One of the benefits of having an interdisciplinary education is that I sometimes see odd connections between research programs taking place in faculties that, for the most part, are unaware of one another.
Take, for example, the trends towards evidence-based meta-analyses in philosophy and legal studies. Both of these analyze normative decision making, and exhibit interdisciplinary flirtations with social psychology, cognitive neuroscience and behavioural economics. So far, though, they haven’t so much as glanced at one other across a crowded faculty lounge, although their friends neuroethics and neurolaw seem to be cozying up to one another at the policy table.
Some enterprising researcher should play cupid, because their’s is a natural fit. Both commonly navigate complex questions of ethics, evidence and causation, and involve balancing the competing tensions argued by nuanced opposing views.
My suggestion is that empirically-minded philosophers should make use of the sources of data presently being mined by legal scholars. It’s all there in the recorded thoughts of judges whose decision-making over the course of centuries covers an astonishing range of important philosophical topics.
One example of how the law can tell philosophers something about normative decision-making can be found in the growing body of research that shows judges’ decisions are influenced by their own gender and that of the counsel before them.
In an interesting pair of statistical analyses, researchers looked at the American and Canadian Supreme Courts, and find <ahem> that old men really don’t care for women’s arguments. I’d say ‘Astonishing!’, but don’t know if I can marshal the requisite sarcasm – my naïveté knows no bounds, which is one reason why I find this research to be so important.
Unfortunately, only one of the papers is available at this time. Take a look, as my paraphrasing was a tad inflammatory.
- John Szmer, Tammy Sarver & Erin Kaheny. Have We Come A Long Way, Baby?: Female Attorneys Before the United States Supreme Court. [self-archived MSWord file]
- John Szmer, Tammy Sarver & Erin Kaheny. Lawyer and Justice Gender: Examining the Supreme Court of Canada. [unpublished and unarchived paper presentation]
From the abstract of the SCOTUS paper:
We find that [US] Supreme Court justices are less likely to support litigants represented by women. Our findings suggest that litigation teams that have a higher proportion of female attorneys are less likely to win before the Court. In addition, this bias appears to be highly conditional on judicial ideology. Conservative jurists are more likely than liberal jurists to vote against litigation teams with a higher proportion of women.
Whether or not this is implicit association in action, it’s the sort of thing that can lead to an uncomfortable question for firms expecting a case to go all the way to the top court: when counsel’s gender can harm a client’s case, do you toss ethics to the side and assign it to men instead of women? Asking that is almost as offensive as suggesting the study is evidence for a harm done to the law by women appearing before the court.
That’s a question that won’t be asked in Canada, where 4 of the 9 Supreme Court judges are women. Here, parties are more likely to win when they are represented by women.
- John Szmer, Susan W. Johnson, Tammy A. Sarver. Does the Lawyer Matter? Influencing Outcomes on the Supreme Court of Canada (2007) Law & Society Review 41 (2), 279–304.
- Yahya, Moin A. and Stribopoulos, James, “Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario (Canada)”. Osgoode Hall Law Journal, Vol. 45, No. 2, 2007: http://ssrn.com/abstract=981300
- Ramji-Nogales, Jaya, Schoenholtz , Andrew and Schrag, Philip G., “Refugee Roulette: Disparities in Asylum Adjudication”. Stanford Law Review, Vol. 60: http://ssrn.com/abstract=983946