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Advanced Search Abstract This article addresses a key question in debates around judicial diversity: The article begins by outlining the range of arguments for a more diverse judiciary which include, but are not confined to, making a difference to substantive decision-making.
It then turns to consider the considerable evidence which now exists both to refute and to support the existence of substantive differences in decision-making following the appointment to the judiciary of women and others from non-traditional backgrounds. On the basis of this evidence, it draws conclusions as to the kinds of differences in decision-making which might be expected, and the circumstances under which different approaches to decision-making are likely to flourish.
Introduction There has been significant attention paid in England and Wales in recent years to the need for greater judicial diversity; in particular, the need to appoint more women judges. He professed to be unsure whether women judged differently from men, and wondered if it would be possible to tell, from reading a selection of anonymized judgments, which were written by women and which by men.
The students were presented with 16 Court of Appeal judgments in the areas of family law, employment law, and criminal law, eight written by men and eight written by women, and asked to identify the gender of each judgment-writer.
The students correctly identified the gender of the judge about half the time, and were incorrect half the time. That is, they did no better than tossing a coin to determine the gender of each judicial author.
I used to be quite sceptical about these arguments that it made a difference. The more I have thought and read about it and the more that I have experienced being in a collective court, the more I have thought that, yes, a difference can be made.
I think it could be made on anything. You may be aware that there was a very interesting project recently, the Feminist Judgments Project, where some academic, feminist lawyers decided that they would rewrite from a feminist perspective the judgments in a range of mostly famous cases from areas all round the law.
Sometimes they reached exactly the same conclusion but with a different reasoning and sometimes they reached a different conclusion, demonstrating with varying degrees of success that where you start from can have an effect on where you end up.
The questions asked by Lord Neuberger and Lord Pannick, however, demonstrate an ongoing concern, and a lack of clarity and certainty, as to whether a more diverse judiciary will make a difference to substantive decision-making, and if so, how and when such a difference might be made.
This article addresses these questions. In doing so, it goes beyond well-established theoretical arguments to examine new and emerging empirical evidence on the subject, from a range of sources.
The insistence on difference—whether such difference is true or not—can place undue pressure on women to make a difference (Malleson ), though, as Hunter points out, the expectation to make a difference should lie with feminist judges. Even if there appears to be some gender effect on decisional outcomes in some gender-related cases, a. 18 Bertha Wilson, Will Women Judges Really Make a Difference? () 28 Osgoode Hall L J 3 19 Rosemary Hunter, Can Feminist Judges Make a Difference?  15 Intl J Legal Prof 1 Int J of the Legal 44 Sharon Cowan, “Freedom and Capacity to Make a Choice: A Feminist Analysis of Consent in the Criminal Law of Rape” in Vanessa . This article examines whether the gender balance on the High Court of Australia has disrupted the gender regime. In so doing it considers the first lead judgments of the three women judges who sat concurrently on the High Court of Australia between and early
I argue that non-traditional judges clearly may reach different decisions, but their willingness and ability to do so are constrained. I further argue that while some constraints are unavoidable, others are unnecessary and should be reversed in the interests of better decision-making.
Before proceeding with my specific argument about substantive diversity, I shall first place it in context by reviewing the range of reasons for having a more diverse judiciary.
At the outset of this discussion, it is necessary to acknowledge some unevenness in the available sources. While there is some literature on the importance of judicial diversity from the point of view of race, ethnicity, and sexuality, 13 there is, by contrast, an extensive feminist literature speculating or making claims about the difference women judges might make.
Since then, dozens if not hundreds of articles and reports have been written on that topic.
To summarize the literature in a short space, there are six basic arguments as to why and how women judges make a difference. The first three arguments are symbolic. Firstly, the presence of women judges increases the democratic legitimacy of the judiciary, because a bench including women is more representative of the wider society which it serves than a bench with no women.
Thirdly, the presence of women judges provides encouragement and active mentoring for women in the legal profession, law students, and indeed younger women and girls, to aspire to, seek, and obtain judicial appointment, thus creating a virtuous circle enabling the gender balance in the judiciary to be improved.While there is some literature on the importance of judicial diversity from the point of view of race, ethnicity, and sexuality, 13 there is, by contrast, an extensive feminist literature speculating or making claims about the difference women judges might make.
"Do Women Refugee Judges Really Make a Difference? An Empirical Analysis of Gender and Outcomes in Canadian Refugee Determinations." Canadian Journal of Women . Wilson, Bertha.
"Will Women Judges Really Make a Difference?."Osgoode Hall Law Journal (): these women judges will bring to bear the same neutrality and impartiality. However, if you conclude that the existing law, in some reflection, and critical analysis which had served them so well with respect to other .
The article, "Will Women Judges Really Make a Difference?", is an analysis on a major characteristic of the judging profession. Appointed to the Supreme Court of Canada, Madame Justice Bertha Wilson investigates the validity of the claim that judges must be unbiased when deciding cases before the court.
The insistence on difference—whether such difference is true or not—can place undue pressure on women to make a difference (Malleson ), though, as Hunter points out, the expectation to make a difference should lie with feminist judges. Even if there appears to be some gender effect on decisional outcomes in some gender-related cases, a.
which the judge can put his or her finger. Yet by failing to appreciate this, many judges are lulled into a false sense of security./3 Judge Shientag emphasizes that progress will be made only when judges recognize this condition as part of the weakness of human nature.