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Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument

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  • Lee Epstein
  • William M. Landes
  • Richard A. Posner

Abstract

It is no longer a secret that a lawyer arguing a case before the Supreme Court is more likely to lose if he is asked more questions than his opponent during oral arguments. This paper rigorously tests that hypothesis and the related hypothesis that a lawyer is more likely to lose if he is asked longer questions (measured by words per question) than his opponent. Using regression analysis, we find strong evidence for both hypotheses: the number of questions asked and the number of words per question asked are both negatively correlated with a party's likelihood of winning. Although the paper is primarily empirical, we also explore the theoretical basis for these results. We analyze the role of deliberation in appellate courts and explain that because formal deliberation is often quite limited, judges use oral argument as an alternative way to express their opinions and attempt to influence other judges.

Suggested Citation

  • Lee Epstein & William M. Landes & Richard A. Posner, 2010. "Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument," The Journal of Legal Studies, University of Chicago Press, vol. 39(2), pages 433-467.
    • Handle: RePEc:ucp:jlstud:doi:10.1086/651511
    DOI: 10.1086/651511
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    Cited by:

    1. Leighton Vaughan Williams, 2015. "Forecasting the decisions of the US Supreme Court: lessons from the ‘affordable care act’ judgment," Journal of Prediction Markets, University of Buckingham Press, vol. 9(1), pages 64-78.

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