Where's the Theory?

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.

Comments

[Robert Justin Lipkin]

Sean's comments about the role of the relationship between philosophy and science needs to be examined cautiously. Two conceptions of this relationship are possible. The first sees philosophy as the Queen of science replete with principles of concept formation and rules for methodological strategies. This strong conception of the relationship regards philosophy as the foundation of science in a sense that no one seems historically has ever been able to explicate. The second conception regards science as relying pragmatically on conceptual, analytic, and normative instructions to help articulate the significance and direction of empirical research. I understand Sean to be embracing the second--weaker--conception. If that's right, I concur. Over at RATIO JURIS, I’ve been blogging about the need for jurisprudence in defining the significance of social scientific and empirical inquiry in law. This second conception of the relationship between philosophy and empirical investigation is precisely the approach taken there. Both Kevin and Sean have posted serious admonitions against empirical research of legal decision-making without the guidance of conceptual, analytic, and normative presuppositions. We should adhere to these presuppositions if we want to avoid reducing our legal conceptual scheme to empirical inquiries shorn of legal significance.

[Tracy Lightcap]

I'm going to respond to two posts at once. Here's my problem with both: they start with an assumption of methodical individualism. Let's leave aside the problems with the empirical basis for the assumption; that's an old story. Instead I'll concentrate on what I see as the real conumdrum. In other sciences there is no question that higher levels of analysis are seldom explainable by turning to the characteriztics of their component units. One can't explain the behavior of galaxies by looking at the characteriztics of stars or the structure of the universe by looking at the property of galaxies. The effects at different levels are the result of emergent properties from interactions at lower levels.

I'm not suggesting that the motives of individual judges aren't important; that horse has been dead far too long. What I am suggesting is that we move on to looking at judges beyond The Nine, we need to foster approaches that are much more attuned to the interactive effects of courts functioning as organizations. That, in turn, will require an approach much more attune to how individual motives produce, by their interaction, interactive and emergent effects that we will only be able to explain at an organizational level.

This is something like Sean's structural idea, but would include use of models more attuned to reactions to initial states. I'll be working on that two papers down the road. First, the Paper From Hell has to be finished.

[Sean Wilson]

Kevin, your views are wonderful! What you talk about has been the biggest flaw in the popular works that study judicial behavior. I'm glad to find someone else saying these things -- someone with much greater stature than myself.

Let me throw one thing in, however. I do not define the dilemma as being insider versus outsider -- that's actually a false dilemma. Both sides have pros and cons that arise from their vantage point. Both have information and socialization deficits of some kind. For example, many times, the urge of the legal community is to artificially promote its marketing craft (legal culture), which creates a sort of "self serving" view about the judicial orthodoxy and partly explains why the critical legal studies scholars rebelled in the manner they did in the 1980s. It also might explain why legal culture often battles the way it does. So being an outsider isn't necessarily bad, so long as information deficits are cured.

The problem as I see it is a little different. The problem is that we are offering a product called "science" that, for some reason, has decided to ignore what PHILOSOPHERS have said about the subject. Show me one empirical endeavor that didn't start and have its theoretical core structured by philosophy. Language philosophers, for example, created the issues that later became cognitive linguistics (how language affects the brain). Philosophy sort of sets the table for scientists to begin their work.

So the problem is not that lawyers are not listened to; it is that we birthed a whole generation of empirical models that didn't even realize what philosophic issues were being implicated. Kevin, what is "attitudinal?" When political scientists use this term, do they mean pragmatism, dogmatism, reasonable disagreement, lack of a decision constituence, Dworkin-like, etc., etc.? Does this Godzilla concept snare all of these things at once -- a big empirical fly swatter? Why don't we have a model that looks at these thins separately -- why isn't our vocabulary about these subjects more refined? (One of the things about philosophy deficits, Kevin, is that the way people talk is oversimplified).

If political science is to go back to the drawing board, it must not do so with the idea that consulting lawyers will provide the answers. Lawyers are only good for what they have: inside information. But what to do with that information and how to make sense of it is ultimately a function of what philosophers say. In short, we need to master JURISPRUDENCE. Anyone who is modeling judging and doesn't know jurisprudence is doing the same thing as someone who builds a spaceship and doesn't understand the universe. It's like driving a car without a destination. (Wow, watch how fast the car (model) goes. Look at how complicated it is).

Finally, if there is a unifying theory that I think explains judging, it is something I call "structuralism." You can read about it here if you like:

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

Regards and nice post again!