Taking Law Seriously

Different scholars mean different things when they discuss the role of law in judicial decision making. For post-positive theorists, all that matters is that judges sincerely attempt to find the best answer to legal questions. Jason Whitehead of USC just presented a fine paper presenting this view at the Law and Society meetings.

Jason’s paper aside, one problem with this approach is that it does not fully recognize the innate and largely subconscious human ability to convince ourselves of what we prefer to believe. If all that is asked by judges is that they sincerely believe in (i.e., have convinced themselves of) the appropriateness of their decisions, then short of Bush v. Gore, it’s hard to know when judges would fail this test.

I think we are better off conceiving of law as a potential and potentially measurable influence on judges’ behavior. To determine the impact of law is not much different than determining the impact of other social phenomena. Simply put, judges’ decisions should change -- not deterministically, but at the margins -- as law or legal arguments change, holding alternative phenomena constant. A recent example of this is a paper by Rachel Barkow of NYU Law school, who combines quantitative and qualitative methods to argue that a commitment to originalist methods leads Scalia and Thomas to support criminal defendants in non-capital jury cases far more often than we would expect given their ideology.

Comments

[Jason Whitehead]

Thanks, Professor Segal, for the plug of my LSA paper (as well as for his gracious comments as one of the discussants on the panel).

First let me say that I think you are quite right that rationalization presents a problem for researchers interested in the “real” motivation for judicial decisions. Of course, judges – like all other human beings (including social scientists) – possess a great tendency toward self-deception. One needs only to peruse the work of Nietzsche and Sartre (something I don’t recommend on a sunny summer afternoon like this) for a critical review of this tendency. I also agree that research conceiving of law as a “potential and potentially measurable influence on judges’ behavior” is more valuable than research simply asking whether judges sincerely believe in their own reasons for decision.

However, not all rationalizations – or rationalizers, for that matter -- are created equal. In some cases, it may be well nigh impossible to tell whether or not a person’s reasons for their own actions are trustworthy. For example, who can tell whether my public prediction that Nomar Garciaparra will win the batting title this year is motivated by my objective assessment of his talents in relation to his competitors or by my lifelong loyalty to the Dodgers? For that matter, who cares about my motivation for such a prediction? On the other hand, my motivation might matter more if I was actually the Dodger’s GM and was in charge of negotiating Nomar’s contract for next year. In this case, I might be forgiven a few innocent (that is, sincere) rationalizations about my assessment of Nomar’s chances. However, if I engage in a recognizable pattern of insincerity in my judgments about the players I manage – that is, if I consistently make predictions and judgments about players based only on my personal likes and dislikes – then I should not be surprised to be looking for other employment at the end of the season.

I would submit that judges are much closer to the latter position than the former, and that we therefore ignore their rationalizations at our own societal peril. They have a professional obligation to uphold the rule of law, which most agree is one of the most precious ideals in the history of western civilization. If judges can be unmasked as consistently insincere rationalizers – that is, if they intentionally use the law as a cover for their own political preferences, we would be justified in publicly condemning them as rogue judges unworthy of their oaths. On the other hand, if judges can be shown to sincerely believe in the legal reasons for the decisions they make, they may still be fulfilling their professional and societal obligations even if other judges might decide the case differently.

Of course, just as in any other human encounter, it is impossible to know for certain whether the reasons judges give for their decisions are sincere. The best we can do (as with all social science data) is make probabilistic assessments about the relative trustworthiness of what judges say. If they claim in every case to be motivated by good faith legal reasoning, maybe we can chalk it up to motivated reasoning. But, in my experience, judges are not that glib or unreflective. In fact, judges are consistently willing to acknowledge the influence of their own preferences in certain cases and on certain issues. If the common judicial claim to be acting in good faith is really just a function of the all-too-human tendency toward self-deception, why would this tendency manifest itself in this inconsistent way? Moreover, we need not stop with the words of judges themselves. We can check their accounts against other more objective accounts and see which seems more trustworthy. All of this makes for good, healthy scientific skepticism. However, we do not want to simply dismiss as inherently untrustworthy the explanations judges give for their own actions. This, it seems to me, would be to engage in our own social scientific brand of “motivated reasoning.”

[Sean Wilson]

Jeff:

This is where most of legal culture was in the aftermath of Dworkin. I suggest you read an excerpt from my dissertation several years ago, which provides a philosophic history of legal justification, not a history based upon people ("realists" and so forth).

http://ludwig.squarespace.com/law-and-politics/2006/6/3/the-philosophic-story-of-legal-justification.html

The truth is that most political scientists appeared to be working within what I call a "structuralist paradigm" (Dworkin like) before the ascendancy of your and Harold's work.[1] Of course, some in the discipline were saying this in the 1990s, trying to let you see that you and Harold were working within the outdated legal paradigm of John Austin, which had been long indicted since the days of Holmes (not the realists) and was now regarded as a straw man.[2].

Let me make a couple of suggestions. First, political scientists who have committed certain "sins" need to go to a public confessional that says something other than "hey I have a new idea -- let's think of law this way." Rather, the confessional should be: (1) I promise not, as an empirical scientist, to deploy theories about an empirical phenomenon without first consulting the theoretical framework that philosophers have outlined for the subject; and (2) I promise not to adopt a view about judging (e.g., motivated reasoning) that does not also apply to the cognitive activities which form the basis of my own assertions (translation: I promise to avoid the pitfalls of skepticism).

With respect, this is a much better public announcement. I know an announcement like that would make me a Jeff Segal fan. People who make intellectual U-turns do it best the way Wittgenstein did it: just put on the blinker, make a three point turn, pronounce the error, and start driving the other way. The road of knowledge is full of wrong turns.

References:

[1] See, e.g., J. Woodford Howard, Jr. “On the Fluidity of Judicial Choice,” 62 The American Political Science Review at page 43 at p. 55 (He writes, “Clearly, judges of all ideological persuasions pondered, bargained, and argued in the course of reaching their decisions, and they compromised their ideologies, too. No one can plow through the papers of a Stone or a Murphy without coming out with renewed respect for the give-and-take or without appreciation for the multiplicity of variables and constraints, including that old whipping-post, Law, that went into the decision-making of the era.”)

[2] See Gerald N. Rosenberg and Rogers M. Smith in “The Supreme Court and the Attitudinal Model,” Law and Courts at pp 7-9 (1994).