Introduction
The legal academy is not the only locus for serious study of the
law. Legal phenomena are examined in a variety of other
disciplines—ranging from philosophy and sociology to history and
anthropology, but political science (or “politics” or “government”) is
the academic discipline that is most strongly associated with the study
of law outside of the law schools. (Indeed, at one time political
science departments sometimes were departments of public law.) This
entry in the Legal Theory Lexicon introduces two distinctive
traditions for the study of the law from the perspective of political
science. The first of these is the so-called “attitudinal model”—an
approach that views courts—especially the United States Supreme
Court—as policymaking institutions that are similar to legislatures and
administrative agencies. The second approach is sometimes called “the
new institutionalism” and it integrates a concern for legal doctrine
and rules with other social science tools.
As always, this entry in the Lexicon is aimed at law
students, especially first-year law students, with an interest in legal
theory. Many of you were political science majors, and this may be “old
hat” to you, but others will be exposed to these ideas for the first
time. A word of warning: the dominant response of the legal academy to
the study of law by political scientists is ignorance.
It may seems strange, but it is nonetheless true that many law
professors have barely heard of the attitudinal model and would have to
guess what the “new institutionalism” might be. Don’t make this
mistake. Political scientists bring a rich set of tools and concepts to
legal theory, and the legal academy has much to learn from them. One
more thing: this entry discusses only a small portion of the political
science that is relevant to the study of law. Political science
includes many different approaches—including rational choice and game
theoretic approaches that have much in common with what is called “law
and economics” in the legal academy.
The Legal Model and the Attitudinal Model
Suppose you were a political scientist and you wanted to explain and
predict the behavior of a court—for example, the United States Supreme
Court. What variables would serve as the best predictors? One
possibility is that you would seek to predict Supreme Court decisions
using legal concepts. For example, you might use the text of the
Constitution as the basis for predicting the outcome of constitutional
cases or the text of federal statutes to predict the outcome of cases
that hinged on questions of statutory interpretation. Let’s call this
approach to the explanation and prediction of legal decisions, the
“legal model.”
Even first-year law students are likely to see that the legal model
may not do a very good job of predicting the outcome of appellate cases
in courts of last resort. Once you study constitutional law, you are
likely to learn that decisions of the contemporary Supreme Court are
rarely based on a simple application of preexisting legal rules to the
facts (as they are presented to the Court given the procedural posture
of the case). Instead, contemporary legal education is likely to
emphasize the political dimension of the Supreme Court—with liberal,
moderate, and conservative Justices lining up in more or less
predictable patters, especially with respect to certain
politically-charged issues—implied fundamental rights, federalism, and
criminal procedure, for example.
A very simple version of the attitudinal model could be based on the
notion that judges and decisions occupy a "position" in an attitudinal
"space." What does that jargon mean? Suppose that attitudes about
political ideology exist on a continuum from "left" (most liberal) to
"right" most conservative. This space could be represented as a "real
line," with its origin at the most conservative extreme and its
terminus and the most liberal extreme. The political ideology of
judges could be represented as a point (or position) on that line. We
could then imagine that outcomes in cases also occupy a position on the
line. The attitudinal model hypothesizes that a judges political
ideology (or position in attitudinal space) will predict the way that
the judge decides cases.
So we have two models of judicial decisionmaking: the legal model
and the attitudinal model. Which model does a better job of predicting
judicial behavior? If we limit our attention to the United States
Supreme Court, it looks, at first blush, like the attitudinal model
“beats the pants” off the legal model. But appearances may be
deceiving. The United States Supreme Court does not hear very many
“easy cases”—cases in which the application of preexisting legal rules
control the outcome of the dispute. Indeed, the Supreme Court has a
discretionary appellate jurisdiction (for the most part), and the Court
rarely grants the writ of certiorari in cases in which the law is
clear. Instead, the Court tends to focus on those cases in which the
law is uncertain, the lower courts are divided, or there is a perceived
need for a change in the law. Moreover, cases which are controlled by
clear rules of law are usually settled. It is extremely rare for a
party to spend the hundreds of thousands of dollars required to
litigate a case to the Supreme Court on a sure-fire loser!
There is another reason why we would not expect the Supreme Court’s
decisions to be predicted by a simple “legal model.” The Court does not
consider itself bound by its own prior decisions. Given that the Court
has the legal power to depart from precedent, it is hardly surprising
that the Court does not behave as if it were so bound.
When the legal model is applied to the decisions of lower courts and
to the behavior of litigants who settle disputes “in the shadow of the
law,” legal rules and doctrines have much more explanatory power. For
example, defendants will rarely pay large sums to settle claims that
have no legal merit. Of course, this point needs to be qualified in
various ways. If a case has sufficient merit to get to a jury, it may
have settlement value, even if an “ideal” jury would find against the
plaintiff. Similarly, litigation itself is costly, and meritless claims
may have “nuisance value” so long as they cannot be thrown out of court
at an early stage—by a demurrer or motion to dismiss for failure to
state a claim upon which relief can be granted.
More broadly, most legal practitioners (lawyers and judges, for
example) are likely to think that a very simple attitudinal model is
missing something. Even if politics is important and legal doctrine is
not the only important factor that shapes legal behavior, any story
about legal institutions that leaves the law out of the story seems to
be missing something that is crucially important—both to the
understanding of the law and to understanding American politics.
The Attitudinal Model and Positive Political Theory
From one point of view, the attitudinal model hasn’t been "state of
the art" in political science for quite some time. Appellate Courts
are multi-member bodies, and they interact with other institutions,
including legislatures and the executive. Even if individual judges
prefer that their decisions match their "ideal point" in ideological
space, they may not be able to achieve that result given the need to
garner a majority. Of course, this is exactly the sort of problem that
can be modeled by game theory. Political scientists use the term
"positive political theory" or "PPT" as the name for rational-choice
and game theoretic approaches to political problems.
The key insight that PPT adds to the attitudinal model is simple.
Judges will join an opinion that departs from their ideal point if it
moves the law from the status quo to a point that is closer to the
judges ideal point. This approach can be extended to the interaction
between the judiciary and other political institutions. For example,
if the Supreme Court interprets a statute in a way that is contrary to
the preferences of the key players in the legislative process (Congress
and the President), then we might expect legislation to override the
decision. Whether the override will pass depends on the "veto
gates"–the points at which legislation can be stopped. If the Supreme
Court were rational and were fully informed about the preferences of
legislators, then we might predict that the Court will avoid decisions
that would trigger legislative overrides, but move the law just short
of that point.
The New Institutionalism
And that brings us to what is sometimes called “the new
institutionalism,” a somewhat eclectic movement within political
science that seeks to integrate legal doctrine and the distinctive
character of legal institutions in political-science approaches to the
study of law. When I say “somewhat eclectic,” I mean that there is no
single methodology or doctrine that characterizes all of the work that
fits under the “new institutionalism” umbrella. And of course, the name
of this approach, the new institutionalism, points backwards to an old
institutionalism—the approach commonly associated with figures like
Corwin and McCloskey (and more recently with Martin Shapiro). One way
to look at the work in the “new institutionalist” tradition is to use
the distinction between internal and external perspectives that is
familiar to legal theorists.
From the internal perspective, new institutionalist work is work
that takes “the law,” broadly defined to include legal institutions,
concepts, categories, and doctrines seriously. But new institutionalist
work is not the same as doctrinal legal scholarship. The new
institutionalists situate “the law” in political contexts. Where a
doctrinalist analysis aims at producing a restatement of a legal rule,
institutionalists are more likely to be focused on an elaboration of
the development of legal thought in a wider social context.
From the external perspective, new institutionalists are interested
in the causal influences on and of legal phenomenon. Some new
institutionalists embrace the attitudinal model as a starting point for
their analysis, whereas others may be more critical of attitudinalism,
but any work that looks at law from the external perspective will step
outside of legal doctrine and ask questions about the causal influences
that shape legal institutions.
Conclusion
It is hardly surprising that a brief Lexicon entry cannot do
justice to a whole body of work. The best way to learn about the
attitudinal model and the new institutionalism is to read some work. If
I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law!
Bibliography
Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).
Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993).
Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993).
Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964).
Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001).
Rogers Smith, "Political Jurisprudence, the ‘New
Institutionalism,’ and the Future of Public Law," 82 American Political
Science Review 89-108 (1988). (available on JSTOR, follow this link.)Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999).
The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999).
(This entry was last revised on October 11, 2008.)