Abstract

http://ssrn.com/abstract=2377351
 


 



Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior


M. Todd Henderson


University of Chicago - Law School

William H. J. Hubbard


University of Chicago Law School

January 8, 2014

University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 671
U of Chicago, Public Law Working Paper No. 455

Abstract:     
Do judges follow the law? In a naïve model of judging, Congress writes statutes, which courts know about and then slavishly apply. Although interpretation differences could explain deviation between congressional will and the law as applied, in this model there should be no divergence where the law is unambiguous. Section 21D(c)(1) of the Securities Exchange Act is such a clear law: it requires courts to certify attorneys complied with Rule 11(b) of the Federal Rules of Civil Procedure, which forbids frivolous or unsupported claims, in every case arising under the Act. In this paper, we provide data that rejects the naïve model: courts make the required findings in less than 14 percent of cases in which such findings were required by law. This suggests judges either do not know of the law or, if they do, fail to follow it. We also show that required Rule 11(b) findings about sanctions are made overwhelmingly in cases where sanctions would be least likely – that is, in orders approving settlements – and such findings are extremely rare in cases where sanctions would other be more likely – that is, where motions to dismiss are granted. To explain this seeming paradox, we offer an account that highlights crucial ways in which the incentives of the judge and of the attorneys may interact in complex cases.

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Date posted: January 11, 2014  

Suggested Citation

Henderson, M. Todd and Hubbard, William H. J., Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior (January 8, 2014). University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 671; U of Chicago, Public Law Working Paper No. 455. Available at SSRN: http://ssrn.com/abstract=2377351 or http://dx.doi.org/10.2139/ssrn.2377351

Contact Information

M. Todd Henderson
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-834-4168 (Phone)
773-702-0730 (Fax)
William H. J. Hubbard (Contact Author)
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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