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Published in "Special Symposium: The Supreme Court and the American Public," 88 Chicago-Kent Law Review 411 (2013).

Abstract

Ostensibly, we are all Legal Realists now. No longer do legal theorists insist that judicial decision making fits the mechanical and formalist characterizations of yesteryear. Yet, the predominant style of American appellate court opinions seems to adhere to that improbable mode of adjudication. As argued elsewhere, opinions habitually provide excessively large sets of syllogistic reasons and portray the chosen decision as certain, singularly correct, and as determined inevitably by the legal materials (Simon, A Psychological Model of Judicial Decision Making, 1998).

This article examines two possible explanations for this rhetorical style of Judicial Overstating. First, we review the psychological research that suggests that judicial overstating is a product of the cognitive processes by which judges arrive at their decisions. Research on the Coherence Effect suggests that during the decision making process, the cognitive system spreads apart the opposing decisions by inflating one set of arguments and deflating the other, with the effect of making one decision seem considerably stronger than its rival. This leads the judge to perceive the chosen decision as stronger than it is, and thus to overstate the opinion.

It might also be possible that judges resort to overstatement because they believe that this form of reasoning promotes the legitimacy of the judiciary in the eyes of the public. We report on a recent experimental study that was conducted to test this possibility. We found that overstated and monolithic reasons did not promote the evaluations of the judges nor of the decisions they rendered. Actually, lay people gave slightly more favorable evaluations when the judges provided nuanced opinions that admitted to the appeal of both sides of the dispute (notably, the evaluations were most strongly related to the respondents’ agreement with the outcome). Thus, to the extent that judges resort to this rhetorical style as a means to enhance the public’s acceptance of their opinions, they are likely achieving the opposite effect.

In our opinion, the certainty and singular correctness that are habitually reported in judicial opinions are not properties of the law, but artifacts of the judges’ constructed representations of it.

Disciplines

Courts | Judges | Law | Law and Psychology | Law and Society

Date of this Version

8-20-2014

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