Two Answers for Judge Posner

I said that I thought the Justices in the gun use case could have passed polygraph tests in which they said their semantic arguments were a substantial basis for their decisions.  In reply, Judge Posner has asked me two questions.  Here are my answers.

1.  What is my basis for thinking this?  Conversations with judges.  For anyone who does empirical studies of judicial decisions, and finds evidence of what seems like ideology at work in them, it is common enough to be told by a judge something like this: "that's interesting, but it doesn't square with my experience -- when I decide cases, I really feel that I'm making decisions based on legal materials, not policy preferences."  I have been told that sort of thing a number of times in conversations about these same issues, and I don't think the judges who have said it are being disingenuous.  (Sometimes objections like these are made public, as by Harry Edwards of the D.C. Circuit.  I don't agree with him, but I don't think he is being disingenuous, either.) 

The implication of the question, and of Judge Posner's earlier remarks, is that he doubts the polygraph test would be passed.  I would be interested in hearing speculation about this from the other judicial participants in this panel (but I sense a danger of circularity here!). I think polygraph tests of this kind are an exciting and amusing frontier in empirical legal scholarship.  If Judge Posner can persuade his colleagues to take them, I will start hunting up grant money. 

2.  Suppose they did pass the test; what would that show?  It would show that (a) they thought those semantic arguments were important, and didn't intend them as a smoke screen; and that (b) they thought that by relying on semantic arguments, they were deciding the case on grounds independent of their policy preferences.  Point (a) would fortify our claim that it's worthwhile to study how semantic arguments work, as we have been doing; for they are serving some function (but what?) in judicial decisionmaking.  As for point (b), despite the polygraph results I would not conclude that the semantic grounds really were the basis for their decisions in any deep sense.  On the contrary, I would point to our studies and suggest that the semantic arguments probably felt attractive because they squared with the judges' policy preferences.  So perhaps the semantic arguments are best viewed an unintentional or unconscious smoke screen (or maybe as a way to reduce cognitive dissonance, to use Judge Posner's phrase).

And so I would say:  beware semantic arguments; they sound unconnected from policy preferences, but easily get entwined with them and express them even if you don't realize it (arguments about language can feel very convincing, like they have nothing to do with preferences, but that feeling is unreliable).  If you really do want to argue about semantics and not policy, we have found a method that might make this somewhat more likely to work, though the method may or may not be attractive in any given case for reasons we talk about in our papers (Judge Posner would probably never like this approach).  If it turns out that you actually want to argue about policy and not semantics, then it would be better to stop pretending that semantics are the issue.  (Here I think Judge Posner would agree.)

Comments

[Michael F. Martin]

"The specific role of social systems, such as law, economy, politics and religion, is to contribute to the emergence of forms of meaning through which the complexity of the
world can be understood. The evolution of ‘meaning’ marks ‘a new way of combining closure and openness in constructing systems’ (Luhmann, 1995: 38) based on the aggregation and integration of information over time. Social systems are more or less
effective according to the degree to which they can simultaneously increase the flow of information from the external environment, and their internal capacity to absorb and process that information. Thus ‘[t]he theory is not concerned, like classical theories of equilibrium, with returning to a stable state of rest after absorption of disturbances, but with securing the constant renewal of system elements – or, more briefly, not with static but with dynamic stability’ (Luhmann, 1995: 49).

To say, then, that the legal system functions as a cognitive resource means that it operates in a cycle of interaction with its external environment. The legal system receives information from the external environment, processes it in forms which are specific to the creation of legal or juridical meaning, and returns this information to the environment in the form of legal communications. The capacity of economic system, in its turn, to receive this information, depends on the existence of institutions capable of receiving and processing legal information. The idea that laws are like prices is half right, since prices embody highly complex information about supply and demand in ‘coded’ form which facilitates decision making by agents who may be distant in time and place from the initial market movements (Sugden, 1998a). But just as the economy possesses its own particular mechanisms for the creation of information in the form of prices, so the legal system possesses its own internal logic, which is not that of the market. This requires us to consider more closely the internal logic of legal ordering."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1581746

I agree with Judge Posner (who at least elsewhere has argued) that the semantic arguments are partly there to make a process, which can have such dramatic personal consequences for its participants, easier for lawyers and judges to handle psychologically. But I'm not sure this is can be understood entirely as a form of cognitive dissonance. That seems to assume that there is a unitary framework for understanding policy consequences (such as cost-benefit analysis), an assumption that fails spectacularly outside particular domains.