Empirical Legal Studies

For years (decades, even), legal and political science literatures have considered whether judge gender informs judicial outcomes. While the standard interpretation emphasizes that judicial attributes (including judge gender) play a causal role, an alternative explanation considers the possibility that case characteristics (and therefore potentially outcome) become associated with judicial attributes via some other mechanism, such as case assignment, or decisions about what cases to publish or report.

Results in a recent paper, Gendered Judicial Opinions, by Michael Livermore (UVa) et al., substantially support an assignment/selection pathway explanation. To be sure, the paper is appropriately cautious cautious and notes that while its findings support the assignment/selection pathway, the possibility of a gender causation pathway cannot be properly excluded as the two are not mutually exclusive.

The paper levers a rich data set that includes all federal circuit court opinions, published and unpublished, from 2001 through 2017, except for decisions of the Court of Appeals for the Federal Circuit, en banc opinions, and opinions that include fewer than 900 characters. The authors then merged textual data from judicial opinions with judge-level demographic information collected by the Federal Judicial Center (FJC). The paper's abstract follows.

“In this paper we investigate whether gender is associated with the content of judicial opinions in the U.S. courts of appeals. Using a topic model analysis, we find that gender is a significant predictor of the content of judicial opinions. Two causal pathways could explain this result: (1) men and women judges write differently about the same cases; (2) men and women judges write about different cases, either due to assignment or selection effects. To untangle these two pathways, we carry out three additional analyses. First, we examine whether the United States as a party is associated with judge gender. We next examine whether case codes are associated with judge gender. Finally, we examine the relationship between topic prevalence and gender, controlling for case codes. Our findings lend greater support to the second pathway than the first. This result raises the prospect that prior work on gender-based differences in judicial behavior may be confounded by assignment or selection effects. Our results also raise normative concerns about gender disparities in voice and influence in the U.S. courts.”