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13 March 2006

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Mark Hall

As an interesting piece of intellectual history, I just came across an excellent article from 1977, by Charles Haar at Harvard Law, that examines over 100 legal or factual factors relevant in zoning cases. Charles M. Haar, John P. Sawyer, Stephen Cummings, Computer Power and Legal Reasoning: A Case Study of Judicial Decision Prediction in Zoning Amendment Cases, 2 Am. Bar Found. Res. J. 651-768 (1977). The appendix, p. 754, presents a graphical model for how legal, factual, attitudinal, and political/social factors each potentially influence judicial decisions. This article is also a good example of how to employ content analysis to better understand hidden patterns in caselaw, in a manner potentially relevant to practicing lawyers. I call attention to this article because, to my knowledge, it has been largely overlooked.

Sara Benesh

These are great points being raised in response to my question and I'd like to add a comment of my own, especially with respect to the study of lower courts. I emphatically agree that, in studying the lower courts, one need concern oneself even more with the influence of law and Professor Cross has certainly done notable research in that regard, along with the research highlighted by Barry Friedman in his post. However, there is also A LOT of political science scholarship on the lower courts that Barry misses both in his post and in his forthcoming Perspectives article. As Professor Cross notes, many scholars (including me!) have found a substantial influence of Supreme Court precedent on Court of Appeals and state supreme court decision making. Scholars have also uncovered effects for the preferences of the circuit as a whole, suggesting that review en banc is a motivator for getting the law right with respect to circuit law. Klein's book is an excellent example of careful attention to the influence of the law and I commend it to anyone interested in the decision making of the federal circuit courts. And I could go on and on with a literature review of this work.

So, I suppose I should amend my initial query a bit: how do we operationalize law's influence on *Supreme Court justices* and are those working on decision making in the Courts of Appeals (which includes Songer, Wasby, Lindquist, Klein, Haire, Sheehan, Kaheny, Martinek, Hettinger, Scott, Ditslear, Hurwitz, me and many others) considering the influence of law in the "right" ways or to a "substantial enough" degree?

Howard Gillman

Thanks to Sara for raising an important question. One additional point to add to the mix: How one conceptualizes "law" in these projects might influence what empirical methods are most appropriate to the investigation. The more "positivist" the conception the more appropriate it is to adopt quantitative methods (since one is defining law in a way that is relatively straightforward to code). By contrast, if one adopts a more post-positivist conception of law -- where following law is a state of mind within the practice of judging (e.g., a good faith belief that a particular decision is the most legally defensible)-- then historical or ethnographic methods might be more appropriate, since one is trying to uncover a judge's state of mind.

This raises the question of whether, in these studies, the conceptualization of "law" is being driven by methodological considerations or jurisprudential ones. (Shameless plug: I address some of these issues in an essay a few years back entitled "What's Law Got to Do With It?", Law and Social Inquiry 26 (2001):465-504.)

Finally, and relatedly, Mike Klarman uses more historical/interpretive methods to investigate whether the justices in Brown were motivated by law or conventional policy preferences; see From Jim Crow to Civil Rights, and also the essay “Brown v. Board of Education: Law or Politics?,” in Peter F. Lau, ed., From the Grassroots to the Supreme Court: Brown v. Board of Education and American Democracy 198 (Duke University Press, 2004).

barry friedman

I thank Sara for the plug of my Perspectives piece, due out later this Spring. As the piece makes clear, I'm a big fan of this work. At the same time, I feel it has happened in isolation from the world of law, and that ought to change. Collaborative efforts may be the key.

I'm headed out of town and can't say much, but let me make three brief points

First, Sara is absolutely right - and Forrest makes this point as well - it is time to move beyond coding and analyzing votes to getting at the heart of legal reasoning - operationalizing the law. This is going to be a thorny task, but it is essential. Especially on the Supreme Court, the votes mean little and the opinions almost everything.

Second, to the extent we are interested in constraint of judges by law - and of course we are - it is virtually meaningless to continue studying the Supreme Court rather than the lower courts. No one in the legal academy really believes the Supreme Court is, or necessarily should, be strongly constrained by their precedents. That is precisely why so many legal academics fail to take this legal work seriously. What is interesting is how and to what extent rules constrain the lower courts. There have been some excellent projects of this sort - Frank Cross's work; an article by Nancy Staudt in the NYU law review, etc.

Third, and most important, perhaps it is time to move beyond the simple issue of constraint to more pressing and interesting questions. The attititudinal-legal debate is an artifact of history, tracing back to when our disciplines split in the 1940s. Meanwhile, there are numerous questions within the law that are important and susceptible to empirical analysis. That is why so many law faculty are engaging in this work now. My mantra to students is "you need to read to write". Political scientists would like us to read their work. Rightly so. But if empiricists want to do work that had bite in the law, they need to read law and the work of legal scholars. This is a lot of work, of course. Interdisciplinary scholarship always is, but there is no way around it.

Even if one is going to look only at law and courts material - i.e., not substantive law - there are a host of problems that get insufficient attention. To give but one example, Jeff Lax is doing terrific work on the operation of collegial courts. We know far too little about how interactions on multi-judge courts shape the law.

gregTouchton

Do the google-like search capabilities of West or Lexis aid in your research, or are word associations too elementary? If there was a technical aid that you would seek, what would it be? It seems to me that much of this work could be simplified by a del.icio.us style tagging system.
http://del.icio.us
http://en.wikipedia.org/wiki/Tags

Forrest Maltzman

I think Sara's post is very thought provoking and useful. I will make three points. First, many of the studies Sara cites are modeling the effects of various factors (e.g. precedents) on voting patterns. We need to be careful to not automatically equate votes on the merits with legal interpretations. The challenge is in moving beyond votes to the underlying opinions. Some scholars have recently begun to move in this direction.

Second, empirical legal scholars need to be careful not to make the claim that a pattern across the bench can explain an individual justice's positions. For example, some studies have suggested that justice's do not respond to changes in congressional preferences. Overall, this seems to be the case. But, when one limits one's analysis to justices in the middle of the bench, the evidence is much murkier. In other words, it might be the case that Scalia does not respond to congress, but O'Connor does. It is important to use the word "might" here since analyses on this point have not reached any definitive conclusions.

Finally, we need to think about ways of measuring the status quo. Many (if not most) of the models being tested have as their intellectual basis--rational choice. Hence, the heart of these models is judicial preferences. [This is why debates over measuring judicial preferences are so important.] But, rational choice models usually also take into account the reversion point or the status quo. I have no doubt that good lawyers and good judges try to take into account the legal state of affairs when making their arguments and decisions. Unfortunately, we lack a perfect measure of the status quo. Hence, judicial models frequently leave out this variable that may be as important as preferences.

frankcross

Well (shameless plug) my research on circuit court decisions found that the legal standard of affirmance deference was vastly more significant to outcomes than was ideology.

And there's lots of research showing that the circuit courts generally adhere to Supreme Court precedents.

If you want to limit it to the Supreme Court there are a variety of approaches that might be used. For example, the differential standards in equal protection cases could be used as a variable.

But I think that one expects to see much less legal effect at the USSC level, given their caseload control and interest in taking only the cases that are the hardest on the legal standard


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