Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial

Melissa L. Breger *

All people harbor implicit biases—which by definition, are not always consciously recognized. Although trial judges are specifically trained to compartmentalize and shield their decisions from their own biases, implicit biases nonetheless seep into judicial decision making. This article explores various strategies to decrease implicit bias in bench trials. Questions are then raised about whether a judge who has faced bias personally would be more amenable and more open to curbing implicit bias professionally. Ultimately, does diversifying the trial court judiciary minimize implicit bias, while also creating a varied, multidimensional judicial voice comprised of multiple perspectives? This article will explore this potential interplay between diversifying the trial court judiciary and reducing implicit bias, while urging future quantitative research.

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*  Professor of Law, Albany Law School. J.D., 1994, University of Michigan Law School; B.S., 1991, University of Illinois at Urbana-Champaign. Thank you to Judge Rachel Kretser who invited me to present a very early iteration of this article in March 2017 during a conference entitled, Balancing the Scales of Justice: The Impact of Judicial Diversity after the screening of the Pioneering Women Judges documentary. Thank you to the audience at Boston University’s Diversity & Law Association for inviting me to present this paper in April 2017. I am grateful for the feedback on earlier drafts by Professors Deseriee Kennedy, Jean Sternlight, Christine Sgarlata Chung, and Beverly Moran. Many thanks for the excellent research assistance of Ashley Milosevic, Nicole Finn, Konstandina Tampasis, and Robert Franklin.


Intellectual Property and Human Rights 2.0

Peter K. Yu *

Written in celebration of the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greater methodological engagement to refine existing human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of human rights in the intellectual property area. This article begins by briefly recapturing the past two decades of scholarship on intellectual property and human rights. It documents the progress scholars have made in this intersectional area. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take the academic discourse to the next level. It highlights three dominant research methods that have been used in this intersectional area: comparative methods, quantitative assessments, and contextual analyses. The second half of this article identifies the contributions a robust discourse on intellectual property and human rights can make to the future development of the intellectual property regime, the human rights regime, and the interface between these two regimes. Responding to critics and skeptics in the intellectual property field, the article concludes by explaining why human rights discussions in the intellectual property area will provide important benefits to the future development of the intellectual property regime, especially in relation to developing countries.

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        *    Copyright © 2019 Peter K. Yu. Professor of Law, Professor of Communication, and Director, Center for Law and Intellectual Property, Texas A&M University. This article benefited from discussions with the participants of a number of events at which the author explored issues at the intersection of intellectual property and human rights, including the Annual Meeting of the Norwegian Copyright Society in Oslo, Norway, the Third Business and Human Rights Scholars Conference at Santa Clara University School of Law, the “Global Genes, Local Concerns” Symposium at the University of Copenhagen in Denmark, a workshop organized by the International Centre for Trade and Sustainable Development in Geneva, Switzerland, the 4th International Intellectual Property Scholars Roundtable at Duke University Law School, the International Law Weekend 2014 at Fordham University School of Law, the Workshop on “Patent Regimes and the Right to Science and Culture” at Yale Law School, and the “Intellectual Property and Human Rights” Conference at American University Washington College of Law. The author is grateful to the participants of these events for their valuable comments and suggestions