A Political Regimes Approach to the Analysis of Legal Decisions

The public law field is in the midst of the most profound debate over research paradigms since the 1950s when behavioralism eclipsed traditional legal-institutional scholarship. The behavioralist "old guard" is under assault by "new institutional" challengers, and within the new institutionalism is a debate between positive theory institutionalists and interpretive institutionalists over how best to conceptualize institutions and their influence on judicial decision making. The purpose of this article is to explain how political scientists who study the law and the courts have come to think about their subjects and methods of inquiry, and to explain why a proposition that seems patently obvious and conventional to many strikes us as fresh and innovative. We consider the limits to the predominant behavioralist approach to studying the courts and judicial decision making, and examine how the "new institutionalism" departs from that as well as from more traditional institutional approaches. More generally we wish to discuss what it means to properly contextualize judicial decision making as a political activity. We examine the recent debate between "strategic choice" and "interpretive" institutionalists over how best to conceptualize institutions and their influence and suggest a third approach that might reconcile the core insights.