Looking for Law in All the Wrong Places
Some Suggestions for Modeling Legal Decision-making
Andrew D. Martin
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 decisionmaking. 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