Judges with corporate and prosecution backgrounds are more likely to rule against workers, study says

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Judges who were formerly prosecutors or corporate lawyers are more likely to rule against workers in employment disputes than judges with other backgrounds, according to a new study.

The study of judges nominated by former Presidents Donald Trump and Barack Obama looked at employment cases decided by federal district judges from 2015 through 2019. The cases were decided by summary judgment, judgment on the pleadings or judgment as a matter of law.

When the study controlled for other factors that can influence decision-making, it found that a judge with a corporate background is 43% less likely to decide in favor of the claimant in employment cases than is a judge with no corporate background. A judge with a prosecutorial background is 56% less likely to decide in favor of an employment claimant than nonprosecutors.

The results are similar when the sample is restricted to Obama-appointed judges.

Joanna Shepherd, a professor at the Emory University School of Law, conducted the study, with funding from the liberal group Demand Justice, NPR reports.

“Our results suggest that expanding the professional diversity of the federal judiciary will do more than just create a judiciary that is more representative of the legal profession,” Shepherd wrote. “It can affect actual case outcomes and, as a result, the development of legal precedent. Moreover, given the disproportionate representation of certain demographic groups in different areas of the legal profession, expanding professional diversity should result in more demographic diversity, as well.”

The study identified a judge as having a corporate background if they had made partner at one of the nation’s top 200 law firms, had made partner in one of the largest law firms in the state, had worked as a lawyer for a Fortune 500 company for at least three years, had worked as an attorney for any company or association working in the largest industry in the state for at least three years, or had otherwise indicated that representing corporations was a significant part of their practice.

The study found that BigLaw partners were overrepresented among nominees of both presidents, compared to their percentage among practicing lawyers.

Fifteen percent of Obama’s district court nominees and over 22% of his appellate nominees were former partners in the nation’s top 200 law firms. Almost 25% of Trump’s district court nominees and almost 30% of his appellate nominees came from the top 200. The current percentage of practicing lawyers who are AmLaw 200 partners is just 4.2%.

The study also found that both presidents favored nominees with prosecution backgrounds.

About 45% of Obama’s nominees to the district courts and 38% of his appellate nominees had served as state or federal prosecutors for at least three years. Forty-nine percent of Trump’s district court nominees and 33% of his appellate nominees had served as state or federal prosecutors for a three-year minimum. The percentage of lawyers nationwide currently holding such jobs is about 3%.

Shepherd told NPR that her study is the first published research on whether judges with certain backgrounds are more likely to rule for employers.

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