Authored by: Jordan Elias
Abstract
Presented with a dispute, trial judges often will ask which party would be more prejudiced by a decision going in either direction. Litigants constantly complain of being prejudiced. Opinions cite “no prejudice” to justify consequential rulings. Yet ubiquity breeds uncertainty: the term prejudice “is fraught with ambiguity” and there is a “lack of agreement about what [it] means.”
“Prejudice” is used too loosely and bears too much weight, particularly in equity jurisprudence. The term takes a variety of forms and gradations, meaning something different in all manner of legal settings. Its malleability has allowed “prejudice” to develop into a litigation master key, a stand-in for something inequitable, fitting naturally with the exercise of judicial discretion. The concept indeed can be used to explain almost any decision. But while judges should conform their reasoning to “common understandings,” the term “prejudice” is not readily understood. And though this indeterminacy makes for an attractive tool, excessive use has blunted the term’s utility.
Alongside its frequent use in court, the term’s meaning in society coalesced to a state of mind: a negative attitude or feeling without adequate basis. I propose lightening the concept’s load by limiting “prejudice” to match its common understanding as negative, unsupported sentiment. The effect will be to reduce reliance on this vague concept, avoiding confusion and sharpening argumentation. Part A demonstrates the broad use of “prejudice” in litigation. Part B considers the word’s competing meanings, and Part C its use in criminal appeals. Part D offers a framework for straightening out the concept.
American Journal of Trial Advocacy 