Monday, September 28, 2009

Yung on Judicial Activism

Corey Rayburn Yung (The John Marshall Law School) has posted "Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals" as part of the Working Paper Series.  The abstract states:

Existing empirical scholarship about judicial activism has almost exclusively focused on the United States Supreme Court and actions by the judiciary that invalidate legislative, executive, and state actions. This article contends that such limitations give an extremely narrow, and potentially flawed, vision of activism and judicial decisionmaking. The Supreme Court is a less than ideal institution to study because the ever-shrinking docket of the Court creates small population sizes, the writ of certiorari process creates significant selection effects, the lack of restraints on Justices makes it difficult to identify a “correct” baseline to measure against, and the areas of law reviewed by the Court are quite limited. Studying the United States Courts of Appeals gives a fuller picture of activism, restraint, and decisionmaking among federal court judges. For the federal appellate courts, focusing on interbranch and intergovernmental actions offers little insight because cases involving such issues constitute a very small percentage of the overall docket. Instead, this article considers the activity that is the primary duty of such courts: reviewing the judgments of federal district courts.

Activism, at its core, is about judges elevating their judgment above other constitutionally significant actors when a formal model of the law would predict otherwise. By analyzing how individual judges respect both deferential and non-deferential standards of review of district court judgments, this study captures, in the aggregate, a judge’s privileging of his or her judgment above others. The study utilizes a newly created dataset which includes 7,516 cases and 22,548 judicial votes from 2008 cases in all eleven numbered circuits in which a standard of review was applied. The article finds that there is no statistically significant correlation between activism of judges and: (1) the political party of the appointing President; (2) the particular President who appointed the judge; (3) the ideology of the judge based upon common space scores; and (4) whether the majority of the Senate and the President were of the same party at the time of appointment. However, the study does find that individual judges and Courts of Appeals vary substantially in their levels of judicial activism in a statistically significant manner. Further, the study explores in greater detail the judicial activism measurements of four notable judges: Frank Easterbrook, Richard Posner, now Justice Sonia Sotomayor, and J. Harvie Wilkinson III.


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