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Rule of Law Baselines for Judging

By Jack M. Balkin

This paper lays out a project that might be of interest to political scientists who study judicial decision making. I will gladly provide feedback to anyone who takes it up. Here is the abstract for the paper:

Political scientists and law professors have lately taken to asserting that quantitative studies of judging reveal worrisome findings about the rule of law in the U.S. judicial system. The authors of Are Judges Political?, for example, declare: ?We show that variations in panel composition lead to dramatically different outcomes, in a way that creates serious problems for the rule of law.?

To evaluate such assertions, one must first know what the rule of law requires of judges; then one must identify or measure how much, or in what ways, judges are falling short of these requirements: there must be rule of law baselines or standards. None exist, however - a gap which allows researchers to draw misleading conclusions from the results of their studies. This essay demonstrates the need for rule of law baselines and offers several proposals for how they might be constructed (with due warnings about their limitations). Furthermore, it argues that the incorporation of such baselines into quantitative research on judging will enhance the value of the information produced in these studies.

Full post as published by Balkinization on February 24, 2010 (boomark / email).