The Unexamined Life: A Framework to Address Judicial Bias in Custody Determinations and Beyond

Scholars and litigators alike have long wondered about what is on the minds of judges. Kahan et al. have studied how judges’ political commitments influence their perception of legally consequential facts. Sheri Johnson et al. confirmed the presence of implicit bias among a sample of judges and analyzed the relationship between that bias and the judges’ decision-making. In a seminal piece and subsequent work, Guthrie et al. attempted to identify archetypes of judicial bias and opined about how we might debias judicial determinations. This project both contributes to and redirects these conversations in several important ways. First, this piece takes the conversation about judging into a court that daily touches the intimate affairs of litigants—namely family courts. In so doing, the project attempts to bring the same rigor of discussion about judicial bias, and imagination about corrective action, into one of the lower courts where litigants are routinely poor, disenfranchised, or unrepresented. Second, the project specifically sees connections between judicial bias and the orientation to fact finding that judges are invited to take—namely that the judge is the only fact finder (there are no juries) and judges are invited to place their own worldview and experiences at the epicenter of the scene playing out before them, an invitation that is inapposite to unbiased, rational consideration of the lives of others. In focusing specifically on how judicial bias thwarts expansive views of mothers and mothering in the twenty-first century, the piece aims to highlight the ways in which courts are in (imperfect and controlling) conversation with societal norms, norms that silence non-dominant narratives. Lastly, the project notices how the law’s circumscribed examination of litigants’ lives and the blindness to the ways that judges’ lives constrict their world views stand in marked contrast to the orientation of therapists, where controlling for one’s self and attention to a nuanced sense of other is the foundation from which therapists listen to, and learn about, people. Therefore, the project engages interdisciplinary scholarship not just to discuss what bias and stereotyping are, but also to excavate the ways in which the schooling and support in counseling professions aim to abate the gravitational pull toward bias. From this scaffolding, the piece closes with concrete, actionable steps for the bench and bar to resist bias and invite reform

Client, Self, Systems: A Framework for Integrated Skills-Justice Education

As scholars and administrators look to experiential learning and clinical education specifically to cultivate practice-ready law school graduates there is worry amongst some clinicians that they must sanitize the experiential learning experience of its social justice bent, or at the very least dilute it, so as to make it marketable to the legal academy and the typical enrolled, or enrolling, law student. On the other hand, the time is particularly ripe for clinicians to recommit to clinical legal education\u27s social justice roots and remind the academy that social justice skills are relevant, transferable, and effective in preparing students for rigorous (but also humane and sustained) legal practice. Too often conversations such as these are framed as a debate: skills training versus social justice. This Article takes an alternative approach by insisting instead that the timeworn skills versus social justice debate misses an obvious point: clinical education\u27s social justice mission can be advanced by developing the skills dimension of social justice education. This Article, therefore, intentionally blurs the line between social justice education and skills education. Social justice is defined herein as having a skills dimension; meanwhile, the skills featured are described in a manner that demonstrates how they are enriched by contextualizing them in social justice. A starting premise is that social justice education is imperative for any institution wishing to act in accordance with our professional standards. A concluding sentiment is that training students in social justice skills meets many pedagogical goals for a varied student body. The framework that moves the Article from the starting premise to the pedagogical conclusions rejects a common approach to social justice in clinics: teaching skills alone while supposing that the client or project experience will provide the conversion moment. Rather, the proposed framework separates the curriculum into themes of client awareness, self-awareness, and systems awareness and developing an integrated presentation of the social justice imperatives and the essential skills within each category