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Abstract:
In a recent article (and new book), Louis Kaplow and Steven Shavell argue that analysts of legal policy should rely exclusively on welfare economics in making decisions, and give no independent weight to fairness, justice, or several other such noneconomic considerations they treat as roughly synonymous. The authors say that fairness is worth worrying about to the extent that people have a taste for it, since in that case a policy that is fairer makes them better off by their own lights. But this exception does not make arguments about fairness as such relevant to legal policy; rather, it calls for purely empirical demonstrations, perhaps through surveys of public opinion, that a policy will upset people because it will offend their taste for fairness.

This essay raises a series of objections to Kaplow and Shavell's arguments. First, their acknowledgement that policies should take fairness into account if people have a taste for it has more implications than they recognize. It implies as well that if people have a taste for officials who take arguments about fairness seriously, then they should have officials who pay attention to those arguments (and not just to survey data) in making policy. In principle, the authors are open to the counting of any preferences, presumably including these; in practice, the extent of anyone's taste for fairness, presumably including their taste for officials who worry about fairness, is treated as an empirical question on which convincing data evidently will be hard to obtain. This puts appeals to such tastes at an unwarranted practical disadvantage, and overlooks the role of politics as a register of tastes for various notions of fairness.

Second, economics does not provide answers in situations where the contested issue is how much certain goods should be valued - what should count as a cost and as a benefit, and in what proportions. This becomes important when, as is common, a question of legal policy arises in an institutional setting where market measures of value are unavailable and direct empirical testing of people's tastes for fairness in various senses is infeasible and perhaps undesired by (distasteful to) the people themselves. Third, even if our ideas about the fairness of a decision express beliefs or intuitions about the costs and benefits at stake in it, this does not necessarily make cost-benefit analysis a superior procedure for decision than an appeal to fairness. It may be that beliefs about fairness capture costs and benefits in a way different from, and preferable to, the way they are likely to be captured in an economic analysis.

Abstract:
Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter. To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

statutory interpretation, empirical legal studies

Abstract:
This paper considers two questions about the role of self-serving biases in legal conflict: when are they a problem worth worrying about, and what can the law do to ameliorate them? With respect to the first question, the paper argues that not all self-serving biases are of equal concern. We should distinguish between self-serving predictions, which have the potential to create significant inefficiencies, and self-serving judgments of fairness, which have a more complicated normative standing and in some instances may not be problematic at all. Second, once a bias is found objectionable there are a number of possible strategies for dealing with it; the paper proposes a distinction between personal and structural strategies. Personal strategies are attempts to take people likely to be in the throes of self-serving biases and "debias" them. Structural strategies are attempts to put distance between biased parties and decisions their biases might affect. There are practical strategies that fit each of those descriptions, and others that fall between them; the paper suggests that structural strategies tend to be preferable to personal strategies, but also more expensive, and that the law may already be taking most steps that would be optimal to reduce disputants' problematic self-serving biases and their impact.

Abstract:
Over the past decade a dozen or so commentators have called for fixed terms of office for Supreme Court Justices. This Article presents a new and contrary analysis, treating life tenure as a regulatory regime that usefully can be unpacked into a number of components: (a) Justices serve into old age; (b) they serve for long periods of time; (c) they serve terms of varying lengths; (d) chances to appoint new Justices arise unpredictably; (e) chances to appoint new Justices arise irregularly; and (f) the Justices often decide for themselves when to leave the Court and thus who will pick their replacements. Age limits would target mostly (a), would have no effect on (c) or (e), and would work only partial or uncertain changes in the other respects just listed. Fixed terms have the potential to eliminate all of them.

The Article concludes that age limits are worth serious consideration, but that most of the additional benefits provided by fixed terms would be illusory or likely to be offset by new problems they would cause, whether the new regime is adopted by constitutional amendment or (worse) by statute. The length of a Justice's tenure determines how often vacancies arise and thus how quickly electoral majorities can force tectonic changes in the law by remaking the Court. From this perspective the right length of judicial terms depends on how much we trust judgments by majorities over longer and shorter time periods; life tenure reflects a high and salutary distrust of short-term judgments. To state the point concretely, most proposals for fixed terms would ensure that every two-term president would substantially remake the Court, an outcome whose desirability is far from clear.

The framework set out above also leads to various other conclusions. One is that the more carefully we try to distribute control over the political dimension of the Court's work, the larger that dimension is likely to get. Another is that in a regime of life tenure the Senate should play an active role in screening nominees to offset the arbitrary and lumpy way that nominating chances are distributed to presidents. Still another is that life tenure makes age more important than the other ways in which most nominees to the Court differ from their likely alternatives, and that a nominee's age thus deserves more attention than it currently gets.

Supreme Court, life tenure, Supreme Court appointments, life tenure on the Supreme Court

Abstract:
This Article considers whether courts should regard enmity between litigants as a transaction cost and thus as an argument for awarding damages where a property right would otherwise be available as a remedy. It begins by examining the phenomenon of enmity generally, and concludes that enmities can be both ethically justified and instrumentally useful depending on their origins and how they are expressed. The Article surveys the treatment of enmity in various legal contexts and finds it broadly consistent with that view: the law tends to punish enmity when it motivates out-of-pocket expenditures to make someone else worse off, but generally not when it motivates the absorption of opportunity costs for that purpose; and enmity is not punished at all when it motivates socially beneficial behavior.

Turning to the specific problem of remedies after litigation, the Article argues that it is very difficult for courts to distinguish in practice between "good" and "bad" enmities. The hard question thus is how enmity should be handled when the extent of its reasonableness is unknown and when it may result in a foregone transaction that otherwise would have made both parties better off. The Article argues that courts ordinarily should pay no attention to enmity when fashioning remedies. Enmity is a complicated type of commodification preference - a preference about whether and in what circumstances to sell an entitlement; it is difficult for the law to measure accurately or regulate fruitfully, and on balance is best handled with a liberal strategy that allows parties to give effect to such preferences without collective second-guessing. Exceptions to the rule may be warranted in cases where particular enmities readily can be identified as offensive to public policy or where they will create significant costs for courts or innocent third parties. The Article concludes by defending these views against the claim that enmity is a variety of emotion and that this justifies awarding damages rather than property rights in cases where it is likely to be pervasive.

enmity, transaction costs, socially beneficial behavior, commodification preference, public policy, costs for courts, costs for innocent third parties, enmity as a variety of emotion, awarding of damages, enmity between litigants

Abstract:
Legal realists and various others believe that judges in close case - and thus Supreme Court justices in most cases - vote according to their policy preferences, private empirical views about the world, and other considerations that have little to do with the legal materials bearing on a dispute. For those who think this way, a judge who dissents in an unexpected ideological direction is a surprise and a challenge; in a case where that happens, the arguments in favor of the judge's usual position not only were available but were strong enough to convince at least five colleagues, yet he rejected them. This paper examines such dissents against type in criminal cases at the Supreme Court, distinguishes between real and apparent examples of them, and considers whether and how they can be integrated into a realist view of judging.

The paper's principal conclusions are, first, that true dissents against type rarely occur. Apparent cases of them often involve underlying facts that make the vote ideologically unsurprising after all. Thus William Rehnquist almost always voted for the government in criminal cases - and when he dissented in favor of defendants, they invariably had been accused of white collar crimes or firearms offenses. In other cases, dissents against type usefully clarify what a justice's type is. Being conservative, for example, does not necessarily mean preferring the government's position across the board in criminal cases; sometimes it means a commitment to more particular values, such as a preference for finality over accuracy, that are often associated with the government's position but not always. True dissents against type, where a justice is bound by methodological principle to vote against his usual politics, are scarce but not unheard of.

supreme court, empirical studies, legal realism, attitudinal model, dissents

Abstract:
This paper explains and examines the use of Martin-Quinn scores to assess the behavior of Supreme Court Justices. It is a reply to a recent paper by Lee Epstein, Jeffrey Segal, Andrew Martin, and Kevin Quinn which claims that the policy preferences of most Justices change during their careers; the authors of that paper suggest that this should cause Presidents to reconsider the use of nominations to try to change the direction of the Court. The authors base their findings on changes in the Justices' Martin-Quinn scores, but the meaning of those scores has not yet been fully explained in plain English. The present article attempts such an explanation. It discusses the features of judicial behavior that the Martin-Quinn method accounts for and does not account for, the limitations of the method, and some questions about the method that remain to be answered.

The limits of Martin-Quinn scores raise some doubts about the authors' conclusions. Martin-Quinn scores are generated by simply observing patterns of coalition voting among the justices without paying any attention to what the cases are about. The authors assume that all voting is ideological, so any change in the patterns of the coalitions the Justices form is taken to show changes in the Justices' ideologies. There are various reasons to question this chain of reasoning. The most important is that the authors' model treats all cases as equally important and revealing. So if a Justice starts to vote a little to the left of where he formerly did (relative to his colleagues) in any area of law, this may cause a change in how the Martin-Quinn model views his entire ideology - even if his voting has been consistent in most areas of great public interest. So when the authors find statistical changes in the behavior of Justices, those changes may not (and in some cases do not appear in fact) to amount to shifts that would have mattered to the Presidents who appointed those Justices in the first place.

Further, the authors write as though predictability were monolithic: either the behavior of Justices can be predicted or it can't be. They don't take into account the possibility that risks of ideological drift are greater among some nominees than others, and that Presidents and others can foresee this. Nominees who have done extensive service in the political branches of a party (such as Rehnquist, Scalia, Thomas, Roberts, and Alito) are more reliable bets than nominees without such political experience (such as Stevens, Souter, and Kennedy). Nominees of the latter kind often are chosen by Presidents precisely to avoid tough confirmation fights; the risk that they will drift ideologically is perceived by everyone from the start, and is the reason why such nominees are not opposed as vigorously. Most cases where Justices have changed in ways that would have disappointed their nominators appear to involve nominees who were understood to be in the relatively risky group from the start. So while the authors' findings are interesting, they don't yet seem to call for much revision in the thinking of those who choose Supreme Court nominees or argue about them.

Martin-Quinn Scores, Supreme Court Justices, Problem of Ideological Drift, patterns of coalition voting

Abstract:
This essay offers guidelines for courts to follow when engaging in extralegal decisionmaking. It begins by hypothesizing that the remedial decision in Bush v. Gore - the decision not to permit Florida to engage in further recounting - is best understood as an example of such a decision, i.e., as a case where the Court ordered an outcome it thought would serve the country's interests despite being unjustifiable by reference to traditional legal standards. The essay argues that the courts' usual practice of limiting themselves to decisions they can support with plausible interpretations of legal doctrine helps to constrain judges and provides a partial, but useful, brake on the temptation to make undemocratic and unwise decisions; as judges abandon doctrine in favor of more bluntly pragmatic grounds for decision, it becomes important for them to observe other constraints that can serve the purposes normally furnished by an adherence to more traditional judicial methods. The essay suggests a series of such constraints and considers whether they were observed in Bush v. Gore.

First, such decisions should be reserved for cases where the harm to be averted is unambiguous, i.e., where the costs and benefits of the proposed judicial action are sufficiently uncontroversial to serve as impartial bases for decision. This was not the case in Bush v. Gore, as it was both empirically and conceptually difficult to determine in a politically neutral way whether the benefits of the Court's remedial decision outweighed the costs. Second, such decisions should be taken only to address problems with which actors and institutions cannot effectively cope, and should do so in calibrated ways that allow other actors to check the court's judgment. In Bush v. Gore there were other actors in a position to deal with the problems that the court's remedy was intended to address, and the remedy left inadequate room as a practical matter for those other actors to check the court's power. Third, such decisions should be avoided where there is a risk of self-dealing; they also should be bipartisan - especially where the risk of self-dealing cannot be avoided. The stakes of Bush v. Gore included the selection of the figure who would fill any vacancies on the Court for the subsequent four years, and the Court split along customary partisan lines in making its decision. In these circumstances the Court should not have ventured into extralegalism if it was unable to rally more than five votes to do so - and particularly THOSE five votes. In its favor, it can be said that the remedial decision was a limited strike; it did not create a precedent that is likely to set a bad example for the Court or for other courts, or against which public opposition will be able to accumulate.

I conclude that in light of these considerations, the Court's remedial decision in Bush v. Gore was ill-taken if understood as an exercise in well-intentioned lawlessness, or as a study in a judicial pragmatism that subordinates fidelity to doctrine to practical considerations. The prudential constraints that can serve as substitutes for doctrine were not observed.

Abstract:
Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

Abstract:
This Article examines the original understanding of the Fourteenth Amendment's significance for women, and concludes that the Amendment widely was understood to be consistent with a wide variety of disabilities and other discriminatory laws that the states then imposed on them. These understandings were based on several ideas: women enjoyed the same rights as men, but vicariously through their families; women, like children, were implied exceptions to the Amendment's prima facie requirements; and the legal regulation of women's rights was a kind of regulation of the family, peculiarly suited to the states rather than the federal government. The mindset that found these notions agreeable was composed of ideas about natural law, custom, and federalism. The Article concludes that these findings present a conundrum for originalists comparable in some respects to the difficulties posed by Brown v. Board of Education.

Abstract:
This Article proposes some conventions for law professors who render opinions in the course of public debate, arguing that when academics offer public opinions in their professional capacities they should use the same care and have the same expertise called for in their published work, or else should disclose that they are adhering to a lesser standard. Equivalently, they should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented. Part I sketches the nature of the collective action problem created by academics who sign opinion letters and petitions indistinguishably on the basis of different levels of expertise, analogizing this practice to abuse of a trademark (here the "law professor" mark) that is likely to lead either to consumer confusion or dilution of the mark. Part II demonstrates that some contributions of academic opinion to a tribunal are more valuable than others, even if the academics making the contributions are equally confident that what they are saying is correct; there are important differences in value between contributions made by generalists and specialists, and contributions made on the basis of "hard" expertise (involving factual representations) and "soft" expertise (involving normative judgments). Part III applies these distinctions to the law professors' letter to Congress opposing the impeachment of President Clinton. Part IV discusses the proposed convention for legal academics to follow in deciding whether to sign an opinion addressed to a court or legislature. It also adds a few notes on the problem of partisanship, arguing that academics should not take public positions on questions unless they would be equally ready to make the same arguments publicly when they are helpful to their political enemies - unless, again, they disclose that they are serving as advocates for one side or the other.

Abstract:
This article examines fifty years of voting behavior by Supreme Court justices in criminal matters that weren't decided unanimously. The basic result is that any given justice has been about as likely to vote for the government in cases that involve the Constitution as in cases that don't. Clarence Thomas, for example, has voted for the government about 85% of the time in constitutional cases and 87% of the time in cases that don't involve the Constitution. David Souter has voted for the government 42% and 44% of the time, respectively; William O. Douglas voted for the government 4% of the time and 6% of the time, respectively. The article's findings are set forth in a series of charts which the reader may find a source of pleasure and instruction.

Everyone already knows that some justices vote for the government much more often than others, of course. The significance of the study is that it compares votes in areas where the legal considerations are different but the policy considerations are the same and finds great similarities between the results. The article examines various mechanisms by which the justices' policy preferences and other priors thus find their way into decisions that appear to be matters of interpretive dispute. It uses examples from the case law to show how decisions in criminal cases end up depending on what different justices count as costs and as benefits, on how much they trust juries, or on other factors independent of the legal materials involved.

These findings lend support to a legal realist view of the Supreme Court's work, which is taken for granted by some analysts but at odds with the work of many others. The point isn't that the Court's decisions are all politics, or that the justices always vote their policy preferences. The better view is that every case provokes competition between a justice's preferences on the one hand and the legal materials on the other. When legal materials of whatever sort are strong, they can and do produce unanimity despite conflicting preferences. But when the legal materials aren't clear enough to create unanimity, they tend to give way to each justice's underlying preferences and views of the world, and these often are the same regardless of the source of law at stake in a case.

Supreme Court, empirical, realism, attitudinal model, criminal law

Abstract:
This article is an empirical study of the voting behavior of 30 federal appellate judges in criminal cases that weren't decided unanimously. The cases were divided into two sets: those that involved disputes over constitutional law and those that involved disputes over other kinds of legal materials (e.g., statutes and rules). The basic results are that (a) judges vary widely in how often they vote for the government in non-unanimous cases, but (b) any given judge votes for the government about as often in such cases regardless of whether they involve debates over the Constitution or other sources of law. The most plausible reason for the tight correlation is that in close cases of any kind judges use the same policy preferences or views of human behavior as their sources of decision.

attitudinalism, ideology, judging, empirical, federal courts of appeals, politics, legal realism

Abstract:
This Article examines the aftermath of twenty ordinary nuisance cases, and finds no bargaining after judgment in any of them; nor did the parties' lawyers believe that bargaining would have occurred if judgment had been given to the loser. The lawyers said that the possibility of such bargaining was foreclosed by animosity between the parties and by their distaste for cash bargaining over the rights at issue. The Article considers a number of questions raised by these results, including the following: Might the obstacles to bargaining in these cases be related to the absence of robust markets for the rights at stake? Should animosity or a distaste for bargaining be considered types of "transaction costs"? It is common for economic analysts of remedies to use nuisance cases as examples to illustrate their models; what are the implications of these results for the usefulness of those models? Might greater particularity might be needed before economic models can generate advice about remedies reliable enough to be useful to courts?