In Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior, Todd Henderson and William Hubbard (Chicago) set out to empirically test the naive model of judging which predicts that judges will follow unambiguous laws. To do so, the paper levers the Securities Exchange Act 21D, which requires courts to certify that attorneys complied with Rule 11(b)'s prohibition against frivolous claims.
To test the model, the authors eschew the standard data source -- Westlaw or LEXIS -- noting the “denominator problem” that arises as these online databases typically do not capture all district court opinions, orders, and judgments. Instead, the paper benefits from an author-constructed "dataset of PACER docket records of all private securities lawsuits filed in federal court from 1994 to 2008."
Results from their analyses reject the naïve model: "courts make the required findings in less than 14 percent of cases in which such findings were required by law. This suggests judges either do not know of the law or, if they do, fail to follow it. We also show that required Rule 11(b) findings about sanctions are made overwhelmingly in cases where sanctions would be least likely – that is, in orders approving settlements – and such findings are extremely rare in cases where sanctions would other be more likely – that is, where motions to dismiss are granted. To explain this seeming paradox, we offer an account that highlights crucial ways in which the incentives of the judge and of the attorneys may interact in complex cases."