The New Scholars of Judicial Partisanship
posted by Donald Braman
These days it seems like everyone is a legal realist. Or are they?
For example, I can’t decide whether Miles and Sunstein are or aren’t. They’ve undoubtedly made major contributions to the empirical study of caselaw. Sunstein, Miles, and others have extended, for example, the path-breaking work of Ricky Revesz on partisanship and judging in the area of environmental law to a host of other areas, and have done some fascinating work on panel effects and deliberation. They do great work.
I can’t help but puzzle a little, though, over the title to their new piece, The New Legal Realism. Now legal realists provide several rich accounts of how legal actors made decisions. Because the law is often indeterminate, legal realists argue, judges have to draw (and often heavily) on values and social norms to resolve questions of law and fact. Indeed, legal realists can be credited as the first sophisticated theorists of how values, norms and cognition interact in judicial decision-making. But Miles and Sunstein’s account of The New Legal Realism seems, at least to my eye, closer to what many critics of legal realism mistakenly take it to be: an accusation that judging is just partisanship dressed up in legal rhetoric and opportunistic precedent selection.
So what would an accurate account of legal realism look like?
A more detailed cultural (think of The Cheyenne Way) and psychological (think of the emphasis on individual variation) conception of what constitutes law would help, one that doesn’t reduce personality to party, race, and resume; and one that doesn’t reduce law to courtroom judging, but also includes policing, administration, and the informal resolution of legal disputes by private parties. A more faithful conception of this New Legal Realism would, I think, thus be broad enough to encompass the work of folks who do values-informed analyses (like Ricky Revesz), qualitative and quantitative studies of social norms (like Dan Kahan and Tracey Meares), and studies of psychological biases and heuristics (like Tom Tyler and Jeff Rachlinski). In other words, I think that most of the people who do systematic work investigating the extra-doctrinal influences on legal decision-making are legal realists.
And, in their own way, so are Miles and Sunstein. They’re just not very good at telling us what legal realism itself.
January 25, 2008 at 9:13 am
Posted in: Empirical Analysis of Law
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