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HomePanel 3A: Implicit Bias in Law

Panel 3A: Implicit Bias in Law

Cultural Competency in a Post-Model Rule 8.4(g) World


Latonia Haney Keith

Director of Clinical Education & Assistant Professor, Concordia University School of Law




In the midst of a turbulent presidential election and at a time when the concepts of bias and prejudice garnered media attention across our country, the American Bar Association (ABA) House of Delegates approved Resolution 109, which proposed an amendment to Model Rule 8.4 to incorporate an anti-harassment and anti-discrimination provision into the black letter rules governing the professional conduct of lawyers.  By adding a new paragraph (g) to Model Rule 8.4, Resolution 109 sought to strengthen ethics protections for protected classes and advance the ABA’s goal of eliminating bias, harassment and discrimination in the legal profession.  Though adoption of Model Rule 8.4(g) is a necessary step toward forestalling bias and discrimination in the judicial system, this article argues that it will not sufficiently do so without the implementation of additional safeguards and a cultural shift within the legal profession. 


This article first provides an understanding of the history of Model Rule 8.4 and the concepts of bias and discrimination in the legal profession.  Next, this article argues that it should no longer be acceptable for lawyers to turn a blind eye and insulate themselves and the legal profession from the obligation to make cultural competency a core aspect of legal education and practice.  This article then urges states to adopt Model Rule 8.4(g) and hold lawyers and judges accountable for violating the rule.  Finally, this article proposes three specific reforms – the revision of law school accreditation standards, the implementation of continuing legal education requirements and the inclusion of mandatory cultural competency training for the judiciary – all of which, if implemented, will remove, as much as practical, bias, prejudice, discrimination and harassment from our legal profession and judicial system.





When Myths Become Beliefs: Implicit Socioeconomic Bias in American Courtrooms


Michele Benedetto Neitz

Professor of Law, Golden Gate University




This book chapter will examine the causes and effects of implicit socioeconomic bias on the part of judges. Part II will explain why particular myths about socioeconomic status, particularly regarding low-income populations, are commonplace in modern American discourse.  Drawing from the research of Daniel Kahneman, winner of the Nobel Prize in Economics, this section will explain how those myths become implicit beliefs that can motivate behavior—even for individuals who profess to have no explicit prejudices.


Part III verifies the persistence of implicit socioeconomic bias on the part of judges.  Using cases as evidence, this section details how the manifestation of a judge’s implicit socioeconomic biases can have severe detrimental effects on judicial decisions and litigants in courtrooms.


Part IV will address the prohibition of socioeconomic bias in the ABA Model Code of Judicial Conduct.  Although this type of bias is specifically referenced in the ABA Code, not all states have actually adopted an explicit ban on socioeconomic bias.  This section considers the impact of this omission.


To conclude, Part V will propose practical ways for judges to reduce implicit socioeconomic bias in their courtrooms.  These recommendations include raising awareness of this unique type of bias, increasing judges’ familiarity with low-income populations, modifying courtroom conditions and minimizing judicial burnout.  Even a few simple changes in this area can have long-term positive effects on judicial decision-making processes.




Erik Girvan

Assistant Professor & Co-Director of the Conflict & Dispute Resolution Program, University of Oregon School of Law




The United States' criminal justice system incarcerates more people per capita than any country in the world. It is also seriously inequitable. Although African Americans make up approximately 12% of the population they constitute over 36% of those in custody. For some common offences, such as drug use, which public health research suggests does not vary widely by race, the risk of incarceration for African Americans is over 4.5 times as that for people from other racial and ethnic groups. Not surprisingly, notwithstanding widespread implementation of austerity measures that produce severe overcrowding of prisons and jails, and even discounting the human, opportunity, and civic costs of incarceration and the collateral damage that high rates of incarceration does to communities, maintaining this system is tremendously expensive. Bipartisan efforts to reduce the incarcerated population, prompted in part by financial pressure from the great recession, indicate an increasing inability or unwillingness to pay for it. These facts notwithstanding, in this paper I argue that, as it is currently structured, the U.S. criminal justice system likely has a serious under-, not over-, incarceration problem. In particular, contrary to the lay (and frequently legal) understanding of discrimination as something that results from explicit animus against members of a particular out-group, the results of decades of social psychological research indicates that discrimination is far more often the result from preferences for members of the decision-maker's in-group. Applied to the criminal justice system, this suggest that racial inequity in the incarcerated population is primarily the result of a failure to enforce existing laws against non-African Americans. To the extent this is the case, were existing laws enforced equitably at the rate they are for African Americans, the incarcerated population would as much as triple from the current level of 1.5 million to 4.5 million people per year. Thus, at a very practical fiscal level, the criminal justice system can only be maintained in its present form through systematic inequality at the expense of the core values of equal protection of laws operating to the benefit of primary White Americans.






Race, Prison Discipline, and the Law


Andrea Armstrong

Associate Professor, Loyola University New Orleans, College of Law




This Article surveys three previously unconnected areas of analysis related to internal discipline in U.S. prisons: implicit bias, prison disciplinary rules, and judicial deference to correctional decisions. It traces the possible connections from the statistical evidence on the significance of race to the potential impact of race on prison disciplinary decisions and to the legal validation of these racial norms through judicial deference. In so doing, this Article hopes to begin a dialogue that identifies several entry points for discussing the ramifications of race within correctional facilities.


Part I of this Article discusses how implicit bias could affect prison decision-making. Given the lack of modern psychological studies of correctional officials and implicit bias, this section draws on studies of implicit bias in the population at large as well as implicit bias in the criminal justice system. Part II discusses how courts may facilitate the influence of implicit race bias by requiring discriminatory intent, even in penal facilities where circumstances would favor allowing implicit bias claims. Part III examines the legal standards governing judicial review of prison disciplinary rules and decisions and concludes that judicial deference may validate the improper influence of race on prison-staff decision-making.




Diane K. Uchimiya

Director of the Justice & Immigration Clinic & Professor of Law, University of La Verne College of Law




This Article evaluates the domestic government propaganda given the 2013 repeal of the Smith-Mundt Act, President Trump’s amendment to the Privacy Act to reinforce its application solely to United States citizens and lawful permanent residents, and the federal government’s expansive network and use of social media. While propaganda explicitly aims to shape the views and actions of its target audience, in this Article, I hope to discover the impact of government characterizations of immigrants as criminals, rapists, terrorists, etc. in media (traditional and social) on anti-immigrant attitudes and policies in the United States, as well as impacts on implicit bias against immigrants. In doing so, this Article will explore legal options for limiting domestic propaganda.