New Legal Realism and the Explanation of Judicial Behavior: Doctrine, Data, and High Theory

Abstract

This article was originally presented at the New Legal 10th Anniversary Conference, held at the University of California-Irvine Law School in August 2014, for the panel, Realism About Judges, Doctrine and Power.The article explores the history of realism and the explanation of judicial behavior, with discussions of contemporary political theory approaches to judicial behavior (in particular, the attitudinal model of judicial behavior).The article notes that while it is likely that most judges act in good faith when deciding cases, seeing themselves as open-minded in deciding the legal disputes before them, legal and political science observers (and others) notice patterns seemingly more related to ideology than doctrine. The idea that judicial decision-making is political, and that in court decisions we are being governed as much by the people as by law, is now a commonplace, but the underlying reality of judicial decision-making remains complicated, with much work still to be done by empirical research.The article argues that there remains a role also for (non-empirical) legal theorists in this debate, to investigate and clarify what is meant by determined outcomes, and to help to ascertain which issues are in fact legally determined and when even predictable outcomes might be explained by factors other than legal doctrine.