Unchecked Biases in Family Law Are Pervasive and Harmful

• Author: Mark B. Baer
• Pages: 6-10

6 FAMILY ADVOCATE www.shopaba.org

The issue of bias is receiving increasing attention

because, left unchecked, biases cause errors in

judgment, which can result in various degrees of

harm. In her recently published book e

Inclusive Leader: Taking Intentional Action for

Justice and Equity, Dr. Artika R. Tyner presents various

studies that reveal the particularly high prevalence of implicit

bias in the legal eld. Meanwhile, family law has a direct

impact on “the welfare of the family and society,” as recog-

nized in e Bounds of Advocacy, issued by the American

Academy of Matrimonial Lawyers in 2000.

Implicit and Explicit Biase s

Biases are preferences and opinions, which are not the

product of thorough research and thoughtful analysis.

Objective statements of fact are not legitimately impacted by

bias. e same is not true of subjective claims, and the more

subjectivity involved, the greater the potential for bias to

come into play because of reliance upon interpretation and

human analysis. For instance, words mean dierent things to

dierent people. One denition of bias is “an unfair personal

opinion that inuences your judgment.”

In the recently published book Noise: A Flaw in Human

Judgment, Daniel Kahneman, Olivier Sibony, and Cass R.

Sunstein explain that to appreciate, comprehend, and address

“error in judgment,” an understanding of both bias and noise

is essential. ey also explain that unlike bias, noise is rarely

discussed or even acknowledged, which is why this article

includes many references to that book. e authors recom-

mend distinguishing between biases and noise for a variety of

reasons, including determining the proper interventions

Unchecked

Biases in

Family Law

Are Pervasive

and Harmful

BY MARK B. BAER

needed to reduce them. ey dierentiate between biases and

noise as follows:

Psychological biases create statistical biases [measure-

ments or judgments that mostly deviate from the truth

in the same direction] when they are broadly shared.

However, psychological biases create system noise

[unwanted variability of judgments] when judges

[decision-makers] are biased in dierent ways, or to a

dierent extent. Whether they cause statistical bias or

noise, of course, psychological biases always create error.

e denition of bias used herein includes noise.

Left unchecked, biases cause people to constrict and

distort the information they receive and consider, which

leads to impaired thinking. Unless someone’s intention or

purpose involves that which is “not morally right, or not

treating people in an equal way,” the denition of unfair,

there are no benecial biases. is is an extremely important

point to grasp because many people believe otherwise and

insist that it is impossible and too burdensome to even

attempt to manage innite numbers of biases and that it

makes more sense to focus on just a few of the “more

harmful” ones. When, if ever, is constricting and distorting

the information heard, understood, and considered benecial

to one’s decision-making? Along those lines, in Noise, the

authors state:

[T]he human mind is imperfect—it is both biased and

noisy. . . . [B]ias and noise are independent and

additive sources of error. . . . It is unfair for similarly

Published in Family Advocate, Volume 44, Number 3, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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