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Judged by the Company You Keep

Corey Yung

Corey Rayburn Yung is an Associate Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

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6 Responses

  1. Do you include unpublished opinions in your dataset? They are tricky to handle because review of unpublished opinionsis much more concentrated in central staff and, therefore, present different problems than published opinions? Moreover, unpublished opinions are 83% of the caseload of the federal appellate courts.

  2. Corey Yung says:

    Hi Bill,

    My dataset includes unpublished opinions. Because standards of review were my original focus (for my measure of judicial activism), that was the touchstone for how the data was accumulated. The dataset includes 2008 cases from the 11 numbered circuits (Fed. and D.C. are excluded) that used a standard-of-review-related word excluding immigration and habeas cases. I have not yet focused on the differences regarding published and unpublished opinions in regards to my measures. However, as you mention, because they are a significant part of the federal docket and because prior databases had largely omitted them, I felt it important to include unpublished opinions.

    Corey

  3. Dan Culley says:

    It seems odd to reduce ideology to a single score, even an agnostic one, unless I’m missing something. Even within a single issue, there’s rarely a linear spectrum of possible ideologies. It seems like it might make more sense to identify distinct clumps of judges who tend to vote like one another within some given threshold.

  4. Bryan Gividen says:

    Dan,

    Corey addresses that shortcoming in his full paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618665). He admits his linear ideology scale is merely a starting point for further research.

  5. Ken Rhodes says:

    In ops research there is an important concept called “Pareto optimal.” A set of solutions, or a “solution space,” is Pareto optimal iff no solution is better than others in the set, and no solution outside the set is better than the ones in the set. (That’s a simplification, but it gets the main point across.)

    When one has a diverse set of objective functions, as do most of us in trying to define our political preferences, then a single linear measure of satisfying those objectives is frequently not practical.

    In the current context, I think measuring “ideology” is seen as an attempt to measure the degree of conformance to a set of solutions that conform to our personal objectives.

    This can be a VERY complicated problem.

  6. Corey Yung says:

    Hi Dan and Ken,

    Bryan is right that I think more research needs to be done on this. I would also add a few other points. First, it is very difficult to identify in an objective manner a variety of different viewpoints of judges even on a single issue. For example, I’m quite sure that there are numerous perspectives of free speech restrictions of obscenity. Judge Kozinski’s in particular might stick out. However, how many judges could you really identify as belonging to different camps? To have an effective measure of ideology, you would probably need to identify multiple persons in each camp on each circuit (due to the limited interaction of the judges on the circuits). And how would you objectively figure out who fits in what camp? There are no easy answers to those questions right now.
    Second, at least in one sense, viewpoints in judicial cases can usually be reduced to two sides: the parties. Usually one wins and one loses. From that standpoint, in the aggregate, we can identify where a judge fits. For example, if a judge is really liberal and often feels that his/her colleagues are not liberal enough, he or she is still not likely to dissent from their decisions. However, he or she might be more likely to dissent from moderate conservative decisions.
    Third, in our American two-party system, there is a common collection of views as defined by our political system. Because federal judges are appointed as a product of that system, it should not be surprising if a great many of them are reducible to our normal ideological continuum.
    If someone could identify: 1) more strains of ideology; and 2) an objective means of coding for them, they would really have something worthwhile. However, given the state of current ideology measures, I think that is a project for another day.

    Corey

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