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 Assistant 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.

But choice-of-law scholars tend to be very skeptical about choice of law.  The conventional wisdom is that choice of law is a mess.  It is widely believed that choice-of-law doctrine does not significantly influence judges’ choice-of-law decisions.  Instead, these decisions are said to be driven by biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants.  In addition, judges’ choice-of-law decisions are believed to be highly unpredictable.  If these “mess claims” are correct, it is unlikely that choice of law can make positive contributions to global governance.

My goal in Myth of Mess?  International Choice of Law in Action² was to cast some empirical light on these divergent views concerning the global-governance implications of choice of law.  To that end, I evaluated the mess claims using statistical analysis of an original dataset of over two hundred international choice-of-law decisions by U.S. district court judges in published tort cases.  Thus, unlike much scholarship on international choice of law, the Article, to borrow Roscoe Pound’s distinction, analyzes not only choice of law in books but also choice of law in action.³ That is, it examines not only choice-of-law doctrine but also broad patterns of judges’ actual choice-of-law decisions.

My findings suggest that there is reason for measured optimism about the ability of the choice-of-law system to contribute to global governance.

 
I.
The Influence of Choice-of-Law Doctrine

Choice-of-law doctrine does appear to significantly influence the international choice-of-law decisions of U.S. district court judges in published tort cases.  Two factors that permeate choice-of-law doctrine—the territorial locus of the activity giving rise to the dispute and the nationality of the parties to the dispute—strongly affect judges’ choice-of-law decisions.  The probability that a judge will apply domestic law is highest when the locus of activity and the nationality of the parties are mostly or all domestic and lowest when they are mostly or all foreign.  Looking at these factors separately, the likelihood that a judge will apply domestic law is about twenty-five percent lower when the activity occurred mostly or entirely outside U.S. territory and about forty percent lower when the parties to the dispute are mostly or all foreign.

My findings also suggest that choice-of-law doctrine matters in the sense that different choice-of-law methodologies lead to different patterns of choice-of-law outcomes.  For example, after controlling for territoriality and nationality, the probability that a judge will apply domestic law is about twenty-five percent lower when the judge is required to apply the Second Restatement’s most-significant-relationship method (compared to all other methods as a group).  There is also evidence that interest analysis and the Lauritzen method (used in maritime cases) are individually more likely than the Second Restatement to result in the application of domestic law.

These findings do not mean that choice-of-law doctrine is the only, or even necessarily the most important, factor that influences international choice-of-law decisionmaking.  But taken together, they challenge both the widely held view that choice-of-law doctrine does not significantly influence judges’ choice-of-law decisions and the more general view that legal doctrine has only a marginal impact on judicial decisionmaking.

 
II.
Little Evidence of Bias in International Choice-of-Law Decisions

The international choice-of-law decisions of U.S. district court judges in published tort cases do not appear to be biased in the ways contemplated by the mess claims.  Judges show little or no bias in favor of domestic law.  Nor do judges appear biased in favor of domestic over foreign parties or plaintiffs over defendants:  The probability that a judge will apply domestic law does not increase when domestic law is preferred by the domestic party or by the plaintiff.  Rather, the evidence suggests that judges’ choice-of-law decisions are based largely on the legal merits rather than on judicial preferences for domestic law, domestic parties, or plaintiffs.

Interestingly, however, there is some evidence that the ideology of judges may have a significant influence on choice-of-law decisions.  In one specification of my statistical model, judges appointed by Republican presidents are less likely to apply domestic law than other judges, perhaps to discourage the forum shopping that results from more plaintiff-friendly U.S. law.

 
III.
The Predictability of Choice-of-Law Decisions

My findings also suggest that judges’ choice-of-law decisions are not so unpredictable after all.  The relatively simple statistical models presented in my Article can correctly classify approximately seventy-five percent of judges’ choice-of-law decisions.  Of more practical importance, it appears possible to anticipate these decisions more accurately than the mess claims would suggest, even without statistical methods, because transnational actors can discern with relative ease key factors influencing choice-of-law decisions, including the territorial locus of activity, the nationality of the parties, and the applicable choice-of-law doctrine.

 
IV.
Implications and Extensions

Overall, these results suggest that choice-of-law doctrine—and the domestic courts that apply it—are capable of making a positive contribution to global governance.  The findings provide a preliminary empirical foundation for law and economics theories about the global welfare consequences of the choice-of-law system by showing not only that choice-of-law doctrine can influence choice-of-law decisions but also that they are not necessarily highly unpredictable or systematically biased in the ways contemplated by the mess claims.  They also suggest that domestic courts can indeed help enhance transnational rule of law by reducing uncertainty regarding which country’s laws apply to activity with connections to more than one country.

My analysis—like prior empirical analyses of choice-of-law decisionmaking—is based on published choice-of-law decisions.  This focus is appropriate for this study because published decisions are especially important for global governance.  To extend Mnookin and Kornhauser’s well-known “shadow of the law” metaphor, cross-border activity takes place in the transnational shadow of domestic law.⁴ In other words, domestic court decisions, including international choice-of-law decisions, can influence the behavior of transnational actors beyond borders and beyond the parties to particular lawsuits.  But these transnational “shadow” effects are much less likely when decisions are not published for the simple reason that transnational actors are much less likely to know about those decisions.  From a governance-oriented perspective, then, published decisions deserve special analytical attention.

Can my findings nevertheless be extended to unpublished choice-of-law decisions?  Most court decisions are not published, and published decisions are not necessarily representative of unpublished decisions.  However, an exploratory analysis of the relationship between the variables included in my statistical models and some of the likely determinants of publication (such as case complexity and issue salience) suggests that such an extension is plausible.  And can my findings be extended to domestic choice-of-law decisions?  It would seem that international choice-of-law decisions may be more susceptible to parochialism than domestic choice-of-law decisions.  If that intuition is correct, then one would expect my findings regarding the lack of bias in international choice-of-law decisionmaking to apply to domestic choice-of-law decisionmaking as well.

Of course, without replicating my analysis using unpublished and domestic decisions, there can be no firm conclusions about the generalizability of my findings beyond published international decisions.  For this reason, the question mark in Myth of Mess? should be taken seriously.  Empirical analyses, such as the one presented in my Article, may be able to reduce the uncertainty of descriptive and causal inferences about choice of law but cannot eliminate that uncertainty.  There is much more to learn about choice-of-law decisionmaking, not only in transnational tort cases but also in other contexts, domestic and international.

 
Conclusion

Even without extending my findings beyond international choice-of-law decisions in published tort cases, my hope is that my Article will both reinvigorate debates over the real-world importance of choice-of-law doctrine and the role of domestic courts in global governance and will help lead toward a more nuanced understanding of the link between choice-of-law methods and choice-of-law outcomes.  More generally, I hope the Article shows that quantitative analyses of judicial decisionmaking do not inevitably lead to the conclusion that judging is driven more by political than legal factors.

My Article falls far short of demonstrating that judges’ international choice-of-law decisions increase global economic welfare and enhance transnational rule of law.  But, by offering evidence that choice-of-law doctrine does influence choice-of-law decisionmaking and that those decisions are not biased in ways posited by the mess claims, the results do offer some good news about the potential contributions of choice of law and domestic courts to global governance.  At least in international choice-of-law decisionmaking, judges appear to be doing a better job than they get credit for.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Christopher A. Whytock is Associate Professor of Law at University of Utah, S.J. Quinney College of Law.

This Legal Workshop Editorial is based on the following Article: Christopher A. Whytock, Myth of Mess? International Choice of Law in Action, 84 N.Y.U. L. REV. 719 (2009).

The romantic image of the generalist, however, is not without its costs. The phenomenon of generalism deprives the judiciary of potential expertise, which could be extremely useful in cases involving complex doctrines and specialized knowledge. It also undermines efficiency, a goal that is difficult to ignore in an era of crowded dockets and overworked jurists. Indeed, many state courts have increasingly turned to specialization or a subject-matter rotation system for these reasons, yet the federal judiciary remains unflinching.

But does it really? Despite the frequent rhetoric against specialization, an empirical look at opinion assignments in the federal courts of appeals from 1995 to 2005 reveals “opinion specialization” to be an unmistakable part of everyday judicial practice. In short, the generalist judge is largely a myth. But while some may deplore this subversion of a long cherished judicial value, the development may indeed be a beneficial one. As it turns out, opinion specialization may actually achieve many of the benefits of specialized courts without incurring their costs.

I.
Opinion Assignment

One way of studying judicial attitudes toward specialization is to observe if judges become specialists when given the chance. Random case assignment eliminates most such opportunities, but the process of opinion assignment provides a rare instance in which federal circuit judges can specialize in certain subjects.

To construct the dataset used in this study, I combined the Federal Judicial Center’s well-known Federal Courts database and a database extract generously provided by Thomson West. The resulting dataset included all opinions written between 1995 and 2005 in the United States Courts of Appeals for all circuits except the Federal Circuit. To detect instances of specialization, I modeled the number of expected opinions that a judge should write in each subject area given that judge’s caseload and the circuit’s overall docket patterns. The expected frequencies were then compared against the actual frequencies using Pearson (standardized) residuals.

The figures below graphically summarize the most likely instances of specialization in the First, Seventh, and D.C. Circuits. Each horizontal line represents a subject matter, or in the case of the D.C. Circuit, an agency being reviewed. Each dot represents a judge-subject pairing. For purposes of the study, residuals with absolute values above three were defined to indicate instances of specialization, with positive values showing preference and negative values showing aversion.

Figure 1: Subject matter specialization, 1st Circuit, 1995-2005

Figure 2: Subject matter specialization, 7th Circuit, 1995-2005

Figure 3: Agency specialization, D.C. Circuit, 1995-2005

II.
Many Judges Specialize

As the graphs show, specialization appears to be alive and well in the federal appellate judiciary. Opinion assignments are not randomly distributed, and frequently the rate at which certain judges write in a subject area is highly disproportionate to that of their colleagues.

One important question is whether these results might occur purely as a matter of chance. After all, with so many judge-subject pairings, some statistical outliers are inevitable. A number of reasons, however, suggest that some non-random phenomenon is at work. For one, statistical simulations indicate that, under random opinion assignment conditions, residuals greater than 3.0 are exceedingly rare. For example, for the Seventh Circuit under random assignment, we statistically expect to see less than two residuals greater than 3.0. Instead, Figure 2 shows twenty-four such instances.

In addition, many of the specific instances of specialization make intuitive sense based on the judges’ backgrounds. For example, Judge Michael Boudin of the First Circuit, a former deputy assistant U.S. attorney general in the Antitrust Division of the Department of Justice, writes a disproportionate number of antitrust opinions. Judge Frank Easterbrook of the Seventh Circuit, known for his academic work in antitrust and corporate law, appears to specialize in antitrust and securities regulation. On the D.C. Circuit, Judge Harry Edwards, who was a labor law scholar and arbitrator before entering the judiciary, specializes in labor cases. Judge Douglas Ginsburg, who specializes in Federal Communications Commission (FCC) cases, is a longtime author of a casebook on telecommunications law, and Judge Stephen Williams, who specializes in Federal Energy Regulatory Commission (FERC) cases, is formerly an oil and gas law professor.

The explanation for these specialization patterns is likely an amalgam of factors, including individual preferences (both conscious and unconscious), internal court dynamics, and caseload pressures. Experts may prefer cases in their fields of choice not only because they are more interesting, but also because they can write opinions more efficiently and with less concern about errors. Similarly, non-experts may be willing to defer given that specialized subjects may appear less interesting, more time-consuming, and rife with potential pitfalls.

III.
A Loophole or a Keeper?

Should we be concerned about opinion specialization? The structure of the federal courts exhibits a long-standing preference for generalist judges, and opinion specialization clearly runs counter to that spirit. However, one perhaps should not be too quick to close the apparent loophole through randomized opinion assignments or other measures. Circuit judges, after all, are experienced and intelligent actors, and their chosen practices thus deserve careful consideration.

The core of the debate is whether the benefits of specialization outweigh the costs. As mentioned previously, specialization increases judicial expertise, improving efficiency and accuracy. On the flip side, specialized courts past and present have often highlighted the considerable drawbacks of specialization, including the danger of special interest capture, a tendency toward complex or arcane doctrines, and a loss of judicial prestige.

In this debate over specialization, however, opinion specialization offers an intriguing compromise. It of course captures many of the benefits of specialization. Whenever a “specialist” writes an opinion, the parties and the circuit’s jurisprudence benefit from the specialist’s expertise. Besides being more efficient, the specialist is more likely to produce opinions that are more consistent with the existing legal framework, and he or she may be better positioned to solve problems more creatively. At the same time, the opinion may enjoy greater legitimacy, since parties may give greater deference to a judge who “understands” the stakes and complexities in a field or industry. Even when a specialist is not writing the opinion, other judges can benefit from the specialist’s perspective (if on the same panel), or, at minimum, from a more coherent and well-developed body of precedent.

At the same time, because opinion specialization operates informally and flexibly, it minimizes many of the known drawbacks of more formal specialization schemes. With no formal and exclusive concentration of cases, interest groups have far less incentive to become enmeshed in the appointments process. Judges are less likely to develop tunnel vision, because they continue to handle diversified dockets and are required to both write and vote in areas outside their expertise. Finally, because judges can experiment with greater or less specialization depending on individual preference, opinion specialization mutes concerns about repetitive caseloads and a loss of prestige.

That said, opinion specialization does have potential dangers. If nonexpert judges become too deferential to their expert colleagues, the result could be anathema to the right of appeal, which is partly to protect litigants from the potentially arbitrary decisions of a single judge. An even more serious problem is the potential bias that may arise because specialties are self-selected. For example, some of the study results suggest a possible correlation between specializing in criminal law and being a former prosecutor. If judges without a criminal law background avoid writing criminal law opinions, and former defense attorneys seldom become judges because of electoral politics, then in essence only former prosecutors will direct the future of criminal law.

Some of these problems can be (or are already) addressed by the nature of the panel system or by judicial norms and procedures. However, an understanding of the actual ramifications of opinion specialization needs to be fleshed out in further examinations of this subject.

IV.
A Mechanism for Reform

On a final note, it bears mentioning that beyond merely a quirky practice among a subset of judges, opinion specialization offers a new avenue of reform for those who have long argued for specialized courts. For proponents of specialization, the most important attribute of opinion specialization is that it is modest. It does not require a radical restructuring of the federal courts or an act of Congress. Instead, it can develop informally and incrementally through everyday judicial practice, a critical advantage whenever actors are wedded to the status quo. Faced with enormous caseloads and increasingly complex cases in specialized areas, judges will opt for opinion specialization simply because it is a convenient and useful way for the judiciary to help itself.

Whether solution or affliction, opinion specialization reveals an unexplored tension in the federal judiciary. Circuit judges appear to be more conflicted on the issue of specialization than the frequent posturing might initially suggest. Exposing this fault line will hopefully encourage judges and commentators to reexamine their attitudes toward specialization. After all, archetypes like the generalist judge are powerful mental images that constrain the imagination. Dispelling the myth may therefore liberate jurists and reformers alike from their traditional boxes.

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Edward K. Cheng is Associate Professor of Law at Brooklyn Law School.

Many thanks to Aran McNerney for research assistance, and the Project on Scientific Knowledge and Public Policy and the Brooklyn Dean’s Summer Research Fund for generous support.

To contact Edward K. Cheng, please email him at edward.cheng@brooklaw.edu.

This Legal Workshop Editorial is based on the following Article:   Edward K. Cheng, The Myth of the Generalist Judge, 61 STAN. L. REV. 519 (2008).

The Supreme Court, it turns out, can help answer this question.  But not in the way you might think.

I.
By the Numbers: Knowing Where to Look

For decades, the FCC has maintained a set of ownership regulations that limits the number of media outlets one entity can own.  Newspapers, such as Murdoch’s New York Post, come under the purview of the FCC’s “cross-ownership rule,” restricting common ownership of newspapers and broadcast stations in a market.

Most of federal law on the matter is predicated on an assumption that consolidation will reduce so-called “viewpoint diversity.”  Put another way, viewpoints may converge with common ownership.  Yet economic or communications theory doesn’t squarely provide a conclusion to that premise.  Over the past decade, recognizing the theoretical ambiguity, the courts and the FCC have increasingly required empirical evidence in support of this convergence hypothesis.

The trouble is that the evidence so far has been, well, flimsy.

The concept of viewpoint diversity, as the courts have recognized, is elusive.  And when, in 2002, the FCC commissioned a handful of empirical studies on the connection between ownership and viewpoint diversity, it didn’t find much.  Indeed, this elusiveness led Commissioner Jonathan Adelstein to conclude that the FCC’s work was “like submitting a high-school term paper for a Ph.D. thesis.”³

But the lack of conclusive evidence may be the result of either poor measurement of viewpoints or that ownership and viewpoints aren’t directly related.  Little consensus exists as to which story is right.

Fortunately, rapid advances in statistics are making rigorous assessment of the convergence hypothesis possible.  While “viewpoint” is an elusive concept, it does have observable consequences—in the same way that elusive concepts of “ability” or “intelligence” have observable implications.  The virtue of standardized tests, such as the SAT, is that each test answer can be viewed as a noisy indicator of a student’s underlying intelligence.  Similarly, as political scientists have recognized, we can summarize legislators’ views based on their voting records on common bills.  The crucial step is collecting information about answers (or votes) to common questions, just as SAT test-takers answer the same exam.

Where might we look for answers to common questions about viewpoint diversity, when newspaper editors don’t sit for a test, such as an SAT?  Here’s where the Supreme Court comes in.  Supreme Court justices vote on the merits of roughly one hundred cases each term.  And newspapers regularly editorialize on these decisions.  Connecting newspaper editorials to the opinions of the justices solves the difficult problem of quantifying editorial viewpoints, which the FCC has recognized as a crucial component of viewpoint diversity.

With a large research team at Harvard and Stanford, we collected every editorial position on a Supreme Court decision by the top twenty-five newspapers from 1994-2004 (roughly 1600 editorial positions) and coded these as agreeing with the majority or minority on the court.  Supreme Court cases are ideal for this study as they represent a staggering array of discrete issues.

With some refined statistical adjustments, this evidence allows us to scale newspapers in terms of their comparability on a single dimension.  One can think of it as running from “liberal” to “conservative.”  The scale tells us how each newspaper would have voted as a tenth justice and allows us to assess how viewpoints change with mergers and acquisitions of newspapers.  Essentially, the results reveal what a reasonable reader would infer after reading the editorial pages of twenty-five newspapers and the opinions in some 500 Supreme Court cases over a period of ten years.  It is in this sense that the Supreme Court is helping us learn about newspapers.

Figure 1: Estimates for Viewpoints for Select Newspapers and Supreme Court Justices. The left panel presents the median viewpoint estimate for each justice of the natural Rehnquist court. On the same scale, the right panel presents the viewpoints of The New York Times, New York Post, Washington Times, and Washington Post over time, based each paper’s editorials.  The solid lines represent our median estimate of editorial viewpoints, and the colored bands visualize the uncertainty of those estimates. The New York Post is estimated starting in 1997 because electronic versions of the paper were unavailable earlier.

Figure 1 presents some sample results for The New York Times, New York Post, Washington Times, and Washington Post.  The results quantify editorial viewpoints (and uncertainty as represented in the bands) meaningfully: The overall probability that the Washington Post is to the right of The New York Times is nearly 1.  The New York Post’s phantom jurisprudence most resembles that of Justice Scalia.  More importantly, our analysis allows us to examine the dynamic evolution of newspapers. The New York Times, for example, has been consistently trending to the left of Justice Stevens.

II.
The Merger Question

So what happens with a newspaper merger?  One important test is the merger of the editorial boards of the Atlanta Journal and the Atlanta Constitution in 2001 to form the Atlanta Journal Constitution.  This merger appears to corroborate the convergence hypothesis: the Journal Constitution’s viewpoint lands squarely between the two prior papers. But they arrive at that middle position in an unusual way.

In 1995, both the Journal and the Constitution supported the five-justice majority in United States v. Lopez, which struck down a federal statute prohibiting guns in school zones.  But shortly thereafter, the papers diverge considerably.  In 1999, for example, the Constitution argued the court “ruled wisely and well” when it found that a school could be liable for discriminatory acts committed by students, while the Constitution charged that the decision “opened yet another floodgate to lawsuits.”  The viewpoints of the editorial board members differed so sharply between the two papers that the merged Journal Constitution faced difficulty forging a consensus position on cases.  Around 2006 the paper became one of the first major U.S. newspapers to disband the practice of unsigned editorials.  The individual columns reflected diverging liberal and conservative viewpoints in line with those followed prior to the merger.  Paradoxically, then, the merger may have unified Atlanta’s readership, with the net effect of exposing more readers to more viewpoints.

Figure 2: Editorial Viewpoints for the Atlanta Journal, Atlanta Constitution, and the combined Atlanta Journal Constitution. This figure illustrates the divergence in viewpoints between the two editorial boards prior to merging. After the merger, the viewpoint of the combined board falls between those of the two former papers. As in Figure 1, the solid lines represent median viewpoints, and the color shading captures the uncertainty in estimates.

Of course, the Atlanta experience may be unique.  Examining all acquisitions occurring between the newspapers in our data, effects were varied and depended on the circumstances of the ownership change: for chain acquisitions (e.g., Hearst’s acquisition of the San Francisco Chronicle), editorial viewpoints remained stable; but after the The New York Times acquired the Boston Globe, the papers switched positions.

III.
So What?

Our analysis suggests three lessons.  First, consolidation does not inexorably cause convergence or divergence in viewpoints.

Second, our analysis points to the promises and perils of empirical assessment in law and regulation.  Using tools developed across applied statistics allows thorny questions of public policy and regulation to be examined with data.  If, for example, consolidation systematically diversified viewpoints, there would be little use in maintaining various ownership regulations.

On the other hand, such inquiry isn’t easy.  Courts and agencies shouldn’t expect too much.  Our approach, for example, does not assess viewpoints expressed in news reporting, nor can we realistically examine the effects of vast changes of federal regulation.  Judges and policymakers don’t necessarily have the luxury of making decisions after the data have been systematically gathered and analyzed.  This difficulty of evaluation suggests a type of precautionary principle: incremental, as opposed to wholesale, modification of federal regulation facilitates policy evaluation.

Last, our study sheds light on and informs what factors the FCC should consider in applying its waiver policy to the likes of Rupert Murdoch.  Whether media consolidation stifles viewpoints may ultimately turn on the minutiae of the acquisition: e.g., the terms of organizational restructuring, guarantees of editorial independence, and employment conditions.

That’s the trouble when you face the data.  It might show you that the devil’s in the details.

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Daniel E. Ho is Assistant Professor of Law & Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research at Stanford Law School.

Kevin M. Quinn is Associate Professor in the Department of Government and Institute for Quantitative Social Science at Harvard University.

This Legal Workshop Editorial is based on the following Article:   Daniel E. Ho & Kevin M. Quinn, Does Media Consolidation Stifle Viewpoints?: How the Supreme Court Can Provide an Answer, 61 STAN. L. REV. 781 (2009).

This Editorial previously appeared in the Stanford Lawyer: Daniel E. Ho & Kevin M. Quinn, Does Media Consolidation Stifle Viewpoints, STAN. LAWYER, Fall 2008, at 38.

In this Editorial, I want to consider a different (and surprising) fact that emerges from the data: juries do not appear to count prior convictions as “evidence” supporting the likelihood of a defendant’s guilt.  That is, although juries are more likely to convict a defendant with a prior record, they nonetheless suggest (in rating the strength of the evidence) that the proof against the defendant is apparently no stronger in such cases than in prior-record-excluded cases in which juries acquit.  That juries would not count a prior conviction as evidence of a defendant’s guilt of the crime charged is important (and surprising) in two respects.

First, a major reason that prior convictions are ordinarily thought to pose a risk of unfair prejudice against a criminal defendant is the fear that, regardless of instructions to the contrary, a jury is likely to draw the following inference: the defendant committed crimes in the past and is therefore more likely to have committed the crime for which he is currently being prosecuted.  If Hans and Eisenberg are correctly interpreting the data (and my review of their article suggests that they are), then this fear is not well founded: juries apparently do not fall into the trap of considering prior bad acts in deciding the likelihood of a particular bad act.  Juries understand, in other words, that a person’s apparent inclination to commit robbery does not tell us very much about whether it was he or some third party who robbed a particular bank three months ago.  This suggests a level of sophistication on the part of the jury about which the evidence law has often been quite dubious.

On the other hand, the second important (and surprising) aspect of juries” ability to discern the relatively low relevance of prior convictions to guilt and innocence in a particular case is that we are left to conclude that the jury is unable (or unwilling) to apply the standard of “guilt beyond a reasonable doubt” to defendants who have a prior record.  The jury, in other words, is not confused by the evidence; it is instead repelled—in the case of prior felons—by the demanding standard of proof.  If this is true, then juries appear far more willing than we might have thought to take the law into their own hands.  For an ordinary criminal defendant, it is acceptable to allow ten (or a hundred or a thousand . . . ) guilty people go free rather than incarcerate (or execute) one innocent person.  But for a habitual criminal, perhaps, this permissive approach to what we might call “wrongful acquittals” is harder for juries to swallow.  The stakes may simply feel too great.  To put this differently, the downside of a wrongful acquittal, in the case of a defendant with a record, is that a habitual offender is free to offend again, while the downside of a wrongful conviction is that a habitual offender who happens not to have committed the particular crime charged spends time behind bars.

If this is the cost/benefit analysis in play, then the jury is rejecting the fundamental structure of a criminal trial as an assessment of guilt or innocence of a specified act (rather than the suitability of a particular person for preventive detention).  This brings to mind the “war on terror” theory of detention with which we have lately become very familiar and which may pose a far greater threat to criminal justice than the comparatively benign (but apparently not-so-tempting) inference that a prior offense sheds light on the odds of a presently charged crime.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University Law School.

This Legal Workshop Editorial is a response to the following Legal Workshop Post:   Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, LEGAL WORKSHOP (Sept. 14, 2009), based on 94 CORNELL L. REV. __ (forthcoming 2009).

All United States jurisdictions allow the use of some criminal convictions to impeach the credibility of a witness.¹ Indeed, the impeachment of witnesses with their prior records was permitted at common law as early as the seventeenth century.  Before then, defendants who were convicted felons were prohibited from taking the stand because their testimony was seen as having no credibility.  The existence of felony (and some other) convictions led to the inference that the witness was highly likely to lie under oath.  Over time, jurisdictions eventually eased the prohibition to permit defendants with records to testify, yet simultaneously allow the impeachment of defendants with their prior convictions.

The evidentiary topic of when to permit the fact-finder to learn of a prior criminal record is important because a prior record is thought understandably to promote convictions.  Evidentiary rules try to balance a defendant’s interest in testifying and the prejudicial effect of impeaching the defendant’s testimony using prior convictions.  For example, Federal Rule of Evidence 609(a)(1) allows impeachment by prior convictions “if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused . . . .”  The judges’ balancing of evidence’s probative value versus possible prejudice should consider the best possible information about the impact of criminal records.  More importantly, a prior criminal record’s obvious prejudicial effect may contribute to the increasingly visible problem of erroneous convictions.

Previous research conducted largely with mock juries suggests several theoretical avenues by which a defendant’s criminal record might bias the fact-finder’s decision to convict or acquit.  It might function as the legal rules governing its use suggest it usually should, by affecting the credibility of the defendant as a witness in the proceedings.  Second, a decision maker might use a defendant’s criminal record to categorize the defendant as a bad person, a person of poor character, creating a negative halo effect.  Third, the weight and significance of the evidence may change; evidence that seems inconclusive against a defendant with no record of wrongdoing may appear to be more damning when jurors learn of the defendant’s criminal past.  Finally, the threshold for conviction, or the subjective burden of proof, may differ for defendants with and without criminal records.  Jurors may be willing to convict on less evidence when the defendant has a criminal past.

Limited empirical analysis exists of the defendant’s decision to testify or of the effect of a prior criminal record on trial outcomes in real jury trials.  Our study uses a unique data set gathered by the National Center for State Courts (NCSC) under a grant from the National Institute of Justice (NIJ) to explore when criminal defendants testify and the effect of that testimony on jury verdicts.² The data set includes extensive case information and questionnaire responses from trial judges and jurors in 382 felony jury trials in four U.S. jurisdictions.  This data set is especially useful for our purposes because it includes verdict information as well as information about the defendant’s criminal record and whether he or she took the stand.  In addition, both judges and jurors in the felony trials provided their perceptions of the defendant and their estimates of the strength of the evidence in the case.

 
Findings

Our analyses confirm that defendants with and without criminal records testify at different rates; furthermore, the likelihood of learning about a defendant’s criminal record is strongly linked to whether the defendant takes the stand.  In the felony jury trials in the NCSC data set, 60% of defendants without criminal records testified compared to 45% with criminal records.  For testifying defendants with criminal records, juries learned of those records in about half the cases.  Juries rarely learned about criminal records unless defendants testified.  Statistically significant associations exist (1) between the presence of a criminal record and the decision to testify at trial, and (2) between the defendant testifying at trial and the jury learning about the defendant’s prior record.

We also find that the fact-finder’s knowledge of a defendant’s criminal record is linked to conviction rates in weak (but not strong) cases.  Regression analyses that controlled for a variety of relevant factors show that in cases with strong evidence against defendants, learning of criminal records is not associated with conviction rates.  Instead, juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction.  In weak cases, those with evidence less than or equal to 3.5 on a rating scale in which 1 represents very weak and 7 represents very strong evidence, the dominant tendency is not to convict.  But, in the strongest of weak cases, the existence of a prior criminal record can prompt a jury to convict.  The prior record effectively leverages the existing evidence over the threshold needed to support conviction.  The effect in otherwise weak cases is substantial and can increase the probability of conviction to over 50% when the probability of conviction in similar cases without criminal records is less than 20%.

As for whether a prior record changes the weight or meaning of evidence, we hypothesized based on mock jury research that knowledge of criminal history could directly affect the jurors’ perceptions of evidentiary strength.  Yet its impact might be difficult to detect because, if it operates as hypothesized, it would already be part of jurors’ perceptions of the strength of the case.  With that as a cautionary comment, the relation between evidentiary strength and knowledge of a criminal record seems more consistent with the threshold theory.  Cases in which jurors learned of criminal records tend to have slightly lower perceived evidentiary strength than cases in which jurors lacked knowledge of criminal records.  Perhaps prosecutors viewed existence of prior convictions as warranting prosecution of otherwise weaker cases.

In addition to the lower conviction threshold, we also find some evidence of a negative halo effect.  Jurors rated their sympathy for the defendant on a seven-point scale.  In a regression model of the degree of sympathy as a function of knowledge of a criminal record, there was a statistically significant negative association between sympathy and record.  But adding the degree of sympathy as an explanatory variable for verdicts in close cases does not yield a statistically significant coefficient for jurors’ perceptions of defendant sympathy.  Jurors may feel more negatively about defendants with criminal records, but that reduced sympathy does not help explain the conviction pattern in close cases.

With respect to the effect of prior record on credibility, we do not find evidence that criminal records affect defendant credibility.  Jurors were asked to rate the believability of the defendant’s evidence on a seven-point scale.  In cases in which defendants testified, criminal record was not significantly associated with the degree of believability.  This non-effect may of course be attributable to defendants being selective about cases in which they testified.  In cases in which testifying would be most damaging to credibility, defendants may simply decline to testify.  However, it is worth noting the convergence of this finding with experimental research.  In mock-jury experiments, researchers have not typically found strong links between the presence of a criminal record and changes in the defendant’s credibility.

 
Discussion

Let us consider the results in light of theoretical reasons suggesting why a prior record is important.  Subject to the limitations of a non-experimental design, our findings most directly support the explanation that the conviction threshold appears to differ for defendants with and without criminal records.  The regression models suggest that jurors appear willing to convict on weaker evidence when the defendant has a criminal past.  A prior record plays little role in cases with strong evidence.  Nor does prior criminal record often play an outcome determinative role in cases with extremely weak evidence.  But for cases with evidentiary strength close to, but below, the threshold, a prior criminal record can lead to conviction.  One could view the prior record as “making up” for evidentiary deficiencies.  Or, one might view the prior record as evidence tending to suggest guilt.  Under either view, the prior record makes a difference.  The fact that the record effect occurs primarily in cases where the evidence is not overwhelming converges with the classic finding in judge-jury disagreement studies that extralegal factors operate to cause disagreement primarily in close as opposed to clear cases.

The absence of an association between criminal record and credibility is deeply troubling given the theory underlying allowing impeachment based on a defendant’s criminal record.  In most instances, the justification for allowing the use of prior criminal record is to facilitate assessing the defendant’s credibility.  If, as our results and experimental results suggest, prior record affects case outcomes, but not credibility, the historical justification for allowing use of criminal records is unfounded.

 
Conclusion

Experimental and real-world data, as confirmed by this study, uniformly indicate that knowledge of a defendant’s prior record promotes conviction in close cases, those where one should be most concerned about erroneous conviction.  The criminal record effect could be even stronger than we have found in these analyses; the experimental work suggests that having a record for a similar offense creates the most bias, and we only had information about the presence of a defendant’s criminal record, not its type.  Together, our results and experimental results indicate that the historical basis for allowing prior record evidence—to challenge the defendant’s credibility—has little empirical support.

The enhanced conviction probability that prior record evidence supplies in close cases may well contribute to erroneous convictions.  As of this writing, over 300 post-conviction exonerations have been documented.³ A recent analysis of DNA exonerations suggests that many erroneously convicted defendants refrain from testifying because they fear the negative consequences of having their criminal records made known to the jury; at the same time, juries who learn of the criminal records of innocent defendants who do testify are likely biased by the record information.⁴ This suggests the value of exploring the development of legal rules that encourage defendants, even those with criminal records, to testify.  While eliminating all testimony about prior criminal records is unrealistic, prosecutors making charging decisions and judges considering the prejudicial effect of prior records should take into account the dramatic effect that knowledge of a criminal record appears to have in close cases.  Similarly, criminal defense attorneys should think long and hard about having clients testify in what they believe juries might regard as close cases.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Theodore Eisenberg is Henry Allen Mark Professor of Law at Cornell University Law School.

Valerie P. Hans is Professor of Law at Cornell University Law School.

This Legal Workshop Editorial is based on the following full-length Article:   Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, 94 CORNELL L. REV. ___ (2009).

The full Article provides documentation and details of the statistical analyses.

Demsetz’s market-centered approach struggles in different ways with features of land that distinguish it from other “commodities.”  The complexity of land—its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it—undermines the positive claim that owners will focus on a single value, such as market value, in making decisions about their land.  Land’s status as an essential component in any human activity that requires physical space resists efforts to treat it like other commodities.  In Karl Polanyi’s words, “[t]he economic function is but one of many vital functions of land.”  Instead, Polanyi argued, land “invests man’s life with stability; it is the site of his habitation; it is a condition of his physical safety; it is the landscape and the seasons.” As a consequence of this complexity, many of the values we attribute to land do not operate in markets.  This has two consequences.  First, actors who are sensitive to these non-market values will sometimes act in ways that are contrary to the predictions of positive economic models built around the traditional rational actor.  Second, and more normatively, these values will be invisible to actors motivated primarily by a desire to maximize their wealth.  The result of this is that narrowly rational actors operating in an unregulated market are likely to act in ways that undermine land’s nonmarket values.

I add to this equation a consideration that I call “land’s memory.”  By this I mean the combined impact of the durability of land uses and the stabilizing consequences of human sociality, which calls into question the normative assessment that rational landowners are, left to their own devices, likely to be using their land wisely, or at least more wisely than other modes of decision making might hope to accomplish.  Demsetzian theorists have argued that future generations do not really pose a problem for their theories of land ownership because an owner’s wealth will depend on “how well he takes into account the competing claims of the present and the future.”  Accordingly, they have suggested, individual ownership provides an adequate (indeed, the best practicable) mechanism for considering the possible uses to which future generations will want to put land.  This is because the market for land will reward with greater wealth those owners who guess correctly about the future. 

The problem here is the possibility that market actors might excessively discount effects of their decisions that occur far in the future.  There’s substantial evidence that private actors employ relatively high discount rates.  And this raises two questions: (1) whether citizens acting through the political process (or some other collective mode of decision making) employ a lower discount rate; and, if so, (2) whether other features of collective modes of decision making generate enough error to outweigh any improvements that result from their greater ability to take into account the interests of future generations.  These are difficult and important questions, and I do not pretend to have the answers, but they are for the most part left unaddressed by proponents of the normative Demsetzian position.

These observations do not discredit the judicious use of economic analysis as a tool of land-use policymaking, but they do point toward the need for more sophisticated models of landowner behavior and the benefits of a richer normative theory of property, one that is capable of situating the output of that economic analysis within a larger moral framework.  Setting forth the broad outlines of one such theory as it applies to the law of land use is the second goal of Land Virtues.  An approach to property rooted in the Aristotelian tradition of virtue ethics, I argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.

Neither of the two principal competitors of normative economic analysis—Hegelian (or so-called “personhood” theory) or Lockean moral entitlement theory seems up to this task.  Libertarian accounts rooted in the Lockean tradition (such as Robert Nozick’s) are particularly ill-suited to situating this positive economic analysis, since they disclaim any concern for consequences in constructing their conception of ownership rights.

From within an Aristotelian, virtue theory of land use, the justification for legal intervention will not be limited to situations of market failure.  Rather, the law will have as an important goal affirmatively promoting human virtue and flourishing.  A virtue theory of property shares with normative economic theories the intuition that collective decision-making about land use should be reserved for situations in which legal intervention is likely to yield better (that is, more morally correct) decisions about how the land ought to be used.  But knowing how to divide decision making between private owners and collective authority in different contexts becomes a deeper and more difficult challenge than merely determining who is best positioned to engage in cost-benefit analysis.  Although I do not provide a comprehensive account of the contours of the proper domain of legal intervention, my principal goal is to argue, first, that the domain of appropriately collective land-use decision making is not coextensive with the economic concept of market failure and, second, that concepts developed within the Aristotelian tradition provide some promising tools for finding its boundaries.

Laws that override private decisions can accomplish three important goals.  First, by enforcing certain specific moral obligations, they can protect those, such as the poor and future generations, whose ability to flourish might be harmed by owners’ immoral decisions.  This is the goal of legal enforcement of moral norms that Demsetzian theorists are most likely to attempt to assimilate into their model.  They will recast harm to third parties as “externalities” that, in the presence of transaction costs, might not be internalized by market mechanisms.  This translation, however, will not fully capture the content of the virtue account.  In addition to the conceptual distortions introduced when moral wrongs are converted into “costs,” the reciprocal nature of the economic understanding of externalities means that the internalization of externalities can be accomplished, and the goals of efficiency served, by legal solutions that are, from the point of view of virtue theory, morally obtuse.  As theorists like Joe Singer and Eric Freyfogle have argued, in order to craft an intelligent legal response to property harms, we need to supplement the notion of externalities with a resort to moral norms.

The other goals of legally enforced moral norms are less at home within the economic framework insofar as those norms seek to modify, correct, or discourage the preferences that traditional legal economists aim primarily to satisfy.  Thus, a second, more indirect, goal of enshrining certain obligations of virtuous conduct into law would be to constrain the behavior of non-virtuous owners and, over time, to teach them to act virtuously of their own accord.  Such a mandate can have consequences that ripple well beyond the confines of a specific legal prohibition or prescription.  The notion that legally compelling someone to act as if they possessed a virtue might actually foster virtue is not far-fetched.  Consider the impact of Title II of the Civil Rights Act of 1964, which mandates a nondiscrimination norm for private owners of places of public accommodation.  A law prohibiting such private discrimination was at first criticized in prominent quarters as a violation of property rights and as a hopeless, paternalistic effort to force people to interact against their wishes.  Civil rights laws prohibiting discrimination in restaurants and hotels are now nearly universally accepted and have contributed to dramatic changes in racial attitudes.

Third, even those who are not vicious stand to benefit from laws mandating virtuous conduct: legal specification can help to clarify social obligations and to coordinate collective virtuous actions.  Well-crafted environmental statutes or regulations, for example, can help spread the word about best practices to landowners already inclined to act responsibly but lacking information about the remote consequences of their behavior.  Civil rights statutes provide another helpful illustration.  Scholars have noted that statutes prohibiting discrimination empowered proprietors and employers who did not particularly want to discriminate but who did so out of fear of reprisals for violating social taboos.  By ensuring that their less-virtuous competitors would not be able to obtain a competitive advantage by offering a segregated alternative, civil rights statutes reduced the cost of doing the right thing for those already predisposed to do it.

Rejecting market-oriented economic theories of landowner obligation in favor of a virtue-based approach does not lead to an embrace of unrelentingly collective or statist decision making about land use.  Even where we reach the conclusion that landowners’ self-interested calculations should give way to overriding moral considerations, the question whether to enforce coercively the demands of virtue through the force of law will turn, as virtue theorists have long understood, on a number of considerations.  It will turn, for example, on our evaluation of the likely behavior of landowners in response to differing forms of legal compulsion and persuasion aimed at ensuring that those obligations are met.  This evaluation will itself require an understanding of the character of the typical landowner and of the community in which she is situated.  This is an area of virtue jurisprudence in which sophisticated and empirically grounded positive economic analysis (as well as empirical analysis from within other social science disciplines) will have a great deal of value.

The answer will likewise depend on the mechanisms for political decision making at our disposal, and the degree to which we think actors’ political behavior within those mechanisms resembles and partakes of the same virtues and pathologies of private decisions or is instead subject to its own context-specific strengths and shortcomings.  Even where self-interest seems (as a descriptive matter) to reign in politics as thoroughly as it does in the market, we should not assume that the pattern of collective decision making observed at one time and place is set in stone, and cannot be changed for the better through concerted efforts to reform institutions or to educate and train decision makers to become more virtuous.  Again, attempts to answer these questions will gain a great deal from sophisticated, and non-ideological, empirical analysis, the sort of work that many contemporary economists are producing.

Finally, the independent value of individual autonomy, which is itself an important component of human flourishing, may require that we accept private decision making in certain contexts, even when we know it is likely to yield inferior results.  This is what the federal Fair Housing Act seems to do, for example, by exempting from its antidiscrimination norms small, owner-occupied units, or what Title II of the Civil Rights Act of 1964 arguably does by exempting private clubs. 

The task of determining when, how, and in what contexts (if ever) these various considerations control is a difficult puzzle that goes to the very heart of the proper division of labor between the community and private landowners.  It is a puzzle, however, that is too often ignored within contemporary land-use scholarship.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Eduardo M. Peñalver is Professor of Law, Cornell University Law School.

This Editorial is based on the following full-length Article:  Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821 (2009). Click Here for the Full Version