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Abstract:
Chief Justice John Roberts, and others, have noticed that the lawyer in an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose the case. This paper provides rigorous statistical tests of that hypothesis and of the related hypothesis that the number of words per question asked, as distinct from just the number of questions asked, also predicts the outcome of the case. We explore the theoretical basis for these hypotheses. Our analysis casts light on competing theories of judicial behavior, which we call the 'legalistic' and the 'realistic.' In the former, the questioning of counsel is a search for truth; in the latter, it is a strategy for influencing colleagues. Our analysis helps to distinguish between these hypotheses by relating questioning practices to the individual Justice’s ideology and to the role of a 'swing' Justice.

Supreme Court, judicial behavior

Abstract:
We enter the debate over the role of sex in judging by addressing the two predominant empirical questions it raises: whether male and female judges decide cases distinctly (individual effects) and whether the presence of a female judge on a panel causes her male colleagues to behave differently (panel effects). We do not, however, rely exclusively on the predominant statistical models - variants of standard regression analysis - to address them. Because these tools alone are ill-suited to the task at hand, we deploy a more appropriate methodology - non-parametric matching - which follows from a formal framework for causal inference.

Applying matching methods to sex discrimination suits resolved in the federal circuits between 1995 and 2002 yields two clear results. First, we observe substantial individual effects: The likelihood of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, we find that men are significantly more likely to rule in favor of the rights litigant when a woman serves on the panel. Both effects are so persistent and consistent that they may come as a surprise even to those scholars who have long posited the existence of gendered judging.

Abstract:
Positive analyses aimed at answering the question of why judges interpret statutes the way they do abound. Some authors suggest the primary determinant centers on the political ideology of the judges, others argue that jurists interpret statutes in a strategic fashion vis-a-vis the relevant actors in the playing field, and still others maintain that statutory interpretation has less to do with policy maximization than with principle maximization. To us, the most interesting features of the non-normative literature on statutory interpretation lie not on the distinctive conclusions generated, but rather on the commonalities. First, many of the relevant studies focus on civil rights legislation. This holds true regardless of whether the author is a legal academic or a social scientist, whether the research is primarily quantitative or qualitative, or whether the theoretical grounding is in psychology, sociology, political science, or economics. Second, almost all studies, especially those of the large-n quantitative variety, explore the outcomes reached by jurists and not the rationale or justification they invoke. These are not criticisms of the extant literature; in fact, we believe that by investigating outcomes reached in civil rights cases, authors have revealed a great deal about the "judicial mind." At the same time, we believe just as firmly that if we are to understand fully the determinants of statutory interpretation, then the emphases on civil rights and outcomes impose serious limitations. Accordingly, we have a devised a project that aspires to address these concerns by (1) exploring Supreme Court tax opinions, a large body of case law that, despite its importance, has received virtually no systematic attention, and (2) taking into account both outcomes and rationales. In this Article, we do not present results (other than the most preliminary findings) given that our data collection is still underway. Rather, we make the case for moving beyond the arena of civil rights, and for incorporating rationales into models of statutory interpretation.

Tax, Law, Courts Politics, Empirical

Abstract:
In every discipline in which empirical research has become commonplace, scholars have formed a subfield devoted to solving the methodological problems unique to that discipline's data and theoretical question. although students of economics, political science, psychology, sociology, business, educaiton, medicine, public health, and so on primarily focus on specific substantive questions, they cannot wait for those in other fiels to solve their methodological problems or to teach them new methods, wherever they were initially developed. In The Rules of Inference, we argued for the creation of an analogous methodological subfield devoted to legal scholarship. We also had two other objectives: (1) to adapt the rules of inference used in the natural and social sciences, which apply equally to quantitative and qualitative research, to the special needs, theories, and data in legal scholarship, and (2) to offer recommendations on how the infrstructure of teaching and research at law schools might be reorganized so that it could better support the creation of first-rate quantitative and qualitative empirical research without compromising ohter important objectives. Published commentaries on our paper, along with citations to it, have focused largely on the first - our application of the rules of inference to legal scholarship. Until now, discussions of our second goal - suggestions for the imporvement of legal scholarshiop, as well as our argument for the creation of a group that would focus on methodological problems unique to law - have been relegated to less public forums, even though, judging fom the volume of correspondence we have received, they seem to be no less extensive.

Abstract:
Theories of statutory interpretation abound. Scholars, judges and commentators have long puzzled over the best method to locate the meaning of a statute and to this end have proposed a range of approaches that rely on various forms of evidence, including statutory text, legislative intent, agency interpretations, cultural norms, and judicial precedent. These theories do not merely offer competing modes of analysis: they also highlight competition among and between federal actors for control over the law-making process.

In this Symposium essay, we not defend an interpretive approach; many others have done that. Nor do we seek to develop a novel understanding of statutory interpretation; others have done that as well. Rather our goal is something more modest: to provide a descriptive mapping of statutory interpretation in the business context - specifically, in disputes over the meaning of the Internal Revenue Code. To that end, we analyze every tax ase decided by the Supreme Court since Congress adopted the modern tax law, with an eye for identifying the various rationales deployed by the justices, as well as the some commonly held-beliefs about trends in statutory interpretation over time.

courts, statutory interpretation, tax, empirical

Abstract:
Although the term empirical research has become commonplace in legal scholarship over the past two decades, law professors have, in fact, been conducting research that is empirical - that is, learning about the world using quantitative data or qualitative information - for almost as long as they have been conducting research. For just as long, however, they have been proceeding with little awareness of, much less compliance with, the rules of inference, and without paying heed to the key lessons of the revolution in empirical analysis that has been taking place over the last century in other disciplines. The tradition of including some articles devoted to exclusively to the methododology of empirical analysis - so well represented in journals in traditional academic fields - is virtually nonexistent in the nation's law reviews. As a result, readers learn considerably less accurate information about the empirical world than the studies' stridently stated, but overconfident, conclusions suggest. To remedy this situation both for the producers and consumers of empirical work, this Article adapts the rules of inference used in the natural and social sciences to the special needs, theories, and data in legal scholarship, and explicate them with extensive illustrations from existing research. The Article also offers suggestions for how the infrastructure of teaching and research at law schools might be reorganized so that it can better support the creation of first-rate empirical research without compromising other important objectives.

Abstract:
Does the U.S. Supreme Court curtail rights and liberties when the nation's security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation's security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected.

We attempt to explain this seemingly paradoxical evidence with one unifying conjecture: Instead of balancing rights and security in high stakes cases directly related to the war, the Justices retreat to ensuring the institutional checks of the democratic branches. Since rights-oriented and process-oriented dimensions seem to operate in different domains and at different times, and often suggest different outcomes, the predictive factors that work for cases unrelated to the war fail for cases related to the war. If this conjecture is correct, federal judges should consider giving less weight to legal principles outside of wartime but established during wartime, and attorneys should see it as their responsibility to distinguish cases along these lines.

Abstract:
To say that positive political theory (PPT) scholarship on the hierarchy of justice is theory rich and data poor is to make a rather uncontroversial claim. For over a decade now, scholars have offered intriguing theoretical accounts aimed at understanding why lower courts defy (comply with) higher courts. But only rarely do they subject the accounts to rigorous empirical interrogation. The chief obstacle, it seems, is the lack of a reliable and valid measurement strategy for placing judges of lower courts and justices of higher courts in the same policy space. Without such a strategy, we can systematically test few, if any, hypotheses flowing from PPT models of the judicial hierarchy. With such an approach not only can we investigate the implications of these models, we can assess many others flowing from the larger PPT program on judging, as well. It is to the challenge of scaling judges and justices (as well as legislatures and executives) that we turn in this article. We begin by explicating our measurement strategy, and then by explaining its advantages over previous efforts. Next we explore the results of our approach and provide a descriptive look at data it yields: a Judicial Common Space (JCS) score for all justices and judges appointed since 1953. The last section offers three applications designed to shore up the suitability and adaptability of the JCS for a range of positive projects on the courts.

Abstract:
One of the most enduring divides that scholars have uncovered between decision making in different areas of the law is the role of politics, whether in the form of partisanship or ideology. Study after study confirms a strong correlation between judges' political preferences and their behavior in civil rights/liberties-type cases, but researchers have only rarely identified an association between politics and decisions in economics cases. Some argue that the apolitical nature of decision making in the business and finance contexts is due to the fact that judges simply do not have political preferences in these areas, or if they do, other factors work to neutralize them.

In our view, the existing literature highlights a curious puzzle: Why do judges appear to stand above politics in the areas of the law that are rife with conflict and controversy in the other two branches of government? Lawmaking in the context of taxation, bankruptcy, securities, antitrust, corporate law, to name just a few examples, is highly political in both the legislative and executive branches, as many empirical scholars have documented. For this reason, we seriously question the claim that judges are unique in that they have no political or ideological preferences when it comes to business and finance. Our conjecture is that the null findings in the literature are due to the technical difficulties associated with uncovering politics in large-N studies addressing economics decision-making rather than to a lack of judicial interest in these issues. But this is precisely the question we investigate here.

courts, tax, empirical