Saturday, April 22, 2023
As I’ve mentioned before, I was lucky enough to teach a seminar on bias in legal analysis and writing this semester. Much of the class focused on implicit bias and the way we can use words as lawyers to help find and remove bias. Occasionally, we encountered bias in court opinions, legal scholarship, and the like that was almost express. While easier to spot and remove than subtle implicit bias, overt bias also reminds us, as lawyers and legal writers, to scrutinize our own writing.
One example of clear bias in the media that could help us as legal writers came at the end of the NCAA basketball tournament this year. Students and I were struck by social media and sportscaster disparate discussion of a strong, powerful player for the University of Iowa and a strong, powerful player for Louisiana State University. These women, Angel Reese of LSU and Caitlin Clark of Iowa, are incredible competitors who each led their teams to the NCAA championship game. Along the way to the final game against each other, which LSU won, both played beautifully and both sported almost identical ponytails. Both also made the same “you can’t see me” taunt to opponents during the tournament by waving their outstretched hands in front of their faces, to show they were too quick for opponents to see and stop. In response to these taunts, Clark faced praise, including from ESPN and pro wrestler John Cena, who invented the “you can’t see me” taunt, but Reese faced profanities and statements she was “classless.”
The difference: Clark is white, while Reese is Black. Our class had a robust discussion of what the different language used to describe these similar athletes using identical taunts in the same tournament meant to us as legal writers, and the students inspired me to share this incident here.
As Mike Freeman of USA Today explained, “Clark is a skilled trash talker and used the John Cena "you can't see me" taunt multiple times throughout the tournament.” Mike Freeman, Reaction to Angel Reese taunting Caitlin Clark shows the double standard for Black Athletes, https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/ (Apr. 3, 2023). Freeman continued, “[i]n the closing moment of the championship game, Reese did the same taunt and also pointed to her hand, signaling she was getting a championship ring.” Id.
Aisha Sultan of the St. Louis Post-Dispatch noted Clark often taunted opponents. Sultan explained: the “you can’t see me,” gesture “had been used by Clark toward a Louisville opponent in the Elite Eight” round of the NCAA tournament, and “ESPN even produced a segment hailing Clark as the “Queen of Clapbacks” featuring these moments of taunting by her.” Aisha Sultan, Backlash to Angel Reese raises question: Which athletes get called 'classless'?, https://www.stltoday.com/lifestyles/parenting/aisha-sultan/sultan-backlash-to-angel-reese-raises-question-which-athletes-get-called-classless/article_fa75a30d-67d7-56c1-aac6-ea09c00b638f.html (Apr. 3, 2023). “The reaction to Reese [using the taunt in the final game], however, included Dave Portnoy, founder of the site Barstool Sports, tweeting that she was a ‘classless piece of (expletive)’ and Keith Olbermann calling her an ‘(expletive) idiot’ on Twitter.” Id.
Freeman honed in on the use of language here, and his notes are especially helpful to appellate writers as we edit our work. For example, he described what he called stereotypes of sports as:
When Black players are aggressive, and talk trash, they are thugs and animals.
When white players are aggressive, and talk trash, they are passionate and fiery.
This stereotype goes back decades. Larry Bird was the greatest trash talker of all time but was celebrated for his passion. Tom Brady screamed at teammates and coaches and was viewed as scrappy. John Thompson's Georgetown Hoyas, who played defense with spirit and ferocity, were called thugs. Fight[ing] in hockey is seen as tradition. Fight[ing] in NASCAR is seen as cool and spirited. Fights in NBA games lead to white commentators asking: "Where are the fathers?"
What can we learn from this incident to catch less obvious bias in our own writing? The long answer: my class spent fourteen weeks looking at scholarship on writing and bias to help us start to answer this question, and removing bias takes work and careful attention. One shorter answer: many of the rules of good writing, like using active voice and direct sentence structure, help us avoid bias. Being attentive to our own underlying privilege and bias and asking a trusted colleague to proofread helps too. There are many thoughtful ideas on addressing bias in our legal publications. For just a few, consider recent articles, like I Think He’s Nice But He Might Be Mad About Something, 25 U.C. Davis Soc. J. L. Rev. 73, 99 (2021), and older scholarship, like Prof. Lucinda Finley’s Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886-97, 909 (1989).
I give this example of overt bias in sports discussions not as a suggestion appellate lawyers often show such bias, but as a reminder we all must be as thoughtful as possible in the words we choose. My students helped me see we should all take the time to edit for bias when we check for clarity and punctuation, and we should mentor new appellate writers to do the same.