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Friday, July 11, 2008

Spatial Attitudinalism & Phillip Morris v. Williams

It is routine for political scientists to employ a "spatial attitudinalist" model of judicial decision-making, in which a judge's votes are predicted by the judge's non-legal ideology (often measured by the political party of the President who appointed the judge). I tend to think that the model is not helpful for lawyers who have to write briefs rather than poli sci papers. (How exactly does one insert a plea to a judge's "attitudes" into the brief? Write a special little section for Kennedy, appealing to his desire to look good at the next Bellagio conference? Ask Scalia to look to Catholic values?) Moreover, I suspect also that the model is predictive on such a crudely aggregate level that, in any particular case, it is not helpful for figuring out how a marginal justice is likely to vote.

Therefore, it is a source of pleasure to me whenever members of SCOTUS confirm my prejudices and rise above their "spatially" situated values. Observe, as a case in point, Justice Scalia's and Thomas' joining Ginsburg's dissent in Phillip Morris v. Williams. Could any attitudinalist model predict that these two conservative Republicans would be making a stand against the National Association of Manufacturers in favor of state power over punitive damages? Loyalty to federalism and hostility to judicial discretion in interpreting the due process clause surely explain their votes more than any constitutionally irrelevant "attitude." Likewise, Breyer's championing restrictions on juries surely rests on his love of technocracy over decentralized juries more than any fealty to the values of the Democratic Party or love of Big Tobacco.

Of course, one might ask whether federalism, suspicion of substantive due process, and a penchant for constraints on state juries count as non-legal "attitudes" or rather as legal principles. That distinction is the Achilles heel of attitudinalism: Political scientists have such a crude notion of law that they have a hard time figuring out how to model loyalty to legal principles, as opposed to "non-legal" ideology.

Until the poli sci types figure out how to draw this distinction with more refinement, I think that it is fair to say that Breyer's, Scalia's and Thomas's votes all count as evidence against the attitudinalist model. This is a cause for celebration to us lawyers who want to believe that "the Law" (whatever it might be) matters. So take that, Ted Ruger! Score one for the lawyers!

Posted by Rick Hills on July 11, 2008 at 12:39 PM in Constitutional thoughts | Permalink


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Rick: Your argument that rent seeking cannot be falsified has validity. However, one is dealing with ultra-bright, Machiavellian, political tacticians on the Court. These are people who persuaded Congress to confirm them against its better judgment.

Yes, lawyer job creation is a value to them. However, preserving their own SC jobs is the ultimate value to them. They understand the hatred of the public for their oppressive decisions. They will moderate lawyer rent seeking when they see it threaten SC interest. Despite their indoctrination, they care about themselves first. They have no accountability to any lawyer discipline, thus do not fear retaliation for betrayal of profession rent seeking. Self-interest has nearly no exception, but is trivial as a theory. [Roe v Wade is a good counter example, and I cannot explain it. We can all think of inexplicable, self-defeating mistakes we regret. The seemingly courageous, patriotic Brown v Board of Education and its offsprings generated massive lawyer employment and empowerment. The decision that lethal injection complied with the Eighth Amendment was crime suppressing, but it preserved a multi-billion dollar appellate lawyer business. This business is worthless, a scam. Over 90% of us will have a death far more horrible than execution.]

A social theory should be judged statistically. If an idea predicts 70% of unpredictable decisions, it is pretty good. Pick 10 cases you do not recognize. Read the dispute. Think about which side will promote lawyer work. See how many times the Court decided that way.

Posted by: Supremacy Claus | Jul 12, 2008 9:20:45 AM

No. All lawyers are indoctrinated to promote lawyer rent seeking. This indoctrination is so good, you were not aware of it. I can privately point to where they trumped your IQ of 300 and superb modern education. They made you believe in the supernatural, against your own senses, against all empirical evidence.

To its credit the profession was far more proceduralist in 1250 AD. It has moderated its glaring obviousness. They bring it out when needed, as when a President gets impeached for the use of a word. One notes the Supreme Court has potentially made breathing a regulatory subject matter. It declared carbon dioxide a pollutant, this ultra-conservative, ultra-pro-business Supreme Court has set us up to force us to buy, from a lawyer, carbon credits for each breath in the future.

Sometimes, the less extreme of personality (not of ideology) decide the Court has gone too far. They back pedal to avoid the wrath of the public that may kill the goose. They allowed the Guidelines for a decade after extremely violent decades. The Guidelines cut the crime rate in half. That was enough. Back to lawyer job production, with the charge led by Hang 'Em High Scalia, repeatedly quoting a foreign, bewigged weasel, who tried our Patriots in absentia, Gladstone. You may agree, Alito may have extreme politics, but has a temperate personality, compared to Scalia, and ill-tempered, bitter Ginsburg.

In the case of punitive damages, they see manufacturing on its death bed in the US. They do not want to get blamed for its demise. They back off in small steps. Extreme personality Justices fail to see the risk to the Court itself. The moderate personalities will find a way to shrink torts further until manufacturing recovers.

Here is a self-evident point for the Court. No lawyer can yet see it. If you have opposing experts testifying in good faith in a tort trial, a scientific controversy exists. The court has no competence to resolve it. Only more scientific data can resolve it. The only permissible torts should be those within the knowledge of the jury or those with expert support for only one side. All others should get dismissed as not within the subject matter jurisdiction of the court. I await the affirmation of the Supreme Court that the civil defendant has the right to a fair hearing, from among procedural due process rights. Once they affirm that last right, the above doctrine follows.

Posted by: Supremacy Claus | Jul 11, 2008 8:08:16 PM

So, Supremacy Claus, your position is that Justices Scalia and Thomas like to promote full employment for lawyers MORE than Justices Souter, Stevens, Breyer, Kennedy, Alito, and Roberts? But apparently, the desire to preserve punitive damages claims did NOT unite Right and Left, as you claim: Alito is at least as far "Right" as Scalia, yet he jumped off the alleged Trial Lawyers bandwagon.

I think that your claim, however, illustrates a common characteristic of "rent-seeking" claims: They tend to be non-falsifiable "just so" stories.

Posted by: Rick Hills | Jul 11, 2008 5:51:22 PM

The Rent Seeking Theory best explains anomalous lawyer decisions. Left and Right unify in their promotion of lawyer jobs by increased procedures, novel theories of litigation, and any measure that increases crime. Scalia led the attack on sentencing guidelines, despite his tough on crime ideology. The resulting jump in the murder rate should bear his name, the Scalia Bounce. These guidelines reduced crime by a half, and threatened lawyer employment.

The response to lawyer job loss will always unite right and left. Scalia and Ginsberg are also united by the degree of their extremism. The rest of the Court will back off when it goes too far, for example, in the destruction of manufacturing by ruinous litigation or a soaring crime rate in the 1980's. The extremists stay extremist in their Rent Seeking, despite the catastrophic consequences.

Posted by: Supremacy Claus | Jul 11, 2008 5:03:48 PM

Indeed, the whole canon of punitive damages cases (much more than just this one case) is one that confounds traditional political alignment, which is one reason I like having a seminar that uses these materials...

Posted by: Dan Markel | Jul 11, 2008 2:34:11 PM

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