'The Positive Foundations of Formalism: False Necessity and American Legal Realism' by Lawrence Solum in (2014) 127(8)
Harvard Law Review 2464
explores
the relationship between claims that judging is inherently political or ideological and contemporary studies of judicial behavior. These themes are developed in the context of a review of The Behavior of Federal Judges by Lee Epstein, William M. Landes, and Richard Posner.
In this review, I begin in Part I with the book’s core, situating Behavior of Federal Judges’ empirical findings in the context of the evolution of the attitudinal model and the emergence of empirical studies of judicial behavior that emphasize the role of law as an important causal factor.
Part II is about microfoundations. Behavior of Federal Judges offers a rational choice account theory of the causal mechanisms that determine judicial behavior in the form of a labor economics model—judges are viewed as agents of a diffuse principal whose preferences range over their income and the satisfactions obtained from the various ways in which they spend their time.
In Part III, the review then takes a step back from the details of Behavior of Federal Judges’ empirical and theoretical account and engages the fundamental issues at stake—the questions raised by the debate between formalists and realists. Behavior presents itself as a purely positive account: “Ours is strictly a positive analysis. We do not ask how judges should decide cases but how they do decide them—more broadly, how they do their judicial work (which is not limited to casting votes in cases).” (pp. 5-6)
Implicitly, Behavior assumes that the empirical findings and rational choice models show that judging is an inherently realist enterprise—not only does ideology partially determine judicial behavior, it does so necessarily. But this assumption is undermined by Behavior’s empirical findings. In fact, Epstein, Landes, and Posner provide strong evidence that that these claims (that judging must be political) involve false necessity. Putting this same point positively, Behavior provides evidence that legal formalism is possible—inside the feasible choice set and not mere “pie in the sky.”
Solum comments
The great debate over formalism and realism has a tortuous history.
It was the jurisprudential debate of twentieth-century American
legal theory, and it continues, rehashing old moves, relabeling old positions,
and — this is the hopeful bit — exhibiting new, surprising, and
productive developments. One of those productive developments has
been the turn to rigorous methods in positive legal theory. Contemporary
legal theory is increasingly influenced by methods and ideas imported
from the social sciences — a development that is part of a larger
trend in the legal academy: interdisciplinarity. Some of this story is
old hat by now. Law and economics1 and the law and society movement
entered the legal academy long ago. Other parts of the story are
new. Today, interdisciplinary approaches to legal theory include the
transplantation of empirical methods for the study of judicial behavior
from political science, the application of the game-theoretic models
developed under the rubric of positive political theory (PPT) to the
strategic interactions among judges and between judges and the political
actors who select them and react to their decisions, and the nascent emergence of experimental jurisprudence (or “X-Jur”), which applies
experimental techniques developed in psychology and cognitive
science to the problems of legal theory.
One of the most promising trends has been the gradual erosion of
the wall of acoustic separation that insulated lawyers, judges, and legal
scholars from the rich body of empirical work on judicial behavior
developed by political scientists, represented by the so-called “attitudinal
model,” pioneered by Professor C. Herman Pritchett7 and famously
associated with the work of Professors Harold Spaeth and Jeffrey
Segal, among many others. The core idea of the attitudinal model is
that ideology (and not the law) is the most important determinant of
judicial behavior. The rise of the attitudinal model in political science
was anticipated and influenced by the American legal realists, a loosely
defined group of judges, lawyers, and scholars, who marked the difference
between the “law in action” and the “law in books” and formulated
early versions of what is now called “the indeterminacy
thesis” associated with the critical legal studies (CLS) movement.
Like the attitudinalists in political science, critical scholars who embraced
the indeterminacy thesis contended that politics, not law, is the
primary determinant of judicial behavior.
But attitudinalism and PPT in political science and CLS in law
were not the only heirs of realist skepticism about the determinacy of
law. Judge Richard Posner’s influential 1993 article, 'What Do Judges
and Justices Maximize? (The Same Thing Everybody Else Does)',
proposed a model of judicial behavior that viewed judges as rational maximizers, whose decisions are explained by a utility function that
included leisure time and pecuniary income. Posner’s model eliminated
ideology as a direct consideration in judicial decisionmaking:
“My approach downplays the ‘power trip’ aspect of judging, the focus
of most of the few previous efforts to model the judicial utility function.
In fact, I assume that trying to change the world plays no role in
that function.” And law itself played no role in Posner’s model. His
skepticism about the role of law in legal decisionmaking is further illuminated
by his essay for the one hundredth anniversary issue of the
Harvard Law Review, in which he argued that legal theory had failed
to develop tools for the interpretation of legal texts, with the consequence
that statutory interpretation (and by implication, the interpretation
of constitutions, rules, regulations, and even judicial opinions) is
indeterminate. Posner later wove the various strands of his thought
into the tapestry he calls “pragmatism,” articulated most fully in his
magnum opus, How Judges Think.
Posner assumed that policy preferences play “no role” in the determination
of judicial behavior, but his economic approach to judicial
behavior was nonetheless in the rational choice tradition: rational
choice theories explain judicial behavior on the basis of the preferences
of individual judges. In political science, the rational choice paradigm
was combined with game theory in what is called “positive political
theory.” Unlike the attitudinal model (which predicts the behavior of
an individual judge based only on that judge’s preferences), PPT models
of judicial behavior take strategic interactions between judges into
account. For example, the behavior of a Supreme Court Justice is not
just a function of the policy preferences (or ideology) of the individual
Justice in isolation. The Justices must take the preferences of their colleagues
into account; only by modifying their positions can they get
five votes and thereby shape the content of the law.
PPT approaches to judicial behavior frequently employ “pivotal
politics” models, originally developed in the context of modeling legislative
behavior. According to these models, in the House of Representatives,
the member whose ideological views are at the median
(with equal numbers of colleagues to the left and the right) is the “pivot,”
the member whose vote will determine whether bills brought to the floor will pass or fail. On a collegial court like the Supreme Court,
we call the vote of the pivotal Justice the “swing vote” — in cases
where the swing vote will determine the outcome, the opinion writer
must write an opinion that will attract the vote of the pivotal Justice
to form a majority. Pivotal politics models identify these key players,
the “pivots” whose preferences define which outcomes are possible (assuming,
of course, that the models are confirmed). While Posner’s
model assumed that policy preferences play almost no role in shaping
judicial behavior, PPT models assume the opposite — that policy preferences
are the driving engine of judicial behavior.
On the surface, it might seem that progressives from the 1930s,
radical legal scholars from the 1980s, a conservative federal judge, and
(supposedly) value-neutral social scientists have little in common. But
there is a common thread. As Judge Harry Edwards and Professor
Michael Livermore put it: “The theories underlying the attitudinal
model, legal realism, critical legal studies, and pragmatic adjudication
share the view that the law generally does not constrain judges in their
decisionmaking because it does not provide clear answers.” This
shared view or common assumption can be expressed as the “indeterminacy
thesis,” the key realist move in the grand debate with
formalism.
Enter The Behavior of Federal Judges: A Theoretical and Empirical
Study of Rational Choice (or Behavior of Federal Judges for short
or Behavior for really short), a magisterial and important book, coauthored
by Lee Epstein, who was trained as a political scientist and
who is currently appointed in law and political science at the University
of Southern California; William Landes, trained as an economist
and currently on the faculty at the University of Chicago Law School;
and Richard Posner, trained as a lawyer and currently a judge on the
United States Court of Appeals for the Seventh Circuit. Although the
subtitle of Epstein, Landes, and Posner’s book is A Theoretical and
Empirical Study of Rational Choice, the emphasis is decidedly on the
empirical — with theory getting the short shrift. Chapters two
through eight, which consume 320 of the 422 pages or about 75% of
the total, summarize the literature on judicial behavior and present
important new empirical findings. Theory (with a corresponding economic
model) appears in chapter one, entitled “A Realistic Theory of
Judicial Behavior,” which presents an updated version of Posner’s
1993 model of judicial behavior, now recast as a labor economics model
(pp. 25, 48) and self-described as a summary of Posner’s How Judges
Think (p. 25).