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01 June 2006


Eric Rasmusen

My thoughts on this are at:


Sean Wilson

Howard: I find it strange that political science would just now be finding the crossroads between sham justification and "principled" decision making -- or what Dworkin called in the 1960s, structured versus non-structured discretion. Why didn't we understand that in the 1990s? Law professors talk about "hard" and "soft" politics all the time, presumably because they are familiar with Dworkin and other legal philosophers who put the contemplative thought about Court decision making into that framework decades ago.

Also, to Bill Henderson: I think it is natural for law students to be uncomfortable with the fact that constitutional law is governed by standards more than rules. But with the most apologies I can offer you for sounding somewhat paternalistic, wait until you meet the abuse-of-discretion standard in a trial court. You think there are rules of evidence? Just wait until you see how summary judgment and evidence calls are "umpired." This is not to be critical of discretion in any form of judging; it is only to say that ALL forms of judging involve a combination of that which is fixed (rules), that which is structured (standards), and that which is neither (license). Political science has yet to produce a model of jurisprudence that accounts for this dynamic properly.

To all law professors and students, one last snowball: do not think that that "attitudinal model" proves as an EMPIRICAL matter any of the claims that you are attributing to it (above). The fact of the matter is that the regression coefficient in those models is now below 50% level (using Segal Cover Scores), and the goodness of fit is about 1/3 of what the researchers announced. In short, attitudes at the level they are measured by this research only account for a piece of the judging equation. The attitudinal model proved nothing other than the fact that political science itself is a motivated endeavor.


William Ford

I don’t want the excerpt I posted last night to give a misleading impression of Stone’s position (in the debate or otherwise). Despite Posner’s comment about “fairy tales” and Stone’s view of certain types of judicial compromises, Stone acknowledged that “individual justices often decide controversies in ways that reflect their own background, values and assumptions[.]” (These are the words of the reporter, not a direct quote from Stone.)

William Henderson

This thread is a preview of the fruitful exchange we might have this October in the Rosenberg/Cross exchange on the Great Divide.

Very interesting, and important to legal education. bh.

Howard Gillman

Frank's correct -- law professors are teaching in "professional schools." I would just add that exposure to (e.g.) constitutional deliberation outside of courts is not inconsistent with the task of training students to "think like a lawyer"; and I'd reiterate that, even in this professional school setting, law profs are probably conveying plenty of empirically dubious lessons about the relationship between con law and politics.

Bill notes that one "undertheorized question is how or why a student will benefit from exposure to Con Law social science" and asks "What is the takeaway from the attitudinal model--tell your client to divert resources to the judicial selection process?" I can just say that these are the questions I'd like to encourage the law professorate to engage. Maybe the answer is: we ignore the empirical, because our job is merely to show students how to manipulate doctrine, not to teach them about how our constitutional system actually works; and if that's the answer (I hope not) then all I could ask is that they make it clear that they are, uh, bracketing the real world. My hope is that we get answers that more seriously consider what it would mean to incorporate this empirical work. Maybe it would mean making certain questions explicit: Do these constitutional arguments have their own integrity or are they nothing more than a disguised form of conventional politics? Can we distinguished principled arguments from opportunistic or cynical ones? Is there something in the nature of legal argumentation that transcends political context? Maybe most importantly -- what is the different between an authentic (albeit politically charged) constitutional culture and a sham constitutional culture? If we think constitutionalism in (oh) the old Soviet Union was a shame, but was/is authentic in the U.S., then what makes the difference? It can't be that our constitutional debates are completely insulated from politics, and so perhaps we need a more nuanced understanding of the relationship between politics and the idea of legality. (This is the conversation that I would like to see -- and hopefully it's considered an empirical conversation, even if people aren't always counting things.)

And let me end this round by responding to Bill's comment about Posner and Bush v. Gore. I've devoted a book to the case and so, obviously, I think there's a lot that can be said. But here are just a few declarative statements: (a) Posner is right that students should not be taught fairy tales; (b) B v. G demonstrates that the Court can be "political" in different sorts of ways; (c) Elaborating sincerely-held but ideologically-influenced views of the Constitution is inevitable and (I would argue) not inconsistent with "rule of law" culture (because there really is no alternative way to interpret the Constitution, in most cases); (d) Saying that "political-ideological" (or "principled") decision making is inevitable is NOT the same as saying that "political-partisan" (or "insincere") decision making is inevitable; (e) B v. G is (to put it mildly) an outlier, and there is nothing about Empirical Constitutional Studies that should lead anyone to think that the decision was either inevitable or legitimate.


The barrier created is simple: it's hard to tell what 59 people were thinking 200 years ago. It is even harder to apply rules they created in a different era to a modern era to a country that has expanded tenfold since its inception.

William Ford

This post reminded me of a debate between Geoffrey Stone and Judge Posner about Bush v. Gore. Their discussion was, in part, related to the present topic. Stone was primarily concerned about the votes of Rehnquist, Scalia, and Thomas, since they probably did not really believe the equal protection argument in the majority opinion. The debate therefore focused heavily on group decision-making within judicial institutions and the sorts of compromises that are appropriate among judges. And they tied the discussion into how constitutional law is presented in class. Posner suggested constitutional law professors don’t treat the dynamics of judicial decision-making very realistically in their classes. Along with a link to the full article, here is a relevant excerpt from the coverage of the debate in the Chicago Daily Law Bulletin (May 24, 2001):

[I]f the three justices had not joined the equal protection holding, Posner continued, the Supreme Court's decision "would completely lack legitimacy" because a majority of the justices would have reached the same conclusion while splitting on the reasons for doing so.

… Stone described the Supreme Court's ruling as "a partisan political decision, not a decision about the meaning of the United States Constitution."

The decision by Rehnquist, Scalia and Thomas to help form a majority on the equal protection holding ran counter to what he teaches his students, Stone said.

"As a teacher of constitutional law, I am frequently asked by skeptical students: 'Isn't constitutional law just politics in black robes?' 'Don't the justices just vote their political preferences?' 'Isn't all this stuff about the Constitution really a charade?'" Stone said. "I've always rejected this understanding of the Supreme Court and of constitutional law."

But Posner suggested that Stone was not being realistic about how the courts work.

"I don't understand why constitutional law professors teach fairy tales to their students," Posner said. "Don't you think, Geoff, that every time a judge joins an opinion he agrees with the opinion, whether he agrees with everything in the opinion?"


William Henderson

Howard, I have really enjoyed your posts this week, the present post being no exception.

As a law student, I found Con Law to be very difficult, primarily because there was an expectation that the "right" answer would be internally consistent. The following year, I took law & social science and was exposed to the writings of Spaeth, Segal, Dahl, et al. The overlay of empirical political science made Con Law much more intelligible. Law matters, but in some contexts, so does politics.

Frankly, of all the reasons listed above why Con Law courses do not incorporate empirical political science, #3 resonates the most with me. Many law professors are simply not familar with the literature outside legal journals; and the narrow career benefits of bridging "the Great Divide," as Rosenberg refers to it, are not very substantial. (Frank Cross is right that some professors make this trek.)

One key, undertheorized question is how or why a student will benefit from exposure to Con Law social science at the expense of less legal doctrine? Presumably, great lawyering affects outcomes, and lawyers can control this by honing their craft. What is the takeaway from the attitudinal model--tell your client to divert resources to the judicial selection process?


Some law professors take the broader approach you suggest. In addition to your reasons, I would throw in another. The point of law school classes, especially first year classes, isn't just to teach the content of the subject matter. It is to teach students how to "think like a lawyer" or "argue cases." Since USSC briefs are pretty much limited to the standard legal analyses, so is teaching.

We're "professional schools."

Michael Heise

Howard: Although I do not have anything resembling an answer, you pose a wonderfully provocative and important question.

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