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For the past two weeks, we’ve been taking our first look at the composition of the California Supreme Court’s civil and criminal dockets, reviewing the sources of appellate jurisdiction from which the Court’s cases are drawn.  Today, we begin the final week of our analysis, covering the years 2011 to 2015.

Final judgments were a bit down in 2011 as a share of the docket, with the Court deciding 15 cases, or 46.88% of the civil docket.  The next biggest share of the docket was petitions for writ of mandate, at 21.88% of the docket.  The Court decided four certified questions, accounting for another 12.5%.  The Court decided three petitions for writs of administrative mandate.  The remainder of the docket was accounted for by one arbitration case, one workers’ compensation case, and one appeal arising from an anti-SLAPP motion.

Table 24

The following year, final judgments remained steady at 46.15% of the civil docket.  Traditional writ petitions and petitions for writ of administrative mandate each accounted for 15.38% of the docket.  The Court heard two cases arising from post-judgment orders, and two more arbitration cases (7.69% each).  Finally, the Court heard one case arising from an injunctive order, and one case under the Court’s original jurisdiction (3.85% each).

Table 25

In 2013, final judgments edged up slightly as a share of the civil docket, as the Court decided 17 such cases, or 53.13% of the civil docket.  Petitions for writs of mandate to the lower courts were another 21.88% of the docket.  The Court decided three certified questions, or 9.38% of the docket.  Petitions for writs of administrative mandate were down somewhat, as the Court heard only two.  Finally, the Court heard one case each arising from arbitration, an injunctive order, and an appeal from the Family or Probate Codes.

Table 26

Appeals from final judgments reached their highest level of recent years in 2014, amounting to 56.52% of the civil docket.  Petitions for writs of mandate to lower courts and writs of administrative mandate were dead even at 13.04% apiece.  The Court heard two certified questions from the Ninth Circuit, one appeal from a post-judgment order, and one appeal from an injunctive order (4.35% each).

Table 27

Last year, final judgments declined again as a fraction of the civil docket at 46.88%.  For the first time in the past five years, petitions for writ of administrative mandate surpassed traditional mandate, with administrative cases amounting to 15.63% of the civil docket to 6.25% in traditional mandate to the lower courts.  The Court heard two cases each arising from injunctions, post-judgment orders and workers’ compensation awards.  The rest of the docket last year was scattered, with one case each (3.13% of the civil docket each) arising from injunctions, certified questions under C.C.P. 166.1, a petition to set aside a judgment and a public records request.

Table 28

Join us back here tomorrow as we wrap up this phase of our analysis with a look at the criminal docket between 2011 and 2015.

Image courtesy of Flickr by Franco Folini (no changes).

 

 

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Yesterday, we continued our analysis of the civil and criminal dockets at the California Supreme Court over the past sixteen years with a look at the jurisdictional sources of the civil docket between 2006 and 2010.  Today, we turn to the criminal docket during those same years.

As we showed last week, review of final judgments is consistently less dominant a part of the criminal docket than it is on the civil side.  In 2006, final judgments weren’t even the largest single share of the docket.  The Court decided 22 death penalty appeals, or 41.51% of the criminal docket, and 19 appeals from final judgments (35.85%).  The Court heard five appeals from guilty pleas, accounting for another 9.43% of the docket.  Another 5.66% of the docket consisted of appeals from habeas petitions in death penalty cases, followed by 3.77% from Penal Code Section 1238, which enumerates certain pre- and post-trial orders which are appealable as of right, and another 3.77% in juvenile cases.

Table 19

For 2007, final judgments were slightly up and death penalty appeals were somewhat down.  Appeals from final judgments accounted for 37.7% of the criminal docket, with 26.23% arising from death penalty appeals.  The rest of the docket was widely scattered.  Petitions for original writs and appeals from guilty pleas comprised 8.2% apiece of the docket.  Section 1238 was another 4.92%.  The Court heard two death penalty habeas appeals and several more under various provisions of the Welfare and Institutions Code governing the juvenile courts.

Table 20

The following year, the criminal docket was concentrated in a somewhat more limited number of areas.  Final judgments and death penalty appeals accounted for 71% of the docket (40.3% and 31.34%, respectively).  The only other category accounting for more than 10% was petitions for original writs, at 10.45%.  The Court heard three appeals from guilty pleas, and three habeas petitions each in death penalty and non-death cases.

Table 21

Both of the leading areas were relatively flat in 2009, with final judgments accounting for 40.98% of the criminal, quasi-criminal, juvenile and disciplinary docket, and death penalty appeals amounting to another 34.43%.  The Court decided another three appeals from guilty pleas under Penal Code Section 1237.5 (4.92%) and three appeals from habeas petitions – two in death cases, one in a non-death case.  Another 1.64% of the docket consisted of appealable orders under Penal Code Section 1238, and the Court decided several juvenile cases as well.

Table 22

In 2010, appeals from final judgments and in death penalty cases were once again almost even.  The Court decided 24 appeals from final judgments (32.88% of the docket), and 23 death penalty appeals (31.51%).  Non-death habeas appeals accounted for 12.33% of the docket, and petitions for original writs were another 9.59%.  Habeas appeals in death cases and Section 1238 appeals accounted for 4.11% of the docket apiece.  The Court also decided two appeals from guilty pleas (2.74%).

Table 23

Join us back here next Thursday, as we turn our attention to the years 2011 through 2015.

Image courtesy of Flickr by Franco Folini (no changes).

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Last week, we began our analysis of the civil and criminal dockets at the California Supreme Court with the years 2000 through 2005.  Today, we take a look at the civil cases the Court decided between 2006 and 2010.

Final judgments declined somewhat as a percentage of the civil caseload in 2006 at 50.94% of the docket (27 cases).  The next biggest share was petitions for writs of administrative mandate at 15.09% of the docket, followed by writ petitions directed at the lower courts (11.32%) and appeals relating to anti-SLAPP motions (7.55%).  The remainder of the docket was scattered, with two appeals from post-judgment orders, two appeals under C.C.P. § 904.1(a)(10), which governs Probate and Family Code appeals, and one case each from four additional areas.

Table 14

In 2007, final judgments rose back to nearly the level they were between 2000 and 2005 at 58.18% of the civil docket.  Once again, petitions for writ of administrative mandate outpaced traditional writ petitions on the docket at 14.55% and 10.91%, respectively.  The Court heard two cases each arising from certified questions, arbitration matters and workers’ compensation, and one each arising from injunctive orders, anti-SLAPP motions, and a Probate/Family Code appeal.

Table 15

Final judgments increased again in 2008, comprising 65% of the civil docket.  Both petitions for writ of administrative mandate and traditional mandate were down from their usual levels at 10% and 5%, respectively.  The Court heard three arbitration cases in 2008 (7.5% of the docket), two appeals from post judgment orders under C.C.P. § 904.1(a)(2), and two more from new trial orders.

Table 16

The docket was a bit more widely dispersed in 2009, with the Court deciding 23 appeals from final judgments, or 53.49% of the civil docket.  For the first time in the period, traditional petitions for writ of mandate exceeded administrative petitions on the docket, 16.28% to 13.95%.  Certified questions took an upswing on the docket in 2009 and 2010, amounting to 6.98% of the docket in 2009.  The rest of the docket consisted of one case each arising from arbitration orders, anti-SLAPP motions, Probate/Family Code orders, and petitions for original writs.

Table 17

In absolute terms, the Court heard fewer appeals from final judgments in 2010 than in any year of the period, comprising 52.48% of the civil docket.  For the first time, certified questions were the second most common element on the civil docket, with the Court deciding five such cases, or 11.9% of the docket.  The Court decided four traditional writ petitions and three petitions for writ of administrative mandate (9.52% and 7.14%, respectively).  The Court heard two cases each arising from arbitration matters, post-judgment orders and injunctive matters, one anti-SLAPP motion and one petition for an original writ.

Table 18

Join us back here tomorrow as we turn our attention to the criminal docket between 2006 and 2010.

Image courtesy of Flickr by Nan Palmero (no changes).

 

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Earlier today, we addressed the jurisdictional sources of the California Supreme Court’s civil docket for the first six years of our period of study, 2000-2005. Now, we turn to the criminal docket for those same years.

Largely because of the mandatory death penalty docket, final judgments are routinely a smaller fraction of the Court’s criminal docket than they are on the civil side. We report the data from 2000 in Table 8 below. Final judgments appealed under Penal Code 1237(a) comprised 49.12% of the docket in 2000, while death penalty appeals constituted another 26.32%. The remaining sources accounted for only minor shares. The Court decided three cases each, or 5.26% of the criminal docket, involving appeals from guilty pleas, petitions for writ of prohibition and the like and appeals by the government. The Court heard one appeal each – 1.75% of the criminal, quasi-criminal, juvenile and disciplinary docket – in four different areas.

Table 8

For 2001, final judgments were up and death penalty cases were down. The Court decided 33 appeals from final judgments, or 60% of the docket. On the other hand, the Court decided only 10 death penalty appeals (18.18%). The Court decided three writ petitions (5.45%), two habeas petitions and two appeals from the State Bar Court (3.64% each). Four additional areas contributed one case apiece.

Table 9

The criminal docket was somewhat more widely distributed in 2002, with 49.25% of the caseload being appeals from final judgments. The Court decided 14 more death penalty appeals, or 20.9% of the docket. Six of the Court’s decisions arose from original petitions (8.96% of the docket), and four were appeals from guilty pleas (5.97%). Appeals by the government, habeas corpus petitions, and two juvenile matters arising from the Welfare & Institutions Code accounted for 2.99% of the docket apiece.

Table 10

 

After three years in which the Court decided double or more appeals from final judgments as death penalty cases, the two categories were almost even in 2003. The Court decided 22 appeals from final judgments, or 36.67% of the docket, and 19 death penalty cases (31.67%). The Court decided three cases each – 5% of this side of the docket – arising from appeals from guilty verdicts (Penal Code Section 1237.5), petitions for original writ, petitions for habeas corpus,death penalty habeas cases, and juvenile matters under the Welfare and Institutions Code.

Table 11

Final judgments and death penalty appeals once again amounted to two-thirds of the criminal docket in 2004. The Court decided 29 appeals from final judgments (40.28% of the docket), and 21 death penalty appeals (29.17%). 2004 saw a one-year spike in appeals from guilty pleas, as the Court decided eight cases under Penal Code 1237.5 (11.11% of the docket). Another 5.56% of the docket was in habeas petitions, and 4.17% came from appeals by the government. The Court decided two habeas appeals in death cases and two more juvenile cases under Welfare & Institutions Code Section 300, and one case each in three additional areas.

Table 12

Finally, we turn to the docket for 2005 in Table 13 below. For the first time, death penalty appeals comprised a larger fraction of the criminal docket than appeals from final judgments did, with the Court deciding 25 death cases (43.1%) and 21 final judgments (36.21%). The rest of the docket was relatively minimal; the Court decided three original petitions, three death penalty habeas cases (5.17% each), two general habeas petitions (3.45%), and one case each from three additional areas.

Table 13

Join us back here next Thursday as we turn our attention to the Court’s docket between 2006 and 2010.

Image courtesy of Flickr by David Merrett (no changes).

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Yesterday, we reviewed the variables which make up our sixteen year database. Today, we turn to our first question – comparing the jurisdictional sources of the California Supreme Court’s civil and criminal dockets.

We report the breakdown for the civil docket in 2000 in Table 2 below. Final judgments appealed under C.C.P. 904.1(a)(1) comprised 77.55% of the civil docket – 38 cases. This would turn out to be the biggest share of the docket accounted for by final judgments in this first six years of our period of study. The next biggest element was writs of mandate – 4 cases, or 8.16% of the civil docket. The Court decided two petitions for writ of administrative mandate (C.C.P. 1094.5) and two certified questions (currently Rule 8.548). The remainder of the Court’s docket was scattered, with one order denying arbitration, a workers’ compensation case and an original petition for writ of mandate.

Table 2

Appeals from final judgments were somewhat down in 2001, falling to 58.33% of the civil docket. Petitions for writs of administrative mandate rose to second place, accounting for 8.33% of the caseload. Right behind that were three traditional petitions for writ of mandate and three more certified questions from the Ninth Circuit. In 2001, the Court decided two workers’ compensation cases, or 4.16% of the civil docket. The remainder of the docket consisted of one case each in five different areas.

Table 3

Final judgments under C.C.P. 904.1(a)(1) were up slightly as a share of the civil docket in 2002 to 64.58% of the docket. Petitions for writ of mandate to courts (C.C.P. 1085) were back in second place at 14.58%, followed by certified questions and petitions for writ of administrative mandate at 8.33% each (4 cases). The Court also decided two appeals from orders on anti-SLAPP motions, accounting for the final 4.17% of the civil docket.

Table 4

In 2003, final judgments edged down slightly to 59.09% of the civil docket (26 cases). The Court decided five petitions for writ of administrative mandate, the only other jurisdictional category to command 10% or more of the civil docket at 11.36%. The Court decided four appeals from arbitration orders (9.09%) and two appeals from injunction orders (4.55%). The rest of the docket was scattered among various provisions accounting for one case each.

Table 5

Although the Court heard five more appeals from final judgments in 2004, as a fraction of the civil docket, the level was static at 59.62% of the civil docket. Once again, petitions for writ of mandate were the next biggest source of the Court’s business, with 15.38% of the civil docket coming from petitions directed to lower courts and 11.54% from petitions for writ of administrative mandate. The Court heard two appeals from post-judgment orders under C.C.P. 904.1(a)(2), and two more anti-SLAPP motions (3.85% of the civil docket each).

Table 6

Finally, in 2005, the Court decided 30 appeals from final judgments, or 61.22% of the civil docket. Petitions for writ of mandate comprised another one-fifth of the docket – 12.24% from petitions for writ of administrative mandate and 10.2% from petitions directed to courts. The Court also decided three more arbitration cases, two cases under C.C.P. 904.1(a)(10) (probate and family law appeals), and one each from three areas: certified questions from the Ninth Circuit, workers’ compensation, and injunction orders.

Table 7

Join us back here later today as we contrast the data above to the Court’s docket of criminal and quasi-criminal cases for the same period.

Image courtesy of Flickr by Kevin Stanchfield (no changes).

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Last week, we reviewed the primary theories of judicial decision making, including two – attitudinalism and legal realism – which are the foundation for empirical research into appellate decision making.  Today, we begin our review of the data.

Between January 1, 2000 and December 31, 2015, the California Supreme Court published 1,602 decisions – 636 civil and 966 criminal, quasi-criminal, juvenile and disciplinary.  We begin with two fundamental case identifiers – the case name and docket number.

We then identify a number of variables describing the case in the lower courts.  First, we note the Superior Court or administrative board where the case originated, and (for the court cases), the trial judge(s).   We note the Appellate Court (and in the case of the First and Second Districts, the Division).  We’ll be interested in assessing what kinds of cases reach the Supreme Court, and what impact various events in the lower court have, so we note the basis for appellate jurisdiction (final judgment, certified question, writ petition, etc.), whether or not there was a dissent at the Court of Appeal and whether or not the Court of Appeal’s decision was published.  We’ll be interested in tracking the Justices’ voting records in particular types of cases, as well as the evolving composition of the Court’s civil and criminal dockets, so we note the primary area of law for each case.

As we discussed last week, philosophical coding has been a controversial subject in the scholarship for decades; formalists reject its relevance completely, while attitudinalists argue that it’s the most important single variable for understanding and predicting judicial decision making.  Our primary goal here is to build a tool useful in anticipating decision making for appellate practitioners, so we’re not so interested in classifying Justices as conservative or liberal per se.  Although we use the conventional C/L coding for Court of Appeal decisions in the database, we class as a “conservative” decision in civil law nearly anything that favors the defense bar, regardless of which side the party is on.  For example, a decision in favor of an insurer would be coded as conservative even in a declaratory judgment action where the insurer was the plaintiff.  On the criminal side, things are simpler – decisions for the state are “conservative,” decisions for the defendant are “liberal.”

We add a number of variables describing the decision making process at the Supreme Court, beginning of course with the result and the vote.  We’ll be interested in tracking the Court’s lag time in making decisions on both sides of the docket, so we note the date a petition for review was granted (in mandatory death penalty appeals, we treat the date on which counsel was appointed as the best proxy for the granting of a petition for review).  We also note the date of oral argument, the date of the decision, and the number of days from grant to decision and argument to decision.  Because the Supreme Court has encouraged the filing of amicus curiae briefs throughout our sixteen year period of study, we note the number of amicus briefs filed in each case.  We’ll track the ups and downs of that number over time, and we’ll eventually try to determine just how much impact amicus briefs have on a party’s likelihood of prevailing.  We also note the counsel arguing for the parties, as well as any amicus counsel given leave to participate in the argument by the Court.

We’ll be analyzing a number of questions about the length of the Court’s opinions, so we note the length in pages of the majority, concurrences and dissents.  Later this year, we’ll be asking which Justices tend to write longer and shorter opinions, and what impact amicus briefs and dissents have on the length of the majority opinion.

Finally, we add a series of variables for each Justice: the Justice’s vote, whether or not he or she wrote a majority, concurrence or dissent (or signed someone else’s concurrence or dissent), and whether a Justice recused him- or herself in a case.  Finally, we add a philosophical coding for each Justice’s vote.  We’re working from a database of fifty different data points for each case, or just over 80,000 data points for the entire sixteen year period.

Data on the following Justices is included in the database:

Table 1

From the beginning of our period in 2000 until last year, the Court consisted of six appointees of Republican governors and only one Democratic appointee.  In 2015, with the retirement in the space of only three months of two of the Republican appointees, Justices Marvin R. Baxter and Joyce L. Kennard, the Court shifted to four Republican appointees and three Democratic appointees (all three by the current Governor, Jerry Brown).  In cases where one or more members of the Court recuses themselves (or is unable to participate for some other reason), the Court frequently elevates Justices pro tem from the Court of Appeal.  Because the Court uses a rotation system for the pro tem Justices, the impact of pro tems on the philosophical makeup of the Court varies from case to case and year to year.  We’ll review the voting records of the pro tems later in the year, as part of our in depth discussion of the individual Justices’ records.

Join us back here tomorrow as we begin our journey with our first question – how have the Court’s civil and criminal dockets evolved over the past sixteen years in terms of reviewing final judgments, interlocutory appeals, writ petitions and certified questions?

Image courtesy of Flickr by Jitze Couperus (no changes).

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Yesterday, we began our analysis by addressing the competing theories of judicial behavior.  Formalism, the oldest theory, teaches that judicial decision making can be explained and predicted based upon the facts, the applicable law and precedent and judicial deliberations – and nothing more.  But if formalism explains all of judicial decision making, then many of the factors studied by empirical analysts, such as the judges’ individual ideologies and voting records, the lower courts involved and the nature of the parties to the litigation, should have little ability to forecast voting and outcomes.  But many studies have shown that such factors do have predictive power.

One of the two primary alternative theories was set forth in The Supreme Court and the Attitudinal Model, by Professors Harold J. Spaeth and Jeffrey A. Segal.  Attitudinalism holds that judges vote based upon their individual ideologies set against the facts of a specific case.  For example, a judicial conservative will require substantially more extreme facts before being willing to condemn the conduct of a police investigator than a liberal will.  Conversely, a judicial liberal will approve of government interference in business based upon a lesser showing of need than a conservative will require.

Attitudinalists have proposed two principal methods for proxying the ideologies of judges.  First, a Federal judge is presumed to be of the same party as the President who nominated him or her.  Although simple enough to determine, this model has been criticized as a blunt instrument, not allowing for the possibility that a Democratic president might nominate a judge who is equally if not more conservative than a Republican one.  Professor Segal and Professor Albert D. Cover have proposed “Segal-Cover scores,” which are based upon analysis of newspaper editorials published prior to a Justice’s confirmation.  Segal-Cover scores have proven to be valuable predictors of judicial voting patterns.  Other analysts have attempted to derive ex post ideological measures by tracking judges’ actual votes over a substantial period.

A third theory of judicial behavior is represented most prominently by Judge Richard Posner of the Seventh Circuit, and is known as legal pragmatism or realism.  Legal realism is based upon the idea that the law evolves over time as society moves forward.  Judge Posner has written that the task of the judge “is to decide cases with reasonable dispatch, as best one can, even in what I am calling the interesting cases – the ones in which the conventional materials of judicial decision making just won’t do the trick.”  Legal realism attempts to integrate the other theories into a kind of unified theory.  To a legal realist, a not insubstantial fraction of every appellate court’s caseload can be explained using traditional formalist techniques.  Another portion of the docket can be explained by attitudinalism – more so in appellate courts of last resort than in intermediate appellate courts.  But the rest cannot be entirely explained by either theory, since formalist rules do not dictate a determinate answer to the question, and judicial concerns, such as the limitations on what courts can practically do or the value of stability in the law, constrain judges from following their ideological preferences.

In the decades since C. Herman Pritchett’s work on the Roosevelt Court – and especially in the past thirty years – data analytic researchers have provided considerable evidence to suggest that the attitudinal and realism theories have considerable power to illuminate judicial decision making. Next Thursday, we’ll begin applying those techniques to the past sixteen years’ worth of decisions from the California Supreme Court.

Image courtesy of Flickr by Michael Coghlan (no changes).

3020503532_0f68b5342d_zWe begin our analysis by addressing the foundation of the entire body of data analytic scholarship on appellate judging: competing theories of judicial decision making.

The oldest theory by far is generally known in the literature as “formalism.”  This is the theory we all learned in law school, according to which every decision turns on four factors, each completely extrinsic to the background and ideology of the individual judge: (1) the case record on appeal; (2) the applicable law; (3) controlling precedent; and (4) judicial deliberations (at least in the appellate world).  As Judge Richard Posner of the Seventh Circuit has pointed out, Blackstone was describing the formalist theory when he described judges as “the depositories of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.”  In Federalist Paper No. 78, Alexander Hamilton was expounding the same theory when he wrote that judges have “no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.  {The judicial branch] may truly be said to have neither force nor will, but merely judgment.”

Much more recently, Chief Justice Roberts endorsed the formalist theory when at his confirmation hearing he compared a Supreme Court Justice to a baseball umpire – merely calling balls and strikes, never pitching or hitting.  For decades, politicians have promoted the formalist ideal when they insist that judges should merely interpret or discover the law rather than making it (such comments seem to be most often made in the context of complaints that one judge or another has fallen short of that ideal).

The adequacy of formalism as an explanation for how judicial decisions are made has been questioned for generations.  As I noted two posts ago, Charles Grove Haines showed in 1922 that magistrate judges in New York City appeared to be imposing widely varying sentences in factually indistinguishable DUI cases.  Many observers have pointed out that if formalism (which posits that there is one correct answer to every case, entirely extrinsic to the judges) best explains how appellate courts actually operate, then dissent should be exceedingly rare, if not unheard of.  In fact, dissent is quite rare at intermediate appellate courts, if you consider both unpublished and published decisions.  But at appellate courts of last resort, and in all appellate courts when you consider the published decisions which actually shape the law, dissent typically runs anywhere from 20 to 45%.  Other observers have suggested that strict formalism cannot explain the importance of diversity in the judiciary, if one assumes that individual judges’ judicial or political ideologies and personal backgrounds are entirely irrelevant.

Still others have pointed out that even the politicians who like to endorse the ideal of formalism have never actually believed that it explains judicial decision making.  As Professors Lee Epstein and Jeffrey A. Segal point out in Advice and Consent, their book on the politics of judicial appointments, 92.5% of the 3,082 appointments to the lower federal courts made between 1869 and 2004 have gone to members of the President’s own party.  Surely that number would be far lower if the philosophy of an individual judge had no impact on judicial decision making.

Most of all, critics of formalism have argued that in fact, it is possible to predict appellate decision making reasonably well over time based upon factors unrelated to the facts of any specific case and legal doctrine.  For example, in a 2004 study performed by Theodore W. Ruger and others, the professors attempted to predict the result in every case at the U.S. Supreme Court during the 2002 term using a six factor model: (1) the circuit of origin; (2) the issue involved; (3) the type of petitioner; (4) the type of respondent; (5) whether the lower court decision was liberal or conservative; and (6) whether the petitioner challenged the constitutionality of a law or practice.  They compared the model’s predictions to the results of independent predictions by legal specialists.  The statistical (and decidedly non-formalist) model predicted 75% of the Court’s results correctly; the legal experts were correct 59.1% of the time.

Join us back here tomorrow as we address two competing theories of judicial decision making.

Going forward, we’ll continue to post at the Illinois Supreme Court Review on Tuesdays and Wednesdays, and we’ll be posting here at the California Supreme Court Review on Thursdays and Fridays.

Image courtesy of Flickr by Tim Green (no changes).

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It was inevitable, of course, that we at Sedgwick Appellate would turn our data analytic approach to the work of the California Supreme Court. California is where Sedgwick was founded and grew into an international law firm, our appellate group has several experienced lawyers resident in California, and it continues (even after twelve years resident in the Chicago office) to be where the bulk of my appellate practice is located. California has a long-standing tradition of recognizing appellate practice as a specialty, probably longer than anywhere in the country with the possible exception of Washington D.C.

Although the state Supreme Courts have not attracted anything near the level of study from academics engaged in empirical legal studies that the U.S. Supreme Courts and Federal Circuits have, a number of different researchers have attempted to compare how influential the various state courts are for the development of American law. One of the first efforts was published in 1936 by Rodney L. Mott, “Judicial Influence” (30 Am. Pol. Sci. Rev. 295 (1936)). Using several different proxies for influence, including law professors’ rankings, reprinting of a court’s cases in casebooks, citations by other state Supreme Courts and citations by the U.S. Supreme Court, Mott concluded that the most influential state Supreme Courts between 1900 and 1936 were New York, Massachusetts, California and Illinois.

In 1981, Lawrence Friedman, Robert Kagan, Bliss Cartwright and Stanton Wheeler published “State Supreme Courts: A Century of Style and Citation” (33 Stan. L. Rev. 773 (1981)). Friedman and his colleagues assembled a database consisting of nearly 6,000 cases from sixteen state Supreme Courts spanning the years 1870-1970. Among other things, the authors counted the number of times each case had been cited by out-of-state courts as a rough proxy for the author court’s influence. As far back as the 1870-1880 period, California ranked third among all state Supreme Courts in the sample for out-of-state citations, behind only New York and Massachusetts. By the 1940-1970 period – not coincidentally, a period when the California Supreme Court was developing a national reputation for innovation with a string of landmark decisions under the leadership of Chief Justices Gibson, Traynor and Wright – California had moved into first place in out-of-state citations. Fully 92% of all California Supreme Court decisions in the sample were cited at least three times by out-of-state courts, and 26% were cited more than eight times.

Two years later, Professor Gregory Caldeira published “On the Reputation of State Supreme Courts” (5 Pol. Behav. 83 (1983)). Using a database limited to cases published in 1975, Professor Caldeira focused on citations by other state Supreme Courts to each state’s decisions as a proxy for influence. He concluded that the top-performing courts were California, New York and New Jersey. Professor Scott Comparato took a somewhat similar approach in 2002 with “On the Reputation of State Supreme Courts Revisited,” using a random sample of thirty cases from each state Supreme Court. Professor Comparato concluded that the Supreme Courts of California and New York were cited by out-of-state courts significantly more often than the Supreme Courts of any other state.

In 2007, Jake Dear and Edward W. Jessen published “‘Followed Rates’ and Leading State Cases, 1940-2005” (41 U.C. Davis L. Rev. 683 (2007)). Dear and Jessen attempted to determine which state Supreme Court’s decisions were most often “followed” by out-of-state courts, as that term is used by Shepherd’s. Dear and Jessen concluded that the California Supreme Court is the most often followed jurisdiction in the country by a significant margin, with 33% more decisions between 1940 and 2005 which were followed at least once by an out-of-state court than the second highest finisher, Washington. California’s lead lengthens when the authors limited the data to cases followed three or more times by out-of-state courts, or five or more times – California leads Washington 160 to 72 in terms of decisions followed three or more times, and 45 to 17 for five or more.

Two years after Dear and Jessen’s paper was published, Professors Eric A. Posner, Stephen J. Choi and G. Mitu Gulati published their effort to bring all the various measures together, “Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges” (58 Duke Law Journal 1313 (2009)). The authors compared the state Supreme Courts by three standards: productivity, opinion quality and independence, using a database consisting of all the Supreme Courts’ decisions between 1998 and 2000. Proposing out-of-state citations as a proxy for “opinion quality,” the authors determined that California was the most often cited court by a wide margin, with 33.76 “citations per judge-year,” as compared to 22.40 for Delaware, the second-place finisher.

For the Sedgwick database, we mined dozens of data points from every one of the 1,602 civil, criminal and disciplinary opinions filed by the California Supreme Court from 2000 through the end of 2015. In the coming months, we’ll use that unique database to share insights about every phase of the California Supreme Court’s recent history – where the Court’s civil and criminal dockets come from (final or interlocutory decisions, areas of law, geographical origin and more); the impact of dissent and publication at the Court of Appeal on a litigant’s chances for review; the Court’s evolving rate of unanimity; changes in the Court’s lag time from grant to decision and argument to decision; the Justices’ voting records, opinions and the frequency with which different combinations of Justices vote similarly on various issues; the impact and voting records of Justices pro tem; and much more.

Image courtesy of Flickr by Andrew Dupont (no changes).

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The application of data analytic techniques to the study of judicial decision making arguably begins with political scientist Charles Grove Haines’ 1922 article in the Illinois Law Review, General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges. (17 Ill. L. Rev. 96 (1922)). Reviewing the records of New York City magistrate courts, Haines noted that while 17,075 people had been charged with public intoxication in 1916 – 92% of whom had been convicted – one judge discharged just one of 566 cases, another 18%, and still another fully 54%. Haines argued from this data that results in the magistrate courts were reflecting to some degree the “temperament . . . personality . . . education, environment, and personal traits of the magistrates.”

Two decades later, another political scientist, C. Herman Pritchett published The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947. Pritchett became interested in the work of the Supreme Court when he noticed that the Justices’ dissent rate had sharply increased in the late 1930s. Pritchett argued that the increase in the dissent rate necessarily weighed against the formalist view that “the law” was an objective reality which appellate judges merely found and declared. In The Roosevelt Court, Pritchett published a series of charts showing how often various combinations of Justices had voted together in different types of cases (the precursor of the some of the analysis we’ll publish later this year in California Supreme Court Review).

Another landmark in the data analytic literature, the U.S. Supreme Court Database, traces its beginnings to the work of Professor Harold J. Spaeth about three decades ago. Professor Spaeth undertook to create a database which classified every vote by a Supreme Court Justice in every argued case for the past five decades. In the years that followed, Spaeth updated and expanded his database, and additional professors joined the groundbreaking effort. Today, thanks to the work of Professors Harold Spaeth, Jeffrey Segal, Lee Epstein and Sarah Benesh, the database contains 247 data points for every decision the U.S. Supreme Court has ever rendered – dating back to August 3, 1791.  The Supreme Court Database is a foundational tool utilized by nearly all empirical studies of U.S. Supreme Court decision making.

Not long after the beginnings of the Supreme Court Database, Professors Spaeth and Segal also wrote one of the landmarks of data-driven empirical research into appellate decision making: The Supreme Court and the Attitudinal Model, in which they proposed a model arguing that a judge’s personal characteristics – ideology, background, gender, and so on – and so-called “panel effects” – the impact of having judges of divergent backgrounds deciding cases together as a single, institutional decision maker – explained a great deal about appellate decision making.

The data analytic approach began to attract widespread notice in the appellate bar in 2013, with the publication of Judge Richard A. Posner and Professors Lee Epstein and William M. Landes’ The Behavior of Federal Judges: A Theoretical & Empirical Study of Rational Choice. Drawing upon arguments developed in Judge Posner’s 2008 book How Judges Think, Posner, Epstein and Landes applied various regression techniques to a theory of judicial decision making with its roots in microeconomic theory, discussing a wide variety of issues from the academic literature.

Today, there is an enormous academic literature studying the work of the U.S. Supreme Court and the Circuits from a data analytic perspective on a variety of different issues, including case selection, opinion assignment, dissent aversion, panel effects, the impact of ideology, race and gender. The state Supreme Courts have attracted somewhat less study than the federal appellate courts, but that has begun changing in the past several years.

In the months to come here at the California Supreme Court Review, we’ll apply many of the techniques pioneered and used in this academic literature to gain insights into every aspect of the work of the California Supreme Court.

Image courtesy of Flickr by Jamison Wieser (no changes).