David E. Klein and Gregory Mitchell (eds)
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.001.0001
- Subject:
- Psychology, Forensic Psychology
This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make ...
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This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make many of the same judgments and decisions that ordinary people make and consider how our knowledge about judgment and decision-making in general applies to the case of legal judges. Chapters in the second section focus on the specific tasks that judges perform within a unique social setting and examine the expertise and particular modes of reasoning that judges develop to deal with their tasks in this unique setting. Chapters in the third section raise questions about whether and how we can evaluate judicial performance, with implications for the possibility of improving judging through the selection and training of judges and structuring of judicial institutions. Together the essays apply a wide range of psychological insights to help us better understand how judges make decisions and to open new avenues of inquiry into the influences on judicial behavior.Less
This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make many of the same judgments and decisions that ordinary people make and consider how our knowledge about judgment and decision-making in general applies to the case of legal judges. Chapters in the second section focus on the specific tasks that judges perform within a unique social setting and examine the expertise and particular modes of reasoning that judges develop to deal with their tasks in this unique setting. Chapters in the third section raise questions about whether and how we can evaluate judicial performance, with implications for the possibility of improving judging through the selection and training of judges and structuring of judicial institutions. Together the essays apply a wide range of psychological insights to help us better understand how judges make decisions and to open new avenues of inquiry into the influences on judicial behavior.
Stefanie A. Lindquist and Frank B. Cross
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195370850
- eISBN:
- 9780199870790
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370850.001.0001
- Subject:
- Law, Comparative Law
This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism ...
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This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism to a more objective, empirically-based approach to analyzing activism in appellate courts. Focusing on the justices' voting behavior on the United States Supreme Court from 1954 to 2004, the book first identifies theoretical dimensions to judicial activism based on scholars' attention to the Court's potential for countermajoritarian action. In particular, the book considers the propensity of the justices to (1) strike down legislation enacted by state and federal elected officials, (2) invalidate executive branch actions in connection with judicial review of administrative agencies, (3) expand the power of the federal judiciary through increasing access to the courts, and (4) alter prevailing legal rules by overturning precedent. All of these dimensions are also evaluated in terms of the justices' propensities to vote in these areas in accordance with their own personal policy preferences. The final chapter creates a “judicial activism scale” for the justices serving on the Court during the Warren, Burger, and Rehnquist Courts.Less
This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism to a more objective, empirically-based approach to analyzing activism in appellate courts. Focusing on the justices' voting behavior on the United States Supreme Court from 1954 to 2004, the book first identifies theoretical dimensions to judicial activism based on scholars' attention to the Court's potential for countermajoritarian action. In particular, the book considers the propensity of the justices to (1) strike down legislation enacted by state and federal elected officials, (2) invalidate executive branch actions in connection with judicial review of administrative agencies, (3) expand the power of the federal judiciary through increasing access to the courts, and (4) alter prevailing legal rules by overturning precedent. All of these dimensions are also evaluated in terms of the justices' propensities to vote in these areas in accordance with their own personal policy preferences. The final chapter creates a “judicial activism scale” for the justices serving on the Court during the Warren, Burger, and Rehnquist Courts.
Frederick Schauer
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0007
- Subject:
- Psychology, Forensic Psychology
Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, ...
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Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attributes as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for research directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges—finding and interpreting the relevant law, most prominently—are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage.Less
Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attributes as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for research directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges—finding and interpreting the relevant law, most prominently—are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage.
Eileen Braman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0013
- Subject:
- Psychology, Forensic Psychology
This essay is about constraint in legal decision making: how we should conceptualize it, how we should study it, and why psychological theory and methods provide such a promising avenue for doing so. ...
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This essay is about constraint in legal decision making: how we should conceptualize it, how we should study it, and why psychological theory and methods provide such a promising avenue for doing so. I treat constraint as a “democratic good,” necessary to justify the distributional decisions of unelected judges and as an empirical question: Does meaningful constraint exist? If so, where are we likely to find it? What are the potential sources of constraint in legal decision making? Asking these questions should lead to what I hope will be the next generation of empirical research on legal reasoning involving a wealth of theoretically based questions of interest to scholars in numerous disciplines.Less
This essay is about constraint in legal decision making: how we should conceptualize it, how we should study it, and why psychological theory and methods provide such a promising avenue for doing so. I treat constraint as a “democratic good,” necessary to justify the distributional decisions of unelected judges and as an empirical question: Does meaningful constraint exist? If so, where are we likely to find it? What are the potential sources of constraint in legal decision making? Asking these questions should lead to what I hope will be the next generation of empirical research on legal reasoning involving a wealth of theoretically based questions of interest to scholars in numerous disciplines.
Daniel A. Farber and Suzanna Sherry
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0018
- Subject:
- Psychology, Forensic Psychology
We have spent much of our academic careers arguing that judicial decision-making – even in constitutional cases – is a specialized craft, not merely an exercise in politics. We have suggested that ...
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We have spent much of our academic careers arguing that judicial decision-making – even in constitutional cases – is a specialized craft, not merely an exercise in politics. We have suggested that good judging requires both expertise and a certain set of dispositional traits, and that it can be enhanced or hindered by both personal traits and situational characteristics. This essay is part of that continuing project. In Part One, we describe what judges do when they decide constitutional questions, concluding that they are primarily exercising the same legal expertise that judges and lawyers utilize in all of their professional decisions. Part Two focuses briefly on the personal and contextual characteristics that have been shown to produce or interfere with expert decision-making in general. Finally, in Part Three we turn to our main focus: the legal structures that might enhance the positive characteristics and minimize the negative ones.Less
We have spent much of our academic careers arguing that judicial decision-making – even in constitutional cases – is a specialized craft, not merely an exercise in politics. We have suggested that good judging requires both expertise and a certain set of dispositional traits, and that it can be enhanced or hindered by both personal traits and situational characteristics. This essay is part of that continuing project. In Part One, we describe what judges do when they decide constitutional questions, concluding that they are primarily exercising the same legal expertise that judges and lawyers utilize in all of their professional decisions. Part Two focuses briefly on the personal and contextual characteristics that have been shown to produce or interfere with expert decision-making in general. Finally, in Part Three we turn to our main focus: the legal structures that might enhance the positive characteristics and minimize the negative ones.
Paul M Collins
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372144
- eISBN:
- 9780199870813
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372144.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses the legal and attitudinal models of judicial decision making and introduces two competing theories for the possible influence of amicus briefs in the Supreme Court. It expands ...
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This chapter discusses the legal and attitudinal models of judicial decision making and introduces two competing theories for the possible influence of amicus briefs in the Supreme Court. It expands on our conceptions of both of the legal and attitudinal models by illustrating how the influence of amicus briefs fits squarely in-line with these divergent views of the choices justices make, in addition to constructing two general and competing theories as to how political actors process persuasive communication. The chapter considers amicus briefs as sources of legal and political information and examines whether their influence is mediated by judicial ideology (that is, dependent upon the congruence of the information in the briefs with the policy preferences of the justices), building on the cognitive response model developed in social psychology. The hypotheses are subjected to empirical scrutiny using data on the ideological direction of the individual justices' votes from 1946-2001.Less
This chapter discusses the legal and attitudinal models of judicial decision making and introduces two competing theories for the possible influence of amicus briefs in the Supreme Court. It expands on our conceptions of both of the legal and attitudinal models by illustrating how the influence of amicus briefs fits squarely in-line with these divergent views of the choices justices make, in addition to constructing two general and competing theories as to how political actors process persuasive communication. The chapter considers amicus briefs as sources of legal and political information and examines whether their influence is mediated by judicial ideology (that is, dependent upon the congruence of the information in the briefs with the policy preferences of the justices), building on the cognitive response model developed in social psychology. The hypotheses are subjected to empirical scrutiny using data on the ideological direction of the individual justices' votes from 1946-2001.
Jack Knight and James Johnson
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691151236
- eISBN:
- 9781400840335
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151236.003.0006
- Subject:
- Political Science, Democratization
This chapter focuses on reflexivity and how it operates in democratic arrangements, considering a set of possible objections to this study's argument. The first potential objection is that the study ...
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This chapter focuses on reflexivity and how it operates in democratic arrangements, considering a set of possible objections to this study's argument. The first potential objection is that the study has underestimated the capacity of decentralized markets. The chapter directly compares the relative claims about democracy and markets. In doing so, it highlights the ways in which competition operates in the different environments and the relative importance of reflexivity for the two institutional alternatives. The second potential objection is that the study has failed to consider other more centralized institutional arrangements that might embody reflexivity. The chapter then considers three such alternatives: courts and judicial decision making, bureaucracy, and a hybrid form that combines informal norms within formal institutional arrangements. Drawing on the analysis of the effects of social norms on formal decision making, it also assesses whether the positive effects of social norms might, in fact, be most likely to emerge in an environment of democratic decision making.Less
This chapter focuses on reflexivity and how it operates in democratic arrangements, considering a set of possible objections to this study's argument. The first potential objection is that the study has underestimated the capacity of decentralized markets. The chapter directly compares the relative claims about democracy and markets. In doing so, it highlights the ways in which competition operates in the different environments and the relative importance of reflexivity for the two institutional alternatives. The second potential objection is that the study has failed to consider other more centralized institutional arrangements that might embody reflexivity. The chapter then considers three such alternatives: courts and judicial decision making, bureaucracy, and a hybrid form that combines informal norms within formal institutional arrangements. Drawing on the analysis of the effects of social norms on formal decision making, it also assesses whether the positive effects of social norms might, in fact, be most likely to emerge in an environment of democratic decision making.
Brandon L. Bartels
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0003
- Subject:
- Psychology, Forensic Psychology
This essay offers a perspective on how social psychological insights regarding the cognitive processes of judgment can help enrich our understanding of judicial decision making. Such a focus ...
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This essay offers a perspective on how social psychological insights regarding the cognitive processes of judgment can help enrich our understanding of judicial decision making. Such a focus facilitates a greater understanding of a key inquiry in the study of judicial decision making: when ideology and legal considerations will exhibit greater or lesser effects on judges’ choices. I posit a theoretical framework of judging focusing on top-down versus bottom-up reasoning processes. The theoretical perspective is primarily aimed toward explaining decision making by Supreme Court justices, but the arguments are relevant to judges at other levels of the judiciary.Less
This essay offers a perspective on how social psychological insights regarding the cognitive processes of judgment can help enrich our understanding of judicial decision making. Such a focus facilitates a greater understanding of a key inquiry in the study of judicial decision making: when ideology and legal considerations will exhibit greater or lesser effects on judges’ choices. I posit a theoretical framework of judging focusing on top-down versus bottom-up reasoning processes. The theoretical perspective is primarily aimed toward explaining decision making by Supreme Court justices, but the arguments are relevant to judges at other levels of the judiciary.
Paul M Collins
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372144
- eISBN:
- 9780199870813
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372144.003.0007
- Subject:
- Law, Constitutional and Administrative Law
This concluding chapter reviews the key findings presented throughout the book. It first discusses the empirical findings regarding interest group participation in the Supreme Court and their ...
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This concluding chapter reviews the key findings presented throughout the book. It first discusses the empirical findings regarding interest group participation in the Supreme Court and their normative implications. Next, the main results of the models of amicus influence are reviewed, paying careful attention to their implications for our empirical and normative understanding of judicial decision making. It is argued that the results be interpreted to imply that the law matters to Supreme Court justices in that the legal persuasion presented to the justices in the form of amicus curiae briefs is capable of inducing the justices to cast votes against their attitudinal predispositions. The chapter then reviews alternative interpretations of the empirical findings presented throughout the book and offers suggestions for future research.Less
This concluding chapter reviews the key findings presented throughout the book. It first discusses the empirical findings regarding interest group participation in the Supreme Court and their normative implications. Next, the main results of the models of amicus influence are reviewed, paying careful attention to their implications for our empirical and normative understanding of judicial decision making. It is argued that the results be interpreted to imply that the law matters to Supreme Court justices in that the legal persuasion presented to the justices in the form of amicus curiae briefs is capable of inducing the justices to cast votes against their attitudinal predispositions. The chapter then reviews alternative interpretations of the empirical findings presented throughout the book and offers suggestions for future research.
Paul M. Collins
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372144
- eISBN:
- 9780199870813
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372144.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The U.S. Supreme Court is a public policy battleground in which organized interests attempt to etch their economic, legal, and political preferences into law through the filing of amicus curiae ...
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The U.S. Supreme Court is a public policy battleground in which organized interests attempt to etch their economic, legal, and political preferences into law through the filing of amicus curiae (“friend of the court”) briefs. In Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Paul M. Collins, Jr. explores the influence of organized interests on the justices' decision making, including their votes in cases and their decisions to author concurrences and dissents. The author develops novel theories to explain how interest groups might shape judicial choice, building on intuitions derived from disciplines as diverse as law, marketing, political science, and social psychology. Utilizing rigorous empirical analyses, Collins provides unequivocal evidence that interest groups play a significant role in shaping the choices justices make, although not necessarily in a manner that is consistent with prevailing views of how the justices render their decisions. The result is a theoretically rich and empirically rigorous treatment of decision making on the nation's highest Court that informs our understanding of interest group litigation, as well as the legal and attitudinal models of judicial choice.Less
The U.S. Supreme Court is a public policy battleground in which organized interests attempt to etch their economic, legal, and political preferences into law through the filing of amicus curiae (“friend of the court”) briefs. In Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Paul M. Collins, Jr. explores the influence of organized interests on the justices' decision making, including their votes in cases and their decisions to author concurrences and dissents. The author develops novel theories to explain how interest groups might shape judicial choice, building on intuitions derived from disciplines as diverse as law, marketing, political science, and social psychology. Utilizing rigorous empirical analyses, Collins provides unequivocal evidence that interest groups play a significant role in shaping the choices justices make, although not necessarily in a manner that is consistent with prevailing views of how the justices render their decisions. The result is a theoretically rich and empirically rigorous treatment of decision making on the nation's highest Court that informs our understanding of interest group litigation, as well as the legal and attitudinal models of judicial choice.
C. K. Rowland, Tina Traficanti, and Erin Vernon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0012
- Subject:
- Psychology, Forensic Psychology
For decades virtually every scholarly work on trial judges began by lamenting the unfortunate tendency of students of judicial behavior to concentrate almost exclusively on appellate courts generally ...
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For decades virtually every scholarly work on trial judges began by lamenting the unfortunate tendency of students of judicial behavior to concentrate almost exclusively on appellate courts generally and the U.S. Supreme Court in particular. Fortunately, although this imbalance is still present to a degree, a nascent body of research has ameliorated the disparity and enhanced greatly our understanding of civil trial courts, trial judges, and the psychology of trial judging over the last decade. We review this research and conclude, first, that this research collectively suggests a value-based exercise of judicial discretion that may reflect intentional or unintentional bias in trial judging when the dispute involves ideological issues and, second, that when faced with science-based standards, statistical evidence, and other risk-assessment tasks, judges are susceptible to many of the same limits on objectivity and accuracy that plague jurors and all human decision makers faced with difficult judgments.Less
For decades virtually every scholarly work on trial judges began by lamenting the unfortunate tendency of students of judicial behavior to concentrate almost exclusively on appellate courts generally and the U.S. Supreme Court in particular. Fortunately, although this imbalance is still present to a degree, a nascent body of research has ameliorated the disparity and enhanced greatly our understanding of civil trial courts, trial judges, and the psychology of trial judging over the last decade. We review this research and conclude, first, that this research collectively suggests a value-based exercise of judicial discretion that may reflect intentional or unintentional bias in trial judging when the dispute involves ideological issues and, second, that when faced with science-based standards, statistical evidence, and other risk-assessment tasks, judges are susceptible to many of the same limits on objectivity and accuracy that plague jurors and all human decision makers faced with difficult judgments.
Paul M Collins
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372144
- eISBN:
- 9780199870813
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372144.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter provides an outline of the book. It begins with a meticulous overview of existing studies of amici curiae, concluding that previous research has failed to establish whether ...
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This introductory chapter provides an outline of the book. It begins with a meticulous overview of existing studies of amici curiae, concluding that previous research has failed to establish whether amicus curiae briefs influence decision making on the Supreme Court. It then describes how the current interdisciplinary scholarship seeks to rectify the confusion regarding amicus influence by scientifically analyzing interest group influence on the Supreme Court in terms of: 1) the ideological direction of the individual justices' voting behavior; 2) the consistency of that voting behavior; and 3) the justices' decisions to author or join concurring and dissenting opinions.Less
This introductory chapter provides an outline of the book. It begins with a meticulous overview of existing studies of amici curiae, concluding that previous research has failed to establish whether amicus curiae briefs influence decision making on the Supreme Court. It then describes how the current interdisciplinary scholarship seeks to rectify the confusion regarding amicus influence by scientifically analyzing interest group influence on the Supreme Court in terms of: 1) the ideological direction of the individual justices' voting behavior; 2) the consistency of that voting behavior; and 3) the justices' decisions to author or join concurring and dissenting opinions.
Paul M Collins
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372144
- eISBN:
- 9780199870813
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372144.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the influence of amicus curiae briefs on the variability in judicial decision making. It begins by explaining the importance of understanding the consistency of judicial choice, ...
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This chapter examines the influence of amicus curiae briefs on the variability in judicial decision making. It begins by explaining the importance of understanding the consistency of judicial choice, both normatively and empirically. It argues that amicus briefs serve to attenuate the justices' reliance on their attitudes, thus increasing the ambiguity in the justices' already uncertain decision making, leading to more variable behavior. That is, by raising new issues in the Court and persuading the justices to adopt positions that are attitudinally-incongruent, amicus briefs confound the certainty surrounding the justices' perspectives as to the correct application of the law in a case. This hypothesis is subjected to empirical testing using data on the ideological direction of the individual justices' votes from 1946-2001.Less
This chapter examines the influence of amicus curiae briefs on the variability in judicial decision making. It begins by explaining the importance of understanding the consistency of judicial choice, both normatively and empirically. It argues that amicus briefs serve to attenuate the justices' reliance on their attitudes, thus increasing the ambiguity in the justices' already uncertain decision making, leading to more variable behavior. That is, by raising new issues in the Court and persuading the justices to adopt positions that are attitudinally-incongruent, amicus briefs confound the certainty surrounding the justices' perspectives as to the correct application of the law in a case. This hypothesis is subjected to empirical testing using data on the ideological direction of the individual justices' votes from 1946-2001.
Len Dalgleish, James Shanteau, and April Park
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0011
- Subject:
- Psychology, Forensic Psychology
Many decisions that people are called on to make can be thought of as involving thresholds for action. In each case, we can understand the decision maker to be answering two questions: (1) How strong ...
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Many decisions that people are called on to make can be thought of as involving thresholds for action. In each case, we can understand the decision maker to be answering two questions: (1) How strong are the arguments in favor of taking this action? (2) How strong must the arguments be in order for me to take the action? Decision makers in court cases, whether judges or jurors, are commonly required to make this kind of decision. The aim of this chapter is to set out a framework for analyzing decisions to take action in a judicial context. We begin by outlining a general model, continue with a description of several studies of mock-juror decision making, and conclude with implications for studying judges.Less
Many decisions that people are called on to make can be thought of as involving thresholds for action. In each case, we can understand the decision maker to be answering two questions: (1) How strong are the arguments in favor of taking this action? (2) How strong must the arguments be in order for me to take the action? Decision makers in court cases, whether judges or jurors, are commonly required to make this kind of decision. The aim of this chapter is to set out a framework for analyzing decisions to take action in a judicial context. We begin by outlining a general model, continue with a description of several studies of mock-juror decision making, and conclude with implications for studying judges.
Lawrence S. Wrightsman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0004
- Subject:
- Psychology, Forensic Psychology
This chapter proposes that persuasion is more effective in influencing votes in certain types of cases than others. A distinction is made between ideological (i.e., hot-button issue) cases and ...
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This chapter proposes that persuasion is more effective in influencing votes in certain types of cases than others. A distinction is made between ideological (i.e., hot-button issue) cases and non-ideological cases. Using data from several recent Supreme Court terms, the chapter shows that latency of the decision, frequency of unanimous votes, and behavior in oral arguments are affected by type of case. In oral arguments, justices' eventual votes can be predicted from the nature and frequency of their questions, to a greater degree in ideological cases than in non-ideological cases. Thus it is concluded that both the legal model and the attitudinal model of judicial decision making are applicable, depending on the type of case.Less
This chapter proposes that persuasion is more effective in influencing votes in certain types of cases than others. A distinction is made between ideological (i.e., hot-button issue) cases and non-ideological cases. Using data from several recent Supreme Court terms, the chapter shows that latency of the decision, frequency of unanimous votes, and behavior in oral arguments are affected by type of case. In oral arguments, justices' eventual votes can be predicted from the nature and frequency of their questions, to a greater degree in ideological cases than in non-ideological cases. Thus it is concluded that both the legal model and the attitudinal model of judicial decision making are applicable, depending on the type of case.
Neal Devins and Will Federspiel
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.003.0006
- Subject:
- Psychology, Forensic Psychology
The Justices of the Supreme Court function not just as individuals but also as members of a group. Political science models of Supreme Court decision making, however, focus on the legal and policy ...
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The Justices of the Supreme Court function not just as individuals but also as members of a group. Political science models of Supreme Court decision making, however, focus on the legal and policy goals of individual Supreme Court Justices. By not taking into account what role intra-group dynamics may play in Court decision making, political science models provide an incomplete and inaccurate picture. For example, when there is an ideologically simpatico majority coalition on the Court, the preferences of the Court's median Justice often give way to intra-group preferences. In this chapter, we employ social psychology literature to examine both the importance of and the obstacles to group formation. By comparing differences in decision making of the (largely simpatico) New Dal Court and the (very diverse) Rehnquist Court, we illustrate how social psychology can contribute to an understanding of Supreme Court decision making.Less
The Justices of the Supreme Court function not just as individuals but also as members of a group. Political science models of Supreme Court decision making, however, focus on the legal and policy goals of individual Supreme Court Justices. By not taking into account what role intra-group dynamics may play in Court decision making, political science models provide an incomplete and inaccurate picture. For example, when there is an ideologically simpatico majority coalition on the Court, the preferences of the Court's median Justice often give way to intra-group preferences. In this chapter, we employ social psychology literature to examine both the importance of and the obstacles to group formation. By comparing differences in decision making of the (largely simpatico) New Dal Court and the (very diverse) Rehnquist Court, we illustrate how social psychology can contribute to an understanding of Supreme Court decision making.
Michael A. Bailey and Forrest Maltzman
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691151045
- eISBN:
- 9781400840267
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151045.003.0007
- Subject:
- Law, Legal History
This chapter provides general answers to questions about executive influence on the Court, which will help us to understand decision-making on the Court—what matters and when. It considers whether ...
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This chapter provides general answers to questions about executive influence on the Court, which will help us to understand decision-making on the Court—what matters and when. It considers whether the Court is beyond democratic control. If the solicitor general's briefs influence justices, this could provide at least some measure of democratically accountable influence on Court decision-making. Motivated by such questions, the chapter focuses on whether the solicitor general and the executive branch shape judicial decision-making. In particular, it asks whether justices defer to the solicitor general. If so, is it non-ideological deference or does ideology condition the nature of deference? The chapter develops and tests a signaling model of deference to show that non-legal and non-attitudinal forces influence the Court. It also shows that the nature of the deference depends on ideological factors as well.Less
This chapter provides general answers to questions about executive influence on the Court, which will help us to understand decision-making on the Court—what matters and when. It considers whether the Court is beyond democratic control. If the solicitor general's briefs influence justices, this could provide at least some measure of democratically accountable influence on Court decision-making. Motivated by such questions, the chapter focuses on whether the solicitor general and the executive branch shape judicial decision-making. In particular, it asks whether justices defer to the solicitor general. If so, is it non-ideological deference or does ideology condition the nature of deference? The chapter develops and tests a signaling model of deference to show that non-legal and non-attitudinal forces influence the Court. It also shows that the nature of the deference depends on ideological factors as well.
Dinah Shelton (ed.)
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.001.0001
- Subject:
- Law, Public International Law
Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting ...
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Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting out the status accorded to international law in those countries and its normative weight, as well as problems relating to its implementation. This country-by-country comparison allows the book to examine how the international legal order and domestic legal systems interact and influence each other. Through a series of chapters on the role of international law in twenty-seven countries throughout the world, it shows a growing tendency towards greater democratic participation in treaty-making coupled with a significant utilization of informal agreements that by-pass such participation, as well as a role for non-binding normative instruments as persuasive authority in domestic judicial decision-making. The chapters suggest a stronger attachment to international law in legal systems that have survived a period of repression, resulting in many cases in a higher normative status for international human rights instruments in those states. The impact of the European Union on the constitutional order of its member states is also examined.Less
Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting out the status accorded to international law in those countries and its normative weight, as well as problems relating to its implementation. This country-by-country comparison allows the book to examine how the international legal order and domestic legal systems interact and influence each other. Through a series of chapters on the role of international law in twenty-seven countries throughout the world, it shows a growing tendency towards greater democratic participation in treaty-making coupled with a significant utilization of informal agreements that by-pass such participation, as well as a role for non-binding normative instruments as persuasive authority in domestic judicial decision-making. The chapters suggest a stronger attachment to international law in legal systems that have survived a period of repression, resulting in many cases in a higher normative status for international human rights instruments in those states. The impact of the European Union on the constitutional order of its member states is also examined.
Göran Sluiter
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199573417
- eISBN:
- 9780191728822
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199573417.003.0007
- Subject:
- Law, Public International Law, Criminal Law and Criminology
This chapter critically addresses the use of separate and dissenting opinions at the ICTY. Its central question is whether the use of individual opinions at the ICTY is in need of reform with a view ...
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This chapter critically addresses the use of separate and dissenting opinions at the ICTY. Its central question is whether the use of individual opinions at the ICTY is in need of reform with a view to improve judicial decision-making and the confidence therein by the public. It first discusses the diverging views on the availability of individual opinions in general. Next it traces the origin and history of individual opinions in international criminal proceedings. At the heart of the chapter is the analysis of 208 individual opinions published by ICTY judges. This practice suffers of a number of flaws and should be improved in a number of areas. The conclusion contains a number of recommendations to that end, which are no longer of much assistance to the ICTY, but could be its legacy on this point for the ICC.Less
This chapter critically addresses the use of separate and dissenting opinions at the ICTY. Its central question is whether the use of individual opinions at the ICTY is in need of reform with a view to improve judicial decision-making and the confidence therein by the public. It first discusses the diverging views on the availability of individual opinions in general. Next it traces the origin and history of individual opinions in international criminal proceedings. At the heart of the chapter is the analysis of 208 individual opinions published by ICTY judges. This practice suffers of a number of flaws and should be improved in a number of areas. The conclusion contains a number of recommendations to that end, which are no longer of much assistance to the ICTY, but could be its legacy on this point for the ICC.
Eyal Zamir and Doron Teichman
- Published in print:
- 2018
- Published Online:
- June 2018
- ISBN:
- 9780190901349
- eISBN:
- 9780190901387
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190901349.003.0016
- Subject:
- Law, Philosophy of Law
This chapter discusses the rich behavioral research on judicial decision-making. It opens with general theories of the cognitive process of judicial decision-making, focusing on the story model and ...
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This chapter discusses the rich behavioral research on judicial decision-making. It opens with general theories of the cognitive process of judicial decision-making, focusing on the story model and coherence-based reasoning. It examines how various heuristics and biases—such as the compromise and contrast effects, hindsight bias, omission bias, and anchoring—are reflected in judicial decision-making. Special attention is given to the limited ability of fact-finders to disregard inadmissible evidence, the interactions between race and judicial decision-making, the role of non-consequentialist moral judgments in judicial decision-making, and the impact of the choice between rules and standards on the predictability of judgments. Finally, the chapter discusses two fundamental questions in the behavioral analysis of judicial decision-making: group decision-making, and decision-making by judges (as opposed to laypersons).Less
This chapter discusses the rich behavioral research on judicial decision-making. It opens with general theories of the cognitive process of judicial decision-making, focusing on the story model and coherence-based reasoning. It examines how various heuristics and biases—such as the compromise and contrast effects, hindsight bias, omission bias, and anchoring—are reflected in judicial decision-making. Special attention is given to the limited ability of fact-finders to disregard inadmissible evidence, the interactions between race and judicial decision-making, the role of non-consequentialist moral judgments in judicial decision-making, and the impact of the choice between rules and standards on the predictability of judgments. Finally, the chapter discusses two fundamental questions in the behavioral analysis of judicial decision-making: group decision-making, and decision-making by judges (as opposed to laypersons).
