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17 March 2006


Howard Gillman

Thanks to Sara for doing such a great job.

My suggestion (which I'll talk more about in June, when I have to step up to the plate as a guest blogger) is that empirical scholars acknowledge that there are many ways to illuminate aspects of judicial politics beyond Harold's (admirable but limited) vision of "empirical, falsifiable, hypothesis-based demonstration." Let's not make the mistake of assuming that all advances in our understanding of judicial decision making will come about by channeling all efforts down that narrow corridor. And, at the dawn of this blog, let's make sure that Empirical Legal Scholarship is more broadly defined than it has been in certain corners of political science scholarship.

Artemus Ward

Sara deserves much credit for generating a thoughtful discussion on attitudes v. law in judicial decisionmaking. I wanted to add that there is some provocative work being done on extra-judicial factors--specifically political regimes--that may help us get at the "something else" that Frank Cross mentions. Toward this end, bloggers may want to check out: Pickerill, J. Mitchell and Cornell W. Clayton. 2004. The Rehnquist Court and the Political Dynamics of Federalism. Perspectives on Politics 2:233-48.

frank cross

What's meant by this:

"-That means, of course, that he's looking for an empirical, falsifiable, hypothesis-based demonstration that there is something else that systematically, significantly, and substantively affects Supreme Court decision making."

Of course there is "something else" that has this effect, the very numerous decisions and cases that the attitudinal model doesn't explain prove the something else.

I suppose the question is what that "something else" is. I think it is obvious that the law is part of it. And some of this legal effect can be tested. I.e., decisions under different legal review standards (like rational basis).

Sean Wilson

First Sara, let me say this: you should be commended for doing a fine job this week.

Here are the answers as I see them: no one will ever be able to take politics, attitudes or ideology out of law (at any level of the judiciary)-- no one disputes this. But what is currently wrong with political science research is that it is forming theories about judging without consulting what philosophers say about the subject -- a horrendous and inexcusable mistake. Scientific inquiry always begins first as good philosophy. Language philosophy birthed cognitive linguistics, philosophy of science birthed the scientific method, etc., etc. And so it is with jurisprudence.

Hence, we need to develop variables not to operationalize law, but jurisprudence. Too long have we claimed that a legal model was a self-contained system of precedent, a view championed in the 1800s by John Austin and long discredited by philosophers before the attitudinal model incorporated it as a straw man. Every time I see a paper talking about the legal model as one where supreme justices are institutionally mandated not to change precedent, I see that political science is in big trouble (of being irrelevant).

Hence, we need to see that there is more to bona fide theories about judging than what John Austin, skepticism or hard-core realism has to say. For example, there is the policy-empiricism schools -- pragmatism and sociological jurisprudence -- which claim that justices are influenced by empirically-correct policy, behaving sort of like a rational problem solvers or even bureaucrats to some extent. (Breyer and Posner seem to exemplify this framework). Then there is the Dworkin view: that the need for moral coherency and integrity in law itself affects judicial choice. My point is simple: all of these people -- including Harold Spaeth and skepticism -- are describing only a PIECE of the judicial mind.

In short, we need to develop variables that operationalize empirical-based policy choice (I think rational choice theorists are doing this) and Dworkin-based choices (Kritzer's jurisprudential regimes and my project that is operationalizing law with cognitive linguistics, the effect that language has on the brain).

If we integrate attitudinal work with all of these other aspects, our research will finally be seen as being more scientific than argumentative.

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