One would hope that the now-more-common collaboration between Political Scientists and Law Professors would result in the increased ability of Political Scientists to "take the law seriously." Empirical Legal Studies should certainly have as at least one of its foci the empirical study of the extent to which law matters or the extent to which law constrains judges. Some political science scholarship and some legal scholarship has begun to address this issue. I'd like to point out what we know in order that we might fruitfully discuss where to go from here. How can one take something as nebulous and multifaceted as "the law" and operationalize it so that its effects might be quantitively studied? While one anonymous reviewer has suggested to me that the debate between "the legal model" and "the attitudinal model" is a tired one, it is certainly not the case, it seems to me, that we are even close to knowing all we need to know about the effects of the law on judicial decision making at all levels. The following sketches out what some political scientists have offered as ways in which to test the influence of law. How have they done? How could we do better?
First, Spaeth and Segal, in their book Majority Rule or Minority Will suggest that a fruitful way to study the effect of "the law" is to determine whether justices who dissent in one case will disregard their apparent disagreement with the majority and vote to uphold the disfavored precedent in that cases' progeny. They find that, in fact, this rarely happens. Rather, once a justice disagrees with a precedent, s/he continues to vote to dissent in any case in which that precedent is relied upon or expanded. This means, they suggest, that justices are not constrained by the law, at least not in terms of their operationalization thereof. (The article on which this book is based generated enough controversy to warrant a special issue of the American Journal of Political Science (Vol. 40, 1996).)
Of course, precedent is not the only potential influence of "the law." Perhaps interpretive strategies matter? Howard and Segal (2002) seek to determine whether justices base their decisions on their view of the "plain meaning" of the text or on the "intent of the framers." In order to systematically study the effect of these two interpretive strategies, they code the briefs filed with the Court for arguments related to plain meaning and intent of the framers and then determine whether those justices who profess an interest in deciding in accordance with each do so regardless of the ideological position taken by the party making the argument. They find that justices only vote with the party making the plain meaning or originalist claim when they agree with their position.
Howard and Segal (2004) also examine the claim that role perceptions affect justices' votes by looking at "activism." Here, they find that the ideological position of the party requesting the Court declare a law unconstitutional is the largest predictor of the justices' decision to either accept or reject the request; e.g., the propensity to engage in "activism" is not conditioned by the justices' role perceptions but rather by their ideological predilections.
A couple of other sets of authors have had more success in identifying legal influences on decision making. Hausegger and Baum (1999), for example, find that justices sometimes invite Congress to overturn the Court's decisions, suggesting, then, for these justices in these cases, the law is constraining them to behave in a way that does not maximize their preferences. Of course, this is a very rare behavior (found in only 7% of all statuory decisions). Additionally, Richards and Kritzer (2002) find that "jurisprudential regimes" effectively structure the justices' decisions once they are created. Some have argued, though, that these regimes are attitudinally created themselves (Segal and Spaeth 2003).
Currently, I am working on two pieces of research in which I attempt to ascertain the extent to which "law matters." In one paper, we model the decision of a justice who disagrees with the majority opinion to either dissent or to concur in order to determine whether that decision is driven by attitudinal divergence or a difference of legal opinion over what the case is about. We find that both matter, but that justices rarely disagree over the legal provision, issue and/or authority for decision in a given case (Benesh and Spaeth 2006). In another paper with Jason Czarnezki, we explore the role of interpretive strategies on the vote, arguing that, if legal interpretive strategies matter, they should NOT predict a liberal or conservative vote on the Court of Appeals. We find, (preliminarily!!), that originalism statistically significantly decreases the likelihood of a liberal vote. This suggests, as many before have probably suspected, that adherence to a particular interpretive strategy may indeed be influenced by desired ideological outcome rather than a "real" view of the law (we will present this paper at the Midwest Political Science Association meeting in April).
So, what is the best way (or some good ways) to operationalize "the law" so that we might better understand the role law undoubtedly plays in judicial decision making? Barry Friedman has an interesting article forthcoming in Perspectives on Politics that addresses this issue in terms of what he sees as the shortcomings of political scientists engaged in testing for the influence of law. Perhaps I can draw him out to comment on this question?
I look forward to your reactions.
Sara C. Benesh