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Abstract

With empirical reference to asylum law, this dissertation poses the question, “why do some legal interpretive questions remain in dispute in the judiciary, while others become settled or pass uncontested through the courts?” Chapter 1 motivates the question with reference to literature in the sociology of knowledge and law and society. Chapter 2 outlines my search procedures for identifying cases, my interview procedures and my methodological reliance on network models to describe and analyze interpretive disputes as ties linking cases. ,Chapters 3–6 contain my empirical analysis. Chapter 3 examines organization-level variation in the judicial tendency to dispute across the several Courts of Appeals. Differences in organizational rules and norms help to explain why the Ninth Circuit is highly disputatious while the Second Circuit, which hears a large and roughly equal number of asylum cases, is involved in few interpretive disputes either internally or in relation to other courts. Chapter 4 examines the Supreme Court’s asylum jurisprudence. My argument focuses on an unintended consequence of Supreme Court decision making: ambiguously worded Supreme Court decisions in asylum law have exerted a repelling force on lower courts deciding similar questions, rerouting conceptual ambiguities and interpretive disputes to other areas. I refer to this phenomenon as the creation of “ersatz clarity” in the law. Chapter 5 is a close textual analysis of one set of interpretive disputes: disputes over the meaning of the statutory phrase “membership in a particular social group,” which is one of the five grounds for legal protection under the asylum statute. I argue that the judicial tendency to make generalizing claims without clear empirical referents in written opinions perpetuates interpretive dispute over this core statutory question. I also find strong evidence that the disputes over this core statutory question reflect real conceptual differences among judges: they cannot be explained away as expressions of political interest or as epiphenomenal to some other conflict of interests. Chapter 6 poses the question, “how do judges frame legal questions from cases in the first place?” Whereas my first three empirical chapters address questions of how judges settle or fail to settle interpretive questions in practice, my final empirical chapter addresses the conceptually prior question of how judges establish the grounds of interpretive contestation in cases. I rely on the pragmatist theory of action to describe the contingent framing work that judges do in one empirically complex case, using the oral argument recording and interview vignettes as data. I identify several contextual factors that influence the judicial framing of questions out of cases, including strategic action by judges to frame cases in ways that support the conclusions they want to reach from the beginning.,This dissertation identifies several social determinants of settled versus unsettled law, some of which have hitherto been little discussed by judges, legal scholars or the existing social scientific literature on judicial behavior. The main factors I discuss are: the rules and norms of courts that structure engagement with some questions and not others; the small group dynamics of judges working together within panels and in repeated interactions over time; the textual and temporal dynamics of how unsettled legal principles are contested in precedent-setting courts; and the creative framing work of judges to define the questions presented in cases. The overarching theme of my empirical findings is that law tends to become and remain unsettled around questions where judges focus their time and attention, whether their attention is being focused by their own conscious action or by broader social forces. In the conclusion (chapter 7) I review my empirical findings and then discuss how they can be tested and generalized in future research in other domains of law.

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