Data Collection in Comparative Judicial Research: a Note On the Effects of Case Publication Upon Theory Building and Hypothesis Testing

Abstract

espite important advances during the past few decades in the study of courts and judicial behavior, much of the theory and data developed by social scientists for understanding legal systems remain largely the product of, and thus bound to, the inevitable peculiarities of the American context.' This represents a curious inconsistency in the logic of our research agenda since the scientific method to which we adhere is supposed to encourage theory building and description at the broadest level. Yet, as Tate has argued (e. g. , 1983, 1987) social scientists have not been sufficiently aggressive in examining the generalizability of models of the judicial process that have emerged from the American context.2 2

An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions

“…As other scholars have begun to investigate, the decision to publish may itself be a strategic decision (Merritt & Brudney 2001; Swenson 2004; Law 2006). Our results for court of appeals judges' decisions concur with many other scholars' (Atkins 1992; Ringquist & Emmert 1999; Rowland & Carp 1996; Benesh 2001; Hannon 2001) conclusions that in solely examining published cases we are investigating an unrepresentative subset of decisions that, in turn, may seriously compromise the validity of conclusions regarding judicial behavior.…”

“…Though understandable given the relative inaccessibility of unpublished cases, this focus means that “we have ignored between 90 and 95 percent of all data while trying to expand our understanding of judicial contributions to policymaking” (Ringquist & Emmert 1999:8). Recent research has uncovered the potential seriousness of this shortcoming (Atkins 1992; Rowland & Carp 1996; Songer 1988; Songer & Sheehan 1992; Songer et al. 1989), but little has changed since Carp and Rowland (1983:17) lamented that “we know very little about the content or impact of these many unreported decisions.”Benesh (2001:7) reiterated other scholars' conclusions and stated that the assumption that published and unpublished judicial decisions are identical “is quite tenuous and scholars have begun to note problems .…”

The Small Group Context: Designated District Court Judges in the U.S. Courts of Appeals

“…2009). Hence, the sample of cases on which we rely here consists of those cases that are most likely to be consequential and in which ideological influences on judges' decisions are most likely to be in operation (see Atkins 1992). These two factors make this sample particularly suited for our purposes, though we hasten to add they do impose limitations on the inferences that we can draw (i.e., we will not be able to generalize to all court of appeals cases, only to those that are published).…”

Israeli constitutional politics: The fragility of impartiality

“…Research projects on the judicial process have focused more attention in recent years on the process by which judicial agenda choices are made. 62 In some European countries, constitutional courts may act quickly, but these courts do not handle civil, criminal, and other specialized legal disputes, such that judicial power is diffused among several courts. 63 In Anglo American tradition, most cases reach the supreme or high courts as appeals from lower or intermediate appellate levels in the judicial system.…”