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

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.

Schwartz & Petherbridge on The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study

Professor David L. Schwartz of the Chicago-Kent College of Law and Professor Dr. Lee Petherbridge of Loyola Law School Los Angeles have posted a working paper entitled The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study (2010) on SSRN. Here is the abstract:

Chief Justice Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not “particularly helpful for practitioners and judges.” Chief Justice Roberts’s criticism echoes that made by other judges, some of whom, like Judge Harry Edwards, have been much more strident in the contention that legal scholarship is largely unhelpful to practitioners and judges. Perhaps inspired by criticisms like those leveled by Chief Justice Roberts and Judge Edwards, legal scholars have sought to investigate the relevance of legal scholarship to courts and practitioners using a variety of means. One avenue of investigation has been empirical, where several studies, using different, and sometimes ambiguous, methodologies have observed a decrease in citation to legal scholarship and interpreted the observation to mean that legal scholarship has lost relevance to courts and practitioners.

The study reported here examines the hypothesis that legal scholarship has lost relevance to courts. Using empirical techniques and an original dataset that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the United States circuit courts of appeals over the last 59 years. It finds a rather surprising result. Contrary to the claims of Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last 59 years – and particularly over the last 20 years – there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit courts of appeals. Using empirical and theoretical methods, this study also considers explanations for courts’ increased use of legal scholarship.

Originalism 2.0 Conference at Penn Law

[NOTE: Videos of several of the panels are now available.]

Originalism 2.0: The 2010 National Student Symposium of the Federalist Society, was held 26-27 February 2010 at the University of Pennsylvania School of Law, in Philadelphia, Pennsylvania, USA.

Click here for the conference program.

Click here for the list of speakers.

Click here for an archive of Twitter tweets from the first, fourth, & fifth of the conference panels. The Twitter hashtag for the conference was #orig20.

If the conference video is Webcast at some future time, a link will be added here.

[NOTE: Last updated 17 March 2010.]

Tamanah, Beyond the Formalist-Realist Divide: The Role of Politics in Judging

Professor Brian Z. Tamanaha of St. John’s University School of Law has published Beyond the Formalist-Realist Divide: The Role of Politics in Judging (2009). Here is the abstract:

“According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

“Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

“Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.”

HT Legal Theory Blog.