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21 January 2007

Comments

Margo Schlanger

I read the Heyderbrand and Seron book a long time ago, before I got nearly so interested in just the set of issues Jeff raises, and I confess I don't really remember it. So I may be saying something obvious but my thought on the question Stephanie raises above is that there are two reasons district judges like summary judgment. One is, as she says, efficiency; to clear their dockets. Trials are time consuming and there's a lot of pressure on judges to stay off the 120 day lists -- which is a lot easier to do if you don't have too many trials. But the other is a point that Steve Burbank has made a few times -- that judges LIKE deciding cases; they like making law. Anyway, I think this is a great area for empirical investigation; I hope to shed some light on it in a project I'm just getting started on (with Pauline Kim and Andrew Martin). (And I hope to read more posts like this one on this blog; I always learn stuff from these discussions.)

Jeff Yates

Tracy, thanks so much for the heads up on this book. I went right over to the library to look it over. While I've only done a quick review, it looks to be an excellent treatment of US District Court decision making. While I'm not sure that it gets at all of the questions that I'm interested in, it does appear to provide a great starting point for analysis on how the fed trial courts work.

I would like to note that the questions I asked above were somewhat narrow since I restricted them to analysis of summary judgment - there exist some great multivariate regression analyses of federal (and state) trial court judicial decision making; they just dont answer my specific question (I think). Works by Rowland and Carp come to mind, as well as Epstein and Rowland's seminal article in the American Political Science Review. Jim Gibson's treatment on Iowa state trial courts also comes to mind as well as more recent work by Huber and Gordon in the American Journal of Political Science on the effect of elections on trial court judge decisions.

Re your point on why "Rationalizing Justice" not gotten as much attention as it deserves - I imagine that this might be a product of it being in book form (ironically, since we tend to hold books in high esteem). Unfortunately, books aren't typically easily found in highly used search engines (e.g. Lexis or Westlaw). This situation may improve with the development of search engine options such as "Google-Books" that provide full text searchs of book length manuscripts.

Tracy Lightcap

"Given the above, has anyone examined trial court judicial decision making on summary judgment motions in a multivariate regression fashion? I'm thinking of basic theories of judicial decision making such as the attitudinal model or judicial political environment."

Well, yes, they have and at book length: Heyderbrand and Seron's neglected classic Rationalizing Justice. H & S throughly theorize the entire question of what they call "technocratic justice", develop hypotheses about it and testing them using readily available data. The basic idea is that the increasingly rationalized environment of governmental and business decisionmaking have called for a less legalistic, more administrative form of judicial action. It's a good deal more complex - Heyderbrand did the theory and he isn't the man for a straightforward exposition - but it's far and away the best explanation for why summary proceedings have come to be more and more the method of judicial choice.

Why this book hasn't had a larger audience is a puzzle. I would suppose part of the reason is that it largely ignores appellate courts; H & S, quite rightly, don't think that's where the action is. It is trial courts that actually respond to social environments; appellate courts are reacting at second hand and are too episodic in control. That view of things, of course, is a rebours in the legal and pol sci world. The analysis also stretches beyond the data occasionally. Still, if you want a fairly well developed theory and a sophisticated empirical analysis of why summary procedures have come to dominate so much of the legal playing field, here's where you start to look.

Jeff Yates

An excellent comment Stef, although I must confess that I haven't read this piece yet. While I think that Holmes makes an interesting point regarding rational judicial decision making, let me venture two reasons why rational judges might want to make use of summary judgment: 1) They want to clear their dockets and avoid lengthy trials. Miller provides some evidence of this possibility and even suggests that the FJC encourages judges (and litigants) to use SJ to help with the "litigation explosion." 2)trial judges seeking to implement their sincere policy preferences may wish to take the case away from the jury (uncertain outcome) in order to get their preferred outcome. True, a strategic judge might want to game it by anticipating a jury decision, but the down side of SJ may not be that bad anyway. I'm not sure if judges are that concerned with disgruntled litigants - they may be concerned with being overturned on appeal, but if appellate courts are favorable to their SJ decisions, then that isn't as big of a problem.

I think that your comment provides good reason for us to look at potential explanations for SJ decisions. If they fall along ideological lines (e.g. Dem judges vote for underdog plaintiffs and Reps vote for corporate/insurance defendants, on average), then this suggests that judges are rationally advancing their sincere policy preferences. If there is no relationship between ideology and outcomes, then we are left with the Holmes puzzle - what's in it for the judge? (other than clearing the docket).

Stefanie A. Lindquist

This is an interesting post Jeff. What I'd like to know is why a rational judge would promote summary judgment as a means to dispose of cases? I suppose there is the efficiency angle, but I recently assigned a paper by Stephen Holmes entitled "Lineages in the Rule of Law," in which he points out that juries serve a crucial buffering function for courts in that they enable courts to maintain legitimacy because twelve anonymous citizens take the heat for jury verdicts and then fade back into the populace. I thought this was a fascinating point. By deciding cases on summary judgment, judges put themselves squarely in the target for disgruntled litigants.

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