The Role of Bias in Economic Models of Law

Behavioral economics has highlighted the impact of various biases on economic outcomes. This essay reviews how biases have been incorporated into economic models of the law and the resulting implications for the assessment of different legal rules and policies. It focuses on two contexts. The first concerns biases that affect consumer purchases of risky products. Using a standard accident model that incorporates various forms of consumer bias, we discuss how bias can affect the efficient assignment of liability for product-related accidents. The second context concerns biases that affect the administration of law, particularly regarding the adjudication of guilt, the lawmaking function of trials, and criminal sentencing. We examine procedural rules like precedent and sentencing guidelines, both of which are aimed at curtailing judicial bias.

5. Impartiality and independence

This chapter examines the role of impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful) and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process and as a flaw in the substance of a decision maker’s reasoning.

Judicial Independence and Impartiality

This chapter focuses on national and international concepts of judicial independence and impartiality. As the Bologna and Milan Global Code of Judicial Ethics (2015) makes clear, judicial independence requires that Judges be independent of the legislative and executive branches of the government. Clearly, international Judges must be entirely independent of both governments and international organizations in the performance of their judicial duties. And they must be impartial and avoid any conduct which might give an appearance of partiality; they must not sit on any case where there is a reasonable suspicion or appearance of partiality, and must treat the parties equally, with no partiality or prejudice, with no fear or favor. In international criminal tribunals, this requires treating equally the prosecution and the accused. The chapter then discusses judicial selection, judicial assignments, Court Presidents and judicial bias.

Constitution-As-Commons

Extrapolating from the ideas of Elinor Ostrom and scholars of the commons, the conceptualization of the Constitution as a commons opens the Constitution out to radical, insurgent readings that redefine belonging and ownership—it is no longer the property of state legislatures and courts to (mis)interpret in the service of political expediency/judicial bias/equivocation. It is the people who, through collective action and civic engagement, hold institutions to account and provide the tools and experiences that must shape constitutional interpretation. This article will examine the emergence of the constitution-as-commons as the space for a public, shared, collectively crafted jurisprudence of citizenship, occupying the commons of the nation and the commons that the Constitution in fact is, bringing space and belonging together in unanticipated ways. What are the implications for courts and for the futures of the Constitution of the rupture of a sequestered “constitutional jurisprudence” through the articulation of an expansive, inclusive constitution-as-commons by “we, the people?”

‘Ain’t Misbehavin’

This article looks at recent cases of judicial misconduct and alleged judicial misconduct. These include examples of judicial bias, or the appearance thereof, in relation to parties and to lawyers and failure to recuse oneself, judicial reaction to press criticism, judges using their court computers to watch pornography, a judge responding to a defendant’s bad language by using bad language herself, a judge with outdated views about rape and whether another judge’s comments about rape in passing sentence were validly criticized. The way in which the Judicial Conduct Investigations Office and other judges have dealt with complaints of judicial misconduct is discussed and in some cases found wanting. Keywords: judicial misconduct, judicial discipline, bias, recusal, pornography, rape

Legal Issues in Divorce for Transgender Individuals

This chapter examines the legal issues faced by transgender people in divorce and child custody cases. Despite trans people’s increased visibility, and gains in legal rights and protections, many people—including judges—continue to harbor misconceptions about transgender people. Attorneys representing transgender clients must anticipate the possibility of judicial bias and take proactive steps to address it. Attorneys must be prepared for the unique legal issues that arise when a spouse transitions during an existing marriage. Even under modern “no-fault” divorce regimes, attorneys must be prepared to rebut the claim that coming out as transgender constitutes misconduct or justifies awarding the other spouse more marital property or spousal support. In custody cases, attorneys must anticipate and rebut misinformation and negative judicial attitudes toward transgender parents. Finally, even after Obergefell v. Hodges (2015), attorneys representing transgender clients who married before Obergefell must be prepared to explain why that decision is retroactive.

5. Impartiality and independence

This chapter examines impartiality and independence in public administration. The topics that are discussed include judicial bias, administrative bias, waiver, determining civil rights, compound decision making, and the value of independence, with an explanation of the requirement of an independent tribunal in Art 6 of the European Convention on Human Rights. The chapter also explains the difference between bias (which is unlawful), and a lack of impartiality (which may be lawful), and explains when bias will be presumed. Bias is presented as both a lack of due process, and also as a flaw in the substance of a decision maker’s reasoning.

Bias, insecurity and the level of trust in the judiciary: the case of Brazil

Are judges biased in their decisions? If so, what are the consequences? We propose a conceptual model that estimates the effects of judicial bias and insecurity on the trustworthiness of courts. Additionally, we empirically assess evidence of bias among justices at the Superior Court (STJ). For this purpose, we analyzed 1,412 decisions from 1998 to 2008. Results do not show consistent strong bias toward either the debtor or the creditor. We test a second hypothesis: that Brazilian courts are unpredictable, creating high levels of judicial insecurity. Empirical results corroborate this idea. Finally, we relate the empirical results found in this paper with the conceptual model initially developed, and provide evidence measured by a nationwide survey on the trustworthiness of the judiciary. As our model predicted, preliminary results indicate that citizens have lower levels of trust in the judicial system if courts and judges are biased and unpredictable.