Lee Epstein, William M. Landes, Richard A. Posner, The Behavior of Federal Judges: A Theoretical & Empirical Study of Rational Choice, Cambridge (Massachusetts): Harvard University Press, 2013, 422 pp, hb, £36.95.
| Published date | 01 January 2014 |
| Author | Sebastián Castro |
| DOI | http://doi.org/10.1111/1468-2230.12061_2 |
| Date | 01 January 2014 |
element cannot simply be derived from the designs invested in it. What emerges
from this carefully constructed study is a clear sense of the capacity of
ethnographic observation to make this mode of agency visible, and a truly
innovative account of the workings of bioethical protocols and techniques.
Alain Pottage*
Lee Epstein, William M. Landes, Richard A. Posner,The Behavior of Federal
Judges: A Theoretical & Empirical Study of Rational Choice, Cambridge
(Massachusetts): Harvard University Press, 2013, 422 pp, hb, £36.95.
For more than 50 years, the empirical analysis of judicial behaviour, specifically
how judges decide cases, has been a topic of considerable academic interest. The
subject was initially dominated by political scientists who had better methodo-
logical tools to empirically test different theories concerning the behaviour of
judges. But in recent years, with increased attention to interdisciplinary research,
informed by social science research methods, interest in the behaviour of judges
has also found a place in the research agenda of legal academics. Against this long
academic history of empirical study and theorising about how judges decide
cases, The Behavior of Federal Judges, written by an interdisciplinary team com-
posed of a political scientist (Epstein), an economist (Landes) and a legal academic
and judge (Posner), proposes a novel theoretical approach, which attempts to
better explain judicial decision-making.
The majority of the existing empirical literature in this field, presented
splendidly in Chapter 2, operates within the limits set by two opposite views
on how judges decide cases: the ‘legalist’ and the ‘sceptical’ views of judicial
behaviour. According to the legalist (or formalist) view of judicial behaviour,
adjudication involves a neutral and objective interpretation of legislation and
precedent, combined with the use of logical reasoning, to reach a decision. The
adjudicatory role of judges is straightforward and mechanical; their role is limited
to applying the law to the specific facts of a case, calling ‘strikes and balls’ as
current United States Supreme Court Chief Justice Roberts famously stated in
his confirmation hearing. This view of the law, the authors claim, is predominant
within the legal community. They contend, however, that support for this view
is typically ungrounded since the empirical literature, strongly suggesting that the
legalist theory does not reflect the reality of how judges decide cases, is not
widely known. This has meant that most lawyers and conventional legal scholars
have promoted an unrealistic picture of judicial behaviour in which careerism
and ideology play no role. The ‘sceptical theory’ of judicial behaviour, on the
other hand, which is paradigmatically represented currently by Jeffrey Segal and
Harold Spaeth’s Attitudinal Model (Cambridge, CUP, 2002), takes ideology to be
important and proclaims that judges are basically political animals that decide
*London School of Economics and Political Science.
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© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. 151(2014) 77(1) MLR 148–154
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