Much of the literature related to large settlements seeks to improve how judges and private actors serve the large groups of people impacted by a massive settlement.¹  Settlement funds have reformed, in turn, by giving people more choices, such as more filing opportunities, different settlement outcomes, and extended deadlines. More opportunities to opt out of a large settlement theoretically assure that the fund’s administrators represent the interests of those who do not opt out. More choices of settlement awards means that more claimants can elect awards that fit their individual needs and circumstances. And more time to decide helps claimants to arrive at decisions that reflect their divergent interests. Few commentators have considered, however, how claimants to a large settlement fund make those choices.² Modern reform efforts, rather, assume that claimants make rational decisions about their options based on their own stable values and preferences.³

But is that correct? Studies have long shown that because of cognitive bias, people may buy things they do not want, save too little for retirement, or make risky choices about their health—based on their point of reference, the timing of the decision, and the presence of seemingly irrelevant choices.⁴ Behavioral economists have examined these ostensibly irrational decisions in many other legal contexts, but few commentators have explored these effects in the context of a large group settlement. Because claimants to large settlements are generally unassisted laypersons, large settlement funds may be particularly compelling settings to examine the adverse impact of cognitive bias.

To that end, I make three claims in this Essay. First, people may make irrational decisions about their settlement options in a large settlement fund because of cognitive bias. Second, cognitive bias may undermine some of the stated purposes of public and private settlement funds—to provide claimants with more access, efficiency, and fairness than in traditional litigation. Third, “fund designers”—judges, lawmakers, and agencies—should identify and, in some cases, capitalize on claimants’ cognitive bias by altering the context, timing, and sequence of settlement options. Fund designers, however, should avoid reforms that unduly eliminate settlement options or impose excessive administrative costs. Rather, the benefits of any reform—preventing avoidable harm to irrational claimants—must outweigh the potential costs, including the value of client autonomy, the chance of error, and the burden on the courts and public administrators.

I examine these three claims by describing how three cognitive biases are likely to affect claimants in large settlement funds. These biases are: (1) status quo bias, (2) contrast bias, and (3) time-inconsistency bias.

I.

Status Quo Bias

Status quo bias refers to a person’s tendency to stick to the status quo even when other options would increase well-being. In principle, a completely rational person will choose between alternatives based on his or her preferences and the potential costs of making an informed decision. In practice, however, simply characterizing an option as the status quo significantly increases the chances that a person will choose that option. Some speculate that this preference for the status quo derives from a general aversion to risks caused by one’s own actions, even when there are greater risks associated with inaction.⁵

For example, alternative investment and saving options are significantly more popular among college professors when designated as the status quo or the default choice.⁶ Because of the status quo effect, some commentators like Cass Sunstein and Richard Thaler have advocated “libertarian paternalistic” ways to encourage saving.⁷ They advocate changing the default rules to promote particular outcomes—like an employee’s decision to enroll in a 401(k) retirement plan—without limiting the employee’s opportunity to opt out of the plan at a later time.

Of course, switching costs also might explain adherence to default rules. A decisionmaker may rationally determine that it is not worth the time, money, or potential opportunity cost to deviate from the status quo. Moreover, people may be rationally indifferent to certain choices. Such explanations, however, do not fully account for how people make decisions. Although the subject of some criticism, many studies show that people irrationally overvalue either the default option or the costs associated with departing from the default option.⁸

In class action settlements and public settlement funds, status quo bias may be unavoidable. After all, there must be a default rule that asks people either to affirmatively join or affirmatively withdraw from a large settlement fund. But status quo effects complicate the long-held belief that opt-out rights (1) ensure fairer settlements and (2) provide an adequate opportunity to claim or reject awards through the fund. When few people affirmatively opt out or object to a settlement, courts and administrators have assumed that the fund successfully represents what claimants rationally want and therefore ensures a “fair, reasonable, and adequate” settlement.⁹ Status quo bias, however, provides a reason to be skeptical of these assumptions and the policies based on them, even when very large payouts are involved. Many people will join a large fund not because the overall settlement reflects their values and interests but simply because the default rule requires parties to affirmatively opt out of the fund.

The status quo bias also contributes to the phenomenon of underclaiming, in which parties refuse to opt out of a settlement but never claim an award. Many public and private settlements require parties to complete a new form to claim an award, to choose among substantive settlement options, or to select a settlement process. Commentators studying claim rates in class action settlements have found that the fraction of funds actually disbursed was very modest in these so-called claims-made settlements.¹⁰ This includes cases in which claimants were otherwise entitled to substantial awards.

Accordingly, settlement funds could automatically process claims, not unlike automatic 401(k) plan enrollment. Under such a system, a settlement fund would automatically distribute presumed awards to claimants who join the fund. Such a policy, however, would come at a cost. Among other things, funds would bear the administrative cost of precisely identifying eligible claimants in advance of payment.

In light of potential costs, automatic processing would be more justified in certain funds. In large-value cases, for example, automatically processing claims would not be worth the administrative cost, the burden on the courts, and the potential for error or fraud. Thus, automatic processing may be warranted in welfare benefit settlements or shareholder class action funds, in which fund designers typically have a great deal of information about claimants, the awards are modest, and claimants generally do not choose among multiple settlement options.¹¹ Such policies would be more problematic in large mass tort settlements, in which settlement trusts or public settlement funds have less information about potential claimants, the awards are large, and claimants may be offered various procedural and substantive options in the settlement.

II.

Contrast Bias

Contrast bias is the irrational tendency to weigh an option more or less favorably depending on the presence of other options. Theoretically, a rational decisionmaker should not rank options differently simply because the options are described in a particular way. Moreover, the introduction of an additional choice should not alter a decisionmaker’s relative valuation of the original options. But this is not always the case.

Take, for example, the uncanny effects of decoy options—options that no one ever chooses but that make another alternative more appealing—on physical attraction. In a survey of six hundred students, a behavioral economist asked subjects to rate the looks of two men.¹² When asked to choose between the photographs of two equally attractive candidates—call one “George Clooney” and the other “Brad Pitt”—subjects were equally divided. When another group of subjects was asked to choose between the two initial candidates and a third candidate, a photoshopped and deformed version of George Clooney, however, 75 percent chose the unspoiled version of George Clooney and 25 percent chose Brad Pitt. Although no one selected the third option, the seemingly irrelevant introduction of an ugly version of George Clooney led 50 percent more students to believe that the original George Clooney was better looking than Brad Pitt.

Psychologists and behavioral economists have found that contrast effects directly impact a wide array of decisions, including consumer purchases, employment decisions, elective medical procedures, and even presidential elections.¹³ There are many explanations for contrast bias. Some suggest that it is simply easier to compare similar options among a set of choices than to give an absolute or innate value to any particular option. ¹⁴

The presence of contrast bias may be relevant to laws designed to improve the oversight of large settlements. Many settlement funds ask claimants to choose from an array of options after joining a settlement, in part to maximize the benefit to claimants with different interests in settlement. But the interrelationship of various settlement options may unwittingly impact a choice between cash and nonpecuniary awards, like coupons and warranties. In my own classes, I distribute an altered Apple iPod Settlement Notice as an illustration. After litigation over reported battery problems in old Apple iPods models, Apple settled and offered customers a choice of a $50 store credit or $25 in cash. Half of my students receive the original version of the iPod settlement notice. The other half receives a modified notice that contains the same two options—a $50 store credit and $25 in cash—and a decoy option, a $35 store credit. The results show the addition of a seemingly irrelevant coupon dramatically affects the students’ willingness to take the coupon settlement. The original group chooses cash more than 61 percent of the time; the decoy group chooses the cash only 40 percent of the time.

Contrast bias has implications for laws like the Class Action Fairness Act (“CAFA”), which expressly requires courts to conduct “fairness hearings” in coupon-only settlements and to postpone decisions about the amount of attorneys’ fees until after the coupons have been redeemed.¹⁵ CAFA’s purpose is to ensure that the attorneys’ fees are closely connected to the actual value of the settlement to the class. But CAFA does not impose a similar requirement for settlements involving both coupons and other options. Rather, courts may award attorneys’ fees upfront, based on an estimate of the cash value of the settlement apart from the portion of the settlement involving coupons. Due to contrast bias, courts may also have reason to wait for claimants to redeem these kinds of settlement awards: the coupon may encourage claimants to accept another settlement option that, by comparison, seems to offer a better value or greater liquidity. Such delay imposes costs. Class action litigation is risky business, and delaying even a portion of attorneys’ fees may dampen some attorneys’ willingness to file in the first place. But delay may be justified if it ensures that the attorneys’ fees better reflect the actual value that class members derive from the settlement.

III.

Time-Inconsistency Bias

Rational models of choice assume that people have time-consistent preferences. That is, a person’s relative preference for gratification will be the same no matter when he or she is asked. Substantial evidence, however, demonstrates that people have time-inconsistent or present-biased preferences. Ask whether a person prefers to rent Schindler’s List or So I Married an Axe Murderer, and the answer should not depend upon whether the decisionmaker plans to watch the movie today or later next week. But the proportion of people who elect to watch Schlindler’s List in the near future may be thirteen times higher than those willing to watch it on the same day they are asked.¹⁶ Present-biased preferences explain the systematic tendency to seek out more immediately gratifying benefits today than the long term benefits called for by earlier plans.¹⁷ More often than not, people choose a bird in the hand—be it dessert, a little extra cash, or a silly movie¹⁸—over three or four in the bush.

Time-inconsistency is compounded by nonintegrated decisionmaking. Nonintegrated decisions are rational decisions about costs and benefits in irrationally short periods of time. If a person had to choose whether to spend the next five minutes writing a paper or watching a YouTube video, she would rationally choose YouTube, the more pleasurable activity. After five minutes, she would rationally make the same decision again. But when the decision is viewed under a more integrated time horizon—four hours of paper writing versus four hours watching YouTube—she would rationally choose to write her paper. Because people are susceptible to nonintegrated decisionmaking, even small tastes for immediate gratification, or small costs associated with a task, may cause a naïve person to continuously postpone making decisions.

The converse of nonintegrated decisionmaking is that procrastinators will be highly sensitive to very small short-term incentives or penalties. Policies that make the cost of a short delay loom larger thus make procrastination less likely.¹⁹

Time-inconsistency bias may prove costly to claimants filing with a fund and to the administrative operation of the fund. Although some settlement funds fix relatively short deadlines, requiring filing within three to six months of settlement, other more complicated mass tort funds may allow one to two years to file. In many cases, there is no overt penalty for failing to file at an earlier time. There is a very powerful hidden penalty, however, to claimants—the time value of money and potential lost interest. For example, as illustrated in the graph below, more than half of the families affected by the September 11 attacks waited two years to file with the September 11 Victim Compensation Fund; as a result, each gave up, on average, over $100,000 in lost interest per year.

September 11 Victim Compensation Fund Claims Filed²⁰

Note the large spike in claims that appears just before the filing deadline on December 22, 2003. Rational considerations certainly explain some of the late filings. Claimants may choose to gather more information before filing with a large settlement fund. Or, particularly in large funds involving personal injuries, parties may need additional psychological distance from the event that gave rise to the claim. These explanations, however, are insufficient to account for the concentration of claims that appear just at the filing deadline of many large settlement funds. It is more likely that many claim filings represent present-biased preferences.

One solution is that large settlements could adopt rolling deadlines to encourage earlier filings. Parties could be required to file in the first week of each month until the final deadline. Human resource departments often use such rolling window systems to encourage employees to enroll in benefit programs, but these systems have never been applied in large public or private settlement funds. Cognitive science, however, suggests that such short-term incentives will encourage claimants to file more often over the duration of the fund, saving both opportunity costs to claimants and administrative costs to the fund.

Any such solution must take costs into account. Undoubtedly, rolling deadlines impose a cost on individual actors, who would suffer the inconvenience of filing at the beginning of the month, as well as on the fund, which would have to expend additional resources making such a filing system easy and transparent. But it would impose comparably small costs to claimants’ autonomy. A party unable to file at the beginning of the first month would always retain the ability to file the following month. A party that wants to wait for other strategic, information-driven, or psychological reasons would still retain that right.

Because of such costs, rolling deadlines may be more justified in funds that award high-value claims, like mass torts and some antitrust settlements, but not necessarily low-value claims, like consumer class actions. For high-value claims, the additional savings to the individual and the fund justify taking measures to encourage parties who might otherwise suboptimally delay filing.²¹

***

By “funding irrationality,” I do not challenge efforts to increase choices and opportunities for claimants to large funds. I only question whether such efforts, by themselves, are enough to accomplish their objectives of greater fairness, efficiency, and equity. Although such measures help rational participants to monitor, object, and exclude themselves from such funds, few measures exist to protect claimants who will make decisions based upon cognitive error. As this Essay demonstrates, there will be cases in which, on balance, many subjects will make poor decisions—both for themselves and for the fund as a whole—when available settlement options are not adjusted to account for cognitive biases. This is, in part, because in many large funds parties lack individual access to third-party expertise, like lawyers. Given the tremendous economic, social, and institutional resources devoted to operating large funds, it is worth asking: Are there better ways to design large funds? Can their design accommodate both rational and irrational decisionmaking?

I answer both questions with a qualified “yes” by recommending policies that benefit those prone to make cognitive errors but impose minimal costs on those who otherwise choose rationally. In so doing, I recommend accounting for and sometimes exploiting the timing, structure, and combination of options in large settlements to increase the welfare of all potential participants.

But such solutions raise fundamental questions of fairness and efficiency themselves: Will fund designers suffer from their own biases? Will procedures that fund irrationality unfairly limit claimants’ rights to control their own litigation? Will funding irrationality risk replacing one set of claimant biases with new biases that lead to even less desirable outcomes? These are all valid concerns. The compensatory goals of large funds require, however, that fund designers understand how claimants make choices and, when possible, adjust rules so that funds better serve them.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Adam S. Zimmerman is an Acting Assistant Professor at the New York University School of Law.

This Legal Workshop Editorial is based on the following article: Adam S. Zimmerman, Funding Irrationality, 59 DUKE L.J. 1105 (2010)

The standing doctrine is the Rorschach test of federal courts. In theory, the doctrine serves a distinct function, namely ensuring that a litigant is the proper party to bring a claim in court. Yet standing remains one of the most contested areas of federal law, with criticisms of the doctrine nearing the number of commentators.

Indeed, even the most basic question of the origins of the standing doctrine eludes scholars. Conventional accounts focus on the nature of Article III’s case or controversy requirement, the collision between the administrative state and private rights-based models of judicial resolution, and caseload management. In contrast, one revisionist account, proposed by Steven Winter and Cass Sunstein, is that progressive Justices purposely invented and constitutionalized the standing doctrine in order to insulate New Deal agencies from judicial review.¹

When advanced just twenty years ago, this New Deal “insulation thesis” inverted the conventional perception of the doctrine’s political valence. Rather than supporting the conservative goal of keeping broad-based public interest litigation out of court, restrictive standing requirements may originally have achieved precisely the opposite result: preserving and enshrining the liberal New Deal administrative state.

While provocative, prominent, and now largely considered conventional wisdom as the “definitive history of standing”² and “part of the canon of Constitutional law,”³ the insulation thesis is thinly theorized and rests on fragile empirical grounds. Cases cited in support of the insulation thesis are haphazardly selected, and many of these cases are uninformative about, peripheral to, or plainly contradict the insulation thesis. Indeed, Professor Steven Winter—who first advanced the claim in 1988 in a seminal piece in the Stanford Law Review—himself once noted:

When I first claimed that standing doctrine was invented by Justices Brandeis and Frankfurter, I was unsure whether my documentation would be sufficient . . . . Consequently, I was surprised by the speed with which my revisionist claim was first credited as true and then consigned to the general stock of conventional wisdom.⁴

II. Testing the Insulation Thesis: Our Approach

In our Article, we synthesize the understanding of the insulation thesis and provide the first systematic quantitative empirical study of the historical evolution of the Supreme Court’s standing doctrine. Examining over 1,500 cases cited in major historical treatments of the doctrine and backdating all merits votes to 1921, we compile a new database of every contested standing and merits issue decided by the Supreme Court from 1921-2006. Armed with this extensive data set, we find compelling support for one version of the insulation thesis in the New Deal period.

Our data collection approach is threefold. First, to overcome haphazard case selection, we leverage a large number of sources (e.g., historical treatises, law review articles on the origins of the standing doctrine, Westlaw Key Numbers, and Lexis Headnotes) to enumerate the potential population of over 1,500 standing cases. Second, we read each of these cases to validate, classify, and disaggregate every express disagreement on a standing issue, recording votes cast by each Justice as favoring or disfavoring standing, or as unclear.

For example, consider the well-known case of Lujan v. Defenders of Wildlife. In that case, environmental plaintiffs challenged a regulation limiting the consultation process for federal agencies under the Endangered Species Act (ESA). Justice Scalia, writing for a six-Justice majority, found that litigants failed to allege particularized injury and that the citizen suit provision was insufficient to grant standing under the ESA for a procedural injury. Commanding only a plurality, Scalia further concluded that plaintiffs failed to show that a victory on the merits would redress the alleged harms. One jurisprudentially meaningful way to code the case would be as a 6-3 split on whether respondents have standing. Yet the opinions also contain additional information on three distinct standing issues: (1) whether plaintiffs have alleged a particularized injury (with Justices Blackmun, O’Connor, and Stevens answering in the affirmative, and all other Justices opposed); (2) whether the injury is redressable (with the same split except for Justices Kennedy and Souter not clearly taking a position); and (3) whether procedural injuries may be statutorily defined when they would otherwise not meet Article III requirements (with Justices Kennedy, Souter, Blackmun, and O’Connor answering in the affirmative, Justices Scalia, Rehnquist, Thomas, and White opposed, and Justice Stevens not clearly addressing the issue). By noting each of these distinct disagreements, our data collection captures key jurisprudential differences between the Justices, thereby allowing us to identify a meaningful population of standing issues and to examine the implications of the insulation thesis.

Lastly, we augment this new standing data with all judicial votes on the merits in roughly 5,400 cases, backdating the Supreme Court Database to 1921. We then apply modern measurement methods to summarize the differences in voting patterns in one dimension. Figure 1 presents merits preferences (sometimes called “ideal points”) for three natural courts. The left panel presents the pre-1937 Court. The short vertical dashes represent the estimated ideal point, and the horizontal lines capture uncertainty. The lower panels present the estimated positions for each of 135 cases that divide the majority and minority (“cutlines”). The estimates track qualitative distinctions between the Justices. The “Four Horsemen” (Justices McReynolds, Butler, Sutherland, and Van Devanter) anchor the right wing of the Court, while the “Three Musketeers” (Justices Stone, Cardozo, and Brandeis) anchor the liberal wing. Chief Justice Hughes and Justice Roberts (epitomized in the switch in time that saved nine) are pivotal Justices. The middle panel presents comparable estimates for the 1942-1944 terms, showing the realignment that resulted from the New Deal appointees. Justices Black and Douglas, the two great liberals, often were at odds with the (relatively) more conservative Justices Jackson and Frankfurter (“leader of the Court’s conservative core”)⁵ over incorporation and judicial restraint. This panel also emphasizes that these estimates are relative—while Frankfurter is conservative compared to the other FDR appointees, the entire 1942–1944 Court shifted to the left of the pre-1937 Court. For comparison, the right panel presents estimates for the Rehnquist Court, which are consistent with conventional wisdom. The cutlines also show that the cardinal location (or apparent “left skew” of the ideal points) is entirely relative: most of the cutlines that divide the majority and minority are also towards the left on the cardinal scale. The cluster of cutlines in the space between Justices O’Connor and Souter represent the frequent 5-4 split on the Rehnquist Court. The merits data thereby enables us to formalize qualitative assertions by insulation proponents of who the “liberal” and “conservative” Justices are (although such characterizations do not warrant a strong “attitudinal” or “realist” interpretation).

Figure 1: Illustration of ideal points of Justices for three natural courts. The top panels represent the estimated locations where left can be interpreted as more “liberal” and right can be interpreted as more “conservative.” Short red vertical dashes represent the best guess of Justice positions (posterior medians), and horizontal segments represent uncertainty (95% credible intervals). The bottom panels overlay estimated cutlines that separate the majority and minority for all decisions by that natural court. This illustrates that only the relative positions of the Justices matter: for example, the right-skewed marginal distribution of ideal points for the Rehnquist Court matches similar skew of cutlines. More importantly, these estimates are consistent and formalize qualitative assertions about which Justices are “liberal” and “conservative.”

In sum, our data encompass 47,570 votes on 5,497 unique issues and the full population of 229 standing issues on which Justices expressly disagree. Using modern statistical methods, we can then capitalize on crucial variation across Justices, time, and cases to assess the insulation thesis.

III. Results

Our results clarify, synthesize, and unify existing accounts of the early rise of the standing doctrine, and provide insight into its more recent evolution. We find compelling support for one version of the insulation thesis, with three central findings that refine extant accounts.

First, the insulation thesis does not fully explain the conception or invention of the modern standing doctrine. From 1921-1930, standing arose largely unanimously. Progressives and conservatives exhibited no systematic disagreement as to the doctrine. Early unanimity may be consistent with an alternative explanation of caseload management, occurring at the same time of the Supreme Court’s conversion to the discretionary docket, and is also consistent with existing evidence that the seeds of the doctrine are traceable to the 18th and 19th centuries.⁶

Second, unanimity collapsed with the New Deal period, and cases from the 1930s and early 1940s provide substantial support for the insulation thesis. Standing disagreements came to embody systematic differences across Justices, with liberal Justices disproportionately denying (and conservatives granting) standing. To illustrate the key finding, Figure 2 plots the correlation between merits views (from Figure 1) on the x-axis and the proportion of times a Justice favors standing. The left panel plots pre-1940 cases and the right panel plots post-1940 cases. Each circle represents one Justice, with the area weighted by the number of cases; lines represent iterated linear fits to the data (accounting for measurement error in merits views). Although inherently based on small sample sizes, Figure 2 provides strong evidence in favor of the insulation thesis: before 1940, liberals were far more likely to deny standing, while conservatives were far more likely to grant it. The figure also shows that insulation is not confined to individuals. Justice Frankfurter, for example, is no mere outlier in Figure 2, as standing disagreements reflect underlying differences between progressives and conservatives. The trend is most pronounced in cases involving New Deal legislation and administrative agencies. The period of liberal insulation was short, unraveling in the 1940s. By 1950, the doctrine’s political valence reversed entirely. Compared to the merits, liberals were uniformly more likely to favor—and conservatives more likely to deny—standing. The contrast between the sharp conservative valence of the post-1950 period and the liberal valence of the New Deal era provides striking evidence for progressive use, if not invention, of the standing doctrine during the New Deal period.

Figure 2: Reversal in merits-standing preferences over time. The left (right) panel presents pooled merits ideal points on the x-axis against the proportion of votes cast by each Justice favoring standing in contested cases from pre-1940 (post-1940) cases. The area of each observation is proportional to the number of issues. To account for measurement uncertainty, the green lines represent least squares fits to the data from 50 draws of the posterior distribution of merits ideal points, and blue lines represent robust MM fits to the same data.

Third, perhaps most compelling is that individual Justices track the valence shift of the standing doctrine. For example, the voting patterns of Justices Douglas and Black reflect the transformation of the doctrine. As the great liberal and environmentalist, Justice Douglas is typically known for his permissive take on the standing doctrine. Dissenting in Sierra Club v. Morton, Douglas famously cited to an article entitled Should Trees Have Standing?, noting that “[t]he voice of the inanimate object . . . should not be stilled.”⁷ Yet Justice Douglas voted largely to deny standing during his early years (a compelling fact missed, as far as we are aware, by existing accounts). It was only after 1950 that Justice Douglas adopted his “liberal” views on standing, favoring standing in every contested case heard thereafter. Most telling, perhaps, is that Justice Douglas himself expressed an awareness of the insulation effect over a decade before the insulation thesis was advanced in law reviews. In Schlesinger v. Reservists Committee to Stop the War, he noted that standing “make[s] the bureaucracy . . . more immune from the protests of citizens.”⁸

In short, our research reveals that while the seeds of the standing doctrine existed prior to the New Deal, the doctrine took a distinct political valence around the time of the New Deal that —when contrasted with decades of nearly uniform conservative political valence post-1940—is resoundingly consistent with the insulation thesis.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Daniel E. Ho is an Associate Professor of Law at Stanford Law School. Erica L. Ross received her J.D. from Stanford Law School and is currently a law clerk to the Honorable David S. Tatel on the U.S. Court of Appeals for the District of Columbia Circuit, 2009-10.

This Legal Workshop Editorial is based on the following Law Review Article: Daniel E. Ho & Erica Ross, Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of Evolution of Standing, 1921-2006, 62 STAN. L. REV. 591 (2010).

How do such commons work?  Where do they come from, what contributes to their durability and effectiveness, and what undermines them?  These questions are at the heart of an institutionalist research paradigm that has been extremely successful in understanding the successes and failures of natural resource commons arrangements.  The Nobel Committee recently recognized the importance of institutionalism by awarding  the 2009 Nobel Prize in Economics to political scientist Elinor Ostrom and institutional economist Oliver E. Williamson.

Constructing Commons in the Cultural Environment, our full-length article in the Cornell Law Review, confronts the challenge of understanding the governance of what we refer to as constructed commons in the cultural environment, in which the resources to be produced, conserved, and consumed are not crustaceans but information: copyrighted works of authorship, patented inventions, and other forms of information and knowledge that need not be aligned with formal systems of intellectual property law.  The phrase “constructed cultural commons,” as we use it, refers to socially constructed institutions for developing and sharing cultural and scientific knowledge in a formally or informally managed way, much as a natural resource commons refers to the type of managed sharing environment for natural resources exemplified by the Maine lobster fishery.

A commons is neither a place nor a thing.  Rather, a commons is a resource management or governance regime.  Cultural commons are regimes for managing the sharing of information or cultural resources.  Commons are “constructed” in the sense that their creation, existence, operation, and persistence are not matters of pure accident or random chance, but of emergent social process and institutional design.  Examples of constructed cultural commons include: intellectual property pools, in which owners of patents in a technological domain license their patents to a common “pool” from which producers of complex products can obtain all of the permissions needed to make and sell goods that use the patents; open source computer software projects, which offer users of open source programs the ability to create and share modifications to the programs; Wikipedia, which offers users of this Internet encyclopedia the power to add to and edit its contents; the wire service for journalism operated by the Associated Press, which allows individual member media outlets the opportunity to publish work produced by other members; and “jamband” fan communities, which record, share and comment on musical performances of their favorite groups—with the permission of the artists themselves.  The best-known jamband is the community that grew up around and that is still associated with the Grateful Dead.

Participants design these environments with limitations tailored to the character of the resources and communities involved. They do not operate solely via market transactions grounded in traditional proprietary rights, nor are they structured exclusively by government regulation.  Research on intellectual property and related cultural resources has generally failed to focus sufficiently on managed sharing or on the governance of cultural resources via collective mechanisms.  The theoretical discussion of intellectual property policy has been focused on extremes of exclusion and open access, ignoring a wide range of constructed commons that persist between the extremes.  Such discussion is often divorced from empirical studies of creative and inventive communities.  In Constructing Commons, we argue that it is high time to devote more attention to the middle ground of constructed cultural commons.

Research on the Maine lobster fishery and other natural resource commons is grounded in the empirical case study approach pioneered by political scientist Elinor Ostrom and her colleagues.  That approach employs an “Institutional Analysis and Development” (IAD) framework of structured inquiries to study a variety of commons arrangements before moving on to create theories and models to explain them.¹  Commons researchers divide their inquiries into nested groups.  A set of inquiries into “exogenous variables” is further divided into questions about the biophysical characteristics of the shared resources, the attributes of the community, and the “rules-in-use” or governance mechanisms.²  A second set of inquiries focuses on the “action arena” in which social interactions and exchange take place.³  Finally, each study inquires about the outcomes of the commons management system.

A simple illustration of the framework might be a soccer league.  The formal rules of soccer are fixed, but the rules-in-use clearly vary somewhat between a professional league and a recreational league, between children’s leagues and adult leagues, and so forth.  A specific soccer league is also characterized by the relationships among the players (neighbors, professional competitors, friends, etc.), by the attributes of the fields on which games are played, and even by the climate of the places where the games take place.  The action arena (soccer games) depends on complex and specific interactions among all of these characteristics.  Nonetheless, the outcomes over time in a particular league are the patterns of interaction that are clearly identifiable as “professional soccer,” “friendly weekend game,” “children’s soccer league” and so forth.  Moreover, some leagues may be successful, lasting for years even as players come and go, while others will fail.  The goal of applying the Ostrom framework of analysis in this context would be to use studies and analyses of many different soccer leagues to come to an understanding of success and failure as a function of specific context.

This method of structured inquiry has the advantages of a systematic approach without prematurely imposing any one theoretical paradigm on the study of commons.  It allows the complexity of real-world commons arrangements to inform the search for theoretical understanding rather than papering over such complexity in an attempt to shoehorn existing commons arrangements into a pre-existing model.  After engaging in a large number of such studies, Ostrom’s approach permits generalization (for example, with regard to design principles for successful commons) along with more specific theorizing, modeling, and even experimental studies of particular aspects observed in the case studies.

Borrowing from and building on Ostrom’s work, Constructing Commons develops and argues for the use of a similar framework to systematize case-study-based research exploring the construction of cultural commons.  The time is ripe for such an approach, as a number of scholars have begun to do case studies of constructed cultural commons.  To the extent that researchers have undertaken case studies so far, however, they tend to have studied isolated areas (such as open source software or academic publishing) and to have considered a limited number of descriptive variables.  This makes integration and learning from a body of case studies quite difficult, which in turn discourages people from pursuing further case studies.

Constructing Commons in the Cultural Environment adapts, extends and distinguishes Ostrom’s IAD framework to account for important differences between constructed cultural commons and natural resource commons.  Understanding the origins and operation of constructed cultural commons requires detailed assessments that recognize that they operate simultaneously at several levels, each nested in a level above, and that each level entails a variety of possible attributes.  We suggest a set of buckets or clusters of issues that should guide further inquiry, including the ways in which information resources and resource commons are structured by default rules of exclusion, and the ways in which members of these pools manage participation in the collective production and extraction of information resources.  Case studies across disciplines and reviews of existing literature that addresses cultural commons will help specify relevant attributes within each cluster.

Because space does not permit a detailed exposition of the framework here, we will briefly discuss only a few of the most important issues that distinguish the inquiries necessary for studying cultural commons from those appropriate to natural resource commons.  Most importantly, unlike commons in the natural resource environment, cultural commons arrangements usually must create a governance structure within which participants not only share existing resources but also engage in producing those resources.  This characteristic of cultural commons creates a more intertwined set of exogenous variables, since separating the managed resources from the attributes and rules-in-use of the community that produces them is impossible.   Moreover, in cultural commons, distinguishing outcomes from resources and community attributes is not strictly possible, since the interactions of the participants in such a commons are inextricably linked with the form and content of the knowledge output, which in turn is itself a resource for future production.  These differences call for a set of inquiries tailored to cultural commons.

Because the resources shared within a cultural commons are themselves culturally constructed and non-rivalrous, defining the boundaries of the commonly managed resource is also more complex than in the natural resource commons context.  A reference “natural environment” must be consciously chosen: either the public domain or a proprietary intellectual property environment may be most appropriate depending upon the particular commons (e.g., university research community or patent pool) under investigation.  Nuanced questions about openness are in order.  In natural resource commons, in many cases, the commons is open to members and closed to everyone else, and that is the end of the story.  This is sensible because natural resources are rivalrous—preventing over-consumption is usually the goal of the commons arrangement.  Intellectual resources, by contrast, are not subject to the same natural constraints and are naturally shareable without a risk of congestion or overconsumption.  Thus, a constructed cultural commons arrangement reflects many choices about the degree and type of participation that is available to various persons and entities.  Open source software projects, for example, often allow anyone to comment, make suggestions, or submit code for potential adoption, but are managed by a small group of core programmers who determine what code to incorporate into official releases.  Additionally, individuals having nothing to do with the writing of the code can use it, subject to constraints on commercialization incorporated into the copyright license, which vary from project to project.  Constructing Commons discusses in some detail how to adapt the Ostrom framework to account for these and other differences between natural resource commons and constructed cultural commons.  We expect the framework to evolve further as researchers apply it to specific case studies.

The Constructing Commons framework suggests a means to investigate the social role and significance of constructed commons institutions.  This investigation is relevant to property law in particular and social ordering more generally.  The conventional view of property scholars, particularly those with interests in intellectual property law, is that resource production and consumption are, and ought to be, governed primarily by entitlements to individual resource units, held individually and allocated via market mechanisms.  To the extent that those market mechanisms are inadequate to optimize the welfare of society, in the event of market failure, government intervention is the suggested remedy.  Intellectual property rights themselves are generally justified as remedies for market failure.  Creative works and new inventions are characterized as public goods, whose intangibility prevents their originators from excluding potential users and thus recouping their investments via pricing.  Copyright and patent laws create artificial but legally sanctioned forms of exclusion, restoring a measure of market control to creators and innovators.  The conventional view regards communal and collectivist institutions, particularly those that blend informal normative structures with formal government rules, as exceptional and dependent upon pre-existing property entitlements.

Systematically performing and analyzing case studies of constructed cultural commons across a wide range of domains according to the proposed framework offers a critical method for assessing the validity of this property-focused narrative.  We suspect that, over time, the constructed cultural commons framework that we describe will yield a far larger and richer set of commons cases in the cultural context than one might discover by focusing only on patent law or scientific research or software development.  We anticipate that social ordering both depends on and generates a wide variety of formal and informal institutional arrangements, and that the logical and normative priority assigned to proprietary rights and government intervention may turn out to be misplaced.  Importantly, understanding commons in the cultural environment is likely to shed light on the ways in which managed sharing or openness with respect to cultural resources generates the “spillovers,” or third-party benefits, that are critical to the welfare effects of those resources.⁴  The social value of information lies not only in its effect on the producer and the consumer of that information, but also in the ways in which the consumer shares that information with others.

Beyond our proposal of a framework for studying them, our consideration of constructed cultural commons also highlights a number of points that are important in the study of intellectual property going forward.  Considering constructed commons helps to elevate collective, intermediate solutions to their possible place of significance in accounts of property regimes and should diminish the skepticism of many scholars that collective solutions can work beyond narrowly defined situations.  Case studies will also call our attention to the constructed, designed character of both the cultural and the legal environment in regard to knowledge and information policy problems.  Finally, as they have they have done in the study of natural resource management, systematic analyses of constructed commons across a wide range of collected case studies should lead us to doubt panacea prescriptions drawn from overly simplistic models.

Acknowledgments:

Copyright © 2010 Cornell Law Review.

Michael J. Madison is Professor of Law and Associate Dean for Research, University of Pittsburgh School of Law.  Brett Frischmann is Associate Professor of Law, Loyola University Chicago School of Law.  Katherine Strandburg is Professor of Law, New York University School of Law.  Parts of this work were completed while Professor Strandburg was visiting at New York University School of Law (2007-08) and Fordham University Law School (Fall 2008).

This Legal Workshop Editorial is based on: Michael J. Madison, Brett Frischmann & Katherine J. Strandburg, Constructing Commons in the Cultural Environment, 95 CORNELL L. REV. ___ (2010).

Because separate opinions and reversals constitute behavioral manifestations of judges’ discretionary authority, studies of dissensus shed light on critical questions related to the effective functioning and legitimacy of our legal system and the operation of the rule of law. . . . Our findings cut both ways. The evidence we have presented in the preceding pages of this book demonstrates that judging is both a legal and a political activity . . . .²

Surveying the results of recent quantitative studies of judging, Cass Sunstein and Thomas Miles observe that “[f]or those who believe in the rule of law, and in the discipline imposed by the legal system, the results of the New Legal Realism need not be entirely discouraging. The glass is half empty, perhaps, but it is also half full.”³

The rule of law is often said to be a defining aspect of the American system of governance—the foundation stone of our free society—in which judges play a pivotal role.⁴> It is alarming to be informed that serious problems in judging threaten the rule of law or that the rule of law glass is half empty. If these concerns are valid, remedial measures must be sought and implemented without delay.

But are they correct? Have studies of judging shown that the rule of law is in trouble? To evaluate these assertions, one must first know what the rule of law requires of judges; then one must identify or measure how much and in what ways judges are falling short of these requirements. To say that the rule of law glass is half full, continuing with Sunstein’s and Miles’s metaphor, requires knowing what a full glass of the rule of law looks like: there must be rule of law baselines or standards.

A quick look at these studies exposes the need for such baselines. The authors of Are Judges Political? find that “[f]requently the law is clear, and judges should and will simply implement it, no matter who has appointed them.”⁵ Their study provides “considerable evidence to suggest that they do exactly that”;⁶ in five major areas studied they find no ideological effect on judicial decisions, and even when an effect did show, the differences, they admit, were “not huge.”⁷ A study was not necessary to show that judges do not vary greatly by ideology in their legal decisions because typically about 90 percent of federal appellate decisions (more when unpublished cases are counted) are issued without a dissent. Judges, then, agree an overwhelming proportion of the time regardless of ideological differences. By that measure, at least, the rule of law appears to be working well.

The authors of Judging on a Collegial Court find that ideological differences show a statistically significant increase in the probability of a dissent or a concurrence. But it turns out that the size of the effect—its actual impact on the run of decisions—was minuscule: “The difference in absolute terms is rather small, with slightly less than a 0.01 increase in the probability of a concurrence and a 0.02 increase in the probability of a dissent.”⁸ That is hardly worrisome. Confounding the authors’ expectations, furthermore, their study finds no statistically significant correlation between ideological difference and rates of reversal—that is, appellate panels did not reverse trial judges with an opposing ideological disposition at a higher rate. This study, covering decisions by nearly a thousand judges over four decades, would appear to confirm that political views have little impact on judicial decisions, yet, without explaining why, the authors suggest that their findings “cut both ways” on the rule of law.

Behind the disquieting assertions about the rule of law lies an unstated assumption: the proposition that any finding of political influence on judging, no matter how small, is contrary to the rule of law. This, however, is a profoundly unrealistic assumption—ironically so, because these political scientists and law professors claim the mantle of legal realism.

 
I.
Balanced Realism About Judging

For more than a century, judges and jurists in the United States have expressed a view of judging that I call “balanced realism.”⁹ Balanced realism recognizes that there are gaps and uncertainties in the law, that sometimes judges have discretion and must make choices, that different judges can sometimes interpret the same law in different ways owing to differences in perspective and background, that inconsistent precedents or conflicts in the applicable law can exist, and that sometimes judges manipulate the law to reach desired ends. (I call these factors the “skeptical aspects.”) But balanced realism also recognizes that a substantial majority of the time, the rules and their application are clear and predictable, that judges are indoctrinated into a shared legal tradition and legal practices that lead then to interpret and apply legal rules in similar ways, that judging takes place in a thick institutional setting that constrains judges, that most judges strive to abide by the commitment to follow the law, and that the overwhelming majority of judicial decisions are legally determined (the “rule-bound” aspects). Balanced realism acknowledges the limitations inherent in the law and in human judges—limitations that cannot be eliminated—yet it also recognizes that law nonetheless works, that judges can and do render rule-bound decisions.

Judge Benjamin Cardozo famously articulated a balanced realism about judging in The Nature of the Judicial Process:

No doubt there is a field within which judicial judgment moves untrammeled by fixed principles. Obscurity of statute or of precedent or of customs or of morals, or collision between some or all of them, may leave the law unsettled, and cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly legislative in function.¹⁰

Cardozo insisted that when making these decisions a judge must decide in terms of the community view, not the judge’s personal view, but he was aware that it is difficult to keep the two apart: “The perception of the objective right takes the color of the subjective mind.”¹¹ But despite the inherent openness of law and the limitations of human judges, Cardozo reminded his audience, “[w]e must not let these occasional and relatively rare instances blind our eyes to the innumerable instances where there is neither obscurity nor collision nor opportunity for diverse judgment.”¹²

Multiple judges before and after Cardozo have described judging in similar terms. In 1886, for example, Judge Thomas Cooley emphasized that uncertainty in the application of law cannot be eliminated

because in the infinite variety of human transactions it becomes uncertain which of the opposing rules the respective parties contend for should be applied in a case having no exact parallel, and because it cannot possibly be known in advance what view a court or jury will take of questions upon which there is room for difference of opinion.¹³

Differences in the judicial application of law, he wrote, “must always exist so long as there is variety in human minds, human standards, and human transactions.”¹⁴ In 1924, Judge Irving Lehman acknowledged that “no thoughtful judge can fail to note that in conferences of the court, differences of opinion are based at least to some extent upon differences of viewpoint.”¹⁵ Judge Bernard Shientag remarked in 1944,

[n]aturally, it is in cases where the creative faculty of the judicial process operates, where there is a choice of competing analogies, that the personality of the judge, the individual tone of his mind, the color of his experience, the character and variety of his interests and his prepossessions, all play an important role.¹⁶

Judge Albert Tate observed in 1959, “like all other human beings[, judges] have limitations, of vision, knowledge, intelligence, or predisposition which sometimes influence their judicial actions.”¹⁷ In 1963, Judge Charles Clark admitted that cases arise in which there is no clear legal answer, and the judge “is on his own for the ultimate result which must reflect his background, his personality, and his inner convictions.”¹⁸ And so on.

This encapsulates what many judges have said about judging: the bulk of the law is clear, but the law has a margin of uncertainty; judges try their best to rule in an objective fashion, but their personal views sometimes seep through to influence their decisions. The crucial point is that law cannot be made perfectly certain and judges cannot be made to reason like machines, entirely free of background influences. These inherent aspects of judging shape and constrain what is possible. “The rule of law is not the doctrine of perfect decision,” Judge Alvin Rubin counseled: “[I]n many cases a conscientious decision is as much as can be expected, and . . . there is no ultimate ‘right’ answer.”¹⁹

Now it is possible to identify the fundamental flaw in the assumption that any showing of political influence on judicial decisions is inconsistent with the rule of law. A realistic understanding of the rule of law would assume that a certain irreducible amount of ideological influence will be present even in the best system of judging.²⁰ As judges have repeatedly stated, it cannot be otherwise. A realistic view would therefore expect that quantitative studies will find statistically significant correlations in certain contexts between ideology and judicial decisions. This finding in itself, without more, says nothing at all about the rule of law, because it is an inherent aspect of judging. Or to put the point another way, a full glass of the rule of law, like a full glass of milk, is not filled to the brim. The open space between the lip of the glass and the surface of a full glass of the rule of law is where legal uncertainty interacts with the limitations of human judges—where political influences typically come into play.

For the rule of law, what matters is the size of the ideological effect and in what contexts it manifests itself: whether it is greater than, or extends beyond or outside of, what one would expect in a well functioning system of rule-bound judging. Rule of law baselines are necessary to identify what to expect of a full glass of the rule of law. Quantitative studies can raise serious concerns about the rule of law only if their results establish that judicial decisions fall measurably below these baselines. Only then would grounds exist to assert that the rule of law glass is half full, or nearly empty.

 
II.
Constructing Rule of Law Baselines

Throughout this Essay, I have referred to baselines in the plural because a number of standards will be necessary to account for variations in the nature of legal provisions and the circumstances of judging.  Two factors have particular bearing on the formulation of standards: the type of legal issue a judge is called upon to decide, and the level of the court.

In connection with the first factor, certain legal provisions—especially legal standards like “fairness,” “reasonableness,” or “the best interests of the child”—explicitly call upon judges to exercise discretion or to make judgments of a type that allows or invites (or makes it harder to screen out) the expression of personal views. Consequently, a rule of law baseline for this type of question, which remains legally governed and hence should manifest a significant degree of agreement, would anticipate greater variation among judges and higher correlations between their decisions and their ideological views in comparison to a rule of law baseline for narrow legal rules.

The second factor recognizes that the quantum of legal uncertainty is greater at higher court levels. The vast majority of cases are settled (fewer than two percent of federal cases make it through trial) because the applicable law and provable facts are clear, so both parties can weigh the expected costs and benefits of continuing. About ten to fifteen percent of federal appellate cases, by the estimate of a number of federal judges,²¹ involve hard or uncertain legal issues. In contrast, the skeptical aspects of law recognized by balanced realism—uncertainty, disagreement, choice, political pressure—show up in a significantly higher proportion of Supreme Court cases, whereas the rule-bound aspects are proportionally less present (including fewer institutional checks). This represents a virtual inversion of the usual balance of these factors within law and judging generally, although Supreme Court decisionmaking is still thickly draped in legal constraints. In recognition of these differences, rule of law baselines for trial courts and appellate courts should anticipate far greater agreement in legal decisions and significantly lower ideologically correlated variations in comparison with high courts (both state and federal).

Needless to say, the task of formulating rule of law baselines will be complicated, requiring ingenuity and much trial and error. This task can be done in a variety of ways, all contestable. Every baseline produced should be viewed with caution, as a proxy that stands for an approximation of an abstraction—a gross quantitative marker for what to expect from rule-bound judges.

Seeking out comparative measures is one way to proceed. For example, assume that over a seventy-five-year span conservative judges vote in the conservative direction in about fifty-five percent of their cases, whereas liberal judges vote conservative in about fifty percent of their cases.²² The relatively small five percent difference in voting behavior, one might surmise, reflects the irrepressible interaction of legal uncertainty with human judging. This historical norm could supply the basis for a rule of law baseline for federal appellate judging. A warning sign that the judicial system is in trouble, then, might be if judges as a group skew their votes in a one-sided ideological direction in a significantly higher proportion of cases, creating a greater than usual disparity between Republican- and Democratic-appointed judges.²³ Moreover, individual judges whose decisions fall far outside of this historical range might invite scrutiny for failing to rule in a sufficiently rule-bound fashion. One might create similar baselines for the Supreme Court, derived from historical norms or from a comparison of the voting patterns of Justices against one another. This would allow a determination of whether a particular Court or a particular Justice shows a propensity to rule in an ideological direction that exceeds the usual, historical range.

Setting aside levels of courts, one might also compare differences across legal issues to see whether some issues show greater ideologically linked divergence in judicial decisions than others. Applying different rule of law baselines for standards (expecting greater divergence) and for rules (expecting less) will make it possible to tease out whether the observed increase in divergence is a function of the type of legal provision at issue, or of something else (perhaps political salience or entrenched cognitive biases).

These are just illustrative suggestions. Many factors must be considered before rule of law baselines can be constructed—work that has not yet begun.

 
III.
Legitimate Objections to Rule of Law Baselines

Critics may object that it is misguided or wrong to construct such baselines, that the goal itself is ludicrous because the rule of law is a deeply contested ideal with uncertain meaning and implications for judging. Furthermore, critics might argue, quantitative standards that purport to provide a basis to evaluate judging will compress the complexity and nuance of judging in a distorting oversimplification that is susceptible to pernicious uses. These are compelling objections. I would not proffer this proposal but for the worry that leaving this gap unaddressed might be worse than the distortions that result from the effort to fill it.

As the first paragraph of this Essay reveals, political scientists and law professors, perhaps succumbing to the temptation to sell their results, have issued broad, alarming claims about the implications of their quantitative studies for the rule of law. These claims, I have argued, do not follow from the results of their studies in the absence of rule of law baselines, and they paint a false image of the state of judging. Rule of law baselines will impose greater discipline on scholars who wish to draw out broader implications from their results and will provide a sounder footing for their observations.

This effort will also lead to an important advance in the discipline of quantitative studies. Quantitative scholars demonstrate time and again through their studies that judging is not a purely legal activity. This point is not informative. Dozens of judges have admitted for decades that sometimes law is uncertain or runs out, that judges must sometimes make choices, and that sometimes their personal views have an impact on their legal decisions.²⁴ That is the nature of law and of human judging. The formulation of rule of law baselines would constitute a major advance within the field, because these baselines would formally incorporate the recognition of this reality, affecting the orientation and design of the next generation of studies. Future quantitative studies would produce information worthy of attention, not when merely finding indications of ideological influence, but when finding a notable deviation from expected baselines. Absent rule of law baselines, these rapidly multiplying studies will merely confirm what everyone in law already knows.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Brian Z. Tamanaha is a Professor at the Washington University School of Law.

When I think of “judging” as an anthropologist, I think of two of the classics in legal anthropology:  Paul Bohannan’s Justice and Judgment Among the Tiv ¹ and Max Gluckman’s The Judicial Process Among the Barotse.² Both of these books were ethnographic studies of African tribal courts during the latter days of British colonial rule.  The tribal judges were prominent in both books, and when I teach them in law school I ask students to compare the tribal judges’ roles and conduct to what they know about contemporary American judges.  Like American judges, these African judges sometimes maneuvered the disputants into settlements and sometimes issued final judgments.  Unlike American judges, they never wrote opinions.³ So one could understand them only by watching, listening, and attending to all aspects of their behavior, including such apparently trivial details as how they arranged the seating in the open-air courtroom.

I also think—though far less grandiosely, of course—of the work that Mack O’Barr and I did in American small claims courts in the 1980s and 1990s.⁴ Like their African counterparts, the judges we watched in these courts persuaded, cajoled, threatened, and, when necessary, judged.  Nothing except the basic terms of a final judgment got committed to writing.  Moreover, again as in the African courts, the small claims judges had broad and largely unreviewable authority to impose whatever “law” they saw fit.  In one memorable case that involved a dry cleaner’s liability for a damaged suit, the judge decided to await and abide by the ruling of that august supranational tribunal, the International Fabricare Institute.

Regardless of any methodological preferences or preconceptions we might have had, the absence of written work product forced us—as it had forced Gluckman and Bohannan—to focus on the performance aspects of judging.  Exactly what did the judges say?  Just how did they say it?  What was their non-verbal behavior like?  And a good thing, too: this enforced focus on behavior led us in directions we never would have thought of on our own.  We found a range of judging styles and approaches; in anthropological terms, each courtroom had its own legal culture, created by the judge.  Within these mini-cultures, we found curious echoes of such jurisprudential schools as formalism and realism, as well as applications of the psychological concept of procedural justice.  This is not to say that the judges were consciously enacting these theories, but enacting them they were.

This focus also led to another set of findings, all derived from an initial observation that courtroom interactions are a form of conversation.  (This observation was influenced by an earlier study of British courts, Max Atkinson and Paul Drew’s Order in Court.⁵)  Practitioners of various forms of “ethnomodology” (including conversation analysts, linguistic anthropologists, and the many species of discourse analysts) have long demonstrated that “doing” conversation is an enormously complex social task, one that requires detailed rules.  Moreover, ethnomethodologists argue, these and other things that we think of as social “rules” are not rules in the sense of preexisting principles that need only to be applied.  Rather, they are “phenomena of order,” apparent rules that people “attend to,” and that “emerge” over and over again as people negotiate concrete social situations.  For example, two separate discourse analyses of actual jury deliberations (by Doug Maynard and John Manzo, in 1993,⁶ and Robin Conley and me, this year⁷) have shown, respectively, how principles of justice and standards of proof are produced by jurors in the course of their conversations.  In the small claims courtroom, O’Barr and I saw emergent rules for such judging problems as displaying authority, “doing” due process, showing empathy, and delivering bad news.

But why would these approaches have any relevance for those who study “real” judges?  In a current draft of a paper on the practical impact of “landmark” decisions, Professors George, Gulati, and McGinley⁸ suggest that the crowd divides into two general camps:  the legal scholars, who parse opinions; and the political scientists and their allies, who count and otherwise slice and dice outcomes.  Why might either camp care about methods of studying judging developed while sitting under a tree in Nigeria or in grimy small claims courts around the United States?

Because “real” lawyers and their clients might care.  The most striking observation made by George et al. is that practicing lawyers and judges as well as potentially affected citizens may not define “landmark” in the same way as academics.  In the case that George’s group focused on, what the eggheads expected to be earth-shaking barely registered on the ground.

This leads to a corollary idea more directly related to judging:  practicing lawyers may define “good” and “bad” judges in very different ways than academics.  Law professors tend to praise written opinions that are logically tight, that deal appropriately with precedent, and, most of all, that validate the professors’ policy preferences.  The authors of such opinions are “good” judges.  Similarly, quantitative studies tend to exalt judges who write lots of opinions (some researchers prefer long ones and others short ones), who rarely get reversed, and who get cited often.

But talk to practicing lawyers and you might get a different emphasis.  (I base this generalization on my own six years in full-time practice and 26 as of counsel to a firm and student of the profession.)  First, reversing the priority of their status-conscious academic betters, lawyers may focus more on trial than appellate judges because of per capita impact on their practice.  They are often more interested in how law is administered in their cases than in what law is made in “important” cases.  Second, my guess is that practitioners would identify a much higher proportion of “bad” judges.  If, for instance, one were to rely solely on the testimony of former law clerks now in academia, all federal judges would emerge as hybrids of Oliver Wendell Holmes and St. Thomas More.  But practitioners see some of these same judges as, in varying combinations, lazy, stupid, and mean (to quote my brother, a practicing lawyer).

In identifying “good” judges, practicing lawyers are likely to ask such questions as: How does s/he behave in court?  Does s/he treat lawyers, litigants, and witnesses fairly and courteously?  Can s/he manage a trial competently? Does s/he actually listen or does s/he prejudge things?  Will s/he decide motions in a reasonable period of time, or does s/he ignore them in the hope they’ll go away?  How smart is s/he?

These judicial qualities, I suspect, are very important to those who must live with the judges.  But they do not necessarily emerge from written opinions, nor from aggregations of outcomes.  They would become evident only through an inductive, ethnographic approach to judging that paid particular attention to language.  I wonder what other “phenomena of order” might emerge.  I suspect that important clues to the legitimacy of the legal system might reside in the details of courtroom interactions, and that a significant, “emergent” notion of justice might reveal itself as well.  The point is that, based on anthropology’s experience, including my own, I would not know what hypotheses to test a priori, but would instead expect the unexpected.

An aside: the legitimacy issue was brought home to me when I made my first visit to the European Court of Justice this past summer.  With a group of students, I attended a hearing in a case about import duties (a private company versus the European Commission).    The lawyers argued in German, the judges spoke in French (badly, since none came from France), and I listened alternately in French and English.  The lawyers read prepared remarks and the judges asked no questions; their only utterances were organizational and perfunctory (“We’ll hear now from Herr X”).    Instead, they stared with glazed eyes or flipped through the parties’ written submissions.  I could not imagine what value this presumably expensive exercise had for anyone (except the private-sector lawyer, of course).

After the hearing I discussed it with an ECJ staff lawyer.  I asked, in more polite language, “Why bother with this charade”  I suggested that the court learned nothing and the parties did nothing to advance their cases that couldn’t have been done better in writing.  He didn’t disagree, but said that hearings helped to legitimize the ECJ in the eyes of litigants and, more broadly, to inculcate EU citizenship.  I could not imagine how.  But I thought that if I had been paying closer attention—paying ethnographic attention, as it were—and had a chance to study and restudy my own, linguistic transcript of the hearing, I might have been able to figure out how the court and its constituents were “doing” legitimacy.

All of these considerations lead to the methodological question of how an ethnographer would study “real” judges (federal district judges, let’s say).  One thought might be to collect trial transcripts of cases that had been appealed and do discourse analysis.  That would be interesting.  However, from a sociolinguistic perspective, that would be more a study of transcripts than a study of judicial behavior.  Court reporters perform a subtle kind of interpretation, and their work product is not what a linguist would call a transcript.  Moreover, trial transcripts miss much of what counts as judicial behavior, even in the courtroom.

The only ethnographic solution would be to do what Bohannan and Gluckman did in Africa, and O’Barr and I did in small claims court:  pick some judges, spend days or weeks in detailed observation of their behavior in court (I can’t imagine getting into chambers), tape record it all, and prepare and analyze the detailed, multi-dimensional transcripts that discourse analysts use.  In terms of permission, the watching part would be easy, probably a matter of constitutional right (meddling Institutional Review Boards be damned).  The recording part would require the permission of each judge.  Based on previous experience (in both small claims and, in graduate school, “big” court), some would agree and some wouldn’t.  All would insist on permission from lawyers and litigants.  Perhaps surprisingly, all that I encountered agreed.

Again based on previous experience, it would be a long and demanding project, but by no means undoable.  As models, compare not only my small claims work but Beth Mertz’s 2007 book, The Language of Law School,⁹which analyzed discourse in several first-year law school classes around the country (and, as I think about it, is an excellent illustration of every point I’ve tried to make here).  For the reasons already advanced, I think such a project would be eminently worthwhile, although probably in surprising ways.  I doubt I’ll do it, but I hope someone will.

Reflections on the Conference

Being an anthropologist, I approached the conference itself as an ethnographic opportunity—I don’t know any better.  It was another day among the “natives,” in this case an array of federal and state judges, trial and appellate, and some academics who are interested in studying them.  Two themes stood out.

The first was the sharp distinction between trial and appellate judging.  Trial judges engage in complex conversations.  Many times these conversations are live, oral, and public, as when a judge conducts a trial, a motion argument, or a sentencing hearing.  The judge must not only apply the law in real time, but must also manage the human interaction.  Most trial judges realize that their job in an adversary system is to stay as far in the background as possible while letting the parties produce the trial.  The lawyers are frequently repeat players with whom the judge will have to deal again and again.  This task—“doing trial judging”—strikes me as remarkably challenging, both intellectually and sociologically.  And it must be done while looking over one’s shoulder, since the whole performance is subject to public review, (sometimes unfair) recharacterization, and (sometimes withering) critique.

Appellate judges, by contrast, spend most of their time manipulating written texts.  As they described it at the conference, their work consists largely of reading briefs, memos, cases, and statutes; drafting, circulating, and reading opinions; and attempting to persuade colleagues in written (and, increasingly, electronic) communications.  Live conversations in the form of oral arguments and conferences with colleagues are the exception.  With the exception of the oral arguments, the work of appellate judges is done in privacy and relative anonymity.  When they do perform publicly, they—in contrast to their trial colleagues—are expected to be the stars, interrupting and hectoring the lawyers with questions that sometimes seem intended to show off as much as to focus the arguments.

These functional differences brought home to me the point that studying judging encompasses two quite different projects.  To study the performance of trial judges is to study public behavior and public documents.    It is thus inherently doable, even if extraordinarily labor-intensive.  Appellate judges, however, do most of their work in a secret world that is seemingly impenetrable to ethnographers or others who rely on direct observation. One can study only the judgments and opinions they are required to release to the public; the performance that underlies these carefully crafted documents is immune to scrutiny.

The second observation derives from the first: judges have difficulty being anything but judges, and the trial-appellate distinction carried over into the conference discussion.  The trial judges, by and large, conversed.  They asked and answered questions and seemed eager to have external, scientific perspectives on what and how they are doing.  The appellate judges acted like, well, appellate judges (with apologies to the exceptions).  They monopolized the floor, interrupted, and sometimes went on, and on, and on.  There was nothing unpleasant about this; on the contrary, the whole event was unfailingly cordial. It was just that the appellate judges stayed in courtroom character.  When they discussed their behind-the-scenes work, they saw few problems that were worth studying. They have things under control (aside from the rare colleague who doesn’t work well with others and writes gratuitous dissents).  We academics will never get in, of course, but what would be the point?  (And academic idolatry of federal appellate judges only eggs them on.)

So I came away from the conference with mixed feelings.  Trial judges want to be studied, and there are many ways to do it, with ethnography well-positioned to play a role.  But at the appellate level, it seems that we will be limited to the analysis of outcomes.  As it usually does in legal scholarship, “empirical” will continue to mean “quantitative.”

Acknowledgments:

Copyright © 2010 Duke Law Journal.

John Conley is a professor at the University of North Carolina-Chapel Hill Law School

This symposium asks how we can quantify and evaluate what judges do.  Some of the papers are skeptical of attempts at quantification.¹ These questions are of importance to legal historians, who frequently seek to link judicial behavior to larger cultural, economic, and political trends.  This essay suggests some ways that one might quantify and thus measure an important and central issue for legal historians: how did appellate judges define, work with, and alter the “rule of law”?

A.     Defining the Rule of Law in Antebellum Jurisprudence

In 1856, four years after Uncle Tom’s Cabin,² Harriet Beecher Stowe despaired at the fortunes of the antislavery forces. Though many people throughout the country had wept upon reading of Tom’s death at the hands of Simon Legree at the end of the novel, the abolitionists had seemingly won few converts to their cause. The end of slavery seemed as far away as ever. A majority of politicians, voters, and judges supported the ideas that fugitive slaves must be returned to their owners, that Congress should refrain from interference in the institution of slavery, and that a utilitarian calculus of the costs of abolition and the benefits of slavery favored the continuation of slavery. Especially in the courts, the rhetoric that this nation must uphold the rule of law and return fugitive slaves to their owners—and otherwise support the law of slavery—proved compelling. Stowe wondered why this was: how could people feel the inhumanity of slavery and yet uphold the slave law? Her novel, Dred: A Tale of the Great Dismal Swamp, addressed adherence to the rule of law by judges, politicians, and religious leaders, and thus offered something of an answer.³

One important subplot of Dred derived from North Carolina Supreme Court Justice Thomas Ruffin’s 1829 opinion in State v. Mann.⁴ In that case, Ruffin freed Mann from criminal liability for abusing a slave in his custody.⁵ Yet Ruffin acknowledged that the decision he had made was a hard one. He wrote of the conflict he felt between his feelings and his duty as a magistrate. “The struggle,” Ruffin observed in the first paragraph of the opinion, “in the Judge’s own breast between the feelings of the man, and the duty of the magistrate is a severe one, presenting strong temptation to put aside such questions, if it be possible.”⁶ Yet, he told his readers he had to issue a decision against liability. “[I]t is criminal in a Court to avoid any responsibility which the laws impose. With whatever reluctance therefore it is done, the Court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North-Carolina.”⁷ Ruffin emphasized that the master (or possessor in this case—Mann had rented the slave he abused) must have uncontrolled authority over the body of the slave. “The power of the master must be absolute, to render the submission of the slave perfect,” Ruffin grimly observed.⁸

Judge Ruffin’s honesty caught the attention of Stowe and of other abolitionists, too, for they realized that Ruffin had exposed the difficult truth at the heart of the law of slavery. And they exploited Ruffin’s honesty. Stowe wrote in 1853, in the nonfiction A Key to Uncle Tom’s Cabin, that she was sorry that “such a man, with such a mind, should have been merely an expositor and not a reformer of law.”⁹ She came to the conclusion that Ruffin was not a reformer because judges followed legal logic: “[i]t is often and evidently not because judges are inhuman or partial but because they are logical and truthful, that they announce from the bench in the calmest manner, decisions which one would think might make the earth shudder and the sun turn pale.”¹⁰ It was the cold logic that led to so many perverse conclusions: “Every act of humanity of every individual owner is an illogical result from the legal definition . . . . The decisions of American law-books show nothing so much as this severe, unflinching accuracy of logic.”¹¹

Stowe explored this adherence to legal logic in more depth in Dred. In that novel, she constructed a fictional judge, Justice Clayton of the North Carolina Supreme Court, who was antislavery in private, yet issued a proslavery decision.¹² The decision Stowe put into the fictional Justice Clayton’s hands almost exactly replicated the text of State v. Mann. The morning before Justice Clayton issued his decision, he spoke with his wife about it. When she asked why he was ruling in favor of the abuser, he said “[a] Judge can only perceive and declare. What I see, I must speak, though it go against all my feelings and all my sense of right.”¹³ Although antislavery advocates were unhappy retreating to the terms of legalist logic, this behavior was a recurring theme of the antebellum judiciary.¹⁴

Stowe seemed perfectly willing to concede that there is something of a common-law method of legal logic and that applying that logic—which included a utilitarian calculus of the costs and benefits of a rule that protected slaves against abuse—yielded proslavery results. Proslavery literature often advocated such analysis. For instance, Thomas R.R. Cobb’s An Inquiry into the Law of Negro Slavery¹⁵ combined two lines of thought. First, a historical interpretation of slavery made it seem close to universal and also humane. For instance, Cobb argued that enslaved people produced more and often led better lives than free workers. Under Cobb’s worldview, slavery was better for the slaves, as well as their owners. The second line of thought held that judges should decide cases according to principles of logic and law, which he believed were distinct from passions favoring slaves. Those principles were based often on the seeming ubiquity of slavery and on its purported utility as well. There was a strong sense, even among abolitionists, that the law was proslavery and that abiding by the rule of law would yield a proslavery result.¹⁶

Yet others interpreted the meaning of “the law” differently. They did not think that the law was so firmly proslavery as did Ruffin or Cobb. For instance, Ralph Waldo Emerson’s 1852 speech in Concord, Massachusetts against the Fugitive Slave Act of 1850 expressed surprise at the number of law books that seemed to contemplate introducing natural justice—what was commonly called at that time the “higher law.” Emerson read the legal literature as supporting—rather than opposing—a doctrine of “higher law,” which had been so heavily criticized by legal thinkers:

A few months ago, in my dismay at hearing that the Higher Law was reckoned a good joke in the courts, I took pains to look into a few law-books. I had often heard that the Bible constituted a part of every technical law library, and that it was a principle in law that immoral laws are void.

I found, accordingly, that the great jurists, Cicero, Grotius, Coke, Blackstone, Burlamaqui, Montesquieu, Vattel, Burke, Mackintosh, Jefferson, do all affirm this. I have no intention to recite these passages I had marked: such citation indeed seems to be something cowardly (for no reasonable person needs a quotation from Blackstone to convince him that white cannot be legislated to be black), and shall content myself with reading a single passage. Blackstone admits the sovereignty “antecedent to any positive precept, of the law of Nature,” among whose principles are, “that we should live on, should hurt nobody, and should render unto every one his due,” etc. “No human laws are of any validity, if contrary to this.” “Nay, if any human law should allow or enjoin us to commit a crime” (his instance is murder), “we are bound to transgress that human law; or else we must offend both the natural and divine.”¹⁷

Out of these conflicting viewpoints emerged serious discussion of what “the rule of law” meant and the origins of law in positive legislation, in the long-term customs of people around the world, and in natural moral sense. Despite the frequent invocations of it by judges, we still have a difficult time deciding whether a decision represents the rule of law—or something else, like the rule of sentiment.

Among legal historians in particular, there has been surprisingly little consideration of the quantifiable aspects of the question of just what “the rule of law” means and how to measure whether judges adhere to the rule of law. Yet some of the key questions that legal historians have asked about judges’ behavior are susceptible to quantitative exploration. In particular, I am interested in how to measure what “the rule of law” means and in how expressions of ideology may be measured in judicial opinions. I will discuss below several examples of how to begin to do this.

II.
Assessing Judges: History’s Methods

Legal historians frequently view judges as dependent variables—as gauges of larger intellectual and cultural movements, or, alternatively and more rarely, as gauges of how cultural movements do not penetrate law. Perhaps because legal historians have focused so much attention on law as an artifact of culture (Lawrence Friedman’s American Law in the 20th Century¹⁸ comes to mind here), they have had relatively little concern for the assessment of whether judges are good at what they do. Thus, instead of focusing on judges as autonomous individuals, they analyze judges’ output as it is affected by external factors, like ideology, culture, and economy.

In some models, judges (and judges’ opinions) may be the vehicles for implementing changes impelled by economic and cultural thought. One tradition sees judges as reshaping law to promote positive economic results.¹⁹ Some of Richard Posner’s earliest work, in which judges are more or less fungible, provided a quantitative assessment of the changes in nineteenth-century tort law.²⁰ The same is true for more recent work in economic history, like Jenny Wahl’s The Bondsman’s Burden: An Economic Analysis of the Common Law of Southern Slavery,²¹ which treats judges as a homogeneous group as it reveals the economic orientation underlying Southern law across forty years of opinions.

In each of those instances, there is an account of judges remaking the law. But there is no sense of whether they have made those changes according to the rule of law or on an ad hoc basis. Nor is it clear which judges do this well and which poorly: even when judges are the independent variables who remake law to promote economic growth, we have little sense of judges themselves—they do not emerge as individual actors. Instead, the judiciary appears as an undifferentiated group of men. One can read for pages in Professor Morton Horwitz’s Transformation²² and in Professor William Novak’s The People’s Welfare,²³both books centered on common-law adjudication, without seeing the name of any judge. Judges, despite their differing political and religious orientations, and their differing skills and training, are seemingly interchangeable.

Historians have sometimes looked closely at what judges contribute as independent actors, though even in these instances the picture often emerges that judges are vehicles for expression of their culture. We hear about individual judges through biographies, which are the legal historians’ form of “thick description.” Yet such a massive work of judicial biography as Professor Kent Newmyer’s Supreme Court Justice Joseph Story²⁴—brilliant legal history as it is—threatens to lose the larger story in the details of individual cases and arguments around them. Thick descriptions may, nevertheless, help provide a reasonable level of generalization about how judges reason.²⁵ For example, Judge Posner’s jurisprudential biography of Justice Benjamin Cardozo²⁶ and Richard Polenberg’s Cardozo biography²⁷ focus on Cardozo’s ideas without getting lost in so much detail of the lives of judges. Along those lines, collective biographies, like Professor G. Edward White’s The American Judicial Tradition and, more recently, Professor Timothy Huebner’s Southern Judicial Tradition, employ a similar methodology that focuses on ideas in opinions.²⁸

While one is talking about “thick description” and analysis of judges in history, one book stands out.  Among the leading legal-history studies of the last several decades that deal with judges and judicial methods is Professor G. Edward White’s Marshall Court and Cultural Change.²⁹ It links the decisions of the Marshall Court to larger trends in American culture, which emphasized the value of the union and the promotion of economic growth. White views Marshall’s opinions as important supports for those missions.  He does this through a comparison of Marshall’s opinions with other key cultural expressions, such as James Fenimore Cooper’s novels³⁰ The question remains, though, whether there are some quantitative tools that scholars can employ to bring more precision to judicial decision-making.

III.
Assessing Judges: Quantitative Methods

Because of the nature of questions that legal historians have asked in recent years, they have rarely made wide-ranging assessments of judges’ quality or of their adherence to key principles, like the rule of law (or even what people might mean by it). Perhaps, though, a systematic, quantitative approach can bring more precision to the two key issues: how judges operate (that is, how they find and use precedent, and how they write opinions) and what determines (or at least correlates with) outcomes.³¹

Maybe we can begin to understand and measure the quality of judges with some assessment of their peers’ assessments (in part by citations and maybe also by how often they are mentioned by name in opinions). Or we may look to the energy judges expended on their jobs: in terms of the number of opinions they write; their longevity on the court; the length of their opinions; and the number of their concurrences and dissents.³²

Further, one might look to their learning and aspirations: what cases they cite, how far afield to they look for sources of law, how often they reach beyond their own jurisdiction’s opinions. One might even consider whether they look to other countries’ opinions, or beyond readily available treatises, and even to non-legal sources. There are other ways to try to tease out judges’ aspirations, such as how often they use key phrases. A search for these phrases might reveal examples of judges’ creativity in language. For instance, a search for “Daguerreotype” (an early form of photography) reveals how quickly mid-nineteenth-century judges adopted allusions to the new technologies of their era—to light, darkness, and natural right.
³³

There are, yet, some finer distinctions a quantitative legal history might make in terms of assessing the project of judging. As the vignette with which I began this Essay illustrates, persistent questions remain about what it means to judge according to the rule of law. And so I would like to see some quantitative precision brought to the exploration of whether judges abide by the rule of law.

I would like to suggest two places in particular that we might attempt to bring quantitative precision to understand the meaning of “the rule of law.” First, I hope to return to Professor Robert Cover’s ground: of judges who interpreted the proslavery nature of the common law and the Constitution. Cover’s key question in Justice Accused: Anti-Slavery and the Judicial Process³⁴ was why judges who were antislavery in private issued proslavery opinions. The answer turns on a constellation of arguments, which the judges themselves advanced, about the meaning of the Constitution and about the utility of a proslavery interpretation to the preservation of the Union. These arguments appeared in Fugitive Slave Act cases, as well as in state cases interpreting the rights of enslaved people who traveled with their owners to free states and then back into slave states, and in cases interpreting slaveowners’ wills that attempted to free their enslaved property.  We need to graph them over time: how frequently were they invoked, how central were they to the result, and which opinions were subsequently cited? Moreover, what are the geographic, temporal, and factual determinants of a conclusion that the utility of slavery trumped considerations of the humanity of individual slaves? That is, in what states and when did judges refer to the utility of slavery?  In what kinds of cases did they reference the utility of slavery?  This would bring greater precision to what judges meant by “the rule of law” in fugitive-slave cases.

Second, I suggest matching the reasoning styles of judges across similar cases at a similar time as a more ambitious piece of a project to quantitatively gauge the ways that political ideology linked to judicial opinions.³⁵ For example, William W. Fisher has suggested that Whig political theory predominated in vested-rights cases in the years between the Revolution and the Civil War.³⁶ To investigate this claim, one could compare the political affiliations of judges against the appearance of Whig or Democrat doctrine in their opinions. Whigs, for instance, viewed expansively the contracts that corporations made with the government and argued that an expansive contracts-clause jurisprudence was necessary to protect investments in corporations and encourage technological and financial progress.³⁷ Democrats, by contrast, invoked arguments about the inalienability of certain governmental powers, like the right of eminent domain. Particularly helpful are cases in which there are dissents, which highlight the disjunction between reasoning styles.³⁸

There are two things to focus on in this analysis of Whig and Democrat judges. First, we need to look at the reasoning styles of judges, not just the outcomes. And, closely related to that, we need to develop systematic ways of measuring rhetoric in judicial opinions to assess reasoning styles. This may bring more precision to judicial reasoning styles than a “yes/no”, or “agreement/disagreement” variable.

A lot of data is buried in the hundreds of volumes of state and federal case reports before the Civil War.  It is awaiting the systematic study made possible by quantitative methods. For instance, although there are some prominent Whig jurists—Justice Joseph Story and Judge Lemuel Shaw come to mind—a systematic study may provide a sense of how much the political doctrine of one party appears in the reasoning of the adherents of the other party.   A systematic study may provide a better understanding of whether there was a unified judicial mind on such a critical and highly contentious area as vested rights.   Did Democrats and Whigs largely think alike on vested rights, or, as one might expect from studying the statements of Democrat and Whig politicians, did they think differently? One way to approach this question is to look at several vested-rights opinions that were decided by Southern state supreme courts almost simultaneously during the Civil War. In 1864, the Confederate Congress passed a statute that made men who had already provided a substitute for military service subject to the draft. The statute was challenged in several states as a violation of the property rights of the men who provided substitutes. Five state supreme courts issued nearly simultaneous opinions on this issue.  All upheld the statute; only one judge dissented. Those opinions contain recurrent issues of law, economics, and politics, and they provide a view of how Democrat judges reasoned differently from Whig judges. The Democrats were more comfortable retreating to arguments about the state’s power to compel service than were the Whigs, who took narrower approaches to the question and narrowly construed the initial “contract.”³⁹

Some important quantitative work of this kind has been done already by those looking at judges’ use of economic analysis in the nineteenth century.⁴⁰ A substantial body of work already considers whether judges self-consciously seek economic efficiency (or utility, to use the parlance of the antebellum United States). But my hope is to look more quantitatively across a spectrum of decisions to answer the question: to what extent was the “rule of law” understood to be a stable or a dynamic construct? It is an issue of identifying facets that can be quantified and aggregated so that we can have a fuller picture of a very complex system of thought and action. As we begin to understand how judges thought, perhaps that can illuminate “how judges think.”

Acknowledgments:

Copyright © 2010 Duke University Law Journal.

Alfred L. Brophy is the Reef C. Ivey II Professor of Law at University of North Carolina. I would like to thank the participants in Duke Law School’s Evaluating Judging, Judges, and Judicial Institutions conference for their assistance with these thoughts, especially Mitu Gulati, David Klein, and David Levi. Contact the author at abrophy@email.unc.edu or 919.962.4128.

One kind of empirical study of judicial decisionmaking might be regarded as continuous with the broader goal of social science, which I take to be something like understanding human behavior in general. I see the ultimate aim of this sort of empirical inquiry as developing a theory that explains and predicts judicial decisionmaking in roughly the same way a psychological theory might seek to explain and predict other observed phenomena of human behavior, such as the tendency to obey authority. Just as a successful psychological theory of obedience might, among other things, identify the conditions that explain why and predict whether a given subject will obey an order given by an authority figure in a particular context (for example, personal characteristics of the subject, the subject’s relation to the authority figure, the nature of the order, and its expected consequences), one might likewise consider an empirical theory of judging in this vein successful if it allows particular conditions to be identified—for example, political ideology, characteristics of the litigants, particular features of a case’s history, or the provenance of relevant precedent—that explain and predict judicial outcomes.³

Within this broadly defined empirical project of explaining and predicting judicial decisionmaking as human social behavior—one might call it the project of “naturalizing jurisprudence”⁴—there are multiple theoretical perspectives that might be relevant. A single type of observed judicial decisionmaking might be understood simultaneously through the frameworks of sociology, political science, social psychology, cognitive psychology, and perhaps even neuropsychology. Whether or how all these empirical perspectives might be integrated remains unclear. Presumably, a grand unified theory of judicial decisionmaking is no more and no less likely than a grand unified theory of human behavior in general. All of these scientific perspectives may be viewed as having one common, general aim: they seek to provide causal explanations of judicial decisions—theories that identify the causal predicates of observed decisions and do so with predictive power.⁵

A second type of empirical study of judicial performance seems quite different in its basic aim from the project of naturalizing jurisprudence. The goal of this second type of study might broadly be described as identifying quantified measures of good judicial performance—for example, citation counts, dissent rates, and productivity—that can be used to assess and even rank the quality of sitting judges, judicial candidates, and courts. This type of undertaking can be seen as a way of compiling otherwise inaccessible information that would presumably be of significant value to public officials, the citizenry, and judges themselves in evaluating and monitoring judicial performance. Public ratings of judges and courts based on this information might have the added desirable effect of sussing out the opaque criteria that various political actors use to champion particular judges or candidates, insofar as those ratings would exert pressure on such actors to give public explanations supporting any low-rated candidates they seek to promote.⁶

What is the relationship between these two empirical projects of naturalizing jurisprudence and of measuring judicial performance? One possibility is that the need for objective measures of judicial performance is a function of the current infancy of the science of identifying the causes of judicial decisions. That is, objective measures that serve as proxies for judicial quality are only necessary because of the lack robust theories that would predict how a particular sort of judge would likely decide a particular sort of case. If such a theory existed, there would be no point in trying to develop any general measure of judicial quality.

An example may help draw out the intuitive appeal of this conjecture. Suppose one could prove that in any case possessing the set of features F, involving a party with characteristics P, a second party with characteristics D, and given additional specifiable conditions C, a judge with a set of characteristics J will always decide the case in a way that is favorable to the party with characteristics P, whereas a judge lacking J will always decide against that party. One might argue that this postulate, if true, would undermine the relevance of any generic notion of judicial quality—apart from whatever constitutes J characteristics—in the context of cases with features F. If one could predict how any particular judge would decide this type of case, there would be no need for further information about the judge’s qualities, at least in that limited context. And if analogous predictions could be made with respect to cases with features F1, F2, and so on, and judges with characteristics J1, J2, and so on, there would be no more reason to care about measuring judicial quality in the context of those cases. Thus, the more progress empiricists make in the project of reducing judicial decisionmaking to its natural causes, the less relevance any project of measuring judicial performance will have.

One might argue, in other words, that judicial quality matters because better judges presumably will make better decisions. But if it were possible to predict judicial decisions in the manner postulated, then no one would have reason to care about generic measures of judicial performance. There would be no reason to fret over proxy measures of good judicial decisionmaking if social science could deliver a theory that directly predicts how a particular judge or candidate would decide particular kinds of cases.

I believe that this argument should be rejected. This argument’s fallacy involves its reliance on the implicit assumption that empirical measures of judicial performance are, at their core, nothing more than an indirect attempt to accomplish one of the goals of the project of naturalizing jurisprudence—namely, developing a theory with the power to predict the outcome of judicial decisions on the basis of specifiable causal predicates. But the project of measuring judicial performance need not be assimilated to that of theorizing the causes of judicial decisions. Rather, the project is fundamentally normative and evaluative in character. The basic question is not about the causes of decisions, but about what makes a good judge, or what constitute the basic virtues of a good judge.⁷ Whereas the naturalizing project seeks to provide causal explanations for judicial behavior in a manner continuous with social science, the empirical study of judicial performance seeks to make explicit and then reduce to numbers our value judgments about the relative merits of selected characteristics of judicial performance. The ultimate test of a causal theory is its explanatory and predictive power. The test of a measure of judicial performance is ultimately the normative plausibility of its embedded value judgments about the core virtues of a judge and how well it captures those judgments.⁸ The two projects have incommensurable aims.

There are, however, some important caveats. I do not deny the potential relevance of the findings of naturalized jurisprudence to the project of measuring judicial performance. For example, some observers might think that any evaluation of judicial performance should incorporate criteria that capture something like political independence or capacity for “nonideological” decisionmaking.⁹ But what if there were empirical evidence that indisputably established that, as a matter of fact, political affiliation almost always predicts judicial outcomes in certain types of cases? I suspect that if that were the case, there would be reason to doubt whether criteria aimed at measuring political independence could possibly capture anything meaningful. Standards of judicial quality must be tempered by contemporary knowledge regarding the limits of human psychology. This is a consequence of the basic moral premise that “ought” at least in some sense implies “can.” To that extent, the study of the causes of judicial behavior is potentially relevant to the project of measuring judicial quality. My point is not to deny this possible point of congruence, but rather to emphasize that society’s concept of a good judge is not simply given by how most judges in fact tend to behave. Findings in the science of judicial behavior cannot themselves determine the normative standards by which judges should be measured and evaluated. This is a consequence of another basic moral premise, namely, that “is” does not imply “ought.”

The other caveat is that my remarks assume that it is possible to construct a model of a good judge that is at least to some degree independent of considered preferences relating to case outcomes. This assumption means, among other things, that a judgment about whether a particular individual would make a good judge is not simply reducible to a set of predictions about the outcomes of cases that would come before that individual. But what if one were to reject this assumption? What if the concept of a good judge that best reflected societal and legal norms did in fact turn out to be nothing more than a reflection of collective preferences about case outcomes?¹⁰ In that case, I do think that measures of judicial performance that captured the concept might be collapsible into predictions of judicial behavior. That is, if society’s notion of a good judge turns out to be nothing more than a set of predictions about the likelihood of a judge’s reaching particular outcomes in particular cases, then measures of judicial performance would be nothing more than proxy predictions about what judges would probably do in such cases. It might follow, then, that my claim—that the project of measuring judicial performance is fundamentally distinct from the project of determining the causes of judicial decisions—depends on the defensibility of a particular kind of concept of a good judge, namely, one that is not tied to the desirability of specific outcomes in particular cases.

I do not think that this conclusion does, in fact, follow. Even if this sort of cynicism about the concept of a good judge were warranted, I believe that the project of naturalizing jurisprudence would still remain fundamentally different from the project of quantifying judicial performance, because the latter is essentially a normative endeavor in a way that the former is not. Even if every theorized measure of judicial performance turned out to be nothing more than an elliptical predictor of a particular set of case outcomes, every theorist’s proposed measure of judicial performance would still be answerable to questions about its underlying normative conception of a good judge. Empirical theories about the causes of judicial decisions need not answer these questions.

Pretend, for example, that one could show that measures of judicial performance that depend on citation counts tend to highly rank judges who are more likely to invalidate legislation in federal constitutional cases. If that were true, then commentators might observe that these performance measures are empirically reducible to predictors of how judges will decide those kinds of constitutional cases. This finding would not, however, undermine my central argument, which is that the project of empirically measuring judicial performance, in contrast to the project of identifying the causes of judicial decisions, is fundamentally normative. The discovery of a sufficiently tight predictive correlation between citation counts and a disposition to invalidate legislation might support a claim that any interest in the former as a measure of judicial quality is really nothing more than an indicator of a preference for the latter outcome. But the question that this discovery would not and could not answer is whether anyone should therefore stop using the citation count measure as a benchmark for judicial performance. Arriving at an answer would require normative discussion about principles of judicial evaluation—principles that specify why certain considerations should count as legitimate reasons for or against appointing someone as a judge. Any given measure of performance may collapse into a prediction about substantive case outcomes. This possibility does not show, however, that the measurement project itself collapses into a predictive one. Whatever an empirical theory of judicial performance might in fact be measuring, it must always answer one normative question that a purely predictive one need not answer: should the measures in question form the basis for evaluating judges? For this reason, the project of measuring judicial performance is inescapably normative in a way that the goal of naturalizing jurisprudence is not.

Studies of judicial performance that seek to determine judicial quality by quantitative measures (such as citation count) will ultimately stand or fall on the strength of the normative reasons that can be marshaled for valuing as judges the kind of individuals who do well on those measures. Empirical measures of judicial performance ultimately depend on normative claims about what it means for someone to be a good judge, and the strength of any proposed empirical measure is necessarily a direct function of the strength of the justification of those normative claims. Theories about the causes of judicial performance do not depend on these justifications. And no purely empirical project can supply those justifications. That is a task for normative, not empirical, inquiry.

Acknowledgments:

Copyright © 2010 Duke University.

Patrick S. Shin is an Associate Professor at Suffolk University Law School

Larry Alexander and I have written at some length about the function of rules in legal decisionmaking.¹ Briefly, we argue that, from the central perspective of someone designing a legal system, it is desirable that at least some range of legal disputes be governed by general, determinate rules, and that these rules be treated as authoritative. To treat a rule as authoritative is to follow it in all cases that fall within its terms, without further analysis of the underlying purpose or rationale that motivated the rulemaker to announce the rule. From a systemic perspective, authoritative rules are attractive for several reasons. Rules, if they are generally obeyed, can help their subjects avoid errors and biases that distort case-by-case judgment. Rules can also provide coordination if all or most subjects treat them as authoritative. Individuals can act more effectively if they know what others are likely to do, and an authoritative rule makes it possible to predict others’ conduct in situations governed by the rule.

At the same time, the generality of rules often leads to overinclusiveness in application. As a result, rules will sometimes prescribe outcomes that are wrong, judged by the rules’ own purpose or rationale. Yet the overinclusiveness of rules does not alter the conclusion that rules function most effectively when treated as authoritative. If a rule is well designed—that is, if the rule will prevent more errors overall than it will cause through overinclusiveness—then it is best, from the perspective of the system designer, that those who are subject to the rule follow it in every case to which it applies.²

The difficulty with authoritative rules is that it is not at all clear how rational subjects can treat rules as authoritative. If a rule appears to give the wrong answer in a particular case, the rational choice is to disobey. The subject may understand that rules prevent errors of judgment, but if the subject also understands that rules are overinclusive, the subject may nevertheless conclude that his judgment is correct. The subject may also understand the coordination value of rules, and yet conclude that the error that will result from following a rule in a particular case outweighs the loss of coordination that will result from a single act of disobedience. In each case, the subject may be wrong, but this does not make it subjectively rational to follow the rule.³ The consequence is an unbridgeable gap between the perspective of those who oversee the legal system and the perspective of those subject to the system’s rules.

Judges occupy two positions in this account of legal rules. First, they act as rulemakers. Judicial opinions often contain prescriptive statements that are determinative enough to count as rules and are intended to serve as decisional standards in future cases. Assuming the rules are well designed in the sense described above (assuming, that is, that the rules will prevent more errors than they generate over the long run), the legal system will benefit if future judges, as well as future actors, treat them as authoritative: judicial rules, no less than legislative rules, can reduce errors and provide coordination.

In addition to serving as rulemakers, judges also apply rules to the cases litigants bring to court. When judges apply rules, their perspective is similar to that of rule subjects. If a judge is persuaded that the governing rule provides the wrong answer (as indicated by the rule’s underlying rationale) in a particular case, applying the rule will seem both irrational and unfair. Moreover, the judge may find it difficult to give due recognition to the long-term advantages of the rule, because the judge’s attention is focused on the specific facts of the case.

This view of rules and the roles they play in judicial decisionmaking leads to a number of empirical questions about how judges respond to rules. The most basic question is whether judges treat rules as authoritative. Do judges apply rules only when they are persuaded that the outcome of the rule in the case at hand is consistent with the rule’s purpose or rationale (or is correct, all things considered)? If so, the answer to the basic question is no; rules have no real consequences for adjudication, and the various Legal Realist speculations about what drives judicial decisionmaking come into play.

Assuming that judges sometimes do follow rules simply because they are the rules of the system, the next question is how deeply judges are committed (or how thoroughly they are habituated) to following rules. Do judges follow rules without reflection only when the purpose or rationale of the rule has not been brought to their attention? Do they refuse to consult the rationale or purpose of an established rule if the terms of the rule apply uncontroversially to the case at hand? Do they also follow rules in conscious disregard of the rule’s purpose or rationale, when the rule’s purpose or rationale appears to conflict with the result it prescribes?

If the answer is that judges who follow rules do treat the rules as authoritative against their own best judgment about what outcome is best, subsidiary questions arise about the conditions under which judges are willing to suspend judgment and follow rules. For example, the rule in question may be defective, in the sense that it generates more errors than it prevents overall. Alternatively, the rule may be sound, in that it prevents more errors than it generates overall, and yet misfire in a particular case. Here, the question for investigation is whether differences in the overall quality of the rule affect the level of judicial obedience to the rule.

Another subsidiary question is whether differences in the vividness of the facts presented for adjudication affect judges’ responses to precedent rules. Here, the variable is not the quality of the rule, but the salience or affective impact of a seemingly wrong outcome required by the rule.⁴ The question for investigation is whether judges approach rules consistently in different factual settings, or, alternatively, whether their treatment of rules varies according to the exigencies of particular cases.

These questions are obviously hard to answer. Written opinions may provide some evidence of judges’ attitudes toward rules, but only when judges perceive the dilemma of rule-following and also have reason to discuss it in the course of explaining their decisions. This set of circumstances may be rare; in any event, opinions that directly address rule-following are not likely to yield a representative sample of judicial responses to rules.

A more promising approach might be to conduct controlled experimental studies on judicial subjects. The logistics of this form of research are daunting, but work by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich suggests that it can be done.⁵ As an illustration, consider the following stylized example. (Many refinements would be needed to produce a workable test.) A group of judges is presented with a problem case. The defendant is a retired veterinarian who has just moved to a new neighborhood. In his backyard, he keeps a pet giraffe. The defendant treats the animal well and provides it with ample space. The giraffe is a quiet animal with no violent tendencies, and it has no negative sensory effects on neighbors. The defendant kept the giraffe for several years in another state without incident or complaint. Neighbors have sued, claiming the giraffe is a nuisance and requesting an order requiring the defendant to remove it from the neighborhood.

To capture variations in legal rules, some judges might be told that prior cases establish that keeping a wild animal in a residential neighborhood is a nuisance per se. This is, presumably, a sound rule—over the long run, it will tend to prevent harm and offense, though it may sometimes result in the elimination of unobjectionable pets, such as the defendant’s giraffe. Other judges might be told that prior cases establish that keeping a large animal in a residential neighborhood is a nuisance per se. This rule looks too broad: it may do more harm than good over the range of cases to which it applies. Judicial subjects would be asked to decide the case and possibly to comment on the outcome. A significant number of decisions in the plaintiffs’ favor might suggest that rules influenced the judges’ decisions, particularly if the judges signified discomfort with the outcome of the case. If results were roughly the same for both versions of the problem, the inclination to follow rules would seem impervious to the quality of the rule. If, however, outcomes varied according to the version of the precedent rule presented to  judges, this would suggest that judges deciding whether to follow rules are likely to discriminate according to the quality of the precedent rule.

The facts of the experimental problem could also be varied to detect the influence of vivid facts. For example, some judges might not be given any personal information about the defendant; others might be told that the defendant rescued the giraffe from sordid conditions in a private zoo. In this case, variation in decisions would indicate that judges deciding whether to follow rules discriminate according to the salience of the factual consequences of applying the rule.

A second set of questions relates to the role of judges as rulemakers. Frederick Schauer has suggested, very plausibly, that the quality of judicial rules may suffer as a result of the adjudicatory context in which judges work.⁶ In particular, a judge focused on the salient features of a litigated case may adopt a rule that responds to those features, without adequately considering the effects of the rule in other cases that fall within its terms. The judge may assume, in other words, that the present case is more typical than it is—more representative, as a cognitive psychologist might say—of cases governed by the rule. A tame and odorless giraffe, for example, might not typify wild animals kept as pets.  If so, the rule is likely to prove unsatisfactory over time.

The initial question is whether Professor Schauer’s suggestion—that judicial rules may be adversely affected by the adjudicatory setting from which they emerge—is correct. If so, a further question is whether certain features of the judicial process can help avoid or decrease the distorting effects of vivid facts. For example, are judges less likely to err in their choice of rules when the parties present them with an array of purportedly analogous cases that might arise under a proposed rule?⁷

It is surely possible to find examples of this pattern in decided cases, but decided cases are unlikely to provide a systematic overview of the problem. Again, the most promising alternative is probably experimental. Judges might be given the facts of a case together with a selection of proposed decisional rules, the overall quality of which varies inversely with the attractiveness of their outcomes in the case at hand.

Empirical information about judicial responses to rules would be of great utility in studying the judicial process. Obtaining reliable information would, of course, require tremendous empirical ingenuity: designing effective problems is a challenge. Eliciting a serious but candid response from judges is an even greater challenge: judges must somehow be enticed to do what they ordinarily do, without too much reflection on the nature of the exercise. Fortunately, the objective of this short Essay is only to identify the types of information that would be most helpful to theorists interested in decisionmaking in a regime of legal rules.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Emily Sherwin is a professor at Cornell Law School.

Some of the discussions at the Symposium highlighted an area where academics’ perceptions of judging conflict with judges’ actual experiences. Judges and academics view the significance of judicial dissents quite differently. Whereas many of the judges believe that dissents primarily reflect the level of cohesiveness and collegiality of the court, academics typically place much more significance on the meaning of judicial dissents. For example, recent academic studies have asserted that judicial dissents often reveal the influence of judges’ retention concerns,¹ the level of judges’ independence,² or certain judges’ higher propensity for risk taking.³

In contrast, many judges at the Symposium considered academics’ emphasis on judicial dissents to be misguided. The judges maintained that dissents reveal less about judges’ retention concerns, impartiality, or risk preferences, and more about the culture of collegiality on the court. Many of the judges believe that dissents primarily reflect the level of cohesiveness among judges, and that various factors and institutions influence this cohesiveness. For example, they explained that the personal relationships, amount of professional and social interaction, and diversity among judges on a court might influence the level of dissent. Many of the judges hypothesized that courts that are more collegial, either because the judges are better friends or share more common values or backgrounds, should have lower dissent rates. Judges on these courts should be less likely to openly criticize the opinions of their colleagues by dissenting.

Although academics have long recognized that institutions such as opinion-assignment procedures and voting order might influence the propensity to dissent,⁴ empirical studies have failed to consider the impact of collegiality and personal relationships on dissent rates. Thus, in this short Essay, I empirically test whether some of the judges’ assertions are consistent with the data. I test whether various measures of diversity are associated with dissent rates in state supreme courts. I find that diversity in many areas—gender, race, age, religion, home state, and political affiliation—is associated with higher levels of dissent. In contrast, diversity in the jobs that judges had before taking the bench is associated with lower dissent rates.⁵

I also test whether the length of time judges have served on the court is associated with dissent rates. Presumably, judges that have served on a court together for many years would have stronger friendships than newer judges, and thus may be more collegial and less likely to dissent. However, my empirical analysis finds the opposite: the greater the number of judges with lengthy tenures on the court, the higher the dissent rate.

Empirical Analysis

To test the influence of diversity and tenure on judges’ propensity to dissent, I use data from the State Supreme Court Data Archive. This data includes an almost universal sample of state supreme court cases in all fifty states from 1995 to 1998. The data include more than twenty-eight thousand decisions involving more than 470 individual state supreme court justices.⁶ The data include variables that reflect case histories, case participants, legal issues, case outcomes, and individual justices’ behavior. I supplemented these data with institutional variables that describe aspects of each state’s judicial system, and with detailed information about each judge’s personal characteristics, background, and career.

Thus, my data consist of individual judge-level votes in each case before the state supreme courts. I use an ordinary probit model to test whether diversity and tenure on a court influence judges’ likelihood of dissenting. The dependent variable in my estimation is an indicator variable for whether an individual judge casts a dissenting vote in each case.

My estimation includes several measures of the diversity of judges’ personal characteristics and backgrounds on each court. I measure the diversity of each personal characteristic on each court with an index that is essentially one minus a Herfindahl index of each characteristic:⁷

Diversity of personal characteristic = 1 − _j (# of judges of each type j / total # of judges)².

For example, diversity along the racial dimension would be measured with:

Diversity of race = 1 − _j (# of judges of each race j / total # of judges)², where j = [White, African American, Asian, Hispanic, and other].

The diversity measure ranges from zero, when the court is composed of judges of only one “type” (that is, race), to one, when each type is represented equally on the court. Thus, increases in this measure indicate an increase in diversity on the court.⁸

I include variables that measure diversity along several different dimensions: gender, race (White, African American, Asian, Hispanic, and other), age (under 45, 46 to 55, 56 to 65, and over 65), religion (Protestant, Catholic, Jewish, Greek Orthodox, Mormon, and other), home state (from the state where the court is located or from another state), political party affiliation (Republican, Democrat, or Independent), and job held before taking the bench (prosecutor, attorney general, elected official, lower-court judge, or nonelected official).

I also include two variables that represent judges’ tenure on the court. I include the percentage of judges on each court that have served for one year or less; presumably, these judges have not served long enough to develop strong personal relationships with other judges. I also include the percentage of judges on each court that have served for six years or more; if these judges have developed stronger friendships, they may be more collegial and less likely to dissent.

In addition to the diversity and tenure variables, the estimations include a series of judge-level, case-level, and state-level variables that might be related to judges’ propensity to cast dissenting votes. The judge-level variables include an indicator for whether a particular judge is the chief justice on the court, and a variable indicating the number of years until the judge’s next retention.⁹ These variables control for voting changes throughout a judge’s career and term.

All estimations also include various case-level variables that may be related to dissenting votes. First, I include indicator variables for whether a case is a criminal case, a juvenile case, a civil case involving the state government, or a civil case involving private individuals. Thus, the base category is nonadversarial cases, such as cases involving certification and advisory opinions. Finally, I include indicator variables for whether at least one litigant is a business, a person, or a representative of the state government.  These indicator variables control for any relationship between dissent rates and the litigants or legal issues in a case.

Next, I include various state-level characteristics that have been found to be related to dissenting votes. First, I include an indicator variable for whether judges in the state face reelection by the voters. In a previous study, I found empirical results suggesting that judges’ reelection concerns are important influences on their propensity to cast dissenting votes.¹⁰

I also include a variable that indicates whether the state has a lower appellate court, and thus, whether the court has discretionary review to hear cases. Numerous studies report that the presence of an intermediate appellate court increases dissent rates, suggesting that discretionary dockets facilitate the expression of dissent.¹¹

The state-level variables also include indicator variables for whether a court utilizes a random opinion-assignment procedure instead of a discretionary procedure, and whether voting takes place in the order of seniority. Random or rotating opinion-assignment procedures prevent judges from being rewarded or sanctioned for their opposition votes, and thus reduce the incentives for consensus.¹² In contrast, when opinions are assigned by the chief justice, opportunities for rewards and sanctions emerge. Similarly, when voting takes place in order of seniority, the most senior judges may influence junior judges, reducing the likelihood of their disagreement.¹³

Moreover, all estimations include year indicators to capture trends in the likelihood of dissent. In the probit estimations, the t-statistics are computed from standard errors clustered by case.

Table 1 reports the primary probit results. In this table, the top number in each cell is the regression coefficient, which indicates the magnitude and direction of the relationship of each variable with judges’ votes. A negative coefficient indicates that a variable reduces the probability that a judge will cast a dissenting vote; a positive coefficient indicates that a variable increases the probability that a judge will dissent. Under each coefficient is the corresponding t-statistic. Coefficients with t-statistics equal to or greater than 1.96 are considered statistically significant at the 5 percent level, meaning that there is 95 percent certainty that the coefficient is different from zero. A t-statistic equal to or greater than 1.96 is typically required to draw conclusions in hypothesis testing.

The results indicate that diversity among the judges hearing a case is significantly related to the propensity to dissent. The positive and statistically significant coefficients on the diversity variables for gender, race, age, religion, home state, and political affiliation indicate that diversity along these dimensions is associated with higher levels of dissent. These results are consistent with the Symposium judges’ belief that dissent reflects lack of cohesiveness on a court; greater diversity probably implies that the judges have fewer common values and experiences, reducing the incentives for collegiality.

In contrast, diversity in the jobs that judges held before taking the bench is negatively associated with dissent. This suggests that more diversity in professional backgrounds is associated with a reduction in the propensity to dissent. Thus, different backgrounds, at least in terms of the judges’ professional lives, do not appear to reduce collegiality on a court.

Moreover, the results indicate that the more judges with very short tenure on the court (one year or less), the less likely judges are to dissent. Similarly, the more judges with lengthy tenures on the court (six years or more), the more likely judges are to dissent. If lengthy tenure is a good proxy for strong personal relationships among judges, then these results are inconsistent with the experiences of some of the judges participating in the Symposium. Instead of lengthy tenures reducing the propensity to dissent because judges are better friends, my results indicate that lengthy tenures increase the propensity to dissent. Nevertheless, the results are consistent with studies that assert that junior judges feel pressure to not dissent against more experienced senior judges.¹⁴ Thus, even if judges build stronger personal relationships during their time on the court, their inclinations to agree with friends may be outweighed by the confidence and experience that comes with longer tenure on the court.

Several other variables also have statistically significant relationships with the propensity to dissent. Judicial elections, discretionary dockets, random opinion assignment, and seniority voting are associated with increases in dissent rates. In contrast, an approaching retention and chief justice status appear to reduce the propensity to dissent.

Conclusion

In this short Essay, I tested whether the empirical evidence is consistent with the experiences of some of the judges participating in the Duke Law Journal’s Symposium on Evaluating Judging, Judges, and Judicial Institutions. Although my results confirmed that institutional and political factors are important influences on dissent rates, I also found that the levels of cohesiveness and collegiality among judges are important. These results indicate that academic studies of judging can greatly benefit if academics consider the real-world experiences of judges.

Table 1

Notes: The table reports coefficients from a probit model. For brevity, the indicator variables for years, case types, and litigant types are not reported here. T-statistics are reported in parentheses. An asterisk represents significance at the 5 percent level.

Acknowledgments:

Copyright © 2010 Duke Law Journal.

Joanna Shepherd is an Associate Professor at Emory Law School.

Today, there are new fears that plaintiffs’ lawyers have co-opted securities class actions by paying-to-play. “Paying-to-play” describes the practice of lawyers giving campaign contributions to public pension funds’ political leadership in order to gain favorable consideration by the funds for appointment as class counsel. Many reforms have been proposed and enacted in response to paying-to-play fears. Aside from a few anecdotal reports, however, no examination of campaign contributions from plaintiffs’ lawyers to elected officials exists in the legal literature. This Editorial returns to the first stage of analyzing paying-to-play that many commentators have skipped: whether law firms are contributing to investment funds’ leadership at all. If law firms are not contributing, there can be no rational fear of paying-to-play. My study finds that law firms do indeed contribute to the investment funds that select them as lead counsel.

 
I.
The PSLRA and Paying-To-Play Fears

The PSLRA established a rebuttable presumption that the lead plaintiff is the plaintiff with the largest financial interest in the relief sought by the class. Congress’s theory was that the plaintiff with the largest financial stake would have the greatest incentive to manage the case competently and achieve the highest possible settlement. The PSLRA also guaranteed the lead plaintiff the power to select and control class counsel.

Congress explicitly targeted institutional investors to be the new lead plaintiffs in securities class actions because of their large financial interests and their experience as investors. While from 1997 to 2000, only between ten and twenty institutional investors were named as lead plaintiffs each year,¹ the number grew to thirty-one in 2001 and then to fifty-six institutions in 2002.² In the period covered in my study, 2002 to 2006, 41% of cases had an institutional investor as lead plaintiff.

The first fears over paying-to-play surfaced in media reports in 1998. The legal academy became concerned shortly thereafter, announcing the practice as a problem and then proposing solutions. However, my research revealed only two empirical studies of paying-to-play in the legal literature. Neither study examined lawyers’ campaign contributions; rather, they both used indirect means of investigating paying-to-play.

The lack of empirical evidence of paying-to-play, however, did not stop courts, the American Bar Association, pension funds, Congress, and state legislatures from discussing and implementing reform proposals. Reform may be necessary if paying-to-play indeed negatively affects securities class actions. However, reforms are not without cost; all efforts at reform make tradeoffs in an attempt to insulate pension fund officials from lawyers’ campaign contributions. Generally, there have been four proposals to combat the perceived paying-to-play problem. The first proposal calls for the lead plaintiff fund and the filing law firm to disclose to the court any payments made by the lawyers to the fund, enabling the court to decide whether the fund or firm are fit to serve. The second proposal is merely a bright-line version of the first: A lawyer is barred from representing a fund if the lawyer made a campaign contribution to the fund’s officials. The third proposal requires that elected officials be removed from pension funds’ governing boards and be replaced with unelected leadership. The final proposal is that courts, rather than the lead plaintiff, should select lead counsel through an auction.

The first two proposals would limit lawyers’ participation in the political process. Even if courts had discretion to allow lawyers to continue to serve, the threat of losing a client may be enough to silence lawyers’ political voices. Restructuring pension funds’ leadership—as required by the third proposal—also has costs. Public pension funds likely have elected officials in leadership positions to allow for state government control of the funds. This provides for democratic accountability with regard to the funds’ successes and failures, including their litigation decisions. Finally, as others have noted, a court-run auction to determine lead counsel “is inconsistent with the language of the PSLRA.”³ The PSLRA instructs the court to appoint the “most adequate plaintiff,” not the most adequate law firm, and then allows that plaintiff to choose the lead counsel. Replacing the lead plaintiff’s selection of counsel with that of the court undermines the PSLRA’s intent to empower the lead plaintiff to select and monitor class counsel.

 
II.
Data and Findings: Law Firms’ Contributions to Lead Plaintiff Funds

I examined the 1076 securities class actions filed in the United States from 2002 to 2006. I identified the 445 cases where an institutional investor was at least one of the plaintiffs filing to be lead plaintiff and then narrowed my dataset to the seventy-five cases where the lead plaintiff was an institutional investor with at least one state-level elected official, or person appointed by such an official, on its controlling board. I then identified the membership of the controlling boards of the institutional investors at the time the case was filed. Next, I identified the law firm or firms that each fund selected as counsel in each case. Finally, I used state-level campaign-finance filings to find campaign contributions from the plaintiffs’ law firm (or its lawyers) to any elected official affiliated with the pension fund that selected the firm as counsel. My campaign contribution dataset spanned both before and after the filing of the cases—from 1998 to 2008—in order to capture contributions that could come before law-firm selection as an enticement, or after as a reward. I included contributions made to the relevant candidates directly and also contributions to their political parties’ campaign committees under the theory that candidates may look favorably on contributions to their parties, and donors may seek to exploit such contributions.

I found that in a majority of cases where paying-to-play was possible, at least one law firm made a political contribution to an elected official affiliated with a lead plaintiff pension fund in the case. Of the seventy-four cases in my dataset, a law firm affiliated with a case made a political contribution to a pension fund in forty-eight cases, or 64% of the time.

Because there was sometimes more than one law firm or pension fund filing in each case, and my data grouped these firms and funds together, there were 184 total opportunities for pension funds and law firms to be matched through political contributions. Firms made contributions in seventy-eight of those 184 opportunities, or 42% of the time. Of all the total contributions from a particular firm to officials associated with a particular fund, the mean was $58,942 and the median was $9,300.

 
III.
Discussion and Future Areas of Research

My data confirms that plaintiffs’ law firms are contributing to the pension funds that hire them. These contributions form the baseline of the paying-to-play theory. My study thus provides the first set of paying-to-play data on which future scholarship can build. Some may argue that these contributions themselves create an appearance of impropriety that should be avoided. Others suggest that the focus should be on the actual performance of class counsel, no matter how selected.⁴ The resolution of this question is beyond the scope of this Editorial.

The debate over paying-to-play involves more than a concern over political contributions. The paying-to-play theory has three basic elements: (1) law firms are giving political contributions to officials affiliated with pension funds’ boards; (2) the firms are doing so with the intention of earning favors from the funds; and (3) pension funds are in fact giving those favors by selecting contributing firms as lead counsel in class action cases.

While this Editorial has provided some evidence of the presence of element one, we must examine elements two and three to understand fully the paying-to-play problem and to formulate an appropriate policy response. The factors listed below are not meant to be an exhaustive list of all important matters but rather a helpful guide for future researchers of what I consider to be the most interesting quantifiable factors surrounding the paying-to-play problem.

 
A.     Geography

Pension funds might be likely to select local law firms with whom they are familiar and with whom they can meet frequently. This may be especially true if pension funds plan to, or have been, working with firms for a long period of time, such as funds hiring a firm to provide litigation monitoring services. Geography may also be important for researchers seeking to understand law firms’ political contributions. Contributions from lawyers to politicians in their own states may seem less suspicious than donations to those in distant states.

 
B.     Experience

Based on my data, from 2002 to 2006, pension funds selected the same few law firms repeatedly. Bernstein Litowitz Berger & Grossman was affiliated with an institutional plaintiff in thirty of the seventy-five cases in my dataset, or 40% of the cases. On the other hand, pension funds selected twenty-nine of the thirty-six total firms each three or fewer times. Future research could quantify indicators of a law firm’s experience, such as the number of previous securities fraud class action cases handled, in an effort to discover whether experience is an independently significant variable in funds’ selection decisions.

 
C.     Previous Relationships

Funds may also be more likely to select firms with which they have had a particular former relationship. This might mean a firm representing the fund in a previous class action, but it could also include a law firm providing other services for a fund. According to one securities class action expert, funds increasingly are relying on law firms to monitor their investments and to provide advice on possible suits to file or join.⁵ Funds typically do not pay the law firms for these litigation and investment monitoring services, but the firms instead hope to be rewarded by being selected as lead counsel if the fund decides to file suit and is named lead plaintiff. In a recent case, Judge Jed S. Rakoff raised concerns at a hearing that a proposed plaintiff law firm had a “blatant, shocking conflict of interest” stemming from free monitoring services provided for a union pension fund client.⁶ Additionally, pension funds have been reported to keep “short lists” of firms that have been prescreened to use when the fund decides to file suit. In these cases, the law firm that provides investment monitoring services competes with other firms on the fund’s list. Pension funds without exclusive lists rely on “requests for proposals” sent to law firms, inviting them to bid for the pension fund’s legal work. All of these arrangements may shed light on law firms’ decisions to contribute to funds, or may impact funds’ lead counsel selection decisions.

 
Conclusion

Past fears, and even reforms, of the paying-to-play practice have been based on anecdotal evidence in the media and scholarly literature. This Editorial provides empirical evidence for the first time showing that plaintiffs’ law firms do contribute to officials affiliated with the public pension funds that select them as lead counsel in securities fraud class actions. Given this prima facie evidence, it is still important to explore other factors that may explain why law firms contribute to funds and how funds choose which law firms to hire. Moreover, even if the worst paying-to-play fears are true and pension funds are selecting law firms based on political contributions, does paying-to-play actually have a negative effect on lawyer-client agency costs in securities fraud class actions? In other words, even if paying-to-play is happening, does it matter? This is a question Stephen J. Choi, Adam C. Pritchard, and I examine in an upcoming paper, The Price of Paying to Play in Securities Class Actions.⁷

Acknowledgments:

Copyright © 2010 New York University Law Review.

Drew T. Johnson-Skinner received his J.D. from New York University School of Law in 2009. He is currently a Law Clerk for Judge John G. Koeltl.

This Legal Workshop Editorial is based on the following Student Note: Drew T. Johnson-Skinner, Paying-To-Play in Securities Class Actions: A Look at Lawyers’ Campaign Contributions, 84 N.Y.U. L. REV. 1725 (2009).

Click here to access the raw data analyzed in this Editorial.