First of all, many thanks for the opportunity to guest blog here. I've found ELSblog to be a valuable resource for information and an invaluable resource for thought-provoking reading. I'm generally a "lurker," but guest blogging will force me out from the shadows.
Like many others, I was trained as a lawyer and practiced law before I became an academic. My interest in empirical legal scholarship arises in part from experiences I had and things I observed as a law clerk and as a litigator.
One of the great frustrations lawyers sometimes experience is the sense that judges are not paying attention to the specific facts and evidence of the case. And in some areas of law, at least, academics also take note. In the world of employment discrimination law, for example, one need not look hard to find lengthy discussions and critiques of courts' inconsistent, unpredictable, or just plain wrong application of the summary judgments standards to prevent plaintiffs from taking their evidence to a jury or, in some cases, to grant judgment as a matter of law and reverse jury verdicts in plaintiffs' favor. But these are complaints about the application of law to fact, not about inaccurate reporting of the facts themselves.
At the same time, numerous academics have undertaken important efforts to identify the facts that appear to matter to judges in different contexts. To name but two examples: Jeffrey Segal's well-known work on search and seizure looks at the relationship of certain facts (whether there search was warrantless, for example, or whether it was a search of a home or a car) to outcome in the Supreme Court's 4th Amendment case law. Lauren Edelman and others are studying how trial and appellate court judges in employment discrimination cases refer to employers' anti- discrimination policies and programs. But what these efforts do not account for, by definition, is what the judges do not say, what they do not mention in their summary of the facts.
Of course, some might say, who cares what the judges don't say. What they do say is what was salient to them, and what they do say is what often becomes important in the case law. (This latter point is one of the arguments of Edelman et al.) What they don't say may matter to the disappointed party and lawyers, but it is of no consequence otherwise.
But it seems to me that the question of whether judges -- consciously or unconsciously -- leave out (arguably) relevant facts is directly relevant to several points of great interest to scholars as well as to lawyers. First, it is directly relevant to the question of how judges decide cases. Second and relatedly, it may shed light on the extent to which they are political in their decisionmaking. Third, it should, I think, force hard thinking about the normative question of what we want judges to do. Do we want them to make predictions about how juries will decide? Do we want them to announce rules of law applicable in the future? Do we want them to focus scrupulously but narrowly on the case before them? Are these goals inconsistent with each other?
The answers to these questions may vary depending on the case, the court, and the issue, of course. Chief Justice Roberts has recently made some news with his call for more narrow, focused decisions -- and evoked the criticism that the Supreme Court's role requires a broader, less case-specific approach. In fact, in my view, the question of whether judges accurately report the facts is more important in the trial and appellate courts than in the Supreme Court.
If I'm overlooking something, of course I'd welcome references to work that does try to address the question of what gets left out of judicial opinions. But as we in empirical legal scholarship are struggling with the question of how to adequately take into account of what is in judicial opinions (how to operationalize the law), let's not forget that opinions must distill mountains of evidence and piles of briefs into a few pages of summary. Things must fall through the cracks. I'm wondering -- is there a pattern to what gets left out and do those things matter?