Calling All Org Theorists and Judicial Behavioralists
OrgTheory, meet Empirical Legal Studies. And hey there, Mike McBride. Also, hi judicial behavioralists everywhere. At some point, we meet at the same breakfast table.
Over at ELSBlog, Carolyn Shapiro reports:
One interesting presentation was a paper entitled Hustle and Flow: A Social Network Analysis of the American Federal Judiciary by Daniel M. Katz and Derek K. Stafford, both political science graduate students at the University of Michigan. Katz and Stafford are interested in the social structure of the judiciary and, more controversially, whether that structure has an effect on doctrine or case outcomes. Different from the prevailing models of judicial behavior (attituindalism, legalism, or the strategic model), their hypothesis is that judges -- at least sometimes -- are influenced by "peer effects," not just by their own political views or by legal sources. (Such social pressures could be a partial explanation for the panel and circuit effects documented on appellate courts. See, for example, Kastellec, Jonathan P., "Panel Composition and Voting on the U.S. Courts of Appeals Over Time" (May 14, 2008). Available at SSRN: http://ssrn.com/abstract=1012111) and Kim, Pauline T., "Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects" (March 31, 2008). Available at SSRN: http://ssrn.com/abstract=1115357 ).
In order to study these social or peer effects, they must find a way to describe the social networks of the judiciary. As an initial attempt to do so, Katz and Stafford employ new network analysis techniques to measure the paths that law clerks take between judges. In other words, they chart the likelihood that a law clerk for, say, Judge Kozinski, will later clerk for Justice Kennedy, or that a law clerk for a particular district court judge will go on to clerk for a particular appellate court judge. Their study "visualizes law clerk traffic" during the last Rehnquist natural court and produces some interesting representations of the relationships between judges. (They identified about 900 clerks who moved from one judge to another during this period.)The graphic depiction of these law clerk moves is one of the more interesting aspects of the study. In one depiction, Supreme Court justices are, not surprisingly, clustered in the middle, but -- more surprisingly -- district court judges are "suffused throughout the network," not relegated to the periphery. This is one representation, Katz and Stafford suggest, of the fact that judges with equivalent institutional authority in fact have different levels of influence.
Sounds interesting. I actually don't usually care about tracking the movement of the elites (and indeed, the network of feeder clerks/judges must be depressingly insular), but the methodology will be worth noting. At least this is social science, whereas the spate of books about The Elect, The Chosen, blah blah, was merely fawning. Also, analyzing influence and power in organizations is much more interesting, and there's cognitive science/psychology studies (granted, using college students) that back up the idea of "panel effects." Anyway, the above cites are well worth reading.