Empirical Constitutional Studies

For many areas of traditional legal studies, a more robust empiricism must be viewed as a natural, or at least uncontroversial, contribution to the field.  Law and Psychology creates opportunities to think deeper about issues such as consent, the reliability of eyewitness testimony, or the factors that influence jury decision making.  Law and Economics provides tools to explore a wide range of institutional dynamics and investigate the implications of various legal regimes for market practices.  But I wonder whether there is something about certain areas of legal studies that makes them resistant to certain kinds of empirical analysis.

In particular:  Is there something about the nature of constitutional studies in contemporary law schools that creates barriers to incorporating empirical political analysis of our constitutional practices?

Most political scientists who study law/courts produce research that has some bearing on how our constitutional system works.  For example, despite my view that Supreme Court decision making cannot be reduced to justices voting their so-called "policy preferences" (see the discussion in comments here), there is no question that the justices' positions on constitutional questions is overwhelmingly related to their conventional political affiliations; what else would we expect, given our explicitly partisan selection criteria for justices (which itself is a feature of our constitutional practices)?  Moreover, as Barry Friedman has pointed out (see some of the cites collected here), Alexander Bickel was aggravating over the so-called "countermajoritarian difficulty" not long after his Yale colleague Robert Dahl had demonstrated how the U.S. Supreme Court should not be expected to act in a way that was inconsistent with the preferences of dominant governing coalitions (contra Bickel, see here).  Moreover, we are all now well-aware that constitutional meaning is forged in many institutional settings, not just in U.S. Reports, and that the struggle to establish dominant interpretations is a by-product of historical contexts, party systems, and inter-institutional struggles (with the best recent discussion of this here).   One simply does not understand something as basic as the establishment of judicial review if one assumes that it was created via legal/textual interpretation by Marshall in his Marbury opinion (see most recently this discussion; but also Graber, "Establishing Judicial Review," 38 Tulsa L J 609 [2003] and Whittington's discussion of the Chase impeachment). 

Why aren't these lessons (and others) routinely incorporated into the way traditional law professors teach or write about constitutional practices or constitutional meaning?  I'm interested in your thoughts; here are a few ideas:

First, law professors may feel as though their principal teaching responsibility is to ensure that students understand how to think/advocate within existing doctrine.  But (a) identifying the ways in which politics is embedded in the development of doctrine, or in divisions among various advocates, is not inconsistent with satisfying this principal responsibility, and besides (b) I have to wonder whether many teachers routinely supplement this principal responsibility by conveying to students the (empirically unsupportable) claim that constitutional law has almost nothing to do with politics. 

Second, it is possible that law professors feel a professional obligation to maintain a distinction between Law and Politics.  After all, this distinction is central to the way that many legal scholars conceptualize the practice of law.  Many rightly believe that legal professionalism has social value precisely because it refuses to accommodate political considerations; instead, legal professionals aspire to create a practice that is dominated by the influence of legal reasoning and considerations of justice, rather than mere political will and considerations of power and interest.  I would not want to undermine this aspiration; however, it is possible to maintain one's commitment to the integrity of the practice while acknowledging a simple truth about our constitutional system -- namely, that people have always had (sometimes principled, sometimes flatly cynical and opportunitistic) disagreements about how best to "interpret" the constitutional system.  In other words, acknowledging the inherently contested nature of the practice does not prevent one from insisting on adopting a principled orientation to the practice.  However, it does make "constitutional politics" (properly) internal to the practice, rather than treat it as either exogenous or a corruption of the practice.  And at some point, the refusal to acknowledge this aspect of our constitutional reality amounts to a self-conscious decision to transform constitutional scholarship into a form of constitutional myth-making, at the expense of any sort of reality-based understanding of the constitutional system.

Third, it may just be that many traditional scholars, whose training has focused on the history of doctrine, simply don't know enough about our broader constitutional/political history to incorporate "constitutional politics" into the classroom.  It's one thing to understand Marshall's essay in Marbury; it's another to understand the origins of the Judiciary Act of 1789, the politics behind the "test case" in Hylton, the significance of Schooner Peggy, the dynamics of the Jeffersonian coalition, the relationship between Marbury and Stuart v. Laird, and the impact of the Chase impeachment on the "settlement" in favor of judicial review.  But if this is true for some in the law professorate then this is precisely what can be corrected if we acknowledge the need to adopt a more empirical approach to the study of our constitutional system.

Comments

[Eric Rasmusen]

My thoughts on this are at:

http://www.rasmusen.org/x/2006/06/10/con-law-and-empirical-scholarship/

[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.

Regard,
Sean.
http://ludwig.squarespace.com/home/

[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.

[John]

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?"

http://www.law.uchicago.edu/news/posner-stone-debate.html

[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?

[frankcross]

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.