Role of Law in Close Cases: Some Evidence from the Federal Courts of Appeal

This article is an empirical study of the voting behavior of 30 federal appellate judges in criminal cases that weren't decided unanimously. The cases were divided into two sets: those that involved disputes over constitutional law and those that involved disputes over other kinds of legal materials (e.g., statutes and rules). The basic results are that (a) judges vary widely in how often they vote for the government in non-unanimous cases, but (b) any given judge votes for the government about as often in such cases regardless of whether they involve debates over the Constitution or other sources of law. The most plausible reason for the tight correlation is that in close cases of any kind judges use the same policy preferences or views of human behavior as their sources of decision.