Law & Chivalry

This article was quite interesting. “In Federal Appeals Court, Chivalry is Not Dead.” I read the post and I decided to take a gander at the study that the post was responding to. Entitled “Chivalry, Masculinity, and the Importance of Maleness to Judicial Decision Making,” the abstract immediately informs the reader that “social science research on gender in the legal system has largely focused on the woman as the “other.”” The study’s main thrust was this: legal studies typically have an androcentric focus and examine women within the legal system (litigants and members of the judiciary) in contrast to males within the system, rather than as agents in their own right. Nonetheless, the study finds that gender in the judicial context is a mixed bag, making gender based predictions of litigant outcomes highly imperfect. The study analyzed data sets from immigration cases brought before three-judge panels in eleven federal appeals court circuits.

Personally, I think that the blog post’s title is misleading, as the researchers ultimately (and begrudgingly) come to the conclusion that outcomes are highly dependent upon the gender ratio on the bench. Specifically, they found that all male panels were likelier to rule in favor of female litigants while “mixed” panels were likelier to rule in favor of male defendants. However, the study did not address litigant outcomes with all female panels, and the study failed to define what constitutes “mixed” or “gender balanced” panels, considering the impossibility of evening an oddly numbered panel.

The study also fails to consider that (1) outcomes are tied to the facts of the case and (2) that outcome trends are not always functions of prejudice or judges’ idiosyncrasies but rather may be due to sex related trends, in conjunction with interpretations of law and the appropriate application of law to fact. Simply put, this is legal analysis that fails to consider the role that law plays in legal determinations. The study acts as though litigant outcomes occur in vacuums. The study’s authors never consider whether the cases were wrongly or rightly decided based upon the facts of the cases. For example, in any given case there are often mitigating or aggravating factors that positively or negatively sway a determination. A mitigating factor could be having a child that is a citizen of the United States while aggravating factors could be a criminal record or visa malfeasance. As it is well known, men tend to commit crimes at higher rates than do women, and while the “Russian mail order bride” phenomenon is well known, men tend to be the ones running sophisticated visa fraud operations. Furthermore, it is easier to determine maternity than it is to determine paternity, while women are likelier to be responsible for the care of dependents and to have child custody.

So, if male litigants’ cases are likelier to feature aggravating factors on appeal than are female litigants’ cases, better outcomes for female litigants are to be expected. Therefore, if all male panels are “harsher” on male litigants, it seems to suggest that the outcomes are not the result of “chivalry” but rather the result of properly considering all relevant facts and all relevant law and coming to correct conclusions.

If anything, this study casts doubt upon the wisdom of having female-balanced or all female benches, as the study finds that mixed panels tend to rule against female litigants and favor male litigants more frequently, even though the statistics suggest that this should not be the case. It seems as though the male judges are getting it right rather than playing favorites, while the female judges are relying not upon analyses of law and fact but rather upon raw, primal emotion and getting it dead wrong.

TL;DR: Chicks dig jerks & chick judges come to (statistically speaking) incorrect conclusions when it comes to sexy badboy male litigants, but researchers misinterpret male levelheadedness and commitment to law and logic as chivalry in the judicial context.

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