Gender Bias Analysis Version 2.0: Shifting the Focus to Outcomes and Legitimacy

Abstract

Twenty-five years ago, the New York State Unified Court System created the New York Task Force on Women in the Courts to study how women fared in the court system, a problem referred to in other contemporaneous reports as "gender bias." In 1986, the Task Force published their Report ("The Report"). On the 25th anniversary of that report, this article reviews achievements the courts have made since the report's publication; identifies certain gaps between the goals of the Task Force and its actions and recommendations; and envisions what a gender bias agenda for today might be. It focuses primarily on two possible areas for future research. The first is a broad investigation into the possible implicit gender bias reflected in judicial decision-making, how such bias might have affected the development of case law, and what actions could be taken to correct for that bias should it exist. The second is a question about the legitimacy of the court system as seen by female litigants. In 1986, a majority of women reported that the courts were biased against them. It is reasonable to ask if women still feel this way and whether such sentiments lead women to question the legitimacy of the court's process and/or outcomes. If they do, what impact might such perceptions have on litigant behavior regarding use of the court system and reactions to court orders and decisions.

Keywords: gender, bias, women, courts, outcomes, research, implicit bias

JEL Classification: K10, K19, K39, K41, K49