Measuring Inconsistency, Indeterminacy, and Error in Adjudication

16 American Law & Economics Review 40 (2014)

47 Pages Posted: 15 Jul 2011 Last revised: 23 Sep 2014

Joshua B. Fischman

University of Virginia School of Law

Date Written: June 11, 2013

Abstract

Because law cannot be objectively measured, it is commonly believed that judicial decisions cannot be empirically evaluated on grounds internal to the practice of law. This Article demonstrates that empirical analysis of judicial decisions can nevertheless provide objective, albeit limited, conclusions about subjective criteria for evaluating a system of adjudication. It operationalizes three criteria — inter-judge inconsistency, legal indeterminacy, and judicial error — and clarifies what can be inferred about them from observational data on single-judge adjudication. The precise level of inconsistency cannot be identified, but it is possible to estimate a range of feasible values. Similarly, rates of indeterminacy and error cannot be estimated in isolation, but it is possible to estimate a curve that identifies feasible combinations of these rates. The methodologies developed in this Article are illustrated using data on immigration adjudication.

JEL Classification: K4

Suggested Citation

Fischman, Joshua B., Measuring Inconsistency, Indeterminacy, and Error in Adjudication (June 11, 2013). 16 American Law & Economics Review 40 (2014). Available at SSRN: https://ssrn.com/abstract=1884651 or http://dx.doi.org/10.2139/ssrn.1884651

Joshua B. Fischman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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