Our library just received the Spring 2007 issue of Constitutional Commentary, which contains a Symposium on The Rehnquist Court in Empirical and Statistical Perspective. Among other pieces are an article co-authored by ELSBlog editors Jason Czarnezki and Bill Ford, along with Lori Ringhand, entitled An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court, and Warren Court Precedents in the Rehnquist Court by Frank Cross (another ELSBlog editor), Thomas Smith, and Antonio Tomarchio. Other articles include (1) When the Court Has a Party, How Many "Friends" Show Up? A Note on the Statistical Distribution of Amicus Brief Filings by Daniel Farber; (2) The Rhetoric of Restraint and the Ideology of Activism, by Stefanie Lindquist, Joseph Smith, and Frank Cross;(3) Judicial Activism: An Empirical Examinoation of Voting Behavior on the Rehnquist Natural Court, by Lori Ringhand; (4) The Most Dangerous Justice Rides into the Sunset, by Paul Edelman and Jim Chen; and (5) The Aggregate Harmony Metric and a Statistical and Visual Contextualization of the Rehnquist Court; 50 Years of Data, by Peter Hook.
The Chicago Appleseed Fund for Justice recently released “A Report on Chicago’s
Felony Courts.” It’s a lengthy report at 123 pages – I just skimmed it – and it
clearly provides an extensive look at Chicago’s
felony courts, relying in part on interviews and/or surveys of judges,
prosecutors, public defenders, private attorneys, victims, and defendants. (The
Chicago Police Department didn’t respond to requests to participate.) The
researchers also relied on 160 hours of courtroom observation conducted by law
students. Oddly, three law students didn’t bother to turn over their materials
after doing the observations. (See footnote 9.)
I didn’t see the actual surveys, interview schedules, or
court observation forms anywhere in the report or on the website. I would like
to see these materials made available somewhere, if they are not already.
The general findings in the report do not sound surprising. For example, the
legislature criminalizes more and more behavior without sufficient attention to
the costs; there is a problem with patronage jobs in staffing the courts (patronage
and the drug war is overburdening the courts (“The courtrooms hear more than 28,000
cases per year, half of which are non-violent,
drug-related charges.” (p. 6) (my emphasis)). These and other findings come
with specific recommendations.
The report is here. Coverage in the Chicago Tribune is here.
By a 9 to 1 vote, the New York State Commission on Judicial Conduct recently removed Judge Robert Restaino from his position as a judge of the Niagara Falls City Court. According to the commission:
“In an egregious and unprecedented abuse of judicial power,
respondent committed 46 defendants into police custody in a bizarre,
unsuccessful effort to discover the owner of a ringing cell phone in the
courtroom. In doing so, he inexplicably
persisted in his conduct over some two hours, questioning the defendants
individually about the phone before committing them into custody, and ignoring
the pleas of numerous defendants who protested that his conduct was unfair and
pleaded that he reconsider. Respondent’s
conduct, which resulted in the unjustified detention of the defendants for
several hours and the incarceration of 14 defendants in the County Jail,
caused irreparable damage to public confidence in the fair and proper
administration of justice in his court.”
The commission’s decision is dated November 13, 2007, but the press is only now reporting the story. The commission’s decision, which includes both a concurrence and a dissent, is here.
James Brudney of the Ohio State University Moritz College of Law and Corey Ditslear of the University of North Texas political science department, have posted a new piece on SSRN. Entitled Liberal Justices' Reliance on
Legislative History: Principle, Strategy, and the Scalia Effect, it addresses the question of whether legislative history is used ideologically, in particular by the liberal justices. The abstract follows:
This article conducts an in-depth examination of Supreme Court Justices'
reliance on legislative history during the Burger, Rehnquist, and early Roberts
eras. In doing so, it makes two important contributions to current statutory
interpretation debates. First, the article presents a powerful case against the conventional wisdom
that legislative history is a "politicized" resource, invoked opportunistically
by federal judges. The premise that judges regularly rely on legislative history
to promote their preferred policy positions - if true - should find ample
support in the majority opinions of liberal Supreme Court Justices construing
liberal (pro-employee) labor and civil rights statutes. By analyzing all
320-plus majority opinions in workplace law authored by eight liberal Justices
from 1969-2006, the authors establish that legislative history reliance is
actually associated with a constraining set of results. When these eight
liberals use legislative history as part of their majority reasoning, they do so
to justify a higher proportion of their pro-employer outcomes than their
pro-employee decisions. The authors then review individual majority opinions to
demonstrate how this surprising pattern of reliance is based on neutral
doctrinal considerations. Liberal Justices use legislative history to illuminate
the existence and contours of complex statutory bargains that often favor
conservative or pro-employer positions. The authors consider alternative
explanations, premised on the institutional factor of who assigns majority
opinions and also the instrumental possibility that liberals withhold use of
legislative history in "minor" cases to enhance its value in more important
decisions. They conclude, however, that Justices Brennan, Marshall, Souter,
Stevens, and others are willing to follow so frequently a legislative history
trail leading away from their presumed ideological preferences mainly because
they have invoked this interpretive resource in principled fashion. The article's second major contribution is to identify and analyze the Scalia
Effect that has arisen with respect to liberal Justices' use of legislative
history since 1986. In the face of Justice Scalia's fervently expressed
opposition to legislative history, liberal Justices have opted not to rely on
that resource in a series of pro-employer majorities that Scalia joins. One
result of the liberals' strategic restraint is to make their use of legislative
history in remaining (mostly pro-employee) majority opinions appear more
ideological than was true before Scalia joined the Court. The authors also show
that liberal justices have special reasons for acting strategically in this
regard. When liberals rely on legislative history, Justice Scalia is
significantly less likely to join their majority opinions even when he votes on
their side; he also is significantly less likely to vote for the majority result
when these liberals rely on legislative history than when they do not.
Intriguingly, Justice Scalia's strong resistance to legislative history usage
does not extend to majorities authored by his conservative colleagues. Scalia
seems prepared to give these conservative colleagues a free ride: he is every
bit as likely to join their majorities, or vote for their results, when they
rely on legislative history as when they do not.
(Hat tip to Rick Hasen's legislation listserv.)
The authors' discussion of the "Scalia effect" reminds me of a moment in Cass Sunstein's Elements class in my first year of law school. Beware of what conclusions you draw from observations, he said. Back in the 1960s, for example, many country clubs issued new rules requiring men to wear coats and ties. But this was not because there was a move towards more formality. Rather it was the opposite. Social norms were moving away from formality and the clubs that wanted to preserve the old norms found it necessary, for the first time, to explicitly state them. Not quite analogous to the Scalia effect discussion, but both are an important reminder of the hazards of inferring causation.
Lee Epstein has an interesting new post at Balkinization, see here, discussing whether Supreme Court Justices more often affirm cases that come from the circuit to which they previously served (i.e., home court) before their elevation to the Supreme Court. Based on her post, it sounds like this could be another interesting paper from Professor Epstein.
Professor Maxwell Stearns of the University of Maryland School of Law recently posted an interesting new paper entitled "The Political Economy of the Roberts Court" on SSRN, see here. It is a provocative paper, and I would like to draw your attention to my lengthy analysis of the piece on SCOTUSblog, see here. For fans of social choice theory, this paper is right up your alley (though I am somewhat critical of the piece in my post). I have posted the abstract after the jump.
Continuing the practice of highlighting the work of our c0-editors, I am delighted to call attention to a newly posted article by Theodore Eisenberg and Michael Heise. The article, entitled Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal, follows on Eisenberg and Kevin Clermont's 2002 article, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments. That earlier article documented differences in reversal rates depending on such factors as the nature of the lawsuit, the nature of the trial court decision (bench vs. jury), and who brought the appeal (plaintiff or defendant). The new article extends the research into state courts, and the findings are both interesting and different. The abstract follows:
Two findings dominate prior empirical studies of federal civil appeals.
First, appeals courts are more likely to disrupt jury verdicts than bench
decisions. Second, trial court defendants fare better than plaintiffs on
appeal. But federal cases are limited by subject matter and comprise a small
fraction of the nation's civil litigation activity. This study,
which exploits a uniquely comprehensive database of state court trials and
civil appeals, presents the first statistical models of the appeals process
for a comprehensive set of state court civil trials. Using data from 46 large
counties consisting of 8,038 trials and 549 concluded appeals, we find that
state court appellate reversal rates for jury trials and appeals
by defendants exceed the reversal rates for bench trials and appeals by
plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5%
compared to 41.5% for trial outcomes appealed by defendants. The reversal
rate for jury trials is 33.7% compared to 27.5% for judge trials. Both
descriptive analyses as well as more formal selection models point to
appellate judges' attitudes toward trial-level adjudicators as an
important explanation for these asymmetric outcomes of civil appeals
in state courts. Our results are generally consistent with prior research
on federal court appeals but also suggest a higher reversal rate of trial
outcomes in state court compared to federal court.
In a very interesting new article forthcoming in Georgetown Law Review, Chad M. Oldfather of Marquette University Law School discusses whether writing really or necessarily makes judicial decisionmaking better, in light of psychology research and experimentation suggesting that under certain conditions a phenomenon of verbal overshadowing makes decisionmaking worse. This article is an interesting companion to David Hoffman, et al.'s recent scholarship, discussed here , on when and why judges write opinions.
The abstract of Professor Oldfather's article follows:
Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive - that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of generating an opinion uncontestably outweigh the benefits - such as in the case of evidentiary rulings made during the course of trial. Still, the understanding remains that writing will result in some positive contribution to the process.
This article calls that assumption into question. Drawing upon an emergent body of psychological research into the effects of both oral and written verbalization on decisionmaking effectiveness, it argues that certain types of decisions are likely to be worse if made via a process that incorporates writing. Decisions involving complex, context-intensive judgments that are best resolved via the weighing of largely inarticulable considerations are susceptible to a phenomenon called verbal overshadowing. In these situations attempts to justify a decision can lead the decisionmaker to focus on more readily verbalizable features of the problem to the exclusion of those inputs that are more important to proper analysis.
The article also investigates the significance of writing to the fulfillment of the other two (aside from accuracy-enhancement)primary functions of judicial opinions, namely the creation and memorialization of precedent and the enhancement of legitimacy, and to consider the differing ways in which these functions are implicated at the trial and appellate levels. The goal is not so much to generate definitive answers as to better identify the costs and benefits provided by written opinions so as to more completely ground ongoing debates concerning when opinions should be issued, what form they should take, and who should author them.
Related to David's post, Chief Justice Roberts gave a speech recently in which he argued that the reasons for the Supreme Court's shrinking docket were: 1) fewer pieces of significant legislation from Congress; 2) more uniform statutory interpretation in the lower courts; and 3) the ability of lower courts to find relevant cases online. (Hat tip to the Brennan Center's Fair Courts Elert. A link to the AP article on the speech is here.)
Over at SCOTUSBlog, Tom Goldstein had an excellent post Tuesday about the state of the Supreme Court's plenary docket for October Term 2007. There is now a 25-case shortfall for the fall, and it looks like it will be really difficult, perhaps impossible, for the Court to fill that shortfall between now and the summer recess. In a separate post at SCOTUSBlog, I discuss at length a 2004 article by Peggy and Richard Cordray, 36 Ariz. St. L.J. 183 (2004), that studies the seasonality of the Court's selection of plenary cases and examines some of the trends that occur when the Court is trying desperately to fill its docket. Among other things, these historical trends suggest that we will see a lot of grants between now and the end of the Term as the Court feels pressure to fill the October, November, and December argument calendars. We will also probably see a ton of grants, just like this Term, around November, December, and January as the Court attempts to fill the remaining slots during the Spring.
Over at the Social Science Statistics Blog Jim Greiner helpfully reminds us about the salience of precedent for those endeavoring to model court decisions. Jim notes (here):
"It's tempting to think that one can code appellate decisions or
judicial opinions pursuant to some neutral criteria, then look for
trends, tease out inferences of causation, etc. Here's a note of
caution: they're not i.i.d. They're probably not i.i.d. given X
(whatever X is). Precedent matters."
So I've gotten off to a slow start, but I'll try to make some contribution now.
As I mentioned, I wonder if psychology as a discipline has gotten short shrift from ELS. As a historical matter I think so; research in legal psychology has been conducted, off and on, for about 100 years. But until recently the legal system has been skeptical, suspicious, at times hostile to psychology, and there’s not much discussion of psychological research in modern ELS – with exceptions, much of the work stems from economics or political science.
There are historical reasons for this skepticism. The conventional story is that psychology and law as a discipline was founded around 1908, with the publication of Hugo Munsterberg’s On the Witness Stand, documenting his efforts to persuade the legal system that his empirical work in criminal justice – eyewitness research, memory, perception, lie-detection, etc. – was relevant and important. (Another interesting contribution, written in a more scholarly vein, was a book by G.F. Arnold, a British legal scholar, Psychology Applied to Legal Evidence (1906)).
Munsterberg's book was pugnacious and had a lot of 'tude -- probably too much ("The time for Applied Psychology is surely near. . . . The lawyer alone is obdurate;" "The lawyer and the judge and the juryman are sure that they do not need the experimental psychologist. . . . They go on thinking that their legal instinct and their common sense supplies them with all that is needed and somewhat more.") Hugo's book prompted a now-classic response article by John Henry Wigmore, in which Wigmore staged a mock lawsuit accusing Munsterberg of libeling the legal profession. Both tongue-in-cheek and vitriolic, Wigmore's cross-examination devastated poor Hugo, and as a result, one commentator has said, for years American psychologists "left the law rather severely alone." Last week a wonderful conference was staged at John Jay College of Criminal Justice, though, celebrating OTWS's centenary: Off the Witness Stand: Using Psychology in the Practice of Justice." With a keynote speech by Janet Reno, and talks by many top researchers in in psychology discussing the state of psycholegal research today--experts in eyewitness testimony, memory, jury decision-making, forensic psychology, coerced confessions, and more--it was geared toward both scholars and practitioners, and was a good state-of-the-discipline weekend. (One concern, as I hope to discuss in another post, is the impression that criminal justice is all there is for psychology to look at.)
And there are methodological / institutional reasons for the skepticism. As I and many others have noted, experimental psychology takes a different approach to finding answers: objective rather than adversarial, nomothetic rather than idiographic, probabilistic rather than certain, descriptive rather than prescriptive.
But this skepticism is unfortunate, and has led to a lack of communication between the disciplines of law and psychology.I think ELS suffers from that lack, in at least two ways.The first is simply mutual unfamiliarity with the other field’s research.This is unfortunate historically (for instance, the explosion of heuristics-and-biases research over the last 10 years or so, which builds on psychologists’ work that has been around for 30 years and appears in any introductory cognitive psychology textbook), but also in terms of keeping up with empirical developments in psychology (and other social sciences too, of course).
The second, which I'll turn to next post, is methodological. . . .
Thanks to everyone who has commented on my posts so far. The responses to my first post, on whether judges accurately report the facts, were extremely helpful. I think that Sara Benesh may have put her finger on one of the real challenges of doing this kind of work – deciding what facts should have been reported. In situations where the Supreme Court has made it clear that certain types of facts must be taken into account, whether by incorporating those facts explicitly into a legal test or standard or by doing so implicitly by relying on such facts (or their absence) repeatedly, my hypothesis would be that the trial and appellate courts do a pretty good job of accurately reporting them – as Sara seems to have found.
But my interest in this thorny question arises from a different context. In employment discrimination cases, courts often must decide whether to grant summary judgment. So they have to evaluate whether a reasonable jury could find for the plaintiff. Every case presents a different constellation of facts and much of what courts must do is to weigh the facts. Although the Supreme Court has provided a framework for this analysis (McDonnell-Douglas), in fact what courts do here is quite case-specific (and, as I’ve already suggested, quite unpredictable). Judges in these cases don’t report every fact or piece of evidence. They can’t. And presumably, the decision to omit a fact is based on a determination that the fact, or piece of evidence, is not material. So if a researcher were to go through the briefs and identify the facts mentioned by the lawyers but not the court, the researcher would still have to make a judgment whether the facts should have been mentioned.
So how to get around this problem? One possibility is to focus on dissents. In some cases, the dissents blow the whistle. In Malacara v. City of Madison, for example, Judge Williams in dissent lays out the plaintiff’s substantial evidence to support his claim of discrimination, evidence that the majority simply ignores. The problem is that such whistleblowing will point to only a fraction of the cases in which this problem arises, either because there is no dissent or because a draft dissent prompted discussion of the previously omitted facts. This latter situation may be interesting for other reasons – does the presence of certain judges and the increased threat of whistleblowing affect the way or which facts are described? This is a panel effect that I do not believe has been studied, but would be very difficult to observe, at least in the absence of judges’ papers.
There’s an additional facet to this problem that has to do with how the law develops, and that might provide some insight. My colleague Mark Rosen has coined that expression “rulifying” to describe the way that the Supreme Court reliance on facts can turn those facts into elements of a legal standard or rule. Putting these ideas together suggests an interesting possible empirical approach: is there less “whistleblowing” in areas of law that have relatively well-developed sets of facts courts are required to address versus areas of law that require judges simply to rely on their overall assessment of the evidence or facts – the totality of the circumstances?