"He Said, She Said": With a Twist

Authors

Ronen Perry, University of OxfordFollow
Oren Gazal-Ayal, Faculty of Law, University of HaifaFollow
Chen Toubul, Tel Aviv University

Abstract

Many studies have explored the effect of judges’ memberships in social categories, such as gender, ethnicity, religion, age, and political affiliation, on their decisions. No study has investigated whether membership in social categories affects public perceptions of judicial decisions, especially when such membership is suspected to affect one’s perception of reality. This question is important, inter alia, because the argument that the judiciary must be representative or reflective of society is partly linked to the assumption that representation enhances public trust in the judiciary. Such an assumption holds to the extent that lack of representation is perceived by members of a particular group as an exclusion of their unique viewpoint. And this may happen because members of different groups (1) truly have different beliefs, values, interests, motivations, and emotional and cognitive processes, or (2) perceive a difference even where none exists. The article focuses on the latter, or, more accurately, on group-based biases in the perception of judgments.

The study examines (1) whether male and female judges’ decisions are perceived differently, and (2) whether men and women perceive judgments differently. Specifically, it examines whether identical judgments concerning gender-charged events are perceived differently due to the judge’s gender, the evaluator’s gender, or a combination thereof, indicating the existence of cognitive biases. To do so, we employ an experimental research design. Our two independent variables are the judge’s gender (an active variable) and the evaluator’s gender (an attribute variable). The dependent variables are evaluators’ perceptions with respect to different features of the judgments. The study asks, for example, whether people deem sentences imposed by female judges on sex offenders more severe than identical sentences imposed by male judges, whether women and men perceive identical sentences differently regardless of the judge’s gender, and whether men and women perceive identical sentences imposed on sex offenders as fairer when imposed by judges of their own gender.

Recommended Citation

Ronen Perry et al., "He Said, She Said": With a Twist, 69 SMU L. Rev. 3 (2016)