Tuesday, September 27, 2022
Vivian Rotenstein & Valerie Hans, Gentlewomen of the Jury, Michigan Journal of Gender & Law, Forthcoming 2023
This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.” Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service. Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.