Vol. 10 No. 2 (February 2000) pp. 119-122.

A PENCHANT FOR PREJUDICE: UNRAVELING BIAS IN JUDICIAL DECISION MAKING by Linda G. Mills. Ann Arbor: The University of Michigan Press, 1999. 197 pp. Cloth $44.50.

Reviewed by Carla E. Molette-Ogden, Department of Political Science, State University of New York at Stony Brook.

In A PENCHANT FOR PREJUDICE, Linda Mills investigates the extent to which administrative law judges (ALJs) are biased in their handling of Social Security claims. She seeks to build on the past quantitative findings of bias in this area through a qualitative assessment of uniformity and affectivity in ALJs' decision-making process. Her assessment focuses on sixty-seven transcripts from disability hearings involving thirty-eight ALJs. In this book, Mills makes three arguments. First, she contends that the legal understanding of impartiality reinforces the fallacy that "emotion, in the form of bias, does not enter the hearing and decision-making process" (p. 7). Second, she posits that the transcripts can be interpreted for hidden or unconscious as well as explicit prejudice. Third, she argues that judges trained in law school may be ill-equipped to meet the complex mandate of uniform procedures and positive justice.

In chapter one, Mills defines key concepts and presents her theoretical arguments. Mills relies on the Supreme Court's definition of fairness that is the "absence of actual bias." Bias is the "leaning of the mind or an inclination toward one person or another" and prejudice is a "prejudgment or forming of an opinion without sufficient knowledge or examination". Mills explains that judicial impartiality and judicial bias are two different sides of the same coin. Judicial impartiality is the absence of bias which "involves positively or negatively prejudiced 'feelings or spirit' toward the claimants...precisely the kinds of feelings that judges are obligated by the ideal of judicial impartiality to expunge from their reasoning and decisions" (p. 12). Affectivity is "the emotion, feeling, predilection, and most relevantly the penchant for prejudice that judges have been trained to hide" (p. 23).

Mills draws on legal realism, critical legal studies, critical race theory, and feminist legal theory to theorize that conventional notions of judicial impartiality do not allow for attention to bias, which, in turn, constrains the achievement of fairness. Research in critical race theory and feminist legal theory connect the myth of objective judicial decision making to the oppression of people of color and women of all colors. In addition, Mills relies on social psychological studies to argue that "if judges, even those with low prejudices, are actively discouraged from reflecting on their stereotypes (insofar as they have been convinced that impartiality protects them from those beliefs), they too are likely to be held captive to those stereotypes" (p. 25). Indeed, she suggests that a confrontation of the bias present in decision-making is necessary to achieve fairness in the process.

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In chapter two, Mills lays out the doctrinal foundation for uniformity and affectivity in Social Security disability hearings. Five mechanisms are in place to ensure uniformity: the listings of impairments that form a standard measure of disabilities; a requirement that disabling conditions be verified by objective medical evidence; the medical-vocational guidelines, or "Grid," that consider vocational factors; a five-step sequential evaluation process that dictates the order in which decisions are made; and an appeals procedure that grants dissatisfied applicants a hearing before an impartial administrative law judge (p. 27). ALJs are also mandated to provide
affective justice through accommodation and engagement of claimants. Mills says that "legal safeguards designed to accommodate and engage such claimants as the unrepresented, the illiterate, the uneducated, those suffering from mental impairments, and those who do not speak English well are deeply embedded in legal doctrine and constitutional law" (p. 39). She also points out how the mandates of uniformity and affectivity are conflictual.

In chapter three, Mills provides a review of previous quantitative research in the area of bias in decision making in the Social Security system. Studies show that a race and gender bias exists in diagnostic and treatment decisions, which serves as the foundation for the disability decision-making process. Other research indicates the rules used by ALJs are likely to underestimate the claimants' need for benefits, especially for women of all colors. Numerous studies conducted by government agencies also point to inconsistent outcomes in the application of the rules, negatively affecting African American claimants and women of all colors. Of particular
importance to Mills is the 1992 GAO study ("Racial Difference in Disability Decisions Warrants Further Investigation"), which reviewed 700,000 cases involving white applicants and 245,000 cases involving African American applicants, all filed in 1983.

Chapter four describes the method and design of her study. Her sample consists of fifty federal court cases (sixty-seven ALJ hearing transcripts and decisions of Social Security claims) initially denied and then appealed to federal court. The cases amounted to about 2,500 pages of transcripts. She acknowledges that these cases might not reflect the typical case denied by ALJs, but these are the only Social Security files available to the public. These cases include all of the cases closed in San Francisco (17 cases) and Boston (10 cases) in 1990 and half of the cases closed (selected odd-numbered cases) in Chicago (23 cases) in the same year. The cases were begun as early as 1985. Mills selects these cities because the 1992 GAO study found that African Americans were severely disadvantaged there.
Thirty-eight ALJs were involved with these cases. Only two of the ALJs were women. She chooses a qualitative study unpack the findings of the quantitative studies, namely the 1992 GAO study, that detected racial and gender bias in the decision-making process.

To examine uniformity, in chapter four Mills focuses on the rules regarding "how ALJs introduce the hearing process, treat claimants' right to counsel, elicit testimony, help claimants obtain evidence and apply the so-called treating-physician rule, analyze claimants' failure to comply with prescribed treatment, and evaluate credibility" (p. 67). For each of these rules, she explains the criteria by which she determines whether or not the ALJs followed the rules. She finds uniformity lacking in several areas: when making

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introductions; when providing assistance to unrepresented claimants; through both deliberate and unconscious efforts to circumvent rules regarding gathering of evidence; in the application of the compliance-with-prescribed-treatment rule; and in credibility determinations (p. 100).

Chapter five presents an analysis of six transcripts to illustrate how ALJs are lacking in affectivity. Mills' interpretation of the exchanges between the claimants and the ALJs point to their failure to accommodate and engage the claimants with respect to the issue of representation and eliciting testimony. For example, in eliciting testimony, she shows how ALJs ask leading questions, infantilize claimants, act unnecessarily judgmentally, and speak rudely to the claimants.

Chapter six addresses ALJs' failure to accommodate and engage. She discusses how that failure reflects their stereotypical views of "certain kinds of impairments, members of certain racial and ethnic groups, people who are illiterate or uneducated, members of both sexes, but especially women, and people receiving benefits like workers' compensation and welfare" (p. 132). Although these stereotypical views of ALJs are usually subtle, conclusions of federal courts reviewing these decisions support Mills' interpretation.

Given her findings, in chapter seven Mills questions "whether judges, hired from pools of attorneys who are trained to value reason over emotion and rules over experiences, can fairly adjudicate the claims of some of our country's most subordinated people" (p. 154). She offers therapists or social workers as a reasonable alternative to judges. At a minimum, she suggests training for judges so that they learn: (1) to be self-critical of their own privileged status and how their legal training helps them to ignore their privileged status; (2) to understand their constituents' oppression by re-experiencing shame, fear, and humiliation in their own lives; and (3) to develop a method for perceiving the claimants' pain (pp. 156-163).

For political scientists who study and teach law and courts, this book may fall short on two interrelated counts. First, Mills does not address the generalizability of her findings. Although students of the judicial process value research on specialized courts, that research often makes explicit the implications for research on the more often examined federal and state courts. Thus, some scholars may be disappointed that she does not suggest explicitly how her study contributes to the broader understanding of the judicial process. Second, Mills neglects some of the important and relevant decision making research in judicial politics. Arguably, the critical race theory and feminist legal theory research is most obvious to her research question. However, her theoretical arguments are connected to the research
on the attitudinal and strategic decision making models. Without mentioning these two models, some scholars might choose to ignore or dismiss Mills' findings. Using the scholarly literature on the attitudinal and strategic decision-making models certainly would situate this book more squarely in judicial politics.

That being said, this book is clear in its purpose, uses an appropriate method, and is well written. Mills gives sufficient detail about the Social Security disability hearing process without detracting from her theoretical arguments and her analysis of the hearing transcripts. In addition, because she has represented clients during hearings and

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she helped to design and implement the diversity training for ALJs that resulted from the 1992 GAO study, Mills has a wealth of first-hand knowledge about the book's topic. She uses her knowledge of the Social Security disability hearing process to reveal systemic flaws in a meaningful way, thereby Mills' findings add another dimension to what the quantitative research detects about the racial and gender bias in decision making in Social Security disability claims.