Bias in ABA Judicial Performance Evaluations

UNLV's Rebecca Wood just posted an interesting (and potentially explosive) paper, "Judicial Performance Evaluations as Biased and Invalid Measures: Why the ABA Guidelines are Not Good Enough," on SSRN. The abstract:

Judicial performance evaluations (JPEs) are an important part of the judicial selection process in the states, particularly those using a version of the merit plan. All states that use JPEs follow the ABA’s Guidelines (1985), which claim to minimize the potential for unconscious bias through the use of behavior-based evaluation. But these measures have yet to be subjected to rigorous analysis. This analysis of the “Judging the Judges” survey of Nevada attorneys provides such an analysis. After controlling for objective measures of judicial performance, gender and race still contribute significantly to the scores on all of the behavior-based measures implemented in the Nevada poll. I find evidence of significant unconscious bias, as social cognition theory would predict. The analysis also cast serious doubt on the overall validity of these measures of judicial quality. This result raises serious questions about the validity and fairness of JPEs around the country.

 

 

Comments

[Sakshi]

Orin I agree with Ted it's not that difficult to elixapn the different ways in which a case can get to an intersection requiring a judicial opinion, and I think many students find the procedural history (frequently left in casebooks despite its general irrelevance to doctrinal analysis) mystifying and arcane. At least I did. Also, I find that most law students and young lawyers struggle mightily to understand that procedural context matters in the real world an opinion reversing a 12(b)(6) dismissal is often quite a bit different from an opinion rendered after jury verdict.Personally, I'd also consider reworking your understand the facts of the case argument a bit. In my (very limited) teaching experience and substantial practice experience, the law students for whom this essay is likely to be most useful are those who will automatically tend to overstudy the facts of each case.Folks for whom case interpretation comes relatively easily do tend to undervalue the factual portions of judicial opinions; they tend instead to gravitate to the meat of the opinion without realizing that the factual context is often critical to the analysis in subtle ways. By contrast, I think law students who find case interpretation to be somewhat tougher sledding tend to focus on the facts, often allowing the irrelevant to distract them from the important. These are the folks most often caught out by the issue spotter on exams they tend to see legal relevance in every factual aside.I don't know how I would write the essay to account for my concerns, because the fact section is obviously important, too. But I think most students would be better served to split their time 70/30 or maybe 65/35 on reasoning/facts, rather than the 50/50 your essay seems to imply.