THE POLITICAL VALUE OF TIME: CITIZENSHIP, DURATION, AND DEMOCRATIC JUSTICE

Vol. 29 No. 10 (November 2019) pp. 122-126

THE POLITICAL VALUE OF TIME: CITIZENSHIP, DURATION, AND DEMOCRATIC JUSTICE, by Elizabeth Cohen. New York: Cambridge University Press, 2018. 183pp. Hardback $74.99. ISBN: 9781108419833. Paperback $24.99. ISBN: 9781108412254. E-book: $20.00. ISBN: 9781108331012.

Reviewed by Matthew Reid Krell, Department of Political Science, The University of Alabama. Email: mrkrell@ua.edu.

In 1963, Wallace Mendelson argued that “neobehavioralists” studying judicial politics had engaged in a fundamental category error. He said that they had “singl[ed] out from some many-dimensional reality . . . one measurable attribute and identifying this partial aspect with the whole . . . . The result of the partial measurement is taken as an index of the whole” (Mendelson 1963: 595). To my knowledge, this criticism was never refuted; instead, behavioralists (including myself) on-boarded it, taking seriously the injunction to measure as many dimensions of judicial decision-making that we could. Success is where you find it, but certainly I find later work to be more convincing than the classics, even when they reach similar conclusions (Murphy 1964; Epstein and Knight 2017; Clark 2019). And so the field develops: we assess judges using a metric, then a later scholar determines that we failed to capture an important dimension in the metric and in turn develops a better one (e.g., Hitt 2016).

Elizabeth Cohen has given us in law and politics a field-expanding piece of scholarship in THE POLITICAL VALUE OF TIME. Like Mendelson, she has pointed out an entire dimension of the process, which we purport to measure, that is basically completely cut out of our research. Like the judicial behavior scholars who built on Murphy and Pritchett and took Mendelson’s criticisms seriously enough to find more creative measurements, we should start considering how her insights should shape our research going forward.

Cohen’s most basic argument is this: the decision to incorporate time into a political process is, in fact, a decision, and it could have been made differently. Either time could have been left out of the process altogether, or it could have been incorporated in a different way. Therefore, the decision to make time part of politics is a decision that expresses political values and we should be willing and able to investigate and analyze the values these decisions express. The time choices that Cohen considers are deadlines, waiting periods, and scheduled recurring events. These represent choices that polities make about the boundaries of the polity: who’s in and who’s out.

After offering a summary of her argument and how it fits within the broader conversation, Cohen then moves into an explanation of the types of political judgments that are represented by single, non-recurring deadlines. She argues that these sorts of timing decisions signify authoritarian decision-making models, while timing choices that afford periods of time allow for the deliberation necessary for democratic decision-making. She develops an analysis of the purposes served by time in democracies, and then explains how those purposes imbue time with value for citizens and other decision-makers. From this, she develops what she calls a “political economy [*123] of time,” whereby power can express itself by defining the ways in which other people’s time is politically valued. Throughout the book, she offers well-grounded examples that serve to reify her abstractions. Many of these cited examples are grounded in decisions surrounding citizenship, but she also includes examples related to other issues such as sentencing in criminal law and in other issues.

In Cohen’s account, the most important roles that time plays are in commensuration and in allowing “incompletely theorized agreements” (see Sunstein 1994). Commensuration essentially consists of proxying: “commensuration, in this context, is the transformation of qualities into quantities” (p. 12). Commensuration also allows for agreement over a way to measure things even if those measuring aren’t agreeing on what they’re measuring (Grzymala-Busse 2011; Gallie 1956; Mendelson 1963).

Cohen argues that the use of time as a commensurate variable allows decision-makers to assume that certain processes that are known to take time but which cannot be determined to have ended have taken place (pp. 71-82; 90-94). Among these processes are consent (which, if given in an informed manner, requires reflection and consideration), development, values inculcation, and in general any sort of mental process where we want decision-makers to make decisions on purpose (as opposed to accidentally or instinctively) (pp. 101-104). But “[t]o be deliberate, one must deliberate” (p. 75), and so in order to afford decision-makers the mental room to make purposeful and intentional decisions, they must be afforded the time and space to reason and deliberate. What, exactly, they are doing in that time and space, is not necessarily knowable; we presume that the decision-maker, be they prospective citizen, legislator, or judge, is engaged in whatever process we want to give them time for.

Thus, as an initial matter, Cohen offers to law and politics scholars the simple question of when law incorporates time, what purpose or purposes might that incorporation serve? For example, statutes of limitation and statutes of repose both provide a period of time in which a claim may be pressed; however, statutes of limitation provide for mechanisms whereby the time period can be paused, while statutes of repose do not. An important question for law scholars is thus why political actors would choose to implement a statute of limitations over a statute of repose, or vice versa.

Cohen’s examples contain a similar process. Cohen notes that the time period of lawful residence required to obtain citizenship in the United States must be continuous, making it more similar to a statute of repose (p. 91). But she also notes that there were voices in Congress at various times that advocated for allowing interruptions in the period for those who travel abroad frequently, or conversely, of stripping citizenship from those who lived overseas for too long (p. 91). Had these voices carried the day, the naturalization (or possibly denaturalization) process would have looked more like a statute of limitations. An important question for scholars of immigration law, then, would be why that debate played out the way it did and the question is unaskable without Cohen’s insight into the role time plays in political processes.

The story of quantitative judicial scholarship (as distinguished from doctrinal work) is a story of continuing to develop our measures and to capture ways to quantify things that [*124] past scholars found unquantifiable, including judges’ policy preferences, opinion content, and even the dynamics of oral argument. “We measure anything and everything, including things that may not initially appear to lend themselves to quantification” (p. 108). Cohen points us to a dimension we’ve previously ignored – the decision to value certain actors’ time more than others.

For example, in employment-discrimination cases arising under Title VII, plaintiffs are entitled to their actual losses from the date of discrimination until the date of trial (“economic damages”), and other forms of relief. But if the employer offers the plaintiff the opportunity to return and they turn it down, their economic damages are cut off as of that date. Why would the decision that a discriminatory employer is not a place to return mean that a worker should be cut off from recovering for that employer’s malfeasance? What values are contained in this decision? Why are employers entitled to the presumption of a right to the employee’s labor, while the employee is not entitled to the presumption of a safe workplace where they can be themselves?

In short, Cohen’s analysis opens a conversation for us to ask the question of what values we express in our legal system, even where they are not explicitly expressed. What assumptions are we embedding in the system? How do decisions that allow for periodicities in the law either protect or undermine existing power and privilege? Overall, how does the inclusion of time provide mechanisms for the “haves” to come out ahead again?

As Cohen points out, however, these research questions may have multiple answers because the other role of time is to allow decision-makers to avoid articulating any particular value. Because time is required for any number of processes to play out, decision-makers can impose time requirements for multiple reasons and need not announce which reason was the true one. In fact, in making decisions that require multiple stakeholders to agree, time allows all stakeholders to assume that their values are incorporated – even where those values are contradictory. Cohen’s example of this is in criminal sentencing, where rehabilitationists believe that a period of incarceration represents the time required for reform, while retributionists or expiationists assume that it represents the time required for appropriate punishment. If they can agree on the amount of time that it takes to achieve their purpose, the two schools need not agree on which purpose is being served.

Cohen’s approach may seem law-centric to those in the sub-field who think that law is a veneer for the expression of policy preferences and that judicial decision-making research should instead focus on discerning the preferences that are being expressed. To this, Cohen’s argument is agnostic as to the purpose law serves. If the law is naught but a fa├žade for judges to pretend like they’re not legislating, then the way judges use time through law expresses the policy preferences of judges and is worthy of investigation. If law is a meaningful constraint on judicial decision-making, then the time contained within law expresses the political values of other actors and is an important component in determining the linkages between law and values.

This argument gives us purchase on the larger question of whether law has independent meaning beyond judicial preferences and strategy. If judges routinely ignore temporal demands that do not [*125] comport with their preferences, then perhaps those who view judicial politics as shaping law are correct, while an opposite finding would suggest that law shapes judicial politics instead. Arguably, almost everyone would agree that these concepts are entangled, Cohen’s analysis gives us another tool to help us disentangle them.

Not everything is perfect, of course. Some of Cohen’s examples are troubling: on a few occasions she drifts into a discussion of age-of-consent laws that seem to suggest that her argument would conclude that they are fundamentally illegitimate. Cohen argues that the purposes that time serves in political processes could be served by other political goods, with the advantage that time is without their pitfalls (p. 132). It’s not clear what those pitfalls might be according to her; while they may be obvious and self-evident, explication would ensure that readers understood the argument completely. She argues that time is a necessary component to sovereignty, in that any sovereign entity has a period when it did not exist and then a period when it does (pp. 32-33). This certainly seems consistent with the American experience, but even then the point when a sovereign comes into existence may still be contested (Frank 2010). But I’m less convinced that it’s true outside the American context; the notion of a Westphalian moment in Europe is, I think, contested, and of course the experience of non-Western polities is very different. But just because a theory has scope limitations doesn’t mean it doesn’t have profound and profoundly new things to say within its scope.

Cohen has given us a tremendous opportunity here. Her analysis and argument opens new fields in research and provides a new dimension to analyze our existing theories. While proxies and incomplete theorization are known, THE POLITICAL VALUE OF TIME accords these concepts new meaning by making clear that decisions that seem objective and empirical have deep and embedded normative contents. And I don’t think Cohen’s even done. A few times in this book, she mentions an unfinished manuscript about the political economy of waiting. If this book meets the same bar set by THE POLITICAL VALUE OF TIME, that one could be even more profound for law and politics scholarship. But that is down the road, and certainly THE POLITICAL VALUE OF TIME has given us enough to chew on for some time. By attacking the question of “whose time is being used and to what purpose?” we may be able to actually measure things we’ve previously thought unmeasurable. The challenge, as with any operationalization of new concepts, is figuring out ways to measure these things that don’t break the bank.

REFERENCES:

Epstein, Lee, and Jack Knight. 2017. “Strategic Accounts of Judging.” In ROUTLEDGE HANDBOOK OF JUDICIAL BEHAVIOR, eds. Robert M. Howard and Kirk A. Randazzo. New York, NY : Routledge, 2017.: Routledge, 48–61.

Frank, Jason. 2010. CONSTITUENT MOMENTS. Durham, NC: Duke University Press.

Gallie, W.B. 1956. “Essentially Contested Concepts.” PROCEEDINGS OF THE ARISTOTELIAN SOCIETY 56: 167-198.

Grzymala-Busse, Anna. 2011. “Time Will Tell? Temporality and the Analysis of Causal Mechanisms and Processes. ” COMPARATIVE POLITICAL STUDIES 44(9): 1267-1297.

Hitt, Matthew P. 2016. “Measuring Precedent in a Judicial Hierarchy.” LAW & SOCIETY REVIEW 50(1): 57–81.

Mendelson, Wallace. 1963. “The Neo-Behavioral Approach to the Judicial Process: A Critique.” THE AMERICAN POLITICAL SCIENCE REVIEW 57(3): 593–603.

Murphy, Walter F. 1964 [2016]. ELEMENTS OF JUDICIAL STRATEGY. New Orleans, LA: Quid Pro Books.
Sunstein, Cass R. 1994. “Incompletely Theorized Agreements: Commentary.” HARVARD LAW REVIEW 108: 1733-1772.


© Copyright 2019 by the author, Matthew Reid Krell.