Procedural Bias
This piece defines and utilizes what I term "procedural bias." Recent high-profile cases reignited arguments that judges may be biased based on their minority racial, gender, or sexual identity. At the same time, the Supreme Court in Iqbal explained that judges should rely on their "judicial experience and common sense." The current literature on judicial identities is almost exclusively concerned with the appearance of bias as reflected in potentially biased final rulings. This perspective is unnecessarily restrictive; lawsuits matter not just because of their final rulings on substantive law. My preliminary research suggests that judges of a particular background are not more likely than other judges to issue final opinions that are favorable to groups that reflect aspects of the judge's identity. However, judges with nontraditional backgrounds are more likely to rule favorably on motions that push a case toward trial. As such, the question is not whether judicial "bias" leads to different final rulings, but how different perspectives affect the ability of litigants to develop their case.
This reframing raises a host of important, under-theorized issues. The real cost of "bias" is not altered or "distorted" substantive law, but the cost of litigation. The benefit of bias is that it permits the use of litigation to develop a public record, sheds light on an issue of public significance, and gives plaintiffs a chance to tell their story. I argue that process, not outcome, is where we should look for the implications of judicial identities and bias.
DRAFT. Please do not cite without permission.
