Judicial Perceptions of Legal Difficulty: An Empirical Inquiry

ABSTRACT The law often asks judges to determine whether a violation is clearly established or whether legal language clearly or unambiguously supports a position. It demands that litigants not raise arguments or claims that would be easily dismissed. And for their part legal scholars have relied on the distinction between easy and hard cases as they delineate the concept of law itself. Yet, few have empirically studied assessments of legal difficulty. Here, we present the results of two studies that provide insight into the reliability of such assessments from laypeople and actual judges. For both populations, our key finding was this: assessments of case difficulty are highly predictive of the vote breakdown in a case; that is, the larger the size of a majority coalition, the lower the average difficulty rating registered by the members of that coalition (and, conversely, the smaller the size of a minority coalition, the higher the rating registered by its members). These results suggest that, while assessments of case difficulty are tied to case outcomes, they are a complex signal. Experiencing the feeling that a case is unusually difficult is not necessarily an indication that you are dealing with a 50/50 case, as is commonly assumed. Instead, it may be an indication that your position on the merits would be decisively rejected by the vast majority of others confronting the same question.