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.
Robert J Sharpe
- Published in print:
- 2020
- Published Online:
- June 2020
- ISBN:
- 9780198850410
- eISBN:
- 9780191885433
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198850410.003.0005
- Subject:
- Law, Private International Law
This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges ...
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This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.Less
This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.
George Klosko
- Published in print:
- 2005
- Published Online:
- April 2005
- ISBN:
- 9780199256204
- eISBN:
- 9780191602351
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256209.003.0008
- Subject:
- Political Science, Political Theory
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 ...
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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.Less
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.
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.
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.
George Klosko
- Published in print:
- 2005
- Published Online:
- April 2005
- ISBN:
- 9780199256204
- eISBN:
- 9780191602351
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256209.003.0007
- Subject:
- Political Science, Political Theory
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 ...
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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'.Less
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'.
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.
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0002
- Subject:
- Law, Comparative Law
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 ...
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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.Less
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.
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/9780691151045.003.0004
- Subject:
- Law, Legal History
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 ...
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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.Less
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.
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0008
- Subject:
- Law, Comparative Law
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 ...
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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.Less
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.
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/9780195372144.003.0004
- 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.
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.
Joshua Furgeson and Linda Babcock
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199737512
- eISBN:
- 9780199918638
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737512.003.0026
- Subject:
- Psychology, Social Psychology
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 ...
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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.Less
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.
Carl Wellman
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199744787
- eISBN:
- 9780199827138
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199744787.001.0001
- Subject:
- Philosophy, General
This book discusses all three species of human rights—moral, international, and national—at length, but it pays special attention to the moral reasons that are relevant to each species. The first ...
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This book discusses all three species of human rights—moral, international, and national—at length, but it pays special attention to the moral reasons that are relevant to each species. The first part develops an original view of the nature and grounds of moral human rights based on the author’s previous publications in the general theory of rights. If respected, they confer some sphere of dominion on the right-holder in some potential confrontation and are grounded on specifically moral reasons. The second part explains how moral human rights are relevant to both the justification and the interpretation of human rights in international law and identifies several other relevant moral considerations, such as peace and social justice. The third part argues that different kinds of moral and international human rights ought to be incorporated into national legal systems in four distinct ways: in a written constitution, judicial decisions, legislation, and human rights treaties. Finally it explains how the moral dimensions of human rights are relevant to the alleged use of torture in the interrogation of detainees in the Bush administration war on terrorism.Less
This book discusses all three species of human rights—moral, international, and national—at length, but it pays special attention to the moral reasons that are relevant to each species. The first part develops an original view of the nature and grounds of moral human rights based on the author’s previous publications in the general theory of rights. If respected, they confer some sphere of dominion on the right-holder in some potential confrontation and are grounded on specifically moral reasons. The second part explains how moral human rights are relevant to both the justification and the interpretation of human rights in international law and identifies several other relevant moral considerations, such as peace and social justice. The third part argues that different kinds of moral and international human rights ought to be incorporated into national legal systems in four distinct ways: in a written constitution, judicial decisions, legislation, and human rights treaties. Finally it explains how the moral dimensions of human rights are relevant to the alleged use of torture in the interrogation of detainees in the Bush administration war on terrorism.
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.
Mitchel de S.-O.-l’E. Lasser
- Published in print:
- 2009
- Published Online:
- January 2010
- ISBN:
- 9780199575169
- eISBN:
- 9780191706714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199575169.003.0012
- Subject:
- Law, Comparative Law
This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or ...
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This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or integrated structure of their respective argumentative practices and on their institutional or argumentative means of generating judicial legitimacy. Whereas the French Cour de cassation model is known for its radical bifurcation, the U.S. Supreme Court discourse is precisely (and in contrast) the publicly integrated or conglomerate form of its legitimating judicial argumentation, which is to say the way in which it integrates both its more formalising and its more policy-oriented discourses in one and the same publicly accessible space: the judicial opinion itself. This approach obviously places enormous power in — but also enormous strain on — the American judicial decision. The European Court of Justice model softens the radical French bifurcation by publishing and thus tempering its two discourses.Less
This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or integrated structure of their respective argumentative practices and on their institutional or argumentative means of generating judicial legitimacy. Whereas the French Cour de cassation model is known for its radical bifurcation, the U.S. Supreme Court discourse is precisely (and in contrast) the publicly integrated or conglomerate form of its legitimating judicial argumentation, which is to say the way in which it integrates both its more formalising and its more policy-oriented discourses in one and the same publicly accessible space: the judicial opinion itself. This approach obviously places enormous power in — but also enormous strain on — the American judicial decision. The European Court of Justice model softens the radical French bifurcation by publishing and thus tempering its two discourses.
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.
