A Response to Professor Knight, Are Empiricists Asking the Right Questions about Judicial Decisionmaking?
Powell, H. Jefferson, Duke Law Journal
Although I was honored by the invitation to comment on Jack Knight's article, I was also a little puzzled. I do not do the sort of work to which this Symposium is devoted, nor do I even read very much of it. When I do dip into empirical studies of the courts, I often find them rather difficult or even alien, both in style and in focus. I also find them frustrating: the empiricists frequently appear to be battling a formalist straw man who believes that law can be done by following rules that do not allow for discretion in their interpretation or application. I do not know anyone who thinks that. Perhaps, I speculated, my role is meant to be like that of a Martian, invited to give the perspective from another planet.
Once I read Professor Knight's wonderful article, however, I had a very different sense. Are Empiricists Asking the Right Questions About Judicial Decisionmaking? (1) is not only written in clear and graceful English. Even more important, it is to me a reason for great hope that the astronomical distance between empirical work and the concerns of normative legal analysts--like me--is diminishing rapidly. I believe that empirical work along the lines that Professor Knight proposes will prove to be of great interest not only to other empiricists but also to judges, practicing lawyers, and scholars who write normatively about the courts.
Part of the reason for my hope is that Professor Knight's article is free of the assumption (sometimes evident in empirical studies of the law) that the normative concerns of others make them blind to the role of politics and policy in judicial decisionmaking. Normative analysts have long known that judicial decisionmaking often involves, and cannot exclude the influence of, considerations that go beyond the proverbial black-letter law. Take the famous essay by Judge Joseph Hutcheson, The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision. (2) Hutcheson was no foe of doctrinal analysis, but he argued vigorously that in practice the role of doctrine is not to exclude the personal convictions and inclinations of judges, but to provide them with the means of testing their intuitions about the best judgment against the concerns and results reached by other judges in other cases. (3) Hutcheson published the essay in 1929, but it sounds eerily like Judge Posner's description of judicial decisionmaking, (4) although Hutcheson could have benefitted from Professor Knight's more nuanced understanding. (5) To be sure, Hutcheson is often counted as a sort of legal realist, but his writing generally indicates that he was a perfectly orthodox lawyer of the generation that entered the profession about 1900. But if Hutcheson is not persuasive, consider a bigger and much older figure. This is Chief Justice John Marshall, writing in 1807: "The judgment is so essentially influenced by the wishes, the affections, and the general theories of those by whom any political proposition is decided, that a contrariety of opinion on ... great constitutional question[s] might well have been expected." (6) So it is not news that one cannot describe judicial choices in drily formalistic terms, and Professor Knight does not think otherwise. (7)
Of course, if opinions are no longer thought to explain decisions the way a proof explains a proposition in Euclidean geometry, one might wonder why anyone bothers doing doctrinal work (other than as a species of advocacy) or, for that matter, why the practice of writing opinions even persists. Yet judges do continue to write opinions, and scholars (well, academic lawyers at any rate) continue to study what those opinions say. Professor Knight's article is so excitingly full of promise because it grapples with this reality. He, as I read him, is proposing in part that social scientists turn their formidable tools on opinion writing not to exorcise once more the formalist bogeyman but to deepen our understanding of what opinions do and how they do it . …