Legal Discourse and Racial Justice: The Urge to Cry 'Bias!'

30 Pages Posted: 27 Mar 2015  

Bruce A. Green

Fordham University School of Law

Date Written: March 25, 2015

Abstract

One who is convinced that a judge wrongly decided a case may sometimes be tempted to accuse the judge of bias, referring to unconscious social-group stereotypes and/or cognitive biases that fall under the rubric of “implicit biases.” The rhetoric is problematic, however, for various reasons. One is that the term “bias” in this context may be misunderstood to mean something different and unintended – either a disqualifying bias under judicial conduct rules or a conscious prejudice. Another is that, even if the intended meaning is clear, a judge’s implicit biases cannot fairly be inferred from a single wrong decision. To illustrate the problem with accusing judges of bias, given the term’s various meanings, the article focuses on recent federal litigation over NYC police stop-and-frisk policy in which (1) the district judge found “implicit bias” in police practices based on accumulated evidence and expert analysis, (2) the Second Circuit found that the district judge engaged in disqualifying judicial bias because of her comments in a prior related lawsuit and in the media, and (3) critics accused the Second Circuit of bias in making decisions that were hard to justify on either procedural or substantive grounds. The article concludes that, on balance, it is better to resist the temptation to import “implicit bias” rhetoric into critiques of individual judicial decisions.

Keywords: implicit bias, bias, judicial ethics, rhetoric, racial justice, stop-and-frisk

Suggested Citation

Green, Bruce A., Legal Discourse and Racial Justice: The Urge to Cry 'Bias!' (March 25, 2015). Georgetown Journal of Legal Ethics, Vol. 28, No. 177, 2015 Forthcoming; Fordham Law Legal Studies Research Paper No. 2584955. Available at SSRN: https://ssrn.com/abstract=2584955

Bruce A. Green (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

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