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"Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking"

  • Publication: University of Southern California Law Review

1/28/2012, Laura Beth Nielsen, University of Southern California Law Review

With Jill Weinberg

There are instances in which personal experience becomes particularly relevant during a judge’s tenure.  For example, Justice Clarence Thomas’ critical comments during the Virginia v. Black, et al. cross-burning case made news headlines in part because he was the lone African-American on the bench who grew up in the South.  However, it was the now-Justice, then-nominee, Sonia Sotomayor’s comment about the “wise Latina” that sparked renewed interest in whether and how life experiences and individual characteristics affect case outcomes.  This question largely has been explored theoretically but not empirically.  The current empirical scholarship on judicial decision-making has been very limited in scope, focusing mainly on political party affiliation.  Even fewer studies examine how a judge’s characteristics (gender, age, and race) influence case outcome.  This article analyzes the influence of a judge’s background in assessing employment civil rights cases.  Drawing from a case filing dataset of employment civil rights cases filed in seven district courts from 1988 to 2003, we use a logistic regression model to assess whether 1) judicial characteristics such as minority status influence the disposition of cases at the summary judgment phase of litigation and 2) whether a minority plaintiff predicts case disposition. Our analysis suggests that there is variation explained by judges’ minority status with respect to summary judgment outcome, that is, white judges are more likely to dismiss a case, even when we control for variables such as a judge’s gender, political party affiliation, and years on the bench.   Our data also show that white judges have a higher predicted probability of dismissing a case involving a minority plaintiff than cases involving white plaintiffs.

The article is now available. Please click here to access the article in .PDF format.

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