Explaining U.S. Circuit Court Decision Making

By Cross, Frank B. | Judicature, July/August 2004 | Go to article overview

Explaining U.S. Circuit Court Decision Making


Cross, Frank B., Judicature


Theoretical writing and existing empirical research have suggested several, sometimes conflicting, theories of judicial decision making. The most common theory is that judges decide cases in accordance with their ideology. At the Supreme Court level, this theory is supported by considerable documentation. Studies of circuit courts have likewise identified an ideological determinant of judge votes, but the existing studies have generally focused on a fairly narrow group of cases (e.g., D.C. Circuit Court of Appeals rulings on regulatory matters) that may be intrinsically political in nature.

Some argue that, the law drives circuit court decisions, as it is supposed to, but there has been little proof to support this claim. Economists generally argue that the litigants themselves are the leading determinants of case outcomes, given their ability to settle and selectively push favorable cases to decisions. The current theory among many political scientists employing rational choice analysis is that judges decide cases strategically and in a fashion that attends to their hierarchical superiors, such as the Supreme Court, in order to avoid (he reversal of their rulings.

This article, using data from the U.S. Court of Appeals database, summarizes my recently published study1 and adds some new data on circuit court decision making. Each of the above theories is examined, both in isolation and with controls for the alternative theories. The empirical testing of judicial decisions is by nature highly imperfect. It is difficult to assign ideological preferences to individuals. It is even more difficult to measure the true effect of the law, because every circuit court decision is grounded in at least a colorable legal claim to its validity. The great size of the circuit court database makes precise measurement even more difficult because of the time required to code thousands of cases for particular variables. Although these measurement difficulties must be borne in mind, they do not defeat the empirical project. Specification errors such as these are more likely to hide or understate a true effect than they are to yield a spurious correlation. Hence, when the data yield significant results, such findings are meaningful.

Legal theories

Although the most obvious explanation for circuit court decision making is legal, this explanation has seen only limited empirical testing. While this seems to be a serious shortcoming in the quantitative research, there are two sound reasons for the limited quantitative analysis of the legal model of judicial decision making. First, it is very difficult to operationalize a quantitative empirical test with legal variables. Doing so requires some means of coding what the correct legal outcome would be, which is difficult to specify objectively. Second, while legal academics may find the significance of law obvious, many social scientists find it relatively implausible. They presume that people strive to fulfill their preferences or utilities, while the law is more like a duty that would drive decisions only when enforced.

One shortcoming in the social scientific theory is the pre-empirical presumption that individuals such as judges do not have preferences for deciding according to law. It is certainly plausible, especially given the socialisation process of legal training, that judges would affirmatively prefer to render legally correct decisions, even at the expense of their ideological preferences. Moreover, it is too simplistic to presume that people's actions are wholly unaffected by their notions of duty, judges commonly profess to be deciding cases according to the law. However, judges also commonly confess that the law underdetermines the outcomes of some percentage of cases (at least "hard cases"), so that other (actors such as ideology may drive decisions in those actions. Some quantitative empirical measurement is needed to determine how important the law is in circuit court decision making. …

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