Gender Gap and Personal Injury Compensation. Judicial Opacity and Reverse Data Engineering (original) (raw)

2023, SSRN Electronic Journal

Gender bias is a set of diverse cases of unfairness that stem from various sources. Some of them, as the earnings gap, disseminate to other areas. Damages awarded in personal injury lawsuits is a visible candidate to be influenced for that gap. Exploring that issue among actual judicial decisions, however, is far from being simple. Limiting the enquiry to total averages awarded by gender may provide very insufficient information for a sound conclusion. Instead, the focus must be put on distinguishing any of its components and evaluating them at the light of the legal rules that apply. Some kinds of damages are derivations of factors exogenous to the process, as earnings. Then, the quantification of them according to the legal rules in force will mirror the external earnings gap. We call the result of that derivative effect as "second order" gap. On the other hand, there exist some cases within which not the effect of the legal system, but the judges' or other officials' efficient performance, may generate a biased adjudication. In those cases, an appropriate execution in applying the law will create no bias, but the improper one will. So, this failure in the officer's task generates a "first order" gap. Another particular judicial malfunction is relatively independent from the former. That is a peculiarly obscure way to express their reasoning on numerical items which cooperate to consolidate discrimination, if any. Accounting for that framework, our research sketches a canon of analysis generally suitable to this kind of research and applies that procedure to one case-study. In doing so, we dealt with risks of cherry picking and inaccurate sample design by comprehending in our study not a sample, but all decisions made during the span time (more than 20,000) by an Appellate Court. A "bot" designed ad hoc by one of us has been instrumental to build that exhaustive database. In our case study the earning gap ought not to be mirrored in magnitude by pecuniary damages. According to the legal rules applicable, the shadow price of time devoted in non-remunerated activities ought to be computed together with earnings lost, what may counterbalance that second order gap. Non-pecuniary damages, in turn, ought to be independent of earnings, being theoretically free from that effect. Nonetheless, we found differences with statistical significance in any of them, in favor of men. At that point, our analysis turns the focus on two aspects. On one thing, the percentage of disability determined by expert witnesses. On the other, on ratifying the relevant role of opacity in the judicial reasoning to quantify values, on covering potentially biased results. In our dataset we found a clear gap in disability percentages in favor of males. This finding is a matter of discussion and interpretation. In cases where men are active agents of their own harm there is no surprise, because abundant literature shows a tendency of men, especially young men, to enroll in riskier activities than woman.