Measuring Inconsistency, Indeterminacy, and Error in Adjudication
Joshua B. Fischman
University of Virginia School of Law
June 11, 2013
16 American Law & Economics Review 40 (2014)
Because law cannot be objectively measured, it is commonly believed that judicial decisions cannot be empirically evaluated on grounds internal to the practice of law. This Article demonstrates that empirical analysis of judicial decisions can nevertheless provide objective, albeit limited, conclusions about subjective criteria for evaluating a system of adjudication. It operationalizes three criteria — inter-judge inconsistency, legal indeterminacy, and judicial error — and clarifies what can be inferred about them from observational data on single-judge adjudication. The precise level of inconsistency cannot be identified, but it is possible to estimate a range of feasible values. Similarly, rates of indeterminacy and error cannot be estimated in isolation, but it is possible to estimate a curve that identifies feasible combinations of these rates. The methodologies developed in this Article are illustrated using data on immigration adjudication.
Number of Pages in PDF File: 47
JEL Classification: K4
Date posted: July 15, 2011 ; Last revised: September 23, 2014
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