Writing Style and Persuasion on the U.S. Circuit Courts of Appeals

• In Event: Writers on the Norm

Abstract

Policymakers regularly seek to advance their preferred policy outcomes by influencing the behavior of others. Frequently, they can offer incentives or impose costs to shape behavior. When they lack the ability to do so, policymakers instead must persuade others to act in a manner consistent with their preferences. While persuasion is therefore an essential component of political behavior, it is difficult to confidently conclude that persuasion has occurred using observational data. The mere observation that one actor takes an action consistent with the preferences of another who has attempted persuasion is not sufficient evidence to determine that persuasion has actually occurred.

Persuasion is particularly important for judges, who almost always lack the ability to directly shape the behavior of others. The primary way judges try to persuade is through the written language of their legal opinions. We investigate whether judges on the United States Courts of Appeals use writing style to persuade other judges to treat their opinions favorably. To do so, we consider the universe of federal appellate court treatments of the 2160 cases in the Update to the Appeals Courts Database—itself a stratified random sample of Courts of Appeals decisions, 1997-2002. The structure of the data and several of the variables collected make it as well-suited to assess persuasion. First, by structuring the data as an authored opinion-treated opinion dyad, we use the a priori preferences of each panel to control for the possibility that opinions’ treatments are motivated in part by ideological homophily. Second, by focusing primarily on out-of-circuit treatments, we can observe how panels treat an authored opinion when there is no formal expectation that they comply; that is, we can distinguish between persuasion and compliance induced by other means. Third, by leveraging Shepard’s Citations “Depth of Discussion” indicator, we can distinguish between treatments that are pro forma and those that are more substantial (and thus more plausibly persuasive). Fourth, unlike related work, we collect data on a random sample of issue areas; we can thereby ensure that apparent evidence of persuasion is not a function of a single issue area’s idiosyncrasies.

We use this data to analyze whether judges use several different elements of writing style to persuade future courts to treat their opinions favorably. Drawing on common quantitative measures of judicial writing style, we assess whether opinions written with different degrees of readability, informality, certainty, and affective language are more likely to be treated favorably. The results provide insight into whether and how judges can utilize writing style to persuade others to advance their policy preferences.

Authors

• Jeffrey Budziak, Western Kentucky University

• Daniel Lempert, SUNY, Potsdam