The new legal realism

University of Chicago Law Review

Volumn 75, Issue 2, 2008, Pages 831-852

  Miles, Thomas J ^a   Sunstein, Cass R ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 49749096004     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (115)

1. Karl N. Llewellyn, Some Realism about Realism-Responding to Dean Pound, 44 Harv L Rev 1222,1243-44 (1931).
2. Id at 1244.
3. Id.
4. We are hardly the only people to use this term. As best we can determine, the term "New Legal Realism" first appears in Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw U L Rev 251 (1997). Cross's understanding of the New Legal Realism is close to ours. A great deal of other work, some of it much broader, has also claimed that mantle.
5. See note 16.
6. For a helpful overview with varied work, see New Legal Realism, http://www.newlegalrealism.org (visited Apr 16, 2008).
7. See generally Peter L. Strauss, Overseers or "The Deciders"-The Courts in Administrative Law, 75 U Chi L Rev 815 (2008).
8. See Brian Leiter, American Legal Realism, in Martin P. Golding and William A. Edmundson, eds, The Blackwell Guide to the Philosophy of Law and Legal Theory 50, 51-52 (Blackwell 2005).
9. Llewellyn, 44 Harv L Rev at 1239 (cited in note 1). In the context of statutory interpretation, a famous reflection of this view is Llewellyn's attempt to show that the canons of construction offset each other, producing contradiction and indeterminacy.
10. See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand L Rev 395, 401-06 (1950) (characterizing each canon of construction as a "thrust" that can be "parried" by an opposing canon of construction).
11. Llewellyn, 44 Harv L Rev at 1242 (cited in note 1). Llewellyn was not, however, the realist who most emphasized the personality of the judge;
12. Jerome Frank probably deserves that characterization. We bracket the complexities here.
13. For valuable discussion, see generally Leiter, American Legal Realism (cited in note 6).
14. Llewellyn, 44 Harv L Rev at 1243 (cited in note 1).
15. We say "partly" because some conceptual and normative analysis is necessary to establish what, exactly, will be tested, and how to evaluate what is found.
16. See, for example, Lee Epstein and Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments 117-41 (Oxford 2005) (analyzing judicial decisions since 1953 to conclude that the ideological association between presidents and their appointees' voting records is stronger with respect to Supreme Court justices than courts of appeals judges);
17. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 2 (Cambridge 2002) (arguing that American history is replete with "egregious" examples of partisan judicial policymaking).
18. See Howard Gillman, The New Institutionalism, Part I: More and Less than Strategy: Some Advantages to Interpretive Institutionalism in the Analysis of Judicial Politics, Am Polit Sci Assn L & Cts Section Newsletter 6,6 (Winter 1996-1997) (describing "the reign of the attitudinal model").
19. See Barry Friedman, Taking Law Seriously, 4 Perspectives on Polit 261, 261 (2006) (arguing that political science literature on judicial behavior "has not received nearly the attention it deserves" because it has ignored normative implications, overlooked the actual operation of legal institutions and actors, and failed to acknowledge the limitations of its data).
20. The most revealing developments here include the emergence of a new journal devoted solely to empirical studies, with the (unsurprising but descriptive) name, Journal of Empirical Legal Studies, and a new professional organization, The Society for Empirical Legal Studies. The causes of the renewed interest in empirical studies among law schools are intriguing and well worth sustained attention. We speculate that important factors in this change include the decline in the costs of computing and data gathering, the increasing presence on law faculties of people with postgraduate training in both law and social sciences, and the prevailing sense in certain interdisciplinary fields, particularly economic analysis of law, that empirical work rather than abstract theory now presents the greatest opportunities for contribution. These changes have likely mitigated or even eliminated some of the professional disadvantages of conducting empirical research.
21. See Peter H. Schuck, Why Don't Law Professors Do More Empirical Research?, 39 J Legal Educ 323, 331-33 (1989) (listing reasons why empirical research runs counter to careerist objectives of legal academics, particularly untenured ones).
22. See generally, for example, Max M. Schanzenbach and Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U Chi L Rev 715 (2008) (concluding that the political ideology of the sentencing judge matters in federal criminal sentencing);
23. Frank B. Cross, Decision Making in the U.S. Courts of Appeals (Stanford 2007) (analyzing decisions rendered by the federal appellate courts under a variety of conditions);
24. Christina L. Boyd, Lee Epstein, and Andrew D. Martin, Untangling the Causal Effect of Sex on Judging (Second Annual Conference on Empirical Legal Studies, 2007) (analyzing sex discrimination suits to find significant sex-based effects in judicial decisionmaking);
25. Jennifer L. Peresie, Note, Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts, 114 Yale L J 1759 (2005) (studying cases from 1999-2001 to conclude that judges' gender affected outcomes in sexual harassment and sex discrimination cases);
26. Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St L J 491 (2004) (demonstrating that in religious freedom cases, the variables most saliently affecting outcomes were the religious beliefs of judges, claimants, and communities);
27. James J. Brudney, Sara Schiavoni, and Deborah J. Merritt, Judicial Hostility toward Labor Unions? Applying the Social Background Model to a Celebrated Concern, 60 Ohio St L J 1675 (1999) (analyzing appellate decisions reviewing NLRB decisions and concluding that a variety of demographic, professional, and educational characteristics impacted these decisions);
28. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va L Rev 1717, 1727 (1997) (using environmental decisions as a data set in analyzing how judges' ideology affects decisionmaking). The prefatory "for example" should be taken seriously; in the limited space of this reply, we do not attempt a comprehensive review of the relevant literatures. Apologies to the many whom we have omitted; our list is merely illustrative, and we have not included many valuable contributions.
29. We emphasize that others have used the phrase New Legal Realism to describe a broader set of interdisciplinary inquiries not limited to judicial decisionmaking.
30. See, for example, the illuminating discussions in Stewart Macaulay, The New versus the Old Legal Realism: "Things Ain't What They Used to Be," 2005 Wis L Rev 365,385-86 (describing the New Legal Realism as involving "the law in action,... the gap between the law in the books and the actual practices of legal officials and the public in cases of disputes");
31. Howard Erlanger, et al, Is It Time for a New Legal Realism?, 2005 Wis L Rev 335, 337 ("[N]ew legal realist scholars bring together legal theory and empirical research to build a stronger foundation for understanding law and formulating legal policy."). It would certainly be possible to understand the form of realism we discuss here as a subpart of a broader conception of the New Legal Realism.
32. In contrast, still others label recent studies of judicial behavior as a part of "the new legal empiricism." See, for example, Michael Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism, 2002 U Ill L Rev 819, 822 (noting the "recent reemergence of legal empiricism, or what Professor James Lindgren has labeled 'the new empiricism'").
33. Some researchers are also investigating judges in state courts.
34. See, for example, Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary 14 (The University of Chicago Law & Economics Olin Working Paper No 357, Aug 2007) (analyzing the decisions of the highest court in each state for a three-year span in order to measure the "productivity, citation numbers, and independence" of appointed and elected judges). Much more remains to be done on this count; state courts are a fertile place for study, and little has been done to date.
35. But see Heise, 2002 U III L Rev at 833-36 & n 73 (cited in note 16) (describing early attempts to examine the personality of the judge from a psychological perspective).
36. Within the New Legal Realism, this is the tendency in, for example, Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 Cal L Rev 1457,1514 (2003) (concluding that legal precedent plays a larger role in judicial decisionmaking than do judges' political ideologies, their desire to strategically limit external reactions to their decisions, or the self-interested behavior of the litigants).
37. Within the New Legal Realism, this is the tendency in, for example, Revesz, 83 Va L Rev at 1766-67 (cited in note 15) (construing data to argue that judges' ideological views will affect their decisions unless they are sufficiently tempered by a strategic motivation to avoid higher court review). Revesz, by the way, played a highly significant role in spurring the New Legal Realism.
38. See, for example, Llewellyn, 44 Harv L Rev at 1224 (cited in note 1) (describing how legal realism attempts to expose the role of psychology in judicial action);
39. Max Radin, Statutory Interpretation, 43 Harv L Rev 863, 885 (1930) (arguing that non-value-based methods of interpretation such as legislative history, purpose, and canons of construction cannot sufficiently explain statutory interpretation by courts). It would be a mistake, however, to suggest that realists as a whole believed that the values or commitments of particular judges explained outcomes. For a superb discussion, see generally Leiter, American Legal Realism (cited in note 6).
40. This issue is explored in many places.
41. See generally, for example, William Landes and Richard A. Posner, Judicial Behavior: A Statistical Study (unpublished manuscript, 2007) (discussing whether a judge's political voting behavior changes over her term of office and whether it depends on the ideological makeup of other judges on the court);
42. Thomas J. Miles and Cass R. Sunstein, Do Judges Makes Regulatory Policy? An Empirical Investigation of Chevron, 73 U Chi L Rev 823 (2006) (concluding, after empirical analysis, that judicial political ideology affects the application of Chevron deference);
43. Cass R. Sunstein, et al, Are Judges Political? An Empirical Analysis of the Federal Judiciary (Brookings 2006) (analyzing the effects of the political party of the appointing president on judicial panel voting in a variety of cases);
44. Cross, 92 Nw U L Rev 251 (cited in note 4). The issue is also investigated in Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan L Rev 295, 369, 371, 410 (2007) (finding that political affiliation sometimes plays a role in federal court of appeals judges' review of asylum cases).
45. The appropriate measure of judicial ideology has been vigorously contested. Compare Lee Epstein and Gary King, The Rules of Inference, 69 U Chi L Rev 1,87-89 (2002) (criticizing, among other things, the use of party affiliation of the appointing president as a measure of judicial ideology), with Gregory C. Sisk and Michael Heise, Judges and Ideology: Public and Academic Debates about Statistical Measures, 99 Nw U L Rev 743,746-47 (2005) (noting that "[rjesearchers continually strive to refine statistical measures of ideology" but that "[bjeyond a nominee's perceived or presumed ideology, the cumulative and multi-dimensional nature of each putative jurist's character, judicial philosophy, personal attributes, and experiences must be considered").
46. See also Donald Braman and Dan M. Kahan, Legal Realism as Psychological and Cultural (Not Political) Realism, in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, eds, How Law Knows 93, 94 (Stanford 2007) (arguing that analyses of cultural cognition show that political and cultural values orient rather than motivate in reaching particular outcomes).
47. Thomas J. Miles and Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U Chi L Rev 761, 793 figure 3 (2008) (analyzing data in NLRB and EPA cases).
48. Thus the Standard Pattern can be found in many places in Sunstein, et al, Are Judges Political? at 20-23 (cited in note 22).
49. See also Virginia A. Hettinger, Stefanie A. Lindquist, and Wendy L. Martinek, Judging on a Collegial Court: Influences on Federal Appellate Decision Making 84-85 (Virginia 2006) (summarizing statistical studies showing judicial ideology as a statistically significant factor in decisions to dissent).
50. See Solomon Asch, Opinions and Social Pressure, in Elliot Aronson, ed, Readings about the Social Animal 13 (W.H. Freeman 7th ed 1995).
51. See Roger Brown, Social Psychology: The Second Edition 203-26 (Free Press 1986).
52. Sunstein, et al, Are Judges Political? at 48-49 (cited in note 22).
53. Id at 54-55.
54. Id at 63, 111.
55. Compare Ramji-Nogales, Schoenholtz, and Schräg, 60 Stan L Rev at 369 (cited in note 22) (finding no ideological differences on the Third Circuit in immigration cases), with Sunstein, et al, Are Judges Political? at 371,409-11 (cited in note 22) (finding massive differences, in many areas, within all courts of appeals).
56. See Boyd, Epstein, and Martin, Effect of Sex on Judging at 2 (cited in note 15).
57. Peresie, Note, 114 Yale L J at 1777 (cited in note 15) (graphing the probability of a proplaintiff decision in sexual harassment and sex discrimination cases against the judge's gender).
58. See Adam B. Cox and Thomas J. Miles. Judging the Voting Rights Act, 108 Colum L Rev 1, 29-37(2008).
59. See id at 43.
60. Ramji-Nogales, Schoenholtz, and Schräg, 60 Stan L Rev at 301 (cited in note 22).
61. For a valuable exception, see generally id (studying published and unpublished immigration cases heard by immigration judges, the Board of Immigration Appeals, and the circuit courts of appeals). On publication rates generally, see William L. Reynolds and William M. Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U Chi L Rev 573 (1981) (measuring publication rates and opinion lengths in the federal circuit courts).
62. See, for example, Orley Ashenfelter, Theodore Eisenberg, and Stewart J. Schwab, Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes, 24 J Legal Stud 257, 277-81 (1995) (reporting the judicial characteristics that do not affect outcomes in cases representative of the average docket of federal trial courts).
63. 5 USC § 551 et seq (2000).
64. See Cross, Decision Making at 25-28 (cited in note 15) (providing some analyses of these characteristics in a random sample of published appellate decisions).
65. 467 US 837 (1984).
66. See Sunstein, et al, Are Judges Political? at 63-82 (cited in note 22) (discussing possible explanations).
67. See, for example, Schanzenbach and Tiller, 75 U Chi L Rev at 743 (cited in note 15) (finding that a judge whose political affiliation aligns with the circuit court's partisan majority is more likely to depart from the Sentencing Guidelines);
68. Max M. Schanzenbach and Emerson H. Tiller, Strategic Judging under the U.S. Sentencing Guidelines: Positive Political Theory and Evidence, 23 J L, Econ, & Org 24,24 (2007) (finding that judges that are politically aligned with the circuit court tend to alter criminal sentences under the Sentencing Guidelines through law-based departures rather than fact-based adjustments);
69. Joseph L. Smith and Emerson H. Tiller, The Strategy of Judging: Evidence from Administrative Law, 31 J Legal Stud 61,62 (2002) (presenting evidence on the choice between law- and fact-based decisions in administrative law).
70. See, for example, Steven J. Choi and Mitu Gulati, Bias in Judicial Citations: A Window into the Behavior of Judges?, 37 J Legal Stud (forthcoming 2009) (reporting that federal judges are more likely to cite judges of their own political party, particularly in high-stakes litigation, and that judges are more likely to cite judges who cite them back);
71. Michael Abramowicz and Emerson H. Tiller, Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis 2 (Northwestern University Law and Economics Research Paper No 05-11, May 2005) (reporting that the more judges of one political party on a circuit court or on a panel, the higher the rate of legislative history citations to legislators of that party, irrespective of the party of the judge authoring the opinion).
72. See, for example, Cox and Miles, 108 Colum L Rev at 18-25 (cited in note 34) (examining how judicial ideology correlates with the application of multifactor tests in voting rights decisions);
73. Mark J. Richards and Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 Am Polit Sci Rev 305, 305 (2002) (developing a test for "jurisprudential regimes" that define relevant factors or set standards of review for subsequent decisions).
74. We are understanding old-style realism in a stylized and not entirely accurate sense, as emphasizing the role of judicial preferences.
75. For a more refined treatment, see Leiter, American Legal Realism at 52-56 (cited in note 6) (discussing the two branches of realism).
76. Unquestionably large effects can, however, be found in Ramji-Nogales, Schoenholtz, and Schräg, 60 Stan L Rev at 351-59 (cited in note 22) (reporting a significant effect of ideology within both courts and agencies).
77. See Cross, 91 Cal L Rev at 1514 (cited in note 19).
78. See id.
79. See Miles and Sunstein, 75 U Chi L Rev at 767 (cited in note 24).
80. Valuable and relevant discussion can be found in Brian Leiter, Naturalizing Jurisprudence 183-99 (Oxford 2007).
81. See Ronald Dworkin, Law's Empire 254-58 (Belknap 1986).
82. See Llewellyn, 3 Vand L Rev at 395-400 (cited in note 7) (arguing that there are many plausible ways to read a precedent or a statute and that a court must interpret the law in light of its purpose or objective).
83. Contrary evidence is provided, however, in Miles and Sunstein, 73 U Chi L Rev at 834 (cited in note 22) (showing political patterns that seem hard to explain in textualist terms).
84. See id at 823.
85. See Miles and Sunstein, 75 U Chi L Rev at 791-92 (cited in note 24).
86. See Chevron, 467 US at 866.
87. See id at 865 (noting that judges "are not part of either political branch of the Government" but that agencies may "rely upon the incumbent administration's views of wise policy to inform its judgments" because the chief executive is "directly accountable to the people").
88. See Miles and Sunstein, 73 U Chi L Rev at 823 (cited in note 22).
89. See id at 867.
90. Notably, it is also possible to offer certain tests of the behavior of Supreme Court justices. We know which are relatively neutral, in the sense that their validation rates do not differ depending on whether the agency's interpretation is liberal or conservative, and which are relatively restrained, in the sense that they tend to vote to uphold agency interpretations of law. We also know which are relatively partisan and which are relatively activist.
91. See id at 832 (detailing validation rates of individual justices). Fun facts: by our tests, Justice Breyer is the most restrained;
92. Justice Kennedy is the most neutral; Justice Scalia is the most activist; and Justice Thomas is the most partisan.
93. Id.
94. These conclusions should be taken with many grains of salt, however, and we do not attempt to explore the complexities here.
95. See Miles and Sunstein, 75 U Chi L Rev at 767 (cited in note 24).
96. See generally Strauss, 75 U Chi L Rev 815 (cited in note 5).
97. 463 US 29, 34 (1983).
98. See Thomas J. Miles and Cass R. Sunstein, The Hard Look in Practice 5-6, 10 (unpublished manuscript, 2007). Full disclosure: We began our investigation into arbitrariness review with this study, limited to cases citing State Farm. But we concluded that the number of such cases did not provide a representative sample of arbitrariness cases and was in any case too small for a detaüed examination of panel effects, so we compiled a more comprehensive data set instead.
99. When the agency decision is liberal, the rate at which Democratic appointees voted to validate under State Farm was 61 percent and for Republican appointees, it was 47 percent. When the agency decision is conservative, the Democratic validation rate dropped to 40 percent and the Republican validation rate rose to 57 percent.
100. For both Republican and Democratic appointees, then, the spread between liberal and conservative agencies was significant when State Farm was cited. Notably, however, it was significantly higher for Democratic appointees (21 percent) than for Republican appointees (10 percent). Id at 5.
101. 340 US 474, 489 (1951) (noting that the adoption in the APA of the judicially constructed "substantial evidence" standard of review was a response to pressures for "stricter and more uniform" review of agency decisions).
102. 522 US 359, 364 (1998) (requiring courts to defer to the requirements imposed by the NLRB as long as they are "rational" and the Board's explanation of them is not "inadequate, irrational, or arbitrary").
103. Of course it is likely that the stringency of review will vary depending on a range of factors, including the technical quality of the issues and whether the agency has a strong or weak reputation.
104. See Strauss, 75 U Chi L Rev at 829 (cited in note 5).
105. See, for example, Sunstein, et al, Are Judges Political? at 20-21 (cited in note 22) (tabulating ideological effects for a variety of cases, including those involving the NLRB).
106. See Strauss, 75 U Chi L Rev at 825 (cited in note 5).
107. See also Cass R. Sunstein, Deregulation and the Hard-look Doctrine, 1983 S Ct Rev 177, 177 ("The electoral process has proved insufficient to discipline agency decisions, and courts have rejected the notion that political supervision is an adequate safeguard against unlawful or arbitrary failure to regulate.");
108. William F. Pederson, Jr., Formal Records and Informal Rulemaking, 85 Yale L J 38, 60 (1975) ("It is a great tonic to a program to discover that even if a regulation can be slipped or wrestled through various layers of internal or external review [inside the bureaucracy]... the final and most prestigious reviewing forum of all-a circuit court of appeals-will inquire into the minute details of methodology.").
109. See Llewellyn, 44 Harv L Rev at 1236 (cited in note 1) (arguing that observations should remain uncontaminated by the desires and value judgments of the observer).
110. See Jack Goldsmith and Adrian Vermeule, Empirical Methodology and Legal Scholarship, 69 U Chi L Rev 153, 164-65 (2002) (noting that due to limited resources, there exists a tradeoff between accuracy through perfect information and timeliness and relevance). Barry Friedman has even criticized studies of judicial decision for too often lacking "normative bite."
111. See Friedman, 4 Perspectives on Polit at 262 (cited in note 13) ("What matters, at bottom, is whether the positive scholarship has something to teach about how law and legal institutions operate in a way that is pertinent to how they should, and to the aspirations put upon those institutions by society").
112. But see generally Stephen J. Choi and G. Mitu Gulati, A Tournament of Judges?, 92 Cal L Rev 299 (2004) (proposing a system of elevating judges to the Supreme Court based on judicial performance, which would be measured by criteria such as opinion publication rates, citations by courts and academics, and speed of disposition of cases);
113. Stephen J. Choi and G. Mitu Gulati, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 S Cal L Rev 23 (2004) (ranking circuit court judges according to the system proposed in the previous article).
114. See Strauss, 75 U Chi L Rev at 826 (cited in note 5) ("Could one imagine resulting legislation requiring three-judge court of appeals panels to be composed not at random, but-to the extent feasible-as mixtures of judges who had been appointed in different Presidencies, perhaps even in Presidencies of different parties?").
115. See also Schanzenbach and Tiller, 75 U Chi L Rev at 744-45 (cited in note 15) (contemplating hierarchical judicial diversity).