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See Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 Metaphilosophy 178 (2003), available at This one statement is enough to clarify both terms. See, e.g., Stephen J. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 S. Cal. One kind of empirical study of judicial decisionmaking might be regarded as continuous with the broader goal of social science, which I take to be something like understanding human behavior in general. Any given measure of performance may collapse into a prediction about substantive case outcomes. Whatever an empirical theory of judicial performance might in fact be measuring, it must always answer one normative question that a purely predictive one need not answer: should the measures in question form the basis for evaluating judges? Empirical vs. Normative; Varieties of empirical and normative claims/questions; Falsifiable vs. unfalsifiable; Some empirical claims. For another indication of why the topic of moral uncertainty as a whole matters, see this quote from Christian Tarsney’s thesis:. -Ex: People should not have to pay high taxes. There are usually a number of ethical questions and a number of empirical questions that could be asked about any single topic. I realize my usage here may be somewhat broader than Professor Leiter’s intended meaning. Public ratings of judges and courts based on this information might have the added desirable effect of sussing out the opaque criteria that various political actors use to champion particular judges or candidates, insofar as those ratings would exert pressure on such actors to give public explanations supporting any low-rated candidates they seek to promote. to interpret the answers. All rights reserved. The most popular method of investigation in contemporary analytic moral philosophy, the method of reflective equilibrium based on heavy appeal to intuitive judgments about cases, has come under concerted attack and is regarded by many … All rights reserved. Normative statements are ‘ought’ statements whereas empirical statements are ‘is’ statements. Also, on the back it states that it was a Political Philosophy book which also indicates that it is normative. I believe, for instance, that two people can agree about the core virtues of judging even if they have different outcome preferences. This is a widget area - you can put some widgets here by going to Appearance --> Widgets. Whether or how all these empirical perspectives might be integrated remains unclear. A single type of observed judicial decisionmaking might be understood simultaneously through the frameworks of sociology, political science, social psychology, cognitive psychology, and perhaps even neuropsychology. I've heard that positivism aimed to be purely empirical, while logical positivism recognised that empiricism needed to be combined with logic in order to actually be able to figure out anything. Whether we take the study seriously will depend on whether this assumption can be defended. But the project of measuring judicial performance need not be assimilated to that of theorizing the causes of judicial decisions. That is, if society’s notion of a good judge turns out to be nothing more than a set of predictions about the likelihood of a judge’s reaching particular outcomes in particular cases, then measures of judicial performance would be nothing more than proxy predictions about what judges would probably do in such cases. [1][1]. It might turn out, to be sure, that the theories with the most explanatory and predictive power tend to deemphasize the law as a determinant of decisions, but then again, it might not. Empirical science deals with facts; ethics deals with norms and values. Empirical questions are testable with facts, normative questions are more opinionated, less testable. That is, objective measures that serve as proxies for judicial quality are only necessary because of the lack robust theories that would predict how a particular sort of judge would likely decide a particular sort of case. [10][10]. Rev., July 31, 2009, (reviewing Leiter, supra).—there are multiple theoretical perspectives that might be relevant. and normative questions (What should have happened? An example of a normative question is whether people ought to act in an altruistic manner. A score of zero (0) is earned for an off-task answer or an attempted answer that merits no points. Just as a successful psychological theory of obedience might, among other things, identify the conditions that explain why and predict whether a given subject will obey an order given by an authority figure in a particular context (for example, personal characteristics of the subject, the subject’s relation to the authority figure, the nature of the order, and its expected consequences), one might likewise consider an empirical theory of judging in this vein successful if it allows particular conditions to be identified—for example, political ideology, characteristics of the litigants, particular features of a case’s history, or the provenance of relevant precedent—that explain and predict judicial outcomes.

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