Common Law Judicial Decision Making: The Case of the New York Court of Appeals 1900-1941
Mark P. Gergen
University of California, Berkeley - School of Law; University of Texas Law School
Kevin M. Quinn
UC Berkeley School of Law
March 21, 2012
Buffalo Law Review, Forthcoming
The vast majority of the political science literature on judicial decision making focuses on the behavior of US Supreme Court justices in deciding questions of constitutional law, administrative law, or statutory interpretation. There is a paucity of comparable quantitative studies of the behavior of common law judges over time. This paper is an attempt to learn what quantitative techniques that have been developed to understand the behavior of US Supreme Court justices might tell us about the behavior of common law judges. Using newly collected data derived from all opinions issued by the New York Court of Appeals — generally considered the preeminent common law court in the U.S. during the period in question — from 1900 to 1941, we examine the degree of behavioral consistency across time and issue areas within (and between) judges. We find that voting on the New York Court of Appeals often was highly patterned during this time period. Examining the cases and opinions from this period provides some insight on the underlying disagreements in views and values that produce patterned voting. Interestingly, the nature of the disagreements in cases with highly patterned voting changes significantly over time. In the early 1900s the court is divided between judges who might be described alternatively as moralistic or legalistic and judges who take a more pragmatic and prudential approach. In the 1918 Term and through the mid-1920s disagreements about whether and the degree to which liability for accidental harm is fault-based and about the appropriate tradeoff between stability and flexibility in the law divide the Court. After two steadfast conservatives leave the Court in 1926 voting becomes less patterned and it is difficult to discern the underlying disagreements that might explain the patterns the model finds. This does not persist. At the end of the 1930s we find fairly highly polarized voting on recognizable ideological lines in labor and constitutional cases and in personal injury cases. Interestingly, the “right” wing of the court in labor and constitutional cases is the pro-plaintiff wing in personal injury cases.
Number of Pages in PDF File: 50
Keywords: judicial decisionmaking, torts, state supreme courtsAccepted Paper Series
Date posted: March 23, 2012
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