Author Archives: ecb123

Facebook Dilemma — Should we be “friends” with colleagues?

OK, so I’m a pre-tenure professor lucky to have lots of friends and acquaintances from multiple phases of life including high school, college and grad school. I also have several academic colleagues who I consider friends – we discuss pop culture along with more serious matter at conferences. Inevitably this leads to looking for easy ways to stay in touch – I actually joined Facebook to see some conference photos a colleague posted after we were all back at our respective institutions. Every now and again I get a “friend” request from a colleague I don’t know that well – I almost always accept these. I don’t use different “groups” on Facebook. It may not be the most professional choice – but I figure if you want to be my friend — you should get to see all of it – the good and the bad, the intellectual postings and the less formal ones that lead to jabs with my oldest and dearest friends. I should also say that I have also enjoyed learning more about the colleagues who I am friends with in this manner — what they are interested in, what they are doing at any given time.
I’m sure others have more cautionary tales…. But I, for one, enjoy getting to stay in touch with colleagues in this manner in this brave new world. Other opinions?

Take on currrent enviornment for judicial nominees

From BreakingLegalnews.com:

Controversial court nominee survives Senate test

Political and Legal – POSTED: 2009/11/18 06:23

Democrats on Tuesday crushed a Senate filibuster against a controversial appeals court nominee, demonstrating to Republicans they can’t stop President Barack Obama from turning the federal judiciary to the left.
The 70-29 vote limited debate over the qualifications of U.S. District Judge David Hamilton of Indiana, and assured his elevation to the Chicago-based appeals court. Sixty votes were needed to end the filibuster, but confirmation only requires a simple majority of the 100-member Senate.
Ten Republicans repudiated their own party leaders and voted to limit debate. The Obama administration made a crucial decision from the outset by getting the support of Hamilton’s home-state Republican senator, Richard Lugar.
The vote emphatically warned Republicans that with only 40 senators, they’re too outnumbered to prevent Obama from making major inroads into a judiciary that was populated over eight years with conservative judges chosen by President George W. Bush.
Republicans have objected to holding a vote on Hamilton’s confirmation since June, when the Judiciary Committee reported his nomination favorably to the full Senate.
Conservative Republican senators and their judicial-watching outside groups then launched a major political assault on Hamilton.
They criticized his rulings against Christian prayers in the Indiana legislature and against a menorah in the Indiana Municipal Building’s holiday display.

What role academia?

So building off my comments from yesterday I’d like to raise the issue of what political science research has to say about the legitimacy of judicial institutions, point out an apparent discrepancy in research on different aspects of our legal system, and ask (somewhat provocatively) what our role is as academics in informing the general public about the “realities” of how that system works when they seem to operate in stark contrast to traditional understandings of what our legal system is designed to do.
First, starting with Pritchett (1942), decades of behavioral research reveals that judges vote disproportionately in favor of outcomes that are consistent with their political preferences. These results stand in direct contrast to the notions that unelected judges derive authority from their expertise and ability to act as unbiased “interpreters of the law.” Now clearly we need some sort of third party arbitrators to resolve disputes that inevitably arise between people in our society – the question is why do judges get to make those determinations. The answer according to democratic theory is because they are experts in legal interpretation and will make judgments according to that expertise. Empirical findings however reveal the strong influence of other factors including political preference and ideology. Concerns about the equal administration of justice and the fairness of judicial outcomes are necessarily implicated when outcomes have more to do with the idiosyncratic preferences of who is on the bench than what the law requires under particular circumstances. Now this is not really the fault of the framers – they didn’t know better than to put their faith in traditional notions of legitimate judicial authority deriving from objective exercise of legal expertise – but after 50 years of empirical research don’t we know better now? Isn’t it time to reconcile outdated notions of judicial authority with current understandings of influences on judicial behavior? Political scientists have seemed content with demonstrating the fallacy of formalistic notions of legal decision making over the last half century – but we haven’t really adequately dealt with the normative implications of these findings.
More than this, research on public opinion on the legal system seems to celebrate the fact that citizens generally hold the courts and judges in high esteem compared to other institutions and political officials based on what Gibson and Caldeira have called “legitimizing myths” about how judges and the court system operates. Is this really cause for celebration? Should we be happy that people come to value courts based on misconceptions about how they operate? There is even research that suggests that people can hold courts in high esteem, at the same time they understand that political factors often come into play in the decisions of judges. Shouldn’t someone be pointing out the inconsistency in these two beliefs if part of what our legal system is designed to do is treat individuals equally without bias?
Now of course as someone who has been assigned the role of “guest blogger” my comments here are intentionally designed to be provocative. But I guess I’m wondering what the larger role of academics is in shaping public perceptions of the political institutions that are the subject of our research. The issue seems to come to a head whenever a new Supreme Court justice is nominated. Political scientists often want to throw tomatoes at C-SPAN when we hear judges talking about being umpires, objectively calling balls and strikes, because it is so contrary to our understanding of the judging in the legal system actually works. But the dog and pony show has a purpose. We, as a society, need our myths. OR we need a completely different justification of why judges get to make the decisions they do. To debunk the former without coming up with the latter would cause extreme discomfort if citizens started to really think about the democratic implications of what we do as empirical scholars. Maybe it’s a good thing that they don’t as a matter of routine. But to what extent to we have an obligation to point out these inconsistencies between the unrealistic requirements of democratic theory and the way the legal system actually works…

New wave in Empirical Research on Law and Courts:

First, I would like to thank Jeff for the nice intro and for inviting me to blog this week. Second, you should all know I have not done this before so I am hoping you will bear with me … I guess we’ll see if any interesting thoughts develop.
My work is on legal decision making – or legal cognition – how decision makers think about cases and make decisions in the context of accepted norms of legal reasoning. Basically, I think judges and practitioners who have been socialized in the legal tradition take rules regarding their own authority and appropriate sources of legal reasoning quite seriously. But I also acknowledge attitudes matter and they matter a lot. The interesting puzzle from my perspective is how decision makers who believe they are using objective decision criteria reach legal conclusions that support their policy preferences again and again. I’ve used the paradigm of “motivated reasoning ” from psychology to get at some of these issues. The goal is to find out (1) whether legal decision makers are subject to biased decision processes in the context of using accepted norms and (2) what the objective limits on biased reasoning processes might be. The book Jeff refers to in his intro Law, Politics and Perception: How Policy Preference Influence Legal Reasoning represents my take on these questions based on experimental research.
More broadly, there has been an increased interest in the law and courts subfield in using theory and methods from psychology to explain legal decision making phenomena. I think this is a very good thing. There is for instance a forthcoming volume edited by David Klein and Greg Mitchell describing the “Psychology of Judicial Decision Making.” Over and above the work on legal cognition done by researchers like Brandon Bartels at GWU and Paul Collins at North Texas U, researchers are starting to think about and study how other psychological constructs like motivation (ex. Larry Baum at OSU, Justin Wedeking at UK) and even emotion (ex. Terry Marony at Vanderbilt Law) plays a role in decision making outcomes. Scholars are also trying to think more about the individual and group cognition process which each play a role in appellate decision making. How does one influence the other? Are judges ALWAYS single minded seekers of policy when they go into conference discussions or might they be open to alternative arguments and persuasion by their colleagues? Does it depend on the type of case? (Note: “salience” is another psychological term by the way.) Do terms like “strategy” or “reasoned compromise” better describe the group dynamic that occurs resulting in majority opinions? How could we tell the difference between the two? Are there non-traditional methods that may better “get at” these sorts of questions?
I for one am looking forward to contributing to, and learning from, this next generation of interdisciplinary empirical research at the intersection of law, political science and psychology. I think we have much to learn and that findings will have important implications across multiple disciplines speaking to issues from basic psychology to the legitimacy of judicial institutions in our constitutional system.