There’s a very interesting paper by Rebecca Gill on social bias on SSRN. The paper looks at whether lawyer evaluations of judges in a biennial Nevada survey are prone to social bias. By comparing survey base judgments of judges with more detailed indicators of judicial competence (like reversal rates) it suggests that unconscious bias impacts on the assessment of women and ethnic minority judges.
The study may represent an interesting analogue for the QASA scheme where judges will be evaluating advocates. The judiciary have understandably reacted furiously to suggestions that they might be biased against particulars types of advocate. Gill’s paper is a reminder that bias may be unconscious but also that proper monitoring can be important in understanding whether there is a proper case for saying bias might exist. The judiciary might generally resist such monitoring as compromising their independence. I have also seen argued the idea that raising concerns about perceived bias threatens the judiciary. A concerning position in my view: suppress evidence and suppress dissent. The Gill paper warns that quick judgments about quality risk social bias more than thoughtful and carefully structured ones. Which camp judicial evaluation of advocacy falls into remains to be seen. The form is pretty simple, the criteria complex and somewhat subjective. Training will help, a bit. The system for monitoring however should be scrutinised with some interest.