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35 B.C. J. L. & Soc. Just. 229 (2015)
Cultural Bias in Judicial Decision Making

handle is hein.journals/bctw35 and id is 238 raw text is: CULTURAL BIAS IN JUDICIAL DECISION MAKING MASUA SAGIV* Abstract: This Essay describes the phenomenon of cultural bias injudicial deci- sion making, and examines the use of testimonies and opinions of cultural ex- perts as a way to diminish this bias. The Essay compares the legal regimes of the United States and Israel. Whereas in the United States, the general practice of us- ing cultural experts in courts is well developed and regulated, the Israeli legal procedure has no formal method for admitting cultural expert testimony, and ex- amples of opinions or testimonies of cultural experts in the Israeli legal system are sporadic. The Essay further argues that social science evidence is an essential but insufficient means of reducing the cultural bias ofjudges. Judges' reliance on cultural experts can also be fueled by a preexisting cultural agenda disguised as an informed judgment. The Essay concludes with a suggestion of measures that can be implemented alongside the use of cultural experts in order to increase judges' awareness of the cultural bias and mitigate its consequences. INTRODUCTION The tension between the legal procedure's goals of neutrality, equality, and impartiality, and the fact thatjudges are human beings that are influenced by their life experiences, has been vastly debated in legal and psychological literature. This Essay focuses on one among many existing biases in judicial decision making: cultural bias. When judges adjudicate cases, they use not only legal knowledge, but also knowledge about the world. The source of the judges' knowledge about the world is their common sense, which is the intangible cultural system that contains people's informal knowledge about the world from their social group's point of view. Insomuch as the judges' interpretation about the world is © 2015, Masua Sagiv. All rights reserved. * Ph.D. Candidate, Zvi Meitar Center for Advanced Legal Studies, Buchmann Faculty of Law, Tel Aviv University. LL.B. (Law & Political Science), Bar-Ilan University Faculty of Law. LL.M., Columbia University School of Law. E-mail: masuasagivgpost.tau.ac.il. I was fortunate to have the opportunity to present this Essay at two workshops foryoung scholars, the Yale Law School 3rd Doc- toral Scholarship Conference and the Law in a Changing Transnational World workshop that took place at Tel Aviv University Law Faculty. I wishto thank the participants of bothworkshops for their excellent comments and insights. I would like to extend particular gratitude to Menachem Mautner, James T. Richardson, Yofi Tirosh Roman Zinigrad, Mohsin Alam Bhat and Benjamin Perryman for their helpful comments. 229

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