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« On Why "Judicial Activism" Is an Empty Nonsense | Main | Thoughts on Neutrality and Bias in Politics »

On Statistical Analytsis for 'Judicial Activism'

(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.


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