Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument

41 Pages Posted: 6 Jun 2009 Last revised: 4 Nov 2009

Lee Epstein

Washington University in St. Louis - School of Law

William M. Landes

University of Chicago Law School; National Bureau of Economic Research (NBER)

Richard A. Posner

University of Chicago Law School; National Bureau of Economic Research (NBER)

Date Written: August 2009

Abstract

Chief Justice John Roberts, and others, have noticed that the lawyer in an oral argument in the Supreme Court who is asked more questions than his opponent is likely to lose the case. This paper provides rigorous statistical tests of that hypothesis and of the related hypothesis that the number of words per question asked, as distinct from just the number of questions asked, also predicts the outcome of the case. We explore the theoretical basis for these hypotheses. Our analysis casts light on competing theories of judicial behavior, which we call the 'legalistic' and the 'realistic.' In the former, the questioning of counsel is a search for truth; in the latter, it is a strategy for influencing colleagues. Our analysis helps to distinguish between these hypotheses by relating questioning practices to the individual Justice’s ideology and to the role of a 'swing' Justice.

Keywords: Supreme Court, judicial behavior

Suggested Citation

Epstein, Lee and Landes, William M. and Posner, Richard A., Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument (August 2009). University of Chicago Law & Economics, Olin Working Paper No. 466. Available at SSRN: https://ssrn.com/abstract=1414317 or http://dx.doi.org/10.2139/ssrn.1414317

Lee Epstein

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

HOME PAGE: http://epstein.wustl.edu

William M. Landes (Contact Author)

National Bureau of Economic Research (NBER)

1050 Massachusetts Avenue
Cambridge, MA 02138
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University of Chicago Law School ( email )

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Chicago, IL 60637
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773-702-0356 (Fax)

Richard A. Posner

University of Chicago Law School ( email )

1111 E. 60th St.
LBQ 611
Chicago, IL 60637
United States
773-702-9608 (Phone)
773-702-0730 (Fax)

National Bureau of Economic Research (NBER)

1050 Massachusetts Avenue
Cambridge, MA 02138
United States

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