Copyright (c) 2006 Trustees of Boston University
Boston University Law Review
SYMPOSIUM: THE ROLE OF THE JUDGE IN THE TWENTY-FIRST CENTURY: THE ROLE OF LAW IN CLOSE CASES: SOME EVIDENCE FROM THE FEDERAL COURTS OF APPEALS
Tulane Law Review
86 B.U.L. Rev. 1083
What role does interpretive theory play when a judge decides a close case - or any case? What role is played by traditional legal materials, and what role by the judge's policy preferences or private beliefs about the world? We can study these questions by considering how judges vote in close cases involving similar policy stakes but different sources of law; for we would expect those cases to produce different voting patterns if they boil down to interpretive disputes, but similar patterns if they depend on judgments of policy. This Article presents evidence from one such inquiry. It examines the voting behavior of thirty federal appellate judges in two different types of criminal cases: those involving disputes over constitutional questions and those involving disputes over statutes or rules. In prior work I used the same criteria to examine the behavior of Supreme Court Justices, 1 and generally found little differences in their votes in the two types of cases. 2 Any Justice who usually voted for the government in constitutional cases usually voted for the government in nonconstitutional cases as well. 3 This study produces similar results, but with some important underlying differences that arise from the different dockets of the federal supreme and appellate courts.
I. Procedure and Basic Result
Prior work on the behavior of appellate judges has looked for correlations between judges' ideologies and the votes they cast. 4 Ideology is measured either by the party of the President who appointed the judge, 5
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