UCLA Law Review Volume 59, Issue 5


Implicit Bias in the Courtroom

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law

In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this insight, we present a justification for favoring rulemakings over adjudications by analogy to administrative law. Third, we couple this preference for rulemaking over adjudication with three criteria detailing when this presumption should apply. Namely, we conclude that civil procedure issues are better resolved by reference to the Advisory Committee if the issue (a) requires an interpretation of a rule that rests substantially upon legislative facts, (b) calls for the resolution of a Chevron step-two-like ambiguity, or (c) seeks a resolution that approximates a legislative rule. Only when traditional tools of statutory interpretation—text, history, and purpose—will resolve a case should the Court retain its disposition in the adjudicatory form. Fourth, we offer the mechanisms for pragmatically achieving this preference for rulemaking both under existing law as well as through a new “referencing” procedure, without unduly constraining the flexibility needed by lower courts to implement the civil rules effectively. In so doing, we contend that expanding the Court’s use of rulemaking not only should result in better rules but should also bolster the democratic legitimacy of the Court’s civil-rules decisionmaking.

Techniques for Mitigating Cognitive Biases in Fingerprint Identification

Since the U.S. Supreme Court’s holdings in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire Co. v. Carmichael, which articulated that judges have a gatekeeping responsibility to ensure that all expert testimony is sufficiently reliable, academic critics have reviewed forensic science evidence with greater scrutiny. While fingerprint identification has historically been touted as infallible, recent empirical research has revealed that this is far from the case. Fingerprint examiners do make mistakes—some of which can be attributed to a set of inherently human cognitive biases that we all share. Scholars have increasingly studied the role that cognitive biases can play in fingerprint examiner decisionmaking. Until now, however, scant attention has been paid to ways in which these biases can be mitigated. In this Comment, I contribute to filling that void by identifying and examining debiasing techniques that could be used to combat cognitive biases in the fingerprint identification domain, as well as by suggesting ways in which these techniques could potentially be implemented in forensic science laboratories.

Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases

Three years ago, the U.S. Congress passed the Credit CARD Act of 2009. This ambitious piece of consumer protection legislation sought to relieve consumer debt burdens by targeting credit card industry abuses and providing new disclosures. Congress acknowledged that the legislation would not help individuals who borrow irresponsibly on their credit cards, implicitly assuming that it could not encourage more provident decisionmaking. This assumption was a mistake. Human decisionmakers are susceptible to behavioral biases—predictable deviations from perfect rationality. This Comment discusses how these biases encourage consumers to take on excessive credit card debt and calls for Congress to consider how legislation can counteract behavioral biases in the credit card context. It concludes by discussing several possible reforms in three main categories—making costs of credit card use more salient, equipping credit cards with commitment devices, and prohibiting practices that encourage consumer overconfidence.

Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law

Since Graham v. Connor, the U.S. Supreme Court’s 1989 opinion establishing the Fourth Amendment standard for assessing whether a police officer’s use of force was unconstitutionally excessive, the law has slowly developed through a body of narrow and fact-specific precedents that guide judges’ excessive force and qualified immunity analyses. Recently, the Ninth Circuit—the source of many of the most influential excessive force opinions—decided three contentious cases regarding when an officer’s use of a taser is unconstitutional. On one view, these cases raise novel questions about how to apply the Fourth Amendment standard for nontraditional and technologically advanced uses of force. In this Comment, however, I argue that these cases predominantly present issues that pervade all excessive force jurisprudence and illuminate judicial trends and tendencies disadvantaging plaintiffs while advantaging defendant officers. In light of this understanding, my proposal is not for new rules or standards in taser cases. Rather, I suggest that courts, first, faithfully apply Graham’s standard of balancing the nature and quality of the Fourth Amendment intrusion against the government’s interest in the officer’s use of force and, second, employ a reality-based approach in deciding whether the officer is entitled to qualified immunity. For courts to do this, excessive force jurisprudence must evolve to match the development of police weapons technology. That evolution includes fully understanding and considering the distinctive effects and risks posed by tasers and presuming that a reasonable police officer would have done the same.