Discretion is Fractal

Last week, I made a presentation at the Leiden University conference ‘Political Legitimacy and the Paradox of Regulation’ under the admittedly esoteric title ‘Discretion is Fractal’. Despite the title, my point is actually quite simple: one cannot continue to model, conceptualize and measure (administrative or legal) discretion as a linear phenomenon because of the nested structure of legal norms which exhibits self-similarity at different levels of observation. And, yes, this means that law is fractal, too. In the same way there is no definite answer to the question ‘how long is the coast of Britain‘, there can be no answer to the question which legal code provides for more discretion, unless a common yardstick and level of observation is used (which requires an analytic reconstruction of the structure of the legal norms).
The presentation tries to unpack some of the implications of the fractal nature of legal norms and proposes an alternative strategy for measuring discretion. Here is a pdf of the presentation which I hope makes some sense on its own.

Social science in the courtroom

Everyone who is interested in the sociology of science, causal inferences from observational data, employment gender discrimination, judicial sagas, or academic spats should read the latest issue of Sociological Methods & Research. The whole issue is devoted to the Wal-Mart Stores,Inc. v. Dukes et al. case – “the largest class-action employment discrimination suit in history”, with a focus on the uses of social science evidence in the courtroom. 

The focal point of contestation is the report of Dr. Bielby – an expert for the plaintiff. In a nutshell, the report says that the gender bias in promotion decisions at Wal-Mart can be attributed to the lack of efforts to create a strong corporate culture and limit the discretion managers have in promotion decisions, which in turn allows for biased decisions. The evidence is mostly 1) a literature review that supports the causal links between corporate policies and corporate culture, corporate culture and individual behavior, discretion and biased individual behavior, and corporate policies and outcomes, and 2) description of the corporate policies and culture at Wal-Mart which points to a relatively weak policy towards gender discrimination and considerable discretion for managers in promotion decisions. Dr. Bielby describes the method as follows: “…look at distinctive features of the firm’s policies and practices and … evaluate them against what social scientific research shows to be factors that create and sustain bias and those that minimize bias” [the method is designated as “social framework analysis”].

What gives the case broader significance (apart from the fact that it directly concerns between half a million and a million and a half current and former employees at Wal-Mart), is the letter [amicus brief] the American Sociological Association (ASA) decided to send in support of Dr. Bielby’s report. In the letter, ASA states that “the methods Dr. Bielby used are those social scientists rely on in scientific research that is published in top-quality peer-reviewed journals” and that “well done case studies are methodologically valid”. However, the Supreme Court apparently begs to differ, and rejected the plaintiffs’ claim.

The current issue of Sociological Research & Methods has two articles which attack the decision of ASA to endorse Dr. Bielby’s methodology and two articles that support it. In my opinion, the former are right. Mitchell, Monahan, and Walker characterize Dr. Bielby’s approach as “subjective judgments about litigation materials collected and provided to the expert by the attorneys”, but even if that goes too far, Sørensen and Sharkey definitely have a point in writing that what Dr. Bielby does is engage in abductive reasoning – “generate a hypothesized explanation from an observed empirical phenomenon”. Hence, hardly a reliable way to make a valid inference about causes and effects. Employment discrimination might be consistent with high managerial discretion but is not necessarily caused by it.

What makes this academic exchange particularly juicy is the fact that most contributors (the editor of the journal included) have been opponents in the courtroom as well – well, not directly but as experts for the two sides in numerous employment discrimination suites. Which probably raises the stakes, I guess. Here is the editor describing the process of putting the special issue together:

“Managing” these interchanges has been far more difficult than I had thought. Even around very technical issues, scholars can get very heated. Part of the problem, I believe, is that the academy and, certainly, the social sciences, and most specifically sociology, do not have a well-articulated set of norms about how to engage in constructive scientific discourse. Too often I have seen the following:
1. Claims that a person holds a position or has said something when he or she did not, that is, “putting words in a person’s mouth.”
2. Misconstrual, intentionally or not, of the meaning of what a person has written.
3. Questioning the expertise, intelligence, motives, or morals of an author.
4. Obfuscation by bringing in irrelevant or tangential points or material.” (p.552-3)

Academic discourse at its best.