Abstract
The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development of law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent.
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Notes
Judges’ success at defining questions is made especially clear by recasting their work in the political vocabulary of framing. Schon and Rein (1994) contrast “policy disputes,” a class of public problems that can be resolved on the basis of “evidence to which all the contending parties will agree” (3), to more difficult “policy controversies” that are “immune to resolution by appeal to the facts” (4). Because they cannot produce new facts, all appeals cases approximate the class of harder-to-resolve (and, in other settings, usually intractable) controversies: defining a legal question is analogous to defining a policy frame where one is not supplied by facts alone. This is most often attempted in political settings by “appealing…to consensual, logically independent criteria for evaluating frames” (43). Utility is the most common criterion in public life, but often fails to establish itself as a consensus frame (43). Judges generally do not embrace the criterion of utility in the economic sense. It is therefore unsurprising that dominant social theories, which explain judicial work in terms of utility maximization, fail to account for what we deem the most notable intellectual quality of judges’ work: their aptitude in finding consensus definitions of questions.
Former clerk, Ninth Circuit Court of Appeals. Interview with the author. 29 August 2015.
Cece v. Holder, en banc oral argument, minute 36:22. Case number 11–1989. Available http://media.ca7.uscourts.gov. Accessed 25 January 2015.
Cece v. Holder, en banc oral argument, minute 26:50. Case number 11–1989. Available http://media.ca7.uscourts.gov. Accessed 25 January 2015.
Cece v. Holder, oral argument, minute 7:15. Case number 11–1989. Available http://media.ca7.uscourts.gov. Accessed 20 June 2016.
Henriquez-Rivas v. Holder, en banc oral argument, minute 10:05. Case number 09–71571. Available http://www.ca9.uscourts.gov/media. Accessed 20 June 2016.
Neither of the factual errors is repeated in the final written opinions in these two cases. The errors may have been caught in the opinion drafting process after oral arguments, or the claims may simply not have resurfaced after oral arguments.
Many asylum law scholars have found significance in the drafting history of the UN Convention, specifically the fact that the “particular social group” protection was a late addition, proposed by the Swedish delegate and passed on a voice vote without debate.
Chief Judge Diane Wood, Seventh Circuit Court of Appeals. Interview with the author, 4 May 2016.
See Mohammed v. Gonzales (9th Cir. 2005, 400 F.3d 785): “In this case, there are at least two ways in which the agency could define the social group to which Mohamed belongs … young girls in the Benadiri clan [or] … Somalian females” (400 F.3d 786–787). See also Perdomo v. Holder (9th Cir. 2010, 611 F.3d 662), where there is conceptual slippage between the particular social group “young women in Guatemala” (petitioner’s claim) and “women in Guatemala” (basis of the court’s decision).
References
Albiston, C. (1999). The rule of law and the litigation process: The paradox of losing by winning. Law & Society Review, 33(4), 869–910.
Almanac of the Federal Judiciary. (2009). Volume 2. Frederick, MD: Aspen Publishers.
Black, R. C., Owens, R. J., Wedeking, J., & Wohlfarth, P. C. (2016). US supreme court opinions and their audiences. New York: Cambridge University Press.
Calavita, K. (2016). Invitation to law and society, Second Edition. Chicago: University of Chicago Press.
Childress, C. (2017). Under the cover: The creation, production, and reception of a novel. Princeton: Princeton University Press.
Cook, W. W. (1927). Scientific method and the law. American Bar Association Journal, 13, 303–309.
Cross, F. B. (2007). Decision Making in the U.S. Court of Appeals. Stanford: Stanford University Press.
Danziger, S., Levav, J., & Avnaim-Pesso, L. (2011). Extraneous factors in judicial decisions. Proceedings of the National Academy of Sciences, 108(17), 6889–6892.
Dewey, J. (1924). Logical method and law. Cornell Law Quarterly, 10, 17–27.
Dewey, J. (1927). The public and its problems. New York: Holt.
Dewey, John. 1950 [1922]. Human nature and conduct: An introduction to social psychology. New York: Modern Library.
Dickstein, M. (Ed.). (1998). The revival of pragmatism: New essays on social thought, law, and culture. Durham: Duke University Press.
Edwards, H. T. (2003). The effects of collegiality on judicial decision making. University of Pennsylvania Law Review, 151(5), 1639–1690.
Edwards, H. T., & Livermore, M. A. (2009). Pitfalls of empirical studies that attempt to understand the factors affecting appellate Decisionmaking. Duke Law Journal, 58(8), 1895–1990.
Epstein, L., Landes, W., & Posner, R. (2013). The behavior of Federal Judges: A theoretical and empirical study of rational choice. Cambridge: Harvard University Press.
Epstein, L., Segal, J.A., Spaeth, H.J., and Walker, T.G. (2015). The supreme court compendium: Data, decisions, and developments. Sixth Edition. Thousand Oaks: CQ Press.
Feldman, A. (2017). Opinion construction in the Roberts court. Law & Policy, 39(2), 192–209.
Fischman, J. B. (2009). Estimating preferences of circuit judges: A model of consensus voting. Journal of Law & Economics, 54(4), 781–809.
Fourcade, M. (2016). Ordinalization. Sociological Theory, 34(3), 175–195.
Frank, J. (1930). Law and the Modern Mind. New York: Brentano’s.
Frank, J. (1950). Modern and ancient legal pragmatism—John Dewey and co. v. Aristotle: I. Notre Dame Lawyer, 25(2), 207–257.
Gigerenzer, G., & Engel, C. (Eds.). (2006). Heuristics and the law. Cambridge: MIT Press.
Goffman, E. (1963). Behavior in public places; notes on the social Organization of Gatherings. New York: Free Press.
Grofman, B. (1985). Criteria for districting: A social science perspective. UCLA Law Review, 33, 77–184.
Harner, M. M., & Cantone, J. A. (2011). Is legal scholarship out of touch? An empirical analysis of the use of scholarship in business law cases. University of Miami Business Law Review, 19(1), 1–50.
Hirschman, D., Berrey, E., & Rose-Greenland, F. (2016). Dequantifying diversity: Affirmative action and admissions at the University of Michigan. Theory & Society, 45(3), 265–301.
Holmes, Oliver Wendell, Jr. 1967 [1881]. The common law. Cambridge: Belknap.
Holmes, Oliver Wendell, Jr. 1997 [1897]. “The path of law.” Harvard Law Review 110(5):991–1009.
Hume, R. J. (2006). The use of rhetorical sources by the U.S. Supreme Court. Law & Society Review, 40(4), 817–844.
James, W. (2012). The varieties of religious experience: A study in human nature. Oxford: Oxford University Press.
Joas, Hans. 1996. The creativity of action. Translated by Jeremy Gaines and Paul Keast. Chicago: University of Chicago Press.
Kahneman, D. (2011). Thinking, fast and slow. New York: Farrar, Straus and Giroux.
Kesselheim, A. S., Cook-Deegan, R. M., Winickoff, D. E., & Mello, M. M. (2013). Gene patenting—The supreme court finally speaks. New England Journal of Medicine, 369(9), 869–875.
Lamont, M. (2009). How professors think. Cambridge: Harvard University Press.
Lamont, M. (2012). Toward a comparative sociology of valuation and evaluation. Annual Review of Sociology, 38, 201–221.
Lamont, M., Beljean, S., & Clair, M. (2014). What is missing? Cultural processes and causal pathways to inequality. Socio-Economic Review, 12(3), 573–608.
Lazarus, E. (1998). Closed chambers: The first eyewitness account of the epic struggles inside the supreme court. New York: Random House.
Lembo, A. (2017). Three chords & [Somebody’s] truth: Trajectories of experience and taste among hard country fans. Poetics, 60, 62–75.
Llewellyn, K. (1962). Jurisprudence: Realism in theory and practice. Chicago: University of Chicago Press.
Lybeck, E. R. (2019). Ajurisdiction. Theory & Society, 48(1), 167–191.
MacKenzie, D. (2011). The credit crisis as a problem in the sociology of knowledge. American Journal of Sociology, 116(6), 1778–1841.
Mashaw, J. L. (2012). Creating the administrative constitution: The lost one hundred years of American administrative law. New Haven: Yale University Press.
Mead, G. H. (1934). Mind, self, and society: From the standpoint of a social behaviorist. Chicago: University of Chicago Press.
Menand, L. (2001). The metaphysical Club. New York: Farrar, Straus and Giroux.
Merriman, B. (2017). The editorial meeting at a little magazine: An ethnography of group judgment. Journal of Contemporary Ethnography, 46(4), 440–463.
Merriman, B. (2020). Public Management’s problems are legal problems: How law contributes to inequity in contemporary governance. Perspectives on Public Management and Governance, 1–16. https://doi.org/10.1093/ppmgov/gvaa020.
Miner, R. (2013). ‘Dealing with the appellate caseload crisis’: The report of the Federal Courts Study Committee Revisited. New York Law School Law Review, 57, 517–554.
Moore, U., & Hope, T. (1929). An institutional approach to the law of commercial banking. Yale Law Journal, 38(6), 703–719.
Owens, B. R. (2017). Judicial Interpretive Disputes and the Adjudication of Asylum Claims in U.S. Federal Courts. PhD dissertation, The University of Chicago.
Owens, B. R. (2018). What is a social Group in the eyes of the law? Knowledge work in refugee-status determination. Law and Social Inquiry, 43(4), 1257–1278.
Owens, B. R., & Ford, L. R. (2019). Judicial social theorizing and its relation to sociology. Qualitative Sociology, 42, 229–249.
Owens, R. J., & Wedeking, J. P. (2011). Justices and legal clarity: Analyzing the complexity of U.S. Supreme Court opinions. Law & Society Review, 45(4), 1027–1061.
Posner, R. (2007). Economic analysis of law. Seventh edition. Austin: Aspen.
Posner, R. (2008). How judges think. Cambridge: Harvard University Press.
Posselt, J. (2016). Inside graduate admissions: Merit, diversity, and faculty gatekeeping. Cambridge: Harvard University Press.
Pound, R. (1938). The formative era of American law. Boston: Little Brown.
Rachlinski, J., & Wistrich, A. (2017). Judging the judiciary by the numbers: Empirical research on the judiciary. Annual Review of Law and Social Science, 13, 203–229.
Rivera, L. (2015). Pedigree: How Elite Students get Elite Jobs. Princeton: Princeton University Press.
Rorty, R. (1990). The banality of pragmatism and the poetry of justice. Southern California Law Review, 63(6), 1811–1820.
Rosenberg, G. N. (2008). The hollow hope: Can courts bring about social change? Second Edition. Chicago: University of Chicago Press.
Schlegel, J. H. (1995). American legal realism and empirical social science. Chapel Hill: University of North Carolina Press.
Schon, D. A., & Rein, M. (1994). Frame reflection: Toward the resolution of intractable policy controversies. New York: Basic Books.
Tamanaha, B. Z. (2009). Beyond the formalist-realist divide: The role of politics in judging. Princeton: Princeton University Press.
Urofsky, M. (2012). Louis D. Brandeis: A life. New York: Schocken Books.
Verkuil, P. R. (1978). The emerging concept of administrative procedure. Columbia Law Review, 78(2), 258–329.
Wood, D. P. (2015). Legal scholarship for judges. Yale Law Journal, 124(7), 2592–2625.
Cases cited
Cece v. Holder, 733 F.3d 662 (7th Cir. 2013).
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013).
Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005).
Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010).
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Owens, B.R., Merriman, B. “Habit and creativity in judges’ definition and framing of legal questions”. Theor Soc 50, 741–767 (2021). https://doi.org/10.1007/s11186-021-09437-1
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DOI: https://doi.org/10.1007/s11186-021-09437-1