Scholarship Update

The role of the GM lawyers in the ignition switch case has received scrutiny, including by the legal ethics community. But, until now, the scandal has not been explored from a behavioral perspective. That has now started to change with the publication of Inside Lawyers: Friends or Gatekeepers, Professor Sung Hui Kim’s most recent consideration of the role of inside counsel. The article, which responds to a critique of her views about the gatekeeping role of inside counsel, once again explores why lawyers (such as in the GM case) possess a host of psychological biases that make it difficult to uncover and report misdeeds committed by others inside an organization. Prof. Kim’s current article, as well her earlier work that explore these psychological phenomena in more detail (see here, here and here), are a must read for anyone interested in the behavioral aspects of corporate legal ethics.

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Batson: Pretext? Or Implicit Bias?

Most of us probably recall Batson, the case in which the Supreme Court held that a criminal defendant could challenge his conviction if he or she could convince a judge that jurors of a protected class were intentionally excluded because of their membership in that class. Recently, the Missouri Court of Appeals for the Eastern District published an opinion in the case of Missouri v. Rashad in which the issue was whether the prosecutor’s dismissal of two African American jurors was pretextual.  This case was interesting because the prosecutor admitted that, in the case of one African-American juror, he had made a mistake in not dismissing a similarly situated Caucasian juror.  The question for the court was whether a prosecutor’s oversight is an excuse for differential treatment.  The court answered that it was, seemingly because Batson requires intentional exclusion.

What is truly notable about this opinion is the concurrence, written by Chief Judge Lisa Van Amburg, which takes issue with Batson because it does not address implicit bias. In its simplest form, implicit bias is the unconscious tendency most people have to favor particular groups of people and disfavor others.  The Implicit Association Test (IAT) is a test in which people are asked to pair items, and their reaction time is measured.  There are a number of different versions of this test, and each measures a different type of bias.  In one, people pair black and white faces with positive or negative words.  Most people are faster when they are pairing white faces with positive words than when they are pairing black faces with positive words.  Judge Van Amburg’s point in her concurrence is that when an attorney makes an “honest mistake” by dismissing a black juror, but not a similarly situated white juror, he may well be exhibiting implicit bias.  Moreover, it is likely that this type of implicit bias occurs more broadly in the selection of jurors, and in a variety of other areas in the criminal justice system.

The opinion and concurrence can be read here: Missouri v. Rashad