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Crafting the Law: How Opinion Content Influences Legal Development
Abstract
Why are some opinions widely discussed while others remain obscure? We theorize that opinions that can be understood efficiently are discussed, expanded, and contracted more frequently. Additionally, more persuasive precedents tend to be discussed and expanded more regularly, while less persuasive precedents are narrowed more often. These effects should also depend on institutional context. We compile an original dataset of 7,485 search and seizure opinions written by federal circuit and state high court judges and 567,062 judicial citations to those cases. The evidence demonstrates that efficiency, persuasiveness, and institutional context together determine how much an opinion affects legal development.
... However, most studies of legal citation networks have focused on the highest level in the court hierarchy, such as the Supreme Court of the United States [98,100,[103][104][105], the European Court of Justice [101,106], the Supreme Court of India [107], or the International Criminal Court [108]. Some recent studies that make use of citation data have considered multiple levels of the court hierarchy [109][110][111][112]. In Refs. ...
... In Refs. [109] and [110], the authors used citation counts in regression analyses to assess the influence of particular cases from the Supreme Court of the United States [109] and from US appellate (federal and state) courts [110], but did not make use of the network structure of the data. Pelc [111] devised a measure of the importance of cases within the network of judgments in World Trade Organization disputes and investigated its correlation with the commercial value of the disputes, to test the hypothesis that nations litigate in low commercial value cases in order to secure useful precedents for future high value cases. ...
... In Refs. [109] and [110], the authors used citation counts in regression analyses to assess the influence of particular cases from the Supreme Court of the United States [109] and from US appellate (federal and state) courts [110], but did not make use of the network structure of the data. Pelc [111] devised a measure of the importance of cases within the network of judgments in World Trade Organization disputes and investigated its correlation with the commercial value of the disputes, to test the hypothesis that nations litigate in low commercial value cases in order to secure useful precedents for future high value cases. ...
Humanity's understanding of complex societal phenomena is still in its infancy, and there is much to discover about the organizing principles governing social life on Earth. How do societal structures such as social hierarchies form, and under what conditions do these structures remain stable versus become unstable and collapse? What is the structure of the jurisprudence that regulates modern human societies and how does it evolve in time? In this thesis, I apply quantitative analysis and modeling approaches from physics and network science to investigate these questions.
In Part I, I develop simple models of the formation and stability of social hierarchies and compare their results to interaction data from animal societies and proxy data from human societies. The models are based on pairwise interactions between randomly-selected individuals that result in exchanges of societal "status." Following many interactions, a distribution of status forms, the shape of which ranges from egalitarian (many individuals with near average status) to very unequal (many low status individuals and a few high status individuals), depending on the model parameters. An Arrhenius relationship between a characteristic time controlling the evolution of the status distribution and the model parameters quantifies "long-lived" status distributions which appear to be stable in time, but in fact are not.
In Part II, I analyze citation networks of court decisions (judgments) in the areas of family, bankruptcy, and defamation law, using unique datasets covering all levels of the Canadian court hierarchy (trial, appellate, and Supreme Court of Canada). In each network, judgments are "nodes" and judges' citations of past decisions are directed "links" between nodes. Despite the legal differences between the three areas of law, many large-scale network properties are similar. However, one can use refined network tools (clustering methods) to draw out differences in the datasets and interpret them in relation to legal developments (landmark judgments and important legislation) in the specific areas of law. This leads to an in-depth examination of the influence of landmark judgments and statutory changes on the explosion in family litigation that occurred in Canada in the 1990s.
... Finally, we control for two key factors at the Court of Appeal level that may shape how much (or little) a justice borrows from the Court of Appeal decision. Prior scholarship demonstrates that writing clarity is an important factor affecting the judicial process, as higher levels of opinion clarity increase the transparency and perceived legitimacy of the ruling at hand (Goelzhauser and Cann 2014; Nelson and Hinkle 2018;Bowie and Savchak 2019;Bowie and Savchak 2022). As such, lower court opinions that are clearly written may be more strongly perceived as rationally grounded decisions, meaning we should see higher rates of borrowing from those opinions. ...
Do lower court judges influence the content of Supreme Court opinions in the United Kingdom? Leveraging original data, we analyze opinion language adoption practices of the UK Supreme Court. We advance a theory where the justices’ choices to adopt language from lower court opinions are influenced by Supreme Court-level attributes and Court of Appeal case characteristics. We uncover compelling evidence that UK Supreme Court justices incorporate language extensively from the written opinions of the Court of Appeal of England and Wales. Our findings have significant implications for opinion formulation, doctrinal development, and higher and lower court interactions within comparative courts.
... Ruger et al. (2004), among others, provide empirical support for this claim by showing a relationship between ideology and judicial voting behavior. A number of factors at the time of setting precedent have been shown to influence subsequent treatment of a decision, including the characteristics of an opinion (Nelson and Hinkle 2018;Masood, Kassow, and Songer 2019) and the identity of the judges (Budziak 2017;Masood and Kassow 2020). It has also been argued that the content of a Supreme Court opinion might correlate with characteristics of the majority coalition Lindquist 2008, 2012). 1 However, the extent to which the ideological context of the Supreme Court at the time of drafting the opinion and setting the precedent impacts its subsequent citation remains unresolved. ...
How do ideological factors explain the citation patterns of federal courts? Current literature uses citation data in myriad ways but leaves open the question of how ideological factors may influence citation from each level of the judicial hierarchy differently. Combining original data on citations to Supreme Court opinions by district courts from 1969 to 2005 with existing data on citations by the courts of appeals and Supreme Court, I present a more complete portrait of the scope of a precedent across the federal judiciary. I find that ideological factors are associated with differences in citing behavior on the federal courts. Both the appellate and district courts are responsive to Supreme Court precedent, but district courts are not equally responsive to liberal and conservative updates to doctrine. Further, as the Supreme Court ideology changes from the time of setting precedent, appellate courts are less likely to cite the precedent, but district courts cite it more. These results suggest that the relationship between ideology and precedent adherence is complicated by the distinct institutional features of the Supreme Court, courts of appeals, and district courts.
We explore English legal evolution by empirically investigating the relevance of late-medieval and early-modern legal ideas for caselaw development during the Industrial Revolution, an era of unprecedented societal change. To ascertain the prevalence of specific legal ideas in pre-1765 case reports, we draw on existing topic model estimates. We measure the relevance of those ideas for subsequent caselaw development using post-1764 citations to the pre-1765 cases. We show that deliberations on court cases heard between 1765 and 1870 systematically invoked a broad range of preexisting legal ideas. Strikingly, the strongest effects are exhibited by Coke-style analysis and precedent-based thought. A key legacy of early English caselaw therefore lay in bestowing modes of reasoning. The reason why a subset of preexisting legal ideas does not exert a detectable effect is that those ideas were generally no longer key to post-1764 legal disputes. Our approach to investigating legal development could be applied in many other contexts.
Because stereotyping affects individual assessments of ability and because of socializing experiences in the law, we argue that women and judges of color, while well‐credentialed, feel pressure to work harder than their white male peers to demonstrate their competence. Using an original dataset of published appellate court opinions from 2008–2016, we find that majority opinions authored by female and non‐white judges go farther to explain and justify their rulings, when compared to opinions written by white male peers. In comparison to other judges, opinions by white men are about 6% shorter, with 11% fewer citations, and 17% fewer extensively discussed citations. Our findings suggest that norms about crafting judicial opinions are gendered and racialized in ways that create higher workloads for women and judges of color.
Despite our understanding that the US Supreme Court influences lower courts in a top-down fashion, we examine whether state courts influence Supreme Court work, namely, its majority opinions. This study of lower court influence on Supreme Court opinion writing investigates whether and when justices borrow language from state court opinions. While our fundamental interest is in whether the writings of state court judges are influential in Supreme Court opinions, we further investigate whether justices’ biases against elected judiciaries and favor for appointed systems play a role here. Our original data set includes Supreme Court cases reviewing state court decisions from 1995 to 2015. Results show that the potential for lower court influence differs for appointed versus elected state court judges, lending valuable insight into the discussion of judicial power and institutional design. Meanwhile, state courts play an important role in the development of law at the Supreme Court.
Objective
This article examines whether more readable U.S. Supreme Court opinions are cited with greater frequency in state courts of last resort.
Methods
We use random slope, random intercept multilevel models to analyze 30 years of state high court citations to U.S. Supreme Court majority opinions issued during the 1987–2006 terms.
Results
Our analysis reveals that opinion readability exerts a strong substantive impact on citation rates. This effect holds while accounting for a variety of factors previously shown to influence citation rates.
Conclusion
Institutional constraints, workload considerations, and audience costs should lead state high courts to find clearly written opinions more attractive than jargon‐laden ones. This makes the readability of a U.S. Supreme Court precedent a useful heuristic for state courts when selecting among potential relevant precedents. As these courts play a major role in implementing U.S Supreme Court decisions, our findings indicate that the readability of U.S. Supreme Court opinions has a strong effect on their long‐term impact.
Most decisions about policy adoption require preference aggregation, which makes it difficult to determine how and when an individual can influence policy change. Examining how frequently a judge is cited offers insight into this question. Drawing upon the psychological concept of social identity, we suggest that shared group memberships can account for differences in policy influence. We investigate this possibility using the demographic and professional group memberships of federal circuit court judges and an original dataset of citations among all published search and seizure cases from federal circuit courts from 1990 to 2010. The results indicate that shared professional characteristics do tend to lead to ingroup favoritism in citation decisions while only partial evidence of such a pattern emerges for demographic group memberships. There is evidence of ingroup favoritism among female and minority judges but none for male or white judges. Overall, judges appear to generally have greater influence on judges with shared characteristics. The findings have vital implications for our understanding of the diversification of policy-making institutions.
We extend the scaling methodology previously used in Bonica (2014) to jointly scale the American federal judiciary and legal profession in a common space with other political actors. The end result is the first dataset of consistently measured ideological scores across all tiers of the federal judiciary and the legal profession, including 840 federal judges and 380,307 attorneys. To illustrate these measures, we present two examples involving the U.S. Supreme Court. These data open up significant areas of scholarly inquiry.
We introduce a new method to measure the ideology of state Supreme Court justices using campaign finance records. In addition
to recovering ideal point estimates for both incumbent and challenger candidates in judicial elections, the method’s unified
estimation framework recovers judicial ideal points in a common ideological space with a diverse set of candidates for state
and federal office, thus facilitating comparisons across states and institutions. After discussing the methodology and establishing
measure validity, we present results for state supreme courts from the early 1990s onward. We find that the ideological preferences
of justices play an important role in explaining state Supreme Court decision-making. We then demonstrate the greatly improved
empirical tractability for testing separation-of-powers models of state judicial, legislative, and executive officials with
an illustrative example from a recent political battle in Wisconsin that ensnared all three branches.
Supported by numerous empirical studies on judicial hierarchies and panel effects, Positive Political Theory (PPT) suggests that judges engage in strategic use of opinion content—to further the policy outcomes preferred by the decision-making court. In this study, we employ linguistic theory to study the strategic use of opinion content at a granular level—investigating whether the specific word choices judges make in their opinions is consistent with the competitive institutional story of PPT regarding judicial hierarchies. In particular, we examine the judges’ pragmatic use of the linguistic operations known as “hedging”—language serving to enlarge the truth set for a particular proposition, rendering it less definite and therefore less assailable—and “intensifying”—language restricting the possible truth-value of a proposition and making a statement more susceptible to falsification. Our principal hypothesis is that district court judges not ideologically aligned with the majority of the overseeing circuit judges use more hedging language in their legal reasoning in order to insulate these rulings from reversal. We test the theory empirically by analyzing constitutional criminal procedure, racial and sexual discrimination, and environmental opinions in the federal district courts from 1998 to 2001. Our results demonstrate a statistically significant increase in the use of certain types of language as the ideological distance between a district court judge and the overseeing circuit court judges increases.
The demand that text processing imposes on learners' cognitive capacity was measured with a secondary-task technique; the meaning of the textual materials was held constant while several structural (surface) variables were manipulated. Exp I (36 undergraduates) showed that text versions with simplified vocabulary and syntax (but equivalent content) required less cognitive capacity to process than standard versions. Exp II (96 Ss) revealed that the reduction in use of cognitive capacity was due primarily to syntactic factors. Exp III (72 Ss) demonstrated that texts containing signals about idea importance and relations required less cognitive capacity to process than texts with approximately the same propositional content but no such signals. Measures of total inspection time and content recall were also secured. In general, findings indicate that aspects of the surface structure of text made demands on Ss' cognitive processing capacity. (44 ref) (PsycINFO Database Record (c) 2012 APA, all rights reserved)
Despite the importance of Supreme Court opinions for the American polity, scholars have dedicated little systematic research to investigating the factors that contribute to the content of the justices’ opinions. In this article, we examine the ability of lower federal courts to shape the content of Supreme Court opinions. We argue that lower court opinions will influence the content of the Court’s opinions to the extent that the justices perceive that integrating language from lower court opinions will aid them in making efficacious law and policy. Utilizing plagiarism detection software to compare lower federal court opinions with the majority opinions of the Supreme Court during the 2002–2004 terms, we uncover evidence that the Court systematically incorporates language from the lower federal courts into its majority opinions.
The positive literature on judicial behavior has not received nearly the attention it deserves. That literature has a great deal to offer, both to legal scholars and to those who are concerned about the role of legal institutions generally. For example, the literature has the potential to help shed light on the ability of courts to protect rights and foster economic development. This article argues that the positive literature has failed to see its due in large part because positive scholars often do not take law and legal institutions seriously. The article identifies three specific sets of problems with the positive scholarship, offering detailed suggestions on how positive scholars can avoid them. The first is the problem of normative bite: Too often positive scholars of judicial behavior seem to be trapped in their own disciplinary debates, without pausing to examine why it is that they are studying what courts and legal institutions do. Second, positive scholars need to pay greater attention to the norms of the law, i.e., how law and legal institutions operate. A skeptical stance toward law is fine, but that skepticism should not get in the way of accurately understanding properly the mechanics of law and legal institutions. Finally, empiricists in particular must take great care regarding the data upon which they rely. It is difficult to obtain good data on the workings of legal systems. Data that are readily available often present a distorted picture of the system being studied.
This article uses citations to the published opinions of judges on the federal courts of appeals who had six or more years tenure at the end of 1995 to estimate empirically the influence of individual judges. We rank judges on the basis of both total influence (citations adjusted for judicial tenure and other variables) and average influence (citations per published opinion). We also analyze the effects of factors that may be relevant to explaining differences in the influence of individual judges. These factors include both characteristics of the judges (for example, quality of law school, law school performance, sex, race, prior experience, political affiliation) and characteristics of the circuit in which they sit (such as the mix of cases in the circuit). In an appendix, we use citations to the published opinions in each circuit rather than to individual judges to measure the influence of circuits rather than individual judges. Copyright 1998 by the University of Chicago.
Scholars suggest that judges have an incentive to use complex language to increase support for their deisions. Research on the effects of processing fluency, however, points towards a different set of expectations. Using a survey experiment, we manipulate the complexity of the language conveying two Court decisions and two types of source cue. For the less polarizing of the two decisions, we find that by decreasing processing fluency, complex decision language can both decrease acceptance of the decision and diminish the importance of source cues in arriving at this judgment. Legalistic terminology, however, increases acceptance.
This book is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions. © Ryan Black, Ryan Owens, JustinWedeking and PatrickWohlfarth 2016. All rights reserved.
I develop a new measure of interpersonal influence on the U.S. Supreme Court. Following Altfeld and Spaeth, I define influence as “the act of producing an effect on the behavior of another without the use of coercion, authority, or political control.” I propose a measure of influence based on the number of times a justice cites her colleagues’ concurring and dissenting opinions. My analysis proceeds in two stages. First, I verify that this citation-based measure is a valid method of gauging influence. From there, I use this measure to help explain justice behavior in two pivotal stages of the Supreme Court’s decision-making process: oral arguments and opinion assignments. The results demonstrate that a citation-based measure of influence can help explain and predict behavior on the Supreme Court.
With few exceptions, scholars have generally relied on judges' final votes on the menrts as the primary indicator of judicial outcomes. Yet, to fully understand judicial decision-making we think it imperative that research also focus on the interpretation of precedent and legal change. To do so, it is necessary to develop measures of legal change and the treatment of precedent over time. Scholars have begun doing so by using Shepard's Citations, a legal citation index. One of the most important fetures of Shepard's is its list of all opinions that legally treat a previously decided case, as well as its characterization of the nature of that legal treatment. Yet, the reliability and validity of Shepard's is unknown, and we should therefore be appropriately skeptical of it. This article empirically tests the reliability of Shepard's and discusses the validity of its coding protocols. Our analysis demonstrates that Shepard's coding of legal treament is quite reliable, though there is some notable variance across Sheard's treatment categories. We also point out several features of Shepard's that could potentially affect the validity of a measure derived from it. We conclude that, as long as scholars keep these validity issues in mind, Shepard's can be a highly appropriate data source.
Supreme Court citations are rarely the subject of rigorous analysis. This Article presents an empirical examination of Supreme Court opinion citation practices since World War II, with a focus on the era from the Warren Court through the end of the Rehnquist Court. After theoretically analyzing the role of citations in judicial opinions and their significance, we explain how they may be used as a test of stare decisis and the Court's projection of power and legitimation of its authority. We measure both the raw number of citations in majority opinions and the significance of the cases cited (using a calculation of their network centrality at the time of the decision). Various factors significantly influence citation frequency and choice, including the type of case. After controlling for these factors, we consider the relative citation practices of the Justices of the Court since the 1950s. This method allows us to find that political legitimation of decisions is a key determinant of citations, but that legal factors also matter. We also explore the citation practices of individual Justices. Our findings are consistent with the conventional wisdom in some instances, but serve to dispel other common beliefs. For example, we find that Justices Black and Douglas showed relatively little devotion to precedents but the Warren Court more generally was concerned about stare decisis. In the recent era, Justice Souter stands out for his citation practices. Finally, we examine the implications, on future citation use, of an opinion's volume of citations to precedent, and their respective network centrality.
How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors?The Constrained Courtcombines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. The Constrained Courtshatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.
We address fundamental questions about the ability of interest groups to shape public policy by examining the influence of amicus curiae briefs on U.S. Supreme Court majority opinion content. We argue that the justices will incorporate language from amicus briefs into their opinions based on the extent to which the amicus briefs contribute to their ability to make effective law and policy. Using plagiarism detection software and other forms of computer assisted content analysis, we find that the justices adopt language from amicus briefs based primarily on the quality of the brief's argument, the level of repetition in the brief, the ideological position advocated in the brief, and the identity of the amicus. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.
The judicial behavior literature typically assumes that politicians nominate judges on the basis of their ideology. That assumption helps explain studies that show a statistical correlation between the party of the nominating president and the ideological direction of the votes of judges. However, the assumption is too simple. Casual empiricism suggests that politicians, interest groups, and the public care not only about the ideology of judges. They may also care about their competence and political loyalty and about ensuring that the judicial system is diverse. We focus on the role of competence in judicial promotions. We find, however, that presidents do not take much account of competence when promoting judges-despite the fact that there is some, albeit mixed, evidence that the most competent appellate judges were highly competent district judges.
Drawing on data collected by Barry Latzer and using a logistic regression model that employs pooled time-series, this article
tests a variety of factors for their impact on state high court decisions to diverge from U.S. Supreme Court criminal procedure
doctrines from 1969 to 1989. Several factors predict the development of independent state doctrines protective of civil liberties,
including popular-vote retention elections and longer terms of office for state court justices, high court reputations, state
wealth, and regional distinctions (with western courts most likely to advance individual rights). This study represents only
a small step in understanding an area of judicial behavior that has been long ignored in the political science literature.
We contribute to the literature on judicial independence and performance in the states by analyzing opinion clarity. Written opinions are the primary means of communication for state supreme court justices, and clarity is a core component of judicial performance. Using automated text analysis on a sample of state supreme court opinions from all 50 states, we find that variation in judicial retention systems is not associated with substantively meaningful differences in opinion clarity. Furthermore, elected judges do not seem to produce clearer opinions in salient cases notwithstanding the increased public visibility of those decisions. These results suggest that judges tend to conform to prevailing professional norms despite differing institutional pressures.
This article uses two newly collected data sets to investigate the reliance by political actors on the external vetting of judicial candidates, in particular vetting conducted by the nation’s largest legal organization, the American Bar Association (ABA). Using these data, I show that minority and female nominees are more likely than whites and males to receive lower ratings, even after controlling for education, experience, and partisanship via matching. These discrepancies are important for two reasons. First, as I show, receiving poor ABA ratings is correlated with confirmation failure. Second, I demonstrate that ABA ratings do not actually predict whether judges will be “better” in terms of reversal rates. Taken together, these findings complicate the ABA’s influential role in judicial nominations, both in terms of setting up possible barriers against minority and female candidates and also in terms of its actual utility in predicting judicial performance.
In the course of making and justifying decisions, judges on state supreme courts often rely on precedents from other jurisdictions. These judicial references across boundaries constitute at least one means of communication and, in turn, demonstrate a complex web of deference and derogation between and among various courts. I attempt to uncover patterns of citation between the several state supreme courts and to evaluate alternative explanations for these patterns, including distance between courts; similarity of political culture; the prestige, professionalism, legal capital, and caseload of the cited court; the social diversity of the environment; differentials between courts on a number of dimensions; and presence in the same legal reporting region. More globally, I ask: Does the intensity of communications between a pair of courts result from the characteristics of the cited court or from differences and similarities between courts or jurisdictions? The results indicate the importance of legal reporting districts, distance between the courts, cultural linkages between the jurisdictions and, especially, characteristics of the cited court.
How can legal decision makers increase the likelihood of a favorable response from other legal and social actors? To answer this, we propose a novel theory based on the certainty expressed in language that is applicable to many different legal contexts. The theory is grounded in psychology and legal advocacy and suggests that expressing certainty enhances the persuasiveness of a message. We apply this theory to the principal–agent framework to examine the treatment of Supreme Court precedent by the Federal Courts of Appeal. We find that as the level of certainty in the Supreme Court's opinion increases, the lower courts are more likely to positively treat the Court's decision. We then discuss the implications of our findings for using certainty in a broader context.
We argue that actors can attempt to shield their policy choices from unfavorable review by crafting them in a manner that will increase the costs necessary for supervisory institutions to review them. We apply this theory to the US Supreme Court and demonstrate how justices strategically obfuscate the language of majority opinions in the attempt to circumvent unfavorable review from a politically hostile Congress. The results suggest that Supreme Court justices can and do alter the language of their opinions to raise the costs of legislative review and thereby protect their decisions.
Elsewhere I have argued that measures of U.S. state legislative professionalization assess individual and organizational capacity to generate and evaluate information in the policymaking process. In this article, I adapt my measure of state legislative professionalization to state courts of last resort, attempting to assess the informational capacity of those bodies in making legal decisions. Specifically, I examine judicial salaries, a court's level of control over its docket, and the number of law clerks employed by the justices. After presenting four variants of the court professionalization measure and investigating their validity, I examine explanations for their observed variance across the states. I conclude by comparing my indices with existing indices and speculating about the utility of such measures.
Existing evidence of law constraining judicial behavior is subject to serious endogeneity concerns. Federal circuit courts offer an opportunity to gain leverage on this problem. A precedent is legally binding within its own circuit but only persuasive in other circuits. Legal constraint exists to the extent that use of binding precedents is less influenced by ideology than use of persuasive precedents. Focusing on search and seizure cases, I construct a choice set of published circuit cases from 1953 to 2010 that cite the Fourth Amendment. I model the use of precedent in cases from 1990 to 2010, using matching to ensure that binding and persuasive precedents are otherwise comparable. The less visible decision of which cases to cite shows no evidence of legal constraint, while there is consistent evidence that the more readily observable act of negatively treating a cited precedent is constrained by the legal doctrine of stare decisis.
Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs with the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.
With few exceptions, scholars have generally relied on judges' final votes on the menrts as the primary indicator of judicial outcomes. Yet, to fully understand judicial decision-making we think it imperative that research also focus on the interpretation of precedent and legal change. To do so, it is necessary to develop measures of legal change and the treatment of precedent over time. Scholars have begun doing so by using Shepard's Citations, a legal citation index. One of the most important fetures of Shepard's is its list of all opinions that legally treat a previously decided case, as well as its characterization of the nature of that legal treatment. Yet, the reliability and validity of Shepard's is unknown, and we should therefore be appropriately skeptical of it. This article empirically tests the reliability of Shepard's and discusses the validity of its coding protocols. Our analysis demonstrates that Shepard's coding of legal treament is quite reliable, though there is some notable variance across Sheard's treatment categories. We also point out several features of Shepard's that could potentially affect the validity of a measure derived from it. We conclude that, as long as scholars keep these validity issues in mind, Shepard's can be a highly appropriate data source.
Until recently, the American legal establishment embraced a classical view of the judicial role. Under this view, judges are not supposed to have an involvement or interest in the controversies they adjudicate. Disengagement and dispassion supposedly enable judges to decide cases fairly and impartially. The mythic emblems surrounding the goddess Justice illustrate this vision of the proper judicial attitude: Justice carries scales, reflecting the obligation to balance claims fairly; she possesses a sword, giving her great power to enforce decisions; and she wears a blindfold, protecting her from distractions.
Many federal judges have departed from their earlier attitudes; they have dropped the relatively disinterested pose to adopt a more active, "managerial" stance. In growing numbers, judges are not only adjudicating the merits of issues presented to them by litigants, but also are meeting with parties in chambers to encourage settlement of disputes and to supervise case preparation. Both before and after the trial, judges are playing a critical role in shaping litigation and influencing results.
To what extent is legal change influenced by judicial politics? This question, as initially posed by legal realists, provided the stimulus for much of the early study of the judicial process. Although judicial scholars have since explored the impact of judicial policy views, the litigation environment, and the political environment, no systematic analysis of the impact of these factors on legal change has been undertaken. I develop a measure of legal change and use it to test the impact of judicial politics by examining search and seizure cases decided by the Supreme Court between 1962 and 1989. Using a multinomial logit model, I find that several aspects of the judicial process, particularly the Court's political composition, legal constraints, litigant resources, attorney experience, amicus support, and presidential preferences, affect the direction of legal change.
Lower federal appellate judges, like other government officials, identify problems, formulate and implement solutions, and subsequently evaluate them for their efficacy. Immediately following the passage of the Americans with Disabilities Act, courts were confronted with cases that raised new policy issues in claims of employment discrimination. With no guidance from the Supreme Court for five years, circuit courts articulated solutions to these issues with written published opinions. By examining citations to precedents in those opinions, we evaluate the degree to which the court’s reasoning draws on policies from other circuits. Although stare decisis does not compel appeals court judges to consider decisions from other circuits, 76 percent of the opinions include a reference to an out-of-circuit precedent. Outside citations were not uniform across circuits and cases with increased references to outside courts in circuits were characterized by conflict. Our examination of citation patterns suggests that the development of precedent proceeds on two tracks. On one level, circuit judges’ opinions build on precedent from within their court. More broadly, citations reflect on an inter-court dialog to identify conflict and consensus in federal legal policy.
Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities - cases, statutes, constitutions, regulations, articles, and books, primarily - are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law's use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.
Do judges simply cherry pick precedents to justify decisions that reflect their personal biases rather than the weight of legal authority? Legal realists and legal skeptics have contended that judges use case law as a means of justifying decisions that have been made extra-legally. We test this hypothesis by statistically analyzing the citation practices of California Court of Appeal judges in unconscionable contract cases. We reject the claims of the legal realists and legal skeptics, finding no evidence that judges manipulate the existing case law by selecting favorable precedents to justify extra-legal decisions. Judges writing pro-plaintiff opinions are more likely to cite pro-plaintiff precedents; and pro-defendant opinions are more likely to cite pro-defendant precedents. While this is consistent with the idea that judges cherry pick precedents to cite in order to justify their decisions, it is also consistent with the idea that the precedents that are cited in a legal opinion are the most influential. To determine the direction of causation, we use a new methodology for analyzing the use of precedents in legal opinions, exploiting the fact that decisions correlate with perceived political preferences in the area of law we investigate. Citations of precedent in cases where judges vote in accordance with their perceived political preference do not significantly differ from citations of precedent in cases where judges do not vote in line with their perceived political preference. This is evidence that judges do not simply cherry pick precedents when writing opinions.
The doctrine of precedent is everyone's dragon. If facts in the putative precedent are identical with or reasonably similar to those in the compared case, the precedent is recognized as legitimate, and it is applied. In such cases, all of us -- student and professor, lawyer and judge, commentator and philosopher -- consider it merely, as the Italians say, "un dragonetto" (a small dragon). But if the material facts in the compared case do not run on all fours with the putative precedent, the doctrine becomes "un dragone," or, to give equal time, "una dragonessa" (a full grown, ferocious dragon). Wrestling with such a dragon can be the most difficult and controversial job in the judging business. I realize that literature on how to deal with this dragon abounds. Undeterred, I make bold to mount my charger, draw my lance, and gallop into the lists to volunteer some advice on how to tweak the dragon's tail. Perhaps the dragon will prove too elusive, or I too bold or too meek, but ever persistent I will press on, hoping to tame this dragon. I bring with me experience, not only as a judge, to be sure, but also as one who has explored and meandered in the judicial process thicket, seeking trails to understand what it is all about. First I will discuss some definitions of precedent and the overarching doctrine of stare decisis. I the will explore what I call the four different models of precedent. From this I will move to a consideration of precedent as a method of classification containing varying degrees of abstraction. This will lead to a study of inductive reasoning, including both generalization and analogy, taking freely from my book Logic For Lawyers: A Guide to Clear Legal Thinking. I wrap it up with some views of precedential vitality, and close with the distinction between precedent and persuasive authority. PDF scan posted with permission of the Pepperdine Law Review.
This article traces the decline in the portion of cases that are terminated by trial and the decline in the absolute number of trials in various American judicial fora. The portion of federal civil cases resolved by trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, continuing a long historic decline. More startling was the 60 percent decline in the absolute number of trials since the mid 1980s. The makeup of trials shifted from a predominance of torts to a predominance of civil rights, but trials are declining in every case category. A similar decline in both the percentage and the absolute number of trials is found in federal criminal cases and in bankruptcy cases. The phenomenon is not confined to the federal courts; there are comparable declines of trials, both civil and criminal, in the state courts, where the great majority of trials occur. Plausible causes for this decline include a shift in ideology and practice among litigants, lawyers, and judges. Another manifestation of this shift is the diversion of cases to alternative dispute resolution forums. Within the courts, judges conduct trials at only a fraction of the rate that their predecessors did, but they are more heavily involved in the early stages of cases. Although virtually every other indicator of legal activity is rising, trials are declining not only in relation to cases in the courts but to the size of the population and the size of the economy. The consequences of this decline for the functioning of the legal system and for the larger society remain to be explored.
We construct the complete network of 30,288 majority opinions written by the U.S. Supreme Court and the cases they cite from 1754 to 2002 in the United States Reports. Data from this network demonstrates quantitatively the evolution of the norm of stare decisis in the 19th Century and a significant deviation from this norm by the activist Warren Court. We further describe a method for creating authority scores using the network data to identify the most important court precedents. This method yields rankings that conform closely to evaluations by legal experts, and even predicts which cases they will identify as important in the future. An analysis of these scores over time allows us to test several hypotheses about the rise and fall of precedent. We show that reversed cases tend to be much more important than other decisions, and the cases that overrule them quickly become and remain even more important as the reversed decisions decline. We also show that the Court is careful to ground overruling decisions in past precedent, and the care it exercises is increasing in the importance of the decision that is overruled. Finally, authority scores corroborate qualitative assessments of which issues and cases the Court prioritizes and how these change over time.
Abstract not available
Liberals have acclaimed, and conservatives decried, reliance on courts as tools for changes. But while debate rages over whether the courts should be playing such a legislative role, Gerald N. Rosenberg poses a far more fundamental questionâcan courts produce political and social reform? Rosenberg presents, with remarkable skill, an overwhelming case that efforts to use the courts to generate significant reforms in civil rights, abortion, and women's rights were largely failures. "The real strength of The Hollow Hope . . . is its resuscitation of American Politicsâthe old-fashioned representative kindâas a valid instrument of social change. Indeed, the flip side of Mr. Rosenberg's argument that courts don't do all that much is the refreshing view that politics in the best sense of the wordâas deliberation and choice over economic and social changes, as well as over moral issuesâis still the core of what makes America the great nation it is. . . . A book worth reading."âGary L. McDowell, The Washington Times
We construct the complete network of 26,681 majority opinions written by the U.S. Supreme Court and the cases that cite them
from 1791 to 2005. We describe a method for using the patterns in citations within and across cases to create importance scores that identify the most legally relevant precedents in the network of Supreme Court law at any given point in time. Our measures
are superior to existing network-based alternatives and, for example, offer information regarding case importance not evident
in simple citation counts. We also demonstrate the validity of our measures by showing that they are strongly correlated with
the future citation behavior of state courts, the U.S. Courts of Appeals, and the U.S. Supreme Court. In so doing, we show
that network analysis is a viable way of measuring how central a case is to law at the Court and suggest that it can be used
to measure other legal concepts.
Judicial scholars have often recognized that prestige seems to vary among judges, but they have not devoted much systematic attention to the phenomenon or its consequences. In this article, we develop a measure of prestige and calculate prestige scores for a sample of 139 federal circuit court judges. We then test the validity of our measure by determining how strongly the scores correlate with other variables, some of which are expected to be related to prestige, others of which should be unrelated. Finally, we incorporate our measure into an analysis of judicial influence, asking whether novel legal rules are more likely to be adopted by other circuits if announced by highly esteemed judges than if announced by less prestigious ones. The evidence suggests that our measure is valid and that prestige can translate into influence. Copyright 1999 by the University of Chicago.
This article tests for the presence of bias in judicial citations within federal circuit court opinions. Our findings suggest bias along three dimensions. First, judges base outside-circuit citation decisions in part on the political party of the cited judge. Judges tend to cite judges of the opposite political party less often than would be expected considering the fraction of the total pool of opinions attributable to judges of the opposite political party. Second, judges are more likely to engage in biased citation practices in certain high-stakes situations. These high-stakes situations include opinions dealing with certain subject matters (such as individual rights and campaign finance) as well as opinions in which another judge is in active opposition. Third, judges more often cite those judges who cite them frequently, which suggests the presence of mutual citation clubs. (c) 2008 by The University of Chicago. All rights reserved..
Elections and Explanations: Judicial Elections and the Readability of Judicial Opinions
- Michael J Nelson
Justices and Legal Clarity: Analyzing the Complexity of U.S. Supreme Court Opinions
- Ryan J Owens
- Justin P Wedeking