October 05, 2009
Judging Women
Posted by Usha Rodrigues

My friend Mitu Gulati, along with co-authors Stephen Choi, Mirya Holman, and Eric Posner, has posted a piece on SSRN that's generating some buzz, including a front page article on Slate (quotes are from the Slate piece--it's Monday, I know you need some punch).

Controversial point number one: "On average, female judges are less qualified, based on traditional metrics, than male judges. They have attended lower-ranked colleges and lower-ranked law schools, they are less likely to have had judicial clerkships (a prestigious job often taken by top law school graduates), and they have less experience in private practice before becoming judges."  

Still the sub-par performance as measured by traditional metrics didn't affect the female judges' performance: "Yet when it comes to performance rather than qualifications, we find no statistically significant differences between the decision-making ability of male and female judges in any of our data sets. Female judges are cited just as often as male judges; they write as many opinions; and they are just as likely to dissent, and to dissent from opinions written by judges who belong to their party." 

So the authors say female judges do the same work even if they're less qualified by traditional measures, from which they conclude that 1) women are, innately or by virtue of their experience, better judgers than men, 2) that the legal hierarchy's traditional measures of success don't work, or 3) that the study's empirics are off because it's not measuring judicial quality correctly. 

It's obligatory to attack the empirical methodology; I'll leave others to do that.  While the first explanation has obvious personal appeal for me, it's the second that I see as potentially more unsettling.  Law is a hierarchical world.  From the time an aspiring law student applies to a school to the day she retires, she's awash in a sea of rankings: how good a school did you go to?  What was your class rank?  Did you make law review?  Were you on the managing board?  Did you make Order of the Coif?  How good a clerkship did you get?  How prestigious is the law firm?  How long did it take you to make partner?  How much did you make?  How much did you bill?  What GS level are you? 

What if none of it really means anything?  Where are we then?

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