Title: Judges and Ideology: Public and Academic Debates about Statistical Measures
Abstract: I. INTRODUCTION Scholars who use empirical methods' to study behavior of judges long have labored in relative obscurity, unknown outside of academic circles (and indeed they only recently have emerged into mainstream of legal academy).2 However, seclusion of ivory tower has been breached, as public attention has become increasingly focused upon studies suggest influence of ideological or partisan variables on outcomes of court cases. Over last few years, statistical work of scholars on judicial decisionmaking has provoked controversy in wider legal community and has been enlisted by one side of ongoing war3 in political arena about appointment of federal judges. In one exchange, played out in law reviews4 but also reported in legal press,5 a leading federal appellate judge castigated work of empirical legal researchers as the heedless observations of academic scholars who misconstrue and misunderstand work of judges6 and which left misleading impression that judges are lawless in their decision making, influenced more by personal ideology than legal principles.7 In another instance, a United States Senator enthusiastically embraced an empirical study by one prominent law professor as purportedly confirming prevalence of partisan voting on federal appellate bench and thus as justifying opposition to certain judicial nominations by current administration.8 Given public notice received thus far, empirical research on judicial decisionmaking is likely to attract heightened attention in future. Simultaneously, within academy, two scholars from a political science background drew widespread notice in learned society when lamenting in pages of a leading law review state of empirical legal scholarship conducted by law professors was deeply flawed.9 As a prime example of alleged methodological errors prevalent in research conducted by legal scholars, these critics identified customary adoption by judicial behavior researchers of political party of appointing President as a proxy for political ideology or policy preferences of federal judges.10 These commentators decried this measure as unsound and as inferior to an alternative statistical construct recently developed in political science research. Law professors engaged in empirical research, including Authors of this present Article,12 responded in pages of law review, offering pointed responses both to general charge law professors regularly contravene fundamental methodological rules and to particular censure past studies using one measure became defective in method and worthless in judgment because an innovative approach subsequently had been introduced to scholarly community.13 In this Article, we begin by highlighting these three episodes in which empirical legal scholarship on judicial decisionmaking emerged from obscurity to become subject of disputation in a larger societal or academic arena-two disputes unfolded before public eye and another which was played out in legal academic discourse.14 We outline each controversy; identify major political, judicial, and academic players initiated or were drawn into debate; briefly describe empirical research involved; and summarize opposing arguments concerning implications of research for public policy or substance of academic debate.15 Next, through separate accounts pertinent to each venue/subject-the public/policy versus academic/methodological-we submit new evidence for consideration, drawn from our own continuing research on decisionmaking in lower federal courts. We report results of our comprehensive empirical study of religious freedom decisions in federal district courts and courts of appeals, most extensive and multi-faceted study of such decisions to date, with special focus here upon variables attempt to quantify anticipated ideological leanings of judges. …
Publication Year: 2005
Publication Date: 2005-01-01
Language: en
Type: article
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Cited By Count: 31
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