Friday, August 31, 2012

Women in robes

In an article entitled "Women in Robes" appearing in the most recent issue of the Americas Quarterly, a policy journal, I present statistics on the number of women in the judiciary around the world and argue for gender parity to further equality, enhance courts' legitimacy, and strengthen the rule of law. (A popular Venezuelan blog has written about the article here.)
I am not the first to present such arguments. IntLawGrrls contributor Judge Patricia M. Wald, among others, has made the case that the contribution of women judges on international criminal tribunals was essential to prosecutions of rape as a crime against humanity. In a recent article in the Chicago Journal of International Law, IntLawGrrls contributor Nienke Grossman contended that sex representation is important for the legitimacy of international tribunals.  
In arguing for increased gender parity in courts, Wald and Grossman, among others, claim that women may reach different (and presumably better) decisions than men. Scores of empirical studies have attempted to determine whether the gender of a judge makes a difference to his or her decisions. Consider the findings of a 2010 American Journal of Political Science article, "Untangling the Causal Effects of Sex on Judging", by Professors Christina L. Boyd (SUNY Buffalo Department of Political Science), Lee Epstein (now at the University of Southern California School of Law), and Andrew Martin (Washington University School of Law).
These co-authors reviewed over 30 empirical studies that had been designed to determine whether the gender of a judge influences the decision he or she makes. Depending on the methods employed and proxies and data used, the studies reached divergent conclusions. About one-third showed that women judges come to different conclusions than male judges. About one-third had mixed results. And the final third found no sex-based differences whatsoever. 
In their own study on the topic, Boyd, Epstein, and Martin analyzed 13 areas of decisions handed down by U.S. appellate courts, courts in which judges hear and decide cases in panels of three. They found that in cases implicating sex discrimination in employment, the probability of a judge deciding in favor of the party alleging discrimination decreased by 10% when the judge was a male. Conversely, when a woman was on such a panel, the likelihood of a male judge ruling in favor of the plaintiff increased from 2% to 14%. 
In my own experience with working with judges, as the Faculty Director of Cornell Law’s Avon Global Center for Women & Justice, I have found that women judges can have broad impact in the courts over which they preside and countries in which they work. 

There are numerous examples of positive structural changes initiated by women judges, such as courts where child-witnesses can testify without confronting their abusers and the provision of legal aid to domestic violence victims. These structural changes have improved access to courts for women litigants. 
Yet, to echo a word of caution voiced in a 2009 article by University of Chicago Law Professor Rosalind Dixon, not all women judges will make decisions that feminists consider positive. Indeed, some can do more damage than good.
Several years ago, for a report on women in prison, I interviewed a woman who had just been released from a New York state prison after serving 17 years for killing her boyfriend, who had repeatedly beat and raped her. The act for which she was convicted occurred while she was defending herself against a beating. The judge told her to take a plea agreement. Raising of a “battered women’s syndrome” defense was resisted, because the judge could not believe that the defendant, as a white, employed, and educated woman, could suffer from that syndrome.
The judge was a woman.

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