Academic journal article Duke Law Journal

Measuring Judges and Justice

Academic journal article Duke Law Journal

Measuring Judges and Justice

Article excerpt

Quantitative analysis has influenced and sometimes transformed many disciplines, including economics, finance, and public policy--even wine production, movie production, and athletic recruiting. (1) Its popularity varies, however, depending on whether its methods appear to produce results. For example, the "quants" who made portfolio management a science began to receive blame in 2008 for deflating the economy. Warren Buffett was particularly biting: "[B]eware of geeks bearing formulas." (2) In sports, some teams have considered firing scouts who judge prospective players by watching them play and instead evaluating talent based on empirical evidence of performance. (3) Empirical enthusiasts claim that statistics reveal valuable information that the plain eye and intuition overlook. But critics argue that the empirical movement shortchanges the value of traditional analytical methods.

Empirical scholars have begun to train these same tools on the judiciary. They have studied topics ranging from the economic effects of judicial systems to the influence of ideology on judicial decisionmaking. Unfortunately, empiricists have often failed to consult their studies' subjects--participants in the judicial system--about their research premises. At the same time, many in the legal system know little about this literature. Those few lawyers, legal scholars, and judges who are aware of empirical findings have often openly resisted them, particularly those studies that emphasize the attitudinal model, which, in its strongest form, claims that judges decide cases based on their policy preferences rather than legal doctrine. The attitudinal model, they say, betrays a cramped view of the law and represents a fundamental misunderstanding of what judges do.

Despite these criticisms, the still-nascent field of empirical legal studies is growing. As databases become more comprehensive and the technology necessary to process data improves, empirical scholars are likely to produce more and more sophisticated analyses of legal decisionmaking. (4) But what has the discipline offered the law so far? Many courts already use data-driven analyses to improve administrative functions, such as assigning cases, monitoring potential biases, and creating issue-specific courts. If quantitative approaches are valuable in these areas, could they also offer useful lessons for traditional legal analysis? In light of the legal community's objections that empiricists fail to understand how lawyers and judges really argue and decide cases, we thought it would be useful to bring empirical scholars and the people they study together for a day of discussion.

The conference focused on several questions:

1. How, if at all, can quantitative measurements explain judicial behavior?

2. What objective criteria for evaluating judicial decisonmaking would help judges improve?

3. Why do judges resist the attitudinal model and other models of judicial behavior?

4. How could researchers adjust their models or methods to better reflect how the legal system operates?

This Symposium emerged from Dean David Levi and Professor Mitu Gulati's course at Duke Law School on the study of judicial behavior. Dean Levi, a former federal district judge, and Professor Gulati, whose work includes empirical studies of the judiciary, helped us assemble a group of empirical scholars to present papers and professors and judges to respond. Trial and appellate judges came from federal and state courts from across the country. Many of them have held administrative roles within the judiciary in addition to their day-to-day courtroom duties. Some judges were familiar with the empirical literature; others were not. The same was true of the doctrinal scholars we invited. This mix, we hoped, would provide a range of perspectives to improve future empirical research and the legal community's familiarity with the empirical literature. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.