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.
[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.