Vast Right Wing Conspiracy (of Lawyers)

July 18, 2006 8:54 AM

Two recent papers examine networks among Republicans: one among lawyers and the other among judges. Lawyers of the Right: Networks and Organization concludes that conservative lawyers, and particularly the Federalist Society, occupies a structurally important core bridging the gap between the religious and business constituencies on the right, which otherwise wouldn't interact. Meanwhile, Do Republican Judges Cite Other Republican Judges More? concludes that judges tend to base outside-circuit citation decisions on the political party of the cited judge, tend to cite judges of the opposite political party significantly less, are more likely to engage in biased citation practices in certain high stakes situations, and cite disproportionately more to those judges that cite back to them frequently. [via Professor Bainbridge and Empirical Legal Studies]
posted by monju_bosatsu (10 comments total)

Incidentally, the paper on citations is a good example of the recent wave of citation network analysis. Another paper using this method relevant to the topic of this post is The Reagan Revolution in the Network of Law, which concludes that "the Rehnquist Court has made a dramatic alteration in the network of precedent and, in the process, set the stage for a potentially revolutionary change in the makeup of the law."
posted by monju_bosatsu at 8:55 AM on July 18, 2006

[...]cite disproportionately more to those judges that cite back to them frequently.

Good lord, it sounds like blogging.
posted by mkhall at 9:29 AM on July 18, 2006

Thanks monju_bosatsu.

Refutes the "darn liberal activist judges" screed with actual empirical data.
posted by nofundy at 11:16 AM on July 18, 2006

Even if radical conservatives do not succeed in establishing an actual conservative authoritarian regime, in other words, an empire to replace the republic, we will still be left with a radically conservative legal infrastructure of vast scope and influence, which will cripple our democratic institutions, not to mention our educational and cultural institutions, for at least a generation.

Franklin Roosevelt tried, and failed, to cope with this problem by means of a 'court-packing' scheme. What are we going to do, if we have the opportunity?
posted by jamjam at 11:35 AM on July 18, 2006

Obligatory thread cross-pollination link....
posted by lodurr at 11:44 AM on July 18, 2006

Russ Feingold: The Administration's Defense for Illegal Wiretapping is Just Plain Gone
posted by homunculus at 12:03 PM on July 18, 2006

This is just another datapoint that supports my contention that more than nanotech, more than biotech, more than any other emerging technology (excepting maybe an exotic energy source), it's social network analysis that will be the disruptive force that reshapes our culture & society over the next half century. It's something that can't be left to the intelligence agencies & corporate datamining outfits, it has to be done out in the open by an organization held in the public trust. Transparent, network-based, open source, all of that. We're not quite ready for it yet, but I think we're getting there.
posted by scalefree at 12:08 PM on July 18, 2006

And while we're on the subject of law & networks, I'm not sure if this paper ever made it to the Blue before: The Web of Law. It's about the structure of the network formed by the laws themselves. Pretty cool stuff, has enormous implications IMO.
posted by scalefree at 12:29 PM on July 18, 2006

This contention borders on the absurd. Anyone will working knowledge of the judiciary knows that judges don't do their own research and writing; they have law clerks do that for them. I worked as an assistant law clerk to arguably the most conservative judge in the District of Massachusetts, and I can tell you the times he told me or the other law clerks to revise a draft opinion to include more Republican sources (or anything like that) numbered around zero.

This strikes me as a case of non causa, pro causa. Judges don't go out of their way to cite to other judges with similar political leanings simply because those judges have similar political leanings. If a judge is looking for legal support for a politically significant decision, he's most likely going to find it in opinions written by other judges with similar political allegiances.

Thus, a judge doesn't need to go out and look for opinions to cite written by like-minded colleagues. If a judge is deciding a politically significant case (and they all eventually do), any sort of search for supporting authority is going to produce results from judges with similar opinions on the issue; otherwise, the opinions wouldn't provide the legal support the judge is looking for. The fact that the two judges might share political allegiances is a necessary incident of the fact that they have a similar view on a politically significant legal issue.
posted by Law Talkin' Guy at 4:13 PM on July 18, 2006

This contention borders on the absurd. Anyone will working knowledge of the judiciary knows that judges don't do their own research and writing; they have law clerks do that for them.

I guess I'm not seeing what problem you find with this analysis. Ask yourself: Who hires the clerk? Who influences the clerk? What is the purpose of being a clerk -- is it not, in part, to be influenced by a more experienced, ostensibly wiser practitioner of your craft?

This is a social network analysis. If you're looking to assess the structure of a network, you need to have something to measure. Citations are one metric. Membership in societies is another metric. The measurable associations of your clerks would be another. People have been doing this kind of analysis with regard to scientific papers and associations for decades. Is there any reason they shouldn't do it on legal decisions?
posted by lodurr at 5:37 AM on July 19, 2006