David Hoffman et al. (Temple, Law) recently circulated a paper that will interest those who analyze judicial opinions. Their paper, Docketology, District Courts, and Doctrine, challenges assumed motivations regarding a judge's decision to write and publish an opinion as well as work that relies on written judicial opinions as a window into judicial behavior. An excerpted abstract follows.
"Empirical legal scholars have
traditionally modeled judicial opinion writing by assuming that judges
act rationally, seeking to maximize their influence by writing opinions
in politically important cases. Support for this hypothesis has
reviewed published opinions, finding that civil rights and other “hot”
topics are more to be discussed than other issues. This orthodoxy
comforts consumers of legal opinions, because it suggests that opinions
are largely representative of judicial work.
Using a hierarchical linear model, our statistical analysis rejects the conventional orthodoxy: judges do not write opinions to curry favor with the public or with powerful audiences, nor do they write more when they are younger, seeking to advance their careers. Instead, judges write more opinions at procedural moments (like summary judgment) when appeal is likely and less opinions at procedural moments (like discovery) when it is not. Judges also write more in cases that are later appealed. This suggests that the dataset of opinions from the trial courts is significantly warped by procedure and risk aversion: we can not look at opinions to capture what the “Law” is."