Legal Theory Blog

Choi, Gulati, and Posner Rank State Courts

Stephen J. Choi , G. Mitu Gulati and Eric A. Posner (New York University - School of Law , Duke University - School of Law and University of Chicago - Law School) have posted Which States Have the Best (and Worst) High Courts? on SSRN. Here is the abstract:

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

A bit more from the paper:

In earlier work, we showed that the relationship between institutional design and judicial quality is complex, and does not lend much support to the conventional wisdom. Appointed judges write more frequently-cited opinions than elected judges do, but elected judges are more productive, while there seems to be no difference between their levels of independence.18 Judicial pay has little effect on judicial quality, except among elected judges, who are more productive when paid more.19 It is not the purpose of this Article to review or reproduce these findings. Our goal instead is to generate a ranking of the state high courts on the basis of the data that we collected for the earlier studies. We will argue that our ranking overcomes many of the defects of the U.S. Chamber of Commerce study, as well as those of earlier academic work.

Rankings make people uneasy. They seem to trivialize activities that are of public importance, and they may stimulate the ranked agents or institutions to engage in destructive competition or demoralize those that have no ability to escape from the bottom. The most serious objection to rankings is that they unavoidably rely on measures that neglect hard-toobserve but important aspects of performance. If nonetheless those who achieve a high ranking are rewarded with resources or public esteem, institutions will distort their missions so as to do well on whatever measures are used.20

We address this objection by making our rankings as transparent and flexible as possible. Readers might disagree about how to weight the different measures that we use, and we show how such disagreements may lead to different rankings of the state courts. The alternative to rankings is, as a practical matter, virtually no information, and public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well. Rankings, however imperfect, serve an important information-forcing function.21 Institutions that do poorly on rankings should have the burden of coming forth with an explanation for their performance; but if the explanation is plausible, then the ranking should be discounted. Better still, if the stakes are high enough – and the amounts of money spent by institutions like the U.S. Chamber of Commerce on commissioning rankings suggest there are22 – competitor rankings should emerge that improve upon the prior ones.

A must read.  And even if these rankings are imperfect, they are certainly a huge improvement over the status quo.  Bravo!

Niblett, Posner, and Shleifer on Evolution of a Legal Rule

Anthony Niblett (Harvard University - Faculty of Arts and Sciences), Richard A. Posner (United States Court of Appeals) & Andrei Shleifer (Harvard University - Department of Economics) have posted The Evolution of a Legal Rule on SSRN. Here is the abstract:

The efficiency of common law rules is central to achieving efficient resource allocation in a market economy. While many theories suggest reasons why judge-made law should tend toward efficient rules, the question whether the common law actually does converge in commercial areas has remained empirically untested. We create a dataset of 465 state-court appellate decisions involving the application of the Economic Loss Rule in construction disputes and track the evolution of law in this area from 1970 to 2005. We find that over this period the law did not converge to any stable resting point and evolved differently in different states. We find that legal evolution is influenced by plaintiffs‘ claims, the relative economic power of the parties, and nonbinding federal precedent.

Very interesting. 

Benforado & Hanson on Situationalism

Adam Benforado and Jon D. Hanson (Harvard Law School) have posted The Great Attributional Divide: How Divergent Views of Human Behavior are Shaping Legal Policy (Emory Law Journal, Vol. 57, 2008) on SSRN. Here is the abstract:

This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people's dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should be a major priority of legal scholars. With such information, legal academics could predict which individuals, institutions, and societies are most likely to produce situationist ideas¿in other words, which have the greatest potential for developing the accurate attributions of human behavior that are so important to law.

A good introduction.  I have grave doubts about the situationalist program based on extensive reading of the underlying social psychology literature, but this is interesting work and this paper is certainly recommended.

Eisenberg & Heise on an Empirical Study of State Court Trials on Appeal

Theodore Eisenberg and Michael Heise (Cornell University - School of Law and Cornell Law School) have posted Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal on SSRN.  Here is the abstract:

Two findings dominate prior empirical studies of federal civil appeals. First, appeals courts are more likely to disrupt jury verdicts than bench decisions. Second, trial court defendants fare better than plaintiffs on appeal. But federal cases are limited by subject matter and comprise a small fraction of the nation's civil litigation activity. This study, which exploits a uniquely comprehensive database of state court trials and civil appeals, presents the first statistical models of the appeals process for a comprehensive set of state court civil trials. Using data from 46 large counties consisting of 8,038 trials and 549 concluded appeals, we find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials. Both descriptive analyses as well as more formal selection models point to appellate judges' attitudes toward trial-level adjudicators as an important explanation for these asymmetric outcomes of civil appeals in state courts. Our results are generally consistent with prior research on federal court appeals but also suggest a higher reversal rate of trial outcomes in state court compared to federal court.