Case Complexity and Citation to Judicial Authority - Some Empirical Evidence from the New Zealand Court of Appeal
| Author: |
Russell Smyth BEc(Hons), LLB(Hons), Ph.D (Lon)
Associate Professor, Faculty of Business and Economics, Monash
University
|
| Issue: |
Volume 10, Number 1 (March 2003)
|
Contents:
Acknowledgement: I thank an anonymous referee for helpful comments on an earlier version of this paper.
- There is a sizeable conceptual literature that attempts to understand courts as organizations.[1]
There is, however, a lack of relevant empirical research on courts as organizations[2]
and on how courts communicate legitimacy.[3]
Most research on the legitimacy of courts and courts as organizations, empirical or otherwise, focuses on the United States which
impedes attempts to build general theories of the governance of courts.[4]
Gibson and Caldeira make the general point: "Despite the pleas of scholars (eg Tate),[5]
most research on legitimacy focuses on the United States, with little analysis conducted of the legitimacy of non-U.S. courts or
transnational law and legal institutions. As important as legitimacy is, it is surprising how little we know about its origins and
its consequences for the broader legal and political systems".[6]
- This paper empirically tests one aspect of the role of courts as organizations; namely, how courts communicate legitimacy and the
influence of complexity on the extent to which the courts attempt to establish legitimacy through the citation of precedent. This
is an application of Feldman and March's[7]
argument about the symbolic and signaling functions of information in organizations. The one previous study of this sort is by Harris[8]
who employs data for United States State Supreme Courts to test Feldman and March's thesis. He found that there was a significant
positive relationship between citation of previous cases and a range of proxies measuring case complexity.
- This study examines the relationship between citation of precedent and a number of the proxies Harris used in a sample of reported
decisions of the New Zealand Court of Appeal. In contrast to Harris' findings, the results of this study suggest that the relationship
between citation of precedent and case complexity is fairly weak with few statistically significant variables. The paper is set
out as follows. In the next section Feldman and March's basic argument is discussed in more detail and Harris' findings are reviewed.
Section three gives some background information on the form of judgment writing in the New Zealand Court of Appeal, discusses the
methodology employed in the study and presents the results. The final section speculates on the reasons why the results in this
study differ from those of Harris.
- Feldman and March suggest that decision-makers gather and display information relevant to a decision in order to show that they are
good decision-makers. Therefore, the display of information is a display of competence and it is this that provides a decision with
legitimacy. As described by Feldman and March:
The gathering of information provides a ritualistic assurance that appropriate attitudes
about decision making exist. Within such a scenario of performance, information is not simply a basis for action. It is a representation
of competence and a reaffirmation of social virtue. Command of information, and information sources, enhances perceived competence
and inspires confidence. The belief that more information characterizes better decisions engenders a belief that having information,
in itself, is good and that a person or organization with more information is better than a person or organization with less.[9]
- Feldman and March argue that the symbolic value and signaling uses of information will be greater under certain circumstances.[10]
These include situations in which decision-making criteria are ambiguous, performance measures are vague, decision quality is established
slowly and decision-makers are tied to rational ideologies more than other legitimating myths such as faith and tradition. As Harris
notes all of these features of decision-making are prevalent in appellate courts. He points out: "Such decision criteria as constitutionality,
justice and accordance with precedent are highly ambiguous. Performance measures of appellate decisions are not only vague, they
are nearly entirely missing. Views on the quality of the appellate decision can change with each succeeding generation of legal
critics".[11]
- The concept of legitimacy is of central importance within this framework. According to Weber the source of legitimate authority in
the modern bureaucratic state is a formal legal order which promotes the voluntary consent of the ruled.[12]
However, before the legal system can legitimize the rule of law, courts must first secure their own legitimacy. In other words,
according to legal theory, judges decide "according to law". They are not free to decide cases as they please.[13]
Thus, it is a critical feature of judicial decision-making that judges, unlike other public officials, are expected to give reasons
for their decisions.[14]
The requirement to give reasons can be seen as protection against arbitrary decision-making.[15]
As Lord Denning put it, the giving of reasons is "the whole difference between a judicial decision and an arbitrary one".[16]
Moreover, a judge's reasons for decision are typically organized around citations of judicial authority; that is judges explain what
they have done by relating their decision to what other judges have written to explain what they have done.[17]
Some decisions require more legitimization than others. These include cases which are technically complex, where the law is uncertain
and where the economic and political implications are more far reaching. In these cases it is even more important that the decision
be seen as legitimate, meaning that the court will be particularly careful to fully justify it with an extensive display of reasoning
and reference to previous authorities.[18]
- The doctrine of precedent requires that when judges assert new legal doctrine they must couch it in terms of existing doctrine. However,
the extent to which judges feel compelled to place their decisions in the context of existing decisions depends on the relative importance
of precedent versus policy considerations. In British Commonwealth countries, prior to the 1970s, judges generally denied that they
had any law-making function. Judges portrayed themselves as finding and applying, not making, the law.[19]
This started to change when Lord Reid, suggested that the notion that judges did not make the law was a "fairytale".[20]
- There is now wide recognition among judges in British Commonwealth countries, including senior New Zealand judges, that judges do
make the law.[21]
This has increased the importance of policy considerations vis-à-vis precedent in judicial reasoning.[22]
Writing about recent cases in the New Zealand Court of Appeal, Best notes, "we are seeing a more open acknowledgment that certain
decisions, sometimes effecting significant changes in the law, depend on policy considerations with the doctrine of precedent becoming
secondary".[23]
This trend in decision-making represents a potentially important qualification to the hypothesis that judges will cite more authority
in complex cases for two reasons. First, cases which are complex might be complex precisely because they involve policy considerations
and fleshing out the implications of those policy considerations need not involve increased citation of existing authority. Second,
because there is much wider acceptance that judges make law, judges might seek to demonstrate the competency or legitimacy of their
decisions in complex cases through discussing the socio-economic implications of those decisions rather than citing additional cases.
- The study by Harris used 5,976 majority opinions, written by 16 US State Supreme Courts between 1870 and 1970. Harris investigated
the relationship between the number of citations per opinion and various indicators of complexity through examining the analysis
of covariance. The indicators of complexity which he used were the existence of dissenting and concurring opinions, reversals, the
existence of constitutional issues, whether there were multiple parties, whether amici curiae were involved, whether the hearing
was discretionary, the value in dispute and whether there was a subsequent appeal to the US Supreme Court.[24]
While there are some differences depending on the exact specification, Harris found that most or all of the covariates had a positive
sign and were statistically significant at the 1 per cent level. Harris sums up his main findings as follows: "Each of the indicators
is positively related to the number of citations in the majority opinion. The courts cite more prior cases when each of the conditions
indicating difficulty or uncertainty is present than when it is absent".[25]
These results provide strong support for the application of Feldman and March's hypothesis on complexity to judicial decision-making.
- The New Zealand Court of Appeal (hereafter Court of Appeal) is an intermediate court of appeal. It sits above the New Zealand High
Court, but below the Judicial Committee of the Privy Council. Appeal from the Court of Appeal to the Judicial Committee is by way
of special leave. There have been relatively few appeals from the Court of Appeal to the Judicial Committee in recent times and
in December 2002, the New Zealand government started moves to abolish appeals to the Judicial Committee. The New Zealand government
has indicated that it proposes to replace appeals to the Judicial Committee with appeals to a New Zealand Supreme Court, which would
be a five judge panel, one of whom would be an expert in Maori law.[26]
Reports suggest the new Supreme Court will be hearing appeals by mid-2003.[27]
- In contrast to the US Supreme Court, the Court of Appeal has no regular conference and opinion writing allocation systems. Instead
the extent to which the Justices confer or circulate judgments amongst themselves is a function of the personalities of the individual
judges, the friendships and informal contacts between them and sitting arrangements. The Court of Appeal follows the English practice
of seriatim opinion writing. This means that there is no actual "opinion of the Court" or "majority opinion" as in the United States.
There are cases where a unanimous court gives a single judgment or where judges write a joint judgment or concur in the judgment
of another. However, separate judgments agreeing with the outcome but not the reasons of the majority and dissenting judgments disagreeing
with both the outcome and majority reasons are also common.[28]
- The original intention was that the sample cases in this study would be the 300 most recent Court of Appeal decisions reported in
the New Zealand Law Reports as of December 1999.[29]
However, of these there were three cases where it was not clear whether there was to be a subsequent appeal to the Judicial Committee,
which left a final sample of 297 cases. The fact that the sample does not include unreported judgments is a possible problem, although
it is still likely that the sample covers the 300 most important cases for the display of information over the relevant period.
As McCormick puts it: "Reported cases probably include a very high proportion of all the decisions sufficiently important to call
for reasoned judgment based on authority".[30]
- In constructing the dependent variable - citations of authority - all citations of case law and secondary authorities such as books
and journal articles in the sample cases were counted. If a case or secondary authority received repeat citations in the same paragraph
it was counted only once; however, if there were repeat citations in later paragraphs these were counted again. The rationale for
following this approach is that if the source is cited two or more times in the same paragraph, it was assumed that it was being
cited for the same proposition. If it was cited again in a subsequent paragraph, though, it was assumed it was being cited for a
different proposition. When secondary authorities were cited in a joint judgment, each citation was multiplied by the number of
judges who participated in the judgment. However, in cases where Justice A concurred with Justice B and Justice B cited authorities,
Justice A was not attributed with citing that material. There are two other issues which deserve specific mention. First, references
to judgments in lower courts in the same case and cases cited in lower courts in the same case were not counted. Second, if a judgment
was cited from another case that case was counted, but cases cited in the quoted section of the cited case were not. Following Harris,
for each case information was also recorded on various indicators of the complexity of the decision. These are set out and discussed
in detail in the next sub-section.
- The definition of each of the explanatory variables and their expected signs are given in table 1. Five of the seven indicators of
complexity - AMICAE CURIAE, APPEAL, DIFFER, DISSENT and MULTIPLE - are the same as used in the Harris study. Harris includes a dummy
variable set equal to 1 if a constitutional issue was involved. New Zealand does not have a written constitution, so a dummy variable
set equal to 1 if an issue of personal liberty was at stake was used instead. Harris (1985) includes a dummy variable set equal
to 1 if the case involved a discretionary hearing. This is because in Harris' study some US State Supreme Courts had discretion
to hear the appeal and for others the appeal was automatic. The Court of Appeal had discretion to hear the appeal over the entire
period of the study, so this variable is not relevant. Harris included a variable measuring the financial value in dispute between
the parties. This study does not include such a variable because only sporadic information was obtainable from the reports on the
financial value at stake in civil cases. This study includes one indicator of decision difficulty - PER CURIUM - that is not used
in Harris' study. PER CURIUM is a dummy variable set equal to 1 if the Court of Appeal delivered a single joint judgment and is
set equal to zero otherwise.
TABLE 1
DEFINITION
OF EXPLANATORY VARIABLES
VARIABLE
|
DEFINITION
|
EXPECTED SIGN
|
|
AMICI CURIAE
|
|
|
|
|
Dummy
variable, which takes the value 1 if amici curiae is involved and is set
equal to zero otherwise
|
Positive
|
|
APPEAL
|
|
|
|
|
Dummy variable, which takes the value 1
if there was a subsequent appeal to the Judicial Committee and is set equal
to zero otherwise
|
Positive
|
|
DIFFER
|
|
|
|
|
Dummy
variable, which takes the value 1 if the Court of Appeal differed from the
Court below it and is set equal to zero otherwise
|
Positive
|
|
DISSENT
|
|
|
|
|
Dummy
variable, which takes the value 1 if there was one or more dissenting
judgments and is set equal to zero otherwise
|
Positive
|
|
LIBERTY
|
|
|
|
|
Dummy
variable, which takes the value 1 if the case involved an issue of personal
liberty and is set equal; to zero otherwise
|
Positive
|
|
MULTIPLE
|
|
|
|
|
Dummy
variable, which takes the value 1 if there were more than two plaintiffs
and/or defendants and is set equal to zero otherwise
|
Positive
|
|
PER CURIUM
|
|
|
|
|
Dummy
variable, which takes the value 1 if the Court of Appeal delivered a single
joint judgment and is set equal to zero otherwise
|
Negative
|
- Feldman and March's theory about the display of information suggests several hypotheses concerning the relationship between citation
of previous authorities and each of these indicators of complexity. The first is that the presence of amici curiae will increase
the number of citations of previous authorities. The reason for this is that the case is likely to be more complex if amici are
involved. As Harris puts it:
Amici may make the case difficult simply by presenting an additional point of view, a different contention
to be resolved along with the direct claims in the case. Further, they may show by their presence that the case is troublesome,
as they will tend to join cases in which the decision will have a broad sweep, with consequences important to persons beyond those
immediately involved.[31]
- The second hypothesis is that if there is an appeal from the decision of the Court of Appeal to the Judicial Committee, the Court
of Appeal will cite more previous authorities. If there is an appeal from the Court of Appeal to the Judicial Committee this suggests
the legal issues are complex with normally far reaching implications for the development of the law in New Zealand. The Court of
Appeal has stated that to grant leave to appeal to the Judicial Committee something more must be shown than that an important question
of law is involved. Usually it must be shown that the question involved is one which, because of its great general or public importance,
should be carried further.[32]
This criteria is reflected in the fact that the majority of applications for discretionary leave are denied, meaning that only the
most difficult cases make it to the Judicial Committee.[33]
Of the 297 cases in this study, there were 10 subsequent appeals to the Judicial Committee, which constitutes 3.4 per cent of the
sample cases.
- The third hypothesis is that if the Court of Appeal is reversing the decision of the Court below it, it will cite more authorities.
This is because the Court of Appeal is more likely to differ from the court below it in complex cases, in which reasonable points
of view about what the law is, or should be, compete for acceptance. In such instances, following Feldman and March's thesis, the
extra display of information helps the Court of Appeal to legitimize its decision to differ from the court below it. The fourth
hypothesis is that the Court of Appeal will cite more authorities in cases in which there are one or more dissenting judgments.
The reason for this is that when the legal issues are complex judges are more likely to disagree about the outcome.[34]
Canon and Jaros argue that cases which reflect socially important conflicts often produce dissenting judgments.[35]
Harris notes that even if the issues involved are not particularly controversial, dissents occur more in unusual cases because the
application of the law is uncertain.[36]
- The fifth hypothesis is that the Court of Appeal will cite more authorities in issues involving loss of personal liberty. These cases
involve criminal cases and some immigration deportation cases where personal liberty was as stake. There are two reasons why one
might expect the Court to cite more authorities in such cases. First, criminal cases are often of great social importance and involve
issues at the cutting edge of the law.[37]
Second, where personal freedom, including freedom of movement, is at stake, as opposed to mere financial value, the Court might feel
compelled to spend more time signaling the competency and legitimacy of its decision.
- The sixth hypothesis is that if there is more than one litigant on either side in a case, the Court will display more information
in the form of citation of precedent. Where there are multiple parties, courts are often required to address issues in multiple dimensions
and this is more likely to lead to disagreement among the judges.[38]
The reason for this is that the number of different parties and therefore claims are directly related to the complexity of the issues
in the case.
- The final hypothesis is that the Court will cite less authority in unanimous judgments where all judges agree on the outcome and reasons.
Not all cases are equally salient to the justices, and they are more likely to be concerned with the legal rules announced in important
cases.[39]
This means that in unimportant cases, justices may be willing to ignore their preferences in order to facilitate consensus.[40]
In such cases, legitimizing their position through the display of information will be less important. However, where the case is
important and/or complex opinions will differ as to the appropriate reasoning and this produces multiple judgments. As Justice Ginsburg
of the United States Supreme Court has described it: "Hard cases do not inevitably make bad law, but too often they produce multiple
opinions".[41]
- In order to examine the effect of complexity on citation of authority two methods of regression analysis were used. The first was
ordinary least squares (OLS) where citations per judgment were regressed on the explanatory variables. When using OLS two dependent
variables were tried. These were total citations per judgment, including citation of secondary authority, but excluding citations
of statutes, and core citations per judgment where core citations were defined as prior decisions of the Court of Appeal and Judicial
Committee. The distinction between core citations and total citations is designed to take account of differences in the quality
of the citation. It is arguable that when judges use information as a signaling device, it is core citations which matter because,
given that they are binding, these are the most relevant to the decision making process.[42]
In addition to OLS, a logit regression was run for both core citations and total citations. This requires a dichotomous dependent
variable, which took the value 1 if the number of citations per judgment exceeded the mean number of citations for all judgments
in the sample and took the value zero otherwise. Table 2 contains descriptive statistics for total citations, core citations and
each of the explanatory variables. The mean number of total citations per judgment was 8.87 and the mean number of core citations
per judgment was 3.11.
TABLE 2
DESCRIPTIVE
STATISTICS
|
TOTAL CITATIONS
|
|
|
|
|
Mean
|
8.874
|
|
|
Median
|
6.000
|
|
|
Maximum
|
82.000
|
|
|
Minimum
|
0.000
|
|
|
Standard Deviation
|
9.160
|
|
|
Number of cases where total citations are
above the mean
|
106
|
|
|
Number of cases where total citations are
below the mean
|
191
|
|
CORE CITATIONS
|
|
|
|
|
Mean
|
3.117
|
|
|
Median
|
2..000
|
|
|
Maximum
|
78.000
|
|
|
Minimum
|
0.000
|
|
|
Standard Deviation
|
5.300
|
|
|
Number of cases where core citations are
above the mean
|
91
|
|
|
Number of cases where core citations are
below the mean
|
206
|
|
AMICI CURIAE
|
|
|
|
|
Amici Curiae involved
|
16
|
|
|
Amici Curiae not involved
|
281
|
|
APPEAL
|
|
|
|
|
There was a subsequent appeal to the
Judicial Committee
|
10
|
|
|
There was no subsequent appeal to the
Judicial Committee
|
287
|
|
DIFFER
|
|
|
|
|
The Court of Appeal differed from the
Court below it.
|
145
|
|
|
The Court of Appeal affirmed the decision
of the Court below it
|
152
|
|
DISSENT
|
|
|
|
|
There was a dissenting judgment
|
25
|
|
|
There was no dissenting judgment
|
272
|
|
LIBERTY
|
|
|
|
|
The case involved an issue of personal
liberty
|
81
|
|
|
The case did not involve an issue of
personal liberty
|
216
|
|
MULTIPLE
|
|
|
|
|
There were more than two parties
|
115
|
|
|
There was only two parties
|
181
|
|
PER CURIUM
|
|
|
|
|
The Court of Appeal delivered a single
joint judgment
|
235
|
|
|
There were multiple judgments
|
62
|
- Table 3 presents the OLS estimates treating total citations per judgment as the dependent variable. The underpinning theory makes
no prediction about appropriate functional form so the model was estimated in both linear and log-linear functional forms. Prior
to running the regressions, Pearson correlation coefficients were calculated to detect the presence of multicollinearity between
explanatory variables. Multicollinearity is generally not a problem for interpreting the results with only two independent variables
- DISSENT and PER CURIUM - having a Pearson correlation coefficient greater than or equal to 0.3. The correlation coefficient for
these two variables was -0.59.
- For this reason three specifications are reported in both linear and log-linear functional forms. These are the full model, which
includes all variables, and partial models omitting either DISSENT or PER CURIUM. With the exception of specification III in table
3, Ramsey's RESET test shows no specification error.[43]
White's heteroskedasticity test suggests that the null hypothesis of homoskedasticity should be accepted in specifications I-III
and VI.[44]
In specifications IV and V, White's heteroskedasticity test rejected the null hypothesis of homoskedasticity in initial regressions.
Thus reported t-statistics were calculated using White's heteroskedasticity consistent covariance. Several of the variables have
signs consistent with theoretical predictions and AMICAE CURIAE is close to being significant at 10 per cent in several specifications;
however, the only variable which is significant with the predicted sign, and only in specifications I and II, is PER CURIUM.
TABLE 3
OLS
ESTIMATES OF FACTORS EXPLAINING CITATION PATTERNS IN THE NEW ZEALAND COURT OF
APPEAL
DEPENDENT VARIABLE IS TOTAL CITATIONS
|
Variables
|
Linear
|
Log-linear
|
|
|
I
|
II
|
III
|
IV
|
V
|
VI
|
|
Constant
|
12.242*
(7.432)
|
11.433*
(8.258)
|
9.440*
(10.253)
|
1.928*
(8.902)
|
1.995*
(12.607)
|
1.838*
(20.572)
|
|
AMICAE CURIAE
|
2.905
(1.217)
|
2.847
(1.194)
|
2.884
(1.202)
|
0.304
(1.298)
|
0.309
(1.332)
|
0.304
(1.284)
|
|
APPEAL
|
1.266
(0.423)
|
0.987
(0.332)
|
0.758
(0.253)
|
0.130
(0.522)
|
0.153
(0.620)
|
0.114
(0.397)
|
|
DIFFER
|
-1.360
(0.208)
|
-1.433
(0.184)
|
-1.231
(1.137)
|
-0.075
(0.715)
|
-0.070
(0.657)
|
-0.070
(0.506)
|
|
DISSENT
|
-2.172
(0.907)
|
_
|
0.688
(0.352)
|
0.174
(0.751)
|
_
|
0.265
(1.416)
|
|
LIBERTY
|
0.027
(0.022)
|
0.034
(0.027)
|
-0.448
(0.365)
|
0.065
(0.541)
|
0.070
(0.584)
|
0.050
(0.419)
|
|
MULTIPLE
|
-0.114
(0.146)
|
-0.120
(0.153)
|
-0.195
(0.248)
|
-0.036
(0.648)
|
-0.036
(0.644)
|
-0.038
(0.507)
|
|
PER CURIUM
|
-3.388**
(2.046)
|
-2.511***
(1.869)
|
_
|
-0.108
(0.501)
|
-0.180
(1.191)
|
_
|
|
F-statistic
|
1.009
|
1.041
|
0.474
|
0.677
|
0.697
|
0.716
|
|
Adjusted R2
|
.001
|
0.001
|
-0.111
|
-0.008
|
-0.006
|
-0.006
|
|
RESET (2)
|
0.845
[1, 290]
|
0.076
[1, 290]
|
4.887++
[1, 290]
|
0.053
[1, 282]
|
0.001
[1, 282]
|
0.306
[1, 282]
|
|
RESET (3)
|
1.495
[2, 289]
|
0.075
[2, 289]
|
2.874+++
[2, 289]
|
0.034
[2, 281]
|
0.003
[2, 281]
|
0.152
[2, 281]
|
|
RESET (4)
|
0.993
[3, 288]
|
0.055
[3,288]
|
1.994
[3, 288]
|
0.133
[3, 280]
|
0.187
[3, 280]
|
0.127
[3, 280]
|
|
White’s Heteroskedasticity
Test
|
15.780
|
11.745
|
9.443
|
_
|
_
|
23.832
|
|
Number of Observations
|
297
|
297
|
297
|
289
|
289
|
289
|
Note:
* t-statistics
are significant at 1 per cent
** t-statistics
are significant at 5 per cent
*** t-statistics
are significant at 10 per cent
++ RESET
test indicates specification error at the 5 per cent level.
+++ RESET
test indicates specification error at the 10 per cent level.
Figures in round parenthesis for columns
I-III and VI are student t statistics.
For columns IV and V White’s heteroskedasticity test
rejected the null
hypothesis of homoskedasticity in initial regressions. Thus reported t-statistics were calculated
using White’s
heteroskedasticity consistent covariance. Figures in square
parenthesis below RESET tests are degrees of freedom. RESET test shows
no
specification error in columns I-II and
IV-VI: At the 5 per cent level, the critical values for the F-statistic at (1,
>200)
is 3.84; at (2, >200) is 3.00; at (3, >200) is 2.6. White’s heteroskedasticity test follows a
chi-square distribution with
20 degrees of freedom (columns II-III and V-VI)
and 25 degrees of freedom (columns I and IV).
The critical values of the chi-square
distribution at 5 per cent are
31.4 and 37.7 respectively.
- Table 4 presents the logit estimates where the dependent variable takes the value 1 if the number of total citations per judgment
exceed the mean (8.87) and is zero otherwise. In each specification in which it is entered PER CURIUM has the predicted sign and
is significant at either 1 per cent or 5 per cent. DISSENT is not significant in the full model, probably because of collinearity
with PER CURIUM, but it has the predicted sign and is significant at 5 per cent in specification II. The likelihood ratio test statistic
is insignificant in specifications I and II, but is significant at 10 per cent in specification III.
TABLE 4
LOGIT
ESTIMATES OF FACTORS EXPLAINING PATTERNS IN TOTAL CITATIONS THE NEW ZEALAND
COURT OF APPEAL
|
Variables
|
|
|
|
I
|
II
|
III
|
|
Constant
|
0.197
(0.534)
|
-0.457**
(2.150)
|
0.264
(0.839)
|
|
AMICAE CURIAE
|
-0.466
(0.768)
|
-0.471
(0.779)
|
-0.460
(0.758)
|
|
APPEAL
|
0.281
(0.414)
|
0.152
(0.226)
|
0.305
(0.454)
|
|
DIFFER
|
-0.381
(1.510)
|
-0.344
(1.378)
|
-0.374
(1.484)
|
|
DISSENT
|
0.180
(0.342)
|
0.845**
(1.957)
|
_
|
|
LIBERTY
|
0.201
(0.698)
|
0.081
(0.290)
|
0.207
(0.719)
|
|
MULTIPLE
|
-0.101
(0.479)
|
-0.081
(0.290)
|
-0.100
(0.476)
|
|
PER CURIUM
|
-0.801**
(2.163)
|
_
|
-0.873*
(2.880)
|
|
Likelihood Ratio Statistic
|
11.093
|
6.468
|
10.976+++
|
|
McFadden Psuedo R2
|
0.029
|
0.017
|
0.028
|
|
Number of Observations
|
297
|
297
|
297
|
Note:
* z
statistic is significant at 1 per cent
** z
statistic is significant at 5 per cent
+++ Likelihood
ratio test statistic is significant at 10 per cent
Figures in round parenthesis are z
statistics. The likelihood ratio
statistic follows a chi-square distribution with 7 degrees of
freedom (column
1) and 6 degrees of freedom (columns II and III). The critical values of the chi-square distribution at 5 per cent
are 14.1 and 12.6 respectively.
- Table 5 presents OLS estimates where the dependent variable is core citations per judgment. Ramsey's RESET test shows that there
is no evidence of specification error in any of the models and White's heteroskedasticity test indicates that the null hypothesis
of homoskedasticity should be accepted in all specifications. However the only explanatory variable which is significant is LIBERTY.
It has the predicted sign and is significant in each specification. In table 5, the F-statistic is also significant in each of
the specifications using a log-linear functional form, which rejects the null hypothesis that the true slope coefficients are simultaneously
zero. Table 6 presents the logit estimates where the dependent variable takes the value 1 if the number of core citations per judgment
exceed the mean (3.11) and is zero otherwise. LIBERTY has the predicted sign and is significant at 1 per cent in each specification.
PER CURIUM has the expected sign and is significant at 1 per cent in specifications I and III. DISSENT has the correct sign and
is significant at 5 per cent in specification II. The likelihood ratio test statistic is significant at 1 per cent in each specification.
TABLE 5
OLS
ESTIMATES OF FACTORS EXPLAINING CITATION PATTERNS IN THE NEW ZEALAND COURT OF
APPEAL
DEPENDENT VARIABLE IS CORE CITATIONS
|
Variables
|
Linear
|
Log-linear
|
|
|
I
|
II
|
III
|
IV
|
V
|
VI
|
|
Constant
|
3.842*
(4.032)
|
3.790*
(4.739)
|
3.207*
(6.058)
|
1.026*
(6.423)
|
1.005*
(7.656)
|
0.875*
(9.726)
|
|
AMICAE CURIAE
|
0.179
(0.129)
|
0.175
(0.127)
|
0.173
(0.126)
|
0.184
(0.791)
|
0.183
(0.788)
|
0.186
(0.801)
|
|
APPEAL
|
-0.591
(0.341)
|
-0.609
(0.354)
|
-0.706
(0.410)
|
-0.001
(0.004)
|
-0.009
(0.975)
|
-0.029
(0.098)
|
|
DIFFER
|
-0.746
(1.197)
|
-0.751
(1.209)
|
-0.717
(1.153)
|
-0.088
(0.841)
|
-0.089
(0.858)
|
-0.079
(0.0759)
|
|
DISSENT
|
-0.139
(0.100)
|
_
|
0.509
(0.453)
|
-0.051
(0.231)
|
_
|
0.101
(0.573)
|
|
LIBERTY
|
1.448**
(2.013)
|
1.444**
(2.014)
|
1.340***
(1.897)
|
0.435*
(3.695)
|
0.434*
(3.696)
|
0.406*
(3.527)
|
|
MULTIPLE
|
-0.302
(0.666)
|
-0.301
(0.668)
|
-0.320
(0.708)
|
-0.079
(1.099)
|
-0.078
(1.099)
|
-0.080
(1.123)
|
|
PER CURIUM
|
-0.768
(0.801)
|
-0.712
(0.917)
|
_
|
-0.184
(1.147)
|
-0.161
(1.264)
|
_
|
|
F-statistic
|
1.026
|
1.199
|
1.091
|
2.59‡‡
|
3.027‡
|
2.801‡‡
|
|
Adjusted R2
|
0.001
|
0.004
|
0.002
|
0.043
|
0.047
|
0.042
|
|
RESET (2)
|
0.002
[1, 290]
|
0.002
[1, 290]
|
0.194
[1, 290]
|
0.929
[1, 240]
|
0.932
[1, 240]
|
0.921
[1, 240]
|
|
RESET (3)
|
0.431
[2, 289]
|
0.432
[2, 289]
|
0.417
[2, 289]
|
2.088
[2, 239]
|
1.962
[2, 239]
|
2.110
[2, 239]
|
|
RESET (4)
|
0.501
[3, 288]
|
0.514
[3, 288]
|
0.294
[3, 288]
|
1.829
[3, 238]
|
1.970
[3, 238]
|
1.750
[3, 238]
|
|
White’s Heteroskedasticity
Test
|
4.913
|
4.973
|
4.270
|
20.022
|
16.714
|
10.508
|
|
Number of Observations
|
297
|
297
|
297
|
247
|
247
|
247
|
Note:
* t-statistics
are significant at 1 per cent
** t-statistics
are significant at 5 per cent
*** t-statistics
are significant at 10 per cent
‡ F
statistic is significant at 1 per cent
‡‡ F
statistic is significant at 5 per cent
Figures in round parenthesis are student
t statistics. Figures in square parenthesis below RESET tests are degrees of
freedom. The
RESET test shows no
specification error in any of the specifications: At the 5 per cent level, the
critical values for the F-statistic
at (1, >200) is 3.84; at (2, >200) is
3.00; at (3, >200) is 2.6. White’s
heteroskedasticity test follows a chi-square distribution
with 20 degrees of
freedom (columns II-III and V-VI) and 25 degrees of freedom (columns I and IV). The critical values of the chi-square
distribution for 20 degrees of freedom and 25 degrees of freedom at 5 per cent
are 31.4 and 37.7 respectively.
TABLE 6
LOGIT
ESTIMATES OF FACTORS EXPLAINING PATTERNS IN CORE CITATIONS THE NEW ZEALAND
COURT OF APPEAL
|
Variables
|
|
|
|
I
|
II
|
III
|
|
Constant
|
-0.062
(0.161)
|
-0.915*
(3.846)
|
-0.060
(0.181)
|
|
AMICAE CURIAE
|
-0.029
(0.047)
|
-0.039
(0.063)
|
-0.029
(0.046)
|
|
APPEAL
|
-0.105
(0.127)
|
-0.288
(0.352)
|
-0.104
(0.127)
|
|
DIFFER
|
-0.277
(1.023)
|
-0.226
(0.850)
|
-0.277
(1.025)
|
|
DISSENT
|
0.006
(0.011)
|
0.871**
(1.944)
|
_
|
|
LIBERTY
|
1.137*
(3.799)
|
0.948*
(3.334)
|
1.137*
(3.806)
|
|
MULTIPLE
|
-0.398
(1.392)
|
-0.415
(1.469)
|
-0.398
(1.392)
|
|
PER CURIUM
|
-1.068*
(2.747)
|
_
|
-1.071*
(3.317)
|
|
Likelihood Ratio Statistic
|
27.457+
|
20.130+
|
27.457+
|
|
McFadden Psuedo R2
|
0.075
|
0.055
|
0.075
|
|
Number of Observations
|
297
|
297
|
297
|
Note:
* z
statistic is significant at 1 per cent
** z
statistic is significant at 5 per cent
+ Likelihood
ratio test statistic is significant at 1 per cent.
Figures in round parenthesis are z
statistics. The likelihood ratio
statistic follows a chi-square distribution with 7 degrees of
freedom (column
1) and 6 degrees of freedom (columns II and III). The critical values of the chi-square distribution at 5 per cent
are 14.1 and 12.6 respectively.
- These results reject several of the hypotheses, with a number of the variables being insignificant in all specifications for both
OLS and logit estimates. The results suggest that DISSENT and PER CURIUM are consistently statistically significant indicators of
the number of core and total citations per judgment. LIBERTY was not significant in explaining total citations, but was highly significant
in explaining the number of core citations. On the other hand, AMICAE CURIAE, APPEAL, DIFFER and MULTIPLE were insignificant in
OLS and logit regressions for both core citations and total citations.
- One reason why the results here differ from Harris' is that in this study the results are for a different court with different decision-making
and institutional arrangements. Another factor is that it also covers a different, more recent, time period. Earlier it was suggested
that over the course of the last three decades and, in particular the last 10 years, there has been a shift in appellate courts in
British Commonwealth countries away from the primacy of precedent towards a much more explicit recognition of policy considerations.
This represents an important qualification on applying Feldman and March's basic thesis to judicial decision-making if cases are
complex precisely because they involve broad ranging policy issues and/or if judges are substituting discussion of the policy implications
of their decisions for citation of authority in complex cases.
- If this is what is happening, this does not necessarily mean that judges are displaying less information in support of their decisions,
but rather, in focusing on the policy implications of their decisions, they are signaling a different type of information than in
the past. While any conclusions along these lines are necessarily tentative at this stage, the results suggest that more research
is needed in this area using data on courts with a range of different decision-making and institutional structures including those
outside the US. Without such empirical studies it is difficult to reach firm conclusions about how courts use information to communicate
legitimacy or, at a more general level, build better-informed theories of the organizational characteristics of courts.
[1]
For example, see M. Feeley "Two Models of the Criminal Justice System: An Organizational Perspective" (1973) 7 Law and Society Review 407-426; J. Eisenstein and H. Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston, Little Brown, 1977); H. Jacob,
"Courts as Organizations" in K. O. Boyum and L. Mather (eds) Empirical Theories About Courts (New York, Longman, 1983).
[2]
Jacob, ibid; P. Harris, "Difficult Cases and the Display of Authority"(1985) 1, Journal of Law, Economics and Organization 209-221.
[3]
C. McEwen and R. Maiman, "In Search of Legitimacy: Toward an Empirical Analysis" (1986) 8 Law and Policy 257-273; M. Topf, "Communicating Legitimacy in the U.S. Supreme Court Opinions" (1992) 12 Language and Communication 17-29.
[4]
See B. Atkins, "A Cross-national Perspective on the Structuring of Trial Court Outputs: The Case of the English Court of Appeal"
in J. Schmidhauser (ed) Comparative Judicial Systems: Challenging the Frontiers in Conceptual and Empirical Analysis (London, Butterworths,
1987); B. Atkins, "Interventions and Power in Judicial Hierarchies: Appellate Courts in England and Wales" (1990) 2
[4]
Law and Society Review 71-102; B. Atkins, "Party Capability Theory as an Explanation for Intervention Behaviour in the English Court
of Appeal" (1991) 35 American Journal of Political Science 881-903; L. Baum, "Review Article: Research on the English Judicial Process" (1977) 7 British Journal of Political Science 511-527.
[5]
N. Tate, "Judicial Institutions in Cross National Perspective: Towards Integrating Courts into the Comparative Study of Politics"
in J. Schmidhauser (ed) Comparative Judicial Systems: Challenging the Frontiers in Conceptual and Empirical Analysis (London, Butterworths,
1987)
[6]
J. Gibson and G. Caldeira, "The Legitimacy of Transnational Legal Institutions: Compliance, Support and the European Court of Justice"
(1995) 39 American Journal of Political Science 459-489, 460
[7]
M. Feldman and J. March, "Information and Organizations as Signal and Symbol" (1981) 26 Administrative Science Quarterly 171-186.
[8]
Harris supra note 2.
[9]
Feldman and March supra note 7, 177-178.
[10]
Ibid, 183.
[11]
Harris, supra note 2, 210.
[12]
M. Weber, Economy and Society, Berkeley, University of California Press
[13]
L. Friedman, R. Kagan, B. Cartwright and S. Wheeler "State Supreme Courts: A Century of Style" (1981) 33 Stanford Law Review 773-818, 793
[14]
R. Posner, The Problems of Jurisprudence (Cambridge Mass:, Harvard University Press, 1990).
[15]
M. Shapiro, "The Giving Reasons Requirement" [1992] University of Chicago Law Forum 179-220.
[16]
A. Denning, Freedom Under the Law (London: Stevens, 1949).
[17]
P. McCormick, "The Evolution of Coordinate Precedential Authority in Canada: Interprovincial Citations of Judicial Authority, 1922-92"
(1994) 32 Osgoode Hall Law Journal 271-294.
[18]
Harris, supra note 2, 210.
[19]
For example, see J. Doyle, "Judicial Law-Making: Is Honesty the Best Answer?" [1995] AdelLawRw 5; (1995) 17 Adelaide Law Review 161-212; M. Kirby "Judicial Activism" [1997] UWALawRw 1; (1997) 27 University of Western Australia Law Review 1-20.
[20]
Lord Reid, "The Judge as Law Maker" (1972) 12 Journal of the Public Society of Teachers of Law 22.
[21]
For example see I.L.M. Richardson, "The Role of Judges as Policy Makers" (1985) 15 Victoria University of Wellington Law Review 46-52; R. Cooke, "The New Zealand National Legal Identity" (1987) 3 Canterbury Law Review 171-183; E. W. Thomas, "Fairness and Certainty in Adjudication: Formalism versus Substantialism" [1999] OtaLawRw 3; (1999) 9 Otago Law Review 459-488; E.W. Thomas "A Critical Examination of the Doctrine of Precedent in R. Bigwood (ed) Legal Method in New Zealand (Wellington, Butterworths,
2001)
[22]
This issue lies at the heart of the recent debate in Australia concerning judicial activism in the Mason High Court under Mason
CJ stirred by the speech given by Heydon J, the newly-appointed member of the High Court of Australia, to the annual Quadrant dinner
in October 2002. Taking a swipe against judicial activism on the Mason Court. Heydon J. is reported as stating: "When judges detect
particular community values .... as supporting their reasoning, they may sometimes become confused between the values which they
think the community actually holds and the values which they think the community should hold" - see "High Court Gains by Heydon appointment",
The Australian December 19, 2002, p. 10.
[23]
R. Best "Conditional Leave to Appeal to the Privy Council" [1998] New Zealand Law Journal 439-442, 439. For recent New Zealand cases where judges, in particular Thomas J, have emphasised policy considerations over precedent see
R v Hines [1997] NZCA 123; [1997] 3 NZLR 529, 579-582 and Fulcher v Parole Board (1997) 15 CRNZ 222, 242-243. For a critique of judicial activism in New Zealand see Peter Watts, "The Judge as Casual Lawmaker" in R. Bigwood (ed)
Legal Method in New Zealand (Wellington, Butterworths, 2001).
[24]
For further discussion of the variables Harris used see Harris, supra note 2, 211-214.
[25]
Harris, supra note 2, 217.
[26]
Courier Mail, December 10 2002.
[27]
"New Zealand's Privy Council", World Today, ABC Radio, August 1 2002. The text of the report is available at: http://www.abc.net.au/worldtoday/s637599.htm
[28]
For a statistical overview of judgment writing in the New Zealand Court of Appeal see I.L.M. Richardson, "Trends in Judgment Writing
in the New Zealand Court of Appeal" in R. Bigwood (ed) Legal Method in New Zealand (Wellington, Butterworths, 2001).
[29]
Most of the data were collected in early 2000 for another project on the citation practice of the Court of Appeal. Some additional
variables needed for this study were collected at a later date. Hence, no information was collected on cases reported after December
1999. The results from that earlier project are reported in R. Smyth, "Judicial Citations - An Empirical Study of Citation Practice
in the New Zealand Court of Appeal" (2000) 31 Victoria University of Wellington Law Review 847-895; R. Smyth, "Judicial Robes or Academic Gowns? - Citations to Secondary Authority and Legal Method in the New Zealand Court of Appeal"
in R. Bigwood (ed), Legal Method in New Zealand (Auckland: Butterworths, 2001), pp. 101-129.
[30]
McCormick, supra note 17, 277.
[31]
Harris, supra note 2, 213.
[32]
Rich v Christchurch Girls' High School Board of Governors (No2) [1974] 1 NZLR 21 (CA).
[33]
Best, supra note 23.
[34]
Johnson examines the influence of case complexity, defined as the number of legal issues in the case, on the opinion writing of
the US Supreme Court during the first five terms that Rehnquist was chief justice. He presents evidence to suggest that the number
of dissenting and concurring opinions on the US Supreme Court during that period was positively related to the complexity of the
case - see S. Johnson, "The Influence of Complexity on the Opinion Writing of the Rehnquist Court" (1999) 25 Ohio Northern University Law Review 45-63.
[35]
B. Canon and D. Jaros, "External Variables, Institutional Structure and Dissent on State Supreme Courts" (1970) 4 Polity 185-200
[36]
Harris, supra note 2, 211
[37]
J.H. Merryman, "Toward a Theory of Citations: An Empirical Study of the Citation Practice of the California Supreme Court in 1950,
1960 and 1970" (1970) 50 Southern California Law Review 381-428, 407.
[38]
See K. McGuire and B. Palmer, "Issue Fluidity on the US Supreme Court" (1995) 89 American Political Science Review 691-702; P. Wahlbeck, J. Spriggs and F. Maltzman, "The Politics of Dissents and Concurrences on the US Supreme Court" (1999) 27 American Politics Quarterly 488-514.
[39]
See W.F. Murphy, Elements of Judicial Strategy, (Chicago, University of Chicago Press 1964); E. Slotnick, "The Chief Justice and
Self-assignment of Majority Opinions" (1978) Western Political Quarterly 219-225; Wahlbeck et al ibid.
[40]
Wahlbeck et al ibid.
[41]
R.B. Ginsburg, "Remarks on Writing Separately", (1990) 65 Washington Law Review 133-150.
[42]
See J.H. Merryman, "The Authority of Authority: What the California Supreme Court Cited in 1950" (1954) 6 Stanford Law Review, 613-651, 614-621.
[43]
J.B. Ramsey, "Tests for Specification Errors in Classical Linear Least Squares Regression Analysis" (1969) 31 Journal of the Royal
Statistical Society Series B, 350-371.
[44]
H. White, "A Heteroskedastic-Consistent Covariance Matrix Estimator and a Direct Test for Heteroskedasticity" (1980) 48 Econometrica
817-838.
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