Persuasive or Pipe Dream? The Feminist Judgments Project's Potential Influence on Judicial Decision Making

British Journal of American Legal Studies (Vol. 9 2020 Forthcoming)

57 Pages Posted: 1 Oct 2019 Last revised: 10 Oct 2019

See all articles by Kate Webber Nuñez

Kate Webber Nuñez

Nova Southeastern University - Shepard Broad College of Law

Date Written: August 1, 2019

Abstract

The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP’s alternative jurisprudence can influence future decisions. The FJP rewrites the law in order to reveal the underlying biases that exist in purportedly neutral decision making. In doing so, the FJP seeks to influence future advocacy and, ultimately, change the law. According to the Project’s commentary, this change will come by revealing unconscious bias and opening judicial minds to previously unknown perspectives; a method that draws on psychological theories of decision making, such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science on how judges decide cases. The article’s analysis is relevant because certain prominent theories in the political science field would challenge the utility of the Project. Specifically, given an increasingly conservative judiciary and Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. This article explains, however, that the field of political science would not universally nor completely dismiss the Project’s efforts. An alternative line of thought, historical institutionalism, presents a theoretical explanation for why and how the FJP’s re-envisioned law could possibly create persuasive arguments that will influence the judiciary. This article applies historical institutionalist concepts to the FJP, exploring how, and the degree to which, this view of decision making supports the Project’s utility. Ultimately, it concludes that the path of persuasion is somewhat narrow and limited, but possible.

Keywords: feminist judgments project, feminist, political science, historical institutionalism, judiciary, decision making

Suggested Citation

Webber Nuñez, Kate, Persuasive or Pipe Dream? The Feminist Judgments Project's Potential Influence on Judicial Decision Making (August 1, 2019). British Journal of American Legal Studies (Vol. 9 2020 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3457240

Kate Webber Nuñez (Contact Author)

Nova Southeastern University - Shepard Broad College of Law ( email )

3305 College Avenue
Ft. Lauderdale, FL 33314
United States

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