Data Collection in Comparative Judicial Research: a Note On the Effects of Case Publication Upon Theory Building and Hypothesis Testing

• Published date: 01 September 1992
• DOI: 10.1177/106591299204500313
• Date: 01 September 1992
• Subject Matter: Articles

DATA
COLLECTION IN COMPARATIVE
JUDICIAL
RESEARCH: A NOTE ON
THE EFFECTS OF CASE
PUBLICATION UPON THEORY BUILDING AND
HYPOTHESIS TESTING
BURTON M. ATKINS
Florida State University
espite
important advances during the past few decades in the
study of courts and judicial behavior, much of the theory and
~
data developed by social scientists for understanding legal
systems remain largely the product of, and thus bound to, the inevi-
table peculiarities of the American context.’ This represents a curious
inconsistency in the logic of our research agenda since the scientific
method to which we adhere is supposed to encourage theory building
and description at the broadest level. Yet, as Tate has argued (e. g. ,
1983, 1987) social scientists have not been sufficiently aggressive in
examining the generalizability of models of the judicial process that
have emerged from the American context.2
2
Received: March 19, 1991
Accepted for Publication: September 16, 1991
Note: This is a revised version of a paper originally presented at the Annual Meeting
of the Southwest Political Science Association, Fort Worth, Texas, March 30,
1990. The research was supported by a grant from the National Science
Foundation (SES-86-7878) and by grants from the Florida State University
Foundation. I wish to thank Florida State University for extending to me the use
of its facilities at its London Study Center. I must thank Mr. Stuart Cole, who
was at the time these data were being assembled the Chief Librarian of the
Supreme Court Library at the Royal Courts of Justice, for allowing me access to,
and use of, the Library’s materials and facilities. Mr. Cole proved to be very
patient in answering my many questions about the Court of Appeal and the
transcripts of its judgments. Mr. Gavin Drewry, Professor of Public Admin-
istration at the University of London, spent many hours with me discussing the
English legal system. These discussions helped me immeasurably in the
conceptualization and execution of the larger project from which this study is
drawn. Mr. Peter Ruckman served admirably as my research assistant and
helped in much of the data assembly and analysis. Neither he, nor Messrs. Cole
and Drewry, of course, bear responsibility for any errors of fact or interpretation
that I may have committed.
1
To some extent all systems have idiosyncrasies that interfere with our ability to make
generalizations. There is considerable literature, however, suggesting that the
American system is a deviant case from general patterns observed around the
world. For a discussion of American exceptionalism see Shafer (1989).
2
Some scholars have, however, examined courts in various political systems, although

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Tate suggests (1983: 57-58) that the reasons for this may have less
to do with agreeing upon the importance of cross-national research for
theory construction and hypothesis testing than with overcoming sev-
eral difficulties in assembling satisfactory data bases. One difficulty is
that official reports of judicial decisions in other countries are not
always accessible. Another is that, because many judicial decisions are
unreported by the legal authorities, such published records are not
always comprehensive. This is common even in the United States.
The Federal Supplement, for example, reports only about 10 percent of
district court decisions and the Federal Reporter contains only about half
the decisions handed down by courts of appeals (Steinstra 1985)3
The latter of these two problems is perhaps more troublesome
because it affects the quality of inferences we make about any court for
which all decisions are not published, especially when, as is the case
with foreign legal systems, we have little information either about the
process determining which decisions are published or the rate at which
they are chosen. In the absence of such parameters, it is difficult to
assemble empirical reference points to support inferences about courts
and judicial behavior in any system. Thus, even if scholars were to
overcome obstacles regarding the accessibility to official reports, it
would remain problematic whether we could make accurate and reli-
able inferences about courts if a large proportion of decisions were not
included in the published records.
This is the specific issue I address in this note. Since my interest,
like Tate’s, is in exploring problems in conducting cross-national judi-
cial research, I shall focus on whether selective publication affects the
inferences we would draw about the English Court of Appeal.4 Like
not always with an express commitment to theory building or empirical testing.
The collections of research published by Schubert and Danelski (1969) and
Schmidhauser (1987) stand as among the better...