Two recent studies conclude that a judge's race or gender makes for a dramatic difference in the outcome of cases they hear—at least for cases in which race and gender are factors. This should not surprise most people, but the studies do bring to the fore a number of interesting issues. First, it does provide support for the view that the judiciary must be reflective of the community they serve and broader society if we are to achieve equity and a modicum of equal justice. Indeed, as one would expect, a judge’s life experiences, insights and perspectives influence their decisions. Second, it raises questions about the impartiality and neutrality of the judiciary. Indeed, as human beings with inherent biases, influences and emotions could we ever expect mechanical neutrality and objectivity? I suspect the answer is an unequivocal, no. Of course, this only reinforces the argument that the bench -- and all our institutions for that matter -- must reflect society itself so that the resulting exposure, interaction, and breaking down of barriers may contribute to a leveling of the playing field. As more female and minority law students make their way into the profession, it would be a travesty of justice if we did not see a significant and speedy increase in their representation on the bench.
Sunday, February 14, 2010
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Faisal, notwithstanding the studies, I don't see how you can leap from an "is" to an "ought". The fact that race or gender make for a difference in the outcome of the case cannot lead you, logically, to argue that the judiciary must be reflective of the community. It's perfectly logical to argue that a non-representative panel will reach the "correct" result, if one believes in such things. If we want to have a diverse judiciary that's all well and good, but that desire cannot follow simply from the fact that different panels reach different results. For the same reason, I don't see how, logically, the argument for a reflective institution follows from a questionable impartiality. Again, it could be that the particular "impartiality" of the panel is also the right substantive result.
ReplyDeleteAdam, thanks for your post. You raise some interesting arguments. Though I agree that non-representative panels may reach "correct" results, these results may not always be equitable or just from a gender, race or for that matter socio-economic class perspectives. Of course, it also does not follow that a reflective panel will reach full equity or justice (as relative as these terms may be) in all instances. That said, I believe that the probability of achieving some improvements in some limited areas are increased with more diverse panels. Without getting into a detailed debate here, I would simply point to the extensive work being done on automatic and subsconscious bias (see for example http://esciencenews.com/articles/2009/06/17/study.supports.validity.test.indicates.widespread.unconscious.bias). fk
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