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The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

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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.

Product Details

ISBN-13: 9780674049895
Publisher: Harvard
Publication date: 01/07/2013
Pages: 440
Sales rank: 815,807
Product dimensions: 9.20(w) x 6.40(h) x 1.50(d)

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

Linear Regression

Logistic Regression

Miscellaneous Points

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


Ideology Measures

Previous Studies of Judicial Ideology

Other Influences

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

Empirical Analysis

Effects of Senior Status and Age on Dissent Rates

7 The Questioning of Lawyers at Oral Argument 305

Empirical Analysis

Number of Questions or Number of Words?

Explaining Variations in the Number of Questions and the Total Number of Words in Questions

Individual Justices

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

Acknowledgments 405

Index 407

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