Washington University professor pioneers data-driven legal system research

Epstein (far right) is shown with some of Israel’s Supreme Court justices in Jerusalem. Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University. 

By Eric Berger, Staff Writer

Lee Epstein, a Washington University professor, has spent time analyzing and comparing the United States and Israeli legal systems. Among her less important conclusions is that Israel’s judges are a “little more relaxed” in their attire.

Epstein, who is Jewish, focuses her research on legal institutions such as the U.S. Supreme Court, and particularly on the behavior of justices.

Much of her research is data driven (think fellow Jew Nate Silver), and her ideas and analysis are frequently quoted in The New York Times and The Wall Street Journal, among other news organizations. An author of 17 books, Epstein was also a visiting professor at the IDC Herzliya law school in 2014 and will return to Israel next year to work at Hebrew University in Jerusalem. 

Her work is especially relevant at a time when there has been lots of discussion on the makeup of the Supreme Court, which has only eight justices since the death in February of Antonin Scalia.

Epstein was raised in New York as a Reform Jew on Long Island. She said she first became interested in the legal world in 1977, when the National Socialist Party of America was blocked by the local government in its effort to march in Skokie, Ill., a community with a significant number of Holocaust survivors. 

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She discussed the case in a political theory course as a student at Emory University in Atlanta. The American Civil Liberties Union, with encouragement from a Jewish attorney, defended the party’s right to free speech and assembly. The Supreme Court upheld a lower court’s ruling that free speech rights allowed the Nazis to march in uniform wearing swastikas. 

“I really got interested in the whole idea of the Nazis wanting to march in Skokie, but more [than that, the questions of] how the legal system treats that, how should the legal system treat that,” said Epstein, 58. “From there, I got interested in the Supreme Court and the federal courts and lower district courts, too.”

She said she isn’t sure whether being Jewish played a role in her interest in the case. 

More than her religious affiliation, it was “studying these old political theorists and using contemporary events to try flesh out their theories that really interested me,” Epstein said. 

At that time, there were no Jewish Supreme Court justices. Now there are three: Ruth Bader Ginsburg, Stephen Breyer and Elana Kagan. President Barack Obama has nominated Merrick Garland, who is Jewish, to replace Scalia, but Senate Republicans have refused to consider him for the position. 

Louis Brandeis, the first Jew on the U.S. Supreme Court, holds the record for the longest amount of time a nominee has had to wait for a Senate vote; that record would be broken by Garland on July 19, according to NPR.org. 

Anti-Semitism was an issue during Brandeis’ confirmation process, with some accusing him of “Old Testament cruelty,” according to Jeffrey Rosen, author of “Louis D. Brandeis: American Prophet.”

So does Epstein think that Garland being Jewish will play a role in the confirmation process, should he eventually be considered? 

“I don’t think people will even bring it up,” said Epstein, whose longtime partner, Nancy Staudt, is dean of the Wash U. law school. “Religion has played into confirmation proceedings in different kinds of ways over the years, but it’s been a while since somebody has been appointed because of their religion.”

While in Israel, Epstein had the chance to meet with the Israeli Supreme Court justices and learn about the country’s legal system, as well as teach them about the U.S. system. 

The justices had “a lot of questions about the research that I do and that others do on the court,” which” is “data-based research” such as analyzing judge’s voting patterns. 

“They were interested in how [data-based research] could help them,” Epstein said.

Keren Weinshall-Margel, a professor at Hebrew University, said she has studied Epstein’s work since she was an undergraduate student. 

“I think she’s the leading researcher in judicial politics and judicial decision-making,” said Weinshall-Margel, who founded the Israeli Courts Research Division. 

The U.S. and Israeli legal systems, she said, are similar common-law systems. As such, she is modeling some of her studies in Israel on Epstein’s work. For example, she has been studying the differences in the voting patterns of male and female judges in Israel. 

Epstein, in her study, found little difference in voting patterns with the exception of sexual harassment cases, in which female judges were 10 percent more likely to rule in favor of the person making the claim. 

Weinshall-Margel said: “I think it’s important that there are researchers taking the methodology that [Epstein] created and using it to study different places and applying it in different legal systems.”

Epstein described Israeli Supreme Court justices as “very serious, very interested in scholarly research.” 

As for their attire, she said, “Everything is more relaxed in Israel.”