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date: 18 August 2017

Gender and the Law

This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of Politics. Please check back later for the full article.

Increased diversity among participants in the justice system, particularly judges, has fueled debates about the values and perspectives that women will bring to the law. Different theories advanced by social psychologists and feminist scholars argue for the premise that men and women in the legal system will approach questions of justice differently. In contrast, empirical scholarship offers only limited support for the expectation that the sex of the judge is related to behavioral outcomes. While most research has not uncovered differences in voting between men and women judges, one area in which consistent differences has been found is in sex discrimination cases.

Recent studies suggest, however, that individual differences between men and women judges may emerge if the focus shifts to the litigation process. In one study of trial courts, cases assigned to women judges were more likely to be settled. In another study of appellate courts, women judges were more likely to pen majority opinions that adopted a compromise position. These findings suggest the promise of shifting the analytical focus away from behavioral outcomes to consider whether, and how, women and men in the legal system shape litigation processes. Doing so will require additional data and triangulated approaches that employ both quantitative and qualitative methods.

Additional research is also needed to explore how shifts in the gender composition of the bench affect organizational norms and practices in the legal system at the federal, state, and local levels. Some work suggests that gender diversity affects deliberations on small appellate panels and consensual norms on larger courts. As the number of women and minorities appointed by recent Democratic and Republican presidents has increased, scholars are also now well positioned to conduct empirical research with larger numbers to investigate how women of color on the bench differ from white women and minority men.