Hinkle et al.: Theory & Empirical Analysis of Strategic Word Choice in District Court Opinions

Rachael K. Hinkle, JD, and Professor Dr. Andrew D. Martin, both of Washington University Department of Political Science, and colleagues, have published A Positive Theory and Empirical Analysis of Strategic Word Choice in District Court Opinions, Journal of Legal Analysis, 4(2), 402-444 (2012).

Here is the abstract:

Supported by numerous empirical studies on judicial hierarchies and panel effects, Positive Political Theory (PPT) suggests that judges engage in strategic use of opinion content—to further the policy outcomes preferred by the decision-making court. In this study, we employ linguistic theory to study the strategic use of opinion content at a granular level—investigating whether the specific word choices judges make in their opinions is consistent with the competitive institutional story of PPT regarding judicial hierarchies. In particular, we examine the judges’ pragmatic use of the linguistic operations known as “hedging”—language serving to enlarge the truth set for a particular proposition, rendering it less definite and therefore less assailable—and “intensifying”—language restricting the possible truth-value of a proposition and making a statement more susceptible to falsification. Our principal hypothesis is that district court judges not ideologically aligned with the majority of the overseeing circuit judges use more hedging language in their legal reasoning in order to insulate these rulings from reversal. We test the theory empirically by analyzing constitutional criminal procedure, racial and sexual discrimination, and environmental opinions in the federal district courts from 1998 to 2001. Our results demonstrate a statistically significant increase in the use of certain types of language as the ideological distance between a district court judge and the overseeing circuit court judges increases.

Farnsworth et al. on Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation

Associate Dean Ward Farnsworth of Boston University School of Law, and colleages, have published Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, forthcoming in Journal of Legal Analysis. Here is the abstract:

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

HT ELS Blog.