Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-making

WHAT'S LAW GOT TO DO WITH IT? WHAT JUDGES DO AND WHAT TO DO ABOUT IT, Charles Geyh, ed., Stanford, 2011

NYU School of Law, Public Law Research Paper No. 11-25

NYU Law and Economics Research Paper No. 11-09

44 Pages Posted: 18 May 2011 Last revised: 10 Jun 2011

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Andrew D. Martin

University of Michigan at Ann Arbor - College of Literature, Science & the Arts

Date Written: May 2, 2011

Abstract

Many political scientists who study judicial politics are skeptical that law affects decisionmaking. Attitudinal and most strategic accounts of judging rarely consider how law might constrain actors. The so-called "legal model" many studies purport to refute is not a model at all. In this chapter we provide some guidance on how to model law by distinguishing between various types of law (constitutional, statutory, administrative, and common, as well as the public law/private law distinction), by considering differential expected effects of precedent and its channeling function, by recognizing the profound differences in the type of judge being studied, and noting the distinction between the outcome and the opinion. We conclude by explaining that political scientists have been looking for law in (mostly) all the wrong places.

Suggested Citation

Friedman, Barry and Martin, Andrew D., Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-making (May 2, 2011). WHAT'S LAW GOT TO DO WITH IT? WHAT JUDGES DO AND WHAT TO DO ABOUT IT, Charles Geyh, ed., Stanford, 2011; NYU School of Law, Public Law Research Paper No. 11-25; NYU Law and Economics Research Paper No. 11-09. Available at SSRN: https://ssrn.com/abstract=1829042

Barry Friedman (Contact Author)

New York University School of Law ( email )

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Andrew D. Martin

University of Michigan at Ann Arbor - College of Literature, Science & the Arts ( email )

Ann Arbor, MI
United States

HOME PAGE: http://sites.lsa.umich.edu/admart

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