Actual Versus Perceived Performance of Judges

Perceptions of judges ought to be based on their performance. Yet, few studies of the relation between perceived and actual judicial performance exist. Those claiming judicial bias should be especially sensitive to the relation between perception and performance. Judges perceived by the public or by the legal community as disfavoring a group may be regarded as biased, but that perception is unfair if the judges’ votes in cases do not disfavor the group. For example, it may be unfair to accuse an appellate judge of pro-state bias in criminal cases if the judge votes for defendants at a higher rate than several other judges on the same court. This article addresses whether perception matches reality. Several studies have examined perceptions of judges and courts by surveying the public about its confidence in a particular court.1 Our study differs because it compares perceptions of individual justices with their actual voting patterns. Incomplete samples are one source of distorted claims about judicial behavior. Excluding a particular group of outcomes, such as unanimous decisions, can lead to questionable results.2 Studies regularly report that a judge’s political affiliation, race, or sex is associated with case outcomes—results that sometimes raise inferences of bias.3 At the trial-court level, most studies are limited to available opinions, a known source of possible distortion.4 These studies also tend to exclude cases that end via settlement, which is the modal outcome in civil litigation.5 Several trial-court-level studies that use complete case samples and find no political or other effects suggest the importance of complete case samples.

Actual Versus Perceived Performance of Judges

Perceptions of judges ought to be based on their performance. Yet, few studies of the relation between perceived and actual judicial performance exist. Those claiming judicial bias should be especially sensitive to the relation between perception and performance. Judges perceived by the public or by the legal community as disfavoring a group may be regarded as biased, but that perception is unfair if the judges’ votes in cases do not disfavor the group. For example, it may be unfair to accuse an appellate judge of pro-state bias in criminal cases if the judge votes for defendants at a higher rate than several other judges on the same court. This Article addresses whether perception matches reality.Part II of this Article provides background information about the Israeli judiciary. Part III presents survey results regarding the Israeli legal community’s perceptions of sixteen ISC justices’ tendencies in criminal cases. The survey asked respondents the degree to which they believe individual justices are favorable to the state or to defendants. Part IV compares the survey results with justices’ actual voting patterns in criminal cases. Part V explores the differences between perceptions reported in Part III and the reality reported in Part IV. Part VI concludes

Does the Judge Matter? Exploiting Random Assignment on a Court of Last Resort to Assess Judge and Case Selection Effects

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to 3 percent more likely than male justices to vote for defendants but this effect is sensitive to including one justice. Defendant gender was associated with outcome, with female defendants about 17 percent more likely than male defendants to receive a favorable vote on appeal. Our data\u27s samples of mandatory and discretionary jurisdiction cases allow us to show that studies limited to discretionary jurisdiction case outcomes can distort perceptions of judges\u27 preferences. Justices\u27 ordinal rank in rate of voting for defendants or the state was uncorrelated across mandatory and discretionary jurisdiction cases. For example, the justice who sat on the most criminal cases was the fourth (of 16 justices) most favorable to the state in mandatory jurisdiction cases but the 12th most favorable in discretionary jurisdiction cases. This result casts doubt on some inferences based on studies of judges on discretionary jurisdiction courts, such as the U.S. Supreme Court, in which only discretionary case outcomes are observed

Israel\u27s Supreme Court Appellate Jurisdiction: An Empirical Study

This Essay reports the results of an empirical study of the Israel Supreme Court (ISC). It covers the outcomes of 3,562 cases (as of this writing), all decided in 2006 and 2007, and describes the cases by subject area, litigant-pair characteristics, and source of jurisdiction - mandatory or discretionary. In mandatory-jurisdiction cases ending with clear affirmances or reversals, the ISC affirmed lower court rulings in about 75% of district court criminal case appeals and about 67% of district court civil case appeals. In discretionary- jurisdiction cases, the ISC rarely granted review. It agreed to review about 6 % of petitions in criminal cases and about 15 % of petitions in civil cases. In discretionary cases in which the ISC did grant review, it tended to reverse at a much higher rate than in mandatory-jurisdiction cases, with an affirmance rate of 55 % in criminal cases and 31 % in civil cases. Combining denials of review with affirmances resulted in criminal case litigants obtaining relief from the ISC in 2.3 % of appellate filings, and civil case litigants obtaining relief in 11.0% of appellate filings. The government fared far better than other litigants in obtaining reversals of lower court rulings and in securing review of those rulings. Sentencing issues dominated the criminal docket, and criminal cases predominated over civil cases. Reversal rates were not substantially different from those in cases with analogous jurisdiction in U.S. state courts of last resort except in discretionary-jurisdiction civil cases. The ISC tended to reverse such cases at a higher rate than U.S. courts

When Courts Determine Fees in a System with a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion to implement multiple de facto litigation cost systems: a one-way shifting system that dominates in most tort cases; a loser pays system that operates when publicly owned corporations litigate; and a loser pays system with discretion to deny litigation costs in other cases. Although a loser pays norm dominates in Israel with litigation costs awarded to the prevailing party in 80 percent of cases, Israeli judges still often exercised their discretion to protect certain losing litigants, especially individuals, from having to pay their adversaries’ litigation costs. In tort cases won by individual plaintiffs against corporate defendants, for example, corporations had to pay their own litigation costs plus plaintiffs’ litigation costs 99 percent of the time. Even when the corporate defendants prevailed, they still had to pay their own litigation costs 52 percent of the time. When public corporations litigated and lost, a loser pays system dominated. Award patterns also varied by case category and judicial district. In property cases in one district, courts denied prevailing plaintiffs fees in about 75 percent of cases. Theorizing about optimal fee rules should account for the variety of fee outcomes observed in practice

Israel\u27s Supreme Court Appellate Jurisdiction: An Empirical Study

This Essay reports the results of an empirical study of the Israel Supreme Court (ISC). It covers the outcomes of 3,562 cases (as of this writing), all decided in 2006 and 2007, and describes the cases by subject area, litigant-pair characteristics, and source of jurisdiction - mandatory or discretionary. In mandatory-jurisdiction cases ending with clear affirmances or reversals, the ISC affirmed lower court rulings in about 75% of district court criminal case appeals and about 67% of district court civil case appeals. In discretionary- jurisdiction cases, the ISC rarely granted review. It agreed to review about 6 % of petitions in criminal cases and about 15 % of petitions in civil cases. In discretionary cases in which the ISC did grant review, it tended to reverse at a much higher rate than in mandatory-jurisdiction cases, with an affirmance rate of 55 % in criminal cases and 31 % in civil cases. Combining denials of review with affirmances resulted in criminal case litigants obtaining relief from the ISC in 2.3 % of appellate filings, and civil case litigants obtaining relief in 11.0% of appellate filings. The government fared far better than other litigants in obtaining reversals of lower court rulings and in securing review of those rulings. Sentencing issues dominated the criminal docket, and criminal cases predominated over civil cases. Reversal rates were not substantially different from those in cases with analogous jurisdiction in U.S. state courts of last resort except in discretionary-jurisdiction civil cases. The ISC tended to reverse such cases at a higher rate than U.S. courts

Actual Versus Perceived Performance of Judges

Perceptions of judges ought to be based on their performance. Yet, few studies of the relation between perceived and actual judicial performance exist. Those claiming judicial bias should be especially sensitive to the relation between perception and performance. Judges perceived by the public or by the legal community as disfavoring a group may be regarded as biased, but that perception is unfair if the judges’ votes in cases do not disfavor the group. For example, it may be unfair to accuse an appellate judge of pro-state bias in criminal cases if the judge votes for defendants at a higher rate than several other judges on the same court. This article addresses whether perception matches reality. Several studies have examined perceptions of judges and courts by surveying the public about its confidence in a particular court.1 Our study differs because it compares perceptions of individual justices with their actual voting patterns. Incomplete samples are one source of distorted claims about judicial behavior. Excluding a particular group of outcomes, such as unanimous decisions, can lead to questionable results.2 Studies regularly report that a judge’s political affiliation, race, or sex is associated with case outcomes—results that sometimes raise inferences of bias.3 At the trial-court level, most studies are limited to available opinions, a known source of possible distortion.4 These studies also tend to exclude cases that end via settlement, which is the modal outcome in civil litigation.5 Several trial-court-level studies that use complete case samples and find no political or other effects suggest the importance of complete case samples.