2 II. Success and Merit in America: A Case Study. 5 A. Stoner: A Synopsis. 5 B. Take I: William Stoner as the Embodiment of the American Dream. 10 C. Take II: Stoner as a Victim of Limited Social and Cultural Capital. 20 1. Are you my mentor? Are you my mentor?. 20 2. Navigating the academic swamp: Stoner and Lomax. 29 3. The king...

...just minimize their frequency and impact. Yet evidence related to implicit bias and attempts to minimize its impact on decision-making in the workplace is encouraging: while implicit bias continues to taint decision makers, training does reduce the instances...

36. BUILDING MOVEMENT: RACIAL INJUSTICE, TRANSFORMATIVE JUSTICE AND REIMAGINED POLICING
Northwestern Journal of Law & Social Policy Fall, 2017 11 NW J. L. & Soc. Pol’y 420

TRANSCRIPT OF PROCEEDINGS held at Northwestern University School of Law, Thorne Auditorium, 375 East Chicago Avenue, Chicago, Illinois, on the 13th day of November, A.D. 2015, at 3:15 p.m. MODERATOR: MS. SHEILA BEDI, Clinical Associate Professor of Law at Northwestern University School of Law; Attorney at the Roderick and Solange MacArthur Justice...

...mentioned earlier at the beginning of our session this morning, implicit bias is playing a role because we know that students, particularly...

37. IMMIGRATION FEDERALISM IN MINNESOTA: WHAT DOES SANCTUARY MEAN IN PRACTICE?
University of Saint Thomas Law Journal Fall, 2017 13 U. St. Thomas L.J. 581

Introduction. 582 I. What is Sanctuary?. 583 II. The Home as Sanctuary--The Limits to One’s Castle. 585 III. Houses of Worship--The Quintessential Sanctuaries. 588 A. The Sanctuary Movement of the 1980s in Minnesota. 589 B. The New Sanctuary Movement in Minnesota. 591 C. Legal Issues Facing Sanctuary Congregations. 593 IV. Schools, Colleges, and...

...turned over to federal authorities for removal. If conscious or implicit bias leads in the first place to the arrest, such racial...

38. IMPLICIT BIAS AND PREJUDICE IN MEDIATION
SMU Law Review Summer, 2017 70 SMU L. Rev. 681

Mediators aspire and endeavor to meet their ethical duty of “neutrality” in mediation. Yet their ability to actually conduct mediations without bias, prejudice, or favoritism toward any party is extraordinarily difficult, if not impossible. Research shows that unconscious mental processes involving stereotypes and attitudes affect our judgments,...

...Review Summer, 2017 ADR Symposium Part 1 of 2 Article IMPLICIT BIAS AND PREJUDICE IN MEDIATION Carol Izumi [FNa1] Copyright © 2017 by...
...and attitudes affect our judgments, perceptions, and behavior toward others. Implicit bias, the automatic association of stereotypes and attitudes with social groups...

39. STORIES AT THE EDGE OF CLASS--MARGINALIZATION IN THE LAW SCHOOL EXPERIENCE
Seattle Journal for Social Justice Summer, 2017 16 Seattle J. for Soc. Just. 41

If you are not part of the solution, you are part of the problem. Students entering law school confront an academic setting unlike any they have encountered before. From the Socratic Method to fact-pattern exams, the system and the substance are entirely new for the typical student. The law school experience combines the excitement of intellectual...

...treated. No men came forward to complain. Whether conscious or unconscious, professors’ biased statements in class disparately affect the outsider who is being...
...for faculty. [FN39] Such training could include work on uncovering unconscious bias and techniques for creating an inclusive classroom climate. It could...

40. DO YOU BELIEVE IN MAGIC?: SELF-DETERMINATION AND PROCEDURAL JUSTICE MEET INEQUALITY IN COURT-CONNECTED MEDIATION
SMU Law Review Summer, 2017 70 SMU L. Rev. 721

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of...

...pool of mediators; training all mediators to acknowledge and address implicit bias; training mediators to engage in pre-mediation caucusing that focuses...
...of Mediators and Training All Mediators to Acknowledge and Address Implicit Bias 750 B. Pre-mediation Caucusing with Parties to Increase the...

41. RECONSIDERING PREJUDICE IN ALTERNATIVE DISPUTE RESOLUTION FOR BLACK WORK MATTERS
SMU Law Review Summer, 2017 70 SMU L. Rev. 639

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the...

...forms of discrimination in the workplace based on covering identity, implicit bias, institutional racism, and intersectional forms of discrimination that do not...
...have in attempting to be impartial despite the presence of implicit bias based upon Asian American stereotypes, such as assuming “that they...

42. THE UNBEARABLE LIGHTNESS OF ALTERNATIVE DISPUTE RESOLUTION: CRITICAL THOUGHTS ON FAIRNESS AND FORMALITY
SMU Law Review Summer, 2017 70 SMU L. Rev. 611

Years ago, I published Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution in Wisconsin Law Review. Arriving in the early years of the deformalization movement, Fairness and Formality sounded a warning about the risks this conflict resolution approach poses for disempowered disputants. Coming on the heels of...

...than in the formal, in-court variety, by resort to implicit bias, [FN50] stereotype threat, [FN51] and unconscious [FN52] and cognitive racism...
...Race , 118 Harv. L. Rev. 1489, 1490-94 (2005) (explaining implicit bias). [FN51] See Claude M. Steele & Joshua Aronson, Stereotype Threat and...

43. ALTERNATIVE DISPUTE RESOLUTION: A CRITICAL RECONSIDERATION
SMU Law Review Summer, 2017 70 SMU L. Rev. 595

IN 1985, in the pages of Wisconsin Law Review, four co-authors and I warned that alternative dispute resolution (ADR), then a relatively young movement undergoing explosive growth, was likely to disadvantage minorities, women, and members of other disempowered groups, particularly when their adversary was a corporation, a white person, or an...

...Mediation , 70 SMU L. Rev. 721 (2017) ; Carol A. Izumi, Implicit Bias and Prejudice in Mediation , 70 SMU L. Rev. 681 (2017...

44. EQUITY IN THE BUREAUCRACY
UC Irvine Law Review June, 2017 7 UC Irvine L. Rev. 401

Many governments have proposed “equity initiatives.” Seattle-King County’s Equity and Social Justice initiative, for instance, calls for applying an “equity lens” to policy analysis and for “all county employees to advance equity through their daily work.” How should such initiatives be understood and implemented in bureaucratic decisions? This...

...firmer evidence base. Do staff workshops on equity issues (e.g., implicit bias training) actually affect awareness and work conduct? Outside the food...

45. POWER, KNOWLEDGE, AND RELATIONSHIPS WITHIN THE FEDERAL SENTENCING GUIDELINES: A FOUCAULDIAN CRITIQUE
Washington University Jurisprudence Review 2017 10 Wash. U. Jurisprudence Rev. 123
“Perhaps the most fundamental flaw in the Sentencing Guidelines is that they are based on the assumption that you can, in the name of reducing disparities, isolate from the complexity that every sentence presents a few arbitrary factors to which you then assign equally arbitrary weights--and somehow call the result ‘rational.”’ - Hon. Jed S. Rakoff...
...justice system); see also Jeffrey J. Rachlinski, et al., Does Unconscious Racial Bias Affect Trial Judges? , 84 Notre Dame L. Rev. 1195 (2009) (finding that judges have implicit biases that affect their judgments). [FN189] See e.g. , Bernice B. Donald...
...children A judge may also use neuroscience to combat her implicit biases, which have ways of manifesting themselves in the courtroom and...

46. PROSECUTORIAL ANALYTICS
Washington University Law Review 2017 94 Wash. U. L. Rev. 771

The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less...

...Blinding Prosecutors to Defendants’ Race: A Policy Proposal to Reduce Unconscious Bias in the Criminal Justice System , 1 Behav. Sci. & Pol’y 69...
...iv ( “The shame is not in finding that we have unconscious biases or that our current policies have a disproportionate racial impact...

47. THE FISHER MEMORIAL PROGRAM 2016 IS FAIR LENDING FAIR FOR ALL?
Consumer Finance Law Quarterly Report 2017 71 Consumer Fin. L.Q. Rep. 4

Good morning. Welcome to the 2016 Fisher Memorial Program. I am going to tell you a little bit about Fred Fisher and then I am going to introduce our panelists and the moderator, and I will turn it over to John Ropiequet, who will be moderating the program. The Fisher Memorial Program, as the name indicates, is a memorial to Fred Fisher, who was...

...not on overt discrimination but a sort of implicit and unconscious bias by people who will tend to work with people that...

48. WHAT WERE THEY THINKING? HOW THE FAR MAKES RESPONSIBILITY DETERMINATIONS A GUESSING GAME
Federal Circuit Bar Journal 2017 27 Fed. Circuit B.J. 69

The recent release of War Dogs, a film dramatizing one of the most egregious instances of contractor fraud in the last decades, begs revisiting the question: what has the government done to prevent such mishaps, and have these efforts been successful? The film tells the stranger-than-fiction story of Efriam Diveroli and David Packouz, two...

...determinations based on feelings, which might mitigate the impact of unconscious biases or stressors. As addressed above, [FN165] contracting officers often act...

49. ADDRESSING UTAH’S SCHOOL TO PRISON PIPELINE
Utah Law Review 2017 2017 Utah L. Rev. 1061

On May 19, 2011, thirteen-year-old middle school student F.M. was removed from his physical education class for generating fake burps that “made the other students laugh and hampered class proceedings.” Ms. Mines-Hornbeck, the middle school physical education teacher, requested assistance from the School Resource Officer (“SRO”), Officer Arthur...

...the courtroom. [FN9] The ABA’s Preliminary Report also points to implicit bias as a contributing factor, and highlights how the “limited constitutional...
...the STPP. [FN99] Three factors contribute to this phenomenon: the implicit bias of decisionmakers with discretionary powers, [FN100] insufficient training of SROs...

50. POLICING PREDICTIVE POLICING
Washington University Law Review 2017 94 Wash. U. L. Rev. 1109

Predictive policing is sweeping the nation, promising the holy grail of policing--preventing crime before it happens. The technology has far outpaced any legal or political accountability and has largely escaped academic scrutiny. This article examines predictive policing’s evolution with the goal of providing the first practical and theoretical...

...data itself can be the result of biased collection. [FN235] Implicit bias has been demonstrated to impact policing decisions on the street...
...But in the latter case all of the issues of implicit bias or other factors are present to explain the police officer’s...

51. IN POLICE WE TRUST
Villanova Law Review 2017 62 Vill. L. Rev. 953

IN the opening episode of the extraordinary 2016 documentary O.J.: Made in America, Joe Saltzman--a professor at the University of Southern California during the 1960s, when O.J. Simpson played football there--weighs in on the issue of Los Angeles police officers’ maltreatment of black and brown Los Angeleños during that time period. “I didn’t...

...by people of color--tend to have higher degrees of implicit racial bias than officers who work in majority-white areas. [FN271] It...
...airing grievances. [FN326] Mediation can also reduce the threat of implicit racial bias and stereotyping, which is a major problem in policing today...

52. THE PERSONALIZATION PUZZLE
Washington University Jurisprudence Review 2017 10 Wash. U. Jurisprudence Rev. 97

In 2012, 75% of households in the United States had internet access. Countless other individuals have access to the internet at school, work, on smartphones, and in coffee shops. Wi-Fi is now available on airplanes and buses. The internet has become a pervasive part of society and the American populace is constantly connected. Google has become a...

...and ideologies, user data the algorithms collect is tainted by implicit biases. [FN96] Thus, the users’ own inherent biases infect the algorithm...

53. Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal
Windsor Yearbook of Access to Justice 2017 34 Windsor Y.B. Access to Just. 112

This article undertakes a brief comparison of private and public online dispute resolution [ODR] systems before providing an overview of the Civil Resolution Tribunal [CRT] , Canada’s first online tribunal, and its ODR processes. The article discusses why the CRT has come to be, how it has been implemented, as well as its implications for civil...

...undergo mandatory training on cultural competency, mental health issues, and implicit bias to try to counteract heuristics. [FN70] Eyal Peer & Eyal Gamliel...

54. ROOT CAUSE ANALYSIS: A TOOL TO PROMOTE OFFICER SAFETY AND REDUCE OFFICER INVOLVED SHOOTINGS OVER TIME
Villanova Law Review 2017 62 Vill. L. Rev. 883

POLICING in America is an important and often polarizing topic. The rise of cell phone video cameras has increased our nation’s awareness of police/civilian interactions, and publicized numerous interactions that have resulted in officer-involved shootings (OIS) of civilians--some “justified” in the eyes of the law and self-defense, others not. The...

...the law equally. When officers use disrespectful language and reinforce implicit bias, they may fuel sentiments against the police as oppressors, rather...

55. OPENING THE DOOR TO SELF-DRIVING CARS: HOW WILL THIS CHANGE THE RULES OF THE ROAD?
Journal of High Technology Law 2017 18 J. High Tech. L. 38

The advent of driverless vehicles will usher in a new age in road-based transportation. Developing and implementing the technology will require the industry to relax intellectual property rights in order to standardize safety and security features. Increased governmental regulation may be necessary to ensure public safety. Importantly, there will...

...driving cars will eliminate pre-textual traffic stops based upon implicit bias). [FN189] See Krishna, supra note 183 (suggesting that self-driving...

56. CONCEPTUALIZING CRYPTOLAW
Nebraska Law Review 2017 96 Neb. L. Rev. 384

C1-2TABLE OF CONTENTS I. Introduction. 385 II. A Distributed Ledger Technology Primer. 389 A. Distributed Ledger Technology: Bitcoin’s Blockchain, Ethereum, and Beyond. 390 B. A Brief Introduction to Smart Contracts. 396 III. Defining Cryptolaw. 399 A. Distributed Ledger Technology Will Lead to Cryptolaw. 400 B. Three Possible Methods of Adopting...

...extensive research evidences the extent to which developers frequently write implicit biases into the code and algorithms they create. [FN228] For example...

57. TRAHISON DES PROFESSEURS: THE CRITICAL LAW OF ARMED CONFLICT ACADEMY AS AN ISLAMIST FIFTH COLUMN
National Security Law Journal Spring/Summer, 2015 3 Nat’l Sec. L.J. 278

Islamist extremists allege law of war violations against the United States to undermine American legitimacy, convince Americans that the United States is an evil regime fighting an illegal and immoral war against Islam, and destroy the political will of the American people. Yet these extremists’ own capacity to substantiate their claims is inferior...

...not in a context.” [FN543] See Ward Farnsworth et al., Implicit Bias in Legal Interpretation 3 (John M. Olin Program in Law...

58. DIFFERENT SHADES OF BIAS: SKIN TONE, IMPLICIT RACIAL BIAS, AND JUDGMENTS OF AMBIGUOUS EVIDENCE
West Virginia Law Review Winter, 2010 112 W. Va. L. Rev. 307

I. Introduction. 308 II. Scholarship on Implicit Bias and Race in Legal Decision-Making. 311 A. Legal Scholarship. 311 1. Non-Empirical Work on Implicit Bias in Society. 312 2. Non-Empirical Work on Implicit Bias in the Legal System. 315 3. Empirical Legal Scholarship. 319 B. Mock-Jury Research on Racial Bias. 323 III. Activating Powerful Racial...

...Review Winter, 2010 Article DIFFERENT SHADES OF BIAS: SKIN TONE, IMPLICIT RACIAL BIAS, AND JUDGMENTS OF AMBIGUOUS EVIDENCE Justin D. Levinson [FNa1] Danielle...
...Levinson and Danielle Young I. Introduction 308 II. Scholarship on Implicit Bias and Race in Legal Decision-Making 311 A. Legal Scholarship 311 1. Non-Empirical Work on Implicit Bias in Society 312 2. Non-Empirical Work on Implicit Bias in the Legal System 315 3. Empirical Legal Scholarship 319...

Racism v Colorism - A Wrong Headed Debate

vernelliarandall2015Of course, there is only one human race. Let me make myself clear. THERE IS ONLY ONE HUMAN RACE. But saying that is about as meaningful as saying there is only one world. Countries are geopolitical, social construction that have meaning and consequences even if there is no geographic reality that make countries.


Similarly, the social construction of race exist even if there is no biological reality. The problem of racism is focused on one group (whites) thinking that their privilege and power is inherent in their race/color.  The feeling of superiority continues without regard to how you label it.  Eliminating the word races will not result in less discrimination, prejudice against persons of different race/color.

A look at human history shows that intolerance and hate is as fundamental to human nature as is love and that no matter how you label it people will categorize "THE OTHER" as different and inferior whether it is race, or religion, or sexual orientation or national origin or color or  something that we haven't thought of yet.

The reason "race" or "colorism" endures is because the basis "skin color" is something that cannot be "hidden". "THE OTHER" cannot assimilate. Case in point, the Europeans don't have"races" as we define them. They don't collect data about "race". When I was lobbying at the World Conference Against Racism to have data collected about discrimination in health care based on "race",the response was - "that it was impossible to collect such data because there was only one human race". Nevetheless, I met African Descendants from all over Europe who told story after story of discrimination against them "as a group". I met European health care providers who talked about the discrimination in health care.

Of course, categorizing those that are different into the "THE OTHER" category and then maintaining a belief of superioity over the "THE OTHER" is fundamental to human nature. It is a fundamental survival instinct. It is a way of maintaining privilege and power.  We do it in so many ways on a daily basis with very few exceptions - race/color is just one. The fundamental problem is how to change the basic human nature to discriminate against those that are different.

I respect attempts to impact racism by any means and I encourage everyone to take up the fight in whatever way they think is appropriate. However, I refused to be drawn into the "One human race" approach.

My concern with the "one human race" response, is that it allows people to think that if they reject the concept of race, they have rejected the concept of white privilege and power, rejected racism (or colorism if you will) merely because the expouse a belief in "one human race".  In my opinion, instiutional racism will continue undaunted.  Some people (in my opinion many) will be happy to adopt the new language without making any significant (or any) change in their fundamental belief system. While maintaining that they can't be racist or colorist because they believe in only one human race. Look at Brazil.

Changing terminology - from race to color - from racism to colorism; will have negligible, if any, impact on white privilege and power; negligible, if any, impact on discrimination and prejudice. I really cannot see, how talking about blacks, browns, reds, whites, and yellows and talking about colorism will cause people to categorize less, stereotype less, discriminate less. I can not see how talking about colorism will lessen white privilege and power. The fundamental construct - "you are different (color), my people are better remains". 

Thats why I will not engage my efforts in attempting to change terminology and will continue to use the words race and racism.

Institutional Racism

Wythe Holt
Alabama Public Radio.


A little over a year ago, a junior at Lee High School in Huntsville, AL, acknowledged her anger and decided she wasn't going to take it any more. She was tired of hearing the "n" word - that is, "nigger" - used to describe blacks by her white schoolmates. An accomplished poet, Kohl Fallin struck back with words. She wrote a poem.


"Your Perception, My Reality" speaks directly to the experience black folks have, and have had for hundreds of years, in a country dominated by white folks. "We are worth more than your pale white skin," she begins, refusing right from the start to accept the lower status that many whites think blacks are supposed to have. "Mediocre and below is what we are supposed to amount to in your mind," she says. "When I hear these words come out of your mouth it makes me want to slap the white off you and leave you with some sense."


White domination because of the accident of a pale skin color is absolutely senseless, as Kohl says. Taking away whiteness with a slap will, she thinks, bring her tormentors to their senses, because they will then no longer have their marker of superiority. "I have news," Kohl continues, "[W]e are already ahead. Some of us are strong, proud, sophisticated and more." With sense, whites will see the reality of equality, in multifold differences and multifold abilities among us all.


Moreover, such illicit power itself hurts the dominant, Kohl charges; it brings a submergence of the beauty of difference. "Birds of a feather flock together. Your flock has blond hair and blue eyes. The flock is exclusive and all the same, different identities are not allowed." In their whitewashing clubbiness, Kohl understands, whites lose their own individualities. Black is beautiful because it is thoughtful and independent, while white is mean, thoughtless, mindlessly conformist. Kohl Fallin has turned the white world on its head.


Wisdom, courage, perception, the ability to put hard truth into powerful words, are obviously not qualities reserved to those we perhaps self-servingly call adults. Kohl's poem is indeed mature and powerful.


Lee High School has a prize-winning in-school literary magazine, Expressions. Kohl's creative writing teacher urged her to submit the poem. She did, and the editorial board composed of black, white, and Asian students accepted it. The faculty sponsor of the magazine, however, refused to publish the poem. This act of censorship was backed up by the Principal and the School Board Superintendent, both of whom are African American. When Kohl's outraged parents tried to appeal to the whole School Board, they were denied on a gross technicality, the lone African American on that Board also solitary in dissent.


The only reason given for this censorship, so far as I can determine, is that "slap[ping] the white off" of her classmates might insult white high school students. This is an overtly racist reason, especially given the fact that her words were written in response to white use of the word "nigger," obviously and intentionally insulting to black students "mistreated in an awful way," as one of Kohl's African-American classmates and a member of the Expression student staff put it.


The problem is, many whites do not see what happened to Kohl Fallin as racism. Protecting white children from insulting racial statements is good. Protecting black children from insulting racial statements is impossible. This juxtaposition, this paradox, this craziness is - to most whites - just "natural."


Let me give you an example from my own neck of the woods. In Tuscaloosa, many privileges are given to or made available chiefly for white students - advanced courses in high school, the dismantling of a single all-city high school in favor of two new schools in mostly white areas (and one old school in a mostly black area), other new elementary and middle schools, busing from inner city white neighborhoods to these new schools in distant exurbs. Why? To "keep whites in the public school system." Little recognition is given to the miserable social and economic conditions which push blacks away from the system, or to the supposedly neutral policies which effectively segregate and miseducate most blacks once they are in that system. Money is spent, decisions made, courses placed into "tracks" - essentially to promote the well being of whites. And many whites I have listened to think this is "normal" and certainly not racist.


It is even worse than I have been saying. As in Kohl Fallin's instance, high-placed black adults go right along with this sort of racism, even facilitate it, probably to save their jobs and to appease an aroused white-dominated power structure. One outraged writer in the Huntsville Times found these African-American authority figures "miserable creatures, having to serve at the pleasure of the white establishment, even to the detriment of African American youth."


You heard me correctly. Blacks can participate in racist actions against blacks. What I am talking about is institutional racism. Racism built into the system, into the culture, into the hearts and minds of all of the folks who live in a nation whose history for many centuries has been shot through with racist decisions, racist attitudes, racist preferences, racist wealth allocation. Racism as a natural and inescapable part of a power structure which protects the wealthy and powerful, and which the few African Americans who have recently entered positions within the power structure oppose at their peril.


While rarely a matter of that overt intentionality so precious to individualists and liberals - mostly white - who smugly assure themselves that they have conquered their own racism, institutional racism nevertheless operates through people, and it chews up human beings and spits them out. Censorship is drastic, damaging to any student but especially to a brilliant one, violative of that most American value, freedom of speech. Censorship sets a terrible model for training young Americans to be open with their feelings, to express themselves, to think and act for themselves, to be active citizens in a free democracy. Yet racist censorship was visited upon Kohl Fallin by her high school authorities, and it has not been corrected despite her strenuous efforts and those of her parents and other allies. Racism is with us still.




Wythe Holt is a lawyer, historian, and writer who lives in Alabama, who is mad as hell and isn't going to take it any more, and who works to eliminate institutional racism.

 

Institutional Racism

Racism No Way



Institutional racism or systemic racism describes forms of racism which are structured into political and social institutions. It occurs when organisations, institutions or governments discriminate, either deliberately or indirectly, against certain groups of people to limit their rights.

This form of racism reflects the cultural assumptions of the dominant group, so that the practices of that group are seen as the norm to which other cultural practices should conform. It regularly and systematically advantages some ethnic and cultural groups and disadvantages and marginalises others.

Institutional racism is often the most difficult to recognise and counter, particularly when it is perpetrated by institutions and governments who do not view themselves as racist. When present in a range of social contexts, this form of racism reinforces the disadvantage already experienced by some members of the community. For example, racism experienced by students at school may result in early school dropout and lower educational outcomes. Together with discrimination in employment, this may lead to fewer employment opportunities and higher levels of unemployment for these students when they leave school. In turn, lower income levels combined with discrimination in the provision of goods and services restrict access to housing, health care and life opportunities generally. In this way, institutional racism may be particularly damaging for minority groups and further restrict their access to services and participation in society.

For more definitions, see http://www.racismnoway.com.au/glossary/index.html


Source:
Racism. No way! website, http://www.racismnoway.com.au


Theme:
Racism in Australia

Subcategories

Defining Racism
Article Count:
24
Colorblind Racism
Article Count:
2
Implicit Bias
Article Count:
2
Implicit Bias and the Law
Article Count:
2

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.

 patreonblack02