How Judges Judge

Empirical Insights into Judicial Decision-Making

Brian M. Barry

• Publisher: Informa Law from Routledge
• Year: 2020
• ISBN:
  9780429657498
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A judge's role is to make decisions. This book is about how judges undertake this task. It is about forces on the judicial role and their consequences, about empirical research from a variety of academic disciplines that observes and verifies how factors can affect how judges judge.

On the one hand, judges decide by interpreting and applying the law, but much more affects judicial decision-making: psychological effects, group dynamics, numerical reasoning, biases, court processes, influences from political and other institutions, and technological advancement. All can have a bearing on judicial outcomes. In How Judges Judge: Empirical Insights into Judicial Decision-Making, Brian M. Barry explores how these factors, beyond the law, affect judges in their role. Case examples, judicial rulings, judges' own self-reflections on their role and accounts from legal history complement this analysis to contextualise the research, make it more accessible and enrich the reader's understanding and appreciation of judicial decision-making.

Offering research-based insights into how judges make the decisions that can impact daily life and societies around the globe, this book will be of interest to practising and training judges, litigation lawyers and those studying law and related disciplines.

CHAPTER 1
Introduction

People rightly expect judges to be excellent decision-makers. They expect judges to be objective, rational, accurate, impartial, deliberative and decisive. These are lofty ideals – necessarily so. Many judges walk past a statue of Lady Justice on their way to their courtroom, a personification of these ideals and a reminder of judicial systems’ moral force. The ability of judges to adhere to these ideals, to be good decision-makers, and to deliver fair judgments, is the measure of the public’s trust in their judiciary.¹

1 Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich note, along similar lines, “[T]he institutional legitimacy of the judiciary has always depended on the quality of the judgments that judges make.” Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘Inside the Judicial Mind’ (2000) Cornell Law Review 777, 779.

This book is about how judges make decisions. More specifically, it is about the growing body of global research on how factors, beyond the law, affect judges when they make decisions. This research on judicial decision-making – increasingly broad in scope and increasingly revelatory – is vitally important if we are to understand how judges perform in their role. Judges, of course, are human. They are social actors and political actors. They are pushed and pulled by internal and external forces. Psychological forces. Emotional forces. Institutional forces. Political forces. Self-interested forces as professionals. Implicit biases. Explicit prejudices.

Often, judges admirably resist, or at least strive to resist, some of the insidious consequences of these forces. Mindful of the lofty standards expected of them, judges aspire to perform the task of judging solely within the four corners of applicable law. Sometimes, judges may think it right and necessary that to ‘do justice’ – a slippery and amorphous notion – they must acknowledge and bend to sensitive human, social or political concerns that guide them towards what they perceive to be a better, fairer judicial outcome. And then there are other occasions when judges may consciously or subconsciously succumb to the negative consequences of some of the internal and external forces mentioned above.

This book is about these forces and their consequences, about empirical research from a variety of academic disciplines that observes and verifies how factors other than law can affect judges when they make decisions. To truly understand how judges judge, one must go beyond laws, beyond the rules of natural justice or fair procedure, beyond jurisprudence and embrace what empirical research tells us about judicial decision-making.

For centuries, lawyers, law students and academics the world over have rightly pored over the judgments of courts, analysing and parsing out the intricacies of how judges consider, interpret and apply laws. In tandem, jurisprudence students and scholars have explored and developed theories and philosophies that underpin laws and judges’ decisions. Further still, justice systems have developed rules, customs and procedures that govern the role of the judge, including what amounts to judicial bias (either apparent or actual bias) and when a judge ought to recuse oneself or be disqualified from hearing a case.² These considerations and strands of analysis have traditionally driven our understanding and estimation of how judges perform in their role. However, during the 20th century, particularly the latter half, a third strand emerged; scholars began to undertake qualitative and quantitative studies on how factors beyond the law affect judges deciding cases. The key characteristic of this third strand of analysis is that it is empirically driven.

2 See generally on judicial recusal and disqualification R Grant Hammond, Judicial Recusal: Principles, Process and Problems (Bloomsbury Publishing 2009); Richard E Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (Banks & Jordan Law Publications 2007). The Irish Supreme Court recently considered the test for objective or perceived bias in O’Driscoll (a minor) v Hurley [2016] IESC 32.

This book aims to present, contextualise and analyse empirical research on judicial decision-making to date. It casts the net far and wide across the social sciences and across the globe to assimilate the impressive work of – among others – political scientists, psychologists and economists who strive to better understand what makes judges tick. Taking account of all of these strands of research in 2020 is a gargantuan task for any legal practitioner or student – a task that this book hopes to make considerably easier. The number of studies is vast and growing, particularly since the turn of the 21st century. To offer a rather crude measure of this growth, there were 627 research outputs appearing on Google Scholar that include in their title the phrases “judicial decision making,” “judicial decisionmaking,” “judicial behaviour” or “judicial behavior” for the entire 20th century. In the first 20 years of the 21st century alone, an additional 927 titles have emerged. More and more research will undoubtedly accumulate.

Aside from the increasing volume of empirical studies on judicial decision-making, this research is scattered across various social science disciplines and sub-disciplines – academic fields that can often operate in relative isolation from each other.³ This can make it difficult to collate and reflect on research that addresses similar issues but from different academic perspectives. Furthermore, although a great deal of this research is on the US judiciary (more about this below), researchers have begun to investigate judicial decision-making in more and more jurisdictions around the world. Gradually, research has become more global, particularly so in the last 20 years. Now is therefore a good time to take stock, to compile a rounded picture of current research, both in jurisdictions well known for investigating judges and judging, and in jurisdictions with burgeoning research, such as China, the Philippines, Brazil and Taiwan.

3 Rosenberg commented, for instance, on a growing distance between lawyers and political scientists: “[T]he academic disciplines of law and political science were once closely entwined under the rubric of the study of government. At the start of the twentieth century, to study government was to study law…. But as the century developed, and particularly after mid-century, the distance between the two disciplines grew. Today, legal academics and political scientists inhabit different worlds with little in common. If they communicate at all, they can barely hear each other; they stand on opposite sides of a great divide, and they are looking in opposite directions.” Gerald Rosenberg, ‘Across the Great Divide (between Law and Political Science)’ (2000) 3 Green Bag 267, 267.

This book is aimed at anyone who wants to know more about how judges decide cases. Judges and aspiring judges, wishing to broaden their perspectives on judicial decision-making beyond what their current training and experience provide, will benefit. As leading political scientist and judicial scholar Lee Epstein observes, “[J]udges would better advance their own career objectives by understanding the behaviour of judges.”⁴ The audience for this book does not stop there. Law students and researchers, and students and researchers of disciplines that relate or overlap with law, will develop a broader and more nuanced appreciation for how law is ‘done’. Litigation lawyers – whose ability to predict judicial outcomes and to persuade judges is central to their success – will learn about research that directly impacts on their work and that goes beyond their primary discipline of law.⁵ Judicial training experts, policy experts and professionals working in court systems looking at ways to understand and improve judicial performance will also benefit.

4 Lee Epstein, ‘Some Thoughts on the Study of Judicial Behavior’ (2016) 57 William and Mary Law Review 2050, 2039.

5 Legal realist Oliver Wendell Holmes spoke of the lawyer’s job as one of prediction: “[T]he prediction of the incidence of the public force through the instrumentality of the courts.” Oliver Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 457. See also Harry Surden, ‘Machine Learning and Law’ (2014) 89 Washington Law Review 87, 102.

1.1 A brief introduction to the development of judicial decision-making research

To briefly introduce the research that is the lifeblood of this book, we turn to around the start of the 20th century and the emergence of an important school of jurisprudence – legal realism.⁶ Legal realists sought to contest and undermine the legal formalist understanding of judicial decision-making – the latter espousing that judges decided cases solely within the confines of law and legal principles. Oliver Wendell Holmes’s 1897 essay “The Path of the Law” and, later, US Supreme Court Justice Benjamin Cardozo’s seminal 1921 work The Nature of the Judicial Process, are two exemplars of the legal realist movement. Each argued that there is more to understanding judging than the mere application of a set of clear, consistent, complete legal rules. Cardozo captured the essence of this in The Nature of the Judicial Process: “[D]eep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the … judge.”⁷

6 For useful introductions to legal realism, see Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press 2017) ch 6; Suri Ratnapala, Jurisprudence (Cambridge University Press 2017) ch 5.

7 Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press 1921) 167.

As Cardozo, Holmes and others such as Karl Llewellyn and Jerome Frank refined theories of legal realism, researchers began to empirically test their claims, investigating how factors beyond the law affected judges’ decision-making. In one of the earliest such forays, Francis Galton, a Victorian-era polymath, showed in 1895 how inconsistencies and irrationalities appeared to plague British judges’ decisions when they sentenced criminal defendants.⁸ Later, in the 1940s, researchers interested in how law and politics interact began to empirically test how judges’ political ideologies influenced their decision-making. The pioneer here was Charles Herman Pritchett, who compiled decisions of individual justices on the US Supreme Court during the late 1930s and 1940s, identifying trends that demonstrated correlations between each of the Court’s judges’ political affiliations and their decision-making.⁹ Pritchett’s work, in particular, acted as a catalyst for a rich vein of research, mostly by academics who would mainly describe themselves as political scientists, focusing on how judges’ political leanings may have consequences for judicial outcomes. Seminal studies by the likes of Glendon Schubert, Jeffrey Segal, Harold Spaeth and Lee Epstein followed in the path forged by Pritchett. This body of work came to be known as the study of ‘judicial behaviour’. Although at first blush, the moniker ‘judicial behaviour’ has broad connotations that could cover a range of issues on how judges perform in their role, the term is largely understood to apply to the narrower question of how judges’ political values and preferences infiltrate their decision-making.

8 Francis Galton, ‘Terms of Imprisonment’ (1895) 52 Nature 174. Other researchers followed suit: Frederick J Gaudet and others, ‘Individual Differences in the Sentencing Tendencies of Judges’ (1932) 23 American Institute of Criminal Law & Criminology 811; Matthew F McGuire and Alexander Holtzoff, ‘The Problem of Sentence in the Criminal Law’ (1940) 20 Boston University Law Review 423.

9 C Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947 (Palgrave Macmillan 1948).

Research on so-called ‘political’ judging as part of ‘judicial behaviour’ was just the start of a much bigger overall project. Researchers soon hypothesised and speculated about what other factors might be at play in the courtroom and concocted new ways of putting judges and their decisions under the microscope. Research continued apace from the middle of the 20th century onwards, becoming broader in scope, more sophisticated and affording more nuanced perspectives on the traditionally opaque exercise of judging. To briefly introduce some other themes of more recent research, as judiciaries became more diverse, researchers began investigating whether there were correlations between judges’ personal and demographic characteristics and their decision-making. For instance, do judges of different races, ethnicities, genders, ages and religions decide cases differently? Equally, and related to this, researchers enquired whether – all other things being equal – judges favour or disfavour litigants with specific personal or demographic characteristics.

Other researchers have investigated what motivates judges as self-interested professionals: how might pay, leisure, retirement, prestige and reputation affect the judge as a career-following professional, and what consequences might those factors have for their d...