hidden biases v an open mind andrew green university of toronto faculty of law nov 5, 2015
TRANSCRIPT
Hidden Biases v An Open Mind
Andrew GreenUniversity of Toronto Faculty of Law
Nov 5, 2015
R. v. Fearon (SCC 2014)
• Two men, one with distinctive handgun, rob a jeweler
• Kevin Fearon arrested – Officer found cellphone on him – looked through texts
R. v. Fearon (SCC 2014)
• Two men, one with distinctive handgun, rob a jeweler
• Kevin Fearon arrested – Officer found cellphone on him – looked through texts
• No warrant – Fearon claimed search of his phone was illegal
“We did it”
R. v. Fearon (SCC 2014)Search was legal Search was illegal
R. v. Fearon (SCC 2014)Search was legal Search was illegalAppointed by: Appointed by:
Progressive Conservatives
Conservatives
Conservatives
Conservatives
Liberals
Liberals
Conservatives
Two Views of How Judges Make Decisions
Legal: “Judges are like umpires. Umpires don’t make the rules; they apply them … It’s my job to call balls and strikes and not to pitch or bat”
Chief Justice John Roberts, US Supreme Court
Political: “More and more people think that what’s important to us is political and that this is nine junior varsity politicians.”
Justice Stephen Breyer, US Supreme Court
United States Supreme Court2010-2012
Democratic Appointee Republican Appointee0
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Liberal Voting Rate
Liberal Voting Rate
United States Supreme Court
Union Civil Rights Criminal Procedure
Tax0
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Democratic AppointeeRepublican Appointee
What about the Supreme Court of Canada?
Liberal Appointee Conservative Appointee0
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Liberal Voting Rate
Liberal Voting Rate
How about Charter cases?
All Charter Criminal Equality Non-equality0
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Liberal AppointeesConservative Appointees
Design Matters
• Courts, like tribunals, have different designs that affect the influence of biases
• Most basic: How are tribunal members appointed?
• Focus on:– Who do you sit with on a panel?– How do training and norms help?
Who do you sit with on a panel?Three Judge Federal Court of Appeals Panels
RR RD DD0
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Republican AppointeeDemocratic Appointee
Who do you sit with on a panel?Probability of Plaintiff Winning
Sexual Harassment Sex Discrimination0
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All MaleAt Least One Female
Training and Norms
• The Wildlife Environment Protection Act prohibits ‘littering, disposing or depositing any form of garbage, refuse, junk or other debris’ on land designated as a national wildlife preserve.
• 400 ten-gallon reusable plastic dispensers of drinking water along 50 mile stretch of wildlife preserve on US-Mexico border.
• Participants received one of these sets of facts:– The defendants are construction workers who placed the dispensers
along stretch of border where they were constructing ‘border fence’ to keep out illegal immigrants.
– The defendants are immigration aid workers who left the water to be consumed by undocumented migrant farm workers who face high risk of dehydration attempting to cross border.
The Defendants DID Litter
Immigrant Aid Construction Workers0
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PublicJudges
The Defendants DID Litter
Immigrant Aid Construction Workers0
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"Liberal" Public"Conservative" Public"Liberal" Judges"Conservative" Judges
Hidden Biases v An Open Mind
• Tribunal Design Matters– Appointments– Composition of Panels– Training and Professionalism