What Judges Don't Say: The Challenge to Content Analysis

Guest blogging on Empirical Legal Studies, Prof. Carolyn Shapiro (Chicago-Kent) muses about What Judges Don't Say: The Challenge to Content Analysis, Feb. 26, 2007.

When judges summarize the facts of a case, they have to pick and choose -- they don't reproduce entire trial transcripts -- so what can what they don't say tell us? Shapiro writes:

But it seems to me that the question of whether judges -- consciously or unconsciously -- leave out (arguably) relevant facts is directly relevant to several points of great interest to scholars as well as to lawyers. First, it is directly relevant to the question of how judges decide cases. Second and relatedly, it may shed light on the extent to which they are political in their decisionmaking. Third, it should, I think, force hard thinking about the normative question of what we want judges to do. Do we want them to make predictions about how juries will decide? Do we want them to announce rules of law applicable in the future? Do we want them to focus scrupulously but narrowly on the case before them? Are these goals inconsistent with each other?

(Along the way, she cites critiques of judges' application (or misapplication) of summary judgment standards in employment discrimination cases.)

A few people have posted interesting comments as well. Frank Cross (University of Texas) says he is studying judges' decisions about what precedents to cite, using the cases cited in briefs as a baseline. Sara Benesh (Univ. of Wisconsin - Milwaukee) says that she is studying confession cases to see what factors the judges discuss.