Web Lecture ....

Click to read more ...

(sent to law courts)

Hi Howard.

Good to hear from you again. Haven't heard from you in a long, long time. As I think you know, I am quite aware that Jeff uses an ecological model. About two years ago, I spent a great deal of time comparing ecological models with logit models. So I know what is being said. One of the things I found out about those comparisons is that it is a mistake to think that an ecological model is "something different." It isn't; it just requires much more cautious interpretation. To really interpret it, one needs to "look under the hood," so to speak (before aggregation). In fact, I would disagree with you to the extent you suggest that Jeff's model gets some sort of free pass from conducting logit diagnostics underneath those percentages. Any responsible researcher would do so. In fact, that was one of the central flaws that stung the quantitative ideology research program in the first place -- it committed major methodological sins in the substantive
interpretation of its ecological offering. And so I would never be from the school or thought that tried to say that one who analyzed aggregates was doing something unconnected with what those figures are summarizing "underneath it all."

The reason why I had asked Jeff for the latest version of his ecological model is for two reasons. First, if he is truly using the aggregated data from the entire data set as the dependent variable, the distribution of votes will be more leptokurtic. And as I believe was your central point, an ecological model is only analyzing the variance of an index. And before we analyze index variance, we would want to know to what degree values within the index cluster around the mean. Because the more leptokurtic the index, the less we would be substantively impressed with a high account of its variance. If you look at the logit model, this becomes instantly clear. The more the values are non-directional, the more the model goes in the tank. So if Jeff is now trying to offer a high correlation in the variance of a an index that isn't varying as much as before to begin with, someone really needs to catch that -- at least for Paul's sake. (And others).

Now, let me do this much more easily. In my 2006 piece, I did something that I thought was very interesting. I went ahead and took Jeff's world "as is." I took his ecological model on its face and dissected it. What I did was break down what the r-squared in that regression was really reporting, by converting the explained versus residual sum of squares into the equivalent number of votes that accounted for each portion. When I did this, I found that only 12.5% of the total votes cast were "explained" by an ecological regression of a civil liberties INDEX. So the headline would be: model correlates with 60% of index variance, and, in doing so, explains only 12.5% of the votes accounted for by the summaries constituting the index. (This is a good illustration of how analyzing votes is supplementary to aggregates and not something of a different kind).

One more point. Howard, may I ask something of you? Why is it that you continue to say that Jeff has an "attitudinal model" here? You didn't say this in the Law and Society piece from a long, long time ago. I think we need to be clear. Jeff has only a model that has variables that gather something from the external world. What he names it is not germane. Hence, what he has is something in the nature of small-group media-perception scores constructed using a political stereotype. He then regresses that in an ecological model against the summary rates in which justice-approaches to legal issues end up favoring particular claimants. Who those claimants are is determined by what we might call the Harold-Spaeth "client list," which is another construction. I mean, there is no one on the plant who thinks that every single issue the court decides in bankruptcy cases, tax cases, economic cases, etc. etc. etc. are "liberal and conservative" because one side
had to win. And so you have a forced stereotype score being regressed against an assigned client-winning profile. This is NOT a model that measures attitudes. I don't think it can even accurately claim to measure journalist attitudes for crying out loud.

So why is it that political scientists talk this way? No other science talks this way. Real science is supposed to accurately describe what is measured in the external world. All you have here is a contrived media perception score regressed against a constructed claimant-winning profile. It is not an "attitude model." And it surely isn't "the justice ideology and the votes."

When are political scientists doing this work going to actually adopt basic principles of science, such as rigidly explaining phenomenon under study in the external world?

Howard, as always, regards and thanks. (Please do write me again in the future like you used to in the past).

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

For years, political scientists have been speaking about the concept of “attitudinalism” in judging. If you would go to conferences, for example, they would assert statements like, “attitudinalism is the best empirical account of judging” and so forth. Or they would say “Supreme Court judges vote their political attitudes.” One of my biggest complaints with this critique of judging – aside from its lack of true empirical support -- is that it plays a language game with its audience. You must first decode what is meant by the term “attitudes” before you know what is said. And the problem is that the meaning often changes without the speaker telling you (or being aware?) of the semantic shell game. Let us look at several things that people have called “attitudinal:”

Click to read more ...

What the theory IS supposedly agnostic about is whether answers to cases can be found in principles of law that lie apart from policy preference (Dworkin). The reason for the supposed agnosticism is the naked and bold declaration that humans (like children) have an automated tendency to believe that what they want is also "justified." Hence, they are agnostic about epistemology, not cognition.

Click to read more ...

[email discussion: law & courts listserv]

What political science calls its "attitudinal model" is not agnostic about "cognition," as that term is meant in the question. The theory says that justices on the United States Supreme Court are free (for institutional reasons) to vote their sincere policy preference. It is hard to imagine a sincere policy preference in this context being "subconscious," especially since its expression is theorized to result from the lack of institutional constraints upon life tenured justices. The idea is that freedom allows for license, not that the license is therapeutic. (It's not, for example, a Freudian theory of will).

What the theory IS supposedly agnostic about is whether answers to cases can be found in principles of law that lie apart from policy preference (Dworkin). The reason for the supposed agnosticism is the naked and bold declaration that humans (like children) have an automated tendency to believe that what they want is also "justified." Hence, they are agnostic about epistemology, not cognition. (By the way, being agnostic about epistemology and asserting the universality of the principle of self deception makes attitudinalists proponents of what philosophers would call "internal skepticism.")

Now, the question of how this theory imports to trial courts is very simple. Where the institutional structure provides for judicial license -- e.g., rulings made under the abuse of discretion standard or the clearly erroneous standard, or those made under the harmless error rule -- should result in more conscious selection of favorite outcomes. But where the institutional structure does not provide for this -- de novo review, "hard" rules such as jurisdiction and the like -- there is not the possibility of acting upon such impulses.

Attitudinalism therefore is very much supportive of free judicial will.

The real question, however, is what institutionalists say about cognition. Those who are philosophically oriented (like myself) believe that modes of cognition are structured by legality and that free choices are forced to be expressed within a pre-existing legal edifice. Sometimes the law allows for more freedom (e.g., search and seizure) and sometimes it doesn't (free speech). There are other institutionalists, however, who are not philosophically oriented. These people substitute sociology for philosophy when explaining the mechanism of action. It's not Kantian or Socratic forces in the mind, they say, but rather norms, social group pressure, mores, folkways etc. So it is much more interesting to ask what institutionalists who love sociology think about judicial cognition.

In a sense, attitudinalism is about the triumph of the judicial free will, while institutionalism (sociology) is about the triumph of judicial determinism. Only structuralism, I would say, offers us the best theory. Intellectualism structures both freedom and constraint.

Dr. Sean Wilson, Esq.
Penn State University
Website: http://ludwig.squarespace.com/home/
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/

At 02:00 PM 9/7/2007, Bradley Joondeph wrote:
>Colleagues,
I am a law professor, and I have only recently begun delving into the rich world of political science. (For this I apologize.) I am presently working on a few papers that lie at the intersection of law, political science, and social psychology. In doing so, I have confronted a fairly fundamental question, and I would very much appreciate any thoughts.

My question is this: Do the proponents of the attitudinal and strategic models of judicial behavior generally have a theory about judges* cognition? Do they believe that judges consciously pursue their favored policy results (either sincerely or strategically)? Or are they agnostic on the cognitive point, and only making claims about the ultimate results expressed in judges* votes and opinions?

In light of Professor Baum*s Judges and Their Audiences, I am particularly interested in whether those who adhere to the strategic model have views on the question. Baum criticizes the strategic model for assuming that judges will engage in so many time-consuming, complex calculations. But perhaps this criticism would lose some sting if the strategic thinking were more habitual, subconscious, and not part of the justices* felt cognition.

Again, any thoughts on the topic (or directions to helpful resources) would be greatly appreciated.

Thanks, Brad Joondeph

[sent to conlaw prof re: whether Stevens, Ginsburg, etc, are moderates or "liberal"]

 
... I find it interesting that many in the academy are ready to say that the "Court has shifted to the right." If you would list the things that right wing justices agree with today and compare them with what right-wing justices believed in legal culture in the 1950s, I bet one would say that conservative justices themselves have shifted slightly to the left. All that really happened is that during the Warren era and in the 60s, America went through turbulent social and cultural progression. Why the 60's should be the focal point and not an outlier is something only that a liberal academy that lionizes this era has to explain. Now that the innovation is over, you have more pragmatic-oriented judging all across the line, that's all.  It's not that people "aren't as liberal" -- it's that what is "liberal' was always dependent upon historical circumstance to a large extent. When Marshall and Brennen and Douglas died -- their peers,
generation and world died out somewhere along the way, too.  There is no "that is liberal" apart from these things. All that one could properly say is that the current justices aren't New Dealers with the goal of retro-fixing the liberty state so that it isn't antiquated  anymore. Not that they are not "liberal" once these transformations have occurred.   

The comparisons of views across epochs are difficult because the facts change on the ground. If the crime problem develops into semi-automatic weapons and areas where police don't even drive anymore, well, your framers' idealism really has an implementation problem. So you get pro-police state decisions until the facts on the ground change again, in which case you get some sort of a new synthesis in another direction.

It isn't "liberal," its culture, generations, facts and pragmatism -- all mixing with a judge's psychology and his or her doctrinal construct.  I don't know how fruitful it is to compare this stuff across time. I think the only people who would really know this properly would be biographers. Only they can really compare psychologies and intricacies at a rich level. 
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

________________________________
From: Kermit Roosevelt
To: David Bernstein
Cc: "Volokh, Eugene" ; conlawprof@lists.ucla.edu
Sent: Sunday, January 25, 2009 8:00:29 PM
Subject: Re: Stevens, Ginsburg, Breyer, and Souter as "moderates"?

I think "given the political climate of the times" is the whole point. 
If you look at where the positions now held by the left of the court 
on those issues were over the past forty or fifty years, they were 
generally centrist. That the Court has shifted right makes them 
liberal in a relative sense, but the people who call them moderate are 
probably trying to suggest that a slightly broader view might suggest 
otherwise.

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia PA 19104
215.746.8775

On Jan 25, 2009, at 7:53 PM, "David Bernstein" 
wrote:

> What would strike me as fair is to look at their votes on the hot-
> button
> issues of the day.  Off the top of my head:
>
> (1) Unwilling to acknowledge any limits whatsoever on Congress's 
> Commerce
> power
> (2) For a virtually unlimited right to terminate pregnancy
> (3) In favor of permitting government to consider race for "benign" 
> reasons
> in virtually any context, and, given Gratz, perhaps agree with the 
> position
> of the dissenters in Bakke
> (4) In favor of limiting executive power (it used to be the liberals 
> who
> wanted to expand executive power, and the conservatives who wanted 
> to limit
> it, but that's another story), including by referencing 
> international law
> and treaties, including treaty provisions explicitly rejected by the 
> Senate.
> (5) Willing to read First Amendment rights narrowly in circumstances 
> that
> favor liberal political outcomes (Dale, campaign finance reform, etc)
> (6) In favor of treating the lack of an antidiscrimination policy as 
> the
> equivalent of discrimination (Romer v. Evans dicta they joined)
> (7) In favor of expansive standing and expansive interpretation of 
> statutes
> in discrimination and environmental cases
> (8) Consistent "anti" votes in every federalism case
> (9) Consistent "anti" votes in property rights cases, notably Kelo
> (10) Voted against finding an individual right to bear arms
>
> And so on.  This may not amount to "liberal" if the standard is 
> Justice
> Brennan (or law professors), but if the standard is the political 
> climate of
> the times, and the current constitutional debates that the political 
> and
> ideological partisans on each side care about, it certainly doesn't 
> qualify
> as "moderate."
>
>
> -----Original Message-----
> From: conlawprof-bounces@lists.ucla.edu
> [mailto:conlawprof-bounces@lists.ucla.edu] On Behalf Of Kermit 
> Roosevelt
> Sent: Sunday, January 25, 2009 7:21 PM
> To: Volokh, Eugene
> Cc: conlawprof@lists.ucla.edu
> Subject: Re: Stevens, Ginsburg, Breyer, and Souter as "moderates"?
>
> I think the claim is that they're moderates with respect to their
> views about constitutional law, not politics. You might have a reason
> not to compare them to the set of people who study constitutional law,
> which seems the obvious choice, but even if that's so, I don't think
> the public is an appropriate substitute. You could try supreme court
> justices over the last fifty years, and then I think they do look
> moderate.
>
> Kermit Roosevelt
> Professor of Law
> University of Pennsylvania Law School
> 3400 Chestnut St.
> Philadelphia PA 19104
> 215.746.8775
>
> On Jan 25, 2009, at 5:06 PM, "Volokh, Eugene"
> wrote:
>
>>  I've often heard statements that Stevens, Ginsburg, Breyer, and
>> Souter are "moderates" rather than "liberals."  Now I agree that they
>> aren't Brennan, Marshall, or Douglas, and I'd probably call them
>> "moderate liberals."  But I don't quite see how they become out-and-
>> out
>> moderates, especially when it comes to Stevens and Ginsburg.
>>
>>  I take it that "moderate" shouldn't just be "moderate compared
>> to the median of the legal academy," given that the legal academy is
>> generally such a liberal group; it would presumably mean something
>> like
>> "moderate compared to the general population."  And if you look at 
>> the
>> general population, it seems to me that
>>  (1) there are several areas where Stevens and Ginsburg are to
>> the liberal side of the public at large ("liberal" being defined as
>> fitting the modern liberal movement, and not "liberal" in some
>> abstract
>> philosophical sense) -- the right to bear arms, religious displays in
>> public places, probably abortion rights (the median voter would, as
>> best
>> I can tell, endorse quite a few more abortion restrictions than
>> Stevens
>> would and likely than Ginsburg would), and as to Stevens apparently
>> the
>> death penalty --
>>  (2) there are some areas where Stevens and Ginsburg are probably
>> not far from the public at large,
>>  (3) there are some areas which are under the public's radar
>> screen, and
>>  (4) there are no areas where Stevens and Ginsburg are to the
>> conservative side of the public at large.
>>
>>  Am I mistaken, either on #1 or #4? And if I'm right, then isn't
>> it pretty clear that Stevens and Ginsburg, and to some extent Breyer
>> and
>> Souter, are basically moderate liberals, not moderates?
>>
>>  Eugene
>> _______________________________________________
>> To post, send message to Conlawprof@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed
>> as private.  Anyone can subscribe to the list and read messages that
>> are posted; people can read the Web archives; and list members can
>> (rightly or wrongly) forward the messages to others.
> _______________________________________________
> To post, send message to Conlawprof@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can 
> (rightly or
> wrongly) forward the messages to others.
>
>
>
_______________________________________________
To post, send message to Conlawprof@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

Although the two sets of predictors are quite similar and their overall difference is small, there does appear to be one interesting pattern: logit regression predicts liberal justices slightly better while ecological regression predicts conservative justices slightly better.

Click to read more ...

Hence, what aggregation does is it transforms poorly fitting cases in one model into perfectly fitting cases in the other. Stated another way, it transforms non-directional justices into optimally-biased justices.

Click to read more ...

one of the things that is undeniable is that in the ecological regression of civil liberties votes endorsed by numerous political science scholars, only 12.5% of the total votes cast in civil liberties are responsible for the 41% of the variance in the liberal index that newspaper reputation “explains.” Only 12.5%!!

Click to read more ...

(sent to lawcourts)
 
Hi Chad.

First, thanks so much for sharing this.

Could you tell us a little about the semantic assumptions in the naming of the scores? For example, if someone were to call them the "legal philosophy space scores," would they be wrong? Or, what if they called them something like the "relative casuistry differential" -- would that be off the mark? When you tell others that you have "common space ideology measured," you surely don't mean "conventional ideology," right? And there is, of course, no way for a judge to decide a case that doesn't result in having an "ideology score?" And, if we were to develop measures of this sort of thing for scholars when they make decisions as a group that require judgment -- even the grading of exams -- they, too, would have "common space ideology?"  

I think I know a little about these scores. I admit I haven't paid great attention to them, but I have paid slight to moderate. And as I remember perusing them a while back, I've always found it curious what political science means when it calls them "ideology scores" and why empirical researchers would adopt non-scientific vocabulary for work such as this. Why not actually call the scores by a scientifically jargonized name, as real science does when it studies something in the external world? You do agree, after all, that the only thing quantitative models actually observe in the external world are the indices themselves, not the things they say they are seeing (e.g., "ideology")?  It seems to me that, somewhere down the road, you all may want to develop a science for the creation of indeces like this that could result in a jargonized lexicon that spoke the language of science.

Because as long as you are out there saying you've got "ideology" empirically observed, you really are in danger of sounding like creation science. There is no place in the external world where "ideology" is; the word itself is a normative conclusion about the status of beliefs. It would be something similar to saying, "I've got their epistemology measured." Imagine someone saying, "I have their correctness measured."  "So and So has a correctness score of X." You could, of course, find things in the external world to measure that bear upon a debate about these things, but you really can't say you have the things measured, because they, themselves, are fundamentally accusations about about the normative content of beliefs.  

I really want to help political science become either real science, or -- better yet -- good philosophy.

Regards and thanks. 

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg

Ted, since you seem to know about this, can you tell me what these scores actually say about "ideology" and how you think they have anything to do with the discussion of who's more liberal and so forth? I'd really like to hear someone explain that to me. You know, for the life of me, I never understood why Oyez uses these scores as an indicator of "ideology," other than the fact that the owner of the site doesn't know anything about them. So maybe we can get all of that cleared up in here right now.

Ted, why do these scores map "justice ideology" and what in creation are you talking about when you say that? Who's left and right. Can you actually be left one day and center the next (doesn't that change the sense of talking)?

Because it seems to me that the scores are a kind of casuistry differential index of only dispositional choices. And that they are quite different from what other indicies say, and that, to declare them "ideology," one has to adopt a rather peculiar vernacular. (To say nothing, of course, that, when mapping "casuistry space," any set of choices one makes gets mapped. There is no way for the justice to not have "ideology"). So, what relevance does this have to the "who's the real liberal" pie-throwing ritual that one so often sees? More importantly, what relevance does it have to ANY discussion in jurisprudence?

Here's what I am saying to you,  Ted, and to the rest of the lawyers who know where the web site is. If Martin Quinn scores estimate anything, it would more be in the neighborhood of a set of a mathematicized choice-differential evidencing, perhaps, a sort of IDEATION, not ideology. You might say of these scores, "oh look at justice x's ideating pattern relative to y on the issue of every disposition (affirm/reverse)."  (Of course, even this is problematic because there is no measure of ideation, there is only a set of scores generated from a set of choices. You have to infer from the choices that a ideating path of some sort accompanied the choice).  

So now, tell us how this plugs into the prior discussion, because I can't see it.

Regards.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

(sent to lawcourts in response to a post about a problem with using certain "measures" for "judicial activism")
 
... which only gets to the tip of the iceberg about why anyone would use the measures over having an appropriate sense of biography and the decisions themselves. These things are fundamentally contextual. It would be like one who never watched a Jet game last year talking about Favre's quarterback rating. Newsflash: if you watched the season, you don't need the stats.  And always, those who rely upon the stats without witnessing the context are deficient in what they claim to know. But same is not true in reverse. You can always see the fallacy in stats in something you have yourself lived. And if someone knows the context and produces stats in a way that supportive of it, all you have then is a piece of mathematical art.

I wonder when it will begin to set in that terms like "ideology," "activism" "conservatism," etc., only provide a moral critique a person's casuistry?  When is it going to set in that it is a moral grammar? I wonder when it will set in that these terms do the same general sort of thing in language as saying "the decision is virtuous, honorable, has integrity" and so forth? Which justice had more honor? (I don't know, check the stats). 

These topics can only be properly beheld in an intellectual field that accepts ethics and philosophy as craft, and that relies upon biography for its information. Only if you recreate the psychology of the decision maker can you say anything about the "politics" -- which, after all, is nothing other than the drama of the person and his generation in history.

Somewhere -- maybe about 20 years down the road I'd say -- it will finally set in among lawyers and political scientists that this whole area is nothing but a form of art appreciation. It isn't science. It isn't positivism. And the answers are not in STATA.  It's an industry a lot like those NFL analysts. Who's going to win the game? "Well, this one is ranked 2nd in such-and-such, but this one is 80% in 3rd down conversion in the red zone after playing on Mondays." (Give me Dandy Don singing at any time of the week over that). 

I wonder why it hasn't set in yet that quantitative analysis is fundamentally an empirical technique developed for things humans can't see (and therefore need some guessing method). You know, does drug X cause side effects? What do the people think of an issue after the Court decides it? For this sort of thing, you need stats, which function as a kind of journalism. But you really can't use it for things like, "which one was more liberal," "who was more active."   This would be like asking who was more of risk taker -- Favre or Bradshaw? And so someone produces some stats. But if you REALLY wanted to know, you'd just look at the games. But even then, you would only be left with an answer in the nature of art appreciation because of the changed circumstances and contextual complexity . You are ALWAYS only ever going to be left with art appreciation.

(Sigh)
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

(sent to lawcourts)

... here's the problem. The term "activism" is a language game which shares only one thing in common: it has facile grammar and is largely deployed for rhetorical purposes by people not wanting to say very meaningful things about justice casuistry. You cannot repair these problems by counting things and throwing them in Stata. Neither good art critics or scientists would begin any work from the starting point of "who's the activist?"  

Another thing that is not understood here is that the term "activism" frequently says says something normative about "law," but does so silently. The term can specifically imply that a person is licentious or aggressive with justification. However, if you ever ask the person what is proper legal justification or what makes for "non-activist" legal justification, it amounts to something not defensible in philosophy of law. The trouble with quantitative political scientists and the lawyers who deploy this vocabulary, therefore,  is that they take are taking poor philosophic positions. And when they do this, they quite often don't realize it while wrongly believing that philosophy is either art or opinion. The political scientists would be even worse off if they put forth these views while believing their work was "science." You cannot make science out of a poor grammar.

It would be very helpful if people using these terms could do one small favor. When calling someone an activist, an attitude-driven judge, a policy judge, an outcome-focused judge -- would you please give examples of what judging would look like if this (a) wasn't so; and (b) why the counterfactual makes for better judging/ law. If we could have these criteria explicit, we would soon find no reason to accept the framework, let alone count anything for a good Stata piece.

Regards. 

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

[sent to conlaw prof re: whether quantitative measures for "liberalism" really compare whatever it is that "liberalism" refers to when talking about justices. Oh brother].  

... I doubt they actually have done that. What I bet they have done is invent something that they say does that, which is then passed to law professors as something that "the scientists did." The whole idea of "comparing liberalism" with an index -- especially across time -- is so fraught with pseudo science that it any conclusion you would draw about it would be limited only to the construct itself.

The mere fact that you can't TALK clearly about the subject in ordinary language is evidence that you really can't properly bring quantitative science to bear upon the subject. One wonders what would happen if they created an index showing a justice's integrity. Compare: "index shows justice X higher than Y on the integrity meter."

Concepts like integrity, ideology, character, or virtue are not like, say, "inflation" (which itself has computational issues). You really ought to let statistics be applied to natural commensurable and stochastic phenomena and stop trying to say "the political scientists have measured their liberalism"

They haven't and they can't.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

[original message from mark tushnet]

During a paper I prepared for the 2006 Midwest meeting, I discovered something interesting: Segal/Cover scores on a few occasions actually generate statistically-insignificant parameter estimates for specific years of voting.

Click to read more ...

(sent to Law Courts re: the problems with arguments that "attitudinal scholars" make about their quantitative models)

... just a few points on measurement error. (I had thought these ideas had finally left the discipline).

First, the only segment of the docket being talked about here are what these people call "civil liberties cases," which is roughly 1/2 of the Court's workload in the data set. When you look at this from 1948-2004, the breakdown of this HALF of the set is: criminal cases (40%); civil rights (30%), First Amendment (16%), Due Process (8%), Privacy (2%) , and Attorneys (2%). So, for simplicity, let's call this the "criminal-plus rights claimants."

When Jeff speaks of "measurement error," what he means is that the media-impression scores for any given justice are disappointing to him when looking at the overall tendency of a justice's craft to have favored criminal-plus rights claimants. Apparently, what he would like is for his media-impression workshops to be able to really nail the rate at which criminal-plus rights claimants win their cases.

There are several obvious problems here:

1. the stuff in the media editorials (that Jeff codes) are not confined to or centered around issues in criminal law and civil rights (70% of the docket concern). And when they are, it is usually just a discreet, hot-button thing. Hence, the content of the one measure has nothing to do with the issues justices actually end up considering.

2. Also, the coding philosophy used here is confused. It indulges the idea of political values existing as exemplar issues in American political psychology, stuffed into one-dimensional space. (Guns, butter, taxes, abortion, big-case controversies like firefighters, speeches about presidential power, affirmative action positions, etc.). Anything mentioned along these lines gets you "coded." I think Jeff even codes based upon whether the journalists uses the world "liberal" in the editorial. Let's call this the "stereotype picture."

The problem here is that when justices decide cases before them that involve criminal-plus rights claimants, the issues in the cases very rarely involve "stereotype politics." Many times, the issues are a real snooze and make only a technical point. Or its only a little extension here or a little take away there. And so, you have this disjuncture between the philosophy of "liberal" being conjured on the one hand (the stereotype) and the thing you want to call "liberal" on the other, but in good faith can't. (At least not without playing games with language).

3. What is curious about all of this is that the majority of justices for whom we have data do not have any real affinity for criminal-plus rights claimants one way or the other. Assuming most legal issues are tough, one would expect 40-60 to be the basic range. Of course, it wouldn't be during periods of innovation, where new rights paradigms emerge and then recede into an equilibrium. But even though we have this dynamic history in the data set, the majority of justices are really not that directional.

And it is this that causes the failure in Jeff's model, not "measurement error." Indeed, the only errors truly present in these models are specification errors (see points 1 and 2 above), errors with ecological inference (which I'll get to in a moment), and language games.

Really, if you think about it , Jeff's measures are lucky. He's got more measurement luck in the model than error. He's lucky that he has those 8 or so justices with high propensity to decide issues favoring criminal-plus rights claimants -- and those crazy scores of perfect liberal and conservatism. Without those 100% or 0% scores coming out of those media prejudice workshops that he recreates -- scores that attach themselves to justices with 80-20 propensities for criminal-plus cases -- there would be no model here at all.

In fact, just think about it. Use half the docket. Don't use all the justices. Get lucky on the rights revolution thing. Tell everyone you do better on the first 3 years of service (another cut). Then just cry measurement error for all the rest.

I think its worth noting that Segal-Cover scores are statistically insignificant and otherwise extremely paltry for the entire docket (every decision for which researchers have data). They are also statistically insignificant for discreet years of voting. I think one was in the early 1990s (I wrote a paper mentioning it). Also, if you take away those justices who are around the 80-20 mark and who are no longer on the Court -- in essence, replicating today's Court -- you don't have anything to speak of.

It isn't measurement error; it is that the whole idea is faulty.
Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

(sent to LawCourts in reply to an inquiry about how "liberal" Sotomayor is expected to be based upon newspaper-confirmation scores. I am a critic of how this whole enterprise works)

Mark:

Whatever may be anyone's private views, the prediction announced here is a function of a model Jeff uses. The logic of the model doesn't work that way you suggest . It doesn't offer predictions in the sense of prognostication. The output is solely a function of the input and the logic of the mathematical specification.

None of the variables account for the points you raise. The dependent variable coded by graduate students is rather "blind." If the decision favors a criminal defendant in a criminal case, for example, it gets thrown in the "liberal bin." If not, it gets the other one. The model doesn't consider what the substantive issue was, whether it shifted over time, whether it was mundane, whether it was big or small, whether the republican party actually supported it, whether anyone even cared, whether it instrumentally created "conservative doctrine" while disposing in favor of the defendant, and so forth. In short, there is no assessment of qualitative factors.

Furthermore, because about half of the docket is excluded from the prediction -- as are various justices from before the ascendancy of Earl Warren -- the prediction is apparently limited to civil liberties cases, and assumes (as all of these sorts of models do) that the past controls the future. (The past meaning only Warren Court forward).

A couple of important points to keep in mind. What drives these models statistically is the presence of justices who had rather extreme tendencies to have decided for or against civil liberties claimants during the Warren and anti-Warren periods of the Court. And more specifically, to have decided criminal cases, which comprise the bulk of the cases that are said to be "civil liberties." (You really could call it the criminal cases and remaining civil liberties docket if you wanted to). Hence, what drives the model are justices like Rehnquist who decided in favor of criminal-plus claimants about 20% of the time (roughly) and the big-time Warren justices, some of whom hit the 80% mark.

Today's justices are more around the 33-65 range -- excluding, I think, Thomas, who is the only one still in the 20s the last time I checked (a few years ago). [I quit doing this work for obvious reasons]. I think Scalia is around 29 or something. (Even he may have made it to 30, I don't know). Jeff's model indeed assumes that the old guard is still there when the prediction is made, because all that the model sees are a bunch of numbers in Stata.

Even so, you will note that the model only produces a 62. Why? Because most justices for which we have data are not that directional when it comes to deciding for or against the claimants. The non-directional justices clog the model.

What is interesting about this is that if Sotomayor does decide whatever civil liberties cases she does -- even if they are not as heavy in criminal cases or anything like the ones from the 60s and 70s -- it makes no real difference. If she comes out a wild 78 or 80 (like the good old days), you can say "the newspaper scores were right about her." But if she winds up at 60, you can say "the model was right." And if she is anything near this side of 50, the industry continues. Next time, the model simply shaves the prediction for someone like her to a 60 or 59 or something (shaving for the mistake). So long as Rehnquist and the Warren people are in the Stata machine, and so long as the docket is shaved, it can't lose. (Plus, take away the old justices).

So in conclusion, there is in fact nothing to the prediction that considers anything you raised.

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

(sent to LawCourts)

someone wrote: "Yes, according to my editorial scores, Sotomayor is the most liberal justice confirmed since Marshall, but remember, there have only been two Democrats confirmed since then, Ginsburg and Breyer."

... let's be clear. According to the "editorial sources," she is thought to have only the score value generated by that procedure. That's all the measure says. Scientifically, the scores do not measure her "ideology" (whatever that means).

And with respect to the announced prediction of what political science calls her "votes," we probably should note a few disclaimers:

1. If you include the whole docket and all of the justices for which there is data, the predictive relationship is extremely paltry.

2. Even if you cherry-pick the docket and the justices, whatever results you get are fundamentally driven by the few justices with extreme propensity for direction under the "liberal index" -- most of whom are no longer there. And even this predicts that Sotomayor will be closer to neutrality (50%) than her alleged reputation (78). And of course, you don't need any newspaper scores to guess that Sotomayor will be in the 60s -- the safe money already has her around 65. (Flipping coins puts her at 50. The PRE on honest logit models was never impressive with these scores).

3. One of the biggest problems these models have is their misleading conclusions. The dependent variable (the so-called "liberal index") is quite peculiar because it doesn't have any empirical or substantive relationship to true "liberal voting." It's just called that by people pretending to do the "science." After all, the great majority of the coding doesn't concern exemplar issues that make up the belief-spectrum in the political system. And it doesn't concern issues that appear in campaigns or the culture war and so forth. In fact, one has to have a great deal of ideology himself or herself in order to see or call this measure "liberal voting." You have to sort of think like a creation scientist would when they study the world. In fact, one might think of political scientists who try to catch "ideology" this way as being sort of "ideology-creation scientists."

When scientists study the external world, they develop rigid designators for the things in the world they have "pinned down." I have always found it extremely curious that in ideology-centered, quantitative political science, no one attempts to talk precisely and honestly about the empirical things they actually observe. If they would, they would find that Sotomayor has a 78 on what appears to be some sort of exemplar-conceived political-issue barometer by a small media/journalist workgroup acting within a discreet time in American politics. And that this thing, when combined with other such prejudice workshops, has some sort of relationship to what we might call a rather badly-conceived yes-no claimant-priority arrangement. (And only when dockets and justices are constructed).

But that's not the way it comes out. It's always comes out as "the ideology going in was measured by the scientists," and "the scientists confirmed that ideology was coming out on the other side." I mean, it reminds me of one who would say, "first they were baptized, and then they went to heaven."

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

(sent to Law-courts)

Jeff Segal wrote in response to Paul's Finkelman's mail, "The predictive value is this: for the justices appointed since Warren, the editorial scores correlate at about .8 with the percentage of times the justices vote liberally."
--------------

First, for any given justice, flipping coins will predict that their score will be 50. So the question becomes how well these media-impression workshops that Jeff recreates improves upon this efficacy. This is called Proportional Reduction in Error (PRE). The PRE on the logit models do show improvement upon blind guessing at 50, but several things must be noted:

1. No one guesses in the blind. Whether these scores are worth their labor is a function of what other perception workshops would tell us. I bet that polling empirical scholars would be better than constructing something from editorials. No one who watches the scores would expect anything more than a 60-ish number anyway, especially when you consider what that number really is.

2. The scores only improve blind guessing (at 50) by about 24%. But if you take away the extremely- directional justices -- the ones no longer on the Court -- the number is 9%. (Subtracted: Rehnquist, Brennan, Marshall, Fortas, Douglas and Goldberg).

3. If you consider the whole docket, of course, all bets are off. You have a statistically-insignificant model from 1948-2004. (about 60,000 so-called "votes"). Model is logit. The PRE is terrible anyway.

4. A couple additional things:

People need to ask themselves to what extent the model really indulges metaphysics. Think about it. As a scientist, you know that the media-perception scores are only a form of prognostication. That's what Jeff has done. He's turned their content into a prediction for either a justice's state of mind or his or her work consequences for criminal-plus claimants.

But if journalists really knew this, the story would be one of clairvoyance or perhaps conspiracy (like insider trading). There is nothing in those editorials different from what, say, informed list members might believe about these things. If Jimmy the Greek predicted numbers well for six weeks in a row, would you go off and say that science was the cause, or that metaphysics (or corruption) was? I think luck would be the real cause. My point is there is nothing special about journalists feelings in this respect. Many of us could do better than a coin flip. There is no need to make either metaphysics or science out of this.

One last point. If Jeff's measures have any significance to anything, it probably is similar to the correlation that young children have in picking presidential elections. That's what it reminds me of. But there, what we say is that this is "carrier evidence." That it shows image perception at some base level of psychology. Here the mistake is not to ask the same question: why is it that a small media-perception work group constructed during the confirmation ritual has any relationship whatsoever to a yes-no tally of claimants winning in criminal-plus cases? The answer really only lies in this:

1. The 6 to 8 extreme justices that drive the results
2. It's an easy game. Pick from 35 to 45 for republicans; 55 to 65 for Democrats - and you'll do fine.

And, if you can find some sort of naturally-occurring process that generates numbers like this -- like media perceptions of a president's pick -- now you have something really neat. It makes the whole thing look automated.

Regards and thanks.

(P.S. -- Paul, see my paper if you want a technical overview of Jeff's model. It is on SSRN, below my signature)

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

 Hi Dr. Chen.

I just read your syllabus with interest. I hope you won't mind if I make a suggestion. One of the things that I have found helpful is not to teach Supreme Court decision making through the strictures of the social club. That is, I avoid like the plague saying that there are 3 or 4 theories to decision making (strategic, "legal" and so forth). This statement is illustrative of the problem that political science has had with this subject for a great deal of time now (no sign of it quitting either). Rather, what I say is only that social science as a GROUP has this perspective. It isn't what defines the issue; it's just their contribution. Outside of social science, other people who participate in the activity (legal culture) or who think abstractly about it (philosophy) have had different insights that don't fit well into the political science framework.

Really the best way to teach this issue is to transcend all the contexts you can. Be home to no one. What I do is show a how the issue of supreme judging was (a) birthed  and (b) came to develop. In essence, I teach the history of philosophy of law, scooping up the perspective of lawyers and social scientists along the way.  This way, I don't give the fiction that what is called "empirical analysis" by a particular network is the centerpoint of the discussion (which it surely is not).

But anyway, I'm not criticizing. I just printed the syllabus because I thought it was pretty good. You might want to look at my course to get some ideas about how to further develop a multi-disciplinary (or autonomous) take on the creation and development of supreme judging over time. The lectures are here:  http://ludwig.squarespace.com/supremearch/  (You can access them better with the menus at seanwilson.org. go to Web Lectures --> supt ct --> etc). The powerpoint slides are here: http://seanwilson.org/powerpoint/supct/    Those slides took a great deal of pain to make. Perhaps some of them will be useful to you.

Best wishes and regards.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860