The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

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Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.

The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.

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Editorial Reviews

Mitu Gulati
The Behavior of Federal Judges has the potential to radically reorient the entire field of research into judicial behavior, one of the most exciting fields in law, economics, and political science. Epstein, Landes, and Posner go beyond the artificial divisions amongst these fields, and show how their different perspectives can be combined into a powerful model that not only makes enormous sense theoretically, but is backed by a mountain of data across all levels of the federal judiciary. I have little doubt that, in the years to come, this book will be seen as having begun a new type of scholarship on judicial behavior and institutions.
William H. J. Hubbard
The Behavior of Federal Judges sets out to be the definitive book on the subject of judicial behavior. The authors establish a new mainstream in this exciting field—a unified model of judicial behavior that incorporates legal, economic, and political perspectives. There is no question that this book is a major work, providing both a benchmark and an agenda for future work.
New York Times - Adam Liptak
[The Behavior of Federal Judges] provides the most comprehensive and detailed empirical analysis yet of the role played by ideology and political affiliation in judicial decision making...It collects and analyzes a daunting amount of data.
New Republic - Cass R. Sunstein
The most detailed and elaborate quantitative analysis of the federal judiciary to date... [The authors] show that the role of judicial ideology gets a lot bigger as we move up the judicial hierarchy...Epstein, Landes, and Posner have produced the best and most comprehensive study of judicial behavior by reference to quantitative measures and statistical analysis. Their book will almost certainly define the field for many years to come...Epstein, Landes, and Posner have performed an important service in establishing the truths, and the limits, of both legalism and realism.
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Product Details

  • ISBN-13: 9780674049895
  • Publisher: Harvard
  • Publication date: 1/7/2013
  • Pages: 440
  • Sales rank: 1,517,797
  • Product dimensions: 9.20 (w) x 6.40 (h) x 1.50 (d)

Meet the Author

Lee Epstein is Provost Professor of Law and Political Science and Rader Family Trustee Chair in Law at the University of Southern California.

William M. Landes is the Clifton R. Musser Professor Emeritus of Law and Economics at the University of Chicago Law School.

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

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Table of Contents

List of Figures vii

List of Tables ix

General Introduction 1

Technical Introduction 17

Linear Regression

Logistic Regression

Miscellaneous Points

1 A Realistic Theory of Judicial Behavior 25

Three Concepts of Legal Realism

The Labor-Market Theory of Judicial Behavior

The Judicial Utility Function

The Legalist Countertheory of Judicial Behavior

Antirealism Personified: Judge Harry Edwards.

2 The Previous Empirical Literature 65


Ideology Measures

Previous Studies of Judicial Ideology

Other Influences

Appendix: Empirical Studies of Judicial Behavior

3 The Supreme Court 101


Ideological Voting by Justices

Changes in Justices' Ideology

Unanimous Decisions: The Role of Ideology

Non-unanimous Decisions: The Role of Ideology

Non-unanimous Decisions: Group Effects.

Appendix: The Corrected U.S. Supreme Court Database.

4 The Courts of Appeals 153


Explaining the Judges' Votes (1)

Explaining the Judges' Votes (2)

Group Influences in the Songer Data.

Ideology, Conformity, and Panel Composition Effects in the Sunstein Data

Appendix A The Original and Corrected Songer Database

Appendix B The Original and Expanded Sunstein Database

Appendix C Measures of Ex Ante Ideology of Supreme Court Justices, 1937-2009.

5 The District Courts and the Selection Effect 207

District Court Decisions Derived from the Sunstein Database

Ideological Influence on District Judges



Another Selection Effect

The Paradox of Discretion

Ideology in Sentencing

6 Dissents and Dissent Aversion 255

Costs and Benefits of Dissenting

The Effect of Panel Composition

A Formal Model of Deciding Whether to Dissent

Empirical Analysis

Effects of Senior Status and Age on Dissent Rates

7 The Questioning of Lawyers at Oral Argument 305

Empirical Analysis

Number of Questions or Number of Words?

Explaining Variations in the Number of Questions and the Total Number of Words in Questions

Individual Justices

8 The Auditioners 337

Appointment and Promotion in the Federal Judiciary

Auditioning for the Supreme Court

Voting Behavior of Auditioners for the Supreme Court

Auditioning for the Courts of Appeals

Voting Behavior of Auditioners for the Courts of Appeals.

Appendix: Court of Appeals Judges in the Supreme Court Promotion Pool, 1930-2010

Conclusion: The Way Forward 385

Acknowledgments 405

Index 407

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