

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