Measuring judges and justice

February 19, 2009Duke Law News

Feb. 18, 2009 — The attempt to empirically track how judges make decisions has emerged as a new and somewhat controversial area of study by social scientists and legal scholars over the last quarter century. A Duke Law conference on Feb. 6 brought together leading academics and jurists to discuss the quantification and codification of judicial decision-making. With faculty guidance from Professor Mitu Gulati, whose multidisciplinary research includes this area, the conference was hosted by the staff of the Duke Law Journal.

A series of panel discussions that included Chief Justice Ruth McGregor of the Arizona Supreme Court, Chief Justice Laurie Stith of the Missouri Supreme Court, and Chief Judge Anthony Scirica of the U.S. Court of Appeals for the Third Circuit, addressed, among other topics, the controversy surrounding this body of research. It is rooted in assertions that judges tend to make decisions based on their policy preferences, an “attitudinal model” has been rejected by many judges.

In his introductory remarks, Dean David Levi, formerly the Chief U.S. Judge for the Eastern District of California, offered the hope that the conference would open an ongoing discussion between judges and legal and social-science scholars.

“For many years academics and judges have been thinking about the judiciary from their individual scholarly or practical perspectives,” he said. “The scholars attempt to evaluate the structural, behavioral, and institutional factors that influence particularly individual judicial decisions … while the judges have been studying ways to become more efficient in the face of increasing caseloads while improving consistency and overall fairness.”

During a lunchtime panel, Duke Law scholars focused on an article by Professor of Law and Political Science Jack Knight, titled “Are Empiricists Asking the Right Questions About Judicial Decisionmaking?”

Introducing the discussion, Knight argued that “social science explanations ought to be able to inform the normative assessments of the quality of judges.” He acknowledged, however, judges’ skepticism regarding social science research, “both in terms of its persuasiveness and in terms of its relevance.”

“Much of the time when that complaint is leveled, it’s leveled not at empirical study of judicial decision making, but it’s leveled at the increasingly great inclination of legal academic scholars to delve into realms of high theory,” suggested Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies. “‘What’s the relationship between Foucault and the theory of debt relief in Iowa in the 1800s?’”

But Schroeder admitted that there is a gap between many social scientists and judges regarding judicial decisions, as well. “When the topic does turn to what the empirical social science scholarship is on judicial decision making, usually ‘useless’ isn’t the most critical word that’s used,” he said. “There can be downright hostility. ‘Those people just don’t understand what we do, they haven’t captured it at all.’ A great deal of this has to do with the fact that the first prominent scholarship, right out of the box … was the attitudinalist school that equated results with judges following their policy preferences, and nothing more. It was an entirely reductionist hypothesis.”

H. Jefferson Powell, the Frederic Cleaveland Professor of Law and Divinity, said that attempts to explain judicial decision-making criteria as anything other than purely legal have long been controversial. “We’ve been having this conversation for a very long time,” said Powell, citing a 1929 article titled “The Judgment Intuitive: The Function of the Hunch in Judicial Decision,” by U.S. District Court Judge Joseph Hutcheson. Hutcheson’s work is remarkably similar to modern work on the subject, said Powell.

Professor Ernest Young voiced skepticism about applying social science to judicial decision making, recalling a statement made by U.S. Supreme Court Associate Justice John Paul Stevens.

“He said he couldn’t understand why all these newspaper reporters and people who write about the court wanted to know what was going on behind the scenes and what were the real reasons for the decisions,” Young recounted. “He said, ‘Look, unlike any other part of the government, we’re the only part of the government that issues these exhaustive written explanations for why we did what we did. They should just read the opinions that would tell them why we did what we did.’ And I think there is something to that, that the reasons that are given are frequently the reasons [for the decision], or at least maybe we shouldn’t sell that idea too short.”

Duke Law Journal Editor-in-Chief Jeffrey Chemerinsky ’09 said the conference facilitated a first-of-its-kind exchange. “The judges brought important insights and perspectives that only they could provide,” he said. “I hope the dialogue between judges and academics about this field will be ongoing. It is an exchange that I think both sides can benefit from.”
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