The schedule presents an outline. Click to see the complete abstracts.

Introduction and Welcome

Panel 1: Legal and political science models compared, and what they tell us about what judges do

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• Charles Geyh
  Moderator
• Steve Burbank

  On the Study of Judicial Behaviors: Of Law, Politics, Science and Humility

  My paper discusses, from a law professor's perspective, the origins and nature of the gap(s) that developed between the approaches to judicial behavior in law and those in other disciplines (chiefly political science), the stakes (in terms of both scholarship and public policy), the progress that has been made to date in bridging the gap(s), and barriers to further progress (including any that may be insurmountable). I am likely to question many aspects of the attitudinal model and the way in which it has been tested, as I am to bemoan the reductive view of the legal model taken by many political scientists (and the reasons for it). Some of the latter discussion will likely lead me to set the debate in the larger framework suggested by Ed Purcell's The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value, which in turn will lead to ruminations about the limitations of empiricism, to a qualified defense of normativity, and, perhaps, even to a sympathetic rendering of the social importance of myth.

• Jeff Segal

  What’s Law Got to do with it: Thoughts from "the Realm of Political Science"

  This paper examines the most common models of judicial behavior used by political scientists: the legal model, the attitudinal model, and the strategic model. I discuss deterministic, gravitational, and post-positive models of legal decision making, upper and lower court models of attitudinal decision making, plus internal and external models of strategic decision making. I then evaluate the empirical literature related to each. Depending on how long it runs and your view as to fit, I could add a section on the normative implications of empirical models.

Break

Panel 2: How we distinguish law from politics

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• Bill Henderson
  Moderator
• Eileen Braman and Mitch Pickerill

  Path Dependence in Studies of Legal Decision Making

  This paper looks at "path dependence" in studies of legal decision making. How does what we "know" about judicial behavior influence current research? How might the methods used by our disciplinary predecessors shape and confine our thinking? Does the existence of large data sets and widely accepted operationalizations help or hinder scholars from thinking creatively about how to study concepts related to legal decision making?

  We consider the "division of labor" that has evolved in the field. Legal scholars have been largely concerned with doctrinal and normative aspects of judging. Armed with methods and data, political scientists have, until just recently, had the corner on empirical approaches to understanding decision making. This is somewhat ironic as the roots of the behavioralist movement can be traced to legal Realists like Frank and Llewellyn; but more than that, we see it as a missed opportunity – not only because of the, oft made, argument that scholars across disciplines should be "speaking to" and "learning from" each other – but because the more smart, creative minds we have looking into empirical questions about legal decision making the better our research will be. Similarly, the more people we have thinking about the normative implications of such research the better our theorizing about the legitimacy of judge made law in our democratic system.

  We explore the idea that the excessively "critical" stance behavioral scholars have taken over the last 50 years has turned legal academics away from empirical approaches. We acknowledge, however, that legal scholars have been dismissive of empirical research for other reasons. We argue that by ignoring empirical evidence on decision making for so long, legal scholars have allowed scholars in other disciplines to set the agenda and characterize findings in their own way. Political scientists, on the other hand, have not adequately dealt with the normative implications of their findings. Moreover they tend to be overly attached to available data and operationalizations that have gained "acceptance" in that discipline without considering alternative ways of collecting evidence or measuring concepts that may be more appropriate to the questions researchers are asking. In this regard the insight of legal scholars should be a welcome contribution to empirical research.

  Most importantly, we should not be afraid of thinking creatively and embracing alternative approaches to understanding legal behavior. Diversifying our data and measures could build confidence in our knowledge if findings from alternative approaches tend to converge. If they do not, we will have to figure out, why not? But we should not resist such dialogue. After all, this is how knowledge progresses…a little off the beaten "path."

• Frank B. Cross^*

  "Law Is Politics"

• Barry Friedman and Andrew Martin

  Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decisionmaking

  Political scientists have developed "models" of legal decisionmaking, which they then typically falsify empirically. We challenge the notion that these analytic devices are indeed models, in the standard sense of the word. Rather, they tend to be caricatures of legal decisionmaking that fail to capture how the practice actually operates. But just as the "legal" models often are caricatures, so too, often, are the political models of judicial decisionmaking. We intend to draw from the extensive literature on how judges might, or do, actually decide cases, to break ground on a more sophisticated understanding of the process that unites both "legal" and "political" considerations.

Lunch

Panel 3: The role of law and politics in judicial decision-making

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• Jeff Yates
  Moderator
• Larry Baum

  Law and Policy: More and Less Than a Dichotomy

  In academic and popular thinking about judging, the law and judges’ policy preferences are typically viewed as a dichotomy: judges are basing their decisions on one or the other or, perhaps, some proportion of each. The reality is more complicated than that in several ways. First, the concepts of legal and political decision making are complicated. Legal and political considerations each take multiple forms, and the differences among forms are important. Further, the roles of law and politics in decision making look different if those roles are defined in terms of judges’ intent or in terms of their actual choices. Two other complications are more fundamental. The first is that in both motivational and cognitive terms, legal and policy considerations are intertwined in judges’ decision-making processes. The second is that as conventionally defined, legal and policy considerations encompass only a portion of the motivations that shape judges’ choices. These complications are important theoretically for our understanding of what judges do, and they also have significant normative implications for our evaluation of judges’ work and their roles in the political system.

• Stefanie Lindquist
  

  Stare Decisis as Reciprocity Norm

  Scholars’ theoretical and empirical understanding of the doctrine of stare decisis remains limited. Assuming judges have policy preferences over case outcomes, why would a policy-motivated judge respect precedent in the absence of a binding agreement to do so? In this paper, I rely on a strategic account of judging to generate hypothesis regarding judicial adherence to precedent in the context of state supreme courts. These hypotheses rest on the idea that formal institutional constraints may promote greater adherence to stare decisis and thus greater stability in the legal rules produced by judges. Using data on decisions to overrule precedent in the 52 state supreme courts over a thirty-year period, I find that certain institutional structures promote a willingness to overrule precedents, including the length of time judges expect to remain on the bench, the state’s judicial selection method, and the court’s size. I also find that several of these factors also affect the median age of precedents overruled in each court; where judges expect to serve longer on the bench and serve on smaller courts, they tend to overrule older precedents. In addition, where justices serve on a professionalized court in a state with a professionalized legislature, they overrule significantly older precedents as well. These findings provide some support for the idea that judges’ respect for precedent may be substantially affected by the institutional contexts in which they operate.

• Ted Ruger

  The Normative Context of Positive Scholarship About Judging

  How ought we normatively assess judges when they operate in a context where law constrains them only weakly if at all? A rich body of positive scholarship – much of it generated by participants in this conference – suggests that in many settings and across various types of cases judges in the United States are free to act without determinate constraint from ordinary sources of law. Although capable of description and rigorous empirical testing, this feature of judging presents a challenge for normative scholarship in the field, and it is no surprise that most of the best work in the law and politics literature is descriptive in nature. Where the standard exhortation for judges to “follow the law” is inadequate because of the law’s fundamental indeterminacy, is it nonetheless possible to normatively assess and critique judicial decision-making in a setting where judges possess significant unconstrained discretion?

  This paper aims to develop a normative frame for assessing and critiquing judicial behavior in such contexts where judicial discretion is largely unconstrained by legal rules. In so doing I avoid one obvious point of normative intersection – namely applauding or critiquing specific legal policy outcomes – in lieu of an effort to assess various general traits of judicial behavior and the rhetorical justifications offered by judges. Positive literature shows that similarly situated judges differ along a range of observable variables, such as methodological consistency, attitudinal drift, and propensity to write separate opinions (to name just a few), all of which I will explore through a more explicitly normative lens. I will also address the larger question of whether, and how, judges’ exercise of such discretion presents fundamental normative difficulties in a democracy. The paper’s focus will be on Supreme Court judging but will employ examples from the lower federal courts and state courts.

Break

Judges react

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The goal of this panel is two-fold: first, to have the judges react to the academics studies of their behavior discussed in the preceding session; and second, for the judges to explain what they do in their own terms.

• Charles Geyh
  Moderator
• Sarah Evans Barker
• Nancy Vaidik
• Frank Sullivan

Panel 4: The law-politics debate and its implications for judicial selection

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• James Sample
  Moderator
• Mike Gerhardt

  Constitutional Branding: An Overview

  I want to explore the tension between the notions of American exceptionalism and merit selection in the federal system. Presumably, proponents of American exceptionalism, like Steve Calabresi, have conceived that this notion encompasses certain kinds of judging, though our system is NOT designed to ensure certain outcomes in judicial selection. Moreover, merit selection, which is increasingly popular in the States (and may be what proponents of American exceptionalism conceive they are defending in the judicial selection process), is not an objective of our system either. The federal judicial selection process is designed to ensure that we avoid bad choices -- namely, extreme ideologues or people who lack the qualifications or ethical integrity to be judges.

• Melinda Gann Hall

  On the Cataclysm of Judicial Elections and Other Popular Anti-Democratic Myths

  In this essay, I present the case for electing judges using empirical evidence documenting the policy making role of judges and the impact of their personal preferences on judicial choice, as well as the mounting body of evidence demonstrating the political efficacy of the elections themselves. As part of this discussion, I delineate the failed “promises” of judicial reform advocates about nonpartisan and retention elections, and the most recent inaccurate predictions about the purported consequences of Republican Party of Minnesota v. White (2002). Similarly, I discuss the current conceptual muddle impeding public dialogue whereby advocates define independence as freedom from elections and then decree that the integrity of the judiciary is being jeopardized when any form of electoral politics is present. This tautological loop tells us little without providing evidence of how these negative effects occur and how any proposed solutions will correct the problem without introducing others that are worse. In this regard, I argue that discussions of reforming judicial elections should be considered within the broader framework of reforming elections generally. Concerns about the deleterious effects of money and negative tone are not limited to judicial elections. We should match solutions to problems and stop the hyperbolic tendency to insist that judicial elections end when any complication arises. Finally, I argue the need to integrate any proposed solutions with an overall assessment of what the pitfalls of the alternatives might be. In other words, advocacy should focus on the advantages and disadvantages of each system and not just on the negative aspects of judicial elections alone.

• David Pozen*

  The Popular Constitutionalists Among Us

• Matthew Streb

  Are Judicial Elections Like Other Elections?

  Georgetown University law professor Roy Schotland (1985, 78) famously quipped that judicial elections were becoming “noisier, nastier, and costlier.” Schotland may have been ahead of the curve, because the conventional wisdom at the time of his writing was that judicial elections were primarily sleepy affairs that looked little like elections for other offices. Almost twenty years after Schotland’s writing, the Brennan Center for Justice and Justice at Stake issued a report documenting a “new politics of judicial elections” (Goldberg, et al., 2002). Judicial reformers were alarmed by this report (and two subsequent reports), precisely because judicial elections seemed to have many of the same characteristics as other elected contests. In the eyes of reformers, the fact that judicial elections were “nosier, nastier, and costlier” threatened to undermine judicial independence.

  While much has been written in recent years about the politicization of judicial elections, little has been written comparing the characteristics of judicial elections to elections for other offices, namely the U.S. Congress and state legislatures. Beginning largely with the work of Hall (2001), scholars started to analyze judicial elections more systematically on a variety of subjects. Although informative, these studies do not provide a comprehensive picture of whether judicial elections are indeed looking more like elections for other offices. In this paper, I compare the similarities and dissimilarities of judicial elections to elections for other offices by examining several topics including contestation and competition; challenger entry and success; campaign spending and the effects of money; the involvement of interest groups and political parties; the issues discussed and the tone of the campaign; who votes and how do they make their voting decisions; and whether public opinion influences elected judges’ decisions the same way it influences public policy. The paper closes with a normative discussion of what the results mean for the future of state judiciaries.

Break

Panel 5: Law, politics, and public confidence in the courts

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• Jody Madeira
  Moderator
• Keith Bybee

  The Rule of Law is Dead! Long Live the Rule of Law!

  Polls show that a significant proportion of the public considers judges to be political. This result holds whether Americans are asked about Supreme Court justices, federal judges, state judges, or judges in general. At the same time, a large majority of the public also believes that judges are fair and impartial arbiters, and this belief also applies across the board. In this chapter, I consider what this half-law-half-politics understanding of the courts means for judicial legitimacy and the public confidence on which that legitimacy rests. Drawing on the Legal Realists, and particularly on the work of Thurman Arnold, I argue against the notion that the contradictory views must be resolved in order for judicial legitimacy to remain intact. A rule of law built on contending legal and political beliefs is not necessarily fair or just. But it is stable. At least in the context of law and courts, a house divided may stand.

• James Gibson
  

  Judging the Politics of Judging: Are Politicians in Robes Inevitably Illegitimate?

  Many legal scholars assume that politicized processes of selected state and federal judges in the United States contribute – and some would say, contribute mightily – to the erosion of confidence in the judiciary. The assumption of this position is that anything associated with politics delegitimizes courts.

  In order to assess this hypothesis with any degree of rigor, several tasks must be undertaken. First, some definitions are in order. While it is not too difficult to define “confidence” – a substantial literature on attitudes toward courts exists – more difficult is the task of deriving an agreeable definition of “politicized.” And even more difficult still is the task of unpacking the processes by which politicization undermines confidence (if in fact it does). If the politicization – legitimacy connection is to be considered as an empirical characterization of the American judiciary today, much more effort must be put into testing each of the linkages in what is undoubtedly a fairly complex causal model of citizen attitude formation and change.

  The overriding hypothesis of this paper/project is that the consequences of politicization cannot be apprehended without direct investigation of what it is citizens want from their courts. What I will refer to as the “Expectancy Model” includes two crucial elements: what citizens expect of courts and what they perceive courts to be doing. The conventional assumption seems to be that (1) nearly all citizens hold the same expectations of courts, (2) that expectations of judicial independence trump all other possible functions courts might perform, and (3) that politicization threatens independence. However, to the extent that citizens view courts as inherently and inevitably political in nature, then politicization may not detract from judicial legitimacy. Different understandings of the process of judging lead to different criteria by which judges are judged. Thus, the central empirical objective of this paper is to map citizens’ expectations and perceptions of the judiciary and to determine whether a connection exists between these attitudes and the willingness to extend legitimacy to courts.

Closing Remarks

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