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Monthly Archives: May 2017

What Judges Can Do About Implicit Bias

Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN.

For some years now, scholars have discussed the influence of implicit bias on decision-making. While many argue that conscious bias is decreasing,1 studies show that the impact of unconscious bias is significant. Although scholars, including Judge Andrew Wistrich and Jeffrey Rachlinski, have shown that judges possess such bias, judges—SCOTUS included—have not been sufficiently aware of the problem. The relatively recent change to the standard for dismissing a claim on a Rule 12(b)(6) motion illustrates this point.

In Bell Atlantic Corporation v. Twombly, Justice Souter formulated the new plausibility standard for deciding whether a claim should be dismissed. Later, in Ashcroft v. Iqbal, Justice Kennedy expounded on this new interpretation, stating that a judge should rely on her “judicial experience and common sense” to decide whether a claim should be dismissed. Despite the importance of this modern invocation, the Court cited no evidence to support relying on these intuitions. Scholars, including Steve Burbank, publicly questioned the use of this information as inviting subjective judgments by judges to dismiss cases that they disfavor. But courts continue to embrace this SCOTUS-endorsed phrase and employ it in their quest to decide whether claims should be dismissed. Should they?

Judge Wistrich and Rachlinski’s important contribution to a new American Bar Association book, Ensuring Justice: Reducing Bias, should call into question the Iqbal rule that courts use their judicial experience and common sense. The authors show that judges’ decision-making may be compromised by implicit bias and discuss what judges can do to combat this bias.

The authors first explain that people decide in two different ways: intuitive and deliberative. Intuitive decision-making is instinctual and emotional—referred to at times by psychologists as System 1 reasoning. Deliberative decision-making involves consciousness, effort, and time and is referred to at times by psychologists as System 2 reasoning. Where the two types of reasoning conflict, people—including judges—tend to rely on intuition.

But intuition can hamper judicial decision-making. For example, studies have shown that a number that is irrelevant to a determination of damages can influence a judge’s decision regarding damages and that a judge likely also will consider inadmissible evidence. Additionally, while judges may deny the influence of emotions, emotions are a part of intuitive decision-making. Based on irrelevant emotions, judges may decide an issue of statutory interpretation favorably for the defendant because of certain characteristics of that individual, such as why they took a drug. Intuition also tends to make people possess bias toward their own groups. For example, a study demonstrated that a group of judges exhibited bias toward litigants from their own state. Racial bias may be another type of in-group bias. Using the Implicit Association Test (IAT), the authors found that judges possess the same level of implicit bias against African-Americans as most lay adults.

These studies show judges are human—sharing problems that the rest of us face. Thankfully, judges can try to combat these issues. First, deliberative, System 2 decision-making can help judges avert their reliance on intuition—that is, knowing they have bias can help judges avoid their bias. Second, several different tests and methods can aid judges. For example, they can take the IAT, which permits them to understand that they may need to account for implicit bias and alerts others to the need for training judges who possess such bias. Because judges tend to think they are better than most at avoiding racial bias, actually taking the test will be a particularly useful first step to lessen the effects of bias.

In addition to awareness through the IAT, the authors propose a variety of ways to combat bias, only a few of which I highlight here. Increasing from one to three the number of trial judges who decide any important issue is a particularly innovative, interesting proposal. While the authors recognize the difficulty of implementation given the current allocation of resources, their idea is compelling because of the noted research on how outcomes improve by increasing diversity on appellate panels. Additionally, I want to point out that historically the importance of more than one judge deciding an issue was recognized. In late eighteenth-century England, a panel of three judges would determine issues such as whether a new trial should be ordered in a case or whether a case should be dismissed on a demurrer.

The authors propose a number of other ways to reduce implicit bias in the judiciary. Another favorite of mine is mindfulness meditation. Mindfulness is popular these days. It’s used in companies and classrooms to train people to recognize their thoughts and emotions that arise, but to let go of them to be in the present. We encourage students at the University of Illinois to consider practicing it to reduce stress. The authors argue that mindfulness may help judges curb their reliance on inappropriate reactions.

Judge Wistrich and Rachlinski recognize that there are also indirect ways that implicit bias can be countered. For example, judges may rely less on intuitive decision-making if the time for decision-making were increased and more written opinions were required.

The authors also emphasize that others who help judges, such as police and prosecutors, should be trained to combat the implicit bias that they possess.

Judge Wistrich and Rachlinski’s chapter and previous work on implicit bias in the judiciary are incredibly important. The chapter helps us to understand influences on judicial decision-making and how to combat these problems. Through the chapter, the ABA book, and other efforts, such as training of judges by the Federal Judicial Center under the leadership of Judge Jeremy Fogel, important efforts to reduce implicit bias are underway.

Lastly, the authors’ chapter on implicit bias should specifically call into question the Supreme Court’s admonition in Iqbal that judges should rely on their “judicial experience and common sense”—a phrase—as I mentioned—that the trial and appellate courts continue to invoke in their opinions.

  1. Despite these arguments, my co-author and I show that quite a bit of conscious bias remains in employment settings. Sandra Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law (2017). []
Cite as: Suja A. Thomas, What Judges Can Do About Implicit Bias, JOTWELL (May 22, 2017) (reviewing Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at SSRN), https://courtslaw.jotwell.com/what-judges-can-do-about-implicit-bias/.

But the Feds Do It That Way!

Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).

Although state courts handle roughly ninety-five percent of all civil cases, federal procedural law dominates reform initiatives, academic discussions, and legislative attention. In line with this federal focus, there continues to be a push for state court systems to conform their civil procedural rules to the most recent amended version of the Federal Rules of Civil Procedure. In their new article, Stephen Subrin and Thomas Main reject this unreflective state emulation of federal procedure.

Subrin and Main begin by demonstrating that the original promise that the Federal Rules would lead to universal uniformity has not been met. They track this lack of uniformity across four dimensions.

First, the promise of trans-substantive uniformity has not been met. That desire pushes Federal Rules drafters toward a standards-based approach, as opposed to a rules-based approach, to procedural law. This, in turn, leads to substantial disuniformity in practice, given the discretion inherent in a standards-based system.

Second, the promise of uniformity across federal districts has not been met. Subrin and Main point to the explosion of Local Rules made pursuant to Federal Rule 83; the Civil Justice Reform Act of 1990, with its requirement that each district adopt a plan to address the expense and delay of litigation; and general orders, standing orders, special orders, scheduling orders, minute orders, and other practices of individual judges, all of which diminish uniformity across federal districts. See, e.g., Guidelines and Orders (D. Kan. 2017).

Third, prior to the adoption of the Federal Rules in 1938, the Conformity Act of 1872 provided intrastate uniformity of procedure (at least for suits at law) between state courts and federal courts sitting in the same state. While the adoption of the Federal Rules disrupted this intrastate uniformity, the drafters assured the bar that the states would soon adopt the Federal Rules and restore intrastate uniformity. While small-population states by and large adopted the Federal Rules as their state procedural model by the mid-1970s, nine out of ten of the largest-population states still have not. And, Subrin and Main claim, even the adopting states themselves often decline to enact newly promulgated, substantial amendments to the Federal Rules.

Fourth, because they assumed states would adopt the Federal Rules as a model, the drafters promised interstate uniformity of procedure as well. For the reasons recounted above, this promise has not been met, either. Subrin and Main’s point in demonstrating these failings in the creation of intra-jurisdictional uniformity is to suggest that the entire goal of creating unity by way of textual rule is quixotic. Thus, they suggest, the entire goal of seeking state and federal procedural unity is not a sound one.

In the second half of the article, Subrin and Main more pointedly address why states’ unreflective emulation of the Federal Rules constitutes poor policy. They offer numerous grounds for consideration:

  1. The Federal Civil Rules Advisory Committee has been biased toward defendants for decades, recounting a series of studies in support of this proposition. The Federal Committee obsesses over “big discovery” cases, although such cases form a very small statistical slice of the federal civil docket, (I hope the reader will excuse one lengthy parenthetical, but this is a point worth repeating often: There is no empirical evidence for the idea that discovery is explosively expensive in the overwhelming majority of cases. See Emery G. Lee III & Thomas E. Willging, Fed. Judicial Ctr., National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference 43 (2009), (concluding that, at the median, discovery cost about 1.6% of the stakes for plaintiffs and 3.3% of the stakes for defendants in 2009 with the median stakes coming in at $160,000); Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 Duke L.J. 765, 773–74 (2010) (finding that “[discovery] costs are generally proportionate” to client stakes in the litigation); Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. Rev. 525, 525, 531 (1998) finding similar results just ten years earlier); see also James S. Kakalik et al., Inst. for Civil Justice, Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data xxvii (1998), http://www.rand.org/pubs/monograph_reports/2009/MR941.pdf (“Discovery is not a pervasive litigation cost problem for the majority of cases.”). Explosive discovery cost cases account for 5%-15% of cases, depending on the year or the study. See, e.g.,  Suja A. Thomas & Dawson Price, How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process, 15 Nev. L.J. 1141, 1147–49 (2015).) much less the state court dockets.
  1. State and federal systems face meaningfully different dockets and different docket concerns. Awards in state court are radically lower, with nearly 75% of matters resolving for less than $5200. More parties are unrepresented in state court, with 75% of matters involving at least one pro se party. Matters resolve more rapidly in state court, with nearly 75% of matters coming to resolution in less than a year. And state-court cases skew greatly toward non-complex collection actions, with contract claims accounting for 66% of the state dockets and torts accounting for but 7% of the docket.
  2. The multiplicity of post-1938 amendments to the Federal Rules have rendered federal procedure more expensive to litigants, more time consuming, and more subject to judicial discretion. Doubling down on the expense point, they argue that the federal approach requires more judicial-branch financial resources than most states can afford.
  3. States can and should experiment with procedure.

There is much to appreciate in this paper. Subrin and Main’s argument constitutes a helpful reminder that state courts are not a discount brand of the federal courts. They are different institutions performing different tasks, working under different funding models, and serving different stakeholders. As someone who works on his state civil rules advisory committee, I appreciate the reminder that the needs of the state courts often are substantially different from those of the federal system’s. I fully embrace their full-throated federalism approach in principle.

Other aspects of the paper, however, gave me some pause. Subrin and Main express great discomfort with district court discretion in procedure, typically on the ground that a standards-based approach does not lead to uniformity. Assuming this is true, I do not see why a state court system should overly care about uniformity in procedural outcomes per se, assuming uniform application of a discretionary standard. This is to say, I do not see Subrin and Main make the argument that discretionary standards per se are to be avoided in state courts where, one presumes, there is not a historical commitment to uniformity akin to that found with the Federal Rules. Discretion often is good. Implementing state procedural policy though adjudication could avoid many of the problems with rules in the first place, because case-by-case decisionmaking is more flexible, dynamic, and incremental than rulemaking, in addition to being cheaper and easier to utilize in some circumstances.

For these reasons, administrative law—which is my favored interpretive approach to procedural matters—contains several doctrines that allow administrators to exercise equitable discretion and soften the hard edges of bright-line rules in particular cases. As Glen Staszewski and I have discussed elsewhere, trial-court discretion can be a sound procedural policy precisely because trial-court judges are typically better situated than rules drafters or appellate judges to make fine-grained procedural decisions based on their relevant experience and perspective.

Several of Subrin and Main’s arguments described above can be fairly grouped under an agency-capture heading. To be sure, the federal Civil Rules Advisory system has flaws—big ones, as I have outlined in prior work. Yet there may still be good reason for states to adopt the content of the Federal Rules. First, state-court rule drafters are not freed from these same political and capture concerns. Many states craft rules as statutes. Yet, I do not believe state legislators en masse will have greater expertise in this area than the Federal Advisory Committee or be less pressured from intensive interest-group lobbying than the Federal Advisory Committee. Often, a policy of “Our state follows the federal rules” stops a lot of injury off the top. Second, even in states that have advisory drafting committees, there is little evidence that these drafters will not have biases and concerns over capture, be they pro-defense or otherwise, similar to the Federal Advisory Committee’s. Third, as Subrin and Main argue, state judiciary budgets are under extreme stress, meaning there are no funds for the empirical work, which we have at the federal level, that should inform sound state rule creation. Lastly, because the Federal Advisory Committee’s work is high-profile, various interest groups can organize to follow the Committee’s recommendations closely and object to reforms these competing interest groups deem ill-advised. For example, in response to the aggressive anti-discovery amendments flowing out of the 2010 Duke Conference, more than 2300 comments were lodged with the Federal Committee. These organized movements forced substantial changes to the amendments proffered. It is not clear to me that proposed state procedural reforms have the same avenues for dissent, even if they are as closely watched as the Federal Committee’s work—which seems a dubious proposition in many states to begin with. The point is that a preference for state-level rulemaking should not idealize state rule-drafting processes. They make sausage in the state house as well.

These thoughts aside, any serious student of procedure should read this piece. It is thoughtful. It is provocative. It is well researched. And it is a lot of fun to read. Download it while supplies last!

Cite as: Lumen N. Mulligan, But the Feds Do It That Way!, JOTWELL (May 8, 2017) (reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016)), https://courtslaw.jotwell.com/but-the-feds-do-it-that-way/.