https://www.jstor.org/stable/10.1111/j.0022-3816.2004.00301.x

The Supreme Court and the Attitudinal Model Revisited

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1026414_code219969.pdf?abstractid=1026414&mirid=1&type=2

Blinking on the Bench: How Judges Decide Cases

We study how fragmentation of patent rights and the formation of the Court of Appeals for the Federal Circuit (CAFC) affected the duration of patent disputes, and thus the speed of technology diffusion through licensing. We develop a model of patent litigation which predicts faster settlement when patent rights are fragmented and when there is less uncertainty about court outcomes, as was associated with the “pro-patent shift” of the CAFC. We confirm these predictions empirically using a data set that covers patent suits in U.S. district courts during the period 1975–2000. Finally, we analyze how fragmentation affects total settlement delay, considering both the reduction in dispute duration and the increase in the number of patent negotiations.

Patent thickets, courts, and the market for innovation

/pdf/the-roosevelt-court-a-study-in-judicial-politics-and-values-2a27wyv51n.pdf

The Roosevelt Court : a study in judicial politics and values, 1937-1947

/pdf/book-review-reviewing-glendon-a-schubert-quantitative-xzpcuybbip.pdf

Book Review (reviewing Glendon A. Schubert, Quantitative Analysis of Judicial Behavior (1960))

Lower courts in the United States are generally responsive to specific precedents and trends in the decisionmaking of their judicial superiors. In this article, we ask why. We test one popular explanation that compliance can be attributed to judges' fear of having their decisions reversed-through an analysis of search and seizure cases decided in the U.S. Courts of Appeals between 1961 and 1990. Since the Supreme Court cannot reverse a decision unless it agrees to review it, we ask whether circuit judges are more likely to decide as the Supreme Court would be expected to when they face cases that are otherwise more likely to be reviewed by the Court. Finding that they are not, we conclude that fear of reversal cannot account for widespread circuit court compliance in these cases, nor, presumably, more generally. More broadly, our findings point to the importance of factors apart from supervisors and the threat of sanctions in determining subordinates' compliance. Like others who sit atop government hierarchies, U.S. Supreme Court justices would seem to have a problem: they must rely on subordinates to see that their policies take effect, but they have only a limited set of tools with which to induce compliance. Not surprisingly, scholars have found abundant evidence of evasive or even defiant behavior by their subordinates, lower court judges (e.g., Peltason 1961; Romans 1974). Yet there is considerably more evidence of judges' acting, in Songer, Segal, and Cameron's (1994) language, as faithful agents of their higher court principals. For the most part, lower court judges tend to follow specific higher court precedents, and their decisions generally track ideological trends in the higher court (Romans 1974; Baum 1980; Gruhl 1980; Johnson 1987; Songer 1987; Songer & Sheehan 1990; Songer & Haire 1992; Songer, Segal, & Cameron 1994; Benesh 2002). It is far from obvious why lower court judges act this way. In this study, we attempt to determine whether widespread compliance can be attributed to lower court judges' aversion to having their decisions reversed by a higher court. To be clear: We do not ask whether fear of reversal has any effect. Rather, we ask whether its effect is strong enough and pervasive enough to explain substantial amounts of compliance.1 Compliance is a difficult concept to pin down theoretically or empirically, and scholars have attempted to measure it in various ways. We use the term somewhat loosely to refer to decisionmaking behavior by the lower court that furthers, or at least does not undermine, the higher court's efforts to determine legal policy in its jurisdiction. Taking a broad view, two different types of behavior fit this description. One is the faithful application of existing higher court precedents; the other is deciding cases as the higher court would be expected to. These behaviors can diverge where the current members of the higher court are inclined to repudiate its precedents. But far more often they will lead to the same result, for what the higher court has done before will typically be the best guide to what it is likely to do next. For this reason, it is reasonable to believe that findings for one type of behavior can be generalized to the other. In this article, we focus on the latter type of behavior, comparing the actual decisions of U.S. courts of appeals judges to the decisions that the U.S. Supreme Court would be expected to make in their place. Our findings suggest that fear of reversal does not play a major role in this behavior. The Puzzle Cases often offer judges chances to shape public policy. Even when they do not, judges' sympathies may lie with one party or the other. In the many cases where the attitudes of lower court judges match those of the higher court majority, compliance is no mystery. But there are also many cases where the attitudes do not match. In these cases, why might lower court judges choose to weight the views of their superiors more heavily than their own? …

Fear of Reversal as an Explanation of Lower Court Compliance

This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns. Though sometimes overlooked, the language of court opinions can be as important as the disposition of cases, albeit for different reasons. The outcome of a case has the most direct impact on the parties and issues involved. It announces who wins and who loses, which laws and policies survive and which do not. But the language of opinions is often where the real work of courts is done. Judicial opinions can confine holdings to particular sets of claimants or announce more general principles. They can firmly endorse rules or they can equivocate, inviting relitigation. And opinions can persuade, building up coalitions of judges for majorities and earning the support of interpreting and implementing groups. This study investigates some of the language choices that U.S. Supreme Court justices make. Specifically, it focuses on what might be termed rhetorical sources: references to prominent authors and texts that are nonbinding on case outcomes. These sources include a wide range of materials, from interpretive authorities such as the Federalist Papers and Blackstone's Commentaries on the Laws of England to the writings of esteemed figures such as Thomas Jefferson and John Locke. Because their inclusion is optional, rhetorical sources can serve as a gateway to understanding how Supreme Court justices assemble their opinions. Why does one justice cite the Federalist Papers when another does not? Is it simply a matter of personal preference, or do legal considerations also matter? Are justices motivated by efficiency concerns, or by more complex interests? One possibility is that justices use rhetorical sources strategically, employing them most frequently when the legitimacy of their holdings is in doubt, such as when they are overturning precedents or invalidating statutes. When deciding hard cases, justices must know that their opinions are likely to be scrutinized by individuals both on and off the bench. Even if such scrutiny does not affect the outcome a justice chooses (Segal & Spaeth 1993), it may still affect the language used to defend it. Making an opinion as persuasive as possible can serve any number of useful functions. It can hold together a majority coalition or encourage a wavering justice to sign on. It can facilitate compliance by winning over interpreting and implementing groups. Or it can enhance the reputation of an opinion and its author in the legal community. For example, when the Court in Furman v. Georgia (408 U.S. 238 [1972]) declared that states could not impose the death penalty because, as applied, it constituted "cruel and unusual punishment," the justices did not simply present their views as raw expressions of judicial will. The separate opinions justify their expressed policy preferences by invoking such materials as Blackstone's Commentaries, John Stuart Mill's "On Liberty," the Magna Carta, and the writings of Thomas Jefferson, Joseph Story, and Oliver Wendell Holmes, among other legal authorities. Buckley v. Valeo (424 U.S. 1 [1976]), concerning the constitutionality of campaign finance legislation, contains references to Charles de Montesquieu, while Justice John Paul Stevens's majority opinion in U.S. Term Limits v. Thornlon (514 U. …

The use of rhetorical sources by the U.S. supreme court

Why do some federal circuit court precedents transmit across circuits when others do not? Does judicial opinion language influence which cases are more likely to transmit? Previous research on the transmission of precedents has focused primarily on attributes of the circuits or judges who wrote the decisions, without considering whether opinion language also influences citations. This study hypothesizes that precedents are more likely to transmit to other circuits when judges communicate their importance using features of opinion language such as the legal grounding, the amount of supporting evidence, and the decision to file a per curiam opinion. The results indicate that opinion language does influence the transmission of precedents, which suggests that judges who care about policy and are willing to take affirmative steps to encourage citations can use opinion language to enhance their impact.

The Impact of Judicial Opinion Language on the Transmission of Federal Circuit Court Precedents

The literature on state constitutional amendments remains undeveloped despite recent activity in the area of same-sex marriage policy. Previous studies have assumed that the adoption of state constitutional amendments is governed by routine policy considerations, but there are strong theoretical reasons for expecting attributes of state institutions also to affect adoption. In this study, I compare institutional and policy explanations for the enactment of state constitutional amendments prohibiting same-sex marriage. Although I expect routine policy considerations to affect the adoption of amendments, I also expect adoption to be influenced by attributes of state institutions, in particular, the capacity of state high courts to produce decisions favoring marriage equality. Using event history analysis, I find that the initial consideration of amendments is driven by policy considerations but that adoption is also guided by institutional considerations, such as the professionalization of state high courts.

Comparing Institutional and Policy Explanations for the Adoption of State Constitutional Amendments: The Case of Same-Sex Marriage

This study considers whether judges on the U.S. Courts of Appeals select legal groundings based on the expected responses of multiple audiences. It is hypothesized that judges use reasoning-process review when their policies depart from the preferences of higher-court judges and other actors who have the power to overturn their decisions, but use substantive groundings when they wish to broadcast their policies to judges in different circuits. The study uses the Judicial Common Space scores to compare panel ideologies with the preferences of Supreme Court justices, judges in other circuits, judges from the same circuit, and Congress. The results indicate that the choice of legal grounding does vary depending on a panel's level of agreement with different actors, providing further empirical support for the strategic model of judicial behavior.

Robert J. Hume

Papers

Fear of Reversal as an Explanation of Lower Court Compliance

The use of rhetorical sources by the U.S. supreme court

The Impact of Judicial Opinion Language on the Transmission of Federal Circuit Court Precedents

Comparing Institutional and Policy Explanations for the Adoption of State Constitutional Amendments: The Case of Same-Sex Marriage

Courting Multiple Audiences: The Strategic Selection of Legal Groundings by Judges on the U.S. Courts of Appeals*