Lee Epstein, William M. Landes, Richard A. Posner: The behavior of federal judges: a theoretical and empirical study of rational choice

Harvard University Press, Cambridge, MA, 2013

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  1. 1.

    For instance, legalism is translated into effort-aversion.

  2. 2.

    The range of data used by the authors is impressive not just in terms of statistical significance (most often the selected samples contain hundreds if not thousands of cases), but in terms of the rigor with which the preliminary data is scrutinised and validated. The authors have relied quite significantly on previous databases (for instance, the Songer, Spaeth or Sunstein databases), but they took much care in rectifying, recoding and supplementing the data before subjecting it to statistical analysis.

  3. 3.

    It is true, the authors have spent significant resources in the textual analysis of ex-ante judicial declarations, coding expressions of ideology. But this kind of data is usually limited to the higher ranks of the judiciary, and is much less richer than the kind of data some well-designed and applied surveys could provide. For instance, desire for promotion could be measured directly instead of being approximated by measures of “being a potential candidate for promotion”.

  4. 4.

    Such as: length of service and ideological divergence (121), year of appointment and mixed votes (166–167), year of appointment and increasing conservatism (170), length of service and dissent rate (299), age and length of service and likelihood of being an auditioner (351–353).

  5. 5.

    In Chapter 5 on district courts the only personality variables taken into account are gender and race, not age or experience (211–235). In Chapter 6 on dissents, although the chapter starts by acknowledging the importance of various background factors (257), they are neither measured nor controlled for. No mention of experience or other background variables in Chapter 7.

  6. 6.

    For instance, grouping judges by age when measuring effect on dissent (298).


  1. Epstein, L., Landes, W. M., & Posner, R. A. (2013). The behavior of federal judges. Cambridge, MA: Harvard University Press.

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  2. Posner, R. A. (1993). What do judges and justices maximize? (The same thing everybody else does). Supreme Court Economic Review, 3, 1–41.

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Correspondence to Diana Richards.

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Richards, D. Lee Epstein, William M. Landes, Richard A. Posner: The behavior of federal judges: a theoretical and empirical study of rational choice. Eur J Law Econ 43, 555–558 (2017). https://doi.org/10.1007/s10657-015-9513-0

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