Social Architecture, Judicial Peer Effects and the "evolution" of the Law: Toward a Positive Theory of Judicial Social Structure

• Publication year: 2010

Georgia State University Law Review

Volume 24 j g

Issue 4 Summer 2008

3-21-2012

Social Architecture, Judicial Peer Effects and the "Evolution" of the Law: Toward a Positive Theory of Judicial Social Structure

Daniel M. Katz

Follow this and additional works at: http://digitalarchive.gsu.edu/gsulr Part of the Law Commons

Recommended Citation

Katz, Daniel M. (2007) "Social Architecture, Judicial Peer Effects and the "Evolution" of the Law: Toward a Positive Theory ofJudicial Social Structure," Georgia State University Law Review: Vol. 24: Iss. 4, Article 8. Available at: http://digitalarchive.gsu.edu/gsulr/vol24/iss4Z8

This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.

SOCIAL ARCHITECTURE, JUDICIAL PEER EFFECTS AND THE "EVOLUTION" OF THE LAW: TOWARD A POSITIVE THEORY OF JUDICIAL SOCIAL STRUCTURE

Daniel M. Katz, Derek K. Stafford, & Eric Provins*

Building upon the themes of this symposium, as well as a growing extant literature demonstrating the common law displays properties of a complex system,¹ we believe existing theories of judicial decision-making and legal change would benefit from the concepts and techniques typically reserved for the study of complexity. Among possible approaches, network analysis offers one manner of representing the interactions between various entities across a

* Daniel m. Katz, J.D., m.P.P. University of Michigan. Ph.D. Pre-Candidate, Department of Political Science and Gerald R. Ford School of Public Policy, University of Michigan; Derek K. Stafford, Ph.D. Pre-Candidate, Department of Political Science, University of Michigan; Eric Provins, B.S. Candidate, University of Michigan.

1. See, e.g., Lawrence A. Cunningham, From Random Walks to Chaotic Crashes: The Linear Genealogy of the Efficient Capital Market Hypothesis, 62 geo. wash. L. rev. 546 (1994) (discussing chaos theory in the context of capital market regulation); Mark J. Roe, Chaos and Evolution in Law and Economics, 109 Harv. L. Rev. 641 (1995) (discussing legal evolution and invoking both path dependence and systems theory); Vincent Di Lorenzo, Complexity and Legislative Signatures: Lending Discrimination Laws as a Test Case, 12 J.L. & pol. 637 (1996) (employing chaos theory to review legislative responses to alleged lending discrimination); J. B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 Vand. L. Rev. 1407 (1996) (discussing both complexity and the general evolutionary model); David G. Post & Michael B. Eisen, How Long is the Coastline of the Law? Thoughts on the Fractal Nature of Legal Systems, 29 J. legal stud. 545 (2000) (uncovering the fractal structure of citations to precedent in judicial opinions); Thomas A. Smith, The Web of Law, 44 San Diego L. Rev. 309 (2007) (demonstrating the distribution of citations across the roughly four million cases in American law as consistent with the power law distribution); Elizabeth Leicht, Gavin Clarkson, Kerby Shedden & M. E. J. Newman, Large-Scale Structure of Time Evolving Citation Networks, 59 european J. of phys. B 75 (2007) (mapping the structure of the United States Reports and detecting temporal communities in case to case citations). See also Daniel A. Farber, Earthquakes and Tremors in Statutory Interpretation: An Empirical Study of the Dynamics of Interpretation, 89 minn. L. rev. 848 (2005); Daniel F. Spulber & Christopher S. Yoo, On the Regulation of Networks as Complex Systems: A Graph Theory Approach, 99 Nw. U. L. rev. 1687 (2005); Bernard Trujillo, Patterns in a Complex System: An Empirical Study of Valuation in Business Bankruptcy Cases, 53 UCLA L. rev. 357 (2005). For an extensive list of scholarship compiled by Professor Ruhl, see Society for Evolutionary Analysis in Law, Complex Adaptive Systems in Literature for Law and Social Sciences, http://law.vanderbilt.edu/seal/resources/readingscomplex.htm (last visited Sept. 20,2008).

978 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 24:4

complex adaptive landscape. Specifically, as applied to the path of the common law as well as theories of judicial decision-making, the networks paradigm helps evaluate the manner in which individual level judge choice maps to the judiciary's aggregate doctrinal outputs.³

Of course, to the extent individual decision-making is driven by factors entirely intrinsic to a given case and a given jurist,⁴ the study of interactions is arguably trivial as the description of the aggregate would reflect little more than the summation of individual preferences in a manner consistent with the institution's aggregation rule. It is far more likely, however, that judicial choice is, at least in part, impacted by a combination of jurists who are socially prominent

2. The analysis of social networks is long standing with notable early work conducted by scholars such as Jacob Moreno, Fritz Heider, and Kurt Lewin. See, e.g., Jacob Moreno, Who Shall Survive? (1934) (developing the "sociogram," an apparatus that allows social relationships to be drawn using analytic geometry); Kurt Lewin, Field Theory in Social Science (1951) (extending Moreno's work and applying a host of mathematical techniques including graph theory, topology, and set theory). Popular accounts of networks concepts can largely be attributed to the work of Stanley Milgram. See Stanley Milgram, The Small World Problem, 22 Psychol. today 61 (1967). Milgram is often credited with coining "six degrees of separation." However, many attribute the term to Hungarian author, Frigyes Karinthy, whose volume of short stories invoked such concepts. See Frigyes Karinthy, Minden Maskeppen Van [Everything is Different] (1929). A host of recent popular literature continues the public's widespread interest in network science. See generally Forbes, Networks, May 7, 2007 (devoting its Ninetieth Anniversary Issue to the "New" Age of Networks). For a non-exhaustive list of recent popular books in the subject, see also Albert-Laszlo Barabasi, Linked: The New Science of Networks (2002); Mark Buchanan, Nexus: Small Worlds and the Groundbreaking Science of Networks (2002); and Malcolm Gladwell, The Tipping Point: How Little Things Can Make a Big Difference (2000). Recent developments within the academy have also driven increased interest in network analysis. Among these developments the work of Watts and Strogatz is of utmost interest. See Duncan J. Watts & Stephen H. Strogatz, Collective Dynamics of 'Small World' Networks, 393 nature 440 (1998). See also Laszlo Barabasi & Reka Albert, Emergence of Scaling in Random Networks, 286 Science 509 (1999). For instructive texts on the subject see, e.g., The Structure and Dynamics of Networks (Mark Newman, Albert-Laszlo Barabasi, & Duncan J. Watts, eds., 2006); Stanley Wasserman & Katherine Faust, Social Network Analysis (1994).

3. See generally THOMAS C. schelling, MlRCOMOTLVES and MACROBEHAVIOR (1978).

4. Early public law scholarship often modeled judicial choice as a function of judge and case level variables. See, e.g., Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (1993). Later work inspired by New Institutional Economics (NIE) describes how judicial choice is in part conditioned on the institutional environment a given actor faces. See, e.g., Lee Epstein & Jack Knight, The Choices Justices Make (1998); Forrest Maltzman et al., Crafting Law on the Supreme Court: The Collegial Game (2000). These approaches do not explicitly model social-dynamics.

2008] POSITIVE THEORY OF JUDICIAL SOCIAL STRUCTURE 979

and socially proximate.⁵ While in some forms of network structure such "peer effects" are limited, in many states of the social world, they are supremely consequential. The precursor to evaluating potential doctrinal consequences is a classificatory effort designed to determine the micro implications of a given observed macro landscape.⁶

Section I provides a brief overview of the complex system paradigm while simultaneously reviewing existing theories of judicial decision-making and common law evolution. Section II considers a series of classic network structures. Among the possibilities considered herein are random graphs, clustered graphs, as well as models built upon processes of preferential attachment. Drawing from the larger complexity literature, Section II also describes the processes of self-organization likely responsible for generating each of these network structures.⁷

With an understanding of these possible "states of the world" in mind, Section III concludes with a consideration of judicial decisionmaking, arguing "the path of the law"⁸—from emergence to convergence—is conditioned, in part, upon the nature of self-organized social architecture that relevant decisional actors confront. In all, we believe "architecture matters." Thus, our broad sweep of the possibility frontier should help identify the conditions under

5. Recent work in the public law literature acknowledges a need for contextual understandings of judicial decision making. See, e.g., Charles M. Cameron & Craig P. Cummings, Diversity and Judicial Decision-Making: Evidence from Affirmative Action in the Federal Courts of Appeals, 1971-1999, Paper Presented at the 2003 Meeting of the Midwest Political Science Association (Apr. 3-, 2003) (manuscript on file with author) (applying a "social economics approach" to the behavior of judges on the U.S. Court of Appeals). Cameron and Cummings cite a number of studies which "cast considerable doubt on what might be called the traditional political science approach to decision-making on collegial courts." Id. See, e.g., Sean Farhang & Gregory Wawro, Institutional Dynamics on the U.S. Court of Appeals: Minority Representation...