Thomas J. Miles and Cass R. Sunstein (University of Chicago - Law School and University of Chicago - Law School) have posted The New Legal Realism (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
The last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin's suggestion that such reasoning is a search for integrity. Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law.
And some excerpts from this important paper:
We believe that much of the emerging empirical work on judicial behavior is best understood as a new generation of legal realism.15 The New Legal Realists are conducting what Llewellyn and his peers only envisioned—“large-scale quantitative studies of facts and outcome” that assess the influence of the judicial personality on legal outcomes. We suspect that the new realist studies of judicial behavior will erode the distinctions between “law and politics” political science and “empirical legal studies.” Through its conferences and professional journals, the economic analysis of law has long drawn contributions from both law faculties and economics departments. We hope, and are willing to predict, that the New Legal Realism will increasingly bring together scholarly efforts of both lawyers and political scientists; economists will play a substantial and probably growing role as well.
A distinguishing feature of the New Legal Realism is the close examination of reported cases in order to understand how judicial personality, understood in various ways, influences legal outcomes, and how legal institutions constrain or unleash these influences. These inquires represent an effort to test the (old-style) realist claims about the indeterminacy of law, and to implement its call for empirical study of how different judges decide cases by responding to the “stimulus” of each case. Political science has devoted much attention to the Supreme Court, a sensible choice given the Court’s importance. But the New Legal Realism tends to focus on lower federal courts, because the random assignment of judges to cases is a sort of natural experiment that permits plausible causal inferences about the effect of judicial characteristics on outcomes.16
And some more:
The characteristics of the cases most commonly examined by the New Legal Realists are the types of litigants, the nature of their claims, and the procedural posture of the case. The New Legal Realism also seeks to capture the institutional context of judicial behavior. Dimensions of the institutional setting include whether a judge renders her decision while presiding alone or as a member of a panel, and if as a member of a panel, whether the co-panelists have similar characteristics. An important stimuli—and sometimes an important constraint—is the law itself. Some legal scholars play up the role of legal constraints18 while others emphasize what they see as the decisive role of the values, or commitments, of particular judges.19 The old-style realists tended to adopt the latter position,20 but they rested content with impressions and anecdotes. By contrast, the New Legal Realists take these claims about legal reasoning as hypotheses, which can and should be tested. They want to know when and how law is indeterminate and thus exactly how and when “the personality of the judge” matters for outcomes.
And:
In many areas of law, Democratic appointees cast liberal votes more often than Republican appointees do, whatever the partisan configuration of the panel. But the liberal voting rate typically increases with the number of copanelists who are Democratic appointees and correspondingly falls with the number of Republican appointees. Results of this kind have been found in so many areas that they might fairly be described as the Standard Pattern of Judicial Voting, at least in ideologically contested cases.24 In the Standard Pattern, the political affiliation of the appointing president greatly matters. The observed panel effects are commonly interpreted as two behavioral responses. The first is ideological dampening: Republican appointees show fairly liberal voting patterns when sitting with two Democratic appointees, and Democratic appointees show fairly conservative voting patterns when sitting with two Republican appointees. The second is ideological amplification: Republican appointees show very conservative voting patterns when sitting with two Republican appointees; and Democratic appointees show very liberal voting patterns when sitting with two Democratic appointees.
Finally:
The New Legal Realism also has jurisprudential implications, which remains to be explored. Consider, for example, Ronald Dworkin’s account of law as a search for “integrity,” through which judges seek both to “fit” and to “justify” preexisting legal decisions.39 Dworkin’s account suggests that disagreement about law operates along the dimensions of fit and justification. Sometimes a particular outcome, however appealing, will not fit precedent. Sometimes two or more possible outcomes show adequate fit, and the question is one of justification. (In Llewellyn’s view, this was a standard situation.40) One reading of the empirical findings, and in particular of the Standard Model, is that Democratic and Republican appointees disagree along the dimension of justification. The high level of agreement between the two sets of appointees, in most domains, shows the disciplining power of “fit.” In hard cases, perhaps “fit” runs out, and it is not so surprising that Republican appointees will find that a stereotypically conservative position best justifies the law, and that Democratic appointees will disagree with that. Much more work needs to be done to see if this account is the right one, and if other accounts, perhaps rejecting Dworkin’s, do better.
Highly recommended.
Just a few words on "law as integrity" and the standard pattern. It isn't necessarily the case that a high level of agreement on bost cases is explained by Dworkinian "fit" and disagreement focuses on "justification." Republican and Democratic nominees undoubtedly agree on most normative questions--the range of disagreement between the parties given the "winner take all" system of elections is relatively narrow given the much wider range of ideological (or normative) space. Moreover, the judicial selection process requires that judicial nominees receive the approval of the President, a majority of the Senate, and not be vetoed by a filibuster (41 Senators). In addition, it could be the case that Republican and Democratic nominees systematically differ in their jurisprudential orientation. In Dworkinian terms, they may have systematically different views about what does fit the existing legal topography. For example, Republic nominees might believe that the conventional semantic meaning of statutory and constitutional texts plays a relatively greater role that does judicial interpretation of those texts (precedent or stare decisis). Democratic nominees might have the opposite view. For "new realists," these are empirical hypotheses, subject to test.
Of course, this is just a minor quibble. An important paper, so download it while its hot!
