how to mitigate the bias of the judicial system with rules of procedure

7/30/2019 How to Mitigate the Bias of the Judicial System with Rules of Procedure

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USING RULES OF PROCEDURE TO ACKNOWLEDGE AND PRESUME THE BIAS OFJUDICIAL DECISION-MAKERS WITHOUT CONDONING THE BIASUSE.

ANTHONY ANISE

Abstract

A substantial danger exists in a judicial system that presumes that judges and jurors will

be able to make unbiased decisions. Currently, there are insufficient protections against the use

of such biases, and the protections that do exist are difficult to appeal. This paper applies an

alternative approach to dealing with biases: Instead of presuming that the judicial system will

proceed without bias, the presumption is that judicial decision-makers are inherently biased and

make decisions based on those biases. However, if this presumption is recognized in the judicial

system, the laws of procedure would not be ready to handle it, and the judicial decision-makers

would more actively use their biases to make decisions without sufficient safeguards.

There are several possible solutions within the judicial rules of procedure, not only to

help enlighten the recognizance of biases of judges and jurors, but to safeguard against their use.

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First is the view that decision-makers are the cause of the bias, and therefore should be the

source of the solution. To de-bias judges and jurors, the system should place on them the burden

by using laws that educate judicial decision-makers about biases, and motivate them to be more

rational. Second, the burden can be put on the system itself. The focus would be on de-biasing

the decisions themselves both actively, by offering less choice to decision-makers, and passively,

by broadening the diversity of judges and juries. Third is the view that lawyers should carry the

burden to bring biases to light in the judicial system in the hope that the adversarial system will

safeguard against the use of bias, when such bias is more recognized and presumed to influence

decision-makers.

Introduction

All human beings operate with biases and heuristics. They are necessary for our

functioning.1 However, often humans fail to recognizes these flaws in rationality. The legal

system in the United States materially relies on the rationality of human judicial decision-

makers, judges and jurors, for the substantial performance of justice. The biases of these

decision-makers inhibit their rationality, thus inhibiting justice.2

Many have offered solutions to this problem. One such solution was offered by Susan

Bandes who argued that the problem is that judges and jurors dont recognize their biases.3 They

2

1See Michael Anissimov, ACONCISE INTRODUCTION TO HEURISTICS AND BIASES,http://

www.acceleratingfuture.com/michael/works/heuristicsandbiases.htm, (last visited Dec. 12, 2012)

(explaining that heuristics are provided by our brains as representations of reality to avoidoverloading our brains with unnecessary complex logical analysis).

2 While it may be true that biases are not all bad, and some biases may work to further justice

(depending on what definition of justice preferred), for the sake of this paper, it is assumed that

biases inhibit the performance of justice and that a purely rational judge or jury would be the best

case scenario.

3 Susan A. Bandes,Moral Imagination in Judging, 51 WASHBURN L.J. 1 (2011).


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make biased decisions as though they are perfectly rational.4 She considered this to be the major

problem.5 Her solution was that all judicial decision-makers recognize their own limitations in

what she called moral imagination.6 Even if they make decisions using biases, their self-

awareness is necessary, and the lack thereof is the biggest problem.

Well, what would happen if Professor Bandes solution is applied? More specifically,

three questions arise. How can every judicial decision-maker in the United States jurisdictions

recognize his or her biases? What happens to the judicial system when decision-makers

recognize the use of their biases in there decisions? Finally, how can the integrity of the system

and the substantial performance of justice be protected when bias is recognized and accepted

across the board in a system that relies on its absence?

The Polarization of the Media: A Case Study

In order to understand the problem, the second question must be answered first. What

happens if bias is accepted by judicial decision-makers? A suitable analogy to what could happen

to the judiciary is the news media. News organizations have a duty to present facts. Similarly, a

judicial decision-maker have the duty to decide what is true, fair, and legal. Neither of these are

opinions, they are based on objective analysis. The media, however, has become increasingly

polarized in recent years. How has this happened? As society recognized media biases,

competition created a polarization of media. People tend to be allegiant to one news organization

or another, or more skeptical of media stories in general. Perhaps such a result is actually helpful

in portraying multiple sides of a story, when in the past, one side was offered and generally

3

4Id. at 4-5.

5Id. at 5

6Id. at 24.


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accepted. However, the result for the individual media organizations themselves is quite

different. The universal recognition of bias is used explicitly to desecrate the credibility of

competition, and to justify, whether consciously or subconsciously, a media organizations own

one-sidedness. Therefore the problem is twofold: (1) the recognition of bias reduces the

credibility of the system, and (2) that it tends to be applied in exactly the opposite way than it

should.

The problem is not that there is enough bias recognition, it is that there was some, but not

enough, and the bias recognition that did occur worked to polarize the media and inhibit further

growth of media bias. Therefore, the push toward growth of bias recognition leaves this growth

in a perpetual limbo. Everyone is blaming the problems of competition on bias, while no

organization is recognizing its own bias. Therefore, the problem is not that there is too much

recognition of bias, it is that the the recognition of bias that did occur inhibited further progress.

The judicial system has some similarities to the media that makes this illustration

applicable. For the job to be performed effectively, objectivity is necessary. The more biases in

the media or in the judiciary, the the less effective the job. The credibility of the judiciary, like

the media, requires rational actors.

Using the media as an analogy, acknowledging bias in judicial decision-makers could

prove more harmful than good. Rather than help to debias the judiciary, the credibility of the

system will become vulnerable. Bias arguments could be used to polarize the judiciary, and bias

will be used to justify biased decisions, rather than debias the judiciary.

An important difference between the media and the judicial system is that the media is

relatively self-regulating. A media organization is made accountable by its reputation and

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credibility. In the judicial system, although credibility is essential, courts have rules of procedure

that govern them. Can these procedural rules be used to debias the law? Specifically, can the

rules of procedure be tailored to facilitate the recognition of the influence of bias on decision-

makers? How can these rules protect against the media limbo paradox, and instead take this

knowledge far enough to produce a debiasing effect on judges and jurors?

The Burden

The rest of this paper offers several ways of using rules of procedures to debias the law.

These approaches are not mutually exclusive, but they place burdens on different parts of the

judicial system. The first option is to place the burden on judicial decision-makers. The second

approach places the burden on the system itself to debias the judiciary. The third possibility

places the burden on the attorneys in an adversarial system to protect decisions against bias. In

all three approaches specific examples focus on facilitating the presumption of the influence on

bias, and yet still protecting against it.

Approach One: The Judicial Decision-Makers Burden

The first approach would be to use rules or procedure to place the burden on decision-

makers to protect against bias. The main purpose behind this approach is to go to the source. The

problem is in decision-makers, so the solution should also be the decision-makers.

As Susan Bandes recognized, the problem with the system is that a judge will make a

decision based on a certain reasoning, which includes a decision-makers attributes, beliefs,

and values, while justifying the decision with a set of post-hoc reasons that often show little

resemblance to the original reasoning.7 The danger, argues Bandes, is when judges deny this

5

7Id. at 3.


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disparity.8 The solution is that if judges realize and acknowledge some notion of the true

reasonings for their decisions, then this blindness would be avoided.9

Judges

In the context of judges and magistrates the question is quite specific: How can rules of

procedure encourage judges reasonings be revealed, to themselves and to the public, while not

giving biases enough credence to throw away the rules of law for judges own reasonings?

I would propose the following three-step solution. The first step is education: Judges

should be educated on biases and heuristics and how they affect their cognitive decision-making

process. The second step would be requiring judges to give their equitable opinion of the case,

whether or not it agrees with applicable law or the cases legal analysis. The third step is to place

rules in procedure that require judges to become experts in implicit bias to do their jobs properly.

Step One: Educating judges would be essential because people tend to underestimate the

influence of their biases. Until judges recognize the power of biases across the board, and that it

is not possible to simply call balls and strikes independent of personal influences, then debiasing

the law will not progress.10 Research has shown the judges vastly overestimate their objectivity.11

Several studies have shown that judges consider themselves better than other judges at avoiding

prejudice and bias.12 This false sense of objectivity gives judges a license to act on their biases.13

6

8Id. at 24.

9Id. at 24.

10See id. at 4

11 Jerry Kang, et al.,Implicit Bias in the Courtroom, 59 UCLAL.REV. 1124 (2012).

12Id. at 1172-1173.

13Id. at 1173.


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As Jerry Kang explains, learning about non-conscious thought processes can lead people to be

more skeptical about their own objectivity.14

Also, educating judges on their biases, would work to debias judges directly. This is only

true, however, if judges actually want to make legally justified and just decisions. Educating

them on how decisions are negatively affected by biases would give judges an incentive, not just

to recognize their biases, but to reduce or eliminate their use.

When it comes to implicit bias, the use of education can increase the motivation of judges

to be less biased.15 The worry with this approach is that when a judge learns of the ill effects of

biases, she will reinforce her disclaim of their use, so as to protect the collective integrity of the

judiciary and the personal integrity of the judges decision-making ability. Education would only

work if each judge becomes convinced of his or her use of bias.

Education clearly can have a positive immediate effect on the recognition of implicit

bias.16 However, that surveys that confirmed this were taken at the time the education was given.

After some time had passed, the response dropped.17

What happens when a judge becomes convinced of the pervasiveness of implicit bias in

the system, but unconvinced of its effects on herself? How can education transfer into practice?

That is where the second step is necessary.

7

14Id. at 1174.

15See id. at 1174-77.

16Id. at 1172-1173 (citing studies that show the positive effect of education on the recognition of

bias).

17Id.


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Step Two: When a judge writes an order or court opinion, there are several key parts that

are required for appellate review and precedential value. A typical opinion often has a statement

of jurisdiction, a summary of the applicable facts, citation of applicable law and cases, and a

legal analysis of the case in which the reasons for the decision are provided. My proposal would

be to add another section to this list for equitable analysis: Require judges to give their opinion

of what would be a fair and just decision to the parties and the public, given all of the

circumstances. This section may or may not agree with the legal analysis on the case. It could

only be considered dicta, and, except in courts that require an equitable decision, such as family

law, it would not factor in to the decision making.

If this has no value in the decision, then why would this be helpful? This section would

have several functions. First, for judges who claim to be objectively applying the rule of law

without using their own biases, this process forces them to explain reasoning that is not bound by

law, but by traditional notions of justice, or less formally, by their gut. The gut is an implicit

bias safe haven. When such a judge finds that she is having to conceal her true equitable

reasoning, or that her reasoning is missing behind vague notions of justice such as her gut, it may

help her to discover the effect of bias on her decision-making. This step would likely be more

effective for those who are more open-minded to their own faults. However, even for a judge

who is unconvinced of his own biases, if he has been properly prepped with an educational

foundation of cognitive function and the effect of bias on decision making, articulating a

reasoning for a judicial decision, unbound by law or precedent, could be an exercise that pushes

him over the edge in recognizing the effect of his bias on his court decisions. Without doubt,

anyone who is willfully blind to his bias and insistent on the lack of its effect would not be

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effected by this step. After all, if judges are able to fabricate their legal reasons for a decision as

well as they do, their equitable reasoning would not be far behind. However, the goal may not be

found in what actually makes it on paper. The goal is in giving judges the opportunity to think

through their real reasonings for a decision, unconstrained by the consequence of the judicial

decision, precedential value, appellate review, or the rule of law. When judges are given such an

opportunity, the repression of implicit biases might be scaled back, giving them an opportunity to

think through their decisions and for those judges who need a push to be convinced of their lack

of objectivity, this might be just the medicine.

Second, when judges come up with equitable reasonings for their decisions, they may

discover that their legal analysis is fabricated based on that reasoning. Therefore, this approach

would force judges to regularly differentiate between following the law and following their gut.

As previously stated, the problem with education alone is that it lacks in followup, and can

degrade over time. However, when education is put into practice, it will remain a constant check

on judges to keep their biases from seeping through their education.

Another important purpose for requiring equitable analysis is that it gives judges a place

to vent, which could lead to less bias in the actual decision. This purpose is broader than only

implicit bias. Judges often wish to reach a certain decision based on moral or idealogical

viewpoints.18 Instead of imposing their moral obligations on the judiciary and the country by

letting it affect their decision-making, judges can spell out their moral or idealogical analysis in

the equitable analysis section of their opinion, freeing their personal morality from disrupting

decision-making.

9

18See Bandes,supra note 3,at 6.


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Finally, this would be a great source for the state and federal legislatures to discuss

opinions for changing laws and making them more equitable. Federal and State legislatures

would be given a plethora of feedback for laws they enact from the judges, those who are on the

front lines applying that law. This information would give legislators greater insight into how the

law applies, as opposed to what laws apply. This also helps vent the biases of judges. If

explaining the equitable analysis is insufficient for the judges moral obligations, knowing that

the analysis can be used to change the law might be enough to keep such moral convictions out

of the decisions.

Step Three: Christine Jolls, et. al. approached the problem of bias by presuming that

implicit biases and heuristics that affect peoples decision-making tends to constrain an otherwise

rational person.19 She approaches the problem of bounded rationality by introducing biases in an

attempt to counter and cancel out another bias, what she calls debiasing through the law.20

Instead of trying to insulate outcomes from effects, she proposes to act on boundedly rational

behavior to try to reduce or eliminate it.21

She focuses her discussion on using substantive law

rather than procedural law, but it could play an important role when trying to protect the

judiciary against bias by putting the burden on the system.22

As Jolls explains, a traditional way of protecting against bias would be to remove the

discretion from biased decision-makers and offer a series of bright-line rules to govern the

judiciary. Bright-line rules have serious problems and limitations. Most notably, they can never

10

19 Christine Jolls & Cass R. Sunstein,Debiasing through Law, 35 J.LEGAL STUD. 199 (2006).

20Id. at 200.

21Id.at 201.

22Id.at 202.


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account for all the factual possibilities in all cases that can arise, so some decisions could offend

justice. A bright-line rule could be a proper solution than judicial discretion only when the

resulting injustice would be less that than the injustice provided by judges abusing their

discretion with the influence of bias or otherwise.23 Jolls used several examples in which she

countered the availability heuristic with the optimism bias. Can this possibly be applied into

rules of procedure? Why would it be helpful?

The goal in step three is to require that judges become competent in understanding how

bias works in order to do their job. Two things need to happen for this to occur. First, the job

must become more difficult. Specifically, the judges job must rely on his competence and

understanding of the function of biases. Second, the qualification requirements to be a judge

must shift accordingly to avoid the problem of unqualified judges making bad decisions. I

propose to give judges the discretion to allow evidence and arguments that would work to

counteract a bias that is very likely to inhibit the rationality of a jury.

This system would require judges to be very knowledgeable in understanding how bias

affects juries and cognitive decision-making in general. Judges would not only need to

understand how juries are affected by different biases, but also how other biases can change their

effects. This system has another advantage in that it does not only require that judges stay sharp

and competent, but it helps to debias the jury as well.

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23 However, such a discussion would lead to questions theoretical, outside the scope of this

paper, such as what is justice?, how can it be measured or predicted?, is less injustice on a

larger group better or worse than a greater injustice on a smaller group? For the sake of this

paper, it is assumed that removing too much discretion from judicial decision-makers would be

unhelpful in the performance of justice.


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The rule would have to be limited and narrowly tailored, or else it will be a tool of abuse

by clever attorneys. Also, because the research that Jolls relied on is relatively new,

experimentation and empirical quantifications would be necessary to form an intelligent rule. For

example, Jolls assumes that counteracting biases will cancel out. However, the quantitate effect

of different biases are not necessarily so homogeneous. Also, Jolls believes that if the person

does not have the original bias, he will be unaffected by the medicinal counteracting bias. This

was not proven with any eremitical data. Such concerns and others would need to be researched

before a rule like this could be properly tailored.

Juries

The three-step solution proposed above would be practically inapplicable to the other

group of decision-makers, jurors. Comprehensive education for jurors would be too expensive

and prohibitively time consuming. Educating every potential juror in the United States might be

a great solution, but is far outside what rules of procedure may govern. Also, requiring juries to

provide equitable analysis would not be practical because juries dont write orders or opinions at

all. Also, step three only gives discretion to the court for the benefit of debiasing juries, so it

would not work if the juries are given discretion to debias themselves.

The question is then: How can jurors become motivated to be less biased, without

receiving a thorough education on the effects of bias on cognitive decision making? It is not so

easy. One way is to offer a crash course on the influences and dangers of biases during jury

selection and/or jury instructions. This would offer the jurors an opportunity to learn about the

effect of bias and will give some of them an opportunity to counter it. However, there are several

problems with this. First, often judges have a wide discretion as to what should be explained to

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the venire. Therefore, unless judges are truly educated and convinced of the effect of bias, as

Judge Bennett is for example,24 requiring judges to speak of implicit bias would likely have as

much effect as asking a jury to disregard a prejudicial comment.25

Another problem is that if biases are explained incorrectly, the juries might villainize the

subject of bias, repressing it further from discussions. Therefore, instead of combatting implicit

bias by bringing it to the surface, even explicit biases would be silenced. If this occurred during

jury deliberations, jurors would reinforce and broaden a gap between their external reasons and

their internal reasonings. As Susan Bandes suggested this gap is the very problem that needs to

be remedied.26 With the proper education, however brief, this may be remedied. For example,

explaining that bias affects everyone and we should be true to our reasonings to attempt to weed

out the bias might be more helpful than just explaining the dangers of bias. However, not all

judges will be qualified to teach this to juries.27

Another solution is to place in jurors the responsibility to avoid bias, as a civic duty.

Jurors respect the civic duty of serving on a jury, even if they dont find it pleasant. Therefore,

jurors need to understand that their civic duty is not satisfied merely in serving as a juror, but

making a just decision. Part of making that just decision, biases should be weeded out of

analysis. An example of this is Judge Bennetts approach, in which he requires each juror to take

a pledge to not decide a case based on biases.28 This would put the burden on jurors to actively

13

24See Kang,supra note 11, at 1182.

25 See analysis below in Approach Three for a discussion on this point.

26See Bandes,supra note 3, at 24.

27 This would be true unless jude education becomes so effective and pervasive that judges

become experts in the field of implicit bias.

28 Kang,supra note 11, at 1182.


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work against their implicit or explicit biases. Just as with jury education, this carries the same

potential problems: The application will be judge specific and may be harmful because it could

silence problems of bias during jury deliberations.

Putting education and duty together, the rule of procedure can be used to help jurors

recognize the dangers of bias without justifying themselves by only applying it to others. If

judges are required to give a speech in jury selection, or show a video demonstration,29 and

jurors are bestowed the duty to avoid such biases by actively trying to recognize them, placing

the burden on jurors could work to reduce the effects of bias.

Approach Two: The Judicial Systems Burden

The second approach would be to put the burden of reducing bias on the judicial system

itself. The advantage of this approach is that it can be applied universally. This approach can be

applied in two ways, either directly against bias, or indirectly against biased decisions.

Judges

The commonly proposed method to overcome biases is diversification of the bench.

There are two major reasons for diversification. The first is that if there is a diversity in the

bench, different judges with different backgrounds and life experiences will have different biases

that would, presumably, cancel out to create a more just system. This argument of justice differs

in value based on what level of court it refers to. At the Supreme Court level, or other appellate

levels where judges preside over cases together and vote on the decision, this reasoning for

diversification would be the most potent.

14

29See Kang,supra note 11, at 1182 n.250.


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At the most basic and deferential level, there is an argument that justices would be able to

learn from the broader ... range of experiences found in an appellate panel, resulting in a lesser

chance that relevant considerations will be overlooked.30 Even with a more cynical view of

appellate court functionality, the argument would be that the voicing of votes and writing of

dissenting opinions serve important functions and would be made prominent by a more

diversified court.

However, diversification alone can lead to a dangerous problem. In a court where a panel

of judges vote for a decision on a case, especially in a controversial case where a court is

divided, bias can play an integral role. Specifically, it is easy to slip into the problem discussed

by Professor Bandes, where the judge feels that her opinion is the single objective application of

the law, and all others are flawed with personal biases and feelings. In a court where such

feelings pervade, diversification can lead to polarization just as in the media example explained

above. Judge Posner takes it a step further saying that positive effects of diversity are countered

by the hierarchy of the voting process.31

He explains that [u]nlike intellectual diversity,

hierarchy is not an epistemic merit; it is the opposite. Voting and superiors' orders are ways of

overcoming disagreement, not dispelling it by reasoning to an agreed-upon conclusion.

(add stuff here)

Diversification in trial courts plays a much different role. Because trial judges rarely

officially collaborate on a case, diversity would serve a role of exposure. Kang cites evidence

that gives further reason to encourage intergroup social contact by diversifying the bench, the

15

30 Richard A. Posner, How Judges Think 116 (HARVARD UNIV.PRESS 2008).

31Id.


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courtroom (staff and law clerks).32 Specifically, there is evidence that suggests that stereotypes

can be reduced or overcome through exposure and direct contact with counter-typical people.33

However, how well this translates to the courthouse is not clear. Likely, the effect is not major.34

Also, the more diverse a court, the greater the incentive for attorneys to forum shop.

Diversification of the bench is therefore likely not the answer, at least not as a sole or

primary solution for bias. That is not to say that courts should become more homogeneous. As

Judge Posner explains, the more homogeneous the judiciary, the more likely it is that the judges'

intuitions will coincide.35 That will impart stability to the law, at the price of epistemic weakness,

as the judges' intuitions will rest on a narrower base of unconscious knowledge.36 Whatever is

the judicial value of stability, justice is enhanced when harmful effects of judges biases can be

dealt with, not by providing judicial stability.

Therefore the question is: Can the rules of procedure protect against the dangers

associated with diversification? After all, diversity would be a court policy, not something found

in rules of procedure. Assuming that rules of procedure would be a useful policy implemented in

U.S. courts, how can its dangers be negated?

16


33Id.

34Id. at 1171-72.

35 Posner,supra note 30,at 116.

36Id.


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First, the voting system for appellate courts should be revised. The goal in a diversified

appellate court would be to promote dialogue and a high epistemic motivation.37 The best way to

do that is to create an incentive for a more unified voice. If a court is sufficiently diverse,

incentivizing the court to think through various options as a group to come to a more unified and

singular opinion would at least keep the judges talking, rather than just looking for an opinion. I

would not go so far as propose that all appellate decisions be required to be unanimous, that

would severely cripple progress in the judicial system. Also, it would send a message to judges

that the law has only a single proper application, therefore perpetuating the notion that the job of

judges is to call balls and strikes (you know where this is).

Therefore, I would propose the following two procedural rules: First, in an intermediate

appellate court, a unanimous court decision of three or more judges requires a two-thirds vote by

a higher court to be overturned. At the U.S. Supreme Court level38 a decision can only be

overturned if at least the same number of votes that decided it vote to overturn it. So, for

example, if a case case decided with a 7-2 vote, then seven votes on the Supreme Court in a

subsequent case would be needed to overturn the original case.

It could be argued that this would be counter-productive because this would reduce the

number of dissenting opinions. The goal is not to promote unity. The goal is to have judges talk

more openly with each other before making a decision rather than after the decision is made (in

17

37 Epistemic motivation refers to the amount of information a person needs to gather before

feeling comfortable making a decision. L. Song Richardson, Cognitive Bias, Police Character

and the Fourth Amendment, 44 ARIZ.ST.L.J. 267, 275-76 (2012) (citation omitted).

38 This rule can also apply at the state supreme court level where the subject-matter of a decision

is not reviewable and where a decision can only be overturned in the judiciary by the same court

that made the decision.


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the form of majority, concurrent, and dissenting opinions). Although arguments for the

application of psychological problems such as groupthink are valid ones, in a court system that is

sufficiently diversified and educated on such dangers, mitigation techniques could be minimal.

At the very least, these proposed voting rules would fill the function of promoting

dialogue into differing viewpoints during deliberations of appellate judges. However, this would

only work to protect against the polarizing use of bias in a court system where judges have a high

epistemic motivation.

Juries

Active Bias Control: A major issue with juries is the judicial systems underestimation of

their bias. Specifically, the courts allow for the use of limiting instructions that instruct the jury

to disregard a prejudicial comment. The judicial system is presuming the ability of a jury to think

through a cases facts and often contradictory testimony and decide what actually happened

while disregarding a piece of information that an attorney and judge specifically demand be

ignored, or only be considered for a specific purpose. There is evidence that suggests that the

jury does not regularly disregard or limit such evidence.39 This is especially true when the jury

senses that the reason for the instruction is procedural rather than due to its unreliability.40 If a

jury is presumed rational by the system, and such a presumption is echoed by jurors, then we

return to the original problem explained by Professor Bandes.

One possible solution for remedying this problem is to impose far greater sanctions on

attorneys who spill inadmissible information in the presence of the jury. There are several issues

with this, however. First, it is under-inclusive. Many limiting instructions are given because a

18


40Id.


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witness answered a question that was inadmissible and the objecting party was too slow to

respond. As Kang suggests, it is these very responses that would likely be the most problematic

for the jury to disregard because they are often perceived to be based on procedural nuances in

the rules of evidence. Also, although it is dangerous to presume the objectivity of the jury, the

solution to the problem is not to distrust the jury entirely. Doing so, would give the jury a license

to use everything it has to come to a conclusion, with bias and all, because the jury would feel

that the necessary safeguards to prevent prejudice is solely the burden of the judge and the

system. Therefore, it would be best to entrust a jury with protecting against implicit biases in

decision making, without disregarding the effect and potency of that bias.

Another option would be giving the jury a list of inadmissible evidence that is to be

disregarded in the case, if such evidence is likely to have a significant effect on the jury. Then

instruct the jury to actively go down the list asking whether that inadmissible information was

used in the decision making. This option would seem contrary to logic, especially because it is

the only testimonial evidence to enter the jury room. However, as Kang explained, in some

contexts, biases are far better avoided when they are confronted than when they are repressed.41

Therefore, instructing the jury to address it could be more helpful than harmful.

Passive Bias Control: We now revisit the argument for diversification in the context of

the jury. As opposed to judges, the mere diversity of a jury can play a significant role in

protecting against the use of bias, at least explicit bias.42 Courts already forbid the use of

peremptory challenges for race or gender exclusion. I would propose a rule that would give

courts greater discretion in providing for diversity of a jury. Specifically, I would propose

19

41 Kang,supra note 11, at 1184 (explaining the effect of foreground social categories on juries).

42 Kang,supra note 11, at 1182 n.250.


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guideline minimums of diversity on a jury. There are several problems with this, however. First

there is a problem of logistics, in an age when race and even gender is not clearly defined. The

simple solution to this would be to use self-reports of race and gender. However, the more

important problem is that attorneys could focus on meeting statutory diversity minimums rather

than avoiding using peremptory strikes for racial purposes. This could lead to less diverse juries

that are closer to statutory minimums rather than the higher standard of outright forbidding

racially purposed jury selection. Also the different demographics of different regions around the

country would make diversity minimums difficult to apply universally, rather would be based on

local demographics.

Despite this, diversity is important in a jury because the goal of a jury is to reach the

correct unanimous decision. When a jury is diversified, reaching that decision requires

deliberation into a more complete analysis, than a more homogenous jury that quickly colludes

into a decision.43

Approach Three: The Parties Burden

The third approach is the default approach: Bias or not, the burden of persuading a

decision-maker in the judicial system rests firmly on the shoulders of the parties. Therefore, if

biases affect these decisions, parties in an adversarial system should be proactive in avoiding it.

There are two main drawbacks to placing the burden on parties. The first is that it will place

justice in the hands of the more skilled attorney rather than necessarily in the hand of the more

deserving party. The second issue is one of principle. People enter the judicial system as parties.

Should those people not be entitled to expect a system to be fair and unbiased? At least, should

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43Id.


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the burden to keep the system fair and just rest with the system? Why should such lay people be

given the burden of keeping the system unbiased. The other part of this problem would be when

one of the parties has an experienced attorney and another ispro se. The system is set up with

procedural rules that protectpro se parties, but often that comes at the discretion of the Court.

What happens when the courts rationality is at issue? How can apro se opponent ever compete?

Both of these problems reflect issues brought up earlier referring to whether it is better

for a greater injustice to occur on fewer people, or a lesser injustice on more people. Placing the

burden on parties to debias the judicial system can help reduce wide-spread bias in the system. In

doing so, it may also change the dynamics of the judicial system, disadvantaging some and

opening the door for attorney abuse. However, again the judgment call of weighing injustice is a

question philosophical, and with no empirical evidence, would be impossible to comment on,

more than merely acknowledging the possibility of such risks existing.

Judges

It would seem counterintuitive for attorneys to carry a burden to assure the impartiality of

a judge, but with the proper set of tools, attorneys could be the ones that keep biases in

check. This would work in a the following proposed two step process.

Step One: I would propose a rule that would require the recusal, not only of interested

judges, but of judges with particular biases that could severely prejudice one side or the other.

This is easier to do in a civil context than a criminal one. For example, in a civil case where one

party is a hotel and another a hotel guest, attorneys would usually be able to argue for the

disqualification of a judge if she is a stockholder of the hotel or the hotels parent company, or

even if the judges family owns a competing hotel. However, if the judge was in-house counsel

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for an unrelated hotel chain before her appointment or election to the bench, the attorney would

not likely have a case. If a rule was adopted that opened the door to greater disqualification by

judges who see primarily through one parties perspective, attorneys would be more eager to

search for biases of judges and move for disqualification.

In a criminal context, this would be more difficult to apply. Many criminal judges were

once criminal attorneys, either for the prosecution or defense. Therefore, that fact alone could not

be used to argue for disqualification. However, the rules of recusal could still be broadened. For

example, with the exception of the State/District attorney and Public Defenders offices, judges

should not be allowed to hear a case in which one partys attorney shared a law firm. This may

be problematic in rural areas or smaller areas. Also, this may have the effect of cahung more

judges to be chosen from smaller firms. However, generally it would be helpful in reducing bias

of like-minded attorney-judge collusion.

Step Two: The second step would be to create a meaningful appellate review of recusals

that would maximize justice while protecting efficiency. The current federal rule of recusal is

found in 28 U.S.C. 455.44 The statute gives great leniency in defining what would be a

waivable cause for recusal stating only that it is any situation where the judges impartiality

might reasonably be questioned.45 Judges are called upon to recuse themselves, and at the

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44 The statute has two options for recusal. The first is broad: Any justice, judge, or magistrate

judge of the United States shall disqualify himself in any proceeding in which his impartiality

might reasonably be questioned. The second defines specific scenarios where recusal is

necessary. The first section may be waived by attorneys, while the second may not. See 28

U.S.C. 455 (a)-(b), (e).

45Id.


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Supreme Court level, judges recusals are unreviewable.46 This is a problem it puts too much

power in the hand of one justice. The Supreme Court as a whole is not reviewable within the

judiciary, that is how the system is set up. However to protect from too much power in the

Supreme Court, cases are tried by a panel of justices. No one justices opinion is unreviewable, it

is the court as a whole, or more precisely, the majority. With self-recusal, a single supreme court

justice makes a decision, in which he is asked to choose against his self interest, that can change

the course of a case, with no reviewability or recourse. In this case, the protections of the panel

are not applied.

Step one above reduces the discretion that judges have in recusal. However, as previously

explained, bright-line rules do not solve the problem because they cannot account for every

possibility. Therefore the second step would be to make resistance to recusals more reviewable. I

would propose the following set of rules. If a judge does not recuse herself, and an attorneys

motion for the judges disqualification is denied, then the attorney would automatically be

entitled to receive a second opinion. It cannot be called a true appeal because the opinion may

come from another judge siting in the came court as the resisting judge. If the second judge

disagrees with the resisting judge, then the resisting judge must recuse herself. Also, the second

judge would be disqualified from taking the case. There are several reasons for this. First, this

would simplify the appeal process, making it both accessible and efficient. That way parties have

a simple process to appeal, but doing so will not be used as abuse by attorneys to prolong the

proceeding. Second, because of the simpler review process, judges will be more deferential to

requests of recusal because their reputations would be on the line. Third, disqualifying the

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46See Laird v. Tatum, 408 U.S. 1 (1972), in which Justice Rehnquist declined to recuse himself

from the case.


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second judge protects against the all the judges on a bench from rubber-stamping these appeals to

avoid a greater caseload. Finally, because the second opinion is reviewed by a fellow judge on

the court, this process could lead to a greater uniformity in the use of recusals on a court. If the

second judge agrees with the first, then this decision can be appealed to a higher court.

The second rule would be the same rule as above, except adapted for the recusal of

appellate judges. In appellate courts, if a party asks a judge to recuse himself and he does not,

every other judge on the panel hearing the case must agree that the recusal would be

unreasonable. This could clearly lead to abuse, if other judges are trying to sway a vote and

predicts that a vote will be swayed in one direction or another, they may try to fix the case by

disqualifying fellow judges. However, two protections would mitigate that abuse. First, an

objecting judge would have to explain why he thinks that the judge must recuse herself. That

might help some, but the most important protection is reciprocity. Because the judges will

reciprocally hear recusals for each other, they will be bound to hold them in proper check.

The third rule would be for recusals agreed upon by all parties. If all parties in a

proceeding agree that a judge should be disqualified from a case, then the agreement shall be

binding on the judge, unless the judge can show that one party is coercive in reaching the

agreement or that the parties agreement is in anyway made in bad faith. If the court can show

this, an appellate court would review the decision. The idea behind this rule is to give attorneys

the leeway to talk amongst themselves and come up with agreements about the biases of the

judge hearing the case. Because this must be agreed upon by all parties, the risk of forum-

shopping would be minimal. Nevertheless, sanctions could be put in place for attorneys who

abuse this power.

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Juries

Putting a duty on attorneys to protect against the biases of juries is not a new idea.

However, in one sense, a great portion of the job of a litigation attorney is to play on the biases

of jurors to get a favorable opinion. This begs the question: What would then sway attorneys to

debias the juries, when it is often the bias that is their most potent card? The answer to this

question is best described in the following example.

Consider the following scenario: When the potential jurors are brought into the

courtroom, they are asked a series of questions often in an official questionnaire. What if instead

of, or in addition to, those questions, they were shown a video. For example, the video could

depict a black man and white woman in an argument and the woman takes out a knife and stabs

the black man. If each is asked to say who has the knife, and some say the black man, others say

the white woman, then there is a datapoint from which to gauge the objectivity of the jurors. The

idea behind this proposed procedural rule is to give jurors tests to gauge their individual

susceptibility to different biases, then give that information to the attorneys to use in jury

selection. The idea behind this rule would be to give attorneys the ability to sift out overly-biased

people from juries.

However, the rule would only work if the attorneys actually want the biased people out of

a jury. In the situation with the video, in the criminal context, a prosecutor would have no

incentive to remove someone who mistakes the black man as the one with the knife, if the

defendant is a black male. How can a system like this protect against the biased v. less biased

determinations from being pro prosecution v. pro defense?

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Than answer is that it such protection is not entirely essential. The beauty of the

adversarial system is that both sides are given an equal opportunity to strike potential jurors.

Both sides do not need to agree, one one side needs to strike the extremes. Therefore, the parties

can strike out the two extremes and result in a less biased jury.

There are two problems with this. First is that an attorney with a weak case who realizes

that a certain bias in a jury can be helpful to her case favor would remove the more rational

jurors, to skew the odds in her favor. For example, lawyers tend not to make it to a jury. It is

doubtful that the reason for this would be that attorneys value cases inaccurately or come up with

more unjust decisions.

One remedy for this is to give the jurors a standardized test, such as the implicit

association test and only give results on a range of bias, without specifying the type of bias.47 A

test such as this would give enough information for the attorneys to choose to remove biased

Although, with this rule, that cannot be remedied completely, the proper question would be: Is

this better that the system we have now? Specifically, is it better for the attorneys to use biases

with or without the information from a test of the bias.

Secondly, will giving this information work against removing bias because it will lead to

less diversification on the bench? Recall that the major problem with juries is not that there is a

biased member, but that there is a collusion of biases working to create unjust decisions. This

proposition, admittedly results in more questions than answers, but such questions are better

answered with experimental procedure and empirical analysis, rather than conjecture involving

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47But see Kang,supra note 11, at 1179 (One might reasonably ask whether potential jurors

should be individually screened for implicit bias via some instrument such as the IAT. But the

leading scientists in implicit social cognition recommend against using the test as an individually

diagnostic measure.).


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many different influences that cannot be predicted with any notion of accuracy. Suffice it to say

that an option such as this may sometimes work to debias the jury if it is nuanced properly to

protect parties interests, and interests of the integrity of the system.

Conclusion

The goal of these various approaches and propositions bears repeating: The purpose it to

get the judiciary to recognize its lack of objectivity without causing it to become polarized like

the media. In each approach, several options are discussed leading to a number of questions and

concerns, many of which without clear answers. However, debiasing through rules of procedure

is an area of study that is open to options and growth. The above example propositions are

presented as a seeding for such studies. When an institution is suffering from human limitations,

the common solution is to go to the law regulating that institution. This system is common and

has survived millennia because it works. There is no reason why this couldnt be applied to this

context.

Also, as mentioned above, the approaches, while distinct, may be applied together. For

example, education of judges is necessary for the understanding of requests for self-recusals.

Also, diversification and education of appellate courts would be helpful in allowing fair review

of recusals of associate judges in a particular case. Although no approach is without its problems,

it is important to judge the potential problems not against a perfect system, rather against the

system as it stands in its imperfect state today. Using rules of procedure through several avenues

could be potent in promoting the recognition of the pervasiveness of bias and its effects on

judicial decision-makers, without condoning its use in the system. Such a system should be more

thoroughly researched: The presumption of objectivity is the root of subjectivity.

how to mitigate the bias of the judicial system with rules of procedure

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