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Old 10-19-2009, 12:45 PM
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Default Studying the art of judicial decision making

Studying the art of judicial decision making


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Studying the Art of Judicial Decision-Making

Chicago Daily Law Bulletin
June 12, 2009 Volume: 155 Issue: 115

Criminal Procedure

By Timothy P. O'Neill

The composer Richard Rodgers was once asked "Which comes first, the music or the lyrics?" Rodgers famously replied, "The contract." (This just goes to prove that even an artist can think like a lawyer.)

There is a similar question posed about deciding cases on the U.S. Supreme Court: "Which comes first: the theory or the decision?"

Legal realists - from Richard A. Posner and Stanley Fish in the present all the way back to Jerome Frank in the 1930s - contend that the answer is clear: the decision. They assert that the use of theory does not actually result in a decision in a particular case; rather, theory is only used after the fact to support a decision that the judge has already reached.

Whether or not this is accurate has always been the domain of political scientists and law professors. Yet new research in neuroscience on the workings of the brain now lends support to the legal realists' claims that "decision precedes theory."

First, let's take a look at some empirical evidence. Ward Farnsworth, a professor at Boston University School of Law, has examined patterns in the U.S. Supreme Court's criminal law decisions. In one study he compared decisions in two kinds of non-unanimously decided criminal cases: those involving constitutional issues and those involving non-constitutional issues, such as statutory construction. Considering the variety of theories used in interpreting the Constitution - e.g., originalism, textualism, minimalism - he posited that there should be no necessary correlation between a justice's decisions in these two very different types of criminal cases. Instead, he found an amazing degree of congruence: justices tended to be either pro-prosecution or pro-defense regardless of the kind of issue in the criminal case. Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, 104 Michigan Law Review 67 (2005).

Farnsworth posits that theory does not drive a justice's decisions. Rather, a decision is the result of what he refers to as a justice's "priors," i.e., the policy preferences, values, and empirical views that a justice brings to the table. Theory is then used to justify the decision previously made.

The consistency of justices' positions in criminal cases can be rather astonishing. For example, Chief Justice William H. Rehnquist spent 33 years on the Supreme Court - one-third of a century. He participated in more than a thousand criminal cases. Yet during his tenure on the court, he never once wrote or joined a dissent in favor of a defendant on a point of constitutional law. Similarly, Chief Justice Warren Burger in his 17 years on the court never once supported a defendant in a dissent in a constitutional criminal case.

What about pro-defense justices? Justice Thurgood Marshall in 24 years on the court never once dissented in favor of the government in a constitutional criminal case. Justice William Brennan in 34 years on the court only once dissented for the government in a constitutional criminal case. Ward Farnsworth, Dissents Against Type (paper available for free download at www.ssrn.com).

Or take a series of cases from the Supreme Court's 2006 term. The court decided eight death penalty cases from state courts. The cases came to the court both through direct appeal and through federal habeas corpus. The issues were wide-ranging: from the propriety of jury instructions to competence of the defendant to be executed; from ineffective assistance of counsel to improper removal of a juror.

What did the cases have in common? Every single case was decided 5-4. Justice Anthony M. Kennedy cast the deciding vote in each case, four times for the prosecution and four times for the defense. Yet every single case had Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. holding for the prosecution. And every single case had Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg holding for the defense.

How can this kind of mind-numbing consistency be explained?

Judge Posner notes that, almost by definition, the Supreme Court's docket is comprised of cases that fall between the cracks of existing law. Thus, the court decides cases within "an ocean of discretion." Richard A. Posner, Foreword: A Political Court, 119 Harvard Law Rev. 32, 41 (2005). So how does a justice decide a case? She must rely on what Posner refers to as "preconceptions" or "Bayesian priors." Richard A. Posner, How Judges Think, 269-323 (2008). In the area of criminal law, it may turn on whether or not the justice believes that public safety is more important than the rights of criminal defendants - or vice versa.

And, according to Stanley Fish, only at this point does theory enter the picture. For after the justice has already made the decision, she must now use theory "to construct a certain kind of story in which [her] decision is more or less dictated by the inexorable laws of the judicial process." Stanley Fish, Dennis Martinez and the Uses of Theory, 96 Yale Law Journal 1773, 1791 (1987).

In other words, theory does not produce a result; it merely justifies a result that has already been reached.

Is this type of legal realism, as some observers would say, a cynical way of looking at judicial decision-making? On the contrary, new evidence from neuroscience seems to indicate that this account may accurately describe how the human brain actually makes decisions of many kinds. Two recent books have shed fascinating light on this issue: Jonah Lehrer's How We Decide (2009) and Jonathan Haidt's The Happiness Hypothesis (2006).

Philosophers going back to Plato have described the human mind as being torn between reason and emotion. The conventional view is that man's reason must rein in his unruly emotions. If reason could only function undisturbed by emotion, man could be an ideal "reasoning machine" - i.e., Mr. Spock of "Star Trek."

Indeed, neuroscientists have recently been able to observe people with a type of brain damage that deprives them of emotions, but leaves their reasoning intact. Yet the result is not that they make better decisions; rather, they are incapable of making even the simplest decision.

Why? Because damage to the orbitofrontal cortex deprives the brain of the ability to integrate emotions into the decision-making process. And, according to Lehrer, "Reason without emotion is impotent."

This is true because the part of our brain that deals with emotions has had a much longer time to evolve than the part of our brain that deals with reason. The emotional brain has had several hundred million years to refine itself. The reasoning part of our brain, on the other hand, is a mere two hundred thousand years old.

The emotional part of our brain is so efficient that it works automatically without our being conscious of its processes. The less-evolved reasoning part of our brain is much slower, because it has "lots of design flaws and software bugs." (Lehrer, 24) This is why, in a pure reasoning activity, "a cheap calculator can do arithmetic better than a professional mathematician." Yet in a skill such as hitting a baseball - which requires complex coordination between all parts of the brain with decisions reached in milliseconds - no robot can do it. According to Lehrer, "The process of thinking requires feeling, for feelings let us understand all the information that we can't directly comprehend. Reason without emotion is impotent." (26)

What Jonathan Haidt says about moral judgments could be applied to legal decision-making: "[M]oral judgment is like aesthetic judgment. When you see a painting, you usually know instantly and automatically whether you like it. If someone asks you to explain your judgment, you confabulate.... When you refute a person's [moral] argument, does she generally change her mind and agree with you? Of course not, because the argument you defeated was not the cause of her position; it was made up after the judgment was already made.... In moral arguments ... [the reasoning part of the brain] becomes a lawyer, fighting in the court of public opinion to persuade others of the [emotional part of the brain's] point of view." (Haidt, 21-22).

George Orwell said much the same thing about literature: "[E]very literary judgment consists in trumping up a set of rules to justify an instinctive preference. One's real reaction ... is usually 'I like this book' or 'I don't like it' and what follows is a rationalization." George Orwell, "Writers and Leviathan" (1948) in All Art Is Propaganda: Critical Essays (2008).

Thus, when Scalia and Stevens voted on opposite sides in all eight death penalty cases decided during the 2006 term, my hunch is that their decisions were based a lot more on their visceral feelings about capital punishment rather than on the closely reasoned discourses on issues such as jury instructions and competence of counsel that comprise the ostensible reasons for their majority and dissenting opinions in the cases.

The relation between neuroscience and judicial decision making has the potential to become one of the most intriguing issues legal scholars will face in the 21st century.
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Old 10-19-2009, 12:54 PM
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ilbegone ilbegone is offline
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It would be interesting to know if Timothy P. O'Neill has ever been the subject of a prosecutor's immediate interest and has had to abide by a judge's decision, which often goes far beyond traditional remedies, and if that experience would influence his view concerning the criminal justice system?
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Old 10-26-2009, 07:29 AM
Kathy63 Kathy63 is offline
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From what I have personally seen, judges make their decisions on how they feel that day.
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Old 10-26-2009, 08:02 AM
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Ayatollahgondola Ayatollahgondola is offline
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From what I have personally seen, judges make their decisions on how they feel that day.
I'm sure you've also read some that look like they were written under the influence
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Old 10-26-2009, 01:19 PM
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Jeanfromfillmore Jeanfromfillmore is offline
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Great article Ilbegone. Ones own bias applies to more than how we like our coffee, or even if we like coffee at all. What scares me is that Obama will have such influence on who will be on the Supreme Court in the next few years. If he gets voted in for a second term, you can sure bet he'll have it loaded with Chicago style judges. Not exactly the kind of court I want making this country's decisions.
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Old 10-27-2009, 11:15 AM
LAPhil LAPhil is offline
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Great article Ilbegone. Ones own bias applies to more than how we like our coffee, or even if we like coffee at all. What scares me is that Obama will have such influence on who will be on the Supreme Court in the next few years. If he gets voted in for a second term, you can sure bet he'll have it loaded with Chicago style judges. Not exactly the kind of court I want making this country's decisions.
Oh, I don't know, Jean. Maybe he'll pick another wise Latina from New York.
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Old 10-27-2009, 12:19 PM
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Jeanfromfillmore Jeanfromfillmore is offline
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Oh, I don't know, Jean. Maybe he'll pick another wise Latina from New York.
Just my point Phil. Oh heaven help us.
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