6. Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-making

Abstract

Many political scientists who study judicial politics are skeptical that law affects decisionmaking. Attitudinal and most strategic accounts of judging rarely consider how law might constrain actors. The so-called "legal model" many studies purport to refute is not a model at all. In this chapter we provide some guidance on how to model law by distinguishing between various types of law (constitutional, statutory, administrative, and common, as well as the public law / private law distinction), by considering differential expected effects of precedent and its channeling function, by recognizing the profound differences in the type of judge being studied, and noting the distinction between the outcome and the opinion. We conclude by explaining that political scientists have been looking for law in (mostly) all the wrong places.

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