Volume 80, Number 4

October 2005

Empirically Testing Dworkin’s Chain Novel Theory: Studying the Path of Precedent

Stefanie A. Lindquist, Frank B. Cross

In this article, Professors Lindquist and Cross empirically study the effect of precedent on judicial decisionmaking. The framework for their analysis is Ronald Dworkin’s “chain novel” metaphor, an influential theory of the role of precedent whose validity has not previously been empirically tested. The chain novel metaphor suggests that the judicial use of precedent can be likened to a group of authors writing a novel seriatim, in which the accumulation of chapters increasingly constrains the choices and freedom of subsequent writers. Precedent is one of the most important areas of legal research, but currently there is no dominant working theory, and only limited empirical evidence, about its role in judicial decisionmaking.

The first part of the authors’ study examines cases of first impression using a statistical model of judicial voting data from four United States Courts of Appeals between 1984 and 1988. Examining the influence of ideology on judicial decisionmaking in cases of first impression, and controlling for a number of external factors such as regional effects and litigant identity, Lindquist and Cross find that judicial ideology plays a statistically more significant role in cases where judges acknowledge that they are not bound by precedent (as in cases of first impression) than in cases where prior precedent exists. These findings provide preliminary support for the chain novel theory, as the existence of prior precedent appears to limit the degree to which judges are free to decide cases based on their own ideological preferences.

The second part of this study tests the evolving role of precedent over time. Lindquist and Cross examine over seven hundred decisions from five United States Courts of Appeals interpreting the phrase “under color of’ state law from 42 U.S.C. § 1983. To test whether the gradual accretion of precedent increasingly constrains judicial behavior, the authors select cases over a thirty-year period subsequent to the Supreme Court’s liberalization of the § 1983 cause of action in 1961. Controlling for other factors, including potential agenda effects based on the kinds of cases brought before the courts, Lindquist and Cross find that the importance of precedent in judicial decisionmaking is initially stable or increasing over time. However, contrary to the chain novel hypothesis, as the number of prior decisions grows further, precedent plays a decreased role. Judges appear to be relatively more free to decide cases based on their ideological preferences as precedents accumulate, rather than (as Dworkin suggests) more constrained. The study thus provides only limited support for the chain novel theory of judicial decisionmaking, finding that judges are indeed more free to decide based on their ideological preferences where no prior precedents exist. However, the fact that judicial discretion expands with the gradual accretion of precedent suggests that the chain novel thesis does not describe fully the operation of U.S. law.