Distinguishing Causal and Normative Questions in Empirical Studies of Judging

11 Pages Posted: 17 Feb 2010 Last revised: 19 Feb 2010

Date Written: February 16, 2010


In this essay, I raise a meta-theoretical question concerning the relation between two distinct categories of projects that we might be tempted to lump together under the rubric of empirical study of judicial performance. One kind of empirical project aims broadly at developing a social-scientific theory of judging, or identifying the “causes” of legal decisions. Another kind of project aims at identifying quantitative criteria providing an objective basis for evaluating the quality of judicial performance. I attempt to explain the distinction between these two kinds of projects and consider whether the very possibility of success in the former undermines the point of the latter. Would a theory that could predict how any given judge would likely decide any given kind of case obviate the usefulness of general criteria for measuring judicial quality? I argue that the answer is no, because the two projects address fundamentally different questions.

This essay was written for the Workshop on Evaluating Judges, Judging, and Judicial Institutions at Duke Law School.

Suggested Citation

Shin, Patrick S., Distinguishing Causal and Normative Questions in Empirical Studies of Judging (February 16, 2010). Duke Law Journal (online volume), Forthcoming, Suffolk University Law School Research Paper No. 10-10, Available at SSRN: https://ssrn.com/abstract=1553987

Patrick S. Shin (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
617-573-8182 (Phone)
617-305-3090 (Fax)

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