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The Behavior of Federal Judges

A Theoretical and Empirical Study of Rational Choice

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HARDCOVER

$52.50 • £41.95 • €47.50

ISBN 9780674049895

Publication: January 2013

Text

440 pages

6-1/8 x 9-1/4 inches

20 graphs, 100 tables

World

  • List of Figures*
  • List of Tables**
  • General Introduction
  • Technical Introduction
    • Linear Regression
    • Logistic Regression
    • Miscellaneous Points
  • 1. A Realistic Theory of Judicial Behavior
    • Three Concepts of Legal Realism
    • The Labor-Market Theory of Judicial Behavior
    • The Judicial Utility Function
    • The Legalist Countertheory of Judicial Behavior
    • Antirealism Personified: Judge Harry Edwards
  • 2. The Previous Empirical Literature
    • History
    • Ideology Measures
    • Previous Studies of Judicial Ideology
    • Other Influences
    • Appendix: Empirical Studies of Judicial Behavior
  • 3. The Supreme Court
    • Data
    • Ideological Voting by Justices
    • Changes in Justices’ Ideology
    • Unanimous Decisions: The Role of Ideology
    • Non-unanimous Decisions: The Role of Ideology
    • Non-unanimous Decisions: Group Effects
    • Appendix: The Corrected U.S. Supreme Court Database
  • 4. The Courts of Appeals
    • Data
    • Explaining the Judges’ Votes (1)
    • Explaining the Judges’ Votes (2)
    • Group Influences in the Songer Data
    • Ideology, Conformity, and Panel Composition Effects in the Sunstein Data
    • Appendix A: The Original and Corrected Songer Database
    • Appendix B: The Original and Expanded Sunstein Database
    • Appendix C: Measures of Ex Ante Ideology of Supreme Court Justices, 1937–2009
  • 5. The District Courts and the Selection Effect
    • District Court Decisions Derived from the Sunstein Database
    • Ideological Influence on District Judges
    • Reversals
    • Dismissals
    • Another Selection Effect
    • The Paradox of Discretion
    • Ideology in Sentencing
  • 6. Dissents and Dissent Aversion
    • Costs and Benefits of Dissenting
    • The Effect of Panel Composition
    • A Formal Model of Deciding Whether to Dissent
    • Empirical Analysis
    • Effects of Senior Status and Age on Dissent Rates
  • 7. The Questioning of Lawyers at Oral Argument
    • Empirical Analysis
    • Number of Questions or Number of Words?
    • Explaining Variations in the Number of Questions and the Total Number of Words in Questions
    • Individual Justices
  • 8. The Auditioners
    • Appointment and Promotion in the Federal Judiciary
    • Auditioning for the Supreme Court
    • Voting Behavior of Auditioners for Supreme Court
    • Auditioning for the Courts of Appeals
    • Voting Behavior of Auditioners for Courts of Appeals
    • Appendix: Court of Appeals Judges in the Supreme Court Promotion Pool, 1930–2010
  • Conclusion: The Way Forward
  • Acknowledgments
  • Index
  • * Figures:
    • Figure TI.1: Linear Regression
    • Figure 2.1: Fraction of U.S. Supreme Court Cases with at Least One Dissenting Opinion, 1801–2010 Terms
    • Figure 2.2: Pritchett’s Continuum of Liberal and Conservative Voting on the U.S. Supreme Court, 1939–1941 Terms
    • Figure 2.3: Relation between Ideology of U.S. Court of Appeals Judges and Their Votes
    • Figure 3.1: Unanimous Supreme Court Decisions, 1946–2009 Terms
    • Figure 4.1: Total Judicial Votes by Court of Appeals Judges, by Year Appointed
    • Figure 4.2: Fraction of Conservative Votes in Courts of Appeals, 1995–2008
    • Figure 4.3: Fraction of Reversals of Liberal versus Conservative District Court Decisions, Correlated with Fraction of Rs in Circuit, 1995–2008
    • Figure 6.1 Dissenting and Concurring Opinions in Supreme Court, 1950–2010 Terms
    • Figure 6.2: Ratio of Dissents to Cases Terminated on the Merits in the Fifth and Eleventh Circuits, 1971–2007
    • Figure 6.3: Caseload in the Fifth and Eleventh Circuits, 1971–2007
    • Figure 7.1: Questions and Words in Questions, 1979–2009 Terms
    • Figure 7.2: Distribution of Number of Questions to Petitioner and Respondent, 1979–2009 Terms
    • Figure 7.3: Distribution of Total Words in Questions to Petitioner and Respondent, 1979–2009 Terms
    • Figure 7.4: Mean Number of Words in Questions Asked Each Party, According to Which Party Wins, 1979–2009 Terms
    • Figure 7.5: Mean Number of Questions Asked Each Party, According to Which Party Wins, 1979–2009 Terms
    • Figure 7.6: Mean Number of Questions Asked Respondent and Petitioner, by Whether the Justice Voted for Respondent or Petitioner, 2004–2009 Terms
    • Figure 8.1: Mean Age of Federal Judges at Appointment, by Decade
    • Figure 8.2: Mean Age of Supreme Court Justices at Appointment, 1788–2010
  • ** Tables:
    • Table 1.1: Average Annual Number of Public Nonjudicial Events, by Justice, 2002–2009
    • Table 1.2: Justices’ Total Public Events by Category, 2002–2009
    • Table 1.3: Justices’ Total Public Events by Year, 2002–2009
    • Table 3.1: Votes by Supreme Court Justices in Non-unanimous Cases, 1937–2009 Terms
    • Table 3.2: Fraction of Conservative Votes in Non-unanimous Cases for 44 Supreme Court Justices Ranked from Most to Least Conservative, 1937–2009 Terms
    • Table 3.3: Correlation Matrix of Ideology Measures
    • Table 3.4: Supreme Court Justices, 1937–2009 Terms, Ranked from Most to Least Conservative by Three Measures
    • Table 3.5: Fraction of Conservative Votes in Non-unanimous Cases by Subject Matter and by Political Party of Appointing President, 1937–2009 Terms
    • Table 3.6: Fraction of Conservative Votes in Non-unanimous Cases by Subject Matter and by Judge’s Ideology, 1937–2009 Terms
    • Table 3.7: Regression of Ideological Divergence, Supreme Court, 1953–2008 Terms
    • Table 3.8: Average Age of Court of Appeals Appointments, Eisenhower to Obama
    • Table 3.9: Formal Precedent Alteration by Supreme Court, 1946–2009 Terms
    • Table 3.10: Description of Variables in Regressions of Unanimous Decisions, 1946–2009 Terms
    • Table 3.11: Logit Analysis of the Probability of Unanimous Supreme Court Decision, 1946–2009 Terms
    • Table 3.12: Fraction of Unanimous Decisions across Fine Subject-Matter Classes
    • Table 3.13: Logit Analysis of the Ideological Direction of Unanimous Decisions, 1946–2009 Terms
    • Table 3.14: Votes by Recently Appointed Justices (Beginning with Souter and Excluding Kagan)
    • Table 3.15: Definition and Means of Variables in Regressions of Non-unanimous Supreme Court Decisions, 1946–2008 Terms
    • Table 3.16: Regression Analysis of Supreme Court Votes in Non-unanimous Cases, 1946–2009 Terms
    • Table 3.17: Regression Analysis of Group Effects in Supreme Court, Justice-Specific and Fixed-Effects Models, 1946–2009 Terms
    • Table 4.1: Votes by Court of Appeals Judges, 1925–2002
    • Table 4.2: Votes, by Subject Matter and Ideology, of 538 Court of Appeals Judges, 1925–2002
    • Table 4.3: Fraction of Mixed (M), Conservative (C), and Liberal (L) Votes by 538 U.S. Court of Appeals Judges, Classified by Party of Appointing President at Time of Appointment, 1925–2002
    • Table 4.4: Fraction of Mixed (M), Conservative (C), and Liberal (L) Votes Cast by 538 U.S. Court of Appeals Judges, Classified by President at Time of Appointment, 1925–2002
    • Table 4.5: Fraction of Conservative Votes by Subject Matter and by Judge’s Ideology Based on Senatorial Courtesy Scores, 1925–2002
    • Table 4.6: Description of Variables in Regressions of Court of Appeals Votes, and Means
    • Table 4.7: Regression Analysis of Court of Appeals Votes, 1925–2002
    • Table 4.8: Regression Analysis of Court of Appeals Votes, 1960–2002
    • Table 4.9: Circuit Effects on Judges’ Votes
    • Table 4.10: Court of Appeals Judges’ Votes by Senatorial Courtesy Scores and Panel Composition, Sunstein Data, 1995–2008
    • Table 4.11: Yung’s Ex Post Ideology Rankings Correlated with Epstein-Landes-Posner Ex Ante Ideology Rankings
    • Table 4.12: Yung’s Ex Post Ideology Rankings and Epstein-Landes-Posner Ex Ante Ideology Rankings and Party of Appointing President
    • Table 4.13: Comparison of Ideological Voting in the Supreme Court and the Courts of Appeals
    • Table 4.14: Votes Correlated with Our Ex Ante Rankings, Showing Reversal and Panel Composition Effects for 142 Court of Appeals Judges, Sunstein Data, 1995–2008
    • Table 4.15: Regression Analysis of Votes by Current Court of Appeals Judges
    • Table 4.16: Distribution of Votes and Cases by Subject-Matter Area, Sunstein Data, 1995–2008
    • Table 4.17: Distribution of Panels in Cases by Circuit, Sunstein Data, 1995–2008
    • Table 4.18: Court of Appeals Judge Votes by Panel Composition and District Court Decision, 1995–2008
    • Table 4.19: Logit Regression of Probability of Conservative Votes by Court of Appeals Judges, 1995–2008
    • Table 4.20: Effects of Changes in the Number of Rs and Ds in a Court of Appeals of 12 Judges
    • Table 5.1: District Court Decisions by Type of Disposition and Ideological Direction of Decision, Sunstein Data, 1995–2008
    • Table 5.2: Votes of Court of Appeals Judges by Ideological Direction of District Court Decision, Sunstein Data, 1995–2008
    • Table 5.3: Fraction of Conservative Votes in Selected Subject-Matter Areas by R and D District and Court of Appeals Judges, Sunstein Data, 1995–2008
    • Table 5.4: Fraction of Conservative Votes by District Judges and Court of Appeals Judges, by Circuit, Sunstein Data, 1995–2008
    • Table 5.5: Definitions and Means of Variables in District Judge Regression
    • Table 5.6: Logit Regressions of Probability of Conservative District Court Decisions, Sunstein Data, 1995–2008
    • Table 5.7: Reversal Rate for R and D District Judges by Subject-Matter Area, Sunstein Data, 1995–2008
    • Table 5.8: Reversal Rates for District Court Judges Appointed by Republican and Democratic Presidents, by Circuit
    • Table 5.9: Reversal Rates by Ideological Direction of District Court Decision and Party of President Who Appointed District Judge, Sunstein Data, 1995–2008
    • Table 5.10: Logit Regressions of Reversal of District Court Decisions, Sunstein Data, 1995–2008
    • Table 5.11: Logit Regressions of Decision by District Judges to Dismiss, May 2006–June 2010
    • Table 5.12: Logit Regressions of a Conservative Vote by Court of Appeals Judges on Mixed Panels Only
    • Table 5.13: Voting by Rs and Ds in the Same Cases, Sunstein Data, 1995–2008
    • Table 5.14: Regression of Probability of Conservative Decision by an R versus a D District Judge on Levels of Appellate Court Deference to District Court Rulings
    • Table 5.15: Percentage of Below-Guideline and Above-Guideline Sentences, Fiscal Years 2000–2010
    • Table 5.16: Regression Analysis of Fraction of Criminal Sentences Below and Above Federal Sentencing Guidelines, 2000–2010
    • Table 5.17: Prison and Probation Sentences Imposed by District Judges Appointed by Republican and Democratic Presidents, Fiscal Years 2006–2011
    • Table 5.18: Prison Sentences Imposed by District Judges Appointed by Republican and Democratic Presidents in Cases That Went to Trial, Fiscal Years 2006–2011
    • Table 5.19: Prison and Probation Sentences Imposed by Northern and Southern District Judges Appointed by Republican and Democratic Presidents, Fiscal Years 2006–2011
    • Table 5.20: Regressions of Prison and Probation Sentences, Fiscal Years 2006–2011
    • Table 6.1: Dissenting Votes of Liberal (L), Moderate (M), and Conservative (C) Justices, 1953–2008
    • Table 6.2: Dissents and Panel Effects, Sunstein Data, 1995–2008
    • Table 6.3: All-Opinion Dissent Rates in the Courts of Appeals and the Supreme Court, 1990–2007
    • Table 6.4: Probability of at Least One Dissent in a Panel of Size n
    • Table 6.5: Probability of at Least One Dissent in a Panel of Size n with Ideologically Divided Judges
    • Table 6.6: Dissents in En Banc Cases in Federal Courts of Appeals, 2005–2010
    • Table 6.7: Dissent as Function of Willingness to Dissent, Ideological Differences, and Court Composition
    • Table 6.8: Ideological Voting
    • Table 6.9: Regression Analysis of Log of Dissent and Concurrence Rates in the Supreme Court, 1953–2008
    • Table 6.10: Average Number of Words in Majority Opinions in Supreme Court Cases in 1963, 1980, and 1990 Terms
    • Table 6.11: Regression Analysis of Words in Supreme Court Majority Opinions in 1960, 1983, and 1990 Terms
    • Table 6.12: Words in Majority Opinions in Court of Appeals Cases, 1989–1991
    • Table 6.13: Regression Analysis of Words in Majority Opinions in U.S. Court of Appeals Cases, 1989–1991
    • Table 6.14: Citations in Majority and Dissenting Opinions to 266 Supreme Opinions with Dissents, 1963, 1980, and 1990 Terms
    • Table 6.15: Regression Analysis of Citations in Supreme Court Majority Opinions to Dissenting Opinions in 1963, 1980, and 1990
    • Table 6.16: Citations to 82 Court of Appeals Opinions with Dissents, 1990
    • Table 6.17: Certiorari Petitions Denied and Granted in the 1986–1994 Terms Seeking Review of Federal Court of Appeals Decisions
    • Table 6.18: Regression Analysis of Log of Dissent Rates in Courts of Appeals, 1991–2006
    • Table 6.19: Dissents and Panel Effects for 72 Judges Who Took Senior Status between 1996 and 2007
    • Table 6.20: Dissents in Home and Other Circuits of 72 Judges Who Took Senior Status between 1996 and 2007
    • Table 6.21: Dissents and Age
    • Table 6.22: Dissent Rate Statistics for 24 Court of Appeals Judges
    • Table 7.1: Number of Questions Asked Petitioner and Respondent and Closeness of the Outcome, 1979–2009 Terms
    • Table 7.2: Summary of Variables in Regression Analysis of Petitioner Win Rate, 1979–2009 Terms
    • Table 7.3: Logit Regression of Probability of a Win for Petitioner, 1979–2009 Terms
    • Table 7.4: Logit Regression of Probability of a Win for Petitioner Given U.S. Government’s Participation in Case, 1979–2009 Terms
    • Table 7.5: Summary of Variables in Regression Analysis of Questions, 1979–2009 Terms
    • Table 7.6: Regression Analysis of Questions, 1979–2009 Terms
    • Table 7.7: Logistic Regressions of Votes of Each Justice on Number of Questions Asked by All Justices
    • Table 7.8: Number of Questions and Total Words in Questions by Individual Justices, 2004–2009 Terms
    • Table 7.9: Mean Number of Questions and Words to Petitioner and Respondent, 2004–2009 Terms
    • Table 7.10: Number of Questions by Ideology of Parties, 2004–2009 Terms
    • Table 7.11: Logistic Regressions of the Votes of Each Justice on the Number of Questions and Words, 2004–2009 Terms
    • Table 8.1: Promotions from Courts of Appeals to Supreme Court, by President
    • Table 8.2: Promotions from the District Courts to the Courts of Appeals, by President
    • Table 8.3: Appointments to Federal Courts
    • Table 8.4: Average Age of Appointment to Court of Appeals, by Appointing President
    • Table 8.5: Auditioners and Non-Auditioners among Active Court of Appeals Judges, 1930–2009
    • Table 8.6: Logit Regressions on Probability of Being an Auditioner, 1930–2009
    • Table 8.7: Fraction of Votes against Defendant in Criminal Appeals, Sunstein Data, 1995–2008
    • Table 8.8: Regression Analysis of Votes for Government in Criminal Appeals, Sunstein Data, 1995–2008
    • Table 8.9: Comparison of District Judges Promoted and Not Promoted to Courts of Appeals, 1981–2010
    • Table 8.10: Logit Regressions of Promotion to the Court of Appeals of District Judges Appointed between 1981 and 2010
    • Table 8.11: Predicted Probabilities of Promotion to Court of Appeals of Harsh, Moderate, and Lenient Sentencers
    • Table 8.12: Reversal Rates for Judges Promoted, Judges Not Promoted, Auditioners, and Non-Auditioners
    • Table 8.13: Prison Sentences Imposed by District Judges, Grouped by Length of Service, 2006–2011
    • Table 8.14: Regression of Prison Sentences Imposed by District Judges, Grouped by Length of Service, 2006–2011
    • Table 8.15: Prison Sentences Imposed by District Judges in and Not in Promotion Pool (i.e., Auditioners and Non-Auditioners), in the Same Districts, 2003–2011
    • Table C.1: Votes in Labor Cases in the Supreme Court between Business and Union, Employee, NLRB, or Other Government Agency, for Each Chief Justice from 1946 to 2009