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.

Tracy & Parks on Stancetaking within Neutrality-Attentive Judicial Discourse: Oral Argument about Same-Sex Marriage

Professor Karen Tracy and Russell Parks, both of the University of Colorado at Boulder Department of Communication, presented a paper entitled Stancetaking within Neutrality-Attentive Judicial Discourse: Oral Argument about Same-Sex Marriage, at ICA 2010: The International Communication Association Annual Conference, held 22-26 June 2010 in Singapore. Here is the abstract:

Oral argument in appellate courts requires justices to manage competing values—displaying self’s commitment to judicial neutrality and fairness while committing to a stance that favors one party over the other. In this paper we examine how justices enact these contrary values by analyzing seven state supreme courts as they dealt with appeals regarding their marriage laws. After providing background on oral argument, the seven cases, and stancetaking, the study uses discourse analysis combined with quantitative coding to address two questions: (1) How does the design of oral argument, and justices’ ways of talking within it, enact the scene as one of fairness and judicial neutrality? (2) How do language and interactional features of justices’ questioning turns reveal their stance toward the reasonableness of legalizing marriage between same-sex couples? We show that there is complex intermingling of moves that instantiate fairness and judicial neutrality alongside moves that revealed justices’ stances. Justices’ stances are revealed through differences in the total number of questions, length of question strings, and longest question to each party, in conjunction with differences in frequency of hypothetical questions, interruptive starts, and use of disagreement tokens. The study concludes with implications for future research.

For the full text of the paper, please contact the authors.