Yesterday, I asked readers to consider the relative merits of aggregate v. individual level analysis. Regardless of the empirical approach, our analyses must be framed by theories about individual behavior. To the extent that we are concerned about developing an understanding of the choices of either individuals or organizations, we need to make certain explicit assumptions about what motivates choices.
Interestingly enough, it is here where I find most of our empirical work to be especially lacking. Despite our ability to generate a great many interesting empirical insights, we seem not to be as concerned as scholars in other disciplines with laying the building blocks that support our expectations.
I do think that we know a great deal about, say, the behavior of judges, especially appellate judges in the United States. Nevertheless, I’m not sure that we have anything like a “theory of judging.” Several years ago, Larry Baum wrote a wonderful book, The Puzzle of Judicial Behavior, in which he described what the various motives of judges might be and how their personal goals and professional goals might interact with what judges can do in different institutional settings. One of his conclusions is that we need to be more cautious about imputing motives to judges.
What are the consequences of our collective inattention to theory? If we simply want to predict behavior, then the ill-effects are not really that severe. If we want to understand and explain that behavior, then I think we should be more guarded. We may misdiagnose much of what we observe.
Perhaps one reason for our lack of theory is that, since many of us actually are what we study -- i.e., we are often lawyers studying the behavior of lawyers -- I suspect that the kind of formal training and informal socialization that takes place within the legal community leads to bit of overconfidence; that is, since “we know how lawyers really think and behave,” our empirical work can proceed according to long-internalized assumptions. Those assumptions may be quite correct, but they may also fail to consider other plausible options.
Imagine, for example, studies of congressional behavior that were authored by members of Congress. On the one hand, I would take very seriously what those analyses had to say, since they would be informed by the perspective of individuals who possessed a detailed knowledge of both the mechanics of legislative institutions and the various incentives and constraints that they face in making difficult decisions. On the other hand, I would almost certainly be circumspect about the results, since they would be based upon assumptions that were heavily informed by the personal experiences and biases that necessarily come with it.
Now, I am not a lawyer, and that surely limits what I am able to do. In fact, I’ve been humbled on several occasions by lawyer friends who have pointed out the limitations of some of my work by drawing upon a perspective that I simply don’t have. And this has saved me from embarrassing errors I might otherwise have made. At the same time, those of us who are not lawyers may have a more ready knack for generating a wider range of assumptions -- some plausible, some less so -- that might account for what we observe.
Despite this flexibility, none of us has had any greater success in specifying a general theory of why judges do what they do. To be sure, we often produce research with provocative and surprising results, but it is not at all clear that we share a basic core of ideas about the choices judges make. As a result, we probably have a harder time reconciling disparate findings or sorting out the relative importance of the causes that we think are at work.
I’m certainly not prepared to propose any general theories about judicial behavior, but I do think that we should exercise greater care and be more explicit about the assumptions that go into our empirical work. It will surely improve the discourse between various communities who study the law and enhance our understanding.