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Examines judicial decisions in Germany and Israel in order to provide a comparative test of the analysis of US Supreme Court decisions in Ch. 7. Although questions of political obligation have been much discussed by scholars, little attention has been paid to moral reasons advanced by actual states to justify the compliance of their subjects. Because in US cases, justices appeal to moral reasons most explicitly in difficult cases that concern imposing military service on conscientious objectors, the analysis focuses on this area. In spite of their important constitutional and judicial differences, Germany and Israel support military obligations along similar lines. German decisions emphasize norms of equality or fairness. Israeli Justices have generally appealed to the importance of each individual's contribution to national defence. However, in a recent decision, norms of fairness are invoked.

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.

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.

This and the following chapters explore the ‘self-image of the state’ in regard to political obligations through analysis of judicial decisions. Examining the reasons that states themselves provide to justify political obligations provides an empirical test of normative theories. Although judicial decisions have no claim to moral truth, the fact that justices regularly argue from certain principles rather than others adds to the plausibility of a theory based on the former and increases the burden of justification for proponents of other principles. Supreme Court justices usually defend their opinions on the basis of statutory or constitutional interpretation and seldom appeal directly to moral principles. However, on occasion they do invoke moral principles to support their opinions, especially in difficult cases. Justices of the US Supreme Court consistently ground obligations on protection that individuals receive from society. The most likely basis of these ‘reciprocal obligations’ is a principle of fairness, as expressed most notably in Arver v. U.S., the most important of the 'Selective Draft Law Cases'.

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.

This chapter examines the Cour de cassation in France, which has generally been considered the archetype of civilian judicial theory and practice. Three major American comparative analyses — those produced by Roscoe Pound, John Dawson, and Duncan Kennedy — share a deeply pragmatic, realist (or proto-realist or post-realist, as the case may be) distrust of the syllogistic and apparently formalist style of the French civil judicial decision. All three analyses assume that something must be going on behind the facade of the French judicial decision, and that what is going on turns out to be judicial lawmaking. This chapter argues, however, that French judicial argument is bifurcated into two distinct spheres. In addition to the syllogistic argumentative sphere of the official French judicial decision, a vibrant — though well hidden — discursive sphere exists within the French civil judicial system. In this sheltered argumentative space, French magistrates argue not so much in terms of textual deduction, but rather in terms of the advantages and disadvantages of adopting one judicial interpretation over another.

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.

This chapter analyses the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice based on a couple of clear and concise comparative theses. These theses place the judicial argumentation of the three courts on sliding scales of greater or lesser interpretive formality or open-endedness, and of greater or lesser public disclosure of their controlling arguments and reasoning. Somewhere between the formalism of the official French judicial syllogism and the more pragmatic, open-ended, and purpose/policy oriented American judicial opinions are to be found the official judicial decisions of the ECJ. It seems to make more sense to classify ECJ decisions as more formalist than U.S. Supreme Court decisions, and this for one primary reason. Despite the fact that divisive interpretive disagreement lies visible on or just below the surface of the ECJ decision, the ECJ's response to that disagreement remains perfectly univocal and rather deductive in form, and distinctly magisterial and authoritative in tone.

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.

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.

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.

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.

Studies of actual judicial decisions and recent experimental work simulating legal decision-making reveal a strong relationship between ideology and judicial decisions. There is also preliminary evidence linking ideology and constitutional interpretation preferences. This chapter proposes that legal decisions’ policy implications generate an automatic, affective response that biases subsequent information processing. The biased processing can involve: positive-testing or searching mostly for information supporting initial beliefs; counter-arguing or more critically scrutinizing information inconsistent with goals; overweighting information consistent with goals and discounting inconsistent information; and biases in storing and retrieving information. This motivated reasoning is more likely to influence decisions when the legal evidence is more ambiguous. As ideology operates through non-conscious cognitive processes, judges cannot identify ideology’s impact, making debiasing difficult.

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.

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.

This chapter looks at the underlying similarities and differences in judicial argumentation between the Cour de cassation of France, the United States Supreme Court, and the European Court of Justice (ECJ). What characterises the French and ECJ judicial systems is not their formalism, but their respective bifurcation into two relatively distinct discursive spheres. For both courts, the official judicial decisions constitute magisterial discursive spheres in which the courts write collegially and offer relatively deductive forms of argument and reasoning. For both courts, conversely, the Report of the Reporting Judges and the Conclusions/Opinions of the Advocates General constitute relatively unceremonious discursive spheres in which the judicial magistrates write individually and offer relatively non-deductive and purposive forms of argument and reasoning. This chapter also looks at traditional American accounts of French civil law and American common law difference.

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.