I. Introduction
Legal reasoning is central to the resolution of legal disputes, and, as such, has been subjected to a wide range of scholarly studies. Theorists have debated the essential nature and purpose of legal reasoning,1 while behavioural scientists have considered how informational deficiencies and unconscious biases affect rational decision-making.2 Other strands of commentary focus on the practical nature of legal reasoning to promote best practices in the field.3
(p. 2) As useful as these works may be, some gaps remain. In particular, it appears that many of the fundamental principles on which scholarship regarding legal reasoning is based have not been empirically tested.4
While studies in this field can be challenging,5 this book undertakes the first-ever multi-faceted empirical study on legal reasoning in commercial disputes. The project not only provides novel insights into general practices, it also analyses potential differences along the judicial-arbitral divide, the domestic-international divide, and the common law-civil law divide.
The study is also distinct in that it focuses on first-instance rather than appellate decision makers.6 This particular methodology was adopted in order to delve more deeply into the important but often overlooked role that factual determinations play in legal reasoning7 and to create more suitable comparisons across the judicial-arbitral divide.8 In so doing, the discussion not only provides scholars with a new understanding of the reasoning process but also provides practitioners and policy makers with rigorous, fact-based analyses that can improve how justice is delivered on a systemic and individual level.9
(p. 3) Because decision makers may approach legal reasoning differently depending on the subject matter at issue, this project focused exclusively on commercial disputes, defined throughout the study as business-to-business or commercial state entity-to-business disputes. To avoid confusion, research subjects were explicitly advised that the definition of commercial disputes did not include investor-state arbitration, since that procedure is considered quasi-public in nature.10 This is not to say that some of the information gleaned from this study may not be applicable to investment arbitration or indeed to other fields of law, but more research would be needed before any firm conclusions could be drawn.11
Empirical studies are only as good as the research questions they seek to answer,12 and this project focuses on three interrelated issues. The first involves the longstanding assumption that legal reasoning in judicial settings is not only different than that used in arbitral settings but is somehow superior to arbitral reasoning.13 However, some forms of arbitration are extremely sophisticated, suggesting that conventional wisdom about the ‘second-class’ nature of arbitral justice may be the result of error or unconscious cognitive distortions.14 For example, one non-governmental organization that recently filed an amicus curiae brief in the United States Supreme Court case of GE Energy Power Conversion France SAS Corp v Outokumpo Stainless USA LLC claimed that it was acting to ‘defend[] access to justice for workers, consumers, and others harmed by corporate wrongdoing’ pursuant to its mission to ‘fight[] abuse of mandatory arbitration’, even though the dispute did not involve these categories of individuals but instead reflected a relatively standard dispute between international commercial actors.15
Although a handful of empiricists have conducted independent analyses of judicial or arbitral decision making, relatively few scholars have sought to compare legal reasoning across the judicial-arbitral divide, and those studies that do exist are not in the (p. 4) commercial realm.16 Therefore, the first research question, presented as a null hypothesis to be disproven, is that no differences exist between legal reasoning in commercial litigation and legal reasoning in commercial arbitration.17
As important and innovative as that issue is, the study does not stop there. The second line of inquiry focuses on actual or purported differences across the domestic-international divide.18
Recent research in the area of international commercial arbitration suggests that the procedure is becoming increasingly legalistic, which affects the way in which arbitral awards are reasoned and written.19 Questions therefore arise as to whether domestic forms of commercial arbitration can or should be distinguished from international commercial arbitration.
Similar inquiries arise in judicial settings, although the analysis is slightly different. At this point, there is no truly international court, similar to the International Court of Justice, that addresses cross-border commercial disputes.20 While several countries have developed so-called international commercial courts within their own national legal systems, it is too early to analyse decisions arising out of those tribunals.21 Instead, international commercial litigation is best understood in its traditional sense as involving cross-border disputes seated in national courts that are not entirely dedicated to international commercial matters.
As a result, the second research question in this study, presented as a null hypothesis to be disproven, is that no difference exists between legal reasoning in domestic and international commercial matters, including disputes that arise in both litigation and arbitration. For purposes of this research, an international dispute is defined as a matter where at least two parties came from different countries; where the property at issue was located in a country different than that of the disputants; or (p. 5) where performance or enforcement was anticipated in a country different than that of the disputants.22
The third and final issue considered in this book involves longstanding assumptions about the nature of legal reasoning in the common law and civil law legal traditions.23 The conventional view is that the common law relies primarily on case law and uses an inductive approach to legal reasoning while the civil law emphasizes the primacy of statutory law and adopts a deductive approach to legal reasoning.24 However, recent scholarship has begun to challenge this dichotomy, suggesting that the two legal traditions are becoming more similar.25 Therefore, the third research question, presented as a null hypothesis to be disproven, is that no difference exists between legal reasoning in common law and civil law legal systems, at least in the commercial context.26
The three research questions are analysed through a multi-faceted empirical study that triangulates individual results across different research components so as to confirm the validity of the results.27 Detailed discussions of the individual methodologies are provided elsewhere,28 but it is useful to describe how the various pieces fit together within the overall research strategy.
The first element of the study, which is discussed in Chapter 2, involved a large-scale international survey addressed exclusively to judges and arbitrators with experience in commercial dispute resolution. The survey generated responses from 465 individuals from 41 different countries and included 73 different questions regarding the use of legal authorities, the use of factual authorities (evidence), the reasoning process, the drafting process, and judicial and arbitration education regarding these concerns. The survey was designed not only to test the validity of longstanding theoretical assumptions about (p. 6) legal reasoning across the judicial-arbitral, domestic-international, and common law-civil law divides but also to generate new insights into the reasoning process in those contexts. Survey responses were subjected to statistical analysis to determine whether any relevant differences arose across the three axes of comparison.
The second element of the study, which is discussed in Chapter 3, involved a series of hour-long, semi-structured interviews of 20 judges and arbitrators from around the world. The interview protocol consisted of 27 different questions (not including sub-parts) covering the same issues addressed by the survey (i.e. the use of legal authorities, the use of factual authorities (evidence), the reasoning process, the drafting process, and judicial and arbitration education regarding these concerns). Interviewees were chosen to represent a wide variety of demographic attributes, including those that are central to the current study (e.g. those relating to potential differences across the judicial-arbitral, domestic-international, and common law-civil law divides) as well as those that reflect best practices in representative sampling (i.e. age, gender, seniority, etc.).29
The interview protocol was purposely designed to use questions that were the same or similar to those used in the survey so as to allow comparisons between interview and survey responses and overcome limitations inherent in each of the different methodologies.30 For example, the survey was able to collect data from a larger and more diverse group of individuals than was possible with the interviews, although the interviews allowed participants to go into more depth in their responses and answer questions in their own words. This latter feature was particularly useful in minimizing any unconscious biases that might have been incorporated into the design of the survey and interview instruments.
The third and final element of the study, which is discussed in Chapter 4, involved a quantitative analysis of original judicial decisions and arbitral awards. These materials were coded across 76 different data points and subjected to several statistical analyses. The coding exercise not only compiled demographic information about the parties and neutrals hearing the dispute, it also generated information about the types of disputes heard in different fora and the nature of legal and factual reasoning used in the various matters. While it was impossible to duplicate all of the questions reflected in the survey and interviews in the coding exercise, the coding analysis nevertheless tested the validity of some of the results generated by the other two studies as well as certain theoretical assumptions regarding legal reasoning across the judicial-arbitral, domestic-international and common law-civil law divides.
Although it would have been interesting to link coded material to individual survey respondents or interviewees, that approach was considered undesirable, both because it might have reduced the candour of survey or interview responses and because it (p. 7) would have severely limited the scope of the study.31 The project therefore focused on a wider range of decisions and awards.32
The coding analysis experienced a number of unanticipated difficulties associated with obtaining commercial decisions and awards suitable for the current study,33 but the exercise nevertheless considered 28 decisions from first-instance courts in Quebec, Canada;34 92 decisions from the English Commercial Court; 7 trial-level decisions from US state and federal courts; 22 reasoned awards rendered in domestic commercial arbitrations seated in the United States; 32 reasoned arbitration awards rendered in international commercial arbitrations seated in 8 different countries; 12 unreasoned (standard) awards rendered in domestic commercial arbitrations seated in the United States; and 4 unreasoned (standard) awards rendered in international commercial arbitrations seated in the United States.
Together, the three strands of inquiry, combined with the three methodological approaches, create an extremely wide-ranging research project. Various cross-references between the different segments of the study are found in the substantive chapters (i.e. Chapters 2, 3, and 4, discussing the survey, the interviews, and the coding exercise, respectively). However, a number of overarching considerations can be found in Chapter 5, which also pulls together the various strands of research and offers a number of proposals on how to move forward in this area of law.
As broad as this study may be, some limitations do apply. Most notably, this study does not seek to determine whether litigation or arbitration is somehow better than the other, either in domestic or international disputes or in common law or civil law traditions. Instead, the discussion simply seeks to identify primarily whether and to what extent any differences in legal reasoning arise across the three comparative axes and, secondarily, whether and to what extent actual practice reflects theoretical models and assumptions involving legal reasoning.
In order to achieve that second goal, it is necessary to appreciate current theoretical views on legal reasoning across the judicial-arbitral, domestic-international and common law-civil law divides. Although considerations of space make it impossible to engage fully with the debates reflected in each of these areas of study, this chapter provides an overview of the basic principles as well as extensive references to resource material to assist individuals who are interested in learning more about the various concerns.35
(p. 8) Before undertaking that discussion, it is necessary to consider whether and to what extent the overarching methodology adopted in this book conforms to best practices in social science research. The following section therefore describes empirical issues taken into consideration during the design of this project. Specific matters relating to individual empirical elements are considered in the relevant chapter.36
Footnotes:
1 E.g. Jan H Dalhuisen, Dalhuisen on Transnational Comparative, Commercial, Financial and Trade Law (Hart Publishing 2019) pt. IV (discussing legal reasoning of international arbitrators); James Gordley, ‘Legal Reasoning: An Introduction’, (1984) 72 Cal L Rev 138 (discussing historical, philosophical, and judicial perspectives on legal reasoning); HLA Hart, ‘Discretion’, (2013) 127 Harv L Rev 652 (consisting of a newly discovered article by HLA Hart on legal reasoning); William NR Lucy, ‘Criticizing and Constructing Accounts of Legal Reasoning’, (1994) 14 OJLS 303; Richard A Posner, ‘Judicial Behavior and Performance: An Economic Analysis’, (2005) 32 Florida St U L Rev 1259 (proposing an economic analysis of the performance of both judges and arbitrators). Scholarship on legal reasoning is often related to but not always synonymous with scholarship on legal theory. E.g. Fernando Atria, ‘Legal Reasoning and Legal Theory Revisited’, (1999) 18 L & Phil 537; Ronald Dworkin, Law’s Empire (Harvard University Press 1986); John Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford University Press 2012); HLA Hart, The Concept of Law (Oxford University Press 1961) 112; Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press 1994); Joseph Raz, Ethics in the Public Domain (rev edn, Clarendon Press 1999) 326–40 (distinguishing between reasoning about the law and reasoning according to the law); Fábio P Shecaira, ‘Gardner on Legal Reasoning’, (2014) 33 L & Phil 747. Legal philosophers often rely on principles of rhetoric for their analyses. E.g. Leonard G Boonin, ‘The Logic of Legal Decisions’, (1965) 75 Ethics 179; Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford University Press 2009).
2 Robert Counson, ‘The Decisionmaking Process in Arbitration’, (1990) 45 Arb J 37; Richard A Posner, Economic Analysis of Law (4th edn, Aspen 1992) 429–38; Susan D Franck and others, ‘Inside the Arbitrator’s Mind’, (2017) 66 Emory LJ 1115, 1135 (Franck and others, Arbitrator’s Mind); Christopher R Drahozal, ‘Empirical Findings on International Arbitration: An Overview’, in Thomas Schultz and Federico Ortino (eds), Oxford Handbook on International Arbitration (Oxford University Press forthcoming 2020) (Drahozal, Overview); Chris Guthrie, Jeffrey J Rachlinski, and Andrew J Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’, (2007) 93 Cornell L Rev 1; Chris Guthrie, Jeffrey J Rachlinski, and Andrew J Wistrich, ‘Judging by Heuristic Cognitive Illusions in Judicial Decision Making’, (2002) 86 Judicature 44; Edward L Rubin, ‘Rational Choice and Rat Choice: Some Thoughts on the Relationship Among Rationality, Market, and Human Beings’, (2005) 80 Chi-Kent L Rev 1091, 1094; Edna Sussman, ‘Biases and Heuristics in Arbitrator Decision-Making: Reflections on How to Counteract or Play to Them’, in Tony Cole (ed), The Roles of Psychology in International Arbitration (Wolters Kluwer 2017) 45; Robert B Wilson, ‘Strategic and Informational Barriers to Negotiation’, in Kenneth J Arrow and others (eds), Barriers to Conflict Resolution (WW Norton and Co 1995) 108, 108–19 (discussing economic and game theory).
3 Charles L Barzun, ‘The Forgotten Foundations of Hart and Sacks’, (2013) 99 Va L Rev 1, 6 (noting US jurisprudence has characterized legal reasoning as both theoretical and practical); Leonard G Boonin, ‘The Theoretical and Practical Approaches to Legal Reasoning’, (1963) 49 Archiv für Rechts- und Sozialphilosophie 433, 433 (Boonin, Theoretical and Practical); see also Judicial Writing Manual: A Pocket Guide for Judges (2d edn, Federal Judicial Center 2013) <https://www.fjc.gov/publications> accessed 11 April 2020; International Bar Association, Toolkit for Award Writing (September 2016), <https://www.ibanet.org> accessed 11 April 2020; ICC Award Checklist 1998, 2012, and 2017 Rules, International Chamber of Commerce, <https://iccwbo.org/publication/icc-award-checklist-1998-2012-icc-arbitration-rules/> accessed 11 April 2020.
4 Jack Knight, ‘Are Empiricists Asking the Right Questions About Judicial Decisionmaking?’, (2009) 58 Duke LJ 1531, 1545 (noting gap between theoretical and empirical research on legal reasoning and the lack of integration between the two approaches).
5 Ibid; Lucy (n 1) 310–11.
6 Much of the existing empirical research on legal reasoning focuses primarily on theoretical concerns raised by the Legal Realism movement, even though most legal realists were concerned with appellate rather than first-instance litigation. Brian Leitner, ‘Legal Realism’, in Dennis Patterson (ed), A Companion to Philosophy of Law and Legal Theory (Wiley-Blackwell 1999) 261, 267; Karl Lewellyn, ‘Some Realism About Realism’, (1931) 44 Harv L Rev 1222; William Twining, Karl Llewellyn and the Legal Realist Movement (2d edn, Cambridge University Press 2014).
7 Richard Michael Fischl, ‘It’s Conflict All the Way Down’, (2001) 22 Cardozo L Rev 773, 786 (suggesting rule application is understudied); Michael S Pardo, ‘Juridical Proof, Evidence, and Pragmatic Meaning: Toward Evidentiary Holism’, (2000) 95 Northwest. U L Rev 399, 401 (noting that the role of facts and evidence in legal determination is ‘undertheorized’). In the United States, this lacuna may arise because fact-finding is generally associated with juries rather than judges, although that hypothesis does not explain why analysis of the role that facts play in legal reasoning is largely unstudied in other jurisdictions. Michael J Saks, ‘What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?’, (1997) 6 So Cal Interdisciplinary LJ 1, 42. In the United Kingdom and Commonwealth, this gap may be due to the contention ‘that decisions on questions of law are generally required to be supported by public justifications, whereas there is no such general requirement for determinations of fact’. William Twining and David Miers, How to Do Things with Rules (5th edn, Cambridge University Press 2010) 126; Robin Creyke and others, Laying Down the Law (10th edn, LexisNexis Butterworths 2018) 249. In any case, the scholarly emphasis on the finding of facts, as opposed to the use of facts in the determination of the legal dispute, creates a false dichotomy between law and facts in judicial and arbitral reasoning. Boonin, Theoretical and Practical (n 3) 436–37.
8 As a theoretical matter, authorities are unclear as to whether arbitration constitutes a substitute for, an alternative to, or a supplement to litigation. Larry E Edmonson, Domke on Commercial Arbitration s 1:1, at 1–3 (3d edn, Thomson Reuters 2010) (noting arbitration coexists with litigation as ‘part of the American system of administering justice’); Pierre Mayer, ‘Comparative Analysis of Power of Arbitrators to Determine Procedures in Civil and Common Law Systems’, (1996) 7 ICCA Congress Series 24, 25 (noting arbitration is sometimes considered ‘a substitute for State justice, albeit of a private nature, but nevertheless pursuing the same ends’); Jeffrey W Stempel, ‘Keeping Arbitrations from Becoming Kangaroo Courts’, (2007) 8 Nevada LJ 251, 260 (noting ‘arbitration is a substitute for adjudication by litigation’). Some variation may also exist according to the type of arbitration in question. Edmonson (n 8) s 1:3, at 1–8 to 1–9 (noting that early precedent distinguished between commercial arbitration as a substitute for litigation and labour arbitration as a substitute for avoiding industrial strife, but suggesting that these distinctions may no longer apply). In any event, regardless of how arbitration is characterized, arbitral awards are more properly considered the functional equivalents of decisions from first-instance courts than of appellate opinions, since appellate judges focus primarily on questions of law rather than questions of law and fact.
9 Michael Heise, ‘The Past, Present and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism’, 2002 U Ill L Rev 819, 839 (noting a call for ‘a revival of interest in the actual judgment process’ as opposed to behavioural and attitudinal models of judicial decision making).
10 Public and private law disputes have traditionally been said to generate very different concerns with respect to legal reasoning, although there are those who dispute the continued relevance of this distinction. Guillermo Alvarez and W Michael Reisman, The Reasons Requirement in International Investment Arbitration (Brill 2008); Lukas van den Berge, ‘Rethinking the Public-Private Divide in the Age of Governmentality and Network Governance’, (2018) 5 Eur J Comp L & Gov 119. The public nature of court proceedings has often been lauded as one of the reasons why litigation is superior to arbitration. Hazel Genn, ‘Why the Privatisation of Civil Justice is a Rule of Law Issue, 36th FA Mann Lecture, Lincoln’s Inn (19 November 2012) 17–18; Judith Resnik, ‘Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights’, (2015) 124 Yale LJ 2804, 2806–07; William Twining, ‘Alternative to What? Theories of Litigation, Procedure and Dispute Settlement in Anglo-American Jurisprudence: Some Neglected Classics’, (1993) 56 MLR 380, 383 (discussing the views of Jeremy Bentham).
11 Those who are interested in pursuing similar lines of inquiry might want to consider adopting the methodology used herein so as to allow cross-study comparisons. Chs. 2.II, 3.II, 4.II; Appx. I, II, III.
12 Anselm Strauss and Juliet Corbin, Basics of Qualitative Research: Techniques and Procedures for Developing Grounded Theory (Sage Publishing 1998) 41 (discussing the need for precisely formulated research questions).
14 Gary B Born, International Commercial Arbitration (Wolters Kluwer 2014) 2129–30; SI Strong, ‘Truth in a Post-Truth Society: How Sticky Defaults, Status Quo Bias and the Sovereign Prerogative Influence the Perceived Legitimacy of International Arbitration’, 2018 U Ill L Rev 533, 535, 549 (Strong, Status Quo Bias).
16 E.g. Pat K Chew, ‘Arbitral and Judicial Proceedings: Indistinguishable Justice or Justice Denied?’ (2011) 46 Wake Forest L Rev 185 (considering civil rights disputes); David Horton, ‘Clause Construction: A Glimpse Into Judicial and Arbitral Decision-Making’, (2019) 68 Duke LJ 1323 (comparing class actions and class arbitrations). Some theorists have discussed the relative merits of judicial and arbitral decision making, although theoretical studies are not the same as empirical studies. Chris Guthrie, ‘Misjudging’, (2007) 7 Nevada LJ 420, 452–55.
17 Robert W Frick, ‘The Appropriate Use of Null Hypothesis Testing’, (1996) 1 Psych Methods 379–90 (discussing the appropriate use and function of null hypothesis testing); Mike Townsend and Thomas Richardson, ‘Probability and Statistics in the Legal Curriculum: A Case Study in Disciplinary Aspects of Interdisciplinarity’, (2002) 40 Duquesne L Rev 447, 460.
19 SI Strong, ‘Increasing Legalism in International Commercial Arbitration: A New Theory of Causes, A New Approach to Cures’, (2013) 7 World Arb & Med Rev 117, 117 (noting increasing legalism (also referred to as increasing formalism) is considered a negative by many in the arbitral community); SI Strong, ‘Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy’, (2015) 37 Mich J Intl L 1, 40 (Strong, Reasoned Awards).
20 Calls have been made for the development of an international court of civil justice that would have jurisdiction over certain commercial matters. Maya Steinitz, The Case for an International Court of Civil Justice (Cambridge University Press 2018).
21 These courts can vary significantly in how they are structured. Xandra E Kramer and John Sorabji (eds), International Business Courts: A European and Global Perspective (Eleven International Publishing 2019).
22 While the definition of an international commercial arbitration is relatively clear, the same level of detail does not exist with respect to international commercial litigation. United Nations Commission on International Trade Law (UNCITRAL), UNCITRAL Model Law on International Commercial Arbitration, art 1, 18th Session, Annex 1, UN Document A/40/17 (21 June 1985), revised by UNCITRAL, Revised Articles of the UNCITRAL Model Law on International Commercial Arbitration, 39th Session, Annex, UN Document A/61/17 (7 July 2006); American Law Institute, Restatement (Third) US Law of International Commercial and Investor-State Arbitration, Proposed Final Draft s 1.1 (24 April 2019); Born (n 14) 70; Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (Wolters Kluwer 1999) 12. The definition used herein is based on criteria found in the US Federal Arbitration Act. 9 USC s 202.
24 H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (5th edn, Oxford University Press 2014) chs. 5, 7; Roscoe Pound, ‘What Is the Common Law’ in The Future of the Common Law (Harvard University Press 1937) 3, 18; SI Strong, Katia Fach Gómez, and Laura Carballo Piñeiro, Comparative Law for Spanish-English Speaking Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing 2016) ch. 3.III.A-B; K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, Oxford University Press 1998) chs. 7, 14, 18.
26 The study also included data from jurisdictions outside the common law and civil law legal traditions, although those jurisdictions were not subjected to individual analysis.
27 Rob Timans, Paul Wouters, and Johan Heilbron, ‘Mixed Methods Research: What It Is and What It Could Be’, (2019) 48 Theory & Soc’y 193–216 (discussing methods and benefits of triangulation and mixed methods research in social sciences).
28 Chs. 1.II (concerning overarching methodological concerns), 2.II (concerning survey), 3.II (concerning semi-structured interviews), 4.II (concerning coding of decisions and awards).
29 Lee Epstein and Gary King, ‘The Rules of Inference’, (2002) 69 U Chi L Rev 1, 113 (2002) (Epstein and King, Rules) (discussing how to generate representative samples in small-n studies).
30 Saks (n 7) 5 (noting every empirical technique has its own distinct advantages and disadvantages).
31 The survey was intentionally made anonymous to increase the candour of the responses.
32 Ch. 4.II.A (discussing how decisions and awards were selected).
34 Quebec is often characterized as a civil law system with respect to private law concerns despite being considered a mixed legal system as a general matter. William Tetley, ‘Mixed Jurisdictions: Common Law v Civil Law (Codified and Uncodified)’, (2000) 60 Louisiana L Rev 677, 684, 695 (discussing how principles of English and commercial law were combined with principles of French law in the Civil Code of Lower Canada of 1866, which was in place when Quebec became part of the Dominion of Canada). However, some scholars question whether legal reasoning in Quebec is as civil law-oriented in practice as it is said to be as a formal matter. Catherine Valcke, ‘Quebec Civil Law and Canadian Federalism’, (1996) 21 Yale J Intl L 67, 114
36 Chs. 2.II (concerning the survey), 3.II (concerning the semi-structured interviews), 4.II (concerning the coding exercise).
37 Daniel R Cahoy, ‘Considerations in the Rise of Empirical Legal Scholarship’, (2010) 47 Am Bus LJ v, vii–viii; Susan D Franck, ‘Empiricism and International Law: Insights From Investment Treaty Dispute Resolution’, (2008) 48 Va J Intl 767, 784–95 (Franck, Empiricism). Rigorous methodology is particularly important in the context of empirical legal research, given the general lack of familiarity among legal audiences regarding the merits of empirical work. Lee Epstein and Gary King, ‘Building An Infrastructure for Empirical Research in the Law’, (2003) 53 J L Ed 311, 316–17; Gregory Mitchell, ‘Empirical Legal Scholarship as Scientific Dialogue’, (2014) 83 N Carolina L Rev 167, 185.
38 Replicability is another major means of validating social science research. Saks (n 7) 5.
39 Epstein and King, Rules (n 29) 54; Franck, Empiricism (n 37) 790 (noting ‘not all research questions are well-suited to empirical methodologies’); Matthias Schonlau, Ronald D Fricker and Marc N Elliott, Conducting Research Surveys via E-Mail and the Web (RAND Corporation 2002) 5–18 (discussing studies on research methodology conducted by the RAND Corporation).
40 Jeremy A Blumental, ‘Does Mood Influence Moral Judgment? An Empirical Test With Legal and Policy Implications’, (2005) 29 L & Psych Rev 1; Tony Cole (ed), The Roles of Psychology in International Arbitration (Wolters Kluwer 2017); Stefan H Krieger and Katrina Fischer Kuh, ‘Accessing Law: An Empirical Study Exploring the Influence of Legal Research Medium’, 2014 (16) Vanderbilt J Ent & Tech L 757; Richard Posner, How Judges Think (Harvard University Press 2008) (Posner, Think); Dan Simon, ‘A Third View of the Black Box: Cognitive Coherence in Legal Decision Making’, (2004) 71 U Chi L Rev 511; Gregory C Sisk, ‘The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making’, (2008) 93 Cornell L Rev 873 (discussing sources and trends in empirical research involving legal reasoning); Gregory C Sisk and Michael Heise, ‘Judges and Ideology: Public and Academic Debates About Statistical Measures’, (2005) 99 Northwest. U L Rev 743 (conducting empirical analyses and surveying recent analyses); Gregory C Sisk, Michael Heise, and Andrew P Morriss, ‘Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning’, (1998) 73 NYU L Rev 1377; Anne van Aaken and Tomer Broude, ‘Arbitration From a Law and Economics Perspective’, in Thomas Schultz and Federico Ortino (eds), The Oxford Handbook of International Arbitration (Oxford University Press forthcoming); Vern R Walker, ‘A Default-Logic Paradigm for Legal Fact-Finding’, (2007) 47 Jurimetrics J 193 (Walker, Default-Logic) (reflecting one of the few studies considering factual or evidentiary issues in legal reasoning); Vern R Walker, ‘Discovering the Logic of Legal Reasoning’, (2007) 35 Hofstra L Rev 1687; W Mark C Weidemaier, ‘Judging-Lite: How Arbitrators Use and Create Precedent’, (2012) 90 N Carolina L Rev 1091 (Weidemaier, Judging-Lite); W Mark C Weidemaier, ‘Toward a Theory of Precedent in Arbitration’, (2010) 51 Wm & Mary L Rev 1895. One recent study involved simulated decision-making scenarios testing cognitive biases found no difference between judges and arbitrators. Rebecca K Helm, Andrew J Wistrich, and Jeffrey J Rachlinski, ‘Are Arbitrators Human?’ (2016) 13 J Empirical LS 666, 692.
41 E.g. Jason A Cantone, Report on Federal-State Court Cooperation: A Survey of Federal Chief District Judges (Federal Judicial Center 2017) <https://www.fjc.gov/publications> accessed 11 April 2020; Tom Ginsburg and Glenn Hoetker, ‘The Unreluctant Litigant? An Empirical Analysis of Japan’s Turn to Litigation’, (2006) 35 JLS 31; Diana Richards, ‘Learning to Sentence: An Empirical Study of Judicial Attitudes Towards Judicial Training in Romania’, (2015) 7 Intl J Court Administration 68; Virginia Rosales and Dolores Jiménez-Rubio, ‘Empirical Analysis of Civil Litigation Determinants: The Case of Spain’, (2017) 44 Eur J L Econ 321; SI Strong, ‘International Litigation – Arbitration’, in Jürgen Georg Backhaus (ed), Encyclopedia of Law and Economics (2d ed 2020) (listing authorities).
42 E.g. Tony Cole and others, Arbitration in the Americas: Report on a Survey of Arbitration Practitioners, <https://www2.le.ac.uk/departments/law/research/arbitration> accessed 11 April 2020; Tony Cole, Pietro Ortolani, and Barbara Warwas, ‘Arbitration in Southern Europe: Insights From a Large-Scale Empirical Study’, (2015) 26 Am Rev Intl Arb 187; Yves Dezalay and Bryant G Garth, Dealing in Virtue: International Commercial Arbitration and the Constructions of a Transnational Legal Order (University of Chicago Press 1996) 298; Christopher R Drahozal, ‘Contracting Out of National Law: An Empirical Look at the New Law Merchant’, (2005) 80 Notre Dame L Rev 523; Christopher R Drahozal, ‘Arbitration by the Numbers: The State of Empirical Research on International Commercial Arbitration’, (2006) 22 Arb Intl 291; Drahozal, Overview (n 2); Christopher R Drahozal and Richard W Naimark (eds), Towards A Science of International Arbitration: Collected Empirical Research (Wolters Kluwer 2005); Christopher R Drahozal and Samantha Zyontz, ‘An Empirical Study of AAA Consumer Arbitration’, (2010) 25 Ohio State J Disp Res 843; Susan D Franck, ‘Empirically Evaluating Claims About Investment Treaty Arbitration’, (2007) 86 N Carolina L Rev 1 (Franck, Empirically Evaluating); Franck, Empiricism (n 37) 792; Gus Van Harten, ‘Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration’, (2012) 50 Osgoode Hall LJ 211; Tom Ginsburg and Gregory Shaffer, ‘How Does International Law Work?: What Empirical Research Shows’, in Peter Cane and Herbert Kritzer (eds), Oxford Handbook of Empirical Legal Studies (Oxford University Press 2010) 753, 754; William H Knull, III, and Noah D Rubins, ‘Betting the Farm on International Arbitration: Is It Time to Offer an Appeal Option?,’ (2000) 11 Am Rev Intl Arb 531, 533–34; Loukas Mistelis, ‘International Arbitration—Corporate Attitudes and Practices – 12 Perceptions Tested: Myths, Data and Analysis Research Report’, (2004) 15 Am Rev Intl Arb 525; Christopher A Whytock, ‘The Arbitration-Litigation Relationship in Transnational Dispute Resolution: Empirical Results from the Federal Courts’, (2009) 2 World Arb & Med Rev 39. The School of International Arbitration at Queen Mary, University of London, has been particularly active in the area of international commercial arbitration and has conducted a number of studies that have adopted a research methodology that is somewhat similar to that which is used in the current project. Queen Mary, University of London, Research at the School of International Arbitration, <http://www.arbitration.qmul.ac.uk/research/index.html> accessed 11 April 2020 (containing details regarding nine different empirical studies concerning international arbitration).
43 Penny Brooker and Anthony Lavers, ‘Mediation Outcomes: Lawyers’ Experience with Commercial and Construction Mediation in the United Kingdom’, (2005) 5 Pepperdine Disp Res LJ 161; Ewald Filler, ommercial Mediation in Europe: An Empirical Study of the User Experience (Wolters Kluwer 2012); Thomas J Stipanowich and J Ryan Lamare, ‘Living With ADR: Evolving Perceptions and Use of Mediation, Arbitration, and Conflict Management in Fortune 1000 Corporations’, (2014) 19 Harv Negotiation L Rev 1; SI Strong, ‘Realizing Rationality: An Empirical Assessment of International Commercial Mediation’, (2016) 73 Wash & Lee L Rev 1973 (2016).
44 Donna Shestowsky, ‘The Psychology of Preference: How Litigants Evaluate Legal Procedures Ex Ante’, (2014) 99 Iowa L Rev 637, 641; see also Michael Heise, ‘The Importance of Being Empirical’, (1999) 26 Pepperdine L Rev 807, 834 (discussing the need for and types of empirical legal research); Richard K Neumann, Jr and Stefan H Krieger, ‘Empirical Inquiry Twenty-Five Years After the Lawyering Process’, (2003) 10 Clinical L Rev 349, 353 (outlining various types of empirical research in law).
45 One methodology that was not adopted here involves simulated decision making, which has been used in both judicial and arbitral contexts. Franck and others, Arbitrator’s Mind (n 2) 1115; Helm, Wistrich, and Rachlinski (n 40) 666; Kristina Kylkova, ‘Bias in Arbitral-Decision-Making: Rescuing the Mentschikoff Archives From a Half Century of Oblivion’, (2014) 31 J Intl Arb 289; Soia Mentschikoff, ‘Commercial Arbitration’, (1961) 61 Colum L Rev 846.
46 Outcome studies often involve reversal rates. Knight (n 4) 1552. Some empirical studies have shown no discernible difference in outcome between judicial decisions and arbitral awards. Chew (n 16) 185 (considering civil rights disputes).
47 Jerome Frank, Law and the Modern Mind (Brentano’s 1930).
48 Numerous studies consider whether outcomes can be anticipated on the basis of the political affiliation of the individual who appointed the judge in question. E.g. CK Rowland and Robert A Carp, Politics and Judgment in Federal District Courts (University Press of Kansas 1996) 24–57; Sisk and Heise (n 40) 743.
49 Andrea Cann Chandrasekher and David Horton, ‘Arbitration Nation: Data From Four Providers’, (2019) 107 Cal L Rev 1, 7–8 (citing studies of domestic arbitration). Numerous studies consider whether outcome can be anticipated on the basis of whether an arbitrator is appointed by a state or by an investor in treaty-based arbitration. E.g. Susan D Franck, ‘Conflating Politics and Development? Examining Investment Treaty Arbitration Outcomes’, (2014) 55 Va J Intl L 13; Susan D Franck, ‘The ICSID Effect? Considering Potential Variations in Arbitration Awards’, (2011) 51 Va J Intl L 825; Susan D Franck and Lindsey E Wylie, ‘Predicting Outcomes in Investment Treaty Arbitration’, (2015) 65 Duke LJ 459.
50 However, some scholars have suggested empirical research based on systemic considerations in international commercial arbitration. Stavros Brekoulakis, ‘Systemic Bias and the Institution of International Arbitration: A New Approach to Arbitral Decision-Making’, (2013) 4 J Intl Disp Settlement 553. Theorists have argued that arbitrators may be prone to bias because of reputational or financial benefits associated with serving as an arbitrator, but empirical research suggests that concern is unfounded. Susan D Franck and others, ‘International Arbitration: Demographics, Precision and Justice’, in Albert Jan van den Berg (ed), International Council of Commercial Arbitrators Series Number 18: Legitimacy: Myths, Realities, Challenges (ICCA 2015) 33, 85–91 (Franck and others, Demographics).
51 Stephen J Choi and G Mitu Gulati, ‘Bias in Judicial Citations: A Window Into the Behavior of Judges?’ (2008) 37 JLS 87 (Choi and Gulati, Bias); Stephen J Choi and G Mitu Gulati, ‘Trading Votes for Reasoning: Covering in Judicial Opinions’, (2008) 81 So Cal L Rev 735 (Choi and Gulati, Trading Votes); Jeffrey P Commission, ‘Precedent in Investment Treaty Arbitration: A Citation Analysis of a Developing Jurisprudence’, (2007) 24 J Intl Arb 129; Joshua B Fischman and David S Law, ‘What is Judicial Ideology, and How Should We Measure It?’ (2009) 29 Wash U J L & Pol’y 133, 167; Weidemaier, Judging-Lite (n 40) 1105–06.
52 Sisk (n 40) 885 (noting the need to ‘examin[e] and classify[] the content of judicial opinions rather than merely counting outcomes in cases’).
53 E.g. Dezalay and Garth (n 42) passim; Dieter Flader and Charles W Anderson III, ‘Some Psychological Preconditions for the Process of International Arbitration: Preliminary Findings of a Research Project with a Qualitative Approach’, in Tony Cole (ed), The Roles of Psychology in International Arbitration (Wolters Kluwer 2017) 267.
54 Many studies of judicial conduct are conducted by ‘insiders’, meaning those who work at judicial research centres and who thus are unlikely to publish anything that might prove embarrassing to the judges in question. E.g. Cantone (n 41) (conducting a survey for the US Federal Judicial Center); James B Eaglin and Matthew Alex Ward, ‘Enhancing the Administration of Justice and Strengthening Judicial Independence Through Independent, Judicial-Based Applied Research Centers’, (2014) 7 J L Tech Risk Mgmt 77. One judge who has sought to pull back the veil on judicial reasoning is Judge Richard Posner, formerly of the US Federal Court of Appeals for the Seventh Circuit. E.g. Posner, Think (n 40).
55 Frank B Cross, ‘Decisionmaking in the US Circuit Courts of Appeals’, (2003) 91 Cal L Rev 1451, 1446–47, 1466; Milton Heumann, ‘Interviewing Trial Judges’, (1989–1990) 73 Judicature 200.
56 E.g. Dezalay and Garth (n 42) passim; John Lande and Peter W Benner, ‘Why and How Businesses Use Planned Early Dispute Resolution’, (2017) 13 U St Thomas LJ 248.
58 Strauss and Corbin (n 12) 41.
59 The motivation assessed herein focuses more on justificatory practices rather than extra-legal influences, which are often found to have relatively little effect on legal reasoning. Knight (n 4) 1553; Sisk (n 40) 888.
60 Saks (n 7) 5; Timans, Wouters, and Heilbron (n 27) 193.
61 Anonymous online surveys, such as the one conducted here, are often considered more accurate than interviews because respondents typically feel free to be entirely candid. Interviewees, on the other hand, can consciously or unconsciously seek to please the interviewee by providing what is perceived as the ‘right’ answer or can avoid divulging information that the interviewee perceives as shameful or embarrassing. Olena Kaminska and Tom Foulsham, Understanding Sources of Social Desirability Bias in Different Modes: Evidence from Eye-Tracking (Institute for Social and Economic Research 2013) 1.
62 One problem of non-directed interviews is that the results can devolve into mere anecdotal evidence if the study is not properly constructed. Neumann and Krieger (n 44) 380; see also Deborah L Rhode, ‘Legal Scholarship’, (2002) 115 Harv L Rev 1327, 1343. Those issues can be resolved by testing the results of the semi-structured interviews against survey data.
63 Choi and Gulati, Bias (n 51) 87; Choi and Gulati, Trading Votes (n 51) 735; Commission (n 51) 129; Fischman and Law (n 51) 167; Weidemaier, Judging-Lite (n 40) 1105–06.
64 E.g. John S Ehrett, ‘Against Corpus Linguistics’, (2019) 108 Georgetown LJ Online 50 (discussing judicial use of corpus linguistics); Penn Lai ‘Perry’ Li, ‘Natural Language Processing’, (2016) 1 Georgetown L Tech Rev 98 (discussing the effect of natural language processing, an outgrowth of artificial intelligence and computational linguistics, on legal practice and research); Friedemann Vogel, Hanjo Hamann, and Isabelle Gauer, ‘Computer-Assisted Legal Linguistics: Corpus Analysis as a New Tool for Legal Studies’, (2018) 43 L & Soc Inquiry 1340 (discussing legal linguistic projects on British, German, and European law).
65 Studies on legal reasoning have also adopted more holistic methodologies. E.g. James J Brudney and Corey Ditslear, ‘Canons of Construction and the Elusive Question for Neutral Reasoning’, (2005) 58 Vanderbilt L Rev 1; Mark A Hall and Ronald F Wright, ‘Systematic Content Analysis of Judicial Opinions’, (2008) 96 Cal L Rev 63; Daniel M Schneider, ‘Empirical Research on Judicial Reasoning: Statutory Interpretation in Federal Tax Cases’, (2001) 31 New Mexico L Rev 325. However, such projects can experience coder error and variation due to the subjectivity of the coding process. R Polk Wagner and Lee Petherbridge, ‘Is the Federal Circuit Succeeding? An Empirical Assessment of Judicial Performance’, (2004) 152 U Penn L Rev 1105, 1139.
66 ‘The Legal Concept of Evidence’, Stanford Encyclopedia of Philosophy (2015) 3.1, <https://plato.stanford.edu/entries/evidence-legal/#StrEviProWei> accessed 11 April 2020; Jan BM Vranken, Exploring the Jurist’s Frame of Mind: Constraints and Preconceptions in Civil Law Argumentation (Kluwer Law International 2006) 46–47 (calling for more empirical research on factual matters in civil law systems). A few exceptions exist. Catherine D Perry, ‘What Works – Evidence From A Trial Judge’s Perspective’, (1999) 25 Litigation 3; Edna Sussman, ‘The Arbitrator Survey – Practices, Preferences and Changes on the Horizon’, (2015) 26 Am Rev Intl Arb 517, 519 (Sussman, Survey); see also Chester Brown, A Common Law of International Adjudication (Oxford University Press 2007) 83–118 (discussing evidentiary concerns in international courts); Jeffrey Waincymer, Procedure and Evidence in International Arbitration (Kluwer International 2012) chs. 10–13 (seeking to blend theoretical and practical analyses regarding factual authorities but without an empirical element); Walker, Default-Logic (n 40) 193. In some countries, most notably the United States, analysis of the relative weight of different types of evidence may be curtailed by the ongoing belief that factual decision making in civil litigation is within the exclusive purview of the jury, not the judge, even though many commercial matters are actually heard as bench trials and even though the judge must be the one to write the reasoned decision that includes information about evidentiary concerns.
67 Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press 1949) 164–65 (discussing three types of judicial writings); Knight (n 4) 1554. Those involved in legal education have also recognized the need to expand the conception of ‘legal reasoning’, as taught in law schools, to include factual considerations. American Bar Association Section of Legal Education and Admissions to the Bar, Legal Education and Professional Development: An Education Continuum (American Bar Association 1992) 40, 53, 138–39 151–57, 163–72 (MacCrate Report).
68 Miller v Fenton, 474 US 104, 113–14 (1985) (citations omitted); see also Collector of Customs v Agfa-Gevaert Ltd, (1996) 186 CLR 389, 384 (Australia) (‘The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and juries to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.’); Ruddock v Taylor, (2005) 222 CLR 612, 627 (Australia) (noting there are ‘many cases … in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all’); Creyke and others (n 7) 250–51 (discussing the test in Collector of Customs v Pozzolanic, (1993) 43 FCR 280, for distinguishing facts and law and subsequent cases); SI Strong, ‘Legal Reasoning in International Commercial Disputes: Empirically Testing the Common Law-Civil Law Divide’, in Mélida N Hodgson and Antonio Crivellaro (eds), Dossier XVII: Reasoning in Arbitration (ICC Institute of World Business Law 2020) 41 (Strong, Legal Reasoning).
69 Knight (n 4) 1539–40 (discussing criticisms of the inappropriate narrowness of previous studies on judicial decision making).
71 Previous studies often made no distinctions between the types of authorities cited. Weidemaier, Judging Lite (n 40) 1105–06.
72 John Bell, Policy Arguments in Judicial Decisions (Clarendon Press 1983); Knight (n 4) 1539–40, 1547; James Plunkett, ‘Principle and Policy in Private Law Reasoning’, (2016) 75 CLJ 366.
73 Strong, Reasoned Awards (n 19) 19–20; SI Strong, ‘Writing Reasoned Decisions and Opinions: A Guide for Novice, Experienced and Foreign Judges’, 2015 J Disp Res 93, 104 (Strong, Reasoned Decisions). Other rationales exist for reasoned decisions and awards. Strong, Reasoned Awards (n 19) 15–20 (identifying both structural and process-oriented rationales for such awards, such as making sure the parties feel heard and protecting the award from subsequent review or annulment); ibid at 31–33 (discussing the audience for reasoned awards); Strong, Reasoned Decisions (n 73) 101–05 (identifying both structural and process-oriented rationales for such decisions, such as making sure the parties feel heard); ibid 116–17 (discussing the audience for reasoned decisions).
74 Recent years have seen a significant increase in interest in matters relating to judicial and arbitral education. Livingston Armytage, Educating Judges: Towards Improving Justice (Brill 2015); SI Strong, ‘Judicial Education and Regulatory Capture: Does the Current System of Educating Judges Promote a Well-Functioning Judiciary and Adequately Serve the Public Interest?’ 2015 J Disp Res 1, 1–18 (Strong, Judicial Education); Strong, Reasoned Awards (n 19) 5–8; Strong, Reasoned Decisions (n 73) 95–96; Chartered Institute of Arbitrators, Training at CIArb, <https://www.ciarb.org/training/> accessed 11 April 2020 (discussing pathway programme of advanced education); Professor Cheryl Thomas QC (Hon) Appointed the First Ever Dean of Education at Inner Temple, UCL Faculty of Laws, <https://www.ucl.ac.uk/laws/news/2019/jul/professor-cheryl-thomas-qc-hon-appointed-first-ever-dean-education-inner-temple> accessed 11 April 2020.
75 Strong, Reasoned Awards (n 19) 5–8; Strong, Judicial Education (n 74) 1–18; see also Emily Kadens, ‘The Puzzle of Judicial Education: The Case of Chief Justice William de Grey’, (2009) 75 Brooklyn L Rev 143, 146–47 (noting that many believe judges learn their new roles ‘by doing’ or through socialization (acculturation)).
76 In fact, leaders in judicial and arbitral education focus primarily on programming involving professional skills. Strong, Judicial Education (n 74) 20 (discussing courses on ‘judge-craft’); Strong, Reasoned Awards (n 19) 43 (discussing courses on ‘arbitrator-craft’).
77 Strong, Status Quo Bias (n 14) 553. Judges and arbitrators can also be prone to overconfidence. Franck and others, Arbitrator’s Mind (n 2) 1163 (discussing empirical research on egocentrism, also known as self-serving bias, in both judges and arbitrators); Strong, Judicial Education (n 74) 14 (discussing judicial hubris).
78 One common method of comparing judicial and arbitral beliefs and behaviours involves taking a research technique that was previously used in the judicial realm, applying it to the arbitral realm, then analysing whether any differences arise. E.g. Franck and others, Arbitrator’s Mind (n 2) 1166; Helm, Wistrich, and Rachlinski (n 40) 667 n 3.
79 Christopher R Drahozal, ‘A Behavioral Analysis of Private Judging’, (2004) 67 L & Contemp Probs 105, 115–16 (Drahozal, Private Judging) (summarizing studies); Drahozal, Overview (n 2); Franck and others, Arbitrator’s Mind (n 2) 1167; Carter Greenbaum, ‘Putting the Baby to Rest: Dispelling a Common Arbitration Myth’, (2015) 26 Am Rev Intl Arb 101.
80 Chandrasekher and Horton (n 49) 1 (discussing the repeat player phenomenon in litigation); Lee Epstein, ‘Some Thoughts on the Study of Judicial Behavior’, (2016) 57 Wm & Mary L Rev 2017, 2066 (noting studies on litigation from around the world show that courts tend to favour repeat players). Most studies of the repeat player phenomenon appear in consumer, employment, and investment arbitration rather than commercial arbitration, which tends to reflect ‘one shot’ players and customized, rather than standardized, arbitration agreements. E.g. Sarah Rudolph Cole, ‘The Lost Promise of Arbitration’, (2017) 17 SMU L Rev 849, 858–61 (distinguishing commercial arbitration from other mechanisms); Drahozal, Private Judging (n 79) 127–28 (citing studies and noting evidence of a repeat player bias is ‘inconclusive’); Franck, Empirically Evaluating (n 42) 80; Franck and Wylie (n 49) 501; Catherine A Rogers, ‘The Arrival of the “Have Nots” in International Arbitration’, (2007) 8 Nevada LJ 341, 343–44 (discussing traditional nature of international commercial arbitration).
81 E.g. Cellinfo, LLC v American Tower Corp, 352 F Supp 3d 127, 135–38 (D Mass 2018) (providing empirically faulty data on arbitration and one-sided policy analyses); Strong, Status Quo Bias (n 14) 562. Notably, a number of former judges who subsequently became arbitrators have remarked on the quality of justice in arbitration, with one highly esteemed US magistrate judge—Wayne Brazil—going so far as to claim that arbitration was in many ways better than litigation. Wayne D Brazil, ‘When “Getting it Right” is What Matters Most, Arbitrations are Better Than Trials’, (2017) 18 Cardozo J Conflict Res 277, 277–78 (‘[I]n many circumstances and for certain kinds of cases, arbitrations conducted by conscientious arbitrators are likely to yield higher quality decisions than trials conducted by conscientious judges.’).
82 In the United States, this criticism is most frequently aimed at consumer, employment, and labour arbitration, which are relatively informal processes. SI Strong, ‘The Special Nature of International Insurance and Reinsurance Arbitration’, 2015 J Disp Res 283, 287–89 (citing sources). International commercial arbitration, on the other hand, is frequently considered to reflect ‘Rolls Royce justice’ because of its complexity and sophistication. Russell J Weintraub, International Litigation and Arbitration: Practice and Planning (Carolina Academic Publishers 1994) 455; see also Born (n 14) 2129.
83 Jan Heiner Nedden and Aaron de Jong, ‘Arbitration in a Post-Truth World: Perception v Reality’, (2018) 12 Disp Res Intl 165, 170–72; Strong, Status Quo Bias (n 14) 535, 537 (listing authorities).
84 SI Strong, ‘Alternative Facts and the Post-Truth Society: Meeting the Challenge’, (2017) 165 U Penn L Rev Online 137, 138; Strong, Status Quo Bias (n 14) 530.
85 Some studies outside the commercial setting have addressed this issue. Chew (n 16) 205–06 (noting arbitrators in civil rights cases cited legal principles and interpreted legal principles in much the same manner as judges); Andrew J Wistrich, Jeffrey J Rachlinski, and Chris Guthrie, ‘Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings?’, (2015) 93 Texas L Rev 855, 912 (noting that judges are affected by emotional or equitable concerns).
86 SI Strong, ‘Navigating the Borders Between International Commercial Arbitration and U.S. Federal Courts: A Jurisprudential GPS’, 2012 J Disp Res 119, 132–33.
88 Most research in this field focuses on how judges and arbitrators use legal authorities to determine substantive disputes. E.g. Klaus Peter Berger, The Creeping Codification of the New Lex Mercatoria (2d edn, Wolters Kluwer 2010); Orsolya Toth, The Lex Mercatoria in Theory and Practice (Oxford University Press 2017); Zweigert and Kötz (n 24) chs. 1, 2, 4. However, a few commentators have studied how judges and arbitrators use legal authorities in procedural disputes. Brown (n 66) 36–55 (discussing sources of procedural law in international courts); SI Strong, ‘General Principles of Procedural Law and Procedural Jus Cogens,’ (2018) 122 Penn State L Rev 347; SI Strong, Research and Practice in International Commercial Arbitration: Sources and Strategies (Oxford University Press 2009); SI Strong, ‘Research in International Commercial Arbitration: Special Skills, Special Sources’, (2009) 20 Am Rev Intl Arb 119.
89 Paul F Kirgis, ‘Judicial Review and the Limits of Arbitral Authority: Lessons From the Law of Contract’, (2007) 81 St John’s L Rev 99, 99 (discussing two ways of characterizing the role of the arbitrator); Chad M Oldfather, ‘Writing, Cognition, and the Nature of the Judicial Function’, (2008) 96 Georgetown LJ 1283; Rowland and Carp (n 48) 190 n 2 (‘[M]any trial judges appear to be motivated primarily by their role orientation—that is, their “secondary” perceptions of what a judge should do—and not by their personal preferences.’); Strong, Judicial Education (n 74) 8–9.
90 Letter from Alex Kozinski, US Circuit Judge, 9th Circuit, to Samuel A Alito, Jr, US Circuit Judge, 3rd Circuit (16 January 2004) 5, 9–10 (noting appellate judges in the United States spend 5–10 minutes reviewing unpublished opinions that have been drafted entirely by law clerks or staff attorneys, whereas judges spend weeks or even months crafting published opinions), <http://www.nonpublication.com/kozinskiletter.pdf> accessed 11 April 2020; see also Stephen J Choi and G Mitu Gulati, ‘Which Judges Write Their Opinions (And Should We Care)?’ (2005) 32 Florida St U L Rev 1077; Law Clerk Handbook: A Handbook for Law Clerks to Federal Judges (rev 3d edn, Federal Judicial Center 2017) 106–08 <https://www.fjc.gov/publications> accessed 11 April 2020 (discussing how to draft judicial opinions). Significant debate exists regarding the use, influence and billing of law clerks and tribunal secretaries. E.g. J Ole Jensen, Tribunal Secretaries in International Arbitration (Oxford University Press 2019); Todd C Peppers, Michael W Giles, and Bridget Tainer-Parkins, ‘Inside Judicial Chambers: How Federal District Court Judges Use and Select Their Law Clerks’, (2008) 71 Albany L Rev 623, 623.
91 Most authorities suggest that judges can conduct such research, although judges vary considerably as to whether they do in fact undertake such efforts. Robert Barnes, ‘Should Supreme Court Justices Google?’ Wash Post (8 July 2012), <https://www.washingtonpost.com/politics/should-supreme-court-justices-google/2012/07/08/gJQAMC0kWW_story.html> accessed 11 April 2020; Robert Barnes, ‘Supreme Court Rule: (Other) Justices Shouldn’t Conduct Independent Research’, Wash Post (25 March 2018), <https://www.washingtonpost.com/politics/courts_law/supreme-court-rule-other-justices-shouldnt-conduct-independent-research/2018/03/25/7a4f790a-2ebd-11e8-b0b0-f706877db618_story.html> accessed 11 April 2020; Strong, Reasoned Decisions (n 73) 126–27 (citing authorities); SI Strong, ‘Richard A. Posner, Divergent Paths: The Academy and the Judiciary – How Legal Academics Can Participate in Judicial Education: A How-To Guide by Richard Posner’, (2017) 66 J L Ed 421, 430 (suggesting judges should conduct independent legal and factual research). However, the same degree of consensus does not appear to exist with respect to independent legal research by arbitrators, since the process is private, rather than public, and awards do not carry the same type of precedential value as judicial decisions. Jennifer Kirby, ‘How Far Should an Arbitrator Go to Get it Right?’, in Patricia Shaughnessy and Sherlin Tung (eds), The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A Karrer (Wolters Kluwer 2017) 193; Strong, Reasoned Awards (n 19) 25–27 (citing authorities).
93 For example, one issue of interest involved whether and to what extent judges and arbitrators provide parties with feedback about the parties’ arguments or provide insight into any legal or factual research conducted by the decision maker. Sussman, Survey (n 66) 524. Not only was it important to consider whether such discussions took place, it was also important to appreciate why, when, and how those conversations took place. Geoffrey M Beresford Hartwell, ‘Assessing Evidence, Constructive Mistrust and the Loneliness of Decision-Making: “There’s Not Art to Find the Mind’s Construction in the Face”’, in Tony Cole (ed), The Roles of Psychology in International Arbitration (Wolters Kluwer 2017) 299, 311.
94 Stavros L Brekoulakis, ‘International Arbitration Scholarship and the Concept of Arbitration Law,’ (2013) 36 Fordham Intl LJ 745, 746–47; Strong, Judicial Education (n 74) 8–9.
95 Numerous theoretical works exist with respect to the goals associated with drafting reasoned decisions and awards, along with a handful of empirical or first-hand accounts of the drafting process. Cardozo (n 67) 164–65 (discussing three types of judicial writings); Teresa Giovannini, ‘Philosophy Can Help Tribunals Draft Awards That Parties Will Accept as Legitimate’, (May–July 2011) 66 Disp Res J 78; Knight (n 4) 1542–43, 1545–46; Giacomo Marchisio, ‘The Notion of Award in International Commercial Arbitration – The Case of English and French Law’, (2016) 6 Revue d’Arbitrage et de Médiation 53; Richard A Posner, ‘Judges’ Writing Styles (And Do They Matter?)’, (1994) 62 U Chi L Rev 1421, 1447–48; Posner, Think (n 40) 110–11; Alan Redfern, ‘Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly’, (2004) 20 Arb Intl 223; Strong, Reasoned Awards (n 19) 1; Strong, Reasoned Decisions (n 73) 93; Sussman, Survey (n 66) 531. However, relatively few studies integrate theoretical and empirical analysis, which underscores the usefulness of the current research. Knight (n 4) 1546; Sisk (n 40) 897. For example, questions exist as to whether arbitrators write awards for the review of third parties interested in the outcome of the dispute and whether arbitrators write reasoned awards, at least in part, for their own edification. Sussman, Survey (n 66) 534.
96 A few exceptions exist. Knight (n 4) 1542–43; Posner, Think (n 40) 110–11; Strong, Reasoned Awards (n 19) 21–54; Strong, Reasoned Decisions (n 73) 106–27.
97 Sussman, Survey (n 66) 519, 531.
98 Knight (n 4) 1542 (discussing factual determinations); ibid 1548–49 (discussing legal determinations); Sussman, Survey (n 66) 528.
99 Peter Gillies and Niloufer Selvadurai, ‘Reasoned Awards: How Extensive Must the Reasoning Be?’ (2008) 74 Arb 125; John Burritt McArthur, ‘The Tom Brady Award and the Merit of Reasoned Awards’, (2017) 8 J Sports & Ent L 147; Strong, Reasoned Awards (n 19) 10–13; Strong, Reasoned Decisions (n 73) 100–01; Strong, Legal Reasoning 41 (n 68).
100 Thomas Bingham, ‘Reasons and Reasons and Reasons: Differences Between a Court Judgment and an Arbitral Award’, (1988) 4 Arb Intl 1 (presenting the views of a former Lord Chief Justice of England). For example, the English Court of Appeal (Civil Division) described the duty to give reasons in a judicial decision as follows:
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381 (England); cf Schwebel v Schwebel [2011] 2 AER (Comm) 1048 at [23] (England) (holding a reasoned award does not have to list all the argument or pieces of evidence that are accepted or rejected but should typically identify the primary evidence which is found compelling, if the case depends upon factual findings, since that will be part of the reasoning). Other countries have formulated similar but jurisdictionally unique standards for both judicial decisions and arbitral awards. E.g. Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 (Australia) (concerning the Australian Commercial Arbitration Act 1984); Court of Appeal Brussels, 6 December 2011, Management Service bvba v Vlaamse Media Maatschappij (Belgium), published in (2014) 1 b-Arbitra, pp 215–219 (suggesting that an award will be considered reasoned if the arbitrator has addressed all the arguments raised, even if s/he does not go into the details of each argument); Court of First Instance of Liege, 6 March 1984, Q v C, published in Jurisprudence de Liege, 1984, pp 197–200 (Belgium) (holding that the reasoning in an arbitral award shall meet the same quality standards as those required for judicial decisions); Federal Supreme Court, 14.05.1992, File Number III ZR 169/90 (Germany), published in 1992 Neue Juristische Wochenschrift (NJW), p 2299 (holding an arbitral tribunal is not obligated to address every assertion of the parties in an award, but only to consider those assertions); Higher Regional Court Munich, 29.10.2009, File Number 34 Sch 15/09 (Germany), published in BeckRS 2009, p 86918 (noting that parties in arbitration must be able to comment on all the facts and evidence on which the award was based but noting that principle did not impose a general duty on the arbitral tribunal to clarify or ask questions or the parties nor a general right of the parties to a legal discussion); Svea Court of Appeal, 20 June 2013, Case No T 10913-11 (Sweden) (noting a tribunal’s lack of reasoning can be a ground for setting aside an award only if there is essentially a complete lack of reasoning, which is a very high standard); Svea Court of Appeal, 7 December 2006, Case No T 5044 (Sweden) (noting the Swedish Arbitration Act does not require reasoned awards); Svea Court of Appeal, 29 March 2001, Case No T 5781-00 (Sweden) (denying the party’s claim that award lacked reasoning and that the arbitral tribunal had not addressed each argument raised); Swiss Federal Tribunal, First Civil Law Court, 29 January 2010, A GmbH v B SA, No 4A_550/2009, para 5 (Switzerland) (noting the right to be heard does not include the right to a reasoned decision, and that although arbitral tribunals have an obligation to hear and consider those allegations that are legally relevant, this does not require tribunals to expressly address every argument advanced by the parties in the award); Swiss Federal Tribunal, First Civil Law Court, 30 September 2003, A v B Ltd, C GmbH, D Ltd and E Ltd, No 4P.100/2003, paras 5–6 (Tvornica decision) (Switzerland) (annulling an award that relied on a provision that neither of the parties had considered to be central to the matter and that had generated legal reasoning that was very different from the positions advanced by the parties); High Court of the Basque Country 14/2015, 2 December (Spain), published in Id Cendoj 48020310012015100030 (noting a failure to address all the claims submitted to arbitration implied a lack of defence of the counterclaimants and a violation of the procedural public policy (orden público procesal), which requires awards to be logical, well-reasoned and consistent with the parties’ petitions); Cat Charter LLC v Schurtenberger, 646 F 3d 836, 844 (11th Cir 2011) (US); Rain CII Carbon, LLC v ConocoPhillips Co., 674 F 3d 469, 473–74 (5th Cir 2012) (US) (distinguishing a reasoned award from an award with findings of fact and conclusions of law); Leeward Construction Co v American University of Antigua-College of Medicine, 826 F 3d, 634, 640 (2d Cir 2016) (US); Hart v Massanari, 266 F 3d 1155, 1176–77 (9th Cir 2001) (US) (discussing and reflecting on the qualities of a reasoned judicial ruling); Smarter Tools Inc v Chongqing Senci Import & Export Trade Co, Civ 18-cv-2714 (AJN), 2019 WL 1349527 at 6 (SDNY 26 March 2019) (US); see also Exemplary Legal Writing, The Green Bag Almanac and Reader, <http://www.greenbag.org/green_bag_press/almanacs/almanacs.html> accessed 11 April 2020 (listing well-written judicial rulings on an annual basis); International Bar Association, Annulment of Arbitral Awards by State Court: Review of National Case Law With Respect to the Conduct of the Arbitral Process (October 2018), <https://www.ibanet.org/Document/Default.aspx?DocumentUid=b4b532bb-90e1-40ab-ab3d-f730c19984fb> accessed 11 April 2020.
101 Jeffrey J Rachlinski and Andrew J Wistrich, ‘Judging the Judiciary by the Numbers: Empirical Research on Judges’, (2017) 13 Ann Rev L & Soc Sci 203, 223. Some exceptions do exist. E.g. Hart v Massanari, 266 F3d 1155, 1170–71 (9th Cir 2001); Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381 (England).
103 Indeed, commentators have specifically indicated that judges need to receive more feedback on their reasoning skills. Rachlinski and Wistrich (n 103) 223 (noting that appeals are not an appropriate means of providing useful feedback).
104 77 Pennsylvania Statutes Annotated s 834. Although this definition arises in the context of the statutory duties of a workers’ compensation board, the principles appear to apply equally in other situations, including arbitration. Jennifer Kirby, ‘What Is An Award, Anyway?’, (2014) 31 J Intl Arb 475, 476; see also Born (n 14) 3040–41, 3043–44.
105 Views on this issue can vary considerably between different individuals. Cross (n 55) 1465–66; SI Strong and Jeremy Fogel, ‘Judicial Education, Dispute Resolution and the Life of a Judge: A Conversation with Judge Jeremy Fogel, Director of the Federal Judicial Center’, 2016 J Disp Res 259, 276(noting that individuals’ ‘judicial philosophy is very important, and it affects every facet of the litigation process’ and recognizing that judicial philosophy varies significantly between individuals as a matter of institutional design and judicial independence); Sussman, Survey (n 66) 519 (discussing the ‘applied legal storytelling movement’).
106 For example, significant debate exists regarding whether and to what extent programming regarding unconscious bias should be mandated within the judicial community. E.g. Kathleen Mahoney, ‘Judicial Bias: The Ongoing Challenge’, 2015 J Disp Res 43, 43; Elizabeth Thornberg, ‘(Un)Conscious Judging’, (2019) 76 Wash & Lee L Rev 1567, 1569–70 (noting how unconscious biases affect factual inferences); ibid at 1644–46 (noting need for training on unconscious bias).
108 E.g. Epstein (n 80) 2029–35 (discussing empirical studies on domestic judges outside the United States and on international judges); Pietro Ortolani and Donna Shestowsky, ‘Disputant Psychology in International Arbitration: What Can a Comparison with Domestic Arbitration Teach Us?’ in Tony Cole (ed), The Roles of Psychology in International Arbitration (Wolters Kluwer 2017) 113.
109 International Business Courts: A European and Global Perspective (n 21) (discussing developments in various jurisdictions).
110 Born (n 14) 61–63, 68, 78, 99; Otto Sandrock, ‘The Choice Between Forum Selection, Mediation and Arbitration Clauses: European Perspectives’, (2009) 20 Am Rev Intl Arb 8, 37 (suggesting up to 90 per cent of international commercial contracts include an arbitration provision); SI Strong, International Commercial Arbitration: A Guide for US Judges (Federal Judicial Center 2012) 1, <https://www.fjc.gov/publications> accessed 11 April 2020.
111 Some questions exist as to how the two traditions are balanced as a matter of arbitral procedure and reasoning. For example, the French approach to legal reasoning does not appear to be widely adopted in international commercial arbitration, despite the esteem with which France is held in the field. Marcel Fontaine, ‘Drafting the Award: A Perspective From a Civil Law Jurist’, (1994) 5 ICC Court Bulletin 30, 36; James M Gaitis, ‘International and Domestic Arbitration Procedure: The Need for a Rule Providing a Limited Opportunity for Arbitral Reconsideration of Reasoned Awards’, (2004) 15 Am Rev Intl Arb 9, 17. Instead, reasoned awards in international commercial arbitration have more frequently resembled judicial decisions generated by courts in common law countries and in civil law jurisdictions like Germany, although a shift toward civil law techniques may currently be underway, given increasing concerns within the international arbitral community about excess cost and formality of procedures. Klaus Peter Berger, ‘Common Law vs. Civil Law in International Arbitration: The Beginning or the End?’ 36 J Intl Arb 296, 299–300 (2019) (questioning whether the adoption of the Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) reflected a movement away from the traditional view of international arbitration proceedings as a blend of common law and civil law procedures); Fontaine (n 111) 36 (noting that French-style ‘whereas’ clauses (attendus) are generally not used in international awards, even in those countries where that style of writing is common in the judicial context). But see Interim Award in ICC Case No 4131, IX Yearbook Commercial Arbitration 131, 135 (1984) (using attendu clauses, although the decision was translated from French and comes from an earlier era in international commercial arbitration).
112 For example, most awards in international commercial arbitration run dozens of pages in length. E.g. Contractor (Zambia) v Producer (Zambia), Final Award, ICC Case No 16484, 2011, XXXIX YB Comm Arb 216 (2014); Fontaine (n 111) 36; see also XXXIX YB Comm Arb 30-305 (2014) (publishing a variety of recent awards); Kai Schadbach, ‘The Benefits of Comparative Law: A Continental European View’, (1998) 16 Boston U Intl LJ 331, 343 n 63 (comparing German and Dutch legal decisions); Queen Mary, University of London, International Arbitral Award Writing, <https://www.qmul.ac.uk/law/postgraduate/courses/short/arbitration-award-writing/> accessed 11 April 2019 (offering a course in award writing and indicating that the mock award produced by students must exceed 5,000 words). A somewhat shorter example can be found at Consortium member (Italy) v Consortium leader (Netherlands), Final Award, ICC Case No 14630, XXXVII Yearbook Commercial Arbitration 90 (2012). Notably, some commentators have suggested that ‘in some instances, longer is not better’ when it comes to drafting arbitral awards. Born (n 14) 3041–42.
113 Joseph Dainow (ed), The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions (Louisiana State University Press 1974); Phoebe C Ellsworth, ‘Legal Reasoning’, in Keith J Holyoak and Robert G Morrison (eds), The Cambridge Handbook of Thinking and Reasoning (Cambridge University Press 2005) 685; Strong, Fach, and Carballo (n 24) ch. 3.III.A-B; Vranken (66) passim; Zweigert and Kötz (n 24) chs. 7, 14, 18.
114 Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System, Issues Paper (1997) 20; Javier H Rubinstein, ‘International Commercial Arbitration: Reflections at the Crossroads of the Common Law and Civil Law Traditions’, (2004) 5 Chi J Intl L 303, 308.
115 Caslav Pejovic, ‘Civil Law and Common Law: Two Different Paths Leading to the Same Goal’, (2001) 32 Victoria U Wellington L Rev 817, 833.
116 E.g. Marcello Gaboardi, ‘How Judges Can Think: The Use of Expert’s Knowledge as Proof in Civil Proceedings’, (2018) 18 Global Jurist 1 (discussing fact-finding processes for common and civil law judges); Pejovic (n 115) 834–35 (discussing, for example, the common law’s use of party-appointed experts versus the civil law’s use of court-appointed experts as well as the single hearing in common law courts as opposed to multiple hearings in civil law courts). Some scholars have discussed ‘the litigant-driven theory of decisionmaking’, which posits that ‘actual decisions produced by courts will be controlled largely by the strategic litigation decisions made by the parties to the action’. Cross (n 55) 1491; see also ibid 1494; Flader and Anderson (n 53) 285. This issue is particularly relevant to the extent that common law lawyers are said to favour ‘adversarial’ proceedings while civil law lawyers prefer ‘inquisitorial’ proceedings. Zweigert and Kötz (n 24) chs 7, 14, 18.
117 For example, it is often said that civil lawyers rely more on scholarly commentary than common law lawyers, whereas common law lawyers rely more on judicial precedent. Jan K Schäfer, ‘Focusing a Dispute on the Dispositive Legal and Factual Issues, or How German Arbitrators Think: An Introduction to a Traditional German Method’, (2013) 2 b-Arbitra 333; SI Strong, How to Write Law Essays and Exams (5th edn, Oxford University Press 2018) chs 3–6 (discussing reasoning and drafting in England); SI Strong, How to Write Law Exams: IRAC Perfected (2d edn, West Academic Publishing forthcoming 2020) chs. 3–6 (discussing reasoning and drafting in the United States); Strong, Reasoned Awards (n 19) 21–54; Strong, Reasoned Decisions (n 73) 107–27; Vranken (n 66) 57–58.
118 Guido Calabresi, A Common Law for the Age of Statutes (Harvard University Press 1982) 5–7; Peter de Cruz, Comparative Law in a Changing World (3d edn, Routledge-Cavendish 2007) 70; Neal Devins and David Klein, ‘The Vanishing Common Law Judge?’ (2017) 165 U Penn L Rev 595, 597; Strong, Legal Reasoning (n 68) 48–53.
119 Mathilde Cohen, ‘When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach’, (2015) 72 Wash & Lee L Rev 483, 533; Michael L Wells, ‘“Sociological Legitimacy” in Supreme Court Opinion’, (2007) 64 Wash & Lee L Rev 1011, 1029.
120 Fontaine (n 111) 33; Allen Shoenberger, ‘Change in the European Civil Law Systems: Infiltration of the Anglo-American Case Law System of Precedent Into the Civil Law System’, (2009) 55 Loyola Law Review 5, 5.
121 Jeffrey L Friesen, ‘When Common Law Courts Interpret Civil Codes’, (1996) 15 Wisconsin Intl LJ 1, 8; see also Louis Goutal, ‘Characteristics of Judicial Style in France, Britain and the USA’, (1976) 24 Am J Comp L 43, 45.
124 Schadbach (n 112) 343 n 63 (citing Erhard Blankenburg, ‘Patterns of Legal Culture: The Netherlands Compared to Neighboring Germany’, (1998) 46 Am J Comp L 1, 40, and Arthur Taylor von Mehren and James Russell Gordley, The Civil Law System, An Introduction to the Comparative Study of Law (2d edn, Little, Brown and Co 1977) 1140); Goutal (n 23) 45).
125 Strong, Fach, and Carballo (n 24) chs. 3–6 (comparing various common law countries, including Australia, Canada, England, and the United States).
126 These procedures are referred to as ‘discovery’ in the United States and ‘disclosure’ in most other common law jurisdictions. SI Strong, ‘Jurisdictional Discovery in United States Federal Courts’, (2010) 67 Wash & Lee L Rev 489, 501–02, 510–11.
127 E.g. Bridget J Crawford and Anthony C Infanti (eds), Feminist Judgments: Rewritten Tax Opinions (Cambridge University Press 2017); Kimberlé Williams Crenshaw, ‘Twenty Years of Critical Race Theory: Looking Back to Move Forward’, (2011) 43 Connecticut L Rev 1253, 1253–54, 1260; Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (3d edn, NYU Press 2017) 3; Rosemary Hunter, Clare McGlynn, and Erika Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing 2010); Kathryn M Stanchi, Linda L Berger, and Bridget J Crawford (eds), Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press 2016).
128 Some studies do exist, but they often focus on outcome rather than on the constituent elements of legal reasoning and thus could be affected by a variety of influences. Rachlinski and Wistrich (n 103) 205–08.
129 Franck and others, Demographics (n 50) 95–115; Susan D Franck and others, ‘The Diversity Challenge: Exploring the “Invisible College” of International Arbitration’, (2015) 53 Colum J Transnatl L 429 (Franck and others, Diversity); Malia Reddick, Michael J Nelson, and Rachel Payne Caufield, ‘Racial and Gender Diversity on State Courts’, (2009) 48 Judges’ J 28; Organisation for Economic Co-operation and Development (OECD), Women in the Judiciary: Working Towards a Legal System Reflective of Society (March 2019), <https://www.oecd.org/gender/data/women-in-the-judiciary-working-towards-a-legal-system-reflective-of-society.htm> accessed 11 April 2020.
130 Some academics have studied whether and to what extent gender-based differences arise in legal reasoning. E.g. Rosemary Hunter, ‘More Than Just a Different Face? Judicial Diversity and Decision-Making’, (2015) 68 Current L Probs 119.
131 Stephen J Choi, Jill E Frisch, and AC Pritchard, ‘The Influence of Arbitrator Background and Representation on Arbitration Outcomes’, (2014) 9 Va L & Bus Rev 43, 76 (considering age among domestic arbitrators); Franck and others, Diversity (n 129) 454 (considering age among international arbitrators); Stipanowich and Lamare (n 43) 64 (discussing the appointment of experienced lawyers and former judges as ‘the prevailing norm’ in commercial arbitration); Thomas J Stipanowich and Zachary P Ulrich, ‘Commercial Arbitration and Settlement: Empirical Insights Into the Roles Arbitrators Play’, (2014) 6 YB Arb & Med 1, 2 n10; E Norman Veasey and Grover C Brown, ‘An Overview of the General Counsel’s Decision Making on Dispute Resolution Strategies in Complex Business Transactions’, (2015) 7 Bus Lawyer 407, 413, 416. Some studies consider whether any difference in outcomes arises depending on whether the arbitrator is a former or retired judge. Chandrasekher and Horton (n 49) 103.
132 For example, Lord Neuberger, former President of the Supreme Court of the United Kingdom, stated in a public address that he believed that judges who became arbitrators might be inclined not to follow the law, as they did on the bench, which suggested a lack of familiarity with the requirement, in virtually all commercial arbitrations, that arbitrators follow the law. ‘Lord Neuberger on Judge-Arbitrators, and on Brexit’, CIArb News (26 April 2019) <https://www.ciarb.org/news/london-branch-keynote-speech-lord-neuberger-on-judge-arbitrators-and-on-brexit/> accessed 11 April 2020.
133 SI Strong, ‘Does Gender Affect Legal Reasoning in Commercial Dispute Resolution? An Empirical Analysis’ (forthcoming); SI Strong, ‘Does Experience Matter? An Empirical Analysis of Seniority and Number of Disputes Heard on Legal Reasoning in Commercial Dispute Resolution’ (forthcoming).
