In this paper, which was prepared to help set the stage at an interdisciplinary conference held at the University of Indiana (Bloomington) in March, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past – such as indifference, professional self-interest and methodological imperialism -- as well as precedents for cross-fertilization in the future. Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, I seek to identify the most important lessons that we have learned, or should have learned, to date, as the springboard for progress in the future. The first lesson is that the relationship between law and judicial politics (as I define them) is not monolithic; it varies among courts and, even on the same court, among cases. As a result, we should speak of “judicial behaviors” rather than “judicial behavior.” The second lesson is that there is no dichotomy between law and judicial politics; they are complements, each needing (or relying on) the other. The third lesson is that the mix of law and judicial politics on any given court does or should result from institutional design decisions that reflect what the polity wants from that court. Finally, I argue that, because the relevance of the enterprise in which we are engaged and its stakes transcend the world of scholarship, scholars who work in this area bear a special burden of responsibility.
Courts, political science, history of the study of judicial behavior in legal scholarship, causes of behavior by judges, indifference, selfishness, methodological imperialism, legal and political similarities and synergies, interdependence, methodological pluralism, interdisciplinary turf wars, institutional design considerations, duty
What's Law Got to Do With It?: What Judges Do, Why They Do It, and What's at Stake
Burbank, Stephen B., "On the Study of Judicial Behaviors: Of Law, Politics, Science and Humility" (2011). Faculty Scholarship at Penn Law. 266.
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