Abstract
This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.
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Notes
Some recent work explores multi-dimensional scales, or allows a unique one-dimensional scale for different doctrinal areas (see Lauderdale and Clark 2012, 2014).
The first empirical demonstration of this relationship was Zorn and Bowie (2010). That study examined voting in 334 cases, each of which was heard at all three levels. Obviously, such cases are quite unusual.
As an example, in Chapter 8 ELP argue that federal judges who desire elevation to the Supreme Court tend to alter their dispositional voting in order to appear tough on crime (pp. 361–3). Does voting insincerely to convict a defendant charged with a capital offense incur some disutility? If so, how do judges weigh the trade-off between the prospect of promotion and the distaste of a dubious conviction? The issue is never addressed.
The aridity of the theoretical landscape in ELP is quite surprising. Epstein is the co-author of a book and article (Epstein and Knight 1998, 2000) heralding the arrival of a new theoretical, strategic approach to the study of courts in Political Science, an approach that in fact gradually unfolded over the next two decades. ELP appears to have been written by someone with no awareness of that approach. Posner brought, often in collaboration with Landes, the theoretical insights of micro-economics to virtually every area of law; those insights often relied on strategic analyses, see, e.g., the work of a different ELP trio—Easterbrook, Landes and Posner (1980) on settlement under joint and several liability. Landes, an economist, has also made major contributions to economic analysis of law, perhaps most notably in the study of the choice between settlement and litigation, an area in which strategic interaction is of central concern. None of the analysis in this book even hints at the strategic elements inherent in judicial decision making.
A recent paper exploits a natural experiment in the federal judiciary to examine the leisure-work tradeoff of federal judges (Clark et al. 2015). This paper finds strong support for such a tradeoff.
It is a small mystery of intellectual history why attitudinalists have generally focused solely on the justices’ dispositional votes rather than examining their join decisions as well. The rhetoric at least sometimes suggests that judges make policy and the judge’s join decision, as observable and objective as the dispositional vote, more directly reflects a judge’s policy views than her dispositional vote.
Beim et al. (2011) provides an exploratory analysis of the US Supreme Court that includes unanimous opinions, attempting to distinguish the ideological content of the policy announced in the decision from the “ideology” of the disposition. BCK argue that majority policy coalitions are more ideologically diverse than typically believed and that the ideology of the policy in the majority opinion depends on the ideology of the majority rationale.
The empirical investigation of dissent aversion in Chapter 6 includes measures that reflect a concern for collegiality as well as effort measures. See, e.g., page 292.
Neither this paper, nor its successor (and published) version Fischman (2011), is apparently cited in ELP. It is difficult to determine because the book lacks a comprehensive bibliography at the end, an unfortunate omission of the publisher. Given the comprehensive review of the empirical literature, a bibliography would be a useful resource for the discipline.
A number of other empirical papers informally adopt notions of a strategic account so that judicial behavior emerges from the mutual interaction of rational actors, e.g., Westerland et al. (2010). A larger set adopts a partial equilibrium approach in which one actor anticipates the response of another but the latter’s actions do not reflect the resulting incentive effects. ELP cite several of these (often interesting) studies in footnote 4 of Chapter 6. ELP’s nods to hierarchy (discussed above) seem to reflect this partial equilibrium approach.
ELP provides an admirably comprehensive review of the empirical literature on courts—but to a really remarkable extent their review resolutely ignores the theoretical literature. The footnotes contain virtually no references to formal models of adjudication and the text never discusses the content of these models. For example, footnote 7 in Chapter 1 cites Daughety and Reinganum (1999) and Miceli and Cosgel (1994) for the proposition that economics “has… contributed to the realistic theory of judicial behavior by emphasizing the judge as a rational actor” (ELP at 29), hardly a startling revelation and one supported by the non-formal cites in that footnote as well. Footnote 24 in Chapter 1 cites Gennaioli and Shleifer (2007) for the proposition that the practice of distinguishing makes the law more reliable. Footnote 4 of Chapter 2 cites Lax (2011), a survey of the theoretical literature, solely for the proposition that Pritchett “is rightly regarded as the founder of the quantitative social-scientific study of judicial behavior.” The Appendix to Chapter 2 cites Cameron et al. (2000) (creating a formal model of certiorari) and Clark (2009) (creating a formal model of en banc review) but only because these articles also employ data. The theoretical motivation behind the empirics in those papers is entirely elided from ELP’s acknowledgement of their existence.
Zorn and Bowie (2010) refer to this phenomenon as the “hierarchy postulate” but this nomenclature doesn’t seem particularly evocative of the finding.
See Tables 3.16, 4.7, 4.8, 4.19, and 5.6. ELP also often include the percentage of senators who are Republican at the time of the judge’s confirmation as this may also be a proxy for judicial ideology. They also include various controls.
This section addresses issues raised by contemporary behavioral approaches to the study of judicial behavior.
As noted above, attitudinalists, including ELP, often understand their approach as a natural consequence of realism, referring to the American Legal Realist movement of the 1920s and 1930s. But that movement, like most movements, encompassed a wide variety of positions, not all of which are clearly compatible with attitudinalism. .
On situation-sense see Llewellyn, The Common Law Tradition at pages 121 et seq (1960).
These studies are sometimes understood as supporting the attitudinalist position that law has little impact on judicial decision, at least at the level of the Supreme Court of the United States, a position endorsed by ELP. But this understanding derives from an incorrect understanding of the underlying decision process and the way in which law may be structuring judicial decisions. We think, as the text below will suggest, that fact pattern analysis may implicitly capture some of the doctrinal structure of the law.
This observation stands in opposition to the rhetoric of the attitudinalists as well as the formalisms in the “policy space” models of courts that flowed naturally from the early Congress-inspired literature on courts (e.g., Ferejohn and Shipan 1990). The idea is that courts make policy; deciding cases is either ignored or secondary. The empirical practice of attitudinalism does not quite conform to its rhetoric because the dependent variable is typically the (direction of) the judge’s dispositional vote. A genuinely policy-based investigation would more naturally investigate the join behavior of the judges because joins reflect a judge’s endorsement of the reasons for a particular disposition.
This case-by-case decision making is true of courts in both common law and civil law systems. It may not apply to Kelsenian constitutional courts that engage in abstract review of the constitutionality of statutes. In this context, judges do in fact make a judgment primarily about the policy embedded in the statute.
For a survey of the literature that adopts this approach see Lax (2011).
Private values model of judicial hierarchy lead to principal-agent models; common values models lead to team models of hierarchy. Private values models of collegial courts lead to bargaining models; common values models (like Iaryczower and Shum 2012) often lead to models of information aggregation or learning. Kornhauser (1995) provided an informal model of adjudication by a team of judges.
The discussion in this paragraph draws on joint unpublished work on bargaining on collegial courts.
This equation differs from the typical attitudinalist estimation in several important respects. First, typically, attitudinalists use a different dependent variable, the direction of the vote of judge i rather than the actual vote. Second, often the attitudinalists ignore both the law, represented here by the cut-point \(\bar{x}_{i}\), and the case facts represented here by \(x_{t}\). Fact pattern analysis explicitly considers the facts but does not explicitly address the doctrinal structure that determines how these facts dictate dispositions. It is important to notice, moreover, that Eq. (2) implicitly contains both a doctrinal structure and a judicial utility function.
We can understand fact pattern analyses as implementing some version of these accounts. Segal (1984) uses logit estimations on the facts of the case; this implicitly adopts a doctrinal view as a cut-hyperplane in the multi-dimensional case space. Kort (1963) by contrast envisions in his Boolean Algebra model something closer to the account of doctrine stated in Kornhauser (1992b) that might well be implemented by CART, classification and regression trees. Kastellec (2010) provides an entrée to fact pattern analysis with CART.
Their conclusion lists not a single theoretical project as required for improving our understanding of courts.
Thus, if the discipline decides, as ELP urge, to invest in the recoding of the Spaeth data base the coders should add facts to the case information and not simply correct the errors in the “direction” of the dispositional vote.
A closely related effort would locate opinions in a relevant policy space. Clark and Lauderdale (2012, 2013) have begun this project by scaling opinions in an ideological space.
It is important to distinguish “evidence” from “facts” (or perhaps “legal facts”). At trial, evidence is submitted to prove the presence of the facts required to satisfy the antecedent of a legal rule in the form “if facts A, B, C, D…, then legal consequence L.” The facts A, B, C, and D are the facts that must be coded, not the underlying evidence.
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Acknowledgments
We thank William Landes for his helpful comments as well as colleagues for helpful comments and critiques; the opinions in this essay, of course, expressed are purely those of the authors. The support of the Filomen d’Agostino and Max E. Greenberg Research Fund of the NYU School of Law is acknowledged.
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Cameron, C.M., Kornhauser, L.A. Rational choice attitudinalism?. Eur J Law Econ 43, 535–554 (2017). https://doi.org/10.1007/s10657-015-9512-1
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DOI: https://doi.org/10.1007/s10657-015-9512-1