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27 February 2006

Comments

Paula Hannaford-Agor

At the risk of sounding like an apologist for judges, my experience is that many judges are quite receptive to hearing about and learning from empirical research in their work. Certainly there has been tremendous effort on the part of the judiciary to take the lessons of Daubert et seq. seriously, as evidenced by increased attention to judicial education on appropriate criteria for evaluating expert testimony on various topics. Similarly, in our work at the NCSC, we find that judicial policy makers are extremely receptive to empirical research related to court administration, particularly insofar that it addresses issues of cost-effectiveness and public accountability. Judicial policy makers are extremely sensitive to the need to explain, to the legislature especially, what they do, how they do it, and what they are doing to do it better (faster, fairer). It may be that research related to judicial decision-making is the last bastion of resistance, but mainly because many judges are uncomfortable with being placed in the role of research subjects themselves, not because they are inherently resistent to empirical research generally.

Thomas Scheffer

This is a surprise only for those who take the legal dialect literally. There is no decision making that excludes the personality entirely. The crucial point however is that the decisions need to be presented and performed as neutral. The question is, whether and how such decision-performance matter. Our own comparative ethnographies on legal discourse suggest that the decision are never taken independently from the audience that receives and assesses the decisions. These future assessments are anticipated already in the moments of decision making. This discursive mechanism opens up for an analytical and comparative research perspective beyond idealist and naive demands (neutrality and objectivity).

William Henderson

Jeff makes a valid point regarding the perceptions of practicing lawyers. The lobbying of interest groups for appointments to the federal bench suggest that the public understands this as well.

What I find interesting is most of the law school curriculum (especially Con Law) operates as if politics are irrelevant, despite a large body of research on the attitudinal model, albeit most done by political scientists. If judges should be paying attention, presumably students would be interested as well.

I think it is important to calibrate the extent (i.e., context and frequency) to which ideology trumps facts/law. My own intuition, informed by a year as federal appellate clerk, is that ideology bears on only a small minority of cases, and only then because the law has some inherent indeterminacy that invites judicial discretion (e.g., Con Law); but these are the same cases that grab the headlines and influence public perceptions of law.

Further, I am not sure what judges are supposed to do with empirical research that says that they cast their vote (or, more likely, adopt ostensibly principled methods of jurisprudence) in order to achieve politically desirable outcomes. Loudly denying it is a bad idea. Maybe just ignoring it, at least publicly? Perhaps this is an subtle manifestation of Weber's theory of disenchantment.

Jeff Yates

I wonder if members of congress and state legislatures feel similarly regarding research on their behavior.

I do know that when I explained some of the empirical political science work that was being done on courts (e.g. the attitudinal model, etc.) to the partners at the law firm I worked with while it grad school, their response was - "You're getting a Ph.D. to learn that judges act like politicians? I could have told you that."

frank cross

Harry Edwards is now quite receptive to much of this work. I've communicated with him on the issue, he's using my articles in his NYU class, etc.

I think there is an initial negative reaction, followed by an accommodation among judges. But certainly communication in both directions would benefit the research. I bet judges have a lot of hypotheses that could be made testable.

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