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The Distorting Slant of Quantitative Studies of Judging


Brian Z. Tamanaha


Washington University in Saint Louis - School of Law

October 30, 2008

Boston College Law Review, Vol. 50, 2009
St. John's Legal Studies Research Paper No. 08-0159

Abstract:     
One of the hottest areas of legal scholarship today involves quantitative studies of judging. This article will attempt to shift the current orientation of this work by making two basic points. The first point is that the field was born in a collection of false beliefs and misunderstandings about the formalists and the realists which has distorted how political scientists have modeled judging and how they have designed and interpreted their studies. Rather than conduct an open inquiry into the nature of judging, political scientists set out to debunk formalism by proving that judging is infused with politics, a mission that warped the development of the field.

The second point is that the results of their studies below the Supreme Court strongly confirm what judges have been saying for many decades - that their judicial decisions are substantially determined by the law. Political scientists have tended to repress this finding, however, by focusing on the wrong point: repeating time and again that their studies show that politics matters without also emphasizing that it matters very little. A balanced realism about judging accepts that - owing to the uncertainty of law and the inherent limitations of human decision makers - it is inevitable that there will be a certain (minimal) degree of political influence in judicial decision making, but this does not detract from the broader claim that judges can and usually do rule in accordance with the law.

Recognition of these points will help nudge quantitative studies in a direction that promises to produce more accurate and valuable information about judicial decision making.

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Date posted: November 4, 2008 ; Last revised: November 10, 2008

Suggested Citation

Tamanaha, Brian Z., The Distorting Slant of Quantitative Studies of Judging (October 30, 2008). Boston College Law Review, Vol. 50, 2009; St. John's Legal Studies Research Paper No. 08-0159. Available at SSRN: http://ssrn.com/abstract=1292459

Contact Information

Brian Z. Tamanaha (Contact Author)
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
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