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Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges

2009; Duke University School of Law; Volume: 58; Issue: 7 Linguagem: Inglês

1939-9111

Stephen J. Choi, Mitu Gulati, Eric A. Posner,

Legal Education and Practice Innovations

Judges and courts get evaluated and ranked in a variety of contexts. The President implicitly ranks lower-court judges when he picks some rather than others to be promoted within the federal judiciary. The ABA and other organizations evaluate and rank these same judges. For the state courts, governors and legislatures do similar rankings and evaluations, as do interest groups. The U.S. Chamber of Commerce, for example, produces an annual ranking of the state courts that is based on surveys of business lawyers. These various rankings and evaluations are often made on the basis of subjective information and opaque criteria. The secretive nature of these evaluations potentially allows organizations such as the Chamber of Commerce to use rankings to advance their own specific agenda. Our Article rests on the premise that these organizations that do their rankings based on opaque data and criteria need competition. Competition will force competing metrics to make transparent the underlying measures on which they are based and thereby foster the generation of higher quality metrics to rank judges. Using publicly available information and easy to reproduce measures, we construct an Copyright © 2009 by Stephen J. Choi, Mitu Gulati, and Eric A. Posner. t Murray and Kathleen Bring Professor of Law, New York University School of Law. tt Professor of Law, Duke University School of Law. ttt Kirkland and Ellis Professor of Law, University of Chicago School of Law. Thanks to David Achtenberg, Scott Baker, Scott Comparato, Jake Dear, Michael Gerhardt, Kim Krawiec, David Levi, William Marshall, Un Kyung Park, Mark Ramseyer, Laura Stith, and participants at the Measuring Judges and Justice conference for comments and conversations about the project. Thanks to Mirya Holman for assistance with research. HeinOnline -58 Duke L.J. 1313 2008-2009 1314 DUKE LAW JOURNAL [Vol. 58:1313 alternate set of rankings of the state courts that we then match up against the rankings from the Chamber of Commerce. Our measures are admittedly coarse. Nevertheless, to the extent they are credible, transparent, and significantly different from those of organizations like the Chamber of Commerce, the hope is that they will force those organizations to better explain the methods and information that underlie their rankings. TABLE OF CONTENTS Introduction 1314 I. T he M easures 1318 A . P roductivity 1320 B . O pinion Q uality 1321 C . Independence 1323 D . Com posite M easures 1325 II. Ranking the State High Courts 1326 A. The U.S. Chamber of Commerce Rankings 1326 B. Prior Academic Literature on Ranking State Courts 1328 C. R anking the Courts 1333 1. The Court System s 1333 2. Productivity 1335 3. C itations 1337 4. Independence 1342 D. Digging Deeper: Ranking Courts while Controlling for StateSpecific F actors 1351 E. The U.S. Chamber of Commerce Study: Som e O bservations 1354 III. Courts or Judges? 1358 C onclusion 1363 Appendix A: Common Law Areas Only 1364 Appendix B: Abnormal Score Rankings 1370 Appendix C: Judge Ranking Using Majority Opinion Productivity M easure 1378 Appendix D: Variable Definitions 1379