Case Selection in Judicial Impact Research

• Author: Donald R. Songer
• Published date: 01 September 1988
• Date: 01 September 1988
• DOI: http://doi.org/10.1177/106591298804100310
• Subject Matter: Articles

CASE

SELECTION

IN

JUDICIAL

IMPACT

RESEARCH

DONALD

R.

SONGER

University

of

South

Carolina

OR

at

least

several

decades

scholars

have

been

aware

that

United

States

Supreme

Court

decisions,

while

technically

binding

on

the

JL

lower

courts,

do

not

automatically

determine

the

outcomes

of

cases

decided below.

As

a

result,

numerous

studies

assessing

the

impact

of

the

Supreme

Court

have

been

published

(see

Wasby

1970;

and Johnson

and

Canon

1984,

for

a

summary

and

discussion

of

this

literature).

The

accuracy

and

meaningfulness

of

the

conclusions

reached

in

these

impact

studies

are

of

course

dependent

on

the

validity

of

the

methods

used

to

collect

and

analyze

the

data

which

form

the bases

of

the

conclu-

sions.

However,

several

widely

used

methodological

conventions

have

received

little

critical

examination.

One

such

convention

is

the

use

of

Shepard’s

Citations

to

locate

cases

for

analysis.

The

present

study

uses

an

analysis

of

the

impact

of

two

Supreme

Court

decisions

on

three

state

supreme

courts

to

assess

the

utility

of

Shepard’s

Citations

for

case

selec-

tion

in

judicial

impact

studies.

The

first

critical

step

in

any

impact

research

is

to

select

the

lower

court

cases

to

be

included

in

analysis.

Many

previous

studies

have

relied

on

Shepard’s

Citations

(e.g.,

Canon

1973,

1974;

Combs

1982;

Gruhl 1980,

1981a,

1981b; Johnson

1979,

1981;

Note

1974;

Romans

1974).

Shepard’s,

which

is

widely

used

in

the

legal

community

to

evaluate

the

status

of

existing

precedents,

reputedly

reports

all

citations

of

Supreme

Court

de-

cisions

in

subsequent

lower

court

opinions.

In

order

to

use

Shepard’s

to

locate

cases

for

impact

analysis,

one

looks

up

the

citation

to

the

Su-

preme

Court

case

of

interest.

Under

this

heading,

Shepard’s

lists

the

ci-

tations

of

all

cases

in

which

the

lower

court’s

opinion

cited

the

Supreme

Court

case.

In

order

to

be

included

in

Shepard’s

the

lower

court

opinion

must

give

the

full

citation

to

the

case.

For

example,

only

those

opinions

in

which

the

Miranda

decision

is

listed

as,

&dquo;Miranda

v.

Arizona,

384

U.S.

436&dquo;

will

be

included

in

Shepard’s.

If

a

lower

court

opinion

only

refers

to,

&dquo;the

Miranda

decision&dquo;

or

only

discusses

the

rule

of

law

an-

nounced

in

Miranda

without

explicitly

citing

the

case

(e.g.,

if

the

opin-

ion

says,

&dquo;prior

to

his

confession,

the

defendant

waived

all

rights

guaranteed

by

recent

decisions

of

the

Supreme

Court&dquo;)

then

the

case

will

not

be

included

in

Shepard’s.

Although

unpublished

opinions

and

orders

are

not

included

in

Shepard’s,

the

publishers

of

Shepard’s

claim

that

it

references

all

citations

contained

in

published

opinions,

including

those

in

very

brief

per

curiam

and

memorandum

decisions.

Received:

March

13,

1987

Revision

Received:

September

9,

1987

Accepted

for

Publication:

September

14,

1987

NOTE:

The

author

gratefully

acknowledges

the

Project

87

grant

which

made

possible

the

collection

of

some

of

the

data

included

in

this

study.