Political Science and "Measuring Liberalism"

[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.

What the Segal/Spaeth "Research" Showed

[sent to lawcourts re: what the Segal/Spaeth research proved]
 
Hi Raymond.

The "research" that you speak of showed no such thing. That is only social club lore. If you put something in a headline long enough, people just repeat it.

Really, as to what can properly be said about justices and ideology by political scientists, it is only that an opinion may CONSTITUTE ideology  -- not whether a brain follows it. Brains have no real choice, really, but to follow what they do. No political scientist, therefore, has come close to proving anything remarkable about jurisprudence or the ethical reality of supreme judging. Among the informed, the old debates live on as strong as before, the lead ideas not being quantitatively determined. We aren't a real science anyway; one should not expect this to be a data-driven enterprise. When people want to know what affects cancer, for example, that is predominately data driven. We wait for the latest news. But it is not so for the idea of whether justices use what you call "ideology." There is no true science here; only a language game and, I think, something fundamentally aesthetic.   

If there were to be movements in this "field," therefore, they would not come from empiricists. They would come from philosophy of bias. That's the real problem. That subject has never really materialized.

The Illogic of Median Justices?

[sent to law and courts regarding, cough, "median justices."] 
 

... one can only be a "median justice" if what you are counting is commensurable. Let's do it this way: assume a hypothetical Court with 9 members. The appeal is from a trial court sentence of 5 years for a first time marijuana user. In this hypothetical world, 5 justices vote to overturn the conviction, 4 vote not to.  So the good guys win. Let's say the rationalizations are as follows:

Justice-A: 5 years is too much for a first time marijuana user ("cruel punishment")
Justice-B: 4 years is too much for a first time marijuana user ("cruel punishment")
Justice-C: 3 years is too much for a first time marijuana user ("cruel punishment")
Justice-D: 2 years is too much for a first time marijuana user ("cruel punishment")
Justice-E: the jury was improperly instructed ("jury violation")

Justices-F: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")    
Justice-G: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")
Justice-H: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")
Justice-I: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")

One assumes that in this situation, there should be no precedent whatsoever, and that the rule should apply only to the parties. I had always thought this was the case and that Marks was not saying otherwise. I don't see how you can have a rule of law without five heads on board for something other than the outcome. 

The only people who are proximate to each other in this example are A-D. That is the only group for which you can apply median logic. The others are theoretically proximate to views only concerning the issue that they are expressing. (F through I may or may not agree with A through D's points). Of course, on the issue of whether the higher principle should apply here, I suppose F - I are proximate to A-D. But one could construct another hypothetical where they are not.

Proximity logic only works if you have a natural issue spectrum. If you have either/or legal rules and people applying different issues to the same controversy, you can throw out unidimentional logic. I have never understood, frankly, the logic of "counting" these things anyway.  
  
Regards.

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

The Geyh Panel and The Judicial Politics Social Club

[email sent to law and courts re: a panel that is being organized by Charles G. Geyh] 

Dr. Geyh:

It may come as some surprise to you, but much of what your conference is really addressing is this: why political scientists ignored jurisprudence and philosophy of science when engaging in their work product, and why social networks continue to give certain scholars preference over others when pretending to "pronounce knowledge." One of the key problems with the premise of your panel is its suggestion that "empirical science" has the primary role of leading this normative debate. The advertisement for the panel makes it sound as if scholars have discovered new information or something -- or that quantitative works in this field are actually a true science. In fact, all that has happened recently is that the theoretical framework of the scholars producing their mathematical art has become more diverse. It is purely mythical to say that what political science thinks about judging is driven by data or evidence in the same way that, say, physics or geology is. The most refined theoretical constructs about this issue are not derived from data; they are derived from studious contemplation, from which data is only a "story." What I am saying to you  is that all that political science really is in this respect is a kind of journalism. The people who do these "studies" are no different than, say, reporters on FOX versus CNN.  So I would think that a true look at your subject might want to consider ideas about what "the club" does from one who is proudly not really a member of this church.

It seems to me that a paper at your conference addressing one (or perhaps both) of these topics is badly needed:

1. Why current quantitative scholarship that purports to address the question of whether "law" or "ideology" -- or even a mixture of the two -- governs the judicial mind is not really "science" at all, and cannot properly answer what in essence is a language game. And what these studies would actually look like if they tried to be real science instead of art.

2.  How a structuralist rather than "attitudinal" framework provides the most promising theoretical framework for what appellate judges do, and relatedly: (a) what "structuralism" is in philosophy of law; (b) how it has its primary origin from the basic ideas of the greatest legal philosopher of our century, Ronald Dworkin; and (c) how a structuralist account of judging could make sense of "poor" versus "good" judging (something which leads into an analysis of casuistry). 

I wonder, professor Geyh, how many of your panelists actually know what casuistry is? For about 18 years now, all but a very few political scientists thought the word meant "attitudes."  

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

________________________________
From: "Geyh, Charles Gardner"
To: LAWCOURT-L@tulane.edu
Sent: Friday, November 21, 2008 3:11:13 PM
Subject: Invitation to attend an interdisciplinary conference: "What's law got to do with it"?

 
Good afternoon, folks:
 
I'm hosting a conference on March 27-28, 2009, here in Bloomington , under the working title: "What's law got to do with it?."  The conference will explore the interplay between law and other influences on judicial decision-making, and the implications of that interplay for judicial selection and public confidence in the courts.  It struck me that now is a useful time to step back and take a look at the recent surge of empirical scholarship that has moved us away from dichotomous arguments pitting law against attitude toward a more nuanced and eclectic way of looking at what judges do.  In so doing, my goals are to assess: (a) what we know and still don't know, (b) what (if anything) this research might tell us about how judges should be selected and regulated, and (c) whether the public is likely to care.  Papers presented at the conference will later be published as chapters in an edited volume, and I'm pleased to report that the project
is being partially funded by a grant from the Joyce Foundation.  
 
As you will see from the attached documents, participants include names familiar to the list: Larry Baum, Eileen Braman, Steve Burbank, Keith Bybee, Frank Cross (writing but not attending), Barry Friedman, Mike Gerhardt, Jim Gibson, Melinda Gann Hall, Stefanie Lindquist, Andrew Martin, Mitch Pickerill, David Pozen (writing but not attending), Matt Streb, Ted Ruger, and Jeff Segal.  In addition, the conference will include a panel of state and federal judges, who will be offering their reactions to the presentations of the academic participants.
 
I've attached two documents.  The first is a description of the conference and its panels; the second is a compilation of the abstracts submitted by participants.
 
List members who would like to attend the conference are welcome (nay, eagerly encouraged) to do so without charge, but we are not in a position to cover travel expenses.  I would ask only that you let me know if you'd like to come and on which days, so that I can maintain an accurate body count.  
 
Charlie

Charles G. Geyh
John F. Kimberling Professor of Law
Indiana University School of Law
211 S. Indiana Avenue
Bloomington, IN 47405
(812) 855-3210
cgeyh@indiana.edu

"Magazine Knowledge"

... so much of what is printed in the literature and texts of what is called "social science" is simply "magazine knowledge."