Q&A: Legal Scholar Pat K. Chew Discusses Race and Gender in the Judiciary

After working as a corporate and international lawyer, Pat K. Chew joined the Pitt Law faculty in 1985. Today, she is the Judge J. Quint Salmon and Anne Salmon Chaired Professor in the School of Law, where she examines the legal system holistically and pursues her diverse scholarly interests through research as well as teaching.

She has received wide acclaim for her research on race and gender dynamics in law and in the workplace. Her article, “Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases,” about the effects of judges' gender and race on their judicial decision-making was the American Bar Association’s most read article in 2010. Chew was also the inaugural recipient of the Keith Aoki Excellence in Asian American Jurisprudence Award in 2012, served as a Distinguished Faculty Scholar, and is a University Chancellor’s Distinguished Teaching Award recipient.

Your body of research is diverse and ranges from employment law to corporate workplace harassment, to racial harassment. Is there a common thread that connects them all?

I’ve always followed my curiosity. I think it is a real privilege to teach as an academic. I guess the way I try to take advantage of that is to say, “What’s the most interesting thing to me?” and “What do I think are the most important topics?” Then I learn about those topics. I’ve also always been intrigued by the assumptions that people make about their world. I’ll be reading a case in a casebook and say, “Oh, they’re making an assumption about how the law or the world is,” and I’ll want to learn more about whether or not that assumption is correct.

Prior to teaching, you practiced corporate and international law with Baker & McKenzie in Chicago and in San Francisco. How did that time influence your work?

That was a long time ago, 30 years now. That practice serviced multinational companies. There were opportunities to meet lots of different people and hear lots of different opinions about the way the world worked. Working in a practice that was also multicultural is something that I carry into my work to this day, especially when I think about how people view the world depending on their cultural background. I should also say, that the things that I did in that practice shaped some of my original research topics and they still do to some extent.

In what way did that work shape your research topics?

I did some research on how arbitrations are done in China between Chinese companies and foreign companies. That was intriguing to me because I’m of Chinese background. At that time there was a lot of interest in doing business in China and the work allowed me to get a window into some of those activities. The project I’m working on now is a study on how arbitrations between Chinese parties and foreign parties are resolved before an arbitration commission. This is full circle because when I first entered practice, people were just talking about doing business in China; there hadn’t yet been too many disputes. Today, I’m studying thousands of disputes that have occurred.

Your research deals with the pervasive myth of the color-blind judge. How do judges’ gender and race affect their decision-making?

The short answer is: we don’t know exactly how it affects the decision-making. What we have found is that the way certain cases end up differs depending on whether or not a judge is a woman or a man. If I were to generalize, I would say that the gender of a judge seems to make a difference in cases where gender is salient in the case. The same with race.

In racial harassment law, the questions are, “Why was somebody treated the way they were? Was it because of their race or was it because of something else?” The second inquiry is, if they were harassed, “Was that harassment severe and pervasive? Was it something substantial to the extent that it hurt the way the person functioned in their day-to-day work life?” I think that to answer those questions, people from different racial backgrounds might have a different answer, depending on their own experience.

For example, it is quite possible that I am more attuned to what people say and how it might relate to my own race than someone who isn’t of Asian background. I’ve grown up with certain inferences that people make about me because I’m Asian. They would say things either expressly or indirectly by the questions they asked me. It may be, “Oh, you must be really smart or really good at math or you must get along well with people.” The reality is that they don’t know me. Turns out I’m not good at math. I think that, as a person of Asian background, I’m less likely to make those assumptions about someone else who is Asian. Because of my own experiences I’d find things more salient within a fact pattern. It’s that kind of thing.

Same thing being a woman. People make different inferences about me because I’m female. Does that mean they’re being intentionally discriminatory? I don’t think so. It’s the way we tend to understand the world, trying to have categories. I do it, too. Every one does it.

Judges have a challenging job because they have to apply the principles of law and they have to do that consistent with precedent. They have to exercise certain judgment and discretion in how they interpret the facts and how they interpret the law. That’s where I think things like personal background can make a difference.

One thing I want to emphasize is that I’m not trying to generalize. I can’t predict and I can’t suggest that anyone else can predict. I’m not proposing that because someone is a Chinese woman or of Asian background that somehow they’ll have certain behaviors. In fact, it really bothers me to think that one would generalize in that way. I have to walk this line where I have to say: I think that certain groups may have some kind of collective experience, but that doesn’t mean that every person in that group will interpret or experience it the same way.

Your research challenges a formalist norm: the idea that law is a set of rules and principles independent of other political biases. Does that change the way you teach your classes here at Pitt?

I hope that it makes my students more careful and critical thinkers. In other words, I want them questioning not just what the law is, but why the law is the way it is. I really believe in our system of justice, and I think judges do follow legal principle. However, they’re also human and can exercise discretion. I think there are different opinions in how much you should exercise discretion but I think the realist model — as opposed to the formalist model — assumes that judges are human. Not just machines or mechanical in their process.

Is there an attorney whom you admire?

When I was growing up, there was an African American attorney in Texas named Barbara Jordan. She was active in national politics and had this wonderful presence about her. She had a lot of uphill battles to become successful. Then there’s Martha Minnow. I really admire her research. She did interdisciplinary work at a time when people did not really do that in law. She also liked questioning assumptions. Then there’s Michael Olivas. He has just been super helpful to lots of people. He has singlehandedly been important in diversifying the legal profession. And he does that in such a caring way. He’s hands on, and that’s rare when you have people who care and take the time to be helpful.

What effect would you like your research to have? Does your work open up the possibility for more women and minority judges?

I hope that my work makes us as a society more open to diversity, to include all kinds of people with all kinds of thinking in the judiciary. In general, I hope my work is constructive. That it helps build things and in some small way helps build and shape our community, our society, and our future. I would also hope that my work encourages people to question assumptions.

This interview has been edited for clarity and length.