Backgrounds, Attributes, and Identities

This chapter focuses on the effect of personal characteristics on judging. Early studies tended to draw connections between the judges’ prior professional experience and their decisions; more contemporary work focuses on social identity. A summary of the existing literature shows that regardless of the category, many research results are consistent with in-group bias: judges, like most humans, tend to favour litigants of their own group over outsiders. Depending on one’s perspective, this bias could be seen as offsetting years of ‘exclusionary’ judicial processes, or it could be seen as violating a guiding principle of most courts: to treat all parties equally. Either way, a mix of social identities is essential for ensuring socially diverse courts, which, in turn, may be crucial for developing innovative, high-quality solutions to the kinds of complex problems that confront contemporary courts. The chapter concludes with proposals for forward movement in the analysis of social identity and diversity.