Gender and the Law Blog

Fernanda Nicola on "Italian Influence on European Law; Where are the Women?"

Fernanda Nicola has authored Italian Influence on European Law; Where are the Women?. The article is forthcoming in the Italian Law Journal. The introduction is excerpted below: 

This article interrogates the conspicuous absence of women in European law through the lens of a recently published volume on the Italian influence on European law. The volume, which compiled biographies of 11 judges and advocates general serving at the European Court of Justice since its inception in 1952, reveals an unmistakable "Italian-ness" that, until 2000, was exclusively male. Notably, the majority of these Italian jurists were scholars, many having spent substantial portions of their careers as legal academics before their appointments. By juxtaposing this male-dominated narrative with the gradual increase of women in Italian legal academia, the article examines the systemic factors that have historically precluded women from attaining positions of substantive authority. It critically explores the entrenched, patronage-based academic recruitment systemincluding the notorious "concorso"-and the enduring gender dynamics embedded within traditional legal institutions. Drawing on historical analysis, firsthand scholarly accounts, and reflections from academic symposia, the study reveals how the prevailing "maestro" system and informal pathways have reinforced gender disparities, limiting the visibility and influence of pioneering Italian women. Although recent reforms have aimed to enhance inclusivity, these measures have yet to dismantle the deep-rooted cultural and institutional barriers evident in the opaque selection processes by the Italian government for European judges. The article calls for a comprehensive research agenda that combines quantitative and qualitative methodologies to recover the untold narratives of Italian women, thereby advancing a more equitable framework in legal academia.

Integrating Women's Legal History and Women Judges Into Wikipedia

Sally Kenney, Women Judges and Wikipedia, 16 ConLawNOW 109 (2025)

Although many academics may openly discourage their students from consulting it, Wikipedia is the go-to first port-of-call for information for scholarly research, journalists, and even judges. Its info boxes are the source for Google and artificial intelligence in general. Wikipedia is the largest and most widely used encyclopedia in history. Just as feminist scholars have broken into mainstream journals and gained a toehold within university presses, these sources have become increasingly irrelevant and unavailable behind paywalls. Instead, Wikipedia has emerged as the standard research source, but it presents significant barriers to entry for feminist scholars and subjects of women, feminism, and gender. After explaining those barriers, this essay encourages scholars to embrace and learn to contribute to Wikipedia as an important way to amplify feminist voices and disseminate discoveries to prevent the erasure of women and feminism from history. It takes as its example, a project profiling women judges.

Study Shows Women Federal Appellate Judges Invest More Time and Effort Crafting Opinions but Yield Less Influence in Developing Law

Laura Moyer, John Szmer, Susan Haire & Robert Christensen, Making Their Mark: Women Judges on the U.S. Court of Appeals, 16 ConLawNOW 100 (2025)

Women who reach the bench in the U.S. Courts of Appeals have endured the gauntlet of law school, legal practice, and Senate confirmation to secure their prestigious place in the federal judiciary. How do these exceptional individuals approach their role in shaping judicial policy—and how do their colleagues receive their work? In this paper, we will draw on findings from an original dataset of published decisions from 2009-2016 that suggests that women judges invest more time and effort in crafting majority opinions than their male counterparts, but that this investment has a comparatively lower yield in influencing the development of legal policy outside their circuit. These findings have implications for organizational culture within a court, the development of new technologies, and socializing law clerks into the profession

Maryland Sup. Ct. Ruling on Woman's Internet Search Relating to Pregnancy Termination

In Akers v. State of Maryland, the Supreme Court of Maryland held on Feb. 19th that evidence that a woman had searched the internet about pregnancy termination during the time period in which abortion was legal in Maryland was irrelevant to her intent to kill a newborn after birth. The Court ruled 4-1-2.

The State of Maryland charged Petitioner, Moira E. Akers, in the Circuit Court for Howard County with murder and child abuse resulting in the death of her newborn. The charges arose in connection with Ms. Akers’ at-home delivery of the baby without her husband’s knowledge that she was pregnant at the time. Ms. Akers was the sole witness to the delivery. Ms. Akers maintains that the baby was stillborn, and the State contends that the baby died of asphyxiation at Ms. Akers’ hands. A jury convicted Ms. Akers of second-degree murder and child abuse resulting in death. The trial court sentenced Ms. Akers to 30 years of imprisonment for murder and a concurrent 20 years of imprisonment for child abuse resulting in death. The Appellate Court of Maryland affirmed in an unreported decision.

 

This Court granted certiorari to determine whether evidence of Ms. Akers’ internet searches about terminating a pregnancy during a period in which she would be able to legally obtain an abortion in this State and her decision to forgo prenatal care are irrelevant to an intent to kill or harm a newborn at birth, or, if marginally relevant, unfairly prejudicial.

 

We hold that the internet searches are irrelevant and that the trial court erred as a matter of law in admitting them. We similarly hold that Ms. Akers’ bare decision to forgo prenatal care was not probative of motive or an intent to kill or harm a live child. To the extent that the State has asserted that evidence of disparate prenatal care was relevant, given that this argument is being raised for the first time before this Court, we decline to address it. In light of our holding on the inadmissibility of the abortion searches, we reverse the judgment of the Appellate Court and remand this case to the circuit court for a new trial.

 

Bibliography to Research on Gender and Judicial Decision-Making

Joshua Hochberg, Gender and Judicial Decision-Making, Legal Reference Services Quarterly

Few early studies examined the relationship between a judge’s gender and their decisionmaking because few women served as judges before the 1980s. However, subsequent decades witnessed a marked increase in the number of female judges. Scholars took note of this increase and began to ask whether gender might influence judicial decision-making.

Indeed, over the past quarter-century, social scientists have developed a “voluminous body of literature” on this topic.
Accordingly, the purpose of this annotated bibliography is to catalog recent scholarly journal articles researching the relationship between a judge’s gender and their decision-making. I omit dissertations, policy reports, books, and unpublished manuscripts. I also omit research on how the gender of a judge influences their peers and how male and female judges arrive at and/or deliver their decisions. I organize articles by jurisdiction. Articles examining cases heard by the United States Courts of Appeals are first, followed by Federal District Courts, State Supreme Courts, and State and Local Trial Courts.

Virtual Symposium "Women's Leadership in Law & Politics" at The Center for Constitutional Law and Bliss Institute for Applied Politics at Akron

Registration is now open!

 

WOMEN’S LEADERSHIP IN LAW & POLITICS

Winter Symposium

The Center for Constitutional Law & The Bliss Institute for Applied Politics at The University of Akron

Friday, February 21, 2025 ~ 9:00am to 4:00pm EST

REGISTRATION: Akron Virtual Symposium Women's Leadership

 

Full Schedule: Download 2025 Women's Leadership Schedule

Kentucky Supreme Court Has First Black Woman Justice

Pamela Goodwine Makes History Again as First Black Woman on Kentucky Supreme Court

Judge Pamela Goodwine is no stranger to firsts — she was the first Black woman in Lexington to be district judge and, later, the first to be circuit judge.

She became the first Black woman to serve on the Kentucky Court of Appeals after being elected in 2018.

Now, she’s made history again.***

“Being elected to the Kentucky Supreme Court tonight gives me the honor of being the first woman and only the fifth person in history to serve at every level (of the judiciary),” Goodwine said in a short speech just before 9 p.m. “Our campaign stood firmly on experience, honesty and a commitment to impartiality and the rule of law to protect and serve every citizen.”***

Goodwine has overcome challenge after challenge to achieve career successes, according to archived newspaper reporting from the last 30 years.

In foster care as an infant and later adopted by her foster parents, the Youngstown, Ohio, native and high school valedictorian gave up a college scholarship to support her adoptive father who was dying of lung cancer, the Lexington Herald-Leader reported in 2023. 

About 6 months after her father was diagnosed, he died. After his death, according to the Herald-Leader, his brother killed her mother.  

Goodwine, a young adult, had then lost both parents in tragic circumstances. And, she “had to deal with the judicial system” because of her mother’s murder, she told The Winchester Sun in 2018. 

At 24, she was diagnosed with Crohn’s disease, an incurable bowel inflammation condition that can be painful and disruptive to life. 

After diagnosis, according to 1995 Herald-Leader reporting, she spent two months hospitalized and had to re-learn how to eat and walk. 

She began working in the courts  as a legal secretary and court stenographer. She earned undergraduate and law degrees from the University of Kentucky and in 1994 entered private practice with the firm Wyatt, Tarrant & Combs until her appointment to the district court bench in 1999.

During this fall’s campaign for Supreme Court justice, she lost her granddaughter and great-granddaughter in what her campaign described as a “tragic car accident” in October. 

Justice O'Connor's Papers Show She Would Have Dissented in Chevron

CNN, What Sandra Day O'Connor's Papers Reveal About a Landmark Supreme Court Decision (April 2024)

The newly opened papers of the late Justice Sandra Day O’Connor reveal the internal deliberations of a groundbreaking Supreme Court case [Chevron v. Natural Resources Defense Council] that gave US regulators significant latitude to protect the environment and public health – and show how the ruling almost never happened.***

More broadly, O’Connor’s contemporaneous notes now open at the Library of Congress offer a view into how nine justices communicate in private, revealing personal predilections and some exasperation as they negotiate against looming deadlines.

In the Chevron case, testing the protections of the Clean Air Act, the papers reveal an overall tentativeness among justices as they struggled with statutory intricacies and worked toward compromise while teetering on the loss of a quorum (only six of the nine justices were on the final tally).***

According to O’Connor’s note from the first vote in the justices’ private conference in mid-May, only Justices Byron White and William Rehnquist wanted to grant the case. O’Connor offered a “join 3,” meaning she would provide the requisite fourth vote if three others wanted to hear the case. But there was no third vote at that point.

Powell asked that they all wait at least another week so he could continue mulling the dispute, and when the nine again voted at the end of the month, he was ready to provide a third vote. So, with O’Connor’s “join three” the case was accepted.

On the day of oral arguments, February 29, 1984, two justices happened to be out ill (Rehnquist and Thurgood Marshall). They both declined to participate in further deliberations on the case.***

In the justices-only conference after the Chevron oral arguments, the vote among the seven participating justices was a close 4-3. O’Connor recorded most of the justices as being tentative or “very shaky.”

She also appeared mildly irritated with Rehnquist’s withdrawal. He had been one of the bare-minimum votes to grant the case. O’Connor wrote on her tally sheet next to Rehnquist’s name: “out of case tho was one of 4 to grant!”

So why didn't she dissent? She recused at the last minute, post-argument:

That very same day, June 14, O’Connor revealed a potential conflict of interest.***

Back in 1984, O’Connor’s recusal reasoning was kept private, although at the end of the decision it noted that she, Marshall and Rehnquist took no part in the decision. According to her June 14 once-confidential note to colleagues, she appears to have erred on the cautious side.

“I have reviewed the petitions for certiorari in these cases and discovered that I should be recused. Since the arguments were heard, my father died,” she wrote of her father, Harry Day, who ran the family’s Lazy B ranch in Arizona.

“His estate is still unsettled, but I will have a remainder interest in a trust to be established. His estate holds stock in at least one of the parties to this action and until it is settled, I think it best that I not participate,” she added.

Dissenting in Chevron would have meant rejecting Reagan's pro-business agency interpretation. For the decision in Chevron meant upholding an interpretation of the Clean Air Act favorable to industry, requiring less regulation. Maybe that is also why Rehnquist so easily bowed out, rather than following up on his cert grant and reviewing the transcript or recording of the oral argument he missed.

The Chevron dispute began when the Reagan administration retrenched on standards for air quality and loosened state permitting requirements for new and expanded factories and power plants. . . . . After the Natural Resources Defense Council and other environmental groups sued, the DC Circuit US Court of Appeals agreed with environmentalists that the regulation conflicted with the statute and set it aside.

New Book Justice Jackson's Autobiography

Kimberly Robinson, Book Review, Justice Jackson had "Wrenching Time" as Big Law Working Mom, reviewing Lovely One by Ketanji Brown Jackson.

Supreme Court Justice Ketanji Brown Jackson described her return to law firm life after the birth of her first daughter as “wrenching,” saying she “drastically underestimated the challenges of new motherhood.”

“I can honestly say that going back into the office as a new mother, and returning to the cadence and pressures of Big Law, was the stuff of nightmares,” Jackson said in her memoir, “Lovely One,” which was released Tuesday.

She describes the challenges of commuting, breastfeeding, and having to slip out of the office apologetically “at the unspeakably early hour of five P.M. each workday.” And in particular, she details the isolation and lack of motivation she felt of returning to Goodwin Procter after four months of maternity leave.

For “me, there was a hollowness to the corporate law enterprise,” Jackson wrote.

ABA Profile of Legal Profession and Women in Law

One of the best sources for statistics on women in the legal profession.

ABA, ABA Profile of the Legal Profession 2023, Women in Law

The percentage of female lawyers has slowly inched up in recent years, according to the ABA National Lawyer Population Survey, a tally of lawyers by licensing agencies in every state. In 2010, fewer than one-third of all lawyers (31%) were women. Thirteen years later, in 2023, 39% of all lawyers were women.

The long-term trend is easier to see when viewed over the course of decades. The biggest growth in female lawyers came in the 1980s and ’90s. From 1950 to 1970, only 3% of all lawyers were women. The percentage increased to 8% in 1980, 20% in 1991 and 29% in 2000.  

The trend is also apparent at law schools. The number of male students has declined every year for the past 12 years – from 78,516 in 2010 to 50,969 in 2022. Meanwhile, the number of female law school students has increased every year for the past six years – from 55,766 in 2016 to 65,073 in 2022. Women now significantly outnumber men in U.S. law schools, and the gap is widening. In 2022, there were 14,000 more female students than male students.

The number of female federal judges has increased dramatically. The first woman was appointed to the federal judiciary in 1928, when 217 men held that position. By 1950, there were still only three female federal judges. That rose to 46 in 1980. And by Oct. 1, 2023, there were 455 women on the federal bench – nearly one-third of all federal judges (32%).

The picture is somewhat different in state Supreme Courts, where 42% of all high-court justices are women, according to a 2023 survey by the Brennan Center for Justice at New York University. That’s nearly the same as the share of all lawyers who are women nationally: 39%. 

Revisiting the Legacy of a Feminist Icon, Ruth Bader Ginsburg

Deborah Brake, Gender and the Law: Revisiting the Legacy of a Feminist Icon, Ch. 1 in THE JURISPRUDENTIAL LEGACY OF JUSTICE RUTH BADER GINSBURG (Ryan Vacca & Ann Bartow, eds., NYU Press 2023)

Justice Ginsburg attained celebrity status in her later years as the voice of feminism from the bench, but her influence on law and gender was not always so venerated. For much of her career, feminist scholarly criticism of her gender jurisprudence was sharp. Critics called the approach “formal equality,” pointing out that it benefited those women most similarly situated to men. The criticism echoed that leveled against her strategy as a litigator representing male plaintiffs. In recent years, Justice Ginsburg’s legacy has been burnished by a fresh interpretation crediting it with a more robust vision of gender equality than previously appreciated. This chapter contends that, while far from radical, the Justice’s gender jurisprudence is a product of a jurist committed to minimizing the role of gender as a site of social and economic oppression.

Although Justice Ginsburg’s impact on gender equality can fill a book on its own, this chapter focuses on identifying and explaining three core themes: an antipathy toward gender stereotypes embedded in the law; a vision of gender equality that transcends formal equality; and a recognition of the centrality of reproductive freedom to women’s equality. Each of these themes has been advanced, albeit imperfectly, by Justice Ginsburg’s career as a litigator and a jurist.

Lambda Legal Publishes Report on LGBTQ+ Representation in the Judiciary

Lambda Legal has published a report on LGBTQ+ representation in the federal judiciary. The report concludes that there are 26 states with no openly LGBTQ+ district or circuit level judges. Twenty-one of those states have an open vacancy to which Biden could make an appointment. The report also states that 40% of the federal judges appointed by Trump had "demonstrated a history of hostility toward LGBTQ+ people." The report explains why representation matters: 

Federal courts are often the final authority on the civil rights of underrepresented groups, including LGBTQ+ people and people living with HIV. Right now, there are cases in our federal courts, challenging bans on gender affirming care for youth and bans on transgender youth playing sports with their peers, defending people living with HIV from discrimination in employment and protecting access to health care, challenging state laws that prohibit drag performances and those that seek to remove LGBTQ+ themed books from schools and libraries, among many others. The rights of everyone in the community are under attack. If we hope to defend our legal protections and build upon our victories, ensuring that fair judges, who don’t hold biases against LGBTQ+ people and people living with HIV, are the only judges that get a seat on the federal judiciary must be a priority.

 Read the full report here. 

Velte on "The Supreme Court's Gaslight Docket"

Kyle Velte has published "The Supreme Court's Gaslight Docket" in Volume 96 of the Temple Law Review. Here is the article's abstract: 

The U.S. Supreme Court's new conservative supermajority is gaslighting the American public. This Article takes a systematic look at key cases from the Court's October 2021 Term through the lens of gaslighting. It describes these cases as being part of what it dubs the Court's “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court's recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has been the subject of academic and theoretical inquiry. This Article identifies gaslighting in both oral arguments and written decisions of the Court's civil rights cases. It reveals that this gaslighting is transsubstantive, spanning cases involving voting rights, race discrimination, affirmative action, reproductive rights, LGBTQ rights, and the First Amendment's religion clauses.

Because gaslighting has epistemic dimensions--knowledge production and gaslighting are connected--gaslighters instill epistemic doubt in their victims as a way to have the gaslighter's production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower”--indeed, it is given the position of ultimate “knower” of the meaning and application of the Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 Term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and antidemocratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalist movement, declaring that those interests are not coequal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the Article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalist ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

The Life and Work of the First Woman Elected Justice of the Peace, Catharine Waugh McCullough

Sandra Ryder, Clearing the Bar: Catharine Waugh McCullough and Illinois Legal Reform

Catharine Waugh McCulloch was one of the first women admitted to practice law in Illinois, and the 18^th woman admitted to practice in front of the U.S. Supreme Court. After graduating from law school and passing the bar, she experienced difficulty finding a legal position in Chicago, so she opened an office in Rockford, Illinois, where she often took on destitute women clients. She initiated the shared writing among women attorneys, which became the Equity Club. She ran for Attorney General in 1888 and was active in many women's groups. After marrying a classmate from law school, the two formed a partnership in law and marriage; they wrote briefs, tried cases and published legal documents together.

 

McCulloch drafted a bill which changed guardianship laws, and another which raised the age of consent for girls from 14 to 16, both of which were passed into law. After an Illinois case gave women the right to vote in school elections, McCulloch recognized the significance of this ruling. Together with the Illinois Equal Suffrage Association, she and other suffragists toured the state by auto, speaking and handing out flyers and pamphlets. She drafted a bill by which Illinois women could vote in municipal and presidential elections, and every year, for 20 years, she and others went to Springfield to testify and lobby for her bill; it passed in 1913, and this Illinois suffrage law was instrumental in the passage of the Nineteenth Amendment. Not satisfied, McCulloch worked with the Chicago charter revision committee to have women's suffrage included; she fought to have the Illinois Constitution revised to include women's suffrage; she was successful in both efforts.

 

Meanwhile, in 1907, McCulloch was the first woman elected to a judicial position, Justice of the Peace, in Evanston, Illinois, and by all men. She was appointed Master in Chancery of the Cook County Superior Court for four, two-year terms. She was selected the first woman elector to the State Democratic Convention in 1916. While practicing with McCulloch & McCulloch, she had one case which used contract law to set public policy regarding wholesomeness of food; this case later was incorporated into one portion of today's Uniform Commercial Code. Since much of their practice dealt with probate and estates, the McCulloch's co-authored A Manual of the Law of Will Contests in Illinois.

 

With the National League of Women Voters, McCulloch fought for years, again using print media, speeches and women's groups, to have women on juries, and to make the laws concerning women uniform throughout the U.S. *3 Always committed to utilizing law to reform the legal status of women and children, McCulloch wrote plays, essays, legislative bills, speeches, pamphlets, and used the power of print media to convince the public; her plays were still being produced in the 1990s.

 

After their many years of legal practice and innovation, in 1940 both McCulloch and her husband were named “Senior Counselors” of the Illinois Bar Association. But her legacy is far more reaching; when any woman votes, retains custody of children or property in a divorce, or serves on a jury, it is because of the vision and relentless legal work of Catharine Waugh McCulloch and her peers.

 

In track and field, clearing the bar indicates that the person has exceeded expectations and is ready to face even more difficult ones. McCulloch did not just pass the bar; because women entering the legal profession was in its infancy, and due to the bulk and import of her legal contributions, McCulloch cleared the bar with room to spare.

Sweeny and Canon on "The Language of Love v. Beshear"

JoAnne Sweeny and Dan Canon have published The Language of Love v. Beshear: Telling a Client's Story While Creating a Civil Rights Case Narrative in volume 17 of the Journal of the Association of Legal Writing Directors. The article was shared on SSRN here. The Introduction is excerpted here: 

We tend to think of a good lawyer as being a vigorous, focused advocate, one who thinks first and foremost of the interests, needs, and desires of their clients. But what if the client’s case will affect an entire group of people; a group who may also seek to have its collective rights vindicated? This is the dilemma of the civil rights attorney—how does an effective advocate balance the specific needs of the client with the broader, long-term needs of the group the client represents? And who should have a say in what story is told on behalf of the client? In civil rights cases, it is not just the client, but activists, organizations, academics, and the media who have a stake in the outcome. How much of a say should they have in the creation of a litigation story that will most directly impact a single client? How are those stories crafted? With careless, blunt-force litigation, or with purposefulness? And does it matter who gets to tell the story?

 

* * *

Focusing on the Kentucky case, Love v. Beshear, this article shows how civil rights attorneys may be constrained by their dual roles—advisors to their clients and advocates for civil rights—and how they decide what story to tell to remain true to their clients’ needs while keeping engaged with the larger civil rights issues inherent in these impact litigation cases. Moreover, once the litigation has begun, the other players—organizations, media, even the judges themselves—can change the story, highlighting what they see fit. The ultimate story of who a lawyer’s clients are ultimately may not be up to the lawyer or the client.  

 

It concludes: 

 

Obergefell built a bridge to same-sex marriage, creating solid ground for the next group of civil rights lawyers
to again expand our understanding of what relationships and “equal dignity” really mean. As the country’s understanding of same-sex couples has evolved, so has the array of stories that lawyers can tell about groups that may be insular or unfamiliar to the broader public. For example, now that transgender, bisexual, nonbinary, and polyamorous people’s stories are becoming more mainstream, their stories can be used to champion a broader understanding (and legal recognition) of fundamental rights. This continuous opening of new chapters to familiar stories is the essence of civil rights advocacy.

Hillel Bavli on "Stereotypes as Evidence"

Hillel Bavli has published a draft of Stereotypes as Evidence on SSRN. This article is forthcoming in volume 77 of the Stanford Law Review in 2025. It analyzes how the admission of profile evidence "involves substantial risks for the aims of fairness and equal treatment based on race, gender, economic status, and other personal characteristics."

Baserate evidence connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.

 

In this article, I show that although some forms of baserate evidence are desirable and even critical to achieving an accurate case outcome, a common form of baserate evidence called profile evidence constitutes unrecognized character evidence—evidence that a defendant acted in accordance with a certain character trait and that is prohibited by federal and state evidentiary rules. To show this, and to describe precisely the relationship between baserate evidence and character evidence, I draw on an area of statistics called Bayesian inference to define a new concept that I call population-propensity evidence. It describes a behavioral propensity of a population to suggest that an individual member of the population acted in accordance with this propensity. I show that this evidence—a form of baserate evidence that involves behavioral stereotyping—relies on impermissible character reasoning and therefore determines whether baserate evidence constitutes character evidence.

 

Finally, I discuss critical implications of my analysis. First, I show how an understanding of population-propensity evidence contributes descriptively to resolving longstanding confusion and inconsistency surrounding baserate evidence and profile evidence in particular. I then demonstrate that applying the rule against character evidence to determine the admissibility of profile evidence is essential to achieving correct and predictable evidentiary decisions, to minimizing the influence of implicit biases based on race and other personal characteristics of a defendant, and to reaching accurate verdicts.

 

Afsharipour and Jennejohn on "Gender and the Social Structure of Exclusion in U.S. Corporate Law"

Afra Afsharipour and Matthew Jennejohn have published "Gender and the Social Structure of Exclusion in U.S. Corporate Law" in volume 90.7 of the University of Chicago Law Review. The article abstract is excerpted here: 

 

Prior qualitative research suggests that [professional] networks are an important source of information, mentoring, and opportunity, and that those social resources are often withheld from lawyers who do not mirror the characteristics of the typically male, wealthy, straight, and white incumbents in the field. We have a common nickname for the networks that result, which are ostensibly open but often closed in practice: “old boys’ networks.”

For the first time in legal scholarship, this Article quantitatively analyzes gender representation within a comprehensive network of judges and litigators over a significant period of time. The network studied is derived from cases before the Delaware Court of Chancery, a systemically important trial court that adjudicates the most—and the most important—corporate law disputes in the United States. Seventeen years of docket entries across more than fifteen thousand matters and two thousand seven hundred attorneys were collected as the basis for a massive network.

Analyzing the Chancery Litigation Network produces a number of important findings. First, we find a dramatic and persistent gender gap in the network. Women are not only outnumbered in the network but also more peripheral within it compared to men. Second, we find that law firm membership and geographical location interact with gender—women’s positions within the network differ by membership in certain firms or residence in particular geographies. Finally, as we drill down into the personal networks of individual women, we find arresting evidence of the social barriers female Chancery litigators regularly confront: from working overwhelmingly—sometimes exclusively—with men in the early years of their careers to still being shut out of male-dominated cliques as their careers mature.

The Article’s findings set the stage for subsequent research to test the connection between gender representation in litigation networks and discrete outcomes, such as the incidence of bias in judicial opinions. It also demonstrates how subsequent research can incorporate network structure into quantitative and qualitative studies of not only gender bias but also other forms of inequality in law. With respect to policy, it provides the necessary first step to crafting normative interventions that improve equitable access to social resources by making networks more empirically concrete. With that added clarity, the network approach then allows us to calibrate remedial options available to bar associations, law firms, and individual attorneys, leaving no level of the institutional setting untouched.

Recent Appointments: Women are Improving the Federal Bench

 

Women Are Improving the Federal Bench: Milestones and Historic Firsts, Ms.

The professional and demographic diversity these judges bring to our federal courts matters. Our diverse nation needs judges who reflect and represent all of us. And we know this: Demographic and professional diversity on our courts has been shown to increase public trust in the judiciary and improve judicial decision-making. More diverse courts include the perspectives of communities who have been traditionally excluded from seats of power in the judiciary’s formal and informal decision-making, and judges from different demographic and legal backgrounds infuse more viewpoints into judges’ deliberations. Diverse courts help communities trust that judicial decisions are fair and do not favor a select few like the wealthy and powerful.

I. India Thusi Reviews Maybell Romero's "Ruined"

I. India Thusi has published a review of Maybell Romero's article, Ruined, 111 Geo. L.J. 237 (2022). Thusi's review is titled Un-Marking Rape Victims. Thusi writes: 

[Romero's] vulnerability in this piece is laudable, but her positionality as someone who has experienced the trauma of rape makes her especially qualified to assess how a rape victim might experience judges marking them as ruined. And labeling someone as ruined is a marking. Ruined means “the physical destruction or disintegration of something or the state of disintegrating or being destroyed.” Ruined reflects a permanence. A complete destruction of the person. It is an irrevocable status, and when the highest authority within a courtroom – the judge – labels a victim ruined, it is a permanent marking of the person’s disintegration. Romero experienced the harm of this labeling as she sat in courtrooms listening to judges repeatedly mark rape victims ruined. She was able to identify the issues with this labelling because of her subjective position in society, and she is using the tools of the law, which include legal scholarship, to address this harm that might otherwise have gone unnoticed.

* * * 

Romero’s piece invites judges to embrace a language that rejects a narrative that reduces rape victims to the permanent status of ruination. Given the legal history of rape, the direct harm that might flow from labeling someone permanently destroyed, and Maybell’s personal account of how she experienced the use of the term, I am persuaded that judges should avoid this term. I hope others in the legal academy are similarly moved by this remarkable article.

Romero's full article is available here. 

Judicial Dark Matter and the Continued Gender and Racial Inequalities on Federal Appellate Panels

Nina Varsava, Keith Carlson, Michael Livermore & Daniel Rockmore,  Judicial Dark Matter, 91 U. Chicago L. Rev. (forthcoming)  

Judicial reform efforts aimed at rectifying historical gender and racial inequalities understandably focus on increasing the number of women and people of color on the bench. While this is an important program, this Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments. This problem has to do with the understudied and largely covert practices of judicial administration. Through a large-scale empirical study of federal appellate decisions, we examine the distribution of judges along the lines of gender and race across decision panels and find systematic gender and racial biases in representation. We argue that these imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, which results in concerning distortions in reported cases. This is the first study of the representation and distribution of judges by gender and race across decision panels. Ultimately, our findings suggest that assessing the distribution of legal power and influence across gender and racial groups based on the numbers of judges from these groups serving on the bench may be misleading and may create an inflated sense of the influence of judges from historically underrepresented groups. The diversity reform agenda, then, as it is typically cast in the scholarly literature, the political sphere, and the popular media alike, is incomplete. One cannot hope to understand how representation translates into power nor to remedy demographic power imbalances in the judiciary without attending to the features of judicial administration examined here. We propose reforms to judicial administration aimed to protect against the kind of demographic biases in representation that we uncover.