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July 15, 2015


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Derek Tokaz

"a positive correlation between the presence of President Obama’s judicial nominees on the Fourth Circuit and the difference in case outcomes in these courts"

Did you look at whether or not the decisions had an Obama-nominee as a deciding vote?

Basically, any 2-1 opinion where an Obama nominee is one of the two in the majority. If we're seeing more liberal decisions even 3-0 opinions, when it's 2-1 with the Obama nominee in the minority, or any cases where there are no Obama nominees involved, then that sort of blows the whole thing in the water and you've got a big "correlation doesn't mean causation" problem.

Matthew Reid Krell


While your work is not bad (I, too, published a law review article where the test statistic was nothing more than a chi-square), I think that some more attention to quantitative methods would strengthen your work even more.

First, making inferences about the law from the results in litigated cases is fraught (see Klerman and Lee 2014, and the thirty-year debate they outline). It's not impossible (I do it myself in a piece under review on jury verdicts), but you have to be aware of the possibility of selection bias.

Dealing with the selection bias issue means you probably want to use propensity matching. Now, you started down this road, in a crude and gross way, by comparing the Fourth and Eighth Circuits ("crude and gross" referring to the level of the analysis, and not the power of the research design). So your instincts are leading you in the right direction. The problem is that the way you're analyzing the data doesn't truly leave alternative explanations controlled for. Propensity matching is a method that's already been used in evaluating the effects of changes in appeals court composition (Boyd, Epstein, and Martin 2010). If you're interested, I'd be happy to discuss with you using propensity matching in a future piece on this.

Brian Clarke

Reid, I appreciate the offer and would love to discuss. I still have a lot to learn (obviously), as we all do. In the meantime, i will be reading up on propensity matching.

Travis Silva

The failure to consider panel composition may not be fatal, though it may be a product of the ideological swing you're attempting to measure and thus confound your analysis. A swing in the entire court's ideology will have an impact on a panel's behavior, even if the panel consists entirely of pre-Obama judges. Panel members consider whether an issue will generate and/or survive an en banc call as they decide the outcome of each issue presented (and even as they decide which questions to answer in a given case) and whether to write separately. This calculus will drive individual votes and panel outcomes.

For that matter, court composition affects the en banc process irrespective of ideology. If two judges with an interest in a particular substantive or procedural area, e.g., labor/employment, replace two judges lacking that interest, panel activity in that area becomes more likely to regress toward the median position of the entire court even if the change in judges didn't alter the ideological tilt of the court.

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