In this essay, I raise a meta-theoretical question concerning the relation between two distinct categories of projects that we might be tempted to lump together under the rubric of empirical study of judicial performance. One kind of empirical project aims broadly at developing a social-scientific theory of judging, or identifying the “causes” of legal decisions. Another kind of project aims at identifying quantitative criteria providing an objective basis for evaluating the quality of judicial performance. I attempt to explain the distinction between these two kinds of projects and consider whether the very possibility of success in the former undermines the point of the latter. Would a theory that could predict how any given judge would likely decide any given kind of case obviate the usefulness of general criteria for measuring judicial quality? I argue that the answer is no, because the two projects address fundamentally different questions. This essay was written for the Workshop on Evaluating Judges, Judging, and Judicial Institutions at Duke Law School.
THE LEGAL WORKSHOP (DUKE L.J.) (2010)