29 Pages Posted: 14 May 2008
The publication in 2007 of Frank B. Cross's "Decision Making in the U.S. Courts of Appeals" is further evidence that the field of empirical inquiry within the legal academy has now reached a stage of maturity. Cross concludes that "[j]udicial decision making clearly involves a mix that includes some ideological influence, considerable legal influence, and undoubtedly other factors." As prominently featured by Cross's book, empirical study within the legal academy progressively focuses more on identifying and measuring the law as an element of judicial decision making, rather than assuming that only (or mostly) judicial ideology or preferences matter.
With the accumulation of an impressive body of empirical work by many legal scholars over the past decade, we are experiencing a "Quantitative Moment" in the legal academy. The greater value attached to empirical study of the law in the leading law schools is providing the prestige, attention, and resources necessary for quantitative research and statistical analysis to flourish. At the same time, quantitative analysis is subject to significant limitations. For example, empirical study has yet to demonstrate that any extralegal factor explains more than a very small part of the variation in outcomes. Accordingly, the indispensability of alternative means of studying the courts has also become ever more clear.
Empirical study of the courts should remain a mainstay of legal scholarship: it reminds us of the reality of multifarious influences on judges, allows us to identify patterns that are not readily discernable in unsystematic reading of opinions, and offers us significant explanatory power in certain discrete categories of cases. However, because of difficulties in quantifying legal elements for empirical study, the qualitative forms of legal scholarship, both theoretical and doctrinal, have ample room within which to operate and contribute to a fuller understanding of legal decisions.
Thus, a "Qualitative Opportunity" also looms large today, and law schools should not be so short-sighted as to slight the traditional forms of legal scholarship, even as they wisely encourage the quantitative methods. As empirical legal studies comes into its prime - and theoretical and doctrinal scholarship retain their established standings within the legal academy - quantitative and qualitative approaches to understanding the law and legal institutions should bolster each other and strengthen the quality and value of each.
Keywords: Empirical legal studies, judicial decisionmaking, appellate courts, judges, politics and judging, quantitative legal research, doctrinal scholarship, theoretical scholarship
Suggested Citation: Suggested Citation
Sisk, Gregory C., The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making (Book Review). Cornell Law Review, Vol. 93, 2008; U of St. Thomas Legal Studies Research Paper No. 08-16. Available at SSRN: https://ssrn.com/abstract=1131793