Mandatory Anti-Bias CLE: A Serious Problem Deserves a More Meaningful Response

Abstract

This essay addresses the problematic convergence of two recent trends: (1) the expansion of jurisdictions requiring anti-bias training (ABT) as part of mandatory continuing legal education (CLE), and (2) the growing recognition among social scientists that such training, at least as currently practiced, is of limited effectiveness.

Forty-six American states require continuing legal education (CLE), and eleven of these states now require lawyer ABT as one facet of CLE requirements. I have previously criticized the mandatory CLE system because so little evidence supports the conclusion that it results in more competent lawyers. The central question tackled by this essay is whether there is any reason to believe that ABT requirements have had or will have any more impact on bias in the law than general CLE requirements have had on lawyer competence. The answer, unfortunately, seems to be no, or at least not as ABT requirements are currently defined and regulated.

Part I of this essay summarizes the very real problems that mandatory lawyer ABT aims to address: bias in the legal profession and bias against individuals caught up in the legal system. Part II describes the debate over mandatory lawyer ABT and the various requirements imposed by adopting states. Part III addresses the lack of empirical evidence or other reason to believe mandatory lawyer ABT is an effective response to bias in the law. Finally, Part IV considers an alternative path for mandatory lawyer ABT, one that engages in ABT research and responds to that research in ways that result in more intentional and meaningful ABT going forward.

Keywords: legal writing, continuing legal education, legal profession, diversity, bias, diversity training

JEL Classification: K10, K40