The first Monday in October marks a ritual that has become as sacred
in the United States as circumcision is in Judaism or sainthood and
sacrament in Catholicism, as hajj is for Islam or the singing of
“God Save the Queen” in Britain. First Monday in
October is also the title of a popular 1981 Hollywood film
starring Jill Clayburgh and Walter Matthau, in which the first woman
appointed to the Court, a staunch conservative, spars with the
Court's reigning liberal. Through several vapid comedic encounters
they develop affection and collegial respect for each other.
That the statutorily created date for the start of the Supreme
Court's term is both sacred ritual and hackneyed entertainment is
neither surprising nor worrisome for those who study popular legal
culture. Americans have a romance with law. Our everyday lives are
saturated with law. This is, after all, a nation governed by the
longest lived democratic constitution in history. It is a nation of
more lawyers and more litigation than any other. Our leisure and our
commercial activities are suffused with law and legal representations:
the books we read, the TV shows we watch, and the jokes we tell are
frequently about law.
Each year, on the first Monday in October, as the Supreme Court term
opens, we can observe the solemn embodiment of this complicated affair.
The “Oyez, oyez, oyez” opening the Court's annual term
announces the Court's historic descent. Before this court
Americans bring all manner of human life and desire, from bankruptcy,
copyrights, and pensions to capital punishment, reproduction, and
sexuality. In our deference to the Court's judgments, we
experience a kind of chivalrous love—remote, solemn, and
unsullied.
More often than not, people experience a banal, profane law, whether
in emotional disputes played out in lower courts or in the fine print
on credit card statements. We acknowledge that too often “the
‘haves’ come out ahead”1
and that
law is just a game where position and money trump equity and justice.
Yet, we regularly declaim that “there oughta be a law,”
while we smugly exchange jokes about overreaching lawyers.
The contradictory embrace of law by Americans is not a defect in the
public culture. It is the source of law's durability and power.
Because Americans understand the law to be both a game played by unruly
lawyers and a solemn process that transcends the actions of
individuals, they are willing to place their trust in the long run of
the rule of law. Cynicism and idealism work hand in hand to construct a
less brittle and more pragmatic, accessible legality. Thus Americans
can revere the Supreme Court, be revolted by legal games, and enjoy
court comedies without abandoning their commitment to the rule of
law.
In this commentary, I argue that the law occupies a unique status in
our technological and consumerist society: It is the space of shared
public discourse and moral engagement. Whether one agrees with
particular cultural practices or policies, the law provides the terrain
upon which the disagreement is pursued. From this perspective, I want
to understand how the Supreme Court Forecasting Project might advance
or undermine the capacity of law to perform this communal, dialogic,
and moral role in American life. How might computer prediction of Court
decisions displace this complex, romantic, yet powerful engagement with
law?
Social theorists early recognized the centrality of law to the
cultures of modern societies. Emile Durkheim, for example, argued that
law had become the embodiment of the collective conscience in an age of
functional interdependence. In societies with an advanced division of
labor, law displaced the traditional role of religion, providing the
grounds for a new civic ethic. For Durkheim, law was the “visible
symbol of all that is essentially social.”2
For Max
Weber too, modern society is characterized by the dominance of formal
legal rationality and a parallel decline of patriarchal as well as
religious authority. However, the movement toward formal legal
rationality brought with it a unique tension between the procedural
formalism of legal rationality and the ever more strongly pressed
demands for substantive justice. In these foundational social theories,
the law is not simply the armed receptacle for values and priorities
determined elsewhere, nor is it merely a limited instrument of the
modern state. It is produced and woven throughout a culture—in
the cinema, streets, and shops, as well as legislatures and
judges' chambers.
The American legal realists and pragmatists shared this understanding
of the cultural constitution of law. Oliver Wendell Holmes, for
example, insisted that the law was a great anthropological document,
embodying not only general norms but also compelling personal accounts
of how citizens live and work. In The Common Law, he suggested
what has subsequently become the canonical realist account: “The
life of the law has not been logic but experience.”3
Like his younger admirer, John Dewey, Holmes used
“experience” as a name for culture.
4 By pushing
the focus of jurisprudence toward the exploration of culture, Holmes
and Dewey sought to resolve enduring dilemmas concerning the legitimacy
of law's coercion within an ethics of freedom and democracy, thus
creating a specifically American version of the tensions Durkheim and
Weber had identified.
The key to Holmes and Dewey's pragmatic, experiential,
democratic, and cultural orientations lay in the conception of life as
an experiment. Social change is constant; social relations are forever
open to revision. They argued that policies, or what they called social
reconstruction, to be effective and sound, should be produced through
open, participatory processes. The central epistemological insight,
however, lay in the recognition that probabilistic reasoning could
regularize the indeterminacy of individual human behavior; modernist
rationalism could be reconciled with, indeed could enhance, the
democratic participation and decision-making efficacy of what might
sometimes seem like irrational masses. Holmes and Dewey, and their
fellow pragmatists, adopted the insight of the biological and physical
scientists: chance variation at the individual level produced patterns
at the societal level. By expanding participation—increasing
sample size—we would produce more inclusive representation and,
as a consequence, more felicitous policies. Similarly, rather than
understanding law as a series of particular disputes or a limited set
of general rules, we could, and should, they claimed, understand law
probabilistically as a cultural system. Together, the classical
European social theorists and the American pragmatists and legal
realists articulated the dream of a social science, and they put law at
its center.
At first glance, the Supreme Court Forecasting Project looks like the
fulfillment of that dream: a social science of law. On the one hand, it
attempts to “make more transparent how decisions that impact all
of our lives are made.” From this perspective, to the degree that
the project uses publicly available, nonexpert knowledge to explain how
the Court makes its decisions, it can provide, as its authors claim, a
tool for democratic law making—exactly what those who sought a
social science of law had hoped for.5
I
use law-making here in the social constructivist sense, that as
participants in the legal system, we contribute to its
constitution.
The research can “benefit …
practicing attorneys and their clients,” according to Martin and
his colleagues, because “the everyday practice of law requires
lawyers to predict court decisions in order to advise clients or
determine litigation strategies.”
6
On the other hand, the project might promote not the dream of more
democratic legal practice, but rather Weber's nightmare of
imprisonment by our own increasingly masterful rationality.
For the Court Forecasting Project, Martin and colleagues asked a
unique set of subject matter experts from the world of practice and
academia to predict the outcome of each case or cases within their area
of expertise argued before the Court during the 2003–4 term. In
addition, they predicted the outcomes using their decision tree mode of
analysis, relying on models derived from statistical analyses of
previous decisions. The model more correctly predicted case outcomes
than did the experts (75 percent versus 59.1 percent of correct
predictions) while the experts predicted marginally better on the
individual justices votes (67.9 percent versus 66.7 percent).
I cannot help but be impressed by the imagination and commitment, no
less the stunning results, of this project. However, I am also a bit
worried that the statistical analysis of court decisions makes the law
appear to be less of a collective moral accomplishment than it is,7
By moral accomplishment, I refer simply to
the accomplishment of intersubjective communication that accumulates
over time into norms and collectively recognized ways of acting. See
Habermas 1998.
contributing
inadvertently to increasing juridification rather than the rule of law.
Several concerns animate my worry. Martin and colleagues argue
forcefully that their model relies on “observable case
characteristics” rather than nonobservable, nonlegal, inputs of
policy preferences, or expert intuitions. Nor does the forecasting
project engage, the authors claim, the stylized debates between
“attitudinalism” and “legalism” that have
characterized court modeling research, but rather limits its analysis
to variables that have been selected without “explicitly
theoretical reasons.” It is not clear to me how this is so. It is
not possible to select variables without a theory, a
“story,” that suggests the relevance of those variables.
Perhaps the authors mean that they have not produced a nuanced analysis
of case details, and in that sense, their work is not explicitly
theoretical. Or perhaps they mean that they have not produced a set of
coordinated propositions linking their variables. Nonetheless, they
surely have a reason for selecting the variables, for example, judicial
circuits, as useful. They are hypothesizing some relationship between
the Supreme Court and the various circuits; they simply do not tell us
what that hypothesized relationship is. Similarly, what is the
significance of the particular features they selected to describe the
petitioners and respondents? There are many observable, nonintuitive
features of petitioners and respondents that they did not use—for
example, age, first name, years of residence, organizational
connections, frequency as a litigant, experience or status of legal
counsel. Some of these have been shown to be important in predicting
litigation outcomes; others may be nonsensical. There is an embedded
story that makes some litigant features worth coding and modeling, and
others not. Yet we are not told that story.
If the authors had been more systematic in their delineation and
justification of “observable case characteristics,” then
they might prove not to be as removed from the stylized debates among
court analysts as they claim.8
Once their
embedded assumptions are made explicit, might we not find that the
authors have actually incorporated into their model many conventional
elements of the attitudinalism and legalism debate? We might also find
that they have incorporated, new, and perhaps important, considerations
into their model, for example, from new institutionalist theories about
the relationship between higher and lower courts. Thus despite claims
to being relatively atheoretical, the forecasting project is thoroughly
imbued with theory; it is just not explicitly articulated. If you want
to make predictions, you need some sort of theory.
What the project seems to show however, by its inventive experimental
design, is that there is nothing to recommend a theory emphasizing
detailed features of litigation over a theory emphasizing gross
structural or participant features. Interestingly, this conclusion
confirms, as it reproduces, the most general conclusion of social
scientific studies of law: structural features of the actors and
organization of the process—rather than substantive or doctrinal
particularities—explain much of what goes on in litigation and
other parts of the legal system as well.9
The project, however, also suggests variation in
the predictive value of its model and legal experts. Certain kinds of
cases do lend themselves to more fact and doctrinal analyses. Yet
again, we are offered no explanation, or theory, as to which kinds of
cases will be better predicted by the model or the experts, by party
and case characteristics or by facts and doctrine. Who can make this
distinction? Is it the ordinary citizen or the expert? Who knows the
story that best allocates expert and ordinary knowledge about what
kinds of predictors are most appropriate?
I suspect that voicing these worries, especially in this congenial
forum, was what the editors had in mind by organizing this set of
comments, encouraging a self-reflective and critical discussion about
the uses and consequences of our social science. Of course, reflexivity
is a paradoxical feature of the engirding iron cage of modern
knowledge/risk societies.10
My argument is simply that we live
in a world that, for the most part, is governed behind our backs by
expert systems. The law is an anomaly to the degree that despite its
incomplete transparency, it is nonetheless set in motion and shaped by
public participation and debate. To make my case, I will address three
concerns: law and the social sciences, law and consumer culture, and
trust in systems. I claim that because law provides this space of
collective moral discourse, our social science ought to be mobilized to
support rather than impede popular participation and critical
engagement with law.
Law and the Social Sciences
Despite the centrality of law in social theory as well as in
philosophical and legal pragmatism, understanding of its place in
society became marginalized in twentieth-century American social
science. Law was dislodged from a central role in the constitution of
society to a peripheral position as a technical instrument of the
modern state. What the law tells us about social relations and
culture became less important than what law does to social
relations. Law became defined primarily in terms of the processes of
creating and enforcing formal rules—as machine rather than
meaning. The study of law became a minor specialty for political
scientists, sociologists, anthropologists and psychologists and, until
the last 25 years, of almost no interest for economists.
The constricted view of law developed from within the social sciences
themselves and almost directly out of efforts to operationalize and
quantify Durkheim's and Weber's insights concerning its
centrality to social life. For example, for law to fulfill the role
Durkheim assigned it as the external symbol for the internal
characteristics of social life, it was important that law “exist
permanently … and constitute a fixed object, a constant standard
which is always at hand for the observer, and which leaves no room for
subjective impressions or personal observations.”11
Using law as an empirical indicator of social structure,
or as a dependent outcome of social struggles, scholars operationalized
it in very concrete, measurable, and instrumental terms. This
conceptualization reduced law from an aspect of, and forum for,
representation and moral engagement to a limited, functionalist tool of
social policy. The marginalization was happily supported by the legal
profession and academy, who continued to claim exclusive authority to
speak about and for the law while relying on the technical expertise of
social scientists to support professional legal projects. To this day,
the “law” sections of the American social science
associations are among the least prestigious, even if numerous, within
their disciplines,
12 The membership
numbers are available on the Web; among other operationalizations,
prestige could be measured by officers of associations doing research
on law.
although the quality of research and theoretical
sophistication is very high.
Nonetheless, continuing conversation about law among scholars from
various disciplines has produced a set of perspectives that exemplifies
some of the most important contemporary insights in many social science
fields. Bridging the epistemological and theoretical paradigms that
both fueled the knowledge production enterprise and created deep chasms
within each discipline,13
social scientific studies of
law synthesize competing paradigms through research that uses
scientific methods for public policy as in the realist tradition,
develops general theories of law with testable hypotheses as part of a
scientific enterprise, and includes closely textured interpretations
and understandings in analyses of culture. This symposium exemplifies
the moral and epistemological grounds of the dream of
a social
science. Too much is at stake in the law, and the study of law, to
allow occupational competitions to erode our collective commitment to
critical engagement with the law. I suggest that this is especially
important for social scientific studies of law because of the unique
position it occupies in contemporary consumer culture.
Law and Consumer Culture
Law stands alone in modern society in both its claim and capacity to
resist the fragmentation and commodification of consumer culture. Like
most modern practices, law is a product for sale; witness the lively
market in the sale of legal services, tax shelters, and jury selection
consulting.14
I can imagine, and I assume
the authors already have, a new start-up company, Court Forecasting,
Inc., available online for a fee for citizens and attorneys alike. See
Black 1989, who proposes from a very
different perspective similar use of sociological
jurisprudence.
But law cannot be entirely commodified and
still effectively regulate normative and functional diversity within a
system that proclaims democratic and participatory values. Indeed,
because of those democratic values inscribed at the heart of legal
legitimacy, American law now makes provision for access to those who
cannot fully participate in its commodification. More important than
commodification, however, is the fragmentation at the heart of consumer
culture and the resistance that law poses for fragmentation and
individuation.
Douglas Goodman describes how consumer culture “involves much
more than just the act of consuming”:
To say that we are a consumer culture means that our central
shared values have to do with consumption. Accordingly, a consumer culture
has effects far beyond actual consumption and its associated advertising.
The shared concepts and values of a culture help people to relate their
individual lives to larger themes. Because of this, a culture tends to
change all other institutions into something compatible with its
values.
Historically, most cultures have been centered around a set of
religious values and concepts. Alternatively, a few cultures have found
their values and concepts in secular intellectual and aesthetic movements,
usually called “high” culture. This is the type of culture that
one refers to when speaking of the arts, manners or education. A consumer
culture is distinct from either of these.15
Goodman explains that while religion and high culture have not
disappeared from contemporary societies, “they have become
instances of consumer culture. People still have religion, but
increasingly, they ‘shop around’ for the right religion and
choose one that fits their lifestyle.” In traditional societies,
religion was understood to be not a matter of choice or desire, but of
necessity and compulsion—something beyond question. In contrast,
consumer culture is all about choice, so much so that rational choice
has become the dominant explanatory paradigm for social action, and
satisfying human desire is the definition of both economic utility and
political virtue. In a similar vein, Goodman suggests, high culture is
no more normatively demanding or shared than is religion; “high
culture has simply become a niche market in a consumer culture,”
rather than a set of independent and unifying social norms. In consumer
culture, where everything is for sale, consumption is organized into
“niches,” and consumption niches, rather than social class,
define ranks in the system of social stratification.
Although “niche marketing” is often legitimated as an
economic and imaginative response to “natural” human
variation and desire, niches are anything but natural or morally
neutral categories. They are the products of statistical analysis and
manipulation; market niches are inventions of designers, advertisers,
and actuaries. “Individuals, once understood as moral or rational
actors, are increasingly understood as locations in actuarial
tables of variations.” These practices have consequences
for the ways “we understand ourselves, our communities, and our
capacity for moral judgment and political action.”16
Actuarial practices become the central mechanism for
coordinated action and have direct consequences for individual life
chances as well as group opportunities. “The statistical
processing of information allows [messages and] power to be
targeted quite precisely,” for electoral campaigns, marketing
prescription drugs directly to consumers, and generating specific
desires in children.
For my response to the forecasting project, the key point is that
actuarial niches not only create categories of persons appropriate for
different kinds of regulation and control, they also disaggregate
social groupings and impede the development of collective
consciousness. “The kinds of groups whose formations are
encouraged by actuarial practices are aggregates, conglomerations of
people whose belonging together is unrelated to any significant
traditions, discourses, or action. Actuarial practices define as groups
assemblies of people that are singularly sterile in their capacity for
political empowerment.”17
In contrast to market niches, we are all subjects of law. In
principle, there are no niches in which only some can hide. Of course,
we know that to be more illusion than fact; the “haves” do
come out ahead,18
Importantly, the
“haves” who come out ahead in legal processes are not
coterminous with standard socioeconomic indicators. They are repeat
players in the legal system and may, thus, include professional
criminals as well as corporations and wealthy individuals. See Kritzer and Silbey 2003 for a full review of this
literature.
and tax shelters and capital gains regulations,
for example, are effective or relevant for few citizens. Nonetheless,
even if we are differentially situated legal subjects we nonetheless
proclaim an aspiration that the law be otherwise and, importantly, that
aspiration supports a good deal of legal compliance and legitimacy.
Indeed, that ideal, and sometime reality, of equality before the law
undergirds the power and durability of the rule of law.
19Trust in Systems
The rational technologies that have produced consumer culture also
fuel much of our social science, engineering, medicine, and public
policy processes. This is so on a global scale where, some authors
argue, the power of the nation-state is challenged by multinational
corporations and transnational social ties facilitated by
technologically advanced communications.20
But on a local scale as well, our daily life is
colonized by technological systems that not merely influence but
determine modern selves and actions.
21 Jürgen
Habermas's phrase “colonization of the life-world”
refers to the proliferation of media-produced, marketed, and
disseminated images that become the symbolic resources and values of
ordinary people, although these signs and their meanings are
independent of, and often at odds with, people's daily needs and
experiences. There is an active struggle going on to hold on to locally
produced and experienced physical, emotional, and cognitive
transactions. What distinguishes this postmodern colonialism
22 from more traditional forms of colonialism and
capitalism, however, is that production and distribution, as well as
coordination and governance, is driven by and through systems that
operate almost entirely behind the backs of most people, but that
nonetheless demand enormous trust and command almost blind deference.
We have transferred our trust, Anthony Giddens argues, from persons
that we know or know of (e.g., fathers, priests, the king) to
“disembedded” abstract systems—markets, airlines,
electrical grids, water and sewer lines, banking, and so forth.
23 As much as we claim to value knowledge and
transparency, and supposedly promote the expansion of democracy around
the world, the material, technological infrastructure of social
relations is less and less visible, participatory, or specifically
democratic.
What has all of this to do with Supreme Court forecasting? Simply
this: law stands alone in its ability to mediate between the everyday
life of ordinary people and the technological systems that coordinate
the activities of the life-world by its unique capacity as both moral
accomplishment and coercive fact. Law is neither entirely of the
life-world, nor entirely systematized juridification. It is a unique
space through which trust in systems is publicly tested, negotiated,
and regularly reinvented. To the degree that the Court forecasting
project contributes to making transparent the processes of Supreme
Court decision making, it can promote critical engagement with the law,
which is necessary to resist the law's complete transformation
into an abstract, expert system. To the extent, however, that the
project itself buries its premises behind its own particular expertise,
it fulfills not the dream of liberatory social science, nor produces a
critical challenge to expert authority, but may promote further
colonization of popular culture and the life-world. It may help
undermine the people's capacity to engage the law.
There is too much at stake to allow Court decisions to become a
statistical game played behind the backs of its audience. Moreover,
would we really want to understand the Court's decisions as
yes/no outcomes? We know that the opinions often provide not only
the substance of the engagement with law, but also the grounds for
future decisions. Often, details of the opinion are more significant
than the outcome (e.g., 2003 decisions that approved one procedure for
creating affirmative action but challenged the second). While the
project may be successful on its own terms, as it gets disseminated and
discussed, its utility risks being reduced to simple dichotomies,
especially if it does not reveal its theoretical framework. Rather than
better and worse craft, justices will be assessed only by those who are
for or against some position. If the decisions become understood only
as wins and losses, we feed the politicization and gaming of judicial
appointments that have become ever more systematic in an effort to
predict, and control, the decisions of appointees. Interest in, and
study of, judging as a craft, as a way of engaging the community
together in dialogue, may diminish. From the perspective of citizen
participation, each of these rationalizing moves is another facet in
the iron cage of modernity.
But might empirical research such as the Supreme Court Forecasting
Project connect to the questions at the heart of legal scholarship? I
think so. The project can serve useful didactic classroom purposes,
like all good social science, liberating us from the view of judges as
wise elders to whom we should automatically defer. But here we are on
very delicate ground and must work against the usual trajectory of
professional projects.24
Is it possible to explicate
the theories and hypotheses of legal scholarship through
labor-intensive data collection and analysis without turning that
enterprise into an occupation (careers, cleavages, a field unto
itself), a profession that forgets its critical mission and becomes a
source of status, authority, and the concomitant restricted entrance
(e.g., PhD)? How can the forecasting project sustain the connection to
the human events that are the substance of debate and deliberation,
while exploring fundamental questions about legal authority and
democracy?
I recently read an example of the place we don't want to go with
Court modeling, and offer it as a caution. It appeared in the
Proceedings of the National Academy of Sciences and was sent
to me by a physical scientist. He was amused, but also worried, by it.
“A Pattern Analysis of the Second Rehnquist U.S. Supreme
Court”25
purports to show that
little interaction or discussion among the nine justices is necessary
to produce the Rehnquist court decisions; the analysis shows that the
votes of Justices O'Connor and Kennedy are “the likeliest to
determine the majority opinion” and thus the votes of just two
justices are sufficient to predict case outcomes. Additional analyses
of the two Warren courts suggest that perhaps four to five justices
(here called information dimensions) might better capture the range of
variation in decisions. But, the author notes, while the model suggests
the utility of more than one dimension (decision maker), nine are not
necessary (inefficient) to produce patterned, predictable, historically
comparable outcomes. What function does this paper serve in advancing
our understanding of legal disputes or judicial craft? What
anthropological insight, in Holmes's sense, does this analysis
provide of the way Americans live, or want to live? How does this paper
engage our public debates about justice, freedom, human dignity, the
limits of authority, and the grounds of security? Happily, the Supreme
Court Forecasting Project does not fall into this trap. But how do we
prevent the trap from springing when there is so much reward for
increasing complexity and predictability?
It would be wrong to conclude by suggesting that we can proceed
without expert knowledge; it is too late for that. Moreover, it would
be wrong to conclude that we can live without trust in systems, or that
those systems can be made entirely transparent to us. How to understand
and manage that trust is the key issue, whether it be trust in law,
electric power, or the continuity of everyday life as we come to know
and experience it.
