Taking Law Seriously

Abstract

The positive literature on judicial behavior has not received nearly the attention it deserves. That literature has a great deal to offer, both to legal scholars and to those who are concerned about the role of legal institutions generally. For example, the literature has the potential to help shed light on the ability of courts to protect rights and foster economic development. This article argues that the positive literature has failed to see its due in large part because positive scholars often do not take law and legal institutions seriously enough.The article identifies three specific sets of problems with the positive scholarship, offering detailed suggestions on how positive scholars can avoid them. The first is the problem of normative bite: Too often positive scholars of judicial behavior seem to be trapped in their own disciplinary debates, without pausing to examine why it is that they are studying what courts and legal institutions do. Second, positive scholars need to pay greater attention to the norms of the law, i.e., how law and legal institutions operate. A skeptical stance toward law is fine, but that skepticism should not get in the way of accurately understanding properly the mechanics of law and legal institutions. Finally, empiricists in particular must take great care regarding the data upon which they rely. It is difficult to obtain good data on the workings of legal systems. Data that are readily available often present a distorted picture of the system being studied.Barry Friedman is Jacob D. Fuchsberg Professor of Law at New York University School of Law (barry.friedman@nyu.edu). The author thanks Chuck Cameron, Lee Epstein, Jennifer Hochschild, Jeff Lax, Stefanie Lindquist, Liam Murphy, Jeff Segal, Seana Shiffrin, Jim Spriggs, and three anonymous reviewers for invaluable comments on prior drafts. All errors are the author's own. Jane O'Brien and Kathleen O'Neill provided terrific research assistance.