Legal Decision Making: Toward an Interdisciplinary Understanding
Peters, C. Scott, Judicature
Legal decision making: toward an interdisciplinary understanding What's Law Got to Do With it? What Judges Do, Why They Do It, and What's at Stake, edited by Charles Gardner Geyh. Stanford University Press. 2011. 355 pp.
After decades of largely talking past one another, law professors and political scientists who study the courts have communicated more effectively with one another over the past decade. Legal scholars like Charles Geyh, Stephen Burbank and Barry Friedman have incorporated empirical findings from political science research into their work on judicial independence,1 and law schools have hired law professors, political scientists and other social scientists with statistical training as part of the empirical legal studies movement. There are now several high-quality legal journals devoted to publishing empirical social science research, and it is increasingly common to find such research published in law reviews. Among political scientists, this increased cross-disciplinary dialogue has contributed to theories that incorporate more sophisticated conceputalizations of how legal factors may operate to explain the behavior of judges.2
With What's Law Got to Do With It?, editor Charles Geyh hopes to capture the "emerging, if limited, commonsense consensus" that, while law is not the only thing that affects judges' decisions, neither is it irrelevant.3 As Geyh admits in the introduction, though there might be growing consensus that law matters in some way, there remains quite a bit of disagreement over how it matters. These thirteen chapters by leading political scientists and law professors show us both how far we've come and how much work we have yet to do.
Part I introduces the themes that emerge throughout the book, particularly the frequent tension between those who attempt to model judicial decision-making empirically and those who believe that the law's effects on judges' decisions cannot be adequately captured by such an approach. Jeffrey A. Segal leads off the book with an overview of three models of judicial behavior familiar to any political scientist: the legal, attitudinal and strategic models. Segal, a leading proponent of the attitudinal model that explains Supreme Court justices' decisions primarily by their personal policy preferences, argues that little evidence exists to sustain the notion that law has an independent effect on justices' decisions. Stephen Burbank offers several critiques of this line of thinking, arguing, in particular that, for the sake of parsimony, the attitudinalists ignore the ways in which law might have different effects in different contexts. Similarly, he believes that rigidly separating policy preferences from law in one's theories might lead to overlooking the ways in which law and policy are, in the practice of appellate courts, inextricably intertwined. Finally, Burbank offers up the notion that theories of judicial behavior ought to account for different institutional contexts and normative concerns - what do people want from their courts?
The book's remaining contributions explore these issues across different contexts, beginning with a series of chapters that highlight how the disciplines can cooperate to explore intersections between law and politics. Lawrence Baumfocuses on the ways in which "the determinants of decisions and the motivations on which judges act are impossible to apportion between law and policy" due to the fact that law and policy are themselves "intertwined" in the ways in which judges make decisions.4 Baum explains that reliance on precedent, the adoption of jurisprudential regimes, and the adoption of particular theories of interpretation may serve to further policy goals and structure the legal choices available to judges. Stressing psychological theories of motivation and cognition, Baum urges scholars of judicial behavior to look beyond policy goals and to include the broader range of goals that judges pursue, including career-oriented goals, quality-of-life goals, and attempts to further important relationships. …