Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.
-
Upload
nigel-davis -
Category
Documents
-
view
215 -
download
0
Transcript of Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.
![Page 1: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/1.jpg)
Hidden Biases v An Open Mind
Andrew GreenUniversity of Toronto Faculty of Law
Nov 5, 2015
![Page 2: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/2.jpg)
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
![Page 3: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/3.jpg)
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”
![Page 4: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/4.jpg)
R. v. Fearon (SCC 2014)Search was legal Search was illegal
![Page 5: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/5.jpg)
R. v. Fearon (SCC 2014)Search was legal Search was illegalAppointed by: Appointed by:
Progressive Conservatives
Conservatives
Conservatives
Conservatives
Liberals
Liberals
Conservatives
![Page 6: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/6.jpg)
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
![Page 7: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/7.jpg)
United States Supreme Court2010-2012
Democratic Appointee Republican Appointee0
10
20
30
40
50
60
70
Liberal Voting Rate
Liberal Voting Rate
![Page 8: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/8.jpg)
United States Supreme Court
Union Civil Rights Criminal Procedure
Tax0
10
20
30
40
50
60
70
Democratic AppointeeRepublican Appointee
![Page 9: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/9.jpg)
What about the Supreme Court of Canada?
Liberal Appointee Conservative Appointee0
10
20
30
40
50
60
70
Liberal Voting Rate
Liberal Voting Rate
![Page 10: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/10.jpg)
How about Charter cases?
All Charter Criminal Equality Non-equality0
10
20
30
40
50
60
70
Liberal AppointeesConservative Appointees
![Page 11: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/11.jpg)
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?
![Page 12: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/12.jpg)
Who do you sit with on a panel?Three Judge Federal Court of Appeals Panels
RR RD DD0
10
20
30
40
50
60
70
Republican AppointeeDemocratic Appointee
![Page 13: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/13.jpg)
Who do you sit with on a panel?Probability of Plaintiff Winning
Sexual Harassment Sex Discrimination0
5
10
15
20
25
30
35
40
All MaleAt Least One Female
![Page 14: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/14.jpg)
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.
![Page 15: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/15.jpg)
The Defendants DID Litter
Immigrant Aid Construction Workers0
10
20
30
40
50
60
70
PublicJudges
![Page 16: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/16.jpg)
The Defendants DID Litter
Immigrant Aid Construction Workers0
10
20
30
40
50
60
70
80
"Liberal" Public"Conservative" Public"Liberal" Judges"Conservative" Judges
![Page 17: Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015.](https://reader033.fdocuments.us/reader033/viewer/2022051821/5697c0011a28abf838cc24ae/html5/thumbnails/17.jpg)
Hidden Biases v An Open Mind
• Tribunal Design Matters– Appointments– Composition of Panels– Training and Professionalism