As I previously have discussed here and here, I’ve been working on a project examining when trial courts write opinions. With the help of statistician co-authors, I have investigated trial court dockets, trying to account for various factors that might lead a contested matter to either be explained through a traditional written opinion or issued in a brief order. Our resulting draft, “Docketology, District Courts, and Doctrine”, is now available from SSRN or from Selected Works. Here is an abstract:
Empirical legal scholars have traditionally modeled judicial opinion writing by assuming that judges act rationally, seeking to maximize their influence by writing opinions in politically important cases. Support for this hypothesis has reviewed published opinions, finding that civil rights and other “hot” topics are more to be discussed than other issues. This orthodoxy comforts consumers of legal opinions, because it suggests that opinions are largely representative of judicial work.
The orthodoxy is substantively and methodologically flawed. This paper starts by assuming that judges are generally risk averse with respect to reversal, and that they provide opinions when they believe that their work will be reviewed by a higher court. Judges can control risk, and maximize leisure, by writing in cases that they believe will be appealed. We test these intuitions with a new methodology, which we call docketology. We have collected data from 1000 cases in 4 different jurisdictions. We recorded information about every judicial action over each case’s life.
Using a hierarchical linear model, our statistical analysis rejects the conventional orthodoxy: judges do not write opinions to curry favor with the public or with powerful audiences, nor do they write more when they are younger, seeking to advance their careers. Instead, judges write more opinions at procedural moments (like summary judgment) when appeal is likely and less opinions at procedural moments (like discovery) when it is not. Judges also write more in cases that are later appealed. This suggests that the dataset of opinions from the trial courts is significantly warped by procedure and risk aversion: we can not look at opinions to capture what the “Law” is.
These results have unsettling implications for the growing empirical literature that uses opinions to describe judicial behavior. It also challenges the meaning of doctrine, as we show that the vast majority of judicial work – almost 90% of substantive orders, and 97% of all judicial actions – are not fully reasoned, and are read only by the parties. Those rare orders that are explained by opinions are, at best, unrepresentative. At worst, they are true black sheep – representing moments and issues where the court is most obviously rejecting traditional patterns and analyses.
I am very interested in receiving comments on this paper, particularly before the late summer, when we plan to submit it to the law reviews!
[Nit-seekers beware: there is one typo in the SSRN abstract. (Don't go find it, just trust me, it is there.) For what it is worth, I basically agree with Kevin Heller that SSRN should give users more control over author-submitted papers to make revision easier. ]