Law Commons^™

Greatness Thrust Upon Them: Class Biases In American Law, Robert E. Rodes

Robert Rodes

A common view of our present society is that it is largely egalitarian and classless. This paper proposes that this conception of an egalitarian and classless society belies reality. It argues that there is a dominant class of leaders in government, labor, and business who are characterized by their organizational skills and their technical expertise, and who have more in common with one another that they have with the respective constituencies in whose name they exercise power. It further argues that this class, in effect, is able to wield power to control the structure of society and the legal system …

Leveling The Playing Field: Curing The Hidden Biases Against Fathers In Hawaii’S Child Custody Regime, Samuel C. Hodges

Samuel C. Hodges

No abstract provided.

To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander

University of Michigan Journal of Law Reform

The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …

The Majority Approach To Arbitration Waiver: A Workable Test Or A License For Litigants To Play Games With The Courts?, James Savage

The University of New Hampshire Law Review

[Excerpt] “The freedom of parties to agree to arbitrate their disputes is enshrined by contract law and federal law. By inserting a mandatory arbitration clause in a contract, both parties agree that, should a dispute arise between them, they will not bring the matter to court. Instead, they agree to submit any disputes to a mutually-agreed-to third party, such as the American Arbitration Association; this third-party acts like a judge and resolves the dispute. Arbitration has many advantages, such as reducing the cost and increasing the efficiency of dispute resolution. Because of these reduced costs and greater efficiency, businesses can …

Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg

University of Michigan Journal of Law Reform

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Unification Of The Administrative Adjudicatory Process: An Emerging Framework To Increase "Judicialization" In Pennsylvania, Gerald E. Ruth

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Is The Rule Of Necessity Really Necessary In State Administrative Law: The Central Panel Solution, Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice . The rationale of the doctrine is that if there is no other person who can make the decision, let the biased person decide the case rather than have no decision made at all. The rule of necessity has been used in state administrative proceedings liberally despite the fact that it is widely recognized as unfair. This article analyzes current approaches to the doctrine, and after …

Judicial Disqualification For Personal Bias In New York State, Jerome P. Vanora

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

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, …

Crisis On The Immigration Bench: An Ethical Perspective, Michele Benedetto

Journal of the National Association of Administrative Law Judiciary

The troubled status of the immigration court system has garnered much attention from scholars, appellate judges, and even the United States Attorney General. This article suggests a new lens through which to examine the acknowledged crisis in immigration courts: judicial ethics. Because the term judicial ethics encompasses a broad array of principles, the article narrows its focus to bias and incompetence on the part of immigration judges in the courtroom. Immigration judges operate as a unique judiciary under the Executive Branch of government. An examination of the modern immigration court system, including inadequate disciplinary procedures for immigration judges, reveals that …

Disqualification For Bias And International Tribunals: Room For A Common Test , Margaret Allars

Missouri Law Review

This Article explores the scope for the development of a bias test applying to international tribunals. In the absence of a developed test in any such tribunal, an obvious source of jurisprudence is the case-law on Article 6(1) of the European Convention, which the European Court of Human Rights applies to domestic tribunals of member states. The requirement of impartiality in Article 6(1) has remained an abstract concept, slowly evolving on the foundation of common law maxims accepted as its rationale. While United Kingdom courts claim that their recent renovation of the common law test of apparent bias is the …

Cause Judging, Justin Hansford

Justin Hansford

Building on the framework of “cause lawyering” scholarship, this Article explores the fact that, in a similar tradition as a “cause lawyering” law practice animated by dedication to a cause, “cause judging” exists as well. This insight has implications for judicial ethics norms. The hyper-partisan nature of modern American life has already cast doubt on the possibility that politically appointed judges can ever truly attain the “appearance of impartiality” demanded by judicial recusal standards. Instead, judicial ethics norms should embrace the fact that judges have moral and political ideals that inform their rulings when they exercise judicial discretion, and that …

Stop Being Evil: A Proposal For Unbiased Google Search, Joshua G. Hazan

Michigan Law Review

Since its inception in the late 1990s, Google has done as much as anyone to create an "open internet." Thanks to Google's unparalleled search algorithms, anyone's ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap …

Perception And Decision At The Threshold Of Tort Law: Explaining The Infrequency Of Claims, David M. Engel

Journal Articles

Although numerous studies have confirmed that tort victims rarely litigate and that most simply "lump" their losses, we lack an understanding of why this should be so. Why do the vast majority of injured persons choose inaction over action? Explanations relying on rational actor theories on the one hand or cultural determinism on the other have been sharply challenged by recent studies of mind, culture, and cognition, particularly with respect to individual responses to physical trauma and disablement. This article, drawing on a broad interdisciplinary literature dealing with injury victims, proposes a new model of perception and decision by persons …

Refocusing Recusals: How The Bias Blind Spot Affects Disqualification Disputes And Should Reshape Recusal Reform, Melinda A. Marbes

Saint Louis University Public Law Review

In recent years a number of high-profile disqualification decisions have caught the attention of the legal community and the public at large. The most notable instances have involved Justices sitting on the United States Supreme Court, including calls by members of Congress and the legal academy for Justices Kagan and Thomas to step aside in the appeal challenging the constitutionality of the Affordable Care Act. In addition, a motion to disqualify the homosexual state court judge in the dispute regarding the constitutionality of California’s Proposition 8 which bans gay marriage, and the defense motion to disqualify the judge overseeing the …

Pregnant Pause: The Interplay Of Gendered Expectations And Pregnancy In Legal Education, Ilya Iussa

Ilya Iussa

PREGNANT PAUSE: THE INTERPLAY OF GENDERED EXPECTATIONS AND PREGNANCY IN LEGAL EDUCATION

Abstract

Is the law student biased against pregnant women? No systematic empirical study exists that can confirm whether law or university students in fact evidence bias towards visibly pregnant professors. This article, thus, reviews scholarship in the social sciences that identifies the occurrence, pervasiveness, cause and effects of student bias towards professors that do not exemplify the “normal professor body.”

This article reflects upon my interactions with law students as their professor during the course of my recent pregnancy and posits that certain perceptions held by my students …

Socioeconomic Bias In The Judiciary , Michele Benedetto Neitz

Cleveland State Law Review

Judges hold a prestigious place in our judicial system, and they earn double the income of the average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This Article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges.** This elitism can manifest as implicit socioeconomic bias. Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date has fully examined the ramifications of implicit socioeconomic bias on the bench. The Article explains that socioeconomic bias …

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.

Mirror, Mirror On The Wall: Stigma And Denial In Social Security Disability Hearings, Chris E. Pashler

Chris E Pashler

Commentators have recently suggested that the Social Security Administration (SSA) abandon its non-adversarial model of adjudication utilized in the disability hearings process in favor of an adversarial system, where the United States would be represented by an attorney. This Article will argue that such measures are not necessary to provide the claimant with a full and fair hearing, and will not lead to more consistent or accurate outcomes. Rather, this Article will argue that adoption of an adversarial model of adjudication will radically transform the nature of the disability adjudication process. This potential shift in the character of the hearings …

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 …