Documenting Discrimination?

Abstract:     
Judicial decisions provide a wealth of information but information about what? In recent years, the empirical study of judicial decisions has exploded in popularity as legal academics and social scientists have conducted statistical analyses of court decisions in many substantive areas of law. The purpose of these empirical investigations is to learn something about the way in which judges decide cases. Typically, these studies ask whether a judges identity or background her ideological disposition, race, education, experience, and so forth influence the way in which she decides cases. Rarely, and only when demanding conditions are met, have researchers looked to the success rates in published cases to glean information about the facts that underlie those lawsuits. For good reasons, researchers have not considered the success rates in tort lawsuits in Illinois to be a solid source of information about the level of tortious conduct in the state. Nor have they considered the conviction rates in criminal cases in New York to be a meaningful measure of the states crime level.

In this short essay commenting on Ellen D. Katz and Anna Baldwin's response to our study, Judging the Voting Rights Act, we explore which inferences are appropriately drawn from published judicial decisions. We explain why we believe that Katz and Baldwin go astray when they claim that the rate at which section 2 plaintiffs prevail in published judicial decisions provides a concrete measure of the present-day need for section 5 of the Voting Rights Act. Neither our study of voting rights decisions, Katz's original examination of these decisions, nor Katz and Baldwin's replication of our findings reveals whether discrimination against the voting rights of minorities is rampant or rare, or whether section 5 is as necessary today as it ever was. Past decisions on section 2 claims simply cannot tell us the answers to these important questions.

Accepted Paper Series