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Viva la difference

female judge.jpg

When I graduated from law school in 1975, there were 14 women in a class of about 200.  There weren't any female justices on the United State or Ohio Supreme Courts, and you could count the number of women on the common pleas court and appellate bench in this county on the fingers of one hand.

You've come a long way, baby.  Between 1970 and 1990, the percentage of women lawyers in the United States rose from 3% to 22%, and increased again to 37% by 2010.  Three of the nine US Supreme Court justices are now women, as are four of the seven on the Ohio Supreme Court, seven of the twelve appellate judges in the 8th District, and twelve of the thirty-three county common pleas judges here. 

So has this made any difference?

I got an email from a reader a while back which posed that question.  She noted that the criminal justice system for more than three decades had been based on a punitive model:  the "lock 'em up and toss away the key" mentality had led to a tripling of the prison population.  In the past few years, though, the pendulum has swung the other way, with probation, rehabilitation, and monitoring instead of prison being the common punishment for first-time non-violent offenders, or repeat drug offenders.  My correspondent, noting the influx of "female judges, prosecutors, and defense attorneys," mused whether "women prosecutors and judges might be more receptive to rehabilitative options."

There's certainly a basis for the hypothesis.  The perspective that women lawyers and judges might view things differently from their male counterparts is drawn from psychological research which posits, as explained in this paper, that

Girls and women tend to view the resolution of conflicts as a problem of care and responsibility in relationships, whereas boys and men tend to view it as a problem of rights and rules. A rights-based approach to resolving a conflict involves identifying the interests of the parties in abstract terms and deciding which party's interest is more important; this reasoning process leads to an outcome in which one party wins and the other loses. A care-based approach, in contrast, involves considering the contextual details of the situation in an attempt to construct a compromise that takes into account the interests of both parties... legal scholars have argued that a care-based feminine jurisprudence would demonstrate an emphasis on protecting the interests of communities and individuals' memberships in communities; on contextual circumstances as opposed to bright-line rules; and on the affirmative responsibilities of courts and governmental actors.

Yeah, well...  As the paper later notes, the empirical support to for this view is pretty nigh non-existent.  One study found that while some women lawyers did adopt a more caring attitude,

others either adapted easily to the prevailing "masculine" mode of legal practice or attempted to compartmentalize their lives, interacting with others in a "masculine" mode at work and a "feminine" mode in their personal relationships.  Moreover, women who attempted to practice in a care mode found themselves facing emotional exhaustion and burnout.

That pretty much accords with my anecdotal observations.  I haven't noticed any difference in the performance of female county prosecutors; to be sure, they're nice to me, charmed no doubt by my rapier wit and intrigued by my Adonis-like physique, but that hasn't resulted in any noticeably improved plea deals for my clients.  As for judges, of the twelve currently on the bench here, I'd put at least seven of them on the conservative side of the spectrum, in terms of favoring a punitive model over a rehabilitative one.

That's not to suggest that there's no difference between men and women, especially when it comes to judging, where it's a lot easier to come up with empirical data.  Studies have found that female state supreme court judges vote more liberally than males in death penalty and obscenity cases.  And female judges were much more receptive to claims of sexual discrimination; in fact, the simple presence of a female on the appellate panel made it more likely that the males would vote in favor of the plaintiff in those types of cases.

The receptiveness of female judges to gender discrimination claims probably has a lot to do with their own experiences in that regard.  A recent study of Ohio lawyers and judges done for the state bar association found a chasm in experiences and views on gender equality.  Only 16% of male lawyers fessed up to observing gender bias in the workplace, compared to 56% of women.  Half of men found that law firms gave women the same opportunities for advancement, an observation shared by only 11% of women.  Four-fifths of male judges felt it made no difference to lawyers whether the judge was a man or woman; barely a third of women judges felt the same way.  And while some of that could be based more on perception than reality -- only 36% of women on the bench felt it was easier for a woman to become a judge, a position completely at odds with the statistical evidence -- a lot of it isn't:  studies have consistently shown that women lawyers earn on average 52% to 64% of men's earnings.  That's not solely the result of gender bias; much of it is explained by differences in family roles.  The OSBA study, for example, found that while 37% of women lawyers between 41 and 45 were childless, only 23% of men in that same age group were.

Still, I can remember a job interview with a small firm back in 1975, where the senior partner confided to me over lunch -- confided, hell, there were five other lawyers from the firm there -- that he wouldn't consider hiring a woman as a trial lawyer.  The likelihood of someone having that attitude is much less, and the chances of them openly acknowledging it are nil.  Women have changed the law.  It's just that when you give a women judge or prosecutor your sob story about your client's drug problem, which he still hasn't managed to get a handle on despite three stints in rehab, don't expect them to get all weepy.


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