Some Thoughts on the Study of Judicial Behavior

TLDR: In this paper, the authors present a list of ten topics that are essential to the judicial behavior project: (1) judicial independence and dependence, (2) judicial selection and retention, (3) access to court, (4) opinions and precedent, (5) collegial courts, (6) the hierarchy of justice, (7) executives and legislatures, (8) litigants, attorneys, and interest groups, (9) public opinion and macroevents, and (10) implementation and efficacy of judicial decisions.

Abstract: B. Other Topics and Research Questions Work on the individual judge will continue; it is that essential to the judicial behavior project. At the same time, there has been an explosion of research on other topics. Below I very briefly reference ten: (1) judicial independence and dependence, (2) judicial selection and retention, (3) access to court, (4) opinions and precedent, (5) collegial courts, (6) the hierarchy of justice, (7) executives and legislatures, (8) litigants, attorneys, and interest groups, (9) public opinion and macroevents, and (10) implementation and efficacy of judicial decisions. (187) Before turning to these topics, three notes are in order. First, I cannot do justice to any one of them. (188) My goal is rather to supply a bit of information on each if only to induce you to read more deeply. The footnotes provide some pointers (though if I tried to cite all the relevant studies, I would need an entire volume, maybe two, of the 'William & Mary Law Review). Second, it is highly unlikely that my list of ten is inclusive. In fact, I know I exclude some topics on the ground that they do not fit squarely in the area of judicial behavior. One example is the analysis of clerks and other judicial staff. Although some of the studies attempt to draw a connection between the actors and the choices judges make, (189) many of them are devoted to studying the actors themselves. (190) Finally, although I take each topic in turn, the ten (eleven if we count "The Judge") are far from mutually exclusive. This is entirely evident from the material that follows, so let me provide just one example--from Ramseyer and Rasmusen's study on Japanese judges. (191) Because the authors demonstrate that the judges' careers hinge on deference to the government, (192) this work makes a contribution to the literature on courts and elected officials. But it just as easily fits into the literature on "The Judge" as it speaks to the judges' interest in promotion and other careerist motivations. (193) 1. Judicial Independence and Dependence Studies focusing on judicial independence vary in their concerns. Some attempt to define the term "judicial independence," though there now seems to be convergence on conceptualizing it as the ability of judges to behave sincerely, whatever their sincere preferences may be and regardless of the preferences of other relevant actors, without fear of reprisal and with some confidence that political actors will enforce their decisions. (194) Other work has attempted to develop and analyze measures of de jure (for example, a constitutional guarantee of life tenure) or de facto (expert assessments, for instance) judicial independence (195) to understand why societies are more or less prone to adopt institutions associated with judicial independence (196) and to connect judicial independence to economic prosperity and human rights. (197) More relevant to the analysis of judicial behavior is research testing the assumption that de jure guarantees of judicial independence, in fact, lead to a more "independent" judiciary. Much of this work explores the relationship (or lack thereof) between measures of de jure and de facto independence (198)--for example, is there a connection between giving judges life tenure and experts rating the judiciary as "independent"? Fewer studies consider the relationship between de jure measures and actual judicial behavior (though the literature I referenced earlier on judicial elections in the states is an exception; more on this momentarily)--for example, is it the case, as the economic literature assumes, that courts with de jure independence are more likely to protect rights against government interference in actual judicial decisions? Both lines of research are equally interesting, but at this stage in the field's development, I would welcome more on the latter. 2. The Selection and Retention of Judges Societies have composed an impressive array of institutions to govern the selection and retention of judges--from life tenure, to a single nonrenewable term, to periodic election and reelection by the electorate. …