By Dr. Ken Broda-Bahm:
In the first of Disney's Pirates of the Caribbean movies, the heroine of the story is demanding to be taken back to shore and invoking something called "The Pirate Code" to make her case. The pirate, Captain Barbossa, responds:
First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.
And that's the failed legal argument that starts off the adventure. It is also a good illustration of the wiggle room that separates legal rules from legal standards. When it comes to the goal of avoiding or minimizing bias in legal decisions, it is a distinction that makes a difference. Rules (like an automobile speed limit) provide definite direction on a correct outcome. Standards (like a requirement for automobiles to drive "no faster than conditions permit") are subjective and require decision makers to draw inferences from the facts. Based on a long line of research, implicit bias against a wide variety of social groups is a fact of life, and legal decision makers -- jurors, judges, mediators, arbitrators -- aren't immune to that bias. According to a recent study (Girvan, 2016), in civil litigation, instruction on legal rules help to mitigate that implicit bias, while instruction on legal standards does not."Rules," Girvan writes, "have a comparative advantage over standards in reducing the impact of bias on legal decisions." This is a finding that carries some implications for the tools that litigators use in addressing bias in court.