PUBLISHED:October 09, 2009

On the blogs: Judging women judges

A new paper by Duke Law Professor Mitu Gulati and Research Associate Mirya Holman is generating talk in the blogosphere about the effectiveness of women judges and the ability of social scientists to measure quality in judicial decision-making.

The paper, “Judging Women,” is available for download on SSRN. Co-authored by Stephen Choi of New York University School of Law and Eric Posner of the University of Chicago School of Law, the paper addresses an assertion by Supreme Court Justice Sonia Sotomayor that female judges might be better than male judges, a comment that generated accusations of sexism and bias.

Analyzing data from state high court judges, the paper’s authors measure three standards of judicial output ⎯ volume of opinions, number of outside state citations in opinions, and number of opinions that counter those of judges within the same political party ⎯ and find that male and female judges perform at about the same level.

The authors wrote about their findings on Slate, noting that “female judges are less qualified, based on traditional metrics, than male judges” because 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.”

However, the authors found “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.”

The paper generated discussion on The Wall Street Journal’s Law Blog, The Faculty Lounge, The Conglomerate, Concurring Opinions, Economix, and TaxProf.