Epstein, Landes, and Posner: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

Professor Dr. Lee Epstein, Professor Dr. William M. Landes, and Senior Circuit Judge Richard A. Posner, have published The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, 2013).

Here is the publisher’s description:

Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.

The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors’ view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making.

HT @law_book

Escresa and Garoupa on Judicial Decision Making on the Philippine Supreme Court, an Empirical Analysis 1986-2010

Dr. Laarni Escresa of Institut für Recht und Ökonomik der Universität Hamburg and Professor Dr. Nuno Garoupa of the University of Illinois College of Law, have published Judicial Politics in Unstable Democracies: The Case of the Philippine Supreme Court, an Empirical Analysis 1986-2010, forthcoming in Asian Journal of Law and Economics.

Here is the abstract:

In this paper we investigate empirically the determinants of judicial behavior at the Philippine Supreme Court in the period 1986-2010. Our results show an important alignment between individual Justices and the interests of the presidential appointers, although it varies across presidential terms. We discuss these empirical results in the context of the Philippine unstable democracy and the implications for the comparative literature on judicial behavior.

HT Professor Dr. Michael Heise.

Bushway et al. on the Influence of Advisory Sentencing Guidelines on Judicial Decision Making

Professor Dr. Shawn D. Bushway of the University of Albany, Professor Dr. Emily G. Owens of Cornell University, and Professor Dr. Anne Morrison Piehl of Rutgers University, have published Sentencing Guidelines and Judicial Discretion: Quasi-Experimental Evidence from Human Calculation Errors, Journal of Empirical Legal Studies, 9, 291-319 (2012).

Here is the abstract:

The extent to which rules set by the legislature bind or influence decisions regarding sentence length is central to institutional design and to determining the practical impact of any proposed reform regarding criminal punishment. However, it is generally difficult to identify empirically the impact of sentencing recommendations because court actors may have preferences that are correlated with those outlined in the guidelines. In this article, we take advantage of a new source of identification to study how government actors interact and make decisions in the criminal sentencing process. We identify instances in the Maryland circuit court in which the case facts are not consistent with the final sentence recommendation—inconsistencies that appear to be the result of human error and exogenous to the preferences of downstream actors. We find that even an advisory guidelines system like the one in Maryland has a direct impact on judicial decision making in cases involving drugs and violent crimes. Judges appear eager to go along with an erroneous lesser sentence for violent offenses. In contrast, judges appear to discount mistakes that are too high. This asymmetry does not occur for property and drug offenses that are simpler and more frequently encountered. More generally, experience matters. Error rates are lower for more frequently occurring offense types and lower for those court professionals who complete more of the sentencing worksheets. The net effect of sentencing guidelines on time served appears to be small because parole boards counteract the remaining influence of the guidelines.

Sag on Predicting Fair Use

Professor Matthew Sag of Loyola University of Chicago School of Law has published Predicting Fair Use, Ohio State Law Journal, 73, 47-91 (2012).

Here is the abstract:

Fair use is often criticized as unpredictable and doctrinally incoherent – a conclusion which necessarily implies that the copyright system is fundamentally broken. This article confronts that critique by systematically assessing the predictability of fair use outcomes in litigation. Concentrating on characteristics of the contested use that would be apparent to litigants pre-trial, this study tests a number of doctrinal assumptions, claims and intuitions that have not, until now, been subject to empirical scrutiny.

This article presents new empirical evidence for the significance of transformative use in determining the outcomes of fair use cases. It also substantially undermines conceptions of the doctrine that are hostile to fair use claims by commercial entities and that would restrict limit the application of fair use as a subsidy or a redistributive tool favoring the politically and economically disadvantaged. Based on the available evidence, the fair use doctrine is more rational and consistent than is commonly assumed.

In this study the author estimates multivariate logit and ordinary least squares (OLS) models for purposes of quantitative legal prediction.

Eisenberg et al.: Assessing Judge and Case Selection Effects in a Court of Last Resort

Professor Theodore Eisenberg of Cornell University Law School, and Dr. Talia Fisher and Dr. Issi Rosen-Zvi, both of the Tel Aviv University Faculty of Law, have published Does the Judge Matter? Exploiting Random Assignment on a Court of Last Resort to Assess Judge and Case Selection Effects, Journal of Empirical Legal Studies, 9, 246-290 (2012).

Here is the abstract:

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors — case specialization, seniority, and workload — that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to 3 percent more likely than male justices to vote for defendants but this effect is sensitive to including one justice. Defendant gender was associated with outcome, with female defendants about 17 percent more likely than male defendants to receive a favorable vote on appeal. Our data’s samples of mandatory and discretionary jurisdiction cases allow us to show that studies limited to discretionary jurisdiction case outcomes can distort perceptions of judges’ preferences. Justices’ ordinal rank in rate of voting for defendants or the state was uncorrelated across mandatory and discretionary jurisdiction cases. For example, the justice who sat on the most criminal cases was the fourth (of 16 justices) most favorable to the state in mandatory jurisdiction cases but the 12th most favorable in discretionary jurisdiction cases. This result casts doubt on some inferences based on studies of judges on discretionary jurisdiction courts, such as the U.S. Supreme Court, in which only discretionary case outcomes are observed.

Hartley, Miller, & Spohn on Type of Counsel and Its Effect on Criminal Court Outcomes

Professor Dr. Richard D. Hartley and Professor Dr. Holly Ventura Miller, both of The University of Texas at San Antonio Department of Criminal Justice, and Professor Dr. Cassia Spohn of The Arizona State University Department of Criminology and Criminal Justice, have published Do You Get What You Pay For? Type of Counsel and Its Effect on Criminal Court Outcomes, forthcoming in Journal of Criminal Justice. Here is the abstract:

Although the Sixth Amendment of the constitution guarantees assistance of counsel to indigent criminal defendants, questions exist about the quality of this representation. Critics assert that ‘you get what you pay for’ and that public defenders are less effective than privately retained counsel regarding criminal justice outcomes. Some research, however, reveals that public defenders are as effective as privately retained counsel because of their working relationships with prosecutors and judges, the so-called courtroom workgroup. The current study tested the assertion that ‘you get what you pay for’ by examining the effect of type of counsel (public defenders versus private attorneys) on four different case processing outcomes for a large mid-western jurisdiction. Results generally show that type of counsel has no significant direct effect. Tests for interaction, however, suggest that for some defendants, type of counsel interacts with other key variables to influence certain outcomes.

Click here for a summary of research findings and an outline of the article.

Click here for ABA Journal‘s summary of the article.

HT @ABAJournal.

Cross & Donelson on Creating Quality Courts

Professor Frank B. Cross of the University of Texas School of Law, and Professor Dr. Dain C. Donelson of the University of Texas McCombs School of Business, have published Creating Quality Courts, 7 Journal of Empirical Legal Studies No. 3, pages 490-510 (2010). Here is the abstract:

Numerous studies examine the importance of legal systems, yet there is little scholarship on how nations can improve their legal systems. Nations might try to invest more resources, including increasing overall budgets, increasing judicial salaries, or expanding the number of judges and/or courts. We examine data for a set of European nations, with a focus on the most effective way to use national resources to enhance judicial quality. We consider the effect of different uses of government resources and the effect of different judicial systems on measures of judicial quality, including independence, efficiency, the rule of law, and perceived impartiality.

Gazal-Ayal & Sulitzeanu-Kenan on Ethnic In-Group Bias in Judicial Decisions

Dr. Oren Gazal-Ayal of the University of Haifa Faculty of Law, and Dr. Raanan Sulitzeanu-Kenan of the Hebrew University of Jerusalem Political Science Department and Federmann School of Public Policy, have published Let My People Go: Ethnic In-Group Bias in Judicial Decisions—Evidence from a Randomized Natural Experiment, 7 Journal of Empirical Legal Studies No. 3, pages 403-428 (2010). Here is the abstract:

Does ethnic identity affect judicial decisions? We provide new evidence on ethnic biases in judicial behavior by examining the decisions of Arab and Jewish judges in first bail hearings of Arab and Jewish suspects in Israeli courts. Our setting avoids the potential bias from unobservable case characteristics by exploiting the random assignment of judges to cases during weekends and by focusing on the difference in ethnic disparity between Arab and Jewish judges. The study concentrates on the early-stage decisions in the judicial criminal process, controlling for the state’s position and excluding agreements, thereby allowing us to distinguish judicial bias from other sources of ethnic disparities. We find systematic evidence of in-group (same ethnic group) bias in detention decisions. However, in cases where the decision is to detain, no ethnic bias was found in the length of the detention. Possible interpretations and implications of these findings are discussed.

Connolly et al. on Judicial Decision Making in Child Sexual Abuse Cases in Canada: A Study of Assessments of Credibility

Professor Deborah A. Connolly of the Simon Fraser University Department of Psychology, Professor Heather L. Price of the University of Regina Faculty of Arts, and Heidi M. Gordon of the University of Toronto Department of Human Development and Applied Psychology, have published Judicial Decision Making in Timely and Delayed Prosecutions of Child Sexual Abuse in Canada: A Study of Honesty and Cognitive Ability in Assessments of Credibility, 16 Psychology, Public Policy, and Law No. 2, pages 177-199 (2010). Here is the abstract:

Child sexual abuse is an alarmingly common criminal offense. Whether prosecutions occur shortly after the alleged offense or after a lengthy delay, complainant credibility is often the central issue at trial. In both law and in psychology, credibility is said to be a function of two relatively distinct factors: honesty and cognitive ability. Complainant age informs evaluations of both such that younger children are seen as more honest but less cognitively competent than older children and adults. When a complainant describes a recent event, current age may be used to assess honesty and cognitive ability. However, when a complainant describes an event that occurred in the distant past, we argue that current age is most informative in evaluations of honesty, whereas age at the time of the alleged offense should inform evaluations of cognitive ability. In this research, we analyzed judicial assessments of complainants’ credibility in 52 timely (child complainant) and 49 delayed (adult complainant) criminal prosecutions of child sexual abuse. Judicial comments concerning cognitive ability suggest that adults were viewed more positively than children, despite the fact that all complainants were children when the alleged offense occurred. As expected, comments related to honesty suggested that children were seen to be more honest than adults unless they had been exposed to suggestive influences.

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.