Judicial Decisionmaking "By The Numbers"

Those interested in the growing empirical literature on judicial decisionmaking will want to read a thoughtful paper by Brian Tamanaha (St. John's). The Distorting Slant of Quantitative Studies of Judging develops two main points:

"The first point is that the field was born in a collection of false beliefs and misunderstandings about the formalists and the realists which has distorted how political scientists have modeled judging and how they have designed and interpreted their studies. Rather than conduct an open inquiry into the nature of judging, political scientists set out to debunk formalism by proving that judging is infused with politics, a mission that warped the development of the field.

The second point is that the results of their studies below the Supreme Court strongly confirm what judges have been saying for many decades - that their judicial decisions are substantially determined by the law. Political scientists have tended to repress this finding, however, by focusing on the wrong point: repeating time and again that their studies show that politics matters without also emphasizing that it matters very little. A balanced realism about judging accepts that - owing to the uncertainty of law and the inherent limitations of human decision makers - it is inevitable that there will be a certain (minimal) degree of political influence in judicial decision making, but this does not detract from the broader claim that judges can and usually do rule in accordance with the law."

Comments

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I'm very interesting in Judicial Decisionmaking "By The Numbers" I would like to know if you have any update

[Sean Wilson]

... you know, Chris, one of the things you and your club might want to try doing one of these days is writing down on paper examples of when someone does or does not "follow law" versus "follow politics" in Supreme Court cases. When you sincerely do this one day, one would hope you would finally realize that: (a) you and your ilk have had rather poorly formed ideas about these concepts for quite some time; and (b) if you are smart, that the entire matter is a language game. In this respect, one who says "justices use ideology!" is no better or worse than one who says "only sometimes!" or "no they don't!" Indeed, given the way that this idea works in language, it is possible for all three of these statements to be true right now this very second.

And of course, the looming question here is not why political scientists don't understand the concepts they use, but how it is that it pretends to study this "issue" empirically. Sometimes I think "judicial politics" and creation science have more in common than you might think.

So I doubt very seriously that the statement that you criticize really points to anything more empirically false than the statements of Harold Spaeth and Jeff Segal. They both point to the same philosophic confusion.

[C. Zorn]

I'll have to read this paper. But the line "...owing to the uncertainty of law and the inherent limitations of human decision makers - it is inevitable that there will be a certain (minimal) degree of political influence in judicial decision making" strikes me as just laughable. The point seems to be that politics enters judging inadvertently, as some sort of error. I'm the last to say that the law doesn't matter, but the notion that the *only* time judges make decisions on the basis of their political views is when they make some sort of subliminal slip-up is just absurd.

[Michael Heise]

".. gee, isn't that 'old news?'"

Evidently, not to everyone.

[Sean Wilson]

.. gee, isn't that "old news?"