My research interest has changed. When I first obtained my doctorate, I had been socialized into a desire to study what in essence were issues in philosophy of law through the lens of empirical judicial behaviorism. At the time, it sounded like a good intellectual program. I have since become disenchanted with what political scientists call "quantitative judicial politics." To see a frank indication of why I became disenchanted with this research program, see the preface to my most recent SSRN paper (abstract and link listed below). When inspecting my works below, therefore, it is important to understand that my older papers are now sort of "Old Testament" to my current way of thinking.

On a more mundane level, I am also interested in publishing a Supreme Court decision making textbook that will integrate legal, philosophical and social-science perspectives. I'd like to say that work has started on that, but it hasn't, save a few scraps of things here and there. I'm also working right now on an article that explains my new pedogogical approaches in the classroom. It offers a new theory for how PowerPoint slides should be used and demonstrates how slide shows can be presented on the web, with audio included, without too much pain. (See the "web lectures" page in the menu bar above).
_______________________________________________________________________

Here is the abstract from my Chicago paper (DOWNLOAD):
         Quantitative scholars of the Court purport to be engaged in empirical science. Yet, the great majority of works regarded as elite within the political science social network are deficient in one fundamentally critical way: their works do not generate scientific vocabulary. The key feature of science is that it creates a reductionist vocabulary that rigidly designates some phenomenon in the external world (e.g., water is H2O). Words like politics and ideology are not scientific terms. They do not rigidly designate. This causes or contributes to serious disciplinary problems. If scholars want to scientize their field, they have to begin jargonizing their phenomena of interest in the external world.
         Of particular concern are the works in judicial politics that purport to study the influence of ideology on judicial decision making. Scholarship in this area routinely suffers from the following flaws: (1) the inability of the scholarly community to agree about what phenomenon in the external world its empirical works actually observe; (2) the adoption of perspective science that works not unlike certain forms of creation science; (3) the use of adversarial or group-driven author citation in journal articles; (4) the frequent deployment of reification; and (5) the practice of studying something in the external world with techniques that do not allow counterfactuals to exist.
         Moreover, any scholar who constructs a quantitative model with ideology as an independent variable is engaging in a kind of nonsense or rhetoric. This is because quantitative methods cannot be used to demonstrate that a person's beliefs or actions are caused by ideology. This is because when the concept of ideology is deployed as a causal assertion, its grammar offers only normative criticism. Science can no more directly observe ideology in this sense of talking than it can concepts like integrity or virtue. The best that ideology scholars can ever hope for, therefore, is good normative criticism. Although behaviorism can contribute to a normative discussion, the simple fact is that quantitative models simply cannot ever directly estimate the effect that ideology has on beliefs or behavior, because this is fundamentally a normative conclusion.

_______________________________________________________________________

A Fresh Approach to the Politics of Law: How Constitutional Words Form a Cognitive Structure That Influences the Judicial Mind; an Examination of Key Areas of Civil Liberties Voting.

Abstract: This paper has two purposes: (1) to create a new theory of meaning in language philosophy; and (2) to apply the theory to Supreme Court decision making in the area of selected civil liberties cases. Each part is discussed separately. This paper is novel for several reasons. First, it breaks new ground in analyzing the role that “law” plays on the U.S. Supreme Court. Prior research in political science frequently confines the operation of “law” to “framer intent” or “stare decisis.” This work, however, theorizes “law” to be broader concept: the effect that language has on the brain (“cognitive linguistics”). Language is theorized to have fluctuating clarity – i.e., to be relatively clear in some instances and relatively unclear in others (depending upon its wording). This phenomenon is called “rigidity.” Building upon the work of Steven Pinker, Ludwig Wittgenstein and Saul Kripke, this paper provides ground-breaking criteria for placing legal-rights claims in an ordinal level of rank, based upon how clearly the Constitution can be said to designate the claims. More than 151 cases comprising 165 issues that fit the rigidity criteria are selected for analysis. A series of logistic regressions estimated with maximum likelihood are performed to answer two questions: (1) does the effect that ideology has upon the Court fluctuate or remain constant when legal rights claims fluctuate in clarity; and (2) which justices are the “textualists,” and to what extent? The paper finds that political ideology is a relatively poor predictor of justices’ votes when law is most rigid, but is a robust predictor of votes when law is most vague or indeterminate. Additionally, the paper finds something quite revealing: only moderate and conservative justices are influenced by language rigidity (in Constitutional cases). This suggests that the decision to use a language construct as a decision constituence is a choice influenced by political values, but that, paradoxically, the use of a constituence itself operates to make the expression of values sub-optimal. That is, values may decide the orthodoxy, but the orthodoxy then makes the policy choice less optimal than otherwise. This view is consistent with how proponents of institutionalism or of “structuralism” view the Court; it is not consistent with either attitudinalism or rational-choice theory, where the latter means only pursuing self-interest in the long run. In short, both law and values structure judicial choice, meaning that values become compromised through a process other than games.

• Download Word version;
• Download Tables;
• Download Audio PowerPoint. 

_______________________________________________________________________

The Attitudinal Model, Political Science, Ecological Fallacy and Exaggeration

Abstract: Empirical scholars of the United States Supreme Court, Jeffrey Segal and Harold Spaeth, have long contended that Supreme Court decisions are based primarily upon the ideological beliefs of the justices, and that ideology alone accounts for the bulk of choices made in civil liberties cases. However, this conclusion results from the misinterpretation of an ecological regression model. The researchers never modeled the votes of the justices; they only analyzed an index of grouped aggregates. When announcing conclusions, however, scholars equated variation in a voting index with the frequency distribution of binary observations that comprised it. As a result, model conclusions were exaggerated and disciplinary misinformation created. This work exposes and corrects this problem by re-estimating the relationship between justice ideology and votes with a multilevel approach that uses a logistic regression to directly examine the dependent variable prior to its manipulation into grouped data. The findings demonstrate that ideology models lose about two-thirds of the level of explanation researchers previously proclaimed. This new understanding supports a more limited critique of the role that ideology plays on the Court – one that has a long history in political science that predates the more value-dominant “attitudinal” framework. 

• Working Paper: SSRN 

_______________________________________________________________________

Political Ideology as a Fluctuating Rather Than Defining Force Upon the Court: An Analysis of Discreet Areas of Civil Liberties Voting

Abstract: Scholars such as Segal and Spaeth contend that U.S. Supreme Court decisions are based primarily upon the ideological beliefs of the justices. However, recent scholarship demonstrates that this conclusion is exaggerated – measures of political ideology do not explain voting behavior as well as previously thought. This paper adds an important contribution to this finding: the role that ideology plays upon the Court is not stable. Rather, it fluctuates significantly across distinct issues of law. This is a significant finding because it demonstrates that judicial preference for resolving salient, political conflict is not governed by a stable ideological or attitudinal framework. To the contrary, the framework used by justices to resolve political conflict is significantly driven by ideology only in some areas of civil liberties cases, not in others. Stated another way, scholars should conceive of political ideology as a fluctuating rather than defining force upon the Court – it is sometimes high, sometimes low. Future works should further identify areas of significant fluctuation and should attempt to explain what causes value voting to dominate some areas, but not others.

• Conference paper: download Word version.

_______________________________________________________________________

The Effect of Ideology on Supreme Court Judging Over Time: An Influence on the Decline?

Abstract: Empirical scholars of the United States Supreme Court, Jeffrey Segal and Harold Spaeth have long contended that Supreme Court decisions are based primarily upon the ideological beliefs of the justices, and that ideology alone accounts for the bulk of choices justices make in civil liberties cases. However, recent scholarship demonstrates that this conclusion was exaggerated. But although ideology is not as dominant of a force upon the Court as attitudinal modelers previously thought, it is still an important variable in the judging equation. It most certainly is a statistical predictor. This paper adds two important contributions to the new findings: (1) the role that ideology plays upon the Court is not stable across time and appears to be trending downward; and (2) Segal/Cover scores are a relatively poor explanation of voting behavior and at times are a complete failure. Scholars are encouraged not only to reconsider the way that they conceptualize the force of ideology in the judicial mind, but to also whether Segal/Cover scores are an appropriate independent variable in ideology models.

• Conference paper: download Word version.

_______________________________________________________________________

The Failure of Instrumentalism: An Analysis of Votes by Conservative Justices on the U.S. Supreme Court in the Area of Core Political Speech.

Abstract: Scholars such as Segal and Spaeth contend that U.S. Supreme Court decisions are based primarily upon the ideological beliefs of the justices. The reason for this, they say, is that legal text is inherently indeterminate and that justices merely rationalize the legal outcomes they desire (referred to as “motivated reasoning.”) “Law,” therefore, does not constrain a justice when voting on the merits.  In this work, I show that conservative justices do, in fact, defect significantly from political ideology in First Amendment cases involving “core” political speech. For this cherished American right, political attitudes as they are measured by empirical researchers do not dominate voting behavior. The reason for this, I contend, is that the a priori foundation of the attitudinal model is suspect. That is, there are occasions when justices regard legal text as sufficiently clear and when “principle” is more important than policy preference. When this happens, justices shun strictly ideological voting.  Future works should identify other meaningful areas of Supreme Court decision making that are poorly explained by an ideological model.

• (Conference paper: download Word version).

______________________________________________________________________