PERSPECTIVES ON LAW AND LEGAL INSTITUTIONS AS COMPLEX ADAPTIVE SYSTEMS by Daniel Martin Katz A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (Public Policy and Political Science) in The University of Michigan 2011 Doctoral Committee: Associate Professor Jenna Bednar, Chair Professor Carl P. Simon, Chair Professor Scott E. Page Professor James Jondall Prescott © Daniel Martin Katz 2011 All Rights Reserved ACKNOWLEDGEMENTS I would like to thank my committee for their guidance throughout this process. I would also like to thank all of my friends and family – you helped navigate this epic journey. In particular, I would like to thank my parents – David and Ellen Katz. ii TABLE OF CONTENTS ACKNOWLEDGEMENTS .................................................................................... ii LIST OF TABLES ................................................................................................. iv LIST OF FIGURES ................................................................................................v LIST OF APPENDICES ................................................................................... …vii ABSTRACT ................................................................................................ …….viii CHAPTER ONE. INTRODUCTION…………………………………….…...………. 1 TWO. INSTITUTIONAL RULES, STRATEGIC BEHAVIOR, AND THE LEGACY OF CHIEF JUSTICE WILLIAM REHNQUIST: SETTING THE RECORD STRAIGHT ON DICKERSON V. UNITED STATES ……………………….…………………………….. 10 THREE. HUSTLE AND FLOW: A SOCIAL NETWORK ANALYSIS OF THE AMERICAN FEDERAL JUDICIARY ……............................. 59 FOUR. NETWORK ANALYSIS REVEALS THE STRUCTURAL POSITION OF FOREIGN LAW IN THE EARLY JURISPRUDENCE OF THE UNITED STATES SUPREME COURT ..………………..…. 128 iii LIST OF TABLES Table 3.1 Ranking Jurists Using Various Measures of Centrality………..………….108 Table 3.2 Degree Distribution ………………...…..…………………..……………..112 Table 4.1 Citation Source Codes ………...…..…………………....…………………134 Table 4.2 Summary Statistics (1791-1835) ……......…..…………………..………...135 Table 4.3 Targeted Attack and Network Robustnes ……..….................................…159 iv LIST OF FIGURES Figure 2.1 Decisional Flowchart for the Chief Justice .……..…………………........ 26 Figure 3.1 Wide View of the Kamada-Kawai Energized Judicial Social Network…………………………………………………………………100 Figure 3.2 Wide View of the Fruchterman-Reingold Energized Judicial Social Network………………………………………………………………….101 Figure 3.3 A Close View of the Kamada-Kawai Judicial Social Network……..…...102 Figure 3.4 A Close View of the Fruchterman-Reingold Judicial Social Network………………………………………………………………….103 Figure 3.5 The Highly Skewed Degree Distribution of the Judicial Social Network……………………………………………………………….....111 Figure 3.6 Energizing Algorithm Drawing Stages ……………………………….....126 Figure 4.1 An Example of Citation Identification ……………………………….....133 Figure 4.2 Case Frequency 1791-1835 ……………………………………………..136 Figure 4.3 Citation Frequency 1791-1835 ………………………………………….137 Figure 4.4 Citation Frequency (By Source) 1791-1835 …………………………….138 Figure 4.5 Citation Source (By Case) 1791-1835 …………………………………..139 Figure 4.6 Citation Source (By Case) 1791-1835 …………………………………..140 Figure 4.7 General Form Representation of a Dynamic Directed Acyclic Graph …..143 Figure 4.8 Legal Citations as a Dynamic Directed Acyclic Graph ……….………...145 Figure 4.9 United States Supreme Court Citation Network 1810 ………….…….…147 Figure 4.10 United States Supreme Court Citation Network 1820 ………………....147 v Figure 4.11 United States Supreme Court Citation Network 1835 ………….……...148 Figure 4.12 United States Supreme Court Citation Network 1791-1835 …….…….151 Figure 4.13 Eigenvector Centrality and Proportion Foreignness …………………....155 Figure 4.14 SCOTUS 1835 After Targeted Removal Cut #1 ..............................…...157 Figure 4.15 SCOTUS 1835 After Targeted Removal Cut #2 .....................................158 vi LIST OF APPENDICES Appendix 3.1 Sample of the Katz, Stafford & Provins Dataset ……………..…......124 Appendix 3.2 From a Ring Lattice to an Energized Network ...……………...…….125 vii ABSTRACT PERSPECTIVES ON LAW AND LEGAL INSTITUTIONS AS COMPLEX ADAPTIVE SYSTEMS by Daniel Martin Katz Chair: Jenna Bednar This dissertation employs various theoretical and methodological perspectives to consider the “evolution” of the law and “law as a complex adaptive system.” Chapter 2 addresses the strategic institutional conditions that produced Chief Justice Rehnquist’s majority opinion in Dickerson v. United States. In the wake of the Chief Justice’s ruling, legal scholars grappled to interpret this apparently anomalous decision. This process produced a litany of deeply unsatisfactory explanations for the Chief’s behavior. Chapter 2 rejects all of these existing explanations and instead outlines a game theoretic account for the Chief’s decision in this very important Miranda related case. viii Applying network theory, Chapter 3 considers the social topology of the American federal judiciary. Scholars have long asserted that social structure is an important feature of a variety of societal institutions. However, to date, such social considerations have not been formally integrated in positive legal theory. Using the flow of law clerks as a proxy for social and professional linkages between jurists, Chapter 3 offers a variety of visualizations and analytics useful for considering the physical properties of the judicial social network. Chapter 4 considers the ‘evolution’ of the law in the early jurisprudence of the United States Supreme Court. Relevant dynamics include but are not limited to doctrinal importation, path dependence, cross-fertilization, mutation, fitness and selection. Chapter 4 explores a subset of these dynamics in the applied context of the early United States Supreme Court (1791-1835). Justices on the early United States Supreme Court relied upon a wide variety of sources as evidence in support of their arguments. Chapter 4 offers both descriptive data regarding the magnitude of references and identifies the extent to which those references imported ideas from foreign sources. Next, it applies the tools of network science to measure the structural importance of these foreign law infused decisions. While the empirical results are relevant to the ongoing debate regarding the Supreme Court's reliance upon foreign sources, there is something far more fundamental at stake. Specifically, Chapter 4 introduces the “legal genome project” a new conceptual framework useful for understanding the “evolution” of the law. ix CHAPTER ONE INTRODUCTION Continuity and change are fundamental features of social institutions. While any theory of change is primarily a theory of continuity, evaluating the conditions that give rise to institutional change is a critical inquiry. The exploration of the mechanics of social and institutional change is the hallmark of the social scientific enterprise. Methodology, intellectual paradigms are the vehicles scholars employ to provide perspective on these processes. One emerging approach – the complex systems perspective – is a vehicle to consider the dynamic evolution of various institutions including various legal and political institutions. Indeed, a growing literature argues that the complex systems paradigm is the appropriate lens through with which to consider the development of the common law and the dynamic interaction of its constitutive actors. This perspective of law as a complex adaptive system is one that does justice to the dynamic interplay between judges (and their preferences and strategies) as well as the time evolving content of their jurisprudence. Seeking to contribute to this growing literature, this dissertation offers several perspectives on the proposition that law is a complex adaptive system. Institutional Rules and Strategic Behavior The complex systems paradigm is in large part interested in how behavior observed at the micro level aggregates into larger macro patterns. Thus, this dissertation 1 begins in Chapter 2 with a case study of one specific unit of micro judicial behavior – Justice Rehnquist’s otherwise anomalous decision in Dickerson v. United States. Despite his long-standing opposition to the Miranda doctrine, in Dickerson v. United States Justice Rehnquist both voted to save the Miranda doctrine and author the majority opinion. Why? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and immediately disavow the potential of a strategic explanation for his behavior. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences that could have produced the Chief's decision. This is troubling because prior social science scholarship demonstrates that a Chief Justice possesses a unique set of institutional powers that provides significant incentive for him to behave sophisticatedly. At a minimum, many prevailing explanations for Dickerson at a minimum are incomplete because they fail to determine whether his vote and opinion were the result of moderation, fidelity to traditional legal principles, or, in fact, strategic behavior. This Chapter pursues a uniqueness claim, arguing the available evidence supports a strategic explanation for Justice Rehnquist's behavior in Dickerson. To do this, Chapter 2 first reviews the methodological debate