Over the past week or so I have been slogging through a
stack of texts I am considering adopting for the introductory course on
research methods (which includes some epistemology of science, research design,
basic statistics) taught in my department each fall for first-year graduate
students. This is the first time I will be teaching this course so the choice
of text(s) looms particularly large. And, to complicate matters, we have
recently added an an introduction to formal modeling course in the second semester
for our graduate students, which they will take in addition to a course on
statistics (beyond that which is covered in the first-semester course). So, I
am very cognizant that what I cover in the first-semester course needs to give
students preparation for not one but two courses they will take in their second
semester. (I expect that neither of my colleagues who will be teaching those
second-semester courses will find the students as prepared as they would like
them to be but, being good natured folks, I am sure they will be patient with
both the students and me.) I think that the sort of issues with which I am
grappling in (re)designing this course are issues that speak more broadly to
what it is that those interested in empirical legal studies care about. Let me
(hopefully) provoke a discussion by offering a two guiding principles on which
I am relying:
James Fowler (U.C. Davis) and Michael Laver (NYU) are sponsoring a spatial modeling contest involving party electoral strategies. The prize for the most successful strategy is $1,000. Entries must be received by April 15, 2006.
Introducing our Next Guest Blogger: Professor Wendy L. Martinek (Binghamton) specializes in the study of
judicial politics, with a particular interest in the judicial selection politics
at the federal level and decision making in both the United States Courts of
Appeals and state courts of last resort. Her current research program includes
a project examining amicus curiae in the United States Courts of Appeals.
addition to her focus on judicial politics, Professor Martinek has
complementary interests in American political institutions, interest groups,
state politics, and political methodology. Her research has been published in
the American Journal of Political Science, the Journal of Politics, Social
Science Quarterly, American Politics Review, Party Politics, and Justice System
Journal. Her book, Judging on a Collegial Court: Influences on Federal Appellate Decision
Making, with Virginia A. Hettinger and Stefanie A. Lindquist is forthcoming
with the University of Virginia Press.
If you liked our blog forum about researching law clerks and law clerk confidentiality, Joseph Zengerle, who clerked for Chief Justice Burger in October Term 1973, has written "Changing of the Chiefs." 9 Green Bag 2d 175. (Note: The Green Bag is one of the few journals worth reading back to front.) The article is not yet up on the Green Bag website, but I suspect it will be soon. The article briefly discusses Zengerle's deliberations with CJ Burger regarding Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632 (1974), and spends significant time describing the annual dinner of the WEB Fete Society.
Adding to our discussion of useful statistical texts for students and new users, Alan Acock has written A Gentle Introduction to Stata, being sold as "an ideal book for students and for those with experience with other software packages but new to Stata."
has been on fire recently, including posts
on law clerk loyalty and legal research; IRB
Boards; the relationship
between empirical work and theory; and a little
dip into the old student-review incompetence debate. Based on
quality-of-post, the blog should be getting more hits than it does. I'm
thinking that their current motto ("advancing productive interdisciplinary
discourse among empirical legal scholars") is a little
unwelcoming. But otherwise, they are doing neat work. Go check 'em out!"
First Dave, thanks for the kind words! Second, I'm now taking suggestions: What should our new motto be? I look forward to comments.
And so we've come full circle. I began the week asking how best to operationalize the law. My most recent post on the Attitudinal Model generated much discussion over how much that explanation of decision making leaves wanting. So, what's the alternative? Harold Spaeth is himself the first to say (at least to me) that if someone can demonstrate a "better" way to explain Supreme Court voting behavior, he's all ears. 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. And so I ask again, what is the alternative? Is law a "nuisance" as Zorn describes it (drinking wine and crashing into tables, no less!!), or are there systematic components to the law that we might operationalize and include in our models of Supreme Court decision making? If attitudes are the best predictor of votes (regardless of how much they actually are able to predict, alone or with facts), then isn't that still a pretty major and useful contribution? And does anyone have something in mind that does better?
So, coming full circle is a nice way to end my week as "Guest Blogger!" Thanks for your interest and attention!
I am a social scientist. Therefore, whenever anyone says the word "normative," I squirm. I'll admit it. But I have been thinking, lately, about some of the normative implications of widespread knowledge of the attitudinal model of judicial decision making. The Law and Courts Listserv has been exchanging instances of hostility toward judges: Justice Ginsburg's internet death threats for reliance on foreign sources of law; the movement to seize Justice Souter's property in New Hampshire; the new "J.A.I.L 4 Judges" Amendment in South Dakota. Add to that list Pat Robertson's comments on This Week that activist judges are as bad as the 9/11 terrorists; the Senate Majority Leader's statements over the Shiavo case regarding Congress' power over the federal courts; Sensennbrenner's letter to the 7th Circuit on a sentencing decision; and on and on. (The Brennan Center, of course, does an excellent job of tracking these threats.) What is going on in terms of our confidence in our judiciary and over the presumed benefits of judicial independence?
“Empirical research indicates that factors such as an
individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich,
in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold the federal law.”
We have added two new blog forums to the schedule. The first
is on the topic of Institutional Review Boards, a.k.a. Human Subjects. It’s
scheduled for March 27-31, the week before the IRB conference at Northwestern University. The second is on the New
Legal Realism Project and is scheduled for June 19-23.
The current participants are listed on the right. More names to come.
The book The Supreme Court in the American Legal System (Segal/Spaeth/Benesh 2005) is reviewed by Richard Pacelle (Georgia Southern) in the recent Perspectives on Politics (Vol. 4, No. 1, Mar. 2006). While the short review recognizes that the book "is designed to be a less methodologically sophisticated analysis," the review questions the book's usefulness--"this will be a book in search of a market"--because Pacelle "suspect[s] instructors will opt for a more nuanced treatment of judicial decision making." Pacelle's hypothesis may be correct; but perhaps the book might also be filling a gap in the market. For example, to my knowledge, it is the only text on judicial process/behavior that includes a website with empirical data and commands (in SPSS) to let students replicate the analyses presented in the book.
It seems that judicial politics/judicial decision-making/American legal system/Supreme Court seminars involve professors and students with a wide range of methodological interest and expertise. While the ELS Blog discussed book selection in the classroom before, no suggestions were made about what judicial behavior books should be used for different types of courses with students and professors of varying interests and training, e.g., graduate versus undergraduate students; students with versus without statistical training. (A hierarchy was successfully created for statistical software.) I've seen Robert McCloskey's The American Supreme Court assigned for both undergraduate non-empirical courses and law school empirical seminars on the courts, with most graduate judicial politics seminars in law and the social sciences assigning The Supreme Court and the Attitudinal Model Revisited.
What is the hierarchy of foundational judicial decision-making texts in terms of methodological sophistication? Or, more specifically, what should one assign law students (or upper level undergraduates) with no previous statistics training in a judicial decision-making seminar?
For those of you interested in empirical research on the U.S. Supreme Court, I'd like to call your attention to a set of articles in the most recent Law & Courts that may be of use. Kirk Randazzo's discussion of the Ulmer Project, my article entitled "Becoming an Intelligent User of the Spaeth Databases" and Paul Collins' article entitled "Transforming the Original U.S. Supreme Court Judicial Database" may all be of use, especially to new users. I'm happy to take questions about the databases as well, either here on the blog or via email (firstname.lastname@example.org).
The latest issue of the Law & Society Review (Vol. 40, No. 1) has some interesting articles: Do Rankings Matter? The Effects of U.S. News & World
Report Rankings on the Admissions Process of Law Schools by Michael Sauder & Ryon Lancaster
"Using data for U.S. law schools from 1996 to 2003,
we find that schools' rankings have significant effects on both the decisions
of prospective students and the decisions schools make in the admissions
process. In addition, we present evidence that the rankings can become a
self-fulfilling prophecy for some schools, as the effects of rank described
above alter the profile of their student bodies, affecting their future rank.
Cumulatively, these findings suggest that the rankings help create rather than
simply reflect differences among law schools through the magnification of the
small, and statistically random, distinctions produced by the measurement
The Influence of Jurisprudential Considerations on Supreme
Court Decisionmaking: A Study of Conflict Cases by Stefanie A. Lindquist & David E. Klein
"Our analyses reveal that the justices are (1) more likely to
follow the reasoning process adopted by the majority of circuits involved in
the conflict, (2) less likely to adopt the conflict position marred by contrary
dissents and concurrences in the circuit court opinions, and (3) more likely to
adopt the conflict position endorsed by prestigious circuit court judges. Our
findings suggest that jurisprudential considerations, as well as attitudinal
concerns, affect the justices' decisionmaking processes in a substantial
minority of cases."
Understanding Judicial Hierarchy: Reversals and the Behavior
of Intermediate Appellate Judges by Kevin M. Scott
"One of the central controversies in the judicial behavior
literature is the extent to which judges' ability to act according to their
ideological preferences is affected by their location in the judicial
hierarchy. Judges on intermediate appellate courts have different
decisionmaking environments than high court judges. As a result, the goals of
lower appellate court judges may differ from those of their superiors: the
quest for legal accuracy may compete with the desire to pursue policy