Tuesday, February 20, 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...

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