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The Psychology of Judicial Decision Making


David E. Klein is Associate Chair and Associate Professor, Department of Politics, University of Virginia. Gregory Mitchell is Professor of Law and E. James Kelly, Jr.-Class of 1965 Research Professor, University of Virginia School of Law. Together they edited, The Psychology of Judicial Decision Making, which is part of the American Psychology-Law Society Series. The book maps ways of incorporating key concepts and findings from psychology into the study of judging. Together the essays will foster a better understand how judges make decisions, and open new avenues of inquiry into influences on judicial behavior. In the excerpt below, from the introduction, we learn a little about why combining the study of law and psychology is beneficial.

Over the years, psychologists have devoted uncountable hours  to learning how human beings make judgments and decisions.  Legal scholars and political scientists have expended immeasurable intellectual energy trying to understand why those particular human beings who sit on courts act as they do in presiding over and deciding cases.  It might seem obvious that fertile intellectual ground lies at the intersection of these disciplines, and certainly some scholars have seen it this way.  As far back as 1930, Jerome Frank drew on contemporary psychology to explain judging in his Law and the Modern Mind. And yet, nearly eighty years on, the area under active cultivation is quite small.  To be sure, psychological concepts crop up in studies of judicial behavior from time to time, but it would be difficult to name a score of published studies that have relied extensively on current ideas and evidence in psychology to generate major theoretical propositions about judging.  This is party because students of judicial behavior traditionally have not engaged deeply with scholarship in psychology, but only partly; it is also the case that psychologists have tended not to focus on the kinds of questions that would be most helpful for understanding what professional judges do….

The study of judicial decision making has indisputably made great strides in recent years, through the labors of hundreds of scholars from political science, law, economics, and other disciplines.  Nevertheless, one could argue that there remains a lack of both depth and breadth to our understanding of what judges do. Even where scholars can make consensual and successful predictions of a judge’s behavior – for example, that Justice J will vote for the conservative position in case C – they will often disagree sharply about exactly what happens in the judge’s mind to generate the predicted result.  (Does Justice J vote conservatively in a conscious effort to further his policy preferences, in an unconscious effort to do so despite a sincere desire to be guided by legal texts, or as a result of a method of interpretation that is independent of his ideology?)  And as soon as we move beyond ideology, we enter areas where good predictions are much harder to come by.  How will a judge’s decision on a motion, verdict, or appeal be affected by precedents, the presence of an amicus curiae brief or oral argument by the defendant’s attorney, the preferences and arguments of other panelists on a collegial court, the opinions of the local bar, the presentations of expert witnesses, other demands of the judges’ time?  Why will it be affected that way?  Some of these questions have been the subject of excellent scholarly analysis, but none have received definitive answers.

Naturally, various methodological difficulties unrelated to psychology have hindered attempts to study judging, and as scholars devise creative new ways to measure previously intractable concepts, observe hidden behaviors and influences, and design studies so as to control for more confounding factors, our understanding of judging will continue to improve.  Still, anyone who has ever tried to choose fairly between serious competing legal arguments must have been struck by the depth, complexity, and mysteriousness of the mental processes involved in the evaluation.  It is hard to see how we can hope to achieve a profound understanding of the far more complex and difficult undertaking we call judicial decision making without a close analysis of these underlying mental processes.

Thinking about the intersection of psychology and judicial decision making can do more than help us answer questions that have long troubled scholars; it can also point us toward equally exciting but less explored questions.  To give just a few examples: What does it mean to judge well?  Are some circumstances, personalities, or cognitive styles more conducive to good judging than others? Do most judges posses special reasoning skills that other people lack?  Do judges care what other people think about them, and, if so, how does this affect their decision making?  When different motivations come into play at the same time, which have the most influence on judges’ behavior, and why?…

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