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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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CHILDRESS LECTURE SYMPOSIUM: THE POLITICAL (SCIENCE) CONTEXT OF JUDGING
Published in 2003. St. Louis University Law Journal 47 (3): 783-817.

Lee Epstein
Jack Knight
Andrew D. Martin

Introduction

For at least two decades now, the legal academy has made extensive use of the theories and tools of the economist. Though not all in the law world view this as happy development few would deny its importance.  Indeed, the integration of law and economics is so complete that nary a substantive area of law remains untouched; nary a law curriculum fails to house a course on the subject; and nary a law faculty lacks a specialist, if not a Ph.D., in economics.

The same could not be said of political science. While in recent years theories regularly bandied about by political scientists—such as “the attitudinal model” and “the strategic account”—and data sources that we regularly use—such as “the Spaeth database”–are now making appearances in the law reviews, recent is the operative word. It only has been in the last few years that law professors have had shown much interest in political science approaches to judging; and that interest is spotty to say the least.

That is why we so appreciate Professor Merrill’s effort. From top to bottom, he consciously seeks to engage political scientists in ways that are virtually unknown in the law world. He has gone to great lengths to understand (what is largely) our literature and to apply (what are largely) our tools to illuminate an intriguing phenomenon. And, at the end of the day he tells us something really fascinating about the current Supreme Court, “The Rehnquist Court(s).”

These are some of the many assets of Professor Merrill’s lecture. As is probably the case for all pioneering efforts, however, it also has its share of deficits. Mainly we think that in future research, he—and indeed, other legal academics—might make even better use of our theories and technologies by gaining a firmer grasp on the overall “political science” project, developing a more nuanced understanding of our leading theoretical accounts, and assessing the implications of those accounts against more reliable and valid data via more appropriate methodology.

That Professor Merrill’s work could be improved with greater attention to these matters comes as no surprise. We need only think of the initial works invoking theories and methods of economics: Many were less than adequate adoptions or adaptations, evincing a lack of understanding of even the basics of the prevailing paradigm in that field. Years later, perhaps as a result of more training, deep reading, and the influx of economists into the legal academy that has changed. The law journals are now replete with enlightened and enlightening studies relying in part or in whole on the theories or tool of economics.

We believe, as does Professor Merrill, that political science has at least as much to add to our understanding of law-related phenomenon, but we hope that it does not take as long for legal academics to develop an appreciation of our world; that Professor Merrill’s paper is only the first in what will, without doubt, be a long and fruitful dialogue between political scientists and legal academics.

Professor Merrill has done a great service by starting the conversation. We would like to push it even further by clarifying what it is we political scientists do and exploring our work within the context of Professor Merrill’s talk. At times we are critical but by no means to we wish undermine his research. Quite the opposite: We only seek to demonstrate how he might bolster some of his claims with greater attention to theory and data.

Click here for the article (.pdf).