Volume XXI

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

by Claire P. Donohue

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.

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