The Behavior of Federal Judges

The Behavior of Federal Judges: a theoretical and empirical study of rational choice

Lee Epstein
William M. Landes
Richard A. Posner
Copyright Date: 2013
Published by: Harvard University Press
Pages: 446
https://www.jstor.org/stable/j.ctt2jbs80
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  • Book Info
    The Behavior of Federal Judges
    Book Description:

    Federal judges are not just robots or politicians in robes, yet their behavior is not well understood, even among themselves. Using statistical methods, a political scientist, an economist, and a judge construct a unified theory of judicial decision-making to dispel the mystery of how decisions from district courts to the Supreme Court are made.

    eISBN: 978-0-674-06732-5
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. List of Figures
    (pp. vii-viii)
  4. List of Tables
    (pp. ix-xviii)
  5. General Introduction
    (pp. 1-16)

    Judges indeed play a central role in the American legal system—more so than in most others. But the behavior of American judges, and in particular the determinants of their decisions, are not well understood, including by lawyers, law professors, and even many judges (we’ll explain that paradox in due course). In part this is because judges in our system are permitted to be, and most are, quite secretive.² Indirect methods must be employed to understand their behavior. Beginning more than half a century ago but accelerating in recent decades, social scientists—political scientists in particular, but also economists and...

  6. Technical Introduction
    (pp. 17-24)

    The analysis in this book is largely though not entirely statistical, and we have thought it might be helpful to introduce at the outset some technical concepts and terms in statistics that may be unfamiliar to many readers.¹ As we emphasize in the general introduction, we want this book to be accessible to judges, lawyers, law professors, law students, and others who are not adept at statistical analysis, as well as to those members of the legal profession who are, and of course to social scientists. We also explain conventions we use to make our analysis at once clear and...

  7. CHAPTER 1 A Realistic Theory of Judicial Behavior
    (pp. 25-64)

    In a recent book one of us listed and summarized nine theories of judicial behavior,³ but then proceeded to integrate them into a single theory, that of the judge as a participant in a labor market—that is, as a worker.⁴ That is the approach we take in this book to creating a model of judicial behavior that generates hypotheses testable with data.

    What kind of worker is a judge? Well, he is not a freelance writer, a proprietor, a composer or other independent artist, or an entrepreneur; he is a government employee. In economic terms he is an agent;...

  8. CHAPTER 2 The Previous Empirical Literature
    (pp. 65-100)

    In 1944 the New York Times published an article by Arthur Krock about a young political scientist, C. Herman Pritchett, who was keeping “box scores” of the votes and opinions of Justices of the Supreme Court.¹ Pritchett wanted objective evidence that the Justices’ decisions were influenced by their ideology. He thought it no coincidence that two of Roosevelt’s appointees, Hugo Black and William Douglas, almost always joined each other’s opinions—both were very liberal—and almost never voted with the ultraconservative James McReynolds.

    Krock pointed out that Pritchett’s evidence “would not increase the respect in which certain members of the...

  9. CHAPTER 3 The Supreme Court
    (pp. 101-152)

    At every recent confirmation hearing, nominees to the Supreme Court have pledged undying fealty to what we are calling legalism. John Roberts compared judging in the Supreme Court to umpiring in baseball. Samuel Alito declared that Supreme Court Justices must “be careful not to inject their own views” into the interpretation of statutes or the Constitution.¹ Sonia Sotomayor retracted her public statements that had reflected a realistic understanding of the judicial role; backing off from her earlier statement that “a wise Latina … would more often than not reach a better conclusion,”² she said: “I believe my record of 17...

  10. CHAPTER 4 The Courts of Appeals
    (pp. 153-206)

    We turn now to the middle tier of the Article III judiciary, the federal courts of appeals. Their jurisdiction, unlike the Supreme Court’s, is mandatory—a court of appeals cannot refuse to hear an appeal merely because it does not present an important or fraught issue—and therefore many of the cases they decide are unlikely to give rise to disagreement, ideological or otherwise. Also the exercise by their judges of rule discretion (changing legal doctrines) is constrained by the prospect of Supreme Court review, and the less discretion a judge has, the less scope he has to translate his...

  11. CHAPTER 5 The District Courts and the Selection Effect
    (pp. 207-254)

    Federal district judges have received less attention in academic studies of judicial behavior than Supreme Court Justices and court of appeals judges.¹ There are several reasons. There are no datasets comparable to those that have been created for Supreme Court and court of appeals decisions (of course, this is a result of lack of academic interest as well as a cause). District court decisions do not create precedents, and precedents are a particular focus of legal training and scholarly interest; also, non-precedential decisions have less visible policy impact than decisions of higher courts. A substantial fraction of cases filed in...

  12. CHAPTER 6 Dissents and Dissent Aversion
    (pp. 255-304)

    This chapter uses our model of judicial behavior to explore dissent in the Supreme Court and the courts of appeals, emphasizing what we have referred to in earlier chapters as “dissent aversion,”¹ which sometimes causes a judge not to dissent even when he disagrees with the decision. Our data for the Supreme Court are all the Court’s opinions in the 1963, 1980, and 1990 terms, with the exception of 5 cases decided by an equally divided vote and 11 cases in which there was no majority opinion. We chose those years to give us opinions in three different Chief Justiceships,...

  13. CHAPTER 7 The Questioning of Lawyers at Oral Argument
    (pp. 305-336)

    Chief Justice John Roberts and others have noticed that the lawyer at an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose. Roberts examined 28 cases—14 each from the 1980 and 2003 terms. In 24 of the cases the Justices posed more questions to the losing party, leading Roberts to conclude that “the secret to successful advocacy is simply to get the Court to ask your opponent more questions.”¹ (This probably is true in the federal courts of appeals as well, but our analysis is limited to the Supreme Court;...

  14. CHAPTER 8 The Auditioners
    (pp. 337-384)

    Desire for promotion is a significant motivating factor in many workplaces, and we expect it to operate in the Article III federal judiciary as well, though both the system of appointment and the age of appointment limit the opportunities for promotion. Promotion from within is common in many institutions and the rule in some, but in the case of the federal judiciary lateral entry is not only permitted but is the dominant route of appointment. In recent years, it is true, almost all Supreme Court Justices have been promoted from within, namely from court of appeals judgeships; only Justice Kagan...

  15. Conclusion: The Way Forward
    (pp. 385-404)

    We have tried in this book to add to the growing knowledge of judicial behavior, specifically the behavior of federal judges appointed in conformity with Article III of the Constitution (that is, district judges, circuit judges, and Supreme Court Justices). We have done this mainly by using statistical methodology to test hypotheses derived from a labor-market model of the judicial utility function—the weighted summation of a judge’s preferences and aversions. We have shown, by what we believe to be a more comprehensive analysis than can be found in previous studies, that ideology influences judicial decisions at all levels of...

  16. Acknowledgments
    (pp. 405-406)
  17. Index
    (pp. 407-422)