The Situationist

What Effect Does Gender Have on Judging?

Posted by The Situationist Staff on March 19, 2012

Professor Pat K. Chew recently posted her article, “Judges’ Gender and Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions” (Journal of Gender, Race and Justice, Vol. 14, pp. 359-374, 2011) on SSRN.

Here are several paragraphs from the article’s introduction:

This Article furthers our understanding of the substantive value of women judges by analyzing a subset of the research on this topic. It offers a macro-level review of the empirical research done on judges’ gender in U.S. federal courts and how a judge’s gender affects the outcomes in employment discrimination cases, a research area that has attracted considerable empirical analysis. Employment discrimination is also a major subject area of litigation in the federal courts, highlighting its importance and also providing ample databases of cases to study. Thus, this comparatively rich source of research makes it possible to draw conclusions with a clarity that would not be possible if we were comparing judicial decision making in diverse court venues or legal subjects.

To lay the groundwork for the macro review, this Article briefly identifies factors to consider when studying empirical research. A macro review of the empirical research on the relationship between judges’ gender and the outcome in employment discrimination cases follows. This macro review is based on fourteen research studies, a surprisingly large number given the relatively short period in which researchers have actively engaged in this particular inquiry. This macro review focuses on illustrative studies on (1) sex-based discrimination cases, (2) employment discrimination cases more generally, and (3) non-gender-specific employment discrimination cases such as race-based discrimination cases.

This Article provides a status report on the reasonably clear conclusions that can be drawn from current empirical evidence in this area. To the extent that there is a difference between the way female judges and male judges resolve legal cases, the frequent hypothesis is that those differences would most likely appear in employment discrimination, particularly sex discrimination, cases. This macro review largely supports that hypothesis. Thus, it concludes that increasing gender diversity on the bench makes a substantive difference in how these kinds of cases are resolved. As the subject of the cases moves away from sex discrimination, however, the review of research indicates that the relationship of the judges’ gender to case outcomes is less predictable.

Download the article for free here.

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