Academic journal article Duke Law Journal

Are Empiricists Asking the Right Questions about Judicial Decisionmaking?

Academic journal article Duke Law Journal

Are Empiricists Asking the Right Questions about Judicial Decisionmaking?

Article excerpt


This is a conference organized around the general topic of measuring judges and justice. The mandate for the conference raises a number of interesting and challenging questions, of both a positive and normative nature, about judicial decisionmaking. The main theme throughout the conference is how social scientists' empirical studies of the courts help to answer these questions. Regarding questions of "measuring judges," the relevant focus is on the ways social scientists conceptualize, operationalize, and then explain judicial decisionmaking. Regarding questions of "measuring justice," the relevant focus is on how these same studies might help to assess to what extent judges satisfy the normative requirements of their jobs.

This latter set of concerns may be seen as one important way of measuring the quality of judicial decisionmaking, that is, assessing how well judges do their jobs. At the outset, I think that it is important to note that underlying this conference is an assumption that I am quite comfortable making--that our positive explanations of judicial decisionmaking ought to significantly inform the normative assessments we make about the quality of this decisionmaking.

In early conversations with some of my new colleagues at Duke, I found a recurring theme that evidenced some skepticism about the ability of social scientific studies of the courts to adequately inform debates about what judges do and how well they do it. The crux of the skepticism seems to rest, in large part, on the question of whether empirical studies of the courts accurately capture the main concerns and primary activities of judges.

In The Choices Justices Make (1) Professor Lee Epstein and I specifically addressed the question of whether or not social science accounts of the courts accurately model and thus explain the primary elements of judicial decisionmaking. (2) There we set out an account of the Supreme Court as a group of nine judges who make strategic decisions that are motivated by a wide range of preferences, values, and commitments. Their strategic decisions are defended and justified by an array of normative and legal sources, and are proffered within a complex institutional context. We defended what has since become the widely held view (at least in the social sciences) that the Justices often make new law and, in fact, do so consciously and intentionally. We argued that the Justices are fundamentally concerned about influencing the substantive content of legal rules and standards. (3) One important implication of this argument is that the task of explicating the influential role of the Justices is a necessary feature of any adequate explanation of the evolution of the law in a democratic society like the United States.

Professor Epstein and I argued at the time that this conception of the role of the Court had important implications for how social scientists studied judicial decisionmaking. More specifically, we argued that empirical studies of judicial decisionmaking had focused too narrowly on the disposition of the case, on the final vote on the merits: "a lesson--if not the lesson--of this volume is that explorations of the Supreme Court should not begin and end with examinations of the vote, as they have for so many years. Rather, we must explore the range of choices that contribute to the development of law." (4) We recommended that the focus be on a more general examination of the various mechanisms by which the Justices affect the development of the law:

   What it suggests is that research building on Choices should
   attempt to explain discrete choices, but that we would be
   disappointed if that is all our work generated--studies designed to
   explain the decision to accommodate or bargain or to persuade or to
   vote in a particular way and so on. We hope that future scholarship
   does not lose sight of the ultimate goal: to understand how these
   choices come together to explain the substantive content of law. … 
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