Appearances Are Deceiving

A wit once said that the UK and the US are two countries separated by a common tongue. That comment is equally applicable to aspects of the legal system shared by the US, the UK and Canada. 

What’s below is an example of why it isn’t safe to blithely assume the seemingly similar is similar.

Can anyone imagine untenured Canadian legal academics undertaking a study whose question is: why do motion and trial judges write judgments? Can we assume that admitting that that is what they were working on wouldn’t advance tenure prospects? If they mentioned that to the Dean, wouldn’t the answer be: because they have to as a matter of law, now go away and work on something useful?

That answer isn’t necessarily true in the US, at least at first instance (through trial). There’s an intriguing paper now out.

 

Hoffman, David A., Izenman, Alan and Li dicker, Jeffrey, “Doxology, District Courts, and Doctrine” (4/23/2007). Available at SSRN: http://ssrn.com/abstract=982130

[Added Apr 26/07. David Hoffman has reminded me, as you’ll see from his response in the first comment, that the first word in the title is supposed to be “Docketology”. See my response to that in the 2nd comment. There’s good reason to prefer the error.] 

This is the 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 institutions 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.

The use of American authorities is becoming more and more prevalent in Canadian judgments and legal scholarship; not just decisions of the US Supreme Court and lower appellate courts (federal or state) but even the first instance (trial) courts. I suppose I should keep this paper in my back pocket for the next time the other side goes to one of those lower courts for authority. “Excuse me, Your Honour, but I’d like to refer you to this recent study by three law professors from highly regarded institutions. The professors conclude that …”

I’ll let you know what happens, should the opportunity arise.

Comments

  1. David,

    Two small comments (apart from a nit, that the title is “Docketology . . .”, not “Doxology . . .,” which has the incidental virtue of not referring to the study of promiscuous women).

    First, I’m not sure exactly why canadian academics would be frowned upon for trying to see when judges spend more time on issues (writing an opinion) and when they spend less time (writing an order). Canada has its legal realists too!

    Second, I don’t know that the paper translates so easily to advocacy. Higher courts (in the States, at least) already discount the value of district court opinions – they are useful to the extent they are persuasive, which is rare – are Canadian courts treating US opinions differently?
    -DAH.

  2. Dave,

    This is Canada. Promiscuity of the type you’ve mentioned isn’t illegal; one just can’t legally do anything that legally amounts to charging for the activity. Besides, doxy or doxies aside, my version of the Concise Oxford defines “doxology” as “liturgical formula of praise to God”. So, are you certain you don’t want to leave the typo(?) version title in place. In the doxology form, the title might be “Pierre Schlag-worthy”, at least if irony is the key.

    Perhaps I’ve missed your first point. First instance judges here are required to give reasons sufficient to explain their conclusions. The nature of the issue defines how “deep” the reasons have to be. So, a study as to why they write at all would produce the answer: because they’re obliged to. A study as to why some seem compelled to rewrite War & Peace – to quote long passages from cases – rather than just summarizing the propositions and listing authorities except where the quotation is essential, as seems to be the US practice, might be useful. However, I suspect that some of us, already know the answer in some cases: you can’t be critized for what you haven’t said wrong.  If all the judge does is quote the governing cases’ key passages, and then say because, he or she can’t be accused of misunderestanding it. Any Canadian lawyer or academic can show you case after case in that form, some even the “leading” cases. That lets the appeal court, if it wants to, find the rationale in the cases, or say the judge got the law right but misapplied it to the facts.

    I’m not aware of Canadian judges discounting US authorities merely because the decision is that of a District Court judge rather than an one of the appellate levels, state or otherwise. In my experience (particularly in matters of insurance law) we will look to US authorities if there’s nothing here and assess them first for their cogency, not by their jurisdicition.  Ialthough some people have been known to suggest that if one looks hard enough one can find almost anything in some States. And, to be fair, many of us – depending on the subject matter – have a pecking order of how we’d rank the States or the federal circuits.) If there’s nothing at the appellate levels, we’ll move down. So, in short, a Canadian judge wouldn’t discount a US District Court opinion merely because it was a District Court opinion, but he or she might make some snarky comments about how far down the food chain his or her opponent had to search.

    Essentially, you’re saying that the (some) higher US judges know better than to rely on the adequacy of the scholarship of inferior court jduges. I’m sure that some superior or appellate level judges, here, feel that way about some judges in lower courts. However – with one exception I know about – in Reilly v. Lynn 2003 BCCA 49 (Southin J.A. dissenting – though this wasn’t the point of the dissent) when discussing the scope of appellate power to review lower court findings of fact, said that once upon a time it was important for that court to take into account which judge the appeal came from because of the quality of the judge – nobody says that openly. That doesn’t mean that local lawyers don’t have a good idea of which local judge(s) don’t have the best reputation at the next level.

    Cheers,

    David