February 12, 2010

"A judge's race or gender makes for a dramatic difference in the outcome of cases they hear..."

The ABA Journal reports on 2 studies:
In federal racial harassment cases, one study found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American....

A second study, looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The finding: plaintiffs were at least twice as likely to win if a female judge was on the appellate panel....
More grist for the empathy/"wise Latina" conversation.

24 comments:

Florida said...

Lawyer to defendent: "Justice isn't blind ... she's just on her period."

edutcher said...

I guess that "Equal justice under law" thing doesn't count if your judge is a "minority".

Or, more to the point, a Lefty.

cokaygne said...

Latina judges weren't much help for the plaintiffs.

Big Mike said...

I thought Justice was supposed to keep that blindfold in place.

MadisonMan said...

One of the studies notes that of 805 Federal Judges (that's a lot!), non-Whites are 19% (11% Black, 7% Hispanic, 1% Asian). I question the statistical validity of any study arising out of that small a sample size, especially because only 40% of the cases from six courts were used. Data were from 1981-2003, a time when attitudes may have changed significantly.

All those footnotes make reading the articles a very tedious exercise.

David said...

I went an looked at the first study (which can be found here.

It's bullshit. They do a terrible job analyzing and reporting their results. Basically, that study could never have been published in a peer reviewed social science journal.

There are lots of problems with their analysis and how they present it, but the three most important points (if I were reviewing their manuscript) are these:

1. They are looking at judges nested within circuits, and circuits make a difference to how plaintiffs must prove their case. Most discrimination lawyers will agree, I think, that they'd rather be in some circuits than others. Using logit ignores the variance at the circuit level -- that is, how much law and practice differences between the circuits affect the outcome of discrimination cases. The authors really need to use a multi-level statistical method. HLM, a popular multi-level software package, can handle logits (although a minor comment is that logit is kind of an odd way of looking at this data).

2. The right way of presenting regression results is to run multiple models, starting with your control variables, then adding your variables of interest, and then, if you want, interaction variables. This tells you whether adding your variable of interest actually makes a significant difference to your model. The authors never do this and there is some reason to think that the judge's race would not, if analyzed properly, make a significant difference. They seem to be saying that, when analyzed alone, the R-squared (that is, how much of the variance between outcomes is explained by the judge's race) is very low (0.03). Since, as explained below, this is likely to be too high, it might be that judges race does not add anything to their explanation of outcomes.

3. When you leave a relevant independent variable out of a regression analysis, the variables you put in appear more significant than they really are, depending upon how much they correlate with the omitted variable. That's because some of the variance properly attributed to the omitted variable will end up being wrongly attributed to the included variable. So, if we think, for example, that judge's race and political affiliation are correlated, then leaving out one will make the other appear more significant than it really is. All but one of the analyses the authors present leave out variables that the authors consider relevant (and all leave out the relevant circuit, which I consider relevant).

The one analysis that includes all of their relevant variables? Finds that judges race is not significant (p = 0.1). So the best evidence from this study (which is still not actually well-enough done for us to rely on this finding) is that judge's race is not a significant factor and, at best, makes a very small difference in outcomes.

(The authors try to argue that p = 0.1 actually means something -- but no good social science journal would let you get away with that today. 10 years ago, you could sometimes argue that p = 0.1 was "marginally significant."

Still, the difference in plaintiff's success does seem large and there might be something going on here. I wish that we could see a multi-level analysis, because the effect might be to explain some of the unexplained variance, which would actually lower the p value of judge's race, potentially making it significant. On the other hand, if black judges tend to be disproportionately liberal or disproportionately urban (they are also nested within districts, which would be a good level to include in a multi-level model), it could be that race has even less effect than the authors found.

traditionalguy said...

And the sun rises in the East.The basic facts of life include the experience that experience builds the perceptions into humans brains to accurately judge a complex set of human personal interactions within a complex world. We use 12 jurors to add to the pool of experiences we want to hear a case to increase the odds of fairness in the perception game. E.g.,Have you ever taken an intelligent foreigner to a Braves baseball game and tried to get them to perceive all that we can see in the structured ritual we call baseball? The Hispanic experience is in a world of 50+ racial/ethnic differences that makes them "wise" and hard to fool about alleged racial discrimination being the only variable in real life.

rhhardin said...

Cherchez la femme.

David said...

As Madison Man notes, it is not actually a random-sample study and thus is not generalizable to the population of discrimination claims in US courts. But I would consider that minor compared to my big three comments.

David said...

On second thought, I take back my minor comment that logit is an odd way of analyzing these results. Since they treat the outcome as binary (you either win or lose) logit is perfectly fine.

paul a'barge said...

Man, if you're the defendent hope for a black judge.

lucid said...

Creating moral entitlements for individuals based on past histories of group differences is a very dangerous road. We have gone down that road with ffirmative action. Time to reverse direction and get to class-neutral laws and policies.

Roger Sweeny said...

Hidden within plain sight in David's analysis is what's almost certainly going on here. Black judges are on average considerably to the left of white judges. So of course defendants will do better with black judges than white judges.

What the researchers have probably found is simply that a judge's politics affect how she decides cases.

William said...

I'd be interested in reading a study of any significant human activity in which race or gender did not factor into the outcome.

Pogo said...

Churchy LaFemme.

Morgan said...

Doesn't this bolster the argument that the Supreme Court should have a composition that mirrors that of the populace? Too many old white men.

Pogo said...

Maybe justices should be literally blindfolded.

holdfast said...

We need more wise Latino judges, apparently. No, really.

EDH said...

But here come the judge!

Here come the judge!

Scott M said...

This is only surprising if you don't know any humans.

Too many jims said...

David and MadisonMan,

Welcome to the world of legal scholarship! The vast majority of legal scholarship does not receive meaningful pre-publication peer review. My guess is that the student who chose the piece for publication had little to no background in statistics. Which is not to suggest that there is no there there, just that it would be helpful if people with a critical eye and the appropriate training had a role in the editorial process.

former law student said...

one study found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost ... 79 percent when the judge was white,

As Julius Caesar once wrote,

Rerum omnium magister usus.

Kirby Olson said...

Law could be like the Dating Game in which the defendants are in another part of the room separated by a screen from their Judge.

zt said...
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