Legal Theory Blog

Cameron & Kornhauser on Modeling Collegial Courts

Charles M. Cameron and Lewis A. Kornhauser (Princeton University - Woodrow Wilson School of Public and International Affairs and Department of Politics and New York University - School of Law) have posted Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting and Adjudication Equilibria on SSRN.  Here is the abstract:

We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion's location in policy space; the case's disposition; and the size and composition of the disposition-coalition, the join-coalition, and the concurrence-coalition. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case. In general, the opinion is not located at the ideal policy of the median judge. The model suggests new directions for empirical work on judicial politics.

And from the paper:

We have highlighted three features of adjudication in particular:

• First, adjudication jointly determines a case disposition and “policy” or opinion content. Although case dispositions must be compatible with opinion content, the linkage between the two is complex. For example, a majority, indeed a unanimous, view on case disposition does not imply majority (or unanimous) agreement on policy. In fact, in the United States, adjudicatory institutions do not require that any opinion receive majority support. Moreover, the joint production of case dispositions and policy outcomes may present a judge with difficult tradeoffs between the better case disposition and the best rule on offer.

• Second, the rules used to choose policies are radically different from those used in legislatures or elections. There is no amendment agenda. There is no paired comparison of alternatives. There is no vote pitting alternatives against the status quo. There is no run‐off between tied alternatives. There is free entry of opinions. Voters may abstain from endorsing any opinion, and doing so is consequential for the clarity of the Court’s voice.

• Third, in light of the procedures employed to determine outcomes, judicial motivations are apt to be critical in determining case dispositions and policy. Doing the right thing, announcing the best rule, and achieving clarity in the law may be as or more important than triumphing over competitors.

We have taken some tentative steps towards incorporating these features in a formal, game theoretic model of adjudication. First, the model incorporates joint production of case dispositions and policy outcomes and links the two. Second, the model incorporates some of the distinctive procedures used to choose policy. For example, we model joins, dissents, and concurrences. Third, we posit distinctively judicial preferences, including preferences for case dispositions and preferences for policy, and desires by opinion writers to achieve clarity in the law. We have not considered free entry of opinions nor competition between potential majority opinions, though we believe the model can be extended to address them. We believe most of the reported results will remain.

The model predicts behavior that is clearly at odds with the median justice model and the “median of the majority” model. For many parameter values, the location of an opinion depends critically on the entire distribution of ideal points, not simply on the location of the median justice. Dense clusters of ideal points tend to exert a “gravitational pull” on opinions. In courts with a strong center, outcomes may resemble median outcomes. In general, though, the model is an “author influence” model and for some parameter values is a “monopoly author” model. As such, the model suggests the importance of opinion assignment and strategic calculations by the Chief Justice. Other critical parameters affecting opinion locations and join decisions include the costs of writing separately and judicial valuations of a correct disposition and legal “

Highly recommended.

Fischman & Law on Judicial Ideology

Joshua B. Fischman (University of Virginia School of Law) & David S. Law (Washington University, St. Louis - School of Law; Washington University, St. Louis - Department of Political Science) have posted What Is Judicial Ideology, and How Should We Measure it? on SSRN.  Here is the abstract:

Scholars have for decades sought to measure judicial ideology and its impact on judicial behavior. However, they have not always taken care to identify the phenomenon that they are measuring in clear and convincing terms. Nor have they made a habit of evaluating different measurement approaches for their suitability to the task at hand. In this Article, we attempt to remedy the recurring weaknesses of the existing empirical literature in three ways. First, we identify the major conceptual and methodological obstacles to the empirical measurement of judicial ideology. Second, we compare the performance of several popular approaches to the measurement of judicial ideology. Third, we propose measurement approaches of our own that, for certain applications, offer significant improvements over some of the most popular alternatives.

At a conceptual level, empirical scholars confront the difficulty of defining ideology and the related challenge of disentangling ideological and nonideological preferences. As a methodological matter, scholars face the challenge that ideology is an intangible phenomenon that cannot be directly observed. From this fact stems the further problem of observational equivalence: the observable behavior of judges is open to multiple interpretations and may be attributable to both ideological and nonideological motivations. A further complication is the possibility that judicial ideology may be multidimensional across different areas of law.

It is crucial that scholars give explicit attention to the strengths and weaknesses of different measurement approaches, and their suitability to different types of research questions. To that end, we identify and contrast three broad families of approaches - namely, those that rely upon some easily observable proxy for a judge's ideology, those that require assessment of a judge's actual behavior in a particular context, and those that involve transplanting ideology estimates from one context to another. We also discuss issues surrounding the coding of cases for empirical analysis, with particular attention to the choice between unidimensional, multidimensional, and agnostic coding schemes.

Finally, we perform head-to-head evaluations of several popular measures of judicial ideology to see how well they predict voting behavior on the federal courts of appeals and the Supreme Court. For the courts of appeals, we test two widely used proxy measures - namely, party of appointing president and the judicial common space scores - against a novel approach that entails analyzing past voting behavior to estimate not only each judge's ideology, but also the impact of collegiality concerns and dissent costs on judicial voting. As between the two proxy measures, we find that the common space scores perform only slightly better than party of appointing president at predicting actual votes. Moreover, both proxy measures yield almost identical estimates of the impact of ideology on actual judicial voting. By contrast, the novel approach that we employ boasts greater predictive power than either of the proxy measures, and it further reveals that ideology has a much greater impact on judicial voting than could be discovered using either of the proxy measures.

For the Supreme Court, we test party of appointing president, the Martin-Quinn scores, the Segal-Cover scores, and our own measure of judicial ideology computed from the voting behavior of the justices. Although the Martin-Quinn scores and their ilk yield the occasional counterintuitive prediction, their performance at predicting judicial votes is comparable on the whole to that of our customized measure and noticeably superior to that of the Segal-Cover scores, which in turn outperform party of appointing president by a substantial margin.

And from the paper:

Even in the relatively specific context of empirical research on judicial behavior, there is an array of different phenomena that people may have in mind when using the term. It might be considered “ideological,” for example, for judges to seek to advance a particular policy outcome–a world characterized by less environmental degradation, or of less regulation, or of greater or lesser levels of immigration. Alternatively, the term “ideological” could describe a tendency to favor or disfavor certain types of parties–criminal defendants, police officers, corporations, members of ethnic or religious minorities, the disabled, and so forth. Indeed, the breadth of the concept of “ideology” even makes it possible to speak of the existence of both political ideology and legal ideology. To say that a certain type of judicial behavior is “ideological” need not mean that it is ideological in a political sense: one might, for example, characterize adjudication that relies heavily upon logical deduction from formal rules as narrowly “legal,” whereas adjudication driven by ideas about the role of law and the responsibilities of judges might by contrast be characterized as both “legal” and “ideological” in character.

The existing literature, however, tends to equate judicial ideology with political orientation, and to distinguish sharply between political and ideological motivations, on the one hand, and legal motivations, on the other. The idea that “politics” and “ideology” are synonymous, and that “law” and “ideology” are opposites, forms the basis of the theoretical framework articulated by Professors Segal and Spaeth, who assign explanations of judicial decisionmaking to one of three models: the “legal model,” the “attitudinal model,” and the “strategic” or “rational choice model”.15 The “attitudinal model,” of which they are the chief proponents,16 equates “the ideological attitudes and values of the justices” with their political leanings.17 As they use the term, ideology refers simply to the political leanings of the justices.18 What they term the “legal model,” by contrast, depicts judicial decisionmaking as the product of the interplay of law and fact.19

This distinction between the “legal” and the “political” or “ideological” is deeply problematic. To take a concrete example, Justice Scalia has articulated at length a set of reasons for favoring adherence to the original meaning of the text as a method of statutory and constitutional interpretation.20 Most legal and political observers alike would conclude that it is appropriate, if not desirable, for him to adopt an interpretive method, or “judicial philosophy,” in light of his responsibilities as a judge. Yet that is not to say that his choice of originalism is neither “ideological” nor “political” in character. First, it is possible that he has given an incomplete account of his reasons for choosing a particular judicial philosophy. Might it be that his choice is instrumental and motivated in part by a belief that originalism tends to yield conservative results?21 Second, even if we assume that he has given a complete account of his reasons for employing originalism, the fact that his choice of originalism is principled does not necessarily remove it from the realm of ideology: there is nothing contradictory about the notion of a principled ideologue. Third, the principles underlying his commitment to originalism might themselves be considered both “political” and “ideological.” Why is Justice Scalia’s conception of the proper role of judges in a democracy, and of the demands of the rule of law, not a “political” view? If he decides cases on the basis of his commitment to originalism, are we to say that his behavior is legally motivated, ideologically motivated, or both?

I found this paper enormously helpful. 

Highly recommended. Download it while its hot!

Cox & Miles on Judicial Ideology & Voting Rights Jurisprudence

Adam B. Cox & Thomas J. Miles (University of Chicago - Law School) have posted Judicial Ideology and the Transformation of Voting Rights Jurisprudence (University of Chicago Law Review, Vol. 75, 2008) on SSRN. Here is the abstract:

For two decades, the doctrinal test laid out in Thornburg v. Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part framework combining a set of rule-like preconditions to liability with a standard-like inquiry into the totality of the circumstances. Despite this elaborate framework, emerging empirical work shows that political ideology connects closely with how judges have decided vote dilution cases; Democratic appointees have proven much more likely than Republican appointees to favor liability under Section 2 of the Voting Rights Act. This work raises the question of what role the Gingles framework really plays in voting rights litigation. More basically, it raises the fundamental question of whether legal doctrine actually constrains judicial decisionmaking. Using a dataset of every Section 2 decision issued since Gingles, this Article explores these twin puzzles. It finds substantial evidence that legal rules are indeed more ideologically constraining than standards. Ideological divisions are much more pronounced in the standard-like second step of Gingles than under the more rule-like preconditions. Moreover, the Article shows that the doctrinal dynamics of vote dilution litigation have changed dramatically over the past two decades. As the representational and political implications of vote dilution claims have shifted, the Gingles factors that both judges and scholars claim are central to the liability inquiry have become far less important. Courts' sharp movement away from the centrality of the Gingles factors amounts to a largely unrecognized second transformation of voting rights litigation.

And from the paper:

Our findings provide support for two of the central theoretical intuitions about rules and standards. First, they indicate that rules indeed may, to a greater extent than standards, limit discretion and suppress ideological disagreements among judges. Second, they suggest that the flexibility preserved by standards may make it easier for adjudicators to respond to changing circumstances over time.

These findings have important implications for the long‐standing debate about whether (and how) legal rules actually constrain judges. But our results also lead to a number of specific insights about the operation of the Voting Rights Act and the protection of minority voting rights. The doctrinal structure that Justice Brennan created in Gingles may well have been intended to encourage judicial intervention in the wake of Congress’s amendments to Section 2. By establishing a set of relatively objective preconditions to liability, Brennan gave lower courts a steadier foothold for liability findings. Nonetheless, as these preconditions over time became a potential threat to substantive minority representation and the Democratic party, Brennan’s two‐stage analytic framework became more meaningful as a safety valve against liability than a spur to it. This safety valve may have allowed courts to respond more easily to changing social conditions and political consequences. But the cost has been the growing irrelevance of the Gingles preconditions themselves. Today the preconditions are surprisingly disconnected from the liability determination. Liability follows from a finding that the preconditions are satisfied only slightly more often than it would follow from a coin flip.

All this suggests that the Supreme Court’s effort to provide an objective test for identifying minority vote dilution has been largely unsuccessful.115 The lack of success is important for ongoing debates about the structure of the Voting Rights Act. Recently, both Congress and the Supreme Court have confronted legal issues relating to how rule‐like the Act should be. In 2006, Congress amended Section 5 of the Act to make more rigid the test for measuring minority political opportunity. 116 Similar changes may soon follow for Section 2. A case currently pending before the Supreme Court raises the question of whether prong 1 of the Gingles preconditions (which requires minority voters be “sufficiently numerous” in the area where they claim a violation) should be made even more rule‐like—by requiring minority voters to constitute at least 50 percent of the voting age population of the district whose creation they seek under Section 2.117 Our results show that these changes might help suppress ideological disagreements among judges, even if these disagreements continue to beset the public conversation about voting rights. But to the extent changes to Section 2 or Section 5 do cabin ideological disagreements, they may also make it more difficult for lower courts to adjust the Act to changing social conditions.

This paper is important on its narrow topic, but even more significant for its attempt to integrate theoretical constructs derived from general jurisprudence into the judicial behavior literature.  Highly recommended!  Download it while its hot!

Beebe on Fair Use & Judicial Ideology

Barton Beebe (Cardozo Law School) has posted Does Judicial Ideology Affect Copyright Fair Use Outcomes?: Evidence from the Fair Use Case Law (Columbia Journal of Law & the Arts, Vol. 31, No. 4, 2008) on SSRN. Here is the abstract:

This brief article reports the results of an empirical study of the effect, if any, of judicial ideology on outcomes in fair use case law. The data set for the study consists of all reported federal court opinions that made substantial use of the section 107 four-factor test for adjudicating the defense of fair use from the January 1, 1978 effective date of the Copyright Act through 2005, and includes, for each judge casting a vote in these opinions, the judge's values from various widely-accepted indices of judicial ideology. The study finds that judicial ideology has no significant effect on fair use outcomes - and concludes that this is not necessarily an encouraging outcome.

And from the conclusion:

It may be encouraging to learn that copyright fair use is not an area of the law in which judicial ideology appears to influence adjudication—and thus that copyright fair use is an exception to Sag, Jacobi, and Stych’s more general findings that judicial ideology affects intellectual property outcomes, at least before the Supreme Court.34 Yet one might tentatively observe that there is also something disturbing about these results. They are disturbing because copyright fair use should be ideological. As intellectual property scholars have long recognized, the stakes involved in fair use adjudication are immense. Fair use outcomes define the contours of the private and public domains of human expression and, in doing so, directly impact our capability for human flourishing.35 Fair use is far more than an economic area of the law calling for the post-ideological balancing of costs and benefits; it goes to the core of what constitutes a good society.36 Thus, while the “politics of intellectual property”37 that James Boyle and others called for many years ago apparently has yet to make itself felt among the ranks of the federal judiciary, one might tentatively hope that some future study of this nature may yield different results.

Wilson on the Quantitative Ideology Models of Judiicial Behavior

Sean Wilson (Penn State) has posted On the Problems of Political Science and the Nonsense of Quantitative Ideology Models on SSRN. Here is the abstract:

Quantitative scholars of the Court purport to be engaged in empirical science. Yet, the great majority of works regarded as elite within the political science social network are deficient in one fundamentally critical way: their works do not generate scientific vocabulary. The key feature of science is that it creates a reductionist vocabulary that rigidly designates some phenomenon in the external world (e.g., water is H2O). Words like politics and ideology are not scientific terms. They do not rigidly designate. This causes or contributes to serious disciplinary problems. If scholars want to scientize their field, they have to begin jargonizing their phenomena of interest in the external world.

Of particular concern are the works in judicial politics that purport to study the influence of ideology on judicial decision making. Scholarship in this area routinely suffers from the following flaws: (1) the inability of the scholarly community to agree about what phenomenon in the external world its empirical works actually observe; (2) the adoption of perspective science that works not unlike certain forms of creation science; (3) the use of adversarial or group-driven author citation in journal articles; (4) the frequent deployment of reification; and (5) the practice of studying something in the external world with techniques that do not allow counterfactuals to exist.

Moreover, any scholar who constructs a quantitative model with ideology as an independent variable is engaging in a kind of nonsense or rhetoric. This is because quantitative methods cannot be used to demonstrate that a person's beliefs or actions are caused by ideology. This is because when the concept of ideology is deployed as a causal assertion, its grammar offers only normative criticism. Science can no more directly observe ideology in this sense of talking than it can concepts like integrity or virtue. The best that ideology scholars can ever hope for, therefore, is good normative criticism. Although behaviorism can contribute to a normative discussion, the simple fact is that quantitative models simply cannot ever directly estimate the effect that ideology has on beliefs or behavior, because this is fundamentally a normative conclusion.

I'm not sure I agree with Wilson's understanding of "science"--which is unduly narrow, but this is a good read and certainly provocative.

Law on Judicial Power

David S. Law (University of San Diego - School of Law) has posted A Theory of Judicial Power and Judicial Review on SSRN. Here is the abstract:

Judicial review has long been characterized by constitutional scholars as countermajoritarian and antidemocratic. This Article employs insights from political science and game theory to argue that precisely the opposite is true: the relationship between judicial power and popular rule is not antagonistic, but symbiotic. Constitutional courts with the power of judicial review perform monitoring and coordination functions that are crucial to the maintenance of popular sovereignty. By conveying relevant information about government misconduct in a highly public fashion, constitutional courts enable the people to exercise control over the government in an informed and coordinated manner. The fact that constitutional courts perform monitoring and coordinating functions helps, in turn, to solve the puzzle of why governments obey them. Their ability to mobilize the people against the government means that government disobedience of the courts carries potentially severe consequences.

Judicial review supports popular sovereignty by mitigating the principal-agent problem that lies at the heart of democratic government. In a system of constitutional government premised upon popular sovereignty, the people institute and delegate power to a government and may impose terms and conditions in the form of a constitution. The government, as the agent of the people, is supposed to exercise its power consistent with those terms and conditions. But the interests of principal and agent may diverge: those entrusted with public power may seek to seize more power than has been given them, or to turn the power they have been given against the people themselves. The people, as collective principal, thus face the challenge of asserting effective control over a potentially treacherous government. A constitution ordinarily sets forth mechanisms by which they may exercise such control peacefully, but these are not immune to sabotage and failure. In extreme cases of constitutional failure, the people may band together to overthrow a government that has blocked the ordinary mechanisms of popular control. There are, however, significant potential obstacles to any effective exercise of popular power over the government. First is an information problem: the people cannot respond to bad behavior by the government if they remain unaware of that behavior. Second is a coordination problem: even if the people acting together are capable of replacing the government, such action may require widespread coordination that can be difficult to achieve.

Constitutional courts facilitate the exercise of popular control over the government in two ways. First, they provide reliable, low-cost information about the constitutionality of government conduct. A court engaged in judicial review performs the function of a whistleblower or fire alarm: it warns the people whether their government has overstepped the bounds of its delegated power. Second, courts can coordinate popular action against usurping governments. People are unlikely to act openly against a tyrannical government unless they believe that others will act as well. What they need, therefore, is a signal that it is time to act. A court can provide such a signal by ruling publicly against the government.

And from the text:

[C]ourts can shape our predictive beliefs, or our expectations about how others will behave. The essence of strategic behavior is to act in ways that anticipate the behavior one expects from others. Our predictions regarding the behavior of others inform our strategic calculations as to the costs and benefits of different courses of action. A judicial decision that changes our expectations about how others will behave thus influences our own behavior as well. In choosing how to behave in light of a judicial decision, a strategic actor must take into account how she expects others to respond to the decision. Her calculations as to how others will react may lead her to comply with the decision, regardless of whether she finds the decision either factually informative or normatively persuasive. By generating predictive beliefs about the behavior of others, courts can induce rational actors to comply with their decisions. The expectation that others will punish us for defying the courts, for example, has traditionally provided a strong incentive to obey the courts in the first place. Suppose, for example, that A sues B for intentional infliction of emotional distress and wins a damages award. The judgment may have no effect on B’s factual belief that she inflicted no harm on A, or on her normative belief that her behavior was wholly justified. The fact that the court has entered a judgment against her, however, leads her to believe that others–including, but not limited to, the court itself–will inflict various costs on her if she refuses to pay A as ordered. It is B’s predictive beliefs about the consequences of the decision, as opposed to her factual or normative beliefs, that lead her to comply.

I commented on this important paper last week at MPSA (the Midwest Political Science Association).  Law is developing an original an important theory of judicial power.  This paper is really a must.  If you are interested in the intersection of law and positive political theory, you will be able to see the importance of this paper from the abstract, but if you are not familiar with that tradition, Law's paper provides a window into a very important approach to fundamental issues.  Although the surface of the paper is concerned with judicial review, this theoretical implications ramify throughout legal theory.

Highly recommended.  Download it while its hot!

Halfteck on Legislative Threats

Guy Halfteck (Harvard University - John M. Olin Center for Law, Economics, and Business) has posted Legislative Threats (Stanford Law Review, Vol. 61, Forthcoming) on SSRN. Here is the abstract:

This Article introduces a theory of legislative threats, which not only pierces the fundamental construction of the legal system as a social regulatory institution but, more fundamentally, shows that the conventional wisdom on the role of the legal system in achieving and maintaining social order cannot explain how social control actually works in modern society. Contrary to received wisdom, the theory demonstrates that the threat of legislation, rather than legislation itself, plays a remarkable role in controlling behavior, in creating and setting incentives, and in maintaining social order.

Conceptually, legislative threats encompass threats that legislators exert on target entities - including banks and financial institutions, manufacturing corporations, professions, industrial sectors and trade bodies, universities and other public institutions, and federal agencies and U.S. states - according to which the legislator will exercise her legislative power and enact adverse legislation to regulate the conduct in question unless the threat-recipients modify their conduct in line with the legislator's demands. Implicit in the threat is the inverse promise that the legislator will forgo the threatened legislation if, and only if, threat-recipients duly meet these demands. The Article examines ten case studies drawn from diverse areas of social policy, which demonstrate both the pervasive use of threats and their formidable regulatory capacity. The Article also offers an analytic taxonomy that delineates the conceptual boundaries of legislative threats and enhances the precision of the analytic inquiry: this taxonomy includes explicit, implicit, and anticipatory legislative threats.

The Article borrows tools and insights from the field of game theory to model the strategic interaction between legislators and target firms as a non-cooperative game. This model yields clear and insightful predictions regarding the inducement effect of legislative threats - namely, the capacity of legislative threats to induce target entities to modify their behavior so as to avert the risk and consequences of the threatened legislation. The inducement effect, it is shown, depends on: (i) the credibility condition - namely, whether threat-recipients believe that the threat is credible or, rather, mere cheap talk; and (ii) the effectiveness condition - that is, whether the perceived probability that the threatened legislation will be enacted into law is sufficiently high. The analysis also demonstrates how legislators' commitments, reputation, and motivations affect the credibility of threats and, consequently, their inducement effect on the conduct of target firms.

Because threats are often directed towards groups as a whole (rather than a single firm), the Article explains the counter-intuitive effects of strategic interaction within groups on compliance with such threats (giving special attention is given to homogenous or heterogeneous as well organized or unorganized ones). In this respect, the Article develops the claim that compliance with legislative threats is, essentially, an informal political bargain in which a legislator barters the non-use of legislative power (with respect to a particular issue) in return for firms' commitment to change their conduct. Thus, by focusing on bargaining in the shadow of legislative threats, the Article identifies two important, inter-related effects: (i) exerting legislative threats elicits valuable information from target entities, which in turn reduces transaction costs, facilitates efficient regulatory bargaining, and decreases the contractual incompleteness of the regulatory bargain; (ii) regulatory bargaining provides an opportunity to craft superior measures that are necessary to effectively address the issues at stake with respect to which the legislator directed the threat in the first place.

Highly recommended.

Blogging from SPSA in New Orleans

Introduction

I’m at the Southern Political Science Association meeting in New Orleans. Legal academics sometimes forget that there is a parallel universe of legal scholarship in the world of political science (or “politics” or “government”), done from a diverse array of methodological perspectives—ranging from the formal models of positive political theory to old-fashioned attitudinalism to what is sometimes called “the new institutionalism.”

I’m attending a panel entitled “Formal Theory and Judicial Politics.” James Rogers of Texas A & M is chairing the panel & the other participants are Cornell Clayton (Washington State) and Jeffrey K. Stanton (Florida State). The format is a “roundtable discussion,” so there are no formal papers. I’m going to report some impressions of the speaker’s remarks, but given the format, my liveblogging will be even more impressionistic and sketchy than usual. These are my thoughts about the panel and not even close to a transcript. One more thing: I participated extensively in the questions and answers after the panel, but I was not able to blog my own remarks and exchanges with the panelists.

Rogers begins by introducing the panel. He explains that each speaker, including himself, will make a few remarks, followed by conversation among the panelists and with those in the audience.

Cornell Clayton

Clayton begins by explaining that he is not a formalist. His role is to express a skeptical or critical view. He is not as hostile as some might think, but he does have some questions. He is reluctant to engage in abstract debates about method. As a methodological pluralist, he tends to think that the question of methods should always be secondary to research subject. The process of theory building ought to be an iterative process. There is a world of difference between theory laden and theory driven research (referring to Ian Shapiro’s distinction); research should never be theory drive. Cherry picking data or advancing nonfalsifiable hypothesis is simply bad science.

We should always embrace a self-critical attitude toward our methods. The question of what value is added should be front and center. Because formal theory has high access costs, those who engage in it have a special burden to explain what the value added is. Clayton discusses a paper he heard from the formal approach with 64 pages of dense formal apparatus that suggested that supermajority rules dampen special interests. His reaction was, “Have you heard of James Madison”?

Far from being opposed to formal approaches, he thinks they have much to offer. He sees rational choice theory broadly—it is explains behavior in terms of goals. What makes rational choice theory exciting is that it places human agency at the center of consideration. Humans are motivated actors who interrelate with one another—this is the key to considering human behavior.

He questions formal work that fails to take human motivation seriously. Some time ago, Clayton and Howard Gillman edited two volumes on Supreme Court decisionmaking. At that time, they suggested that examination of motivations was welcome. But they questioned whether formal approaches that borrowed the attitudinalist approach to motivation would work. The new wave of strategic choice literature was different because it looked at motivations. The first wave recognized that judges cared about legal rules, judicial role, and other non-policy preference. Beginning in the late 80s and 90s, a second wave of strategic choice scholars developed more complex models, but they substituted the attitudinalist model of motivation for the more complex story of the first wave. Most of this formal work cited Segal and Spaeth, and some saw these formal approaches as generalizing the attitudinal model.

Obviously in some cases the attitudinal model has explanatory force. Gillman and Clayton argued that the attitudinal model was flawed. The attitudinalists were attacking a strawman version of the legal model. In the post-realist world, no one thinks law is just black letter law. Historical institutional scholars (Whittington, Gillman, etc.) have demonstrated that judicial preferences are more complex than attitudinalists permit them to be. So the second wave went off in a direction that Clayton sees as misguided. Judges do not calculate who the median member of Congress is.

The formal models lack resonance in the real world of experience. They are “just so stories,” implausible stories of what is really going on. What is promising is the third wave of strategic research. Rather than assuming an unrealistic dichotomy, these stories tell a more a complex story about judicial motivation (Tom Ginsburg’s work, etc.). The most exciting work will focus on the unbundling of the idea of motivation. In doing this it is likely the research will draw new linkage with normative, historical scholars. Recent research by institutionalists who are interested in understanding how political regimes affect courts and judges have used strategic frameworks.

Clayton's presentation was insightful and effective--and I agree with much of what he had to say.

Jeffrey Stanton

Stanton will address the role of formal theory in comparative politics. He will also talk about  the value of formal theory as a method. And finally, he will discuss the value of formal or mathematical approaches.

Stanton begins that it is not very useful to ask what formal theory has uniquely contributed to our substantive understanding. Formal theory does not develop independently of nonformal theory. It is unhelpful to think about the research tradition. It is ultimately about core problems. It is insulting to nonformal theorists to focus on what is unique. Formal theory is a method. It would be like asking what computational linguistics contributed.

Formal theory is a method that applies to any positive theory of politics. There is always some use to formal theory. Most positive theories of behavior have a few things in common. They identify actors, what they care about, what they know, what they can and can’t do. Formal theory just does this. What actors care about are represented by functions. What they can do are their strategies. We can define their information construct. So this can be applied to any argument. It is a method for producing consistent predictions. It is useful for insuring that predictions are consistent.

So here are some examples of formal theory from comparative studies. What are the conditions under which you can constrain the state? Or you identify a problem, torture, and ask how institutions can solve that problem. Consider the first example, constraining the state by law. In the early 1980s, judges in Argentina started ruling against those who appointing them. Why did they do this? The argument is that they anticipated the fall of the regime, and they were trying to convince the new government that they (the judges) were worth keeping around. It is a neat story, but why would the new regime keep them around. And why wouldn’t the judges recognize this? You need to answer those questions, which Gretchen does in her book.

Tom Ginsburg’s work is another example. Why are constitutional courts established? How do they acquire power? Tom’s argument is that ruling coalitions use courts as an insurance policy against future electoral loss. After a court is constructed, they initially don’t have a lot of power and must be very careful. They transition into a phase where they have much more power. There is a tension between the two arguments. If you want insurance, it is not clear that lower power courts have the power to do that. (At this point, Stanton quotes an extended passage from Ginsburg’s work, which I won’t try to reconstruct.) Stanton suggests that some of the questions that Ginsburg’s work raises can be answered by formal models.

James Rogers

Rogers has noticed that there is some loose language in discussions of these issues. There is a difference between several different approaches. Rational choice models do not need to be formal. Many writers apply soft rational choice, approaches, e.g., Madison. In this sense, someone who thinks they are Napoleon can be rational so long as he can rank preferences and his ranking is transitive. This is a very thin notion of rationality. There is a lot of human behavior that is irrational—choice are not consistent or choices are flummoxed or choices are based on intransitive preferences. It is fine for psychologists to explain irrational choices. But if there is a field of activity that can be explained on the basis of rational choice, then the models have space.

Formal models do not need to be rational choice models. You can stipulate any kind of behavior. You can formalize rational choice easily, but there is no requirement that mathematics serve rational choice.

Game theoretic models only require interaction, or more strictly, dependence of one actor’s action on another actor’s action. To the extent that what I do depends on what others do is “strategic.” Game theory does not require awareness of the game. Game theory may be best when things are so internalized that we are unaware of it. I drive on the right hand side of the road, which can be explained by game theory, even though I don’t think it through in game theoretic terms. Hence, it is irrelevant that judges don’t think they are policy motivated. But of course, policy motivation may not be the only thing in the utility function.

Decision theoretic models are game theoretic models with one person dealing with an environment. Public choice includes a normative aspect that game theorists don’t need to accept.

We need to categorize in order to distinguish things, but there is a continuum—from prosaic theory (in prose) moving on a continuum to more or less formal theory. Most formal theory papers explain what is going on in prose. There is a continuum from purely verbal to a line with points to greek letters and the like. The question is what is the benefit of different sorts of abstraction. The idea that it is “us versus them” is not helpful.

Given the costs, formal theory needs to be justified. Quite often Rogers gets papers were there is a sensible idea that is formalized, and his response is “who care?” Translating something that can be understood without the math into formal terms is not worthwhile. There is no public reason to mathematize for the sake mathematization. There is a temptation to write for the sake of fun, but that is what the review system is for.

Why is formal theory valuable? “Unrealism” is valuable in some situations. If I were to lay out a map to get us from here to the hotel, and someone said it is not a realistic representation of the world, he would say, “but that is the point to having a map.” There are good maps and bad maps. A bad map would have way too much detail. You need just enough technical detail to get the insight. So unrealism isn’t a vice, it is a whole point. Verbal models abstract as well. In order to understand reality, we need to break it down.

There is “extended theorizing.” There are cases in which formalizing allows a longer chain of reasoning. There is a cost; we need to throw details away, but that is required.

The question of policy motivation—Rogers agrees and disagrees with Clayton. When Rogers got into the business, he was excited by the scholarship. Most of the scholars moved the policy space from legislation and moved it over to the judiciary. That was insensitive to the behavioral aspects of judicial politics. The critics tend to reify a stage of modeling development—perfect information and policy motivation—and then suggest it is unrealist. Rogers agrees, but at the same time those models were a first step. The insight that judges can act just like other politicians is important. Can we account for “sublimated behavior.” It is fun and useful to see how far we can push the simple assumptions.

So Rogers has a paper that assumes judges are legislators in robes. The assumption that when we allow judges to behave as Lochnerian judges, policy outcomes are better than if we require them to be deferential judges. The interaction of self-interested actors carves out a space for economic liberty. This is “fun and interesting.” That being said, an assumption is only an assumption. If it doesn’t work, then you abandon the assumption. Critics seem to be unaware of the evolutionary nature of formal theory. An example of this is the way that models now can account for uncertainty.

Discussion

Clayton suggest that he agrees with almost everything Stanton and Rogers say. He agrees formal theory is different than rational choice. He agrees that models do not need to be consciously aware of what they are doing. How do these norms become so internalized that we don’t think of them? Many studies are part of the process of scientific inquiry: you must deal with problems that are internal to the theory. His concern is that sometimes we lose sight of the point that the point of internal work is to deal with the external.

Alec Ewald if we asked actors such as Senators why they take positions in nomination hearings, they would own up to certain nominations. Honest judges have been socialized to say they are not maximizing their policy preferences. Rogers is open to the “false consciousness” claim. He has a law degree & interacts with scholars who love the Supreme Court and are emotionally wedded to a certain view of what judges do. Because law is a system of authorized coercion, we can’t tell the truth to ourself. He is open to the possibility that judges are just achieving policy goals. Rogers agrees with Clayton that the case has not yet been made.

Clayton says that many formal modelers keep motivation as an open hypothesis. As a matter of theory, the question of motivation must be prior to interaction. Rogers What is an implausible motivation and why? Clayton So if that goes into an interactive model, it is implausible. It is implausible, because it has an implausible distinction between legal and political preferences. At the heart of model, is a distinction between legal and political preferences. Dichotomizing adopts an unrealistic view of law. Rogers Is it wrong to have one dimension?

I asked a question at this point, which is omitted here.

Clayton and Rogers had a discussion about the role of policy preferences. Rogers thinks that the attempt to model based on policy preferences still has some play.

Another question from the floor related an experience where someone who had served as a law clerk for a trial judge was given authority to decide cases with almost no supervision from the federal judge for whom she clerked.

Some Reflections

I’m an outsider to this debate. Although I frequently attend political science meetings, present papers, and even do some modeling, my primary interests and methodological orientations are not those of political scientists. Nonetheless, I am deeply interested in the debates between and among political scientists about the role of rational choice theory, thick historical description, legal doctrine, and other approaches.

I am of more than one mind about the methodology debates among law and courts scholars. First, and perhaps foremost, I am a methodological pluralist. In other words, I believe that different problems are amenable to different methodologies and some problems are best understood if approached from multiple points of view. For example, if we are interested in understanding the behavior of the United States Supreme Court, I believe that formal, rational choice models have a contribution to make, but so does conventional legal theory (doctrinalism), normative constitutional theory, history, and so forth. This might seem uncontroversial, but I am not so sure. In panels like the one from which I am blogging, everyone is anxious to appear reasonable and respectful of their methodological opponents. But when the various groups meet among themselves more extreme and strident views emerge. You may have heard the various refrains: “Formal rational choice theory is simplistic bullshit dressed up in fancy mathematical clothes.” “New institutionalism is for people who can’t do math.” Well let me join in the casting of aspersions: “Methodological monism is myopic.” Now that’s a slogan I can get behind.

Second, I am a great believer in the value of some positive political theory, rational choice, and game theoretic models for understanding political institutions in general and the interaction among courts and between courts and other political institutions. Let me give just one example, I am very interested in the politics of judicial selection, and in particular, with the question whether formalist judges (assuming such persons could exist) could be selected given realistic assumptions about American politics. In the course of thinking about this question, I tried to conceptualize the politics of nomination in a two dimensional space (with a left-to-right political ideology line and a bottom-to-top judicial philosophy line (on which realism and formalism) are plotted). Positive political theory models of the judicial selection process are very helpful in this enterprise; thick descriptions can be helpful too, but they don’t get at my problem in a rigorous and clear way.

Third, nonetheless, I am in great sympathy with Cornell Clayton’s remarks in this panel. Let me express my concern this way. Let us assume that law does constrain judicial decisions at least in part because some judges have internalized the a value of fidelity to law and because some outcomes are legally correct and some are legally incorrect—even for a court of last resort. This does not entail that politics will play no role in judicial decisions. Some legal provisions are ambiguous (they have more than one possible legally-justifiable meaning. Others are vague (they have borderline cases). Judge’s beliefs about political morality (or their political ideology) could influence the resolution of vagueness in at least two ways. First, many conventional normative theories of judicial decisionmaking allow for explicit reference to such concerns. One example is Dworkin’s theory, which would allow beliefs about political morality in as part of the process by which Hercules constructs theory that best fits and justifies the law as a whole. A simpler view is that judges have discretion when there is ambiguity or vagueness and they are authorized to refer to their beliefs about political morality when they exercise this discretion. Second, the values or ideology of a judge could have a causal influence on decisions in cases where there is vagueness, ambiguity, or discretion, even if the judge believes that this influence is improper and should be minimized. For example, a judge might believe that she is obligated to apply consensus community values to resolve vagueness, even if she herself does not share these values.

In other words, law can constrain outcomes even if values (beliefs about political morality or political ideology) has an influence outside the constraints and at the margins of constraint. This is Hart’s familiar picture of the “core” and the “penumbra,” and I have put this point in terms of the distinction between underdeterminacy, determinacy, and indeterminacy of law. At some level, I think this picture is widely accepted, although there are some serious scholars who continue to adhere to the radical indeterminacy thesis—that law imposes no constraints on outcomes.

The fact that law underdetermines outcomes is especially important when we focus on courts of last resort in multitier appellate systems, e.g., the United States Supreme Court. The decision not to settle (or give up) and pursue a petition for certiorari and/or an appeal as of right may be made in part on the basis of uncertainty about the content of the law. If this is so, then we would expect the caseload of the Supreme Court to be systematically biased in favor of cases in which considerations of morality or politics have a wide scope. But this would not entail the conclusion that the Supreme Court as an institution is disposed to decide every possible case on the basis of morality or politics. Instead, we would expect that the court would decide “easy cases” on the basis of formal legal considerations, but that it rarely (perhaps almost never) gets an opportunity to do so.

What concerns me about some (but not all) attitudinal and rational choice, formal models of judicial behavior is that they do not acknowledge the complexity of the relationship between law and morality (or politics) in judicial decision. Of course, simplified assumptions are part of the normal machinery of formal models (and informal models as well). So it isn’t the fact of simplification that is a problem, it is the failure to acknowledge the limitations on these assumptions when interpreting the models and empirical work that tests the models.

This was an excellent session with interesting presentations and great discussion among the panelists.

Law & the Emotions Conference Website

The conference website from the "Law and the Emotions" Conference at UC Berkeley, with papers is now available at this website:

https://www.law.berkeley.edu/institutes/csls/lawemotion_conference/

For the papers:

https://www.law.berkeley.edu/institutes/csls/lawemotion_conference/program.html

And for links to additional papers:

https://www.law.berkeley.edu/institutes/csls/lawemotion_conference/papers.html

Shifting Politics of the Justices at Northwestern's Colloquy

Over at Northwestern's Colloquy, there is a terrific discussion of recent empirical work on "ideological drift" on the Supreme Court.

Ideological Drift Among Supreme Court Justices: Who, When, and How Important? By Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal

Justices Who Change: A Reply to Epstein et al. By Linda Greenhouse

Another teriffic Colloquy!