Public Law & Legal Theory
This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of collegiality and other variables. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. Instead, experience on the bench together is a significant predictor of agreement, supporting the conclusion that judging is more about pragmatic problem solving and maintaining a collegial work environment. While further testing of the importance of the legal model is certainly warranted, our findings suggest that at least some of the sharp interpretive disagreements among academics are not reflected in the actual business of judging.
William K. Ford & Jason J. Czarnezki, "The Phantom Philosophy? An Empirical Investigation of Legal Interpretation" (University of Chicago Public Law & Legal Theory Working Paper No. 102, 2005).