Data Collection in Comparative Judical Research: A Note on the Effects of Case Publication upon Theory Building and Hypothesis Testing

Much of the theory and data developed by social scientists for understanding legal systems remain largely the product of the inevitable peculiarities of the American context. It is, therefore, imperative that a more vigorous agenda of cross-national judicial research be encouraged. However, we must be alert to problems regarding the availability of data that may interfere with our ability to draw accurate inferences about courts and judicial behavior. One such problem concerns whether the selective publication of appellate cases biases our observations regarding the kinds of decisions that courts make. This paper examines the effects of selective reporting of decisions handed down by the English Court of Appeal. An analysis of Court of Appeal judgments handed down over a three-year period shows that statistically significant differences exist between published and unpublished decisions in terms of a variety of variables measuring the court's intra- and inter-institutional decision-making dynamics. Our inferences about the Court of Appeal will thus vary depending upon whether we have access to the court's unpublished decisions.