Earthquakes and Tremors in Statutory Interpretation: An Empirical Study of the Dynamics of Interpretation

Daniel A. Farber

doi:10.2202/1539-8323.1030

Using citation data from the Supreme Court's 1984 and 1990 Terms, this study tests three models of judicial dynamics. The first model posits that the extent of an opinion’s importance to the law, as measured by how frequently it is cited by courts and commentators, is determined by a host of relatively small factors. This model predicts a normal, bell-shaped curve of citation frequencies. The second model posits that judges have bounded rationality and strong attachments to existing rules, leading them to practice "normal science" most of the time with occasional "paradigm shifts." In empirical studies by various social scientists, this kind of model has been found to produce frequency distributions that are roughly bell-shaped but have a characteristic known as "leptokurtosis." The third model stems from complexity theory (also known as chaos theory or fractal geometry. This type of model predicts a "power" curve that is characteristic of many social and natural processes, such as earthquake severity. Because earthquakes provide such a vivid metaphor for legal change, this can be called the "tectonic" model of legal dynamics.

As it turns out, the first model is clearly wrong, and the second model is also at odds with the data. On the other hand, the tectonic model provides a good statistical fit for the data. Thus, at least in terms of this preliminary empirical investigation, complexity theory may provide important insights into judicial dynamics.

The study also revealed two interesting, incidental findings. First, the diversity of Supreme Court opinions is surprisingly great. At the extremes, one case in the 1984 Term has only been cited a single time by a later federal appellate court, while another case has garnered over 1100 federal appellate citations. Second, opinions seem to have two dimensions of significance, which are only loosely related. The amount of attention an opinion receives from lower federal courts has only a modest correlation with the attention it receives in law reviews. Thus, an academic's impression of the "typical" Supreme Court opinion would be quite different from that of a judge or lawyer. To the extent we construct our explanatory theories based on some intuitive sense of typicality, we may be led astray.

Earthquakes and Tremors in Statutory Interpretation: An Empirical Study of the Dynamics of Interpretation

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