We explore the role of sex in judging by addressing two questions of long-standing interest to political scientists: whether and in what ways male and female judges decide cases distinctly—“individual effects”—and whether and in what ways servingwithafemalejudgecausesmalestobehavedifferently—“paneleffects.”Whileweattendtothedominanttheoretical accounts of why we might expect to observe either or both effects, we do not use the predominant statistical tools to assess them. Instead, we deploy a more appropriate methodology: semiparametric matching, which follows from a formal framework for causal inference. Applying matching methods to 13 areas of law, we observe consistent gender effects in only one—sex discrimination. For these disputes, the probability of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant. These results are consistent with an informational account of gendered judging and are inconsistent with several others.

/pdf/untangling-the-causal-effects-of-sex-on-judging-20o33wanre.pdf

Untangling the Causal Effects of Sex on Judging

To say that positive political theory (PPT) scholarship on the hierarchy of justice is theory rich and data poor is to make a rather uncontroversial claim For over a decade now, scholars have offered intriguing theoretical accounts aimed at understanding why lower courts defy (comply with) higher courts But only rarely do they subject the accounts to rigorous empirical interrogation The chief obstacle, it seems, is the lack of a reliable and valid measurement strategy for placing judges of lower courts and justices of higher courts in the same policy space Without such a strategy, we can systematically test few, if any, hypotheses flowing from PPT models of the judicial hierarchy With such an approach not only can we investigate the implications of these models, we can assess many others flowing from the larger PPT program on judging, as well It is to the challenge of scaling judges and justices (as well as legislatures and executives) that we turn in this article We begin by explicating our measurement strategy, and then by explaining its advantages over previous efforts Next we explore the results of our approach and provide a descriptive look at data it yields: a “Judicial Common Space” (JCS) score for all justices and judges appointed since 1953 The last section offers three applications designed to shore up the suitability and adaptability of the JCS for a range of positive projects on the courts

The Judicial Common Space

Talk of safety culture has emerged as a common trope in contemporary scholarship and popular media as an explanation for accidents and as a recipe for improvement in complex sociotechnical systems. Three conceptions of culture appear in talk about safety: culture as causal attitude, culture as engineered organization, and culture as emergent and indeterminate. If we understand culture as sociologists and anthropologists theorize as an indissoluble dialectic of system and practice, as both the product and context of social action, the first two perspectives deploying standard causal logics fail to provide persuasive accounts. Displaying affinities with individualist and reductionist epistemologies, safety culture is frequently operationalized in terms of the attitudes and behaviors of individual actors, often the lowest-level actors, with the least authority, in the organizational hierarchy. Sociological critiques claim that culture is emergent and indeterminate and cannot be instrumentalized to prevent technological accidents. Research should explore the features of complex systems that have been elided in the talk of safety culture: normative heterogeneity and conflict, inequalities in power and authority, and competing sets of legitimate interests within organizations.

/pdf/taming-prometheus-talk-about-safety-and-culture-4kgyvh8rn2.pdf

Taming Prometheus: Talk About Safety and Culture

In the past two decades, numerous studies have tested empirically the normative theory of descriptive race representation. Here, we focus specifically on one aspect of descriptive representation—the relationship between increased racial representation and institutional legitimacy. Does greater racial diversity within a political institution increase its reservoir of good will? Using a novel experimental design centered on the federal courts, we find that greater descriptive representation for blacks causes increased legitimacy for the institution among African Americans. However, we also find that white support declines under the same experimental condition. In probing our data further, we discover that increased diversity does not impact blacks and whites in the same manner across the ideological spectrum. Rather, a person's ideology mediates how he or she assesses racial diversity on the bench. We conclude by discussing the implications of our findings.

Does Descriptive Race Representation Enhance Institutional Legitimacy? The Case of the U.S. Courts

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

/pdf/judicial-politics-and-sentencing-decisions-3fznqslpzb.pdf

Judicial Politics and Sentencing Decisions

This book explores how the lower federal court appointment process became vastly politicized in the modern era. Scherer develops a theory of "elite mobilization," positing that lower court appointments have always been used by politicians for electoral purposes, but because of two historic changes to American institutions in the 1950s and 1960s-the breakdown of the old party system, and a federal judiciary reception to expanding individuals' constitutional rights-politicians shifted from an appointment system dominated by patronage to a system dominated by new policy-oriented appointment strategies. The use of these new strategies not only resulted in partisan warfare during the nomination and confirmation stages of the appointment process, but also led to party-polarized voting in the lower federal courts. Employing exclusive data of judicial decision-making from the New Deal era through the present, Scherer demonstrates that there was little party-polarized voting in the lower federal courts until the late 1960s, and that once politicians began to use elite mobilization strategies, significant party-polarized voting in the lower federal courts resulted. Accordingly, elite mobilization strategies have affected not only politics in Washington, but also the way justice is distributed across the country.

Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process

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Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process