Seminar 3 - moving beyond judges' policy preferences

What did Baum examine, and what were the 3 dominant models of judicial decision-making that he identified and discussed?

Baum explores whether the three existing modules are good enough, and whether there is anything missing. The scholarship on higher courts has depicted three ideal types of judicial behavior, typically labeled legal, attitudinal, and strategic.

What are these 3 dominant models? →

• In a pure legal model, judges want only to interpret the law as well as possible.

• In a pure attitudinal model judges want only to make good public policy, so they choose between alternatives on the basis of their merits as policy.

• In most pure strategic models, judges seek to make good policy, but they define good policy in terms of outcomes in their court and in government as a whole. Thus they may deviate from their most preferred policy position in a case as a way of helping to secure the best outcome.

What is Baum’s approach to understanding judicial decision-making, and how does it depart from the 3 dominant models (such as purely legal model, purely attitudinal and pure strategic models)?

Baum’s approach to understanding judicial decision-making

Baum focuses on judges’ relationship with their audiences - both internally amongst those on their court, and the public on the outside of the court. Baum believes that judges’ motivation to win the approval of their audiences can explain a good deal about their choices as decision makers, and the explanatory value of thinking about judges and their audiences as a means to develop new understandings of judicial behavior. The relationships between judges and their audiences leads to a richer explanation of judicial behaviour overall, which the dominant models fail to account for.

Baum believes that judges’ motivation to win the approval of their audiences can explain a good deal about their choices as decision makers, and the explanatory value of thinking about judges and their audiences as a means to develop new understandings of judicial behavior. The relationships between judges and their audiences leads to a richer explanation of judicial behaviour overall, which the dominant models fail to account for.

What were Baum’s criticisms of the 1 of the 3 dominant models - purely strategic model? (5 reasons)

When Baum criticises the strategic model, he addresses studies completed by the likes of Epstein and Knight, and Sunstein.

Focusing on the strategic model …

Baum argues that strategic models assumes that justices are willing to take on the burdens of acting strategically. If they do manage to achieve a high level of predictive accuracy, the gains for their preferred policies are likely to be limited, since they derive no concrete benefits from their success. Such judges make their choices with the goal of adopting good legal policy, a goal whose achievement brings them no tangible benefits. They need to labor to identify the best choices while recognizing that they may fail to do so, and this is a lot to expect of them.

Judges who try to interpret the law as well as possible or to identify the positions that are most consistent with their policy preferences have to work hard, but at least the work of the legal or attitudinal judge ends there. The task of the strategic judge continues, and that judge may need to engage in intensive labor in order to choose something approaching the optimal strategy.

Judges who try to interpret the law as well as possible or to identify the positions that are most consistent with their policy preferences have to work hard, but at least the work of the legal or attitudinal judge ends there. The task of the strategic judge continues, and that judge may need to engage in intensive labor in order to choose something approaching the optimal strategy.

Baum describes the strategic model as being one where the judiciary should focus on the ultimate consequences of their choices and act to make those consequences as consistent with their preferences as possible. Thus it seems self-evident that judges act strategically to advance their policy goals.

Baum argued that this perception of realism is not necessarily justified, arguing that judges adapt strategies due to two categories

1. the strength of people’s incentives to behave strategically and

2. the extent of their capabilities to identify and follow the best strategy in any situation

He argued that judges and policy goals are different. Ordinarily, judges gain only intangible benefits from advancing their favored policies. These benefits are meaningful, but they do not seem nearly as substantial as those that accrue to economic actors or even to elected officials who want to retain their positions. Whatever benefit judges derive from the state of public policy in a particular field, the choices of a single judge ordinarily have only a marginal impact on the totality of policy. Most directly, multiple judges participate in formulating judicial policy on an issue. An appellate judge faces limits imposed by the actions of colleagues and other courts, and the effort required to act strategically might not be justified by the likely gain for the judge’s policy goals. While they may gain intangible benefits when their favored legal policies come closer to attainment, their limited capacity to affect outcomes reduces the quantity of these benefits.

What were Baum’s criticisms of the 3 dominant models collectively (such as purely legal model, purely attitudinal and pure strategic models)? - 4 reasons

Difference between Baum’s approach and the 3 dominant models

Each model allows for judicial strategy. Each model incorporates the assumption that Supreme Court justices act solely on their interest in the substance of legal policy, whether that interest is centered on policy or on a combination of law and policy. No other goal has any impact on the justices’ behavior. The same assumption is often applied to judges on other federal courts. Baum criticised this, arguing this is striking assumption, because it treats judges as people whose choices are based on a very narrow set of goals.

Baum argued all the leading models of judicial behavior share a limitation, which is that the models portray Supreme Court justices (and, in some formulations, judges on other courts) as single-minded seekers of good legal policy, whether that means good policy or some combination of good law and good policy. If judges’ incentives to pursue this goal are less than overwhelming, and if other motivations are relevant to their work, then the accuracy of this portrayal is questionable.

The most influential models of judicial behavior share not only a basic assumption but also a limitation, the lack of a persuasive theory of judges’ motivations. Each model assumes that judges seek only to achieve good legal policy. Some scholars outside political science have identified motives for pursuing that goal, but these motives seem only moderately strong. Nor does this goal have monopoly status by default; there are other goals that could shape judges’ choices. As a result, the dominant models in their current forms are not entirely realistic.

Judges in the dominant models of judicial behavior depart further from reality: they share rationality and self-control with orthodox economic actors but act on the basis of complete altruism rather than complete self-interest. Further, the incorporation of certain judicial goals into the dominant models as basic assumptions limits inquiry into the bases for those goals. This has been a deliberate choice, based in part on scholars’ primary interest in prediction rather than deep explanation and the leading models of judicial behavior teach us a great deal about why judges do what they do, but their perspective is narrow. That narrowness limits what these models in their current form can tell us.

Baum argues that by expanding the scope of those 3 dominant models, we can gain a fuller comprehension of the bases for judges’ choices.

What were Baum’s criticisms for 2 of the 3 dominant models (both the purely attitudinal and pure strategic models)?

First, the empirical evidence that scholars have amassed proves less than is often thought. But the existing evidence does not establish that justices are motivated solely or majorly by policy goals.

What it shows most clearly is quite important but considerably more limited: differences in the positions that the nine justices take in the same cases are best understood as a product of differences in their policy preferences. The evidence on strategic behavior is even less conclusive, but it falls well short of demonstrating that all judicial behavior takes the forms we would expect if justices are fully strategic. But by setting complexities aside these models can limit our comprehension of behavior.

What does Baum mean by judges’ ‘audiences’?

This consists of audiences, such as the legal community, colleagues, public, media, government. Baum argued that judges are not necessarily immune to public sentiment, and can be prone and therefore they would be aware of public views on certain cases, which can impact their views.

How does this apply to trial judges who work beside juries? → Perhaps the pressure of having an audience would be arguably minimal provided that they do not have to focus on their colleagues, whilst focuses on the external audience of the jury or public, since they have the most interaction with them.

Judges might want the esteem of scholars, or fellow young lawyers - Baum would argue this is an indication that the judge wishes to be seen in specific light, such as academic validation and prestige, or simply wish to return something back through legal education. Increasingly, judges write speeches to obtain esteem from those in the public, and tend to do this in law school, within the court, or law society or bar association meetings. They are focused within the legal community, and what the community particularly believes of them/perceives them as per Baum.

Baum emphasises that judges themselves are human beings, wish to be seen in a good light by certain groups, and are equally prone to judgement and wish to be held in high esteem by others, Baum emphasises that it’s not that judges’ are suspetible or that their judgement is expected to be of a higher standard, they are equallly human-being, prone to error and also want to be held within a high esteem and regard by others, therefore Baum dismantles the arguments that judges aren’t focused on the audience - people crave connection and interaction, wishing to establish themselves which is a natural response. These models are flawed as Baum criticised is TAKING the individual out of the study, and focusing judges as a seperate entity, as opposed to being human beings at their core.

Why does Baum regard judges’ interest in the approval of their audience important and should be considered as a perspective?

• It enhances out understanding of judicial behaviour in several area it supplies some of the motivational basis for patterns of judicial behavior that are incorporated into the dominant models (since concern with audiences helps to explain why judges may commit themselves to making what they see as good law or good policy.)

• It provides ways of thinking about debates between competing models (With debates on the importance of legal and policy considerations in judges’ decisions and the extent to which judges act strategically, relationships between judges and their audiences offer a vantage point on those issues.)

• It helps to explain patterns of judicial behavior that diverge from all the leading models (The explanations of decision making that flow from those models — legal, attitudinal and strategic models — are incomplete in some respects and simply wrong in others. The relationships between judges and their audiences fill in some of the gaps and correct some inaccuracies.)

• It points to some new lines of inquiry into judicial behavior (In this way the scope of empirical research on the bases for judges’ choices can be expanded.)

• It modifies and expands on dominant models, consisting of legal, attitudional and strategic models (They provide a structure for the accumulation of knowledge about judicial behavior. With adaptations, their contributions can be even greater.)

According to Schauer, what is lacking in existing research on judicial decision-making?

Existing research examines what experts at x do that novices at x do not, but almost none of it looks at whether people who know how to x, whether experts or novices or somewhere in between, tackle problems and make decisions differently from people who do not know how to x at all, or from people who know only how to y, again regardless of whether they are expert or not. There is little research that addresses the question of cross-domain expertise - what we might call specialisation rather than expertise - this question is central to examining the psychology of judges.

Any kind of profession has its own way of thinking and language, and the argument is whether that process of legal education influences the way judges think, and whether that is distinctive from the rest.

What does Schauer regard as ‘second order reasoning’ and how does this work in law?

Second order reasoning is one form of reasoning - or one cluster of associated forms of reasoning - that can plausibly be understood to set lawyers apart from others.

When engaged in ordinary/first-order reasoning and decision making, people tend to try and make the best decision for the problem or task at hand. Their aim is typically to reach the right result for this case - the present case. That this is so for ordinary people, however is not to say that it is so for lawyers and judges.

The second order reasning is not about what is, but instead about what to do as per Schauer. But in the law such factual determinations are typically precursors to a judgement about what the law requires to be done on the basis of these facts, and what the law requires to be done may be something other than that which a nonlegal decision maker would decide, all things considered, should be done.

Although the legal system engages in factual inquiry, it is precisely in moving from factual inquiry to action-producing consequence that legal reasoning potentially differs in fundamental ways from the reasoning of other action-producing agents, but because decisions having legal consequences differ just this reason from the practical reasoning in which non-lawyers ordinarily engage.

Schauer argues that the judges not only determine the current case, but also the other late subsequent cases and considering the consequences and aftermath of one case influencing the other cases later down the line. An example of this is assisted suicide cases, such as Nicklinson, and the judges cannot determine one person’s case in isolation, but they must account for everyone simutaneously.

It is also the ability to reason beyond the best result in the present case to the best result in a larger number of cases, and future cases, and what the law requires to be done may be something other than what non-legal individuals would have done.

What is the key question Schauer believes should be on the research agenda for exploring the psychology of judicial decision-making but has surprisingly almost been completely ignored? In summary, what is Schauer’s proposed research programme, as in who needs to take part, what are the 3 key questions that must be addressed and what are signs of deficiencies in current research?

Key Question Schauer believes should be asked -

It is the question of whether, if at all, judges reason differently from ordinary folk? And when it comes to tasks other than fact-finding, do judges think like human beings, or like lawyers, or like judges?

Who would need to take part in the research? -

It should include judges, members of the public, but if judges training and experiences gives them a special psychology, does it start with law students, lawyers and non-legally trained (3 groups to be assessed)?

BUT we must also compare the different types of judges, and whether it is different in terms of their thinking and reasoning, such as appelate judges, trial judges, international judges in international courts.

It is not just different types of judges, but levels or types of legal training such as advocates, lawyers and law students. (and whether the areas of law they specialise in would influence or impact their level of reasoning?).

Schauer’s proposed research programme consists of 3 key questions -

1. do judges really engage in 2nd order reasoning/

2. If yes, is judicial 2nd order reasoning substantially different than reasoning of non-judges?

3. And if the answer to Q2 is yes, is this due to legal training or is it something due to their legal background?

In what ways are there deficiencies in current research?

There is -

• very limited research with real judges

• focus is on fact-finding/verdict task

• ignores exclusive judical reasoning

Why does Schauer criticise studies conducted by individuals such as Sunstein (strategic model), and Goldman (attitudinal model)?

Schauer criticises individuals like Sunstein and Goldman, since they solely focus on votes as opposed to the process in which the judges come to, to make that decision - focusing on whether they’re influenced on their legal training and background in the process of making the verdict, as opposed to focusing on the outcome of making the vote.

How did Glynn and Sen conduct their research (be specific: which courts, judges; how many; what time period)?

They were looking at equality of empathy, as in what role does empathy play in how judges decide cases? Specifically, is there any link between judges who have daughters and their approach to gender-based cases?

There was 186 male judges, and 38 female judges within the US Courts of Appeals. There were 990 gender-related cases around 1996-2002.

What were Glynn and Sen’s main findings?

Main findings -

Judges with at least 1 daughter vote in more liberal manner in gender-based cases than judges with sons, and mostly affects male republican-nominated judges as opposed to male democrat-nominated judges. The model shows that an increase in the number of girls from none to one, conditional on the total number of children, translates on average into a 9% increase in the proportion of gender-related cases in which a judge will vote in a feminist direction.

After conducting a dummy variable for whether a judge has at least one daughter, it corresponded to a 7% increase in the proportion of cases where a judge votes in a feminist direction, and it was found that having one daughter as opposed to one son is linked to an even higher 16% increase in the proportion of gender-related cases decided in a feminist direction.

The results demonstrate the existence of daughters effect can only be established for civil cases having a gendered dimension, however this was null for criminal cases and was ruled out that daughters effect applied to non-gender related cases too.

The daughter effect on Republican judges is an average 7% in proportion of cases decided in a feminist direction, whereas the effect for Democrat judges is on average 4%. Therefore, there is strong suggestive evidence that the effect is driven primarily by Republicans and, in particular, Republican men.

Additionally, they found that -

• The effect of having daughters operates primarily in cases with a gendered dimension, and it may be only on cases having a natural or substantive connection to that personal relationship. Thus, having daughters affects judges on how they vote on cases that directly relate to issues important to young women.

• The theory of social pressure on parents or daughters lobbying their parents was disproven, provided that simply having one daughter brought the greatest change, and there was no added impact on having additional girls, and the effect did not increase linearly.

• Their results partially ruled out protectionist explanation, finding no reason to think simple paternal instincts to protect or shield their daughters are behind the effect especially since they ONLY saw the effect within gender-related civil cases. And they argued that if there was, there would be a conservative shift among criminal cases, particularly rape or sexual assault cases, however there was no evidence of this.

• They found evidence in favour of the learning theory versus the preference alignment theory. This is shown in the fact that male judges may not have this firsthand experience of a woman; for them, the experience of having daughters could introduce them to the challenges faced by young women. Under the realignment theory, however, both men and women would have incentives to liberalize employment discrimination law or Title IX. However, we do not see an effect when we subset the data to examine women only, although the sample size is quite small.

• They could not definitively rule out judges using fertility stopping rules, though three pieces of evidence moved away from this being the exclusive explanation. First, the daughters effect remains intact when we examine judges with only one child, for whom concerns about fertility stopping rule usage are minimal. Second, if it is true that more liberal judges continue having children until they have at least one girl (or that more conservative judges are content to “stop” with having all boys), then this would mean that having girls is correlated with across-the-board liberal beliefs—which would translate into liberal voting across all cases. They have no evidence of this (Table 6). Lastly, although they do see in Table 9 some evidence of the possible use of fertility stopping rules across party, the daughters effect persists when subsetting the data to just Republicans.

What new factor in judicial decision-making do Glynn and Sen believe they have discovered and why?

New factor?

Their results also suggest that existing theories of judicial politics need to be expanded in regards to personal relationships and experiences. Therefore, the new factor they have discovered is one focusing on personal relationships and experiences.

Why?

They presented evidence that personal relationships can in fact affect judges’ voting. Indeed, across cases involving gender issues, judges who parent daughters as opposed to sons are more likely to reach liberal decisions—possibly because having daughters causes judges to learn about women’s issues.

Are there any limitations to Glynn and Sen’s findings?

Limitations -

Other view on the role of empathy which competes with the Glynn and Sen approach, “relying on empathy would translate ‘being partial instead of being impartial’, when in fact, ‘a judge is supposed to have empathy for no one but simply to follow the law.” There is tension between empirical studies (conducted by the likes of Glynn and Sen) and jurisprudence/how judges make decisions.

Study specific criticisms -

Given the small number of women, and the smaller number who have children, we cannot rule out that there is no relationship between having girls and voting in a more feminist direction on gender-related cases. This was exacurbated by fewer women than men on the appellate courts during this period, and women being more likely than male judges to have no children (29% versus 8%) and on average fewer children even if they found strong and significant effect for male judges, concluding the effect for female judges both small and insignificant.

They focused on primarily daughters as an example in order to avoid homophily, however this meant that other personal relationships such as having a gay or lesbian child or sibling, or having a disabled or mentally ill son or daughter was not recognised - though Glynn and Sen acknowledged that these could equally if not more meaningful.

How did Danziger et al conduct this research (be specific: what group did they study, which decisions, how did they design their study)?

It was a case presentation.

They examined 112 parole decisions (of the prisoner sample) in Israel, where there were 8 judges (each one sitting with 2 non-lawyers - those being a criminologist and a social worker) and 50 day decisions, each day had 3 sessions broken up by food breaks (two daily food breaks that the judge takes - a late morning snack and lunch) and 14-35 cases were given per day per judge and they was an average of 6 minutes per case.

The majority of the decisions in their sample (78.2%) consist of parole requests; the remainder consist of parolee requests to change the terms of their parole (e.g., a request to remove a tracking device) or requests by parole candidates to change the terms of their incarceration (e.g., a request for prison relocation).The judges’ decisions are classified into two categories, “accept request” and “reject request.”

Their database includes the legal variables that appear in the case file: number of previous incarcerations, gravity of crime committed, months served, and whether a rehabilitation program would be available should the prisoner be granted parole.

What were Danziger et al’s main conclusions?

They concluded that extraneous variables can influence judicial decisions, which bolsters the growing body of evidence that points to the susceptibility of experienced judges to psychological biases. It demonstrates that legally irrelevant situational determinants—in this case, merely taking a food break—may lead a judge to rule differently in cases with similar legal characteristics. This tendency can be overcome by taking a break to eat a meal, consistent with previous research demonstrating the effects of a short rest, positive mood, and glucose on mental resource replenishment.

They found that the likelihood of a favorable ruling is greater at the very beginning of the work day or after a food break than later in the sequence of cases, with favorable rulings for 95% of the observations in each decision session. The plot shows that the likelihood of a ruling in favor of a prisoner spikes at the beginning of each session—the probability of a favorable ruling steadily declines from 65% to 0% and jumps back up to 65% after a break for a meal. Therefore, they concluded that every judge in their sample was more likely to rule in favor of a prisoner at the beginning of a session than at the end of a session.

In relation to the legally relevant control variables they accounted for, they saw it entered in the regressions with only the prior number of incarcerations of the prisoner and the presence of a rehabilitation program consistently exerted a statistically significant influence on the judges’ rulings. For example, prisoners who displayed a tendency toward recidivism were less likely to receive favorable judgments, as were prisoners who lacked a planned rehabilitation program.

What weaknesses in the methods and results of the Danziger study did the note from Weinshall-Margel and Shapard reveal? And how did Weinshall-Margel and Shapard realise or conduct this?

Weinshall-Margel and Shapard also interviewed three attorneys, a parole panel judge, and five personnel at Israeli Prison Services and Court Management, learning that case ordering is not random (as stated by Danziger) and that several factors contribute to the downward trend in prisoner success between meal breaks. Weinshall-Margel and Shapard concluded that Danziger’s study on the phenomenon of favorable decisions peaking after a meal break is likely an artifact of the order of case presentation. It is not evidence that meal breaks affect the boards’ decisions.

The basis of their criticisms, and their consequent findings -

• Judges consider cases from 1 prison in 1 session, which means the judges are hurriedly concluding the parole decisions.

• Weinshall-Margel and Shapard’s data that on average, 4.1 prisoners per day had “shared counsel.” All interviewees said this is a common phenomenon and that an attorney usually presents all his or her cases together, in such order as the attorney desires. They suspect that attorneys present their best cases first and save their weakest cases for last, adding to the downward trend of prisoner success.

• Danziger et al apparently have no data indicating whether the prisoner had an attorney.

• Weinshall-Margel and Shapard argued the broad basis for decision is surely suggested by the fact that parole decisions are made by a panel of three voting members, including one judge, a criminologist, and a social worker, not by a single judge as Danziger et al. suggest.

• Unrepresented prisoners usually go last, are less likely to be granted parole than prisoners with attorneys and often have the weaknest cases. Unrepresented prisoners account for 1/3 of cases yet prevail only 15% of the time, whereas prisoners with counsel prevail at a 35% rate. Their criticism of the Danziger study was that they lumped together decisions (as in parole decisions with case deferrals) rejecting parole and cases that were deferred to a later date. Deferrals are not comparable to rejections of parole.

• Danziger et al do not have data concerning in-person behaviour.

• Danziger et al have provided no measure for assessing factors in their study for the mental resources of judges, or the food/energy consumption.

• Weinshall-Margel and Shapard’s data indicates a success rate of 67% for prisoners with counsel and 39% for unrepresented prisoners. They strongly suspect that the pattern of declining success rates is a result of hearing represented prisoners first and unrepresented prisoners last.

Who is the “random guy from Queens” and how does his approach to predicting US Supreme Court decisions differ from the “academic” approach as per Roeder’s article?

Jacob Berlove is the best human Supreme Court predictor in the world. He’s the best Supreme Court predictor in the world. He correctly predicts cases more than 80 percent of the time. Berlove has no formal legal training. Nor does he use statistical analyses to aid his predictions.

Berlove has a prodigious memory for justices’ past decisions and opinions, and relies heavily on their colloquies in oral arguments. When we spoke, he had strong feelings about certain justices’ oratorical styles and how they affected his predictions. As he states, some Justices’ are harder becuase they rarely speak in oral arguments, but this can be mitigated by some Justices’ predictable ideology.

What flaw in statistical analysis of judicial decision-making does Roeder’s article expose?

Human Supreme Court predictors like Berlove emphasise the importance of oral arguments to understand individual judges’ decision-making, otherwise without oral arguments, the judges’ decisions and perspectives are much harder to determine. As stated the predictions may shift and improve after predictors analyze the oral arguments’.