Minority Judges Research Articles

Familiarity and Race Bias: Evidence from a Television Competition (and the Case for More Women Judges?)

Abstract While social interaction is claimed to help reduce racial bias, the evidence is mixed. We argue that not only interaction, but familiarity among agents may help reduce race bias. We use new data from MasterChef, a nationally syndicated television competition that cover 10 years. We find that familiarity does not help reduce race bias. When judges are all Caucasian they appear to favor Caucasian contestants and set back minority contestants in the final placements. Interestingly, we find an analogous finding with minority judges. Female judges are the only ones who show no bias.

Religious Satire, Moral Restraint and the Charlie Hebdo Cartoons

In Otto-Preminger, the European Court of Human Rights (EctHR) upheld the decision of the Innsbruck Provincial Court in Austria ordering forfeiture of a film portraying Catholicism in a satirical form in a community where the vast majority of the population were Roman Catholics because the Austrian authorities had acted to ensure religious peace in the region as well as to prevent an unwarranted and offensive attack on their religion. The majority of the EctHR considered its function to be that of balancing the two conflicting rights of free expression and religious freedom. This article argues that it is in the minority dissenting judgment of the three judges, in which the right to both free expression and religious freedom stands best to be protected in the future. This is because free expression is not an untrammeled right but carries within its exercise an obligation of “moral restraint” on which the three minority judges based their dissenting opinions. A quarter of a century after that decision, and with cases such as the Charlie Hebdo Murders in France, it is timely to consider whether the minority opinions carry the seeds of wisdom for the future.

Diversity, Dissent and Representation: Lessons From The First Minority Judge in the Israeli Supreme Court

This paper seeks to enrich existing empirical research on substantive representation in the judicial system by exploring a case study of the Honorable Justice (retired) Salim Joubran, the first ethnic-minority judge appointed to the Supreme Court of Israel. By employing a dual methodology of qualitative discourse analysis and dissenting quantitative studies, the study investigates when, why and how he dissented in controversial cases, which are defined as cases that resulted in non-unanimous votes. The study shows that a quantitative study on dissenting opinions of a minority judge alone did not provide comprehensive conclusions. The complementary qualitative discourse analysis shows that in cases that challenged state actions that impacted his social group, Joubran employed distinct strategies and reasoning that are akin to feminist judgments approach. Hence, the study adds to existing research on judicial diversity indicating that women and ethnic minorities judges not only share common challenges but might also operate similar reasoning strategies. In light of these insights, the study calls for employing the combined qualitative and quantitative methodology on examining judgments focusing on dissenting opinions of women and ethnic minority judges as it offers a complex understanding of substantive representation and provides answers regarding the socio-legal effects of group affiliation on judgments.

Do Americans perceive diverse judges as inherently biased?

ABSTRACT Although women and minorities hold an increasing share of judgships in the United States, they remain underrepresented. We explore Americans’ perceptions of the bias of women and minority judges – one of the possible challenges to creating a diverse bench. We argue that prejudice against these groups manifests in a subtle way, in the belief that diverse judges cannot fairly adjudicate controversies that involve their ingroup. To test our theory, we use a list experiment specifically developed to minimize social desirability effects. We find that many respondents rate female and Hispanic judges to be biased decision makers. Our results highlight the nature of prejudice against female and Hispanic judges and suggest multiple important implications. They shed light on the reasons why female and Hispanic candidates for judgships may win at a lower rate and also suggest negative implications for the legitimacy of their decisions.

Ascriptive Characteristics and Perceptions of Impropriety in the Rule of Law: Race, Gender, and Public Assessments of Whether Judges Can Be Impartial

AbstractPerceptions of procedural fairness influence the legitimacy of the law and because procedures are mutable, reforming them can buttress support for the rule of law. Yet legal authorities have recently faced a distinct challenge: accusations of impropriety based on their ascriptive characteristics (e.g., gender, ethnicity). We study the effect of these traits in the context of the U.S. legal system, focusing on the conditions under which citizens perceive female and minority judges as exhibiting impropriety and how this compares with perceptions of their white and male counterparts. We find that Americans use a judge's race and gender to make inferences about which groups the judge favors, whether she is inherently biased, and whether she should recuse. Notably, we find drastically different evaluations of female and Hispanic judges among the political right and left.

Judicial under-representation, over-representation and “catch up”: insights from a study of US district court judges in the 10th Circuit

ABSTRACTThis essay examines the demographics of federal district court judges in the 10th Circuit. Consistent with the literature regarding the glass-ceiling effect in positions of power and influence in the legal profession, the study finds that women judges are under-represented on the 10th Circuit bench compared with their numbers as lawyers in the jurisdictions of the Circuit. However, the study finds that ethnic minority judges are over-represented in the Circuit. The essay next explores the relationship between under-representation, over-representation, discrimination and judicial “catch up”: addressing historical and contemporary under-representation by means of temporary over-representation of qualified under-represented groups on the bench. It argues that under-representation that cannot be explained in terms of merit criteria or informed opting out strongly suggests the lingering effects of past discrimination, as well as the current effects of implicit bias. Such past explicit and present implicit discrimination ought to shift the burden of addressing under-representation to the institutional players involved in the judicial commission process, who should temporarily deploy over-representation to break through the glass-ceiling and catch up the disparity. The feasibility of such a judicial catch up is evidenced by the over-representation of ethnic minority judges in the 10th Circuit.

The Intergroup Foundations of Policy Influence

Most decisions about policy adoption require preference aggregation, which makes it difficult to determine how and when an individual can influence policy change. Examining how frequently a judge is cited offers insight into this question. Drawing upon the psychological concept of social identity, we suggest that shared group memberships can account for differences in policy influence. We investigate this possibility using the demographic and professional group memberships of federal circuit court judges and an original dataset of citations among all published search and seizure cases from federal circuit courts from 1990 to 2010. The results indicate that shared professional characteristics do tend to lead to ingroup favoritism in citation decisions while only partial evidence of such a pattern emerges for demographic group memberships. There is evidence of ingroup favoritism among female and minority judges but none for male or white judges. Overall, judges appear to generally have greater influence on judges with shared characteristics. The findings have vital implications for our understanding of the diversification of policy-making institutions.

Double Trouble: Counting the Cost of Jephthah

The Judges 10:6 list of the gods of the surrounding nations to which Israel adhered in preference to Yahweh is unprecedented in its detail. Moreover, it forms the literal center of the book of Judges according to the Masoretic verse count. In the composition’s rhetorical plan, similarly, it constitutes the fulcrum in the account of the relations between Yahweh and his people. The worship of these deities and the syncretistic application of aspects of their cults to normative Yahwism provoke the response from Israel’s god that he will deliver them no more and that they should “appeal to the gods you have chosen” for deliverance. This rupture in the relationship sets the scene for Jephthah’s rise. The Gileadites, in extremis, take the initiative to engineer a human solution to a divine problem by approaching Jephthah, a social outcast with proven leadership and combat skills. The article analyses the place and role of Jephthah in Judges, the repercussions of his brief ascendancy, his relationship with the minor judges, as well as with Ehud and Abimelech, and the meaning of the shibboleth incident. The conclusions challenge the widely held scholarly view, originally proposed by Martin Noth, that Jephthah is the common denominator between the judge-deliverer figures and the minor judges. In addition, it advances a new interpretation of the significance of the choice of the noun shibboleth as the password at the Jordan fords.

Illegality after Patel v Mirza

English law on illegality in private law (eg illegal contracts) has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (which, if carried out, would constitute the crime of insider dealing). The agreement was not carried out because the information was not forthcoming. Was the claimant entitled to repayment of that money? In answering that question, a majority of the Supreme Court set out a controversial new approach to this area of the law, which was vigorously rejected by the minority judges. This lecture examines the reasoning in the case and asks whether Patel v Mirza constitutes a triumph or a tragedy for the law of illegality.

A New Dawn for the Law of Illegality

English law on illegality in private law has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v. Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside information (thereby committing the crime of insider dealing). The agreement was not carried out because the information was not forthcoming. Was the claimant entitled to repayment of that money? In answering that question, a majority of the Supreme Court set out a controversial new approach to this area of the law, which was vigorously rejected by the minority judges. This paper examines the reasoning in the case and argues that Patel v. Mirza constitutes a triumph for the law of illegality.

Major Saviors, Minor Judges: The Historical Background of the Northern Accounts in the Book of Judges

This article follows up on a recent series of papers by the author on North Israelite heroic stories in the book of Judges. This article examines the short accounts of the ‘minor judges' and then adds them to the more developed stories of the major saviors in order to reach an overall geographical setting for these traditions. This study suggests that both originated in the Northern Kingdom and that they were set down in writing in the early to mid-eighth century. They create a map that is a mosaic of continuous territory which includes the central hill country west of the Jordan River, the Jezreel Valley and regions immediately to its north, and the Gilead—the area that was conceived as the core terrain of the Northern Kingdom in its early days. The compilation of this material was part of a larger Northern endeavor aimed at preserving the foundation myths, early royal traditions and heroic tales of Israel.

Źródła o Toli i Jairze w deuteronomistycznej strukturze Księgi Sędziów

Abstrakt

The Katyń Massacres before the European Court of Human Rights

The Polish case of Janowiec and Others v. Russia was initiated by a group of close relatives of victims of the 1940 Katyń Massacres. Only in 1990 did the Soviet Union recognize that it had perpetrated the massacres. The applicants in the Janowiec case alleged that the Russian investigation into the massacres, which commenced in 1990 as transparent proceedings but was terminated in 2004 in secrecy, cannot be considered effective under the Convention. Furthermore, inasmuch as the Russian military prosecutors and courts held that the Polish prisoners-of-war “had disappeared” in the spring of 1940 or—if “hypothetically” killed—there might have existed just cause for such an execution, the applicants complained that such statements denied established historical facts and were tantamount to the denigrating and inhuman treatment prohibited by the Convention. The Grand Chamber judgment was not in the applicants’ favor. By a majority, the judges either declined to hear the case on its merits or held that there had been no violation of the Convention, turning—as the four minority judges wrote in their dissent—“the applicants’ long history of justice delayed into a permanent case of justice denied.” This article is a personal account of the principal lawyer acting on behalf of the applicants in the Janowiec case.

Minority Judges’ Recommendations for Improving Court Services for Battered Women of Color: A Focus Group Report

Battered women's ability and willingness to successfully present their issues to the courts is important to their physical well-being and feelings of empowerment. However, women of color, including immigrant women, often do not feel comfortable using the courts to redress their domestic violence grievances. The current study, a focus group interview with six African American and Latina family court judges, is designed to provide a better understanding of how the courts treat women of color and how that treatment can be improved. These judges argue that providing culturally appropriate services should not be viewed as an “add on” to existing programs, but rather are essential to ensuring equal access to justice and fair treatment for some of the system's most vulnerable users.

The Voting Behavior of Minority Judges in the U.S. Courts of Appeals

The diversification of the federal courts has led to a number of studies focusing on the voting behavior of African American and, to a lesser extent, Latino judges. Despite expectations that minority judges will vote differently from their White colleagues, extant research demonstrates mixed results. Perhaps one reason for this outcome is that they fail to account for the conditional role that coracial and coethnic claimants might have on behavior. This study examines the voting behavior of minority judges in the U.S. Courts of Appeals. Focusing on employment discrimination claims between 2001 and 2009, this analysis demonstrates that minority judges are not monolithic in their voting behavior. While African American judges are more likely to vote in favor of Black claimants, Latino judges are less likely to vote in favor of the claimant more generally. In all, the findings have important implications for substantive policy outcomes.

Judges on Trial

Extant research on the effects of judicial background characteristics suggests minimal influence from the race or gender of the sentencing judge in criminal cases. This raises at least two possibilities: (1) the combined influence of judicial recruitment, indoctrination, and socialization into the judgeship results in a homogenous body of criminal court judges; or (2) current approaches to identifying judge effects in criminal sentencing have methodological and conceptual flaws that limit their ability to detect important influences from judicial background characteristics. The current article examines this issue with data from the Pennsylvania Commission on Sentencing that is augmented to include information on sentencing judges and criminal court contexts. It argues that the mode of conviction shapes the locus of sentencing discretion in ways that systematically underestimate judge effects for pooled estimates of incarceration and sentence length. The empirical results support this interpretation, especially for incarceration in trial cases, where older, female, and minority judges are substantially less likely to sentence offenders to jail or prison terms. The article concludes with a discussion of future research directions and policy implications for judge effects and disparity in sentencing.

Standard of Review in the Copyright Cases

In June 2012, the Supreme Court of Canada decided five important copyright cases. In doing so, it also introduced an innovation to the law of judicial review. In Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, a majority of the Court held that, even though the Copyright Board was interpreting its own statute (typically, a situation in which deference is appropriate), no deference would be paid to its interpretation of the scope of copyright. For the majority, Justice Rothstein explained that the Copyright Board and the Federal Court of Canada have concurrent to deal with issues of copyright law. As the Copyright Board does not operate in a discrete and specialized administrative regime, deference to its decisions on matters of interpretation would be inappropriate. I argue that the new shared jurisdiction exception will lead to confusion. Clever counsel will doubtless try to stretch the Court's logic to other areas, such as competition and securities regulation. I further suggest that it was unnecessary to develop this exception, because the Court already possesses the doctrinal means of addressing the problems by which it was concerned. My primary focus is thus relatively narrow, confined to technical questions of administrative law. However, I adopt a broader lens towards the end of this paper and suggest that Canadian courts ought to be more willing to accord deference to the decisions of the Copyright Board. Courts do not, in short, have the copyright on wisdom about intellectual property law. I then conclude with some thoughts on the application of the general principles of administrative law in one of the other cases in the pentalogy, Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). The serious disagreement between the majority and minority judges in that case casts light on an important issue in administrative law, the characterization of administrative decisions

Racial Diversity and Judicial Influence on Appellate Courts

This article evaluates the substantive consequences of judicial diversity on the U.S. Courts of Appeals. Due to the small percentage of racial minorities on the federal bench, the key question in evaluating these consequences is not whether minority judges vote differently from nonminority judges, but whether their presence on appellate courts influences their colleagues and affects case outcomes. Using matching methods, I show that black judges are significantly more likely than nonblack judges to support affirmative action programs. This individual‐level difference translates into a substantial causal effect of adding a black judge to an otherwise all‐nonblack panel. Randomly assigning a black counterjudge—a black judge sitting with two nonblack judges—to a three‐judge panel of the Courts of Appeals nearly ensures that the panel will vote in favor of an affirmative action program. These results have important implications for assessing the relationship between diversity and representation on federal courts.

Are Judicial Performance Evaluations Fair to Women and Minorities? A Cautionary Tale from Clark County, Nevada

Because voters rely on judicial performance evaluations when casting their ballots, policymakers should work diligently to compile valid, reliable, and unbiased information about our sitting judges. Although some claim that judicial performance evaluations are fair, the systematic research needed to establish such a proposition has not been done. By the use of attorney judicial performance survey data from Clark County, Nevada, this analysis shows that objective measures of judicial performance cannot explain away differences in scores based on race and sex. Minority judges and female judges score consistently and significantly lower than do their white and male counterparts, all other things being equal. These results are consistent with the hypothesis that judicial performance evaluation surveys may carry with them unexamined and unconscious gender/race biases. Future research must compare judicial performance evaluation structure, content, and execution across states in order to identify those evaluation mechanisms least susceptible to unconscious gender and race bias.

Racial Diversity and Judicial Influence on Appellate Courts

This paper evaluates the substantive consequences of judicial diversity on the U.S. Courts of Appeals. Because of the small percentage of racial minorities on the federal bench, the key question in evaluating these consequences is not whether minority judges simply vote differently from non-minority judges, but whether their presence on appellate courts influences their colleagues and also affects case outcomes. Using matching methods, I show that black judges are significantly more likely than white judges to support affirmative action programs. In fact, the random assignment of a black counter-judge - a black judge sitting with two white judges - to a three-judge panel of the Courts of Appeals nearly ensures that the panel will vote in favor of an affirmative action program. Thus, the substantive consequences of racial diversity on the Courts of Appeals are quite large.