The Situationist

Posts Tagged ‘judging’

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.

Related Situationist posts:

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Posted in Abstracts, Law | Tagged: , | Leave a Comment »

Brooks on the Situation of Judging

Posted by The Situationist Staff on May 31, 2009

Michigan Law LibraryNew York Times columnnist David Brooks had a nice op-ed, “The Empathy Issue,” picking up some of the themes in the recent op-ed by Situationist Contributors Adam Benforado and Jon Hanson.  Here are some excerpts.

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The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

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Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.

As [Situationist Contributor] Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.

The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue — whether it’s a legal case, an essay, a math problem or a marketing strategy — people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It’s a meandering, largely unconscious process of trial and error.

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Then — often while you’re in the shower or after a night’s sleep — the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.

Now your conclusion is articulate in your consciousness. You can edit it or reject it. You can go out and find precedents and principles to buttress it. But the way you get there was not a cool, rational process. It was complex, unconscious and emotional.

The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. . . .

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To read the entire op-ed, click here.  For some related Situationist posts, see “The News Situation of Judge Sotomayor’s Nomination” and The Situation of Judicial Activism,” which contains links to still more related posts.

Posted in Cultural Cognition, Emotions, Ideology, Situationist Contributors | Tagged: , , , , | Leave a Comment »

Judicial Ideology – Abstract

Posted by The Situationist Staff on December 29, 2008

Judicial PoliticsBryan D. Lammon has posted his paper “What We Talk about When We Talk about Ideology: Judicial Politics Scholarship and Naive Legal Realism (forthcoming 83 St. John’s Law Review (2009)) on SSRN.  Here’s the abstract.

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A large and growing body of law and psychology scholarship has posed new challenges to traditional assumptions about the behavior of legal actors. While mainstream legal thought has often treated individuals as more or less rational, autonomous actors, scholars in a variety of fields are presenting a new, empirically based, and more formal challenge to the law’s traditional conceptions of human behavior. One area with especially great potential is the use of psychology to improve our understanding of one of the more persistent questions of legal theory: How do judges decide cases? While law and psychology scholars are changing the way we think about the behavior of legal actors, the psychology of judicial behavior has gone relatively unexplored.

However, another school of thought on judicial behavior has made recent inroads into legal scholarship. In a field commonly known as “judicial politics,” political scientists (and more recently, legal scholars) have endeavored to uncover the determinants of judicial behavior using the tools of statistical analysis. While a few legal scholars outside of judicial politics have suggested that it should inform legal theory judicial politics as a field of study has been embraced by a few, regarded as unremarkable or obvious by some, and rejected by others. I suspect that this mixed reception is due in part to much of the scholarship being somewhat unclear in what it exactly means. That is, much of political science scholarship quite clearly suggests that judging is ideological. What “ideological” means, however, is much less clear. A bit of reading between the lines reveals that much of judicial politics scholarship conceives of ideology predominantly as partisan politics. Along these lines, much of the scholarship presents an image of judges as consciously and actively promoting a political agenda.

This conception of ideology and ideological judicial decisionmaking, however, is quite unsatisfying. It conceives of ideology predominantly in political or partisan terms, and, bearing the influence of traditional notions of individual rationality and autonomy, it portrays judges as rational actors that can consciously impose their policy preferences through their decisions. This portrayal reflects the same conception of rational, wholly autonomous individual behavior that law and psychology is challenging. However, even if one rejects judicial politics’ conception of ideology and its influence, one still must contend with the reams of empirical research that judicial politics scholars have amassed.

This lack of clarity coupled with scores of empirical studies that one cannot easily dismiss creates a number of problems for legal scholars. First, judicial politics effectively characterizes judicial decisionmaking as party politics. In so doing, it misunderstands the human side of judging and perverts our understanding of judicial behavior. Second, as noted above, some legal scholars are calling for the incorporation of judicial politics scholarship into legal scholarship. Yet, before turning to the normative implications of judicial politics scholarship, it is important to clarify what exactly this scholarship means. Finally, the language and conclusions of judicial politics scholarship enflame the myth of judicial activism.

In this Article, I look to the social psychological theory of naive realism in order to understand the empirical findings of judicial politics scholarship. Naive realism begins with the social psychological truism that all perception is subjective. However, we often fail to recognize the subjectivity of our own perception, instead believing that we are privy to the objective realities of the outside world. The problem of this disparity between how we think we see the world (objectively) and how we really see the world (subjectively) is that we often fail to appreciate the subjectivity of both our own and others’ perception. An appreciation of the subjectivity of perception central to naive realism indicates that what might appear to be political or partisan or “ideological” decisionmaking is instead the result of the inevitable influence of human decisionmakers perceiving their world subjectively.

This Article, however, is not confined to an internal debate between two approaches to judicial behavior – one based in psychology and one based in political science. In this Article, I also hope to show how the study of judicial behavior can inform legal theory. Throughout this piece, I hope to show how modern psychology can inform wider perspectives on judicial decisionmaking and legal theory in general.

Posted in Abstracts, Ideology, Law, Legal Theory, Politics, Social Psychology | Tagged: , , , , | 1 Comment »

The Situation of Judicial Methods – Abstract

Posted by The Situationist Staff on August 16, 2008

Joshua Furgeson, Linda Babcock, and Peter Shane have a fascinating paper, “Behind the Mask of Method” (Ohio State Public Law Working Paper No. 41 (June 2005) – Law Hum. Behav. 2007) on SSRN. Here’s the abstract.

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This empirical paper demonstrates that political orientation affects the interpretive methods (e.g., originalism) that individuals prefer to use to interpret the Constitution. As a consequence, the sworn allegiance of a judge (or judicial candidate) to a particular interpretive methodology, even if faithfully followed, simply cannot guarantee constitutional adjudication that is apolitical in motivation.

The paper begins by recognizing that certain interpretive methods often favor either liberal or conservative policies, and then propose that an individual’s policy goals subconsciously bias their interpretive preferences. We test this hypothesis in two empirical studies. The first study surveys federal law clerks about their interpretive preferences. We find that liberal clerks are significantly more likely than conservative clerks to favor the current meaning of the constitutional text, while conservatives are much more likely to prefer the original meaning. Liberals also prefer to interpret the Constitution a great deal more expansively than conservatives. The second study demonstrates that altering the policy implications of expansive interpretation can shift interpretive preferences, implying that political orientation actually causes, and is not just related to, interpretive preferences.

This relationship between political orientation and interpretive preferences challenges both traditional constitutional jurisprudence and contemporary politics. Interpretive methods are often cited because they appear to provide legal, rather than policy-based, guidance. Consequently, judges often frame their judicial rulings as an application of their interpretive preferences to the facts of the case. More controversially, many judicial nominees have argued that their personal beliefs will be irrelevant to their judicial decisions, as their interpretive preferences will guide them. Our findings imply, however, that judges cannot reduce the influence of their policy preferences by relying on interpretive methods, because their interpretive preferences were likely affected by their policy goals.

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To read some related Situationist posts, see “The Political Situation of Judicial Activism,” “Ideology is Back!,” “The Situation of Judges,” “Blinking on the Bench,” “The Situation of Judging – Part I,” “The Situation of Judging – Part II,” and “Justice Thomas and the Conservative Hypocrisy.”

Posted in Abstracts, Deep Capture, Ideology, Law, Legal Theory, Politics | Tagged: , , , , , | 1 Comment »

 
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