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The positive literature on judicial behavior has not
received nearly the attention it deserves. That literature has a
great deal to offer, both to legal scholars and to those who are
concerned about the role of legal institutions generally. For
example, the literature has the potential to help shed light on
the ability of courts to protect rights and foster economic
development. This article argues that the positive literature has
failed to see its due in large part because positive scholars
often do not take law and legal institutions seriously.

The article identifies three specific sets of problems with the
positive scholarship, offering detailed suggestions on how
positive scholars can avoid them. The first is the problem of
normative bite: Too often positive scholars of judicial behavior
seem to be trapped in their own disciplinary debates, without
pausing to examine why it is that they are studying what courts
and legal institutions do. Second, positive scholars need to pay
greater attention to the norms of the law, i.e., how law and
legal institutions operate. A skeptical stance toward law is
fine, but that skepticism should not get in the way of accurately
understanding the mechanics of law and legal institutions.
Finally, empiricists in particular must take great care regarding
the data upon which they rely. It is difficult to obtain good
data on the workings of legal systems. Data that are readily
available often present a distorted picture of the system being
studied.