Legal Research

Gender and Judging

By Simon Fodden

Slate ran a story yesterday on what research says about how gender — or sex — influences judging, “In a ‘Different’ Voice” by Deborah Rhode. This interest was sparked, of course, by the fuss over Judge Sotomayor’s remark in a speech eight years ago about how a “wise Latina woman” might judge. If the effort is to see whether a judge’s nature affects how that person would decide certain issues, it’s surely wasted effort: you don’t have to be of the “what the judge had for breakfast” school to know that judges are not fungible automatons. But drawing a line between an aspect of that nature and an outcome, i.e. conjuring useful or interesting predictability, is not easy, as any litigation lawyer could also tell you.

The debate about the judicial person, shall we say, often centres around typical markers such as race or gender or avowed political stripe. For reasons that are never entirely clear to me, we feel it interesting or even just possible, perhaps, to get a handle on a person, whether a judge or not, using these crude tongs. Of course, the subtext of this search for essentialist influence is often the stricture that such bias shouldn’t exist, that there exists a place of pure reason unsullied by personality and this is where judges should dwell. This is, to me, not merely out of touch with reality but, in this extreme form, also misguided as a merit.

Some of these difficulties are broached in the Slate piece, which at the end of the day concludes that gender and race, at least, are insufficient to provide predictability, and “simply putting another woman on the court would not necessarily be good for a feminist legal agenda. It matters greatly which woman.” This unsurprising conclusion is largely supported by the main piece of research forming the backbone of the Slate article, a paper delivered at the 2nd Annual Conference on Empirical Legal Studies, “Untangling the Causal Effects of Sex on Judging,” [PDF] by Christina L. Boyd, Lee Epstein, and Andrew D. Martin, the conclusion of which might be summarized so:

[W]e observe consistent gender e?ects in only one [area of law]?sex discrimination. For these disputes, the probability of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, when a woman serves on a panel with men, the men are signi?cantly more likely to rule in favor of the rights litigant. These results are consistent with an informational account of gendered judging and are inconsistent with several others.

Full post as published by Slaw.ca on June 11, 2009 (boomark / email).