Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-making
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Description
The United States prides itself on its adherence to the rule of law. Although the phrase itself is mushy and susceptible to many definitions, surely one interpretation is that disputes are resolved on the basis of the facts and pre-existing legal rules. Law implies a certain regularity of process; it rests on the notion that like cases will be treated alike. As thus defined, the law plays prominent in countless litigated disputes every day, and transactions of all sorts occur in the law’s shadow. Yet many political scientists are deeply skeptical that law does, or even can, play the role claimed for it. Studies of judicial decision-making often seek to prove that forces beyond the legal doctrine control case outcomes. At the extreme, some political scientists seem prepared to state that law does not and cannot constrain judges, and that as a result legal disputes are resolved by such things as the ideological preferences of judges, or the pressures exerted on them by other political actors. Winning and losing in a court of law, to believe much of what one reads in political science, often depends primarily if not solely on whether the judge personally or ideologically favors your cause, on whether she worries how other governmental officials will respond to her decision, on whether she fears reversal, or perhaps even hopes for a promotion. One way to evaluate the disagreement between political scientists and those who believe in the efficacy of law and legal process is to model the process of legal decision-making. What follows is an effort at clarification and specification. Our goal is to guide those who are interested in modeling law, as well as to offer some gentle critique to some who think they have been, but have not. Many of our points are hardly earth-shattering ones, yet they often seem to go unrealized or misunderstood. For the most part they are derived from observations made by those in the legal profession. Here, we agree with Frank Cross that an “internal perspective can amplify the understanding provided by external observation”. We begin by discussing why one might want to model law. This is an important starting point because the apparent motivation of much of the political science literature is to establish that law cannot possibly constrain judges. Yet to come at the problem in this way is already to betray a conception of what judges do that differs substantially from the view held by those in law. In the world of law, what typically is referred to as legal doctrine performs a number of functions. One is to guide and channel judicial decision-making so that judges, even if they have discretion, exercise it in a cabined way. Another function of law is to permit prediction about how disputes might be resolved, so that society can operate. Constraint plays some role in both of these functions, to be sure, but it is a far more modest and nuanced one than discussed in much of the literature of politics. Next we argue that most of what claims to be a legal model in the political science literature (a) is not a model or (b) does not model law. Here we specify what it means to have a model of law, and we acknowledge the work of those scholars who have attempted to do so. There have been some recent promising steps toward modeling law, often as collaborative efforts among political scientists and legal academics. We distinguish these recent tentative steps from the “legal model” that has been long discussed among some scholars of judicial behavior in political science. We then seek to move forward the modeling of law in a modest way by drawing some distinctions that are prominent in internal understandings of the law. Although the concept of law is elusive, and precise definition is best left to scholars of jurisprudence, we believe these simple distinctions can offer guidance to those who seek to model law, or to test such a model empirically. In large part these distinctions serve to narrow the domain in which a simple descriptive or explanatory model of law might operate successfully. We conclude by explaining that political scientists have been looking for law in (mostly) all the wrong places. The vast majority of political science studies of judicial behavior use as their domain constitutional or public law cases, where law is least determinate. They tend to bypass common law or statutory regimes, such as those involving contract or commercial law, where law’s mechanisms seem to operate most effectively. By the same token, there is a tendency to study the decisions of the Supreme Court, or other high appellate courts, when intermediate appellate courts and trial courts—if not disputes that never make it to court—are the places in which one is most likely to find the regularity of law. Finally, although this is changing, most political science studies also look only at votes on the resolution of cases, rather than the opinions of the judges themselves, which may be appropriate to the study of judicial behavior, but not to law itself.
Source Publication
What’s Law Got To Do With It? What Judges Do, Why They Do It, and What’s at Stake
Source Editors/Authors
Charles Gardner Geyh
Publication Date
2011
Recommended Citation
Friedman, Barry and Martin, Andrew D., "Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-making" (2011). Faculty Chapters. 631.
https://gretchen.law.nyu.edu/fac-chapt/631
