Competing theories of judicial decision-making: formalism
March 09, 2021
Arnold & Porter
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We begin our analysis by delving into the very foundation of the entire data analytics appraisal fellowship: competing theories of judicial decision making.
By far the oldest theory is commonly known in the literature as “formalism”. This is the theory we all learned in law school that any decision affects four factors, each of which is completely outside the background and ideology of the individual judge: (1) the acts of appeal; (2) the applicable law; (3) control precedent; and (4) judicial consultations (at least in the appeal world). As Judge Richard Posner of the Seventh Circle pointed out, Blackstone described the formalist theory when he described Richter as “the keepers of law; the living oracles who decide in all cases of doubt and who are bound by an oath” according to the law of the land to decide. “In Federalist Paper No. 78, Alexander Hamilton advanced the same theory when he wrote that judges” have neither direction of strength nor wealth of society and cannot find any active solution at all, but are said to have neither strength nor will just judgment. “
More recently, Chief Justice Roberts advocated the formalist theory when at his confirmation hearing he compared a Supreme Court judge to a baseball umpire – just balls and punches, never pitching or hitting. For decades, politicians have promoted the formalist ideal when they insist that judges merely interpret or discover the law instead of making it (such comments seem to be most often made in connection with complaints that one or the other judge has failed this ideal ).
The adequacy of formalism as an explanation of how court decisions are made has been questioned for generations. As I noted two posts ago, Charles Grove Haines showed in 1922 that New York City judges appeared to impose very different sentences on objectively indistinguishable DUI cases. Many observers have suggested that when formalism (which assumes there is definitely a correct answer that is completely alien to judges) best explains how appellate courts actually work, dissent should be extremely rare, if not unknown . In fact, dissent is quite rare in intermediate appeals courts when you consider both unpublished and published decisions. In the courts of last instance and in all courts of appeal, if you take into account the published decisions that shape the law, the dissent is usually between 20 and 45%. Other observers have suggested that a strict formalism cannot explain the importance of diversity in the judiciary, assuming that the legal or political ideologies and personal backgrounds of individual judges are completely irrelevant.
Still others have pointed out that even those politicians who support the ideal of formalism have never really believed that it explains decision-making in the judiciary. As Professors Lee Epstein and Jeffrey A. Segal point out in their book on the Politics of Appointment of Judges in Advice and Consent, 92.5% of the 3,082 lower federal court appointments made between 1869 and 2004 went to members of the own party of the president. Certainly this number would be much lower if the philosophy of a single judge did not influence decision-making in the judiciary.
Critics of formalism in particular have argued that it is actually possible to predict appeal decisions relatively well over time based on factors unrelated to the facts of a particular case and legal doctrine. For example, in a 2004 study by Theodore W. Ruger and others, the professors attempted to predict the outcome of each case before the US Supreme Court during the 2002 semester using a six-factor model: (1) cycle of origin; (2) the problem in question; (3) the nature of the petitioner; (4) the type of respondent; (5) whether the lower court’s decision was liberal or conservative; and (6) whether the petitioner has questioned the constitutionality of a law or practice. They compared the model’s predictions to the results of independent predictions made by legal specialists. The statistical (and decidedly non-formalistic) model correctly forecast 75% of the Court’s results. The legal experts were correct 59.1% of the time.
Image courtesy of Flickr by Ken Lund (no changes).
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