Do Briefs Matter?
I suspect many lawyers have had the experience of briefing and arguing a case before an appellate court, and then receiving an opinion back from the court that seems like it was written for another case, with the court simply not engaging with the parties’ major arguments. Although anecdotes along these lines abound, no rigorous studies are available to show us how common such judicial nonresponsiveness is.
Part of the problem is that researchers would have to read a large volume of briefs and opinions, and then painstakingly sort out exactly which arguments were addressed and how thoroughly. Not only would the work be tedious and time-consuming, but it would also be subject to reliability concerns in light of the subjectivity in deciding whether and how satisfactorily a court has responded to an argument.
Chad Oldfather, Joseph Bockhorst, and Brian Dimmer ’09 think they have a solution to these difficulties: automated research that uses computers to compare a large number of briefs and opinions quickly and objectively. They describe their project in a new paper on SSRN entitled “Judicial Inaction in Action? Toward a Measure of Judicial Responsiveness.”