Some thoughts on the study of judicial behavior.

• Author: Epstein, Lee
• Position: II. Substantive Areas of Interest B. Other Topics and Research Questions through Conclusion: The Future, with footnotes, p. 2050-2073

2. Other Topics and Research Questions

Work on the individual judge will continue; it is that essential to the judicial behavior project. At the same time, there has been an explosion of research on other topics. Below I very briefly reference ten: (1) judicial independence and dependence, (2) judicial selection and retention, (3) access to court, (4) opinions and precedent, (5) collegial courts, (6) the hierarchy of justice, (7) executives and legislatures, (8) litigants, attorneys, and interest groups, (9) public opinion and macroevents, and (10) implementation and efficacy of judicial decisions. (187)

Before turning to these topics, three notes are in order. First, I cannot do justice to any one of them. (188) My goal is rather to supply a bit of information on each if only to induce you to read more deeply. The footnotes provide some pointers (though if I tried to cite all the relevant studies, I would need an entire volume, maybe two, of the 'William & Mary Law Review).

Second, it is highly unlikely that my list of ten is inclusive. In fact, I know I exclude some topics on the ground that they do not fit squarely in the area of judicial behavior. One example is the analysis of clerks and other judicial staff. Although some of the studies attempt to draw a connection between the actors and the choices judges make, (189) many of them are devoted to studying the actors themselves. (190)

Finally, although I take each topic in turn, the ten (eleven if we count "The Judge") are far from mutually exclusive. This is entirely evident from the material that follows, so let me provide just one example--from Ramseyer and Rasmusen's study on Japanese judges. (191) Because the authors demonstrate that the judges' careers hinge on deference to the government, (192) this work makes a contribution to the literature on courts and elected officials. But it just as easily fits into the literature on "The Judge" as it speaks to the judges' interest in promotion and other careerist motivations. (193)

1. Judicial Independence and Dependence

   Studies focusing on judicial independence vary in their concerns. Some attempt to define the term "judicial independence," though there now seems to be convergence on conceptualizing it as the ability of judges to behave sincerely, whatever their sincere preferences may be and regardless of the preferences of other relevant actors, without fear of reprisal and with some confidence that political actors will enforce their decisions. (194) Other work has attempted to develop and analyze measures of de jure (for example, a constitutional guarantee of life tenure) or de facto (expert assessments, for instance) judicial independence (195) to understand why societies are more or less prone to adopt institutions associated with judicial independence (196) and to connect judicial independence to economic prosperity and human rights. (197)

   More relevant to the analysis of judicial behavior is research testing the assumption that de jure guarantees of judicial independence, in fact, lead to a more "independent" judiciary. Much of this work explores the relationship (or lack thereof) between measures of de jure and de facto independence (198)--for example, is there a connection between giving judges life tenure and experts rating the judiciary as "independent"? Fewer studies consider the relationship between de jure measures and actual judicial behavior (though the literature I referenced earlier on judicial elections in the states is an exception; more on this momentarily)--for example, is it the case, as the economic literature assumes, that courts with de jure independence are more likely to protect rights against government interference in actual judicial decisions? Both lines of research are equally interesting, but at this stage in the field's development, I would welcome more on the latter.

2. The Selection and Retention of Judges

   Societies have composed an impressive array of institutions to govern the selection and retention of judges--from life tenure, to a single nonrenewable term, to periodic election and reelection by the electorate. (199) And a substantial body of work considers the decisions of the actors who select (or retain) the judges--the President and Senate for federal judges, and governors, legislatures, commissions, and voters for state judges. (200)

   The literature on judicial behavior is more concerned with whether and how these various institutions affect the choices judges make (201)--and so is related to the work on judicial independence. If we define judicial independence as I have above, then we might expect that forcing judges to face the electorate or the legislature for renewal--relative to providing them with life tenure--leads to a more dependent judiciary because there are higher opportunity costs for voting on the basis of their sincere preferences. On this theory, a life-tenured system should lead to a more independent judiciary, with judges freer to vote as they desire.

   There seems to be some truth to this. Recall Tabarrok and Helland's study (among many others), demonstrating that when judges in the United States know that they must face the electorate to keep their jobs, the judges engage in sophisticated behavior, such as ruling for in-state plaintiffs and against criminal defendants. (202)

   These results are not surprising: when societies subject their judges to reelection, they are presumably trying to induce accountability. But what of life-tenured judges? Oddly, research has shown that U.S. Supreme Court Justices tend to vote as their appointing President would--almost as if the President appointed himself to the Court. (203) Perhaps this recurring pattern reflects loyalty on the part of life-tenured Justices, (204) or perhaps life-tenured Justices feel free to vote sincerely (without fear of reprisal) because they share the preferences of the regime that appointed them.

   And therein lies the rub for life-tenured schemes. Although they are designed to induce judicial independence, once the appointing regime changes, they can produce the opposite effect, or at least cause institutional problems for the judges. There is some limited evidence (not to mention famous anecdotes (205)) that as a life-tenured Court ages, attacks from the elected branches follow, with the judges ultimately caving to the pressure. (206) Seen in this way, nonrenewable terms, which are used in many European countries for their constitutional court judges, may be a better mechanism than life tenure for inducing judicial independence. (207) But we need far more work--necessarily comparative work--to get a better handle on this.

3. Access to Judicial Power

   Accessing courts is another substantial area of study in the judicial behavior literature, and it covers a lot of terrain. In past decades, the emphasis was on agenda setting in apex courts--mostly on the Supreme Court's decision to grant or deny certiorari. I think here of Gregory Caldeira, John Wright, and Christopher Zorn's justifiably famous analysis of case selection in the Supreme Court. (208) They show that Justices are less likely to vote to grant certiorari (that is, to agree to hear a case) when they think they will be on the losing side of the case if certiorari is granted, even if they would like to reverse the decision below (sometimes called a "defensive denial"). (209) Caldeira et al. also supply evidence of "aggressive grants": voting to hear a case when the Justice agrees with the lower court's decision because he believes that the majority of the other Justices do too. (210) This sort of strategic behavior may be contributing to the noticeable decline in the Supreme Court's plenary docket. (211)

   Work on certiorari is ongoing, (212) but scholars also have turned their attention to how courts interpret various threshold requirements. (213) In one of the first systematic studies, (214) C. K. Rowland and Bridget Todd found that Reagan appointees to the U.S. district courts were more likely to grant standing to "upperdog" litigants, relative to Nixon, Ford, and Carter appointees. (215) Also, following from the late, great William H. Riker's work on the "art of manipulation," (216) studies have explored whether and to what extent judges raise questions about standing, mootness, and the like to turn around a seemingly foregone loss. (217)

   Finally, I would include in this category research on how judges use various procedures to kick or keep cases on the docket. The Supreme Court's decisions in Bell Atlantic Corp. v. Twombly (218) and Ashcroft v. Iqbal (219) ("Twiqbal"), which made it easier for district courts to dismiss cases before any pretrial discovery, have led to a virtual cottage industry of studies assessing the impact of these decisions on lawyers and lower courts. (220) Depending on the case, the design, the data, and so on, studies have reached different conclusions. In a particularly smart article, William Hubbard finds that "Twombly precipitated no significant change in dismissal rates, even after accounting for selection effects." (221) Our analysis concluded much the same about Twombly, but not so of Iqbal. In the post-Iqbal period (June 2009 to June 2010), the predicted probability of dismissal increased by somewhere between 35 and 49 percent relative to their pre-Iqbal levels. (222)

4. Opinions and Precedent

   In the course of deciding cases, judges face countless choices, including, in many societies, whether to join the majority or write separately, and then how to craft their opinions. A substantial literature addresses these choices. For example, Landes, Posner, and I take up the puzzle of why judges sometimes do not dissent when they disagree with the majority. (223) Our basic argument is that dissents impose substantial collegiality costs on the other judges on the panel by making them work harder (for example, increasing the length of majority opinions), while the benefits of dissenting (such...