Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.
The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.
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About the Author
Lee Epstein is Provost Professor of Law and Political Science and Rader Family Trustee Chair in Law at the University of Southern California.
William M. Landes is Clifton R. Musser Professor Emeritus of Law and Economics at the University of Chicago Law School.
Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He is a senior lecturer at the University of Chicago Law School.
Table of Contents
List of Figures vii
List of Tables ix
General Introduction 1
Technical Introduction 17
1 A Realistic Theory of Judicial Behavior 25
Three Concepts of Legal Realism
The Labor-Market Theory of Judicial Behavior
The Judicial Utility Function
The Legalist Countertheory of Judicial Behavior
Antirealism Personified: Judge Harry Edwards.
2 The Previous Empirical Literature 65
Previous Studies of Judicial Ideology
Appendix: Empirical Studies of Judicial Behavior
3 The Supreme Court 101
Ideological Voting by Justices
Changes in Justices' Ideology
Unanimous Decisions: The Role of Ideology
Non-unanimous Decisions: The Role of Ideology
Non-unanimous Decisions: Group Effects.
Appendix: The Corrected U.S. Supreme Court Database.
4 The Courts of Appeals 153
Explaining the Judges' Votes (1)
Explaining the Judges' Votes (2)
Group Influences in the Songer Data.
Ideology, Conformity, and Panel Composition Effects in the Sunstein Data
Appendix A The Original and Corrected Songer Database
Appendix B The Original and Expanded Sunstein Database
Appendix C Measures of Ex Ante Ideology of Supreme Court Justices, 1937-2009.
5 The District Courts and the Selection Effect 207
District Court Decisions Derived from the Sunstein Database
Ideological Influence on District Judges
Another Selection Effect
The Paradox of Discretion
Ideology in Sentencing
6 Dissents and Dissent Aversion 255
Costs and Benefits of Dissenting
The Effect of Panel Composition
A Formal Model of Deciding Whether to Dissent
Effects of Senior Status and Age on Dissent Rates
7 The Questioning of Lawyers at Oral Argument 305
Number of Questions or Number of Words?
Explaining Variations in the Number of Questions and the Total Number of Words in Questions
8 The Auditioners 337
Appointment and Promotion in the Federal Judiciary
Auditioning for the Supreme Court
Voting Behavior of Auditioners for the Supreme Court
Auditioning for the Courts of Appeals
Voting Behavior of Auditioners for the Courts of Appeals.
Appendix: Court of Appeals Judges in the Supreme Court Promotion Pool, 1930-2010
Conclusion: The Way Forward 385