This Just In: Women and Men Equally Good at Judging
On the last page (31) of a new empirical article by law professors concerning the role of gender among judges, the following conclusion appears: “we find that women do just as well as the men [sic] in terms of basic judging measures.” I am not surprised and wonder: (1) what portion of the population, among laypersons or lawyers and certainly legal academics, would really be surprised by this; (2) whether we need an empirical study before drawing such a conclusion; and (3) whether any empirical study, this one included, can realistically provide evidence for (or against) such a conclusion.
The piece, reportedly stimulated by something Justice Sotomayor said about the role of gender in judging, spends the previous 30 pages: (1) reviewing literature about possible differences in attitudes and experience judges may have, according to gender; (2) summarizing data on state high court judges, 1998-2000 (and adding a smaller bit of data on federal judges), concerning numbers of opinions they write, how often they are cited by other courts, and how often they filed panel opinions disagreeing with panel judges of their own political party; (3) summarizing data about such matters as where judges went to law school and marital status; (4) reporting elaborate regression analyses of these data; and (5) testing various hypotheses, using these factors and resulting relations among the data, to tell us whether men or women are better judges (measured by things like opinions produced and citation frequency).
To be fair, the paper’s four authors acknowledge, in the end, limitations of the empirical methodology they use, emphasizing weaknesses in the inputs, and the meaning of resulting outputs. In addition, the paper manifests requisite hallmarks of good academic work: a literature review, statistically testable hypotheses, reports of the statistical analysis plus qualifications and modesty about the entire undertaking.
Furthermore, of course, in principle, the quest is valiant, for confirming hunch and intuition with statistical data is a vital exercise and tradition in academic research. And this paper may provide more support for its assertions than I could offer for claims I may make, like, in contract law: (1) Ellen Ash Peters was a more thorough and convincing judge than Learned Hand; (2) Judith Kaye was at least as persuasive and clear as Oliver Wendell Holmes; and (3) Benjamin Cardozo was superior to all of them on all counts.
Even so, this paper puzzled and troubled me like few others ever have. It led me to wonder whether all the work that went into preparing it, and my hour reading it, was worthwhile, and whether we have learned anything from it.
NB: The paper, oddly entitled Judging Women, by Stephen Choi (NYU Law), Mitu Gulati (Duke Law), Mirya Holman (Duke Law/UNC Econ/Pol), Eric Posner (Chicago Law), can be found here.