Legal Theory Lexicon 045: The Attitudinal Model and the New Institutionalism

Introduction

The legal academy is not the only locus for serious study of the law. Legal phenomena are examined in a variety of other disciplines—ranging from philosophy and sociology to history and anthropology, but political science (or “politics” or “government”) is the academic discipline that is most strongly associated with the study of law outside of the law schools. (Indeed, at one time political science departments were called departments of public law.)  This entry in the Legal Theory Lexicon introduces two distinctive traditions for the study of the law from the perspective of political science. The first of these is the so-called “attitudinal model”—an approach that views courts—especially the United States Supreme Court—as policymaking institutions that are similar to legislatures and administrative agencies. The second approach is sometimes called “the new institutionalism” and it integrates a concern for legal doctrine and rules with other social science tools.

As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance.

It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy: these approaches, which frequently are called "positive political theory" will be the subject of a separate post.

The Legal Model and the Attitudinal Model

Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.”

Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases in courts of last resort. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patterns, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example.

A very simple version of the attitudinal model could be based on the notion that judges and decisions occupy a "position" in an attitudinal "space."  What does that jargon mean?  Suppose that attitudes about political ideology exist on a continuum from "left" (most liberal) to "right" most conservative.  This space could be represented as a "real line," with its origin at the most conservative extreme and its terminus and the most liberal extreme.  The political ideology of judges could be represented as a point (or position) on that line.  We could then imagine that outcomes in cases also occupy a position on the line.  The attitudinal model hypothesizes that a judges political ideology (or position in attitudinal space) will predict the way that the judge decides cases.

So we have two models of judicial decisionmaking: the legal model and the attitudinal model.  Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser!

There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound.

When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted.

More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics.

The Attitudinal Model and Positive Political Theory

From one point of view, the attitudinal model hasn't been "state of the art" in political science for quite some time.  Appellate Courts are multi-member bodies, and they interact with other institutions, including legislatures and the executive.  Even if individual judges prefer that their decisions match their "ideal point" in ideological space, they may not be able to achieve that result given the need to garner a majority.  Of course, this is exactly the sort of problem that can be modeled by game theory.  Political scientists use the term "positive political theory" or "PPT" as the name for rational-choice and game theoretic approaches to political problems.

The key insight that PPT adds to the attitudinal model is simple.  Judges will join an opinion that departs from their ideal point if it moves the law from the status quo to a point that is closer to the judges ideal point.  This approach can be extended to the interaction between the judiciary and other political institutions.  For example, if the Supreme Court interprets a statute in a way that is contrary to the preferences of the key players in the legislative process (Congress and the President), then we might expect legislation to override the decision.  Whether the override will pass depends on the "veto gates"--the points at which legislation can be stopped.  If the Supreme Court were rational and were fully informed about the preferences of legislators, then we might predict that the Court will avoid decisions that would trigger legislative overrides, but would instead move the law just short of that point.

The New Institutionalism

And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists.

From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context.

From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions. 

Conclusion

It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law!

Related Lexicon Entries

• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 036: Indeterminacy

Bibliography

• Lawrence Solum, The Positive Foundations of Formalism: False Necessity and American Legal Realism, 127 Harvard Law Review 2464 (2014).
• Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).
• Howard Gillman, The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993).
• Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 1993).
• Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964).
• Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001).
• Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.)
• Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999).
• The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999).

(This entry was last revised on October 29, 2023.)