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

Published in 2010 in the Journal of Legal Studies 39:433-467.

Lee Epstein
William M. Landes
Richard A. Posner

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.

Click here for the article (Epstein's website)
Click here for the article (JLS's website)
This article (in revised form) appears in our book, The Behavior of Federal Judges
Click here for the data