Law Commons^™

The Psychology Of Science Denialism And Lessons For Public Health Authorities, Brenna Moreno, Molly J. Walker Wilson

All Faculty Scholarship

As it wreaked tragedy on the world, the outbreak of COVID-19 helped expose a pandemic of a different kind, one steeped in distrust and contrarianism. This movement, termed science denialism, has been lurking and undermining public health efforts for decades. Specifically, it is “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.” Unlike skepticism, which is “doubt as to the truth of something” and works to progress both science and society, denialism is characterized by individuals’ …

An Evidence Review Of Behavioural Economics In The Justice Sector, Brian Barry, Lucia Morales, Aiden Carthy

Articles

Behavioural economics combines elements of economics and psychology to better understand how and why people behave the way they do in the real world. While behavioural economics originally sought to better understand economic decision-making, it has since grown in scope and application, and it is increasingly used by governments, government departments and other organisations to shape and implement public policies in a range of policy areas. This Review considers the application of behavioural economics theories and concepts (commonly referred to as behavioural insights) to the justice sector in a range of areas of justice policy in different jurisdictions. Areas of …

Noise Pollution, Patrick Barry

Reviews

The authors of Noise: A Flaw in Human Judgment are a trio of intellectual heavy hitters: Nobel Prize-winner Daniel Kahneman, constitutional law scholar Cass Sunstein, and former McKinsey consultant (and current management professor) Olivier Sibony. As prolific as they are prominent, the three of them have collectively produced over fifty books and hundreds of articles, including some of the most cited research in social science. If academic publishing ever becomes an Olympic sport, they’ll be prime medal contenders, particularly if they get to compete as a team or on a relay. Their combined coverage of law, economics, psychology, medicine, education, …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Reframing Hate, Lu-In Wang

Articles

The concept and naming of “hate crime,” and the adoption of special laws to address it, provoked controversy and raised fundamental questions when they were introduced in the 1980s. In the decades since, neither hate crime itself nor those hotly debated questions have abated. To the contrary, hate crime has increased in recent years—although the prominent target groups have shifted over time—and the debate over hate crime laws has reignited as well. The still-open questions range from the philosophical to the doctrinal to the pragmatic: What justifies the enhanced punishment that hate crime laws impose based on the perpetrator’s motivation? …

The Social Psychology Of Inclusion: How Diversity Framing Shapes Outcomes For Racial-Ethnic Minorities, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Research on the efficacy of organizational diversity efforts has yielded mixed results. It remains unclear when positive or negative outcomes should be expected, and why. This article fills a gap in the sociological literature by examining critical social psychological mechanisms. In Experiment 1, I found that common diversity messaging led to increased bias towards racial minorities. In Experiment 2, I examined how alternative framing may influence these outcomes. Findings revealed that the common “business case” emphasizing profit and performance gains made decision-makers less likely to select a Black job candidate than emphasizing civil rights law. I then examined social psychological …

Biographical Data And Black Box Empiricism: Lessons Learned For Algorithmic Assessments In Personnel Selection, Ketaki Sodhi, Marc Cubrich

Psychology from the Margins

As the popularity of biodata in selection assessments grew in the 1980s and into the 1990s, the field of industrial and organizational psychology witnessed many attempts to develop biodata theories and guide the development of biodata items. The insights that emerged from this body of research are increasingly relevant in the current era of big data, artificial intelligence (AI), and machine learning. More than ever, AI and machine learning are being used to score candidates and make hiring recommendations. Many organizations are using data-driven approaches to develop machine learning and AI algorithms, which are frequently atheoretical, based on correlations or …

Administrative Law In The Automated State, Cary Coglianese

All Faculty Scholarship

In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated state were …

Mine The Gap: Using Racial Disparities To Expose And Eradicate Racism, James S. Liebman, Kayla C. Butler, Ian Buksunski

Faculty Scholarship

For decades, lawyers and legal scholars have disagreed over how much resource redistribution to expect from federal courts and Congress in satisfaction of the Fourteenth Amendment's promise of equal protection. Of particular importance to this debate and to the nation given its kaleidoscopic history of inequality, is the question of racial redistribution of resources. A key dimension of that question is whether to accept the Supreme Court's limitation of equal protection to public actors' disparate treatment of members of different races or instead demand constitutional remedies for the racially disparate impact of public action.

For a substantial segment of the …

Law Library Blog (November 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Criminal Justice Bias: Fact Or Fiction, Hiba Mobarak

Quest

Objective Analysis

Research in progress for CRIJ 1301: Introduction to Criminal Justice

Faculty Mentor: Stefanie LeMaire

The following paper represents work produced by a student in an Introduction to Criminal Justice course at Collin College. The paper is an objective analysis of prominent research regarding potential police biases and how officers’ decisions may be influenced by a suspect’s race. The topic of racial bias within policing is quite controversial, as evidenced by the community protests, media coverage, and destruction that has ensued after officer-involved shootings. This assignment asks students to objectively review scholarly research on police bias and constructively criticize …

Women In Law Leadership: Inaugural Lecture: A "Fireside Chat" With Gillian Lester 2-18-2020, Roger Williams University School Of Law, Michael M. Bowden, Andrea Hansen

School of Law Conferences, Lectures & Events

No abstract provided.

Leadership Lapse: Laundering Systemic Bias Through Student Evaluations, Debra S. Austin

Sturm College of Law: Faculty Scholarship

This article discusses how law schools' use of student evaluation of teaching (SET) for high-stakes faculty employment decisions amounts to a lapse in leadership because using biased evaluations allows colleges and universities to discriminate against faculty whose identities deviate from white male heteronormativity.

Manipulating Opportunity, Pauline Kim

Scholarship@WashULaw

Concerns about online manipulation have centered on fears about undermining the autonomy of consumers and citizens. What has been overlooked is the risk that the same techniques of personalizing information online can also threaten equality. When predictive algorithms are used to allocate information about opportunities like employment, housing, and credit, they can reproduce past patterns of discrimination and exclusion in these markets. This Article explores these issues by focusing on the labor market, which is increasingly dominated by tech intermediaries. These platforms rely on predictive algorithms to distribute information about job openings, match job seekers with hiring firms, or recruit …

In-Group Bias And The Police: Evidence From Award Nominations, Nayoung Rim, Roman G. Rivera, Bocar A. Ba

All Faculty Scholarship

This paper examines the impact of in-group bias on the internal dynamics of a police department. Prior studies have documented racial bias in policing, but little is known about bias against officers due to lack of available data. We construct a novel panel dataset of Chicago Police Department officers, with detailed information on officer characteristics and work productivity. Exploiting quasi-random variation in supervisor assignment, we find that white supervisors are less likely to nominate black officers than white or Hispanic officers. We find weaker evidence that male supervisors are less likely to nominate female officers than male officers. We explore …

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

Reforming Recusal Rules: Reassessing The Presumption Of Judicial Impartiality In Light Of The Realities Of Judging And Changing The Substance Of Disqualification Standards To Eliminate Cognitive Errors, Melinda A. Marbes

St. Mary's Journal on Legal Malpractice & Ethics

In recent years, high profile disqualification disputes have caught the attention of the public. In each instance there has been an outcry when a presiding jurist was asked to recuse but declined. Unfortunately, even if the jurist explains his refusal to recuse, the reasons given often are unsatisfying and do little to quell suspicions of bias. Instead, litigants, the press, and the public question whether the jurist actually is unbiased and doubt the impartiality of the judiciary as a whole. This negative reaction to refusals to recuse is caused, at least in part, by politically charged circumstances that cause further …

Individual Levels Of Bias And Immigration Policies In The United States: A Test And Extension Of The Dual Processing Model Of Bias, Lorraine Phillips

Dissertations, Theses, and Capstone Projects

The present study was a test and extension of the Dual Process Model of bias on attitudes toward immigrants and immigration policy in the United States. The Dual Process Model predicts that people who score higher on either the Social Dominance Orientation scale or the Right Wing Authoritarian scale will hold more negative attitudes toward immigrants, particularly if immigrants are viewed as a threat. A sample of 315 participants from across the United States was recruited using Amazon’s M Turk site. This study used a combination of attitudinal measures, policy scales, and experimental vignettes. The study found that the Dual …

The Trump Presidency And The Press, John M. Greabe

Law Faculty Scholarship

[Excerpt] "It is not difficult to understand why presidents frequently voice frustration with the press. Imagine being subjected to critical analysis 24/7 by reporters, bloggers and pundits who often lack complete and accurate information but face competitive pressure to publish quickly."

Alternative Facts And The Post-Truth Society: Meeting The Challenge, S. I. Strong

Faculty Publications

In the hours following the 2017 U.S. presidential inauguration, the world was introduced to the concept of "alternative facts," a term that quickly became synonymous with a willingness to persevere with a particular belief either in complete ignorance of, or with a total disregard for, reality.' The increasing incidence of alternative facts in the popular and political arena creates a critical conundrum for lawyers, judges, legislators, and anyone interested in deliberative democracy, since it is unclear how rational debate can proceed if empirical evidence holds no persuasive value.

This Essay seeks to use empirical research to demonstrate that conventional means …

Auditing Algorithms For Discrimination, Pauline Kim

Scholarship@WashULaw

This Essay responds to the argument by Joshua Kroll, et al., in Accountable Algorithms, 165 U.PA.L.REV. 633 (2017), that technical tools can be more effective in ensuring the fairness of algorithms than insisting on transparency. When it comes to combating discrimination, technical tools alone will not be able to prevent discriminatory outcomes. Because the causes of bias often lie, not in the code, but in broader social processes, techniques like randomization or predefining constraints on the decision-process cannot guarantee the absence of bias. Even the most carefully designed systems may inadvertently encode preexisting prejudices or reflect structural bias. For this …

The Polysemy Of ‘Fallacy’—Or ‘Bias’, For That Matter, Frank Zenker

OSSA Conference Archive

Starting with a brief overview of current usages (Sect. 2), this paper offers some constituents of a use-based analysis of ‘fallacy’, listing 16 conditions that have, for the most part implicitly, been discussed in the literature (Sect. 3). Our thesis is that at least three related conceptions of ‘fallacy’ can be identified. The 16 conditions thus serve to “carve out” a semantic core and to distinguish three core-specifications. As our discussion suggests, these specifications can be related to three normative positions in the philosophy of human reasoning: the meliorist, the apologist, and the panglossian (Sect. 4). Seeking to make these …

The Effect Of Victim Religion On Juror Perceptions Of Hate Crimes, Casey Magyarics

Theses and Dissertations--Psychology

The present study investigated mock juror perceptions of hate crimes in the courtroom, specifically whether a victim’s religion (Atheist, Christian, Jewish, or Muslim) influenced the likelihood that a mock juror would render a hate crime verdict. I employed a mock juror methodology where participants read an assault trial summary, rendered a verdict, and answered a series of rating questions about the victim and defendant. Two theoretical explanations were proposed to explain the main effect of victim religion on participant verdict decisions; that participants would be most likely to render a guilty verdict when the victim is considered an in-group member …

Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle

All Faculty Scholarship

This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and …

Applying Sex Offender Registry Laws To Juvenile Offenders: Biases Against Adolescents From Stigmatized Groups, Jessica M. Salerno, Margaret Stevenson, Cynthia J. Najdowski, Tisha R.A. Wiley, Bette L. Bottoms, Liana Peter-Hagene

Psychology Faculty Scholarship

The need to protect children from dangerous sex offenders has led to policies that require juvenile sex offenders to register on public online registries. It is important to determine the implications of these laws for the wellbeing of child victims and also for juvenile offenders on these registries. Is the application of these laws—designed for adult offenders—to juveniles appropriate, necessary, and supported by public sentiment? The chapter reviews current sex offender registration policies and psychological research addressing whether the assumptions underlying these laws are supported by research, public sentiment toward these laws, factors that might drive biases against stigmatized youth …

Research On Bias In Mediation: Policy Implications, Isak Svensson

Penn State Journal of Law & International Affairs

One of the most important and disputed questions within the field of international mediation concerns the issue of bias. The question of bias cuts to the core of what mediation is and the ways in which mediators can help the parties reach peace. Focusing on research on the role of neutrality and bias in international peace diplomacy in civil wars, this article draws out the policy implications of my own empirically-based work on the role of bias in the mediation of internal armed conflicts. This article suggests that neutrality should not be part of the definition of mediators, …

A Broken Shield: A Plea For Formality In The Juvenile Justice System, Robin Walker Sterling

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Bypassing Bias: How Law Reviews Circumvent Favoritism, Allen P. Mendenhall

Allen Mendenhall

Could peer-reviewed humanities journals benefit by having student editors, as is the practice for law reviews? Are student editors valuable because they are less likely than peer reviewers to be biased against certain contributors and viewpoints? Student editors of and contributors to law reviews may seem to be the notable exception, but legal scholarship is different from humanities scholarship in ways I address here, and law reviews suffer from biases similar to those endemic to peer-reviewed journals. Nevertheless, law review submission and editing probably have less systemic bias than peer-reviewed journals, but not because students edit them. Rather, law review …

Reasonable Suspicion Or Real Likelihood: A Question Of Semantics? Re Shankar Alan S/O Anant Kulkarni, Lionel Leo, Siyuan Chen

Siyuan CHEN

The law on apparent bias has been mired in some controversy following the High Court decision of Re Shankar Alan s/o Anant Kulkarni, where Sundaresh Menon J.C. seemingly departed from the tentative views of Andrew Phang J.C. (as he then was) in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board on the issue of whether there were any material differences between the “reasonable suspicion of bias” test and the “real likelihood of bias” test, the two formulations of the test for apparent bias that have been variously adopted by different jurisdictions in the common law world. In Tang Kin …

Transparency Through Insurance: Mandates Dominate Discretion, Tom Baker

All Faculty Scholarship

This chapter describes how liability insurance has contributed to the transparency of the civil justice system. The chapter makes three main points. First, much of what we know about the empirics of the civil justice system comes from access to liability insurance data and personnel. Second, as long as access to liability insurance data and personnel depends on the discretion of liability insurance organizations, this knowledge will be incomplete and, most likely, biased in favor of the public policy agenda of the organizations providing discretionary access to the data. Third, although mandatory disclosure of liability insurance data would improve transparency, …