How Judges Judge: Empirical Insights into Judicial Decision-Making 9780367086244, 9780429023422

Citation preview

H O W JU D G E S JUDGE

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. Brian M. Barry is a lecturer in law at TU Dublin, Ireland. He completed his doctorate in Trinity College Dublin’s School of Law in 2013 having graduated from there with an LLB in 2009. He has undertaken visiting scholarships in the University of Toronto and Columbia University and is qualified as a solicitor in Ireland.

HOW JUDGE S J U D G E E M P I R I C A L I N S I GHT S I NTO JU D I C I A L D E C I S I O N- MAKI NG B R IAN M. B AR RY

First published 2021 by Informa Law from Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business © 2021 Brian M. Barry The right of Brian M. Barry to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-08624-4 (hbk) ISBN: 978-0-429-02342-2 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

C O N T E NT S

Acknowledgements Table of cases Table of legislation

xi xiii xv

CHAPTER 1

INTRODUCTION

1

CHAPTER 2

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

12

CHAPTER 3

JUDGES’ PROFESSIONAL MOTIVATIONS AND JUDICIAL DECISION-MAKING

91

CHAPTER 4

JUDGES’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING

111

CHAPTER 5

LITIGANTS’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING

164

CHAPTER 6

JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: IN-COURT INFLUENCES

186

CHAPTER 7

JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: BEYOND-COURT INFLUENCES

224

CHAPTER 8

THE FUTURE OF JUDGING

273

Index

291

v

D E TA I L E D C O NT E NT S

Acknowledgements Table of cases Table of legislation

xi xiii xv

CHAPTER 1 INTRODUCTION 1.1 A brief introduction to the development of judicial decision-making research 1.2 Researching judicial decision-making: matters of terminology and methodology 1.3 A preview of this book CHAPTER 2 THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING 2.1 Heuristics, cognitive biases and judicial decision-making 2.1.1 Confirmation bias 2.1.2 Hindsight bias 2.1.3 Representativeness heuristic 2.1.4 Egocentric bias 2.1.5 Other heuristics and biases 2.1.6 Combatting heuristics and biases in judicial decision-making 2.2 Cognitive errors in judges’ numerical decision-making 2.2.1 Anchoring effect 2.2.2 Contrast effect 2.2.3 Framing effect 2.2.4 Gambler’s fallacy 2.2.5 Clustering 2.2.6 Combating cognitive errors in judges’ numerical decision-making 2.3 Motivated reasoning and judging 2.4 Judging and emotion 2.5 Group psychology effects on judicial panels’ decision-making 2.5.1 Positive effects of group decision-making 2.5.2 Negative effects of group decision-making

vii

1 3 5 9 12 13 15 18 22 24 25 28 32 37 46 48 52 53 54 60 70 78 81 83

DETAILED CONTENTS

CHAPTER 3 3.1 3.2 3.3 3.4 3.5

JUDGES’ PROFESSIONAL MOTIVATIONS AND JUDICIAL DECISION-MAKING Work-life balance and judicial decision-making: workload, leisure, and retirement Reputation, prestige and influence Pay Promotion Conclusions on judges’ professional motivations and judicial decision-making

CHAPTER 4 4.1 4.2 4.3

4.4

4.5

JUDGES’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING Judges’ gender 4.1.1 Gender and judicial decision-making on sentencing 4.1.2 Gender and judicial decision-making on gender-salient issues Judges’ race and ethnicity 4.2.1 Conclusions on judges’ race and ethnicity Judges’ age and experience 4.3.1 Judges’ age and conservative judging 4.3.2 Judges’ age and age discrimination claims 4.3.3 Judicial experience and the “freshman effect” 4.3.4 Interpreting judges’ age and experience on the bench meaningfully Judges’ religion 4.4.1 Judges’ religion and liberal or conservative judicial decision-making 4.4.2 Judging on religious freedom cases 4.4.3 Understanding religious affiliation as a factor in judicial decision-making Judges’ politics 4.5.1 Background and development of research on judges’ politics and their decision-making 4.5.2 The attitudinal model 4.5.3 The strategic model 4.5.4 Judges’ politics and decision-making: a global perspective 4.5.5 Experimental studies on judges’ political views and judging 4.5.6 Conclusions on judges’ politics and their decision-making

CHAPTER 5 5.1 5.2 5.3 5.4 5.5

LITIGANTS’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING Litigants’ gender Litigants’ race and ethnicity Litigants’ age Litigants’ sexual orientation Litigants’ other characteristics viii

91 93 99 103 107 109 111 112 115 116 124 131 132 132 134 135 137 139 141 143 144 145 149 150 152 154 159 161 164 165 169 174 177 180

DETAILED CONTENTS

5.6 Combinations and interactions of different litigants’ characteristics and judges’ characteristics 5.7 Combatting bias based on litigants’ characteristics CHAPTER 6

JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: IN-COURT INFLUENCES 6.1 Actors in the courtroom and their influence on judicial decision-making 6.1.1 Lawyers’ influence 6.1.1.1 Lawyers’ written submissions 6.1.1.2 Oral argument 6.1.1.3 Lawyers’ characteristics 6.1.2 Judicial assistants’ influence 6.1.2.1 Judicial assistants as gatekeepers on courts with discretionary jurisdiction 6.1.2.2 Judicial assistants’ influence at trial 6.1.2.3 Writing judgments 6.1.3 Expert witnesses’ influence 6.1.4 Conclusions on the influence of courtroom actors 6.2 Courts’ operations and courtroom layout and design as in-court influences 6.2.1 Inquisitorial and adversarial trial modes and judicial decision-making 6.2.2 Judicial specialisation 6.2.3 Rules and procedures on panel courts 6.2.3.1 Discretionary jurisdiction and effects on judicial decision-making 6.2.3.2 Composing judicial panels for cases 6.2.3.3 Deliberation on panel courts 6.2.4 The physical courtroom environment: courtroom layout and design 6.2.5 Conclusions on courts’ operations, and layout and design CHAPTER 7

JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: BEYOND-COURT INFLUENCES 7.1 Other courts in the judicial system: judicial decision-making in a hierarchy 7.2 Other branches of government 7.2.1 Judicial decision-making as dialogue with other branches of government 7.2.2 Governments’ powers over courts’ operations and the judiciary 7.2.2.1 How judges are selected and the consequences for judicial decision-making 7.2.2.2 Governments’ control over the terms and conditions of judges’ employment 7.3 Judges and their professional networks ix

182 183 186 187 187 189 190 196 197 198 200 202 204 206 207 208 211 213 213 216 218 221 222 224 225 231 233 239 240 254 257

DETAILED CONTENTS

7.4 Judges, their public and decision-making 7.5 Media coverage and judicial decision-making 7.5.1 Lights. Camera. Law! The presence of media in the courtroom

260 265 269

CHAPTER 8 THE FUTURE OF JUDGING 8.1 The rise of courtroom technologies 8.2 Artificial intelligence 8.2.1 AI in the courtroom 8.2.2 The case for and against AI judges 8.3 Conclusion

273 274 276 277 280 287

Index

291

x

A C K N O W L E D G E ME NT S

Throughout this project, I have been fortunate to draw upon the expertise, guidance and support of several colleagues. I would like to thank Deirdre McGowan, Head of Law at TU Dublin, for her encouragement and feedback as I progressed with drafting. Thank you also to my colleagues in the School of Languages, Law and Social Sciences at TU Dublin, particularly for the generous teaching buy-out I received that afforded me the time and space to undertake this project. I owe a debt of gratitude to colleagues and experts beyond TU Dublin who provided invaluable feedback at various stages, in particular, Mojca Plesničar, Lee Marsons, Lady Hale and Mark Coen. To my wider network of colleagues and to my academic mentors along the way, thank you for your trust and inspiration. Thank you also to the team at Routledge for inviting me to write this book and for their work in bringing it to fruition. Finally, my (growing!) family has, as always, been an immense source of support, encouragement and love throughout. Thank you from the bottom of my heart, Deirdre, Donagh, Maura, Kevin, Conor, Fiona, Ian, Ruairi, Aedeen, and Niall. I am beyond lucky.

xi

TA B L E O F CAS E S

INDIA M Siddiq (D) Thr Lrs v Mahant Suresh Das & Ors [2019] SCI Civil Appeal Nos 10866–10867 of 2010..............................................................................................................146 Navtej Singh Johar v Union of India AIR 2018 SC 4321 ................................................... 146, 178

IRELAND Buckley v Attorney General [1950] 1 IR 67 .................................................................................233 Flynn v Bus Átha Cliath [2012] IEHC 398 .....................................................................................63 Jones v Minister for Justice and Equality [2019] IEHC 519 ........................................................261 M (Immigration – Rights of Unborn) v Minister for Justice and Equality & ors, [2018] IESC 14........................................................................................................................216 Morrissey v Health Service Executive and others [2019] IEHC 268 .............................................19 Morrissey v Health Service Executive and others [2020] IESC 6......................................... 19, 268 N v Health Service Executive [2006] 4 IR 374...............................................................................70 Norris v Attorney General [1984] 1 IR 36............................................................................ 139, 144 O’Driscoll (a minor) v Hurley [2016] IESC 32.................................................................................2

UNITED KINGDOM A Local Authority v The Mother & Anor [2017] EWFC B59 .......................................................70 Byrne v Boadle 159 Eng. Rep. 299 (Ex. Ch. 1863)........................................................................23 CC (by his litigation friend MC) v Leeds City Council [2018] EWHC 1312...............................19 Donoghue v Stevenson [1932] AC 562..........................................................................................285 Grindley v Barker (1798) 1 Bos. & Pul. 875 ..................................................................................78 Howell & Others v Lees Millais & Others [2007] EWCA Civ 720 ............................................227 Jones v Jones [2011] ECWA (Civ) 41................................................................................... 226, 227 Ministry of Defence v Jeremiah [1980] 1 QB 87..........................................................................165 National Justice Cia Naviera SA v Prudential Assurance Co (The Ikarian Reefer) (1993) 2 Lloyds Rep 68..........................................................................................................204 R v Carlson [2018] BCPC 209.........................................................................................................70 R v Clark [2003] EWCA Crim 1020 ...................................................................................... 49, 205 R v Secretary of State for the Home Department, ex parte Venables [1997] 3 WLR 23 ................................................................................................................................268 R (on behalf of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland [2019] UKSC 41 ..................................................................................146

xiii

TABLE OF CASES

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 ...........................................................................................146, 216, 265 Secretary of State for the Home Department v K (FC); Fornah (FC) v Secretary of State for the Home Department [2006] UKHL 46............................................................122 Secretary of State for the Home Department v Rehman [2001] UKHL 47 .................................238 Shoesmith v OFSTED and others [2010] EWHC 852 ..................................................................267

UNITED STATES Bush v Gore 531 U.S. 98 (2000) ...................................................................................................145 Bradwell v State of Illinois, 83 U.S. 130 (1873).................................................................. 165, 196 Brown v Board of Education of Topeka 347 U.S. 483 (1954) .....................................................145 Carroll v Otis Elevator, 826 F.2d (1990) .........................................................................................19 Caperton v A T Massey Coal Co 556 U.S. 868 (2009) ................................................................250 Cheney v United States District Court 541 U.S. 913 (2004) ......................................................242 Cornman v The Eastern Counties Railway Company’ (1860) 8 The American Law Register (1852–1891) 173.........................................................................................................19 Daubert v Merrell Dow Pharmaceuticals 509 U.S. 579 (1993) ....................................................206 EEOC v Wal-Mart Stores. Inc., 276 F.R.D. 637, 639–40 (E.D. Wash. 2011) ................................57 Graham v Florida 60 U.S. 48 (2010) .............................................................................................175 Marbury v Madison 5 U.S. 137 (1803) ..........................................................................................233 Miller v Alabama 567 U.S. 460 (2012) .........................................................................................175 Miranda v Arizona, 384 U.S. 436 (1966) ........................................................................................68 National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012)..........................261 Obergefell v Hodges 576 U.S. 644 (2015) ....................................................................................178 People v Hall 999 P. 2d 207 (Colorado Supreme Court, Colo. 2000) ...........................................63 People of the State of Michigan v Lawrence Gerard Nassar, Case No. 17–000526-FC, 24 January 2018 ........................................................................................................................70 Porter v Zenger Milk Co., 7 A. 2d 77, 78 (Pa. Super. Ct. 1939) ...................................................57 Reese v Hersey 29 A. 907, 908 (Pa. 1894)......................................................................................57 Republican Party of Minnesota v White 536 U.S. 765 (2002) .....................................................246 Roe v Wade 410 U.S. 113 (1973) ......................................................................................... 145, 200 Texas v Johnson 491 U.S. 397 (1989) ...........................................................................................261 United States v Ballard, 322 U.S. 78 (1944) ...................................................................................72 Wal-Mart Stores, Inc. v Dukes 564 U.S. 338 (2011) ....................................................................114 Walters v National Association of Radiation Survivors 473 U.S. 305 (1985) .............................188

xiv

TA B L E O F L E G I S L AT I ON

AUSTRIA

IRELAND

Mediengesetz (Media Law) — Art 6(1) .......................................................35

Civil Liabilities Act 1961 — s 34(1) .........................................................34 Constitution of Ireland — Art 26.2.1° ................................................216 Defamation Act 2009 s 31(4) .........................................................34

CANADA Charter of Rights and Freedoms to the Canadian Constitution 1982 .....................156

UNITED KINGDOM EUROPE

Law Reform (Contributory Negligence) Act 1945 — s 1(1) ...........................................................34

European Convention on the Protection of Human Rights and Fundamental Freedoms 1950 .........................................159 Art 3..........................................................279 Art 6..........................................................279 Art 8..........................................................279 Art 10........................................................288

UNITED STATES Affordable Care Act 2010............................261 Constitution of the United States — First Amendment ......................................261 Voting Rights Act 1965 — s 2..............................................................128

FRANCE Civil Code — Art 10........................................................204 Justice Reform Act 2019 — Art 33........................................................287

xv

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 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. 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.

1

INTRODUCTION

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. 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. 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 decisionmaking 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

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. 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.

2

INTRODUCTION

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. 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 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 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. 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. 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.

3

INTRODUCTION

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. 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 decision-making? This strand of empirical research emerged from the law and economics movement, typified by the work of prolific judicial scholar and judge of the US Court of Appeals for the Seventh Circuit Richard Posner. He and others applied economic theory to law and judicial decision-making: if, for example, we reflect on judges as labourers in a labour market, how might labour market forces influence and affect judicial decision-making? The discipline of psychology has also contributed to studies of judges and their decisions, in particular the psychology of decision-making. The psychological phenomena of heuristics and consequent cognitive biases, motivated reasoning, emotion and group decision-making have been considered and applied to judges’ decision-making. And relatively recent research – most prominently by US researchers Chris Guthrie, Jeffrey Rachlinski and Andrew Wistrich – has used controlled experimental studies to test whether practising judges judging hypothetical cases are susceptible to various biases identified by psychology research.10 This book, therefore – unlike most others that address the work of judges – draws the spotlight away from laws and their interpretation to shed light on research from these other 9 C Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947 (Palgrave Macmillan 1948). 10 There has been a far longer tradition of experimental research on legal decision-making using mock jurors as participants. See generally, Dennis J Devine, Jury Decision Making: The State of the Science, vol. 8 (New York University Press 2012).

4

INTRODUCTION

disciplines. Of course, laws are in the foreground of judges’ minds when they decide cases. In this book, however, laws linger in the background. But they are omnipresent and ought not to be ignored. Whatever may be the case with respect to the empirical research described and analysed throughout this book, judging is, and remains primarily a legal discipline. Before this introduction concludes with a short preview of the chapters to follow, it is important to explain some matters of terminology and to describe the different methods researchers have employed to investigate judges and their decision-making. 1.2 Researching judicial decision-making: matters of terminology and methodology This book is about research on judicial decision-making, and assumes a broad definition of the term. For present purposes, the term refers to all decisions made by judges in their professional capacity that affect the parties before them. For the most part, this will be the judges’ end product, so to speak – a judicial outcome. Judicial outcomes will vary in type and terminology, depending on the context and jurisdiction with terms ranging from “judgments,” “rulings,” “opinions,” to “court orders,” “votes,” and “determinations.” Each of these is an outcome prescribed by a judge or panel of judges that binds the parties. Most of the research considered in this book concerns decision-making on judicial outcomes. Generally, the terms “judgment(s)” and “judge(s)” will be used, as appropriate, throughout this book for consistency and to avoid confusion. Beyond research on judicial outcomes, this book will also analyse studies on other types of decisions that judges make that also have consequences for the parties litigating before them. These include, but are not limited to: judges’ decisions on whether to publish written judgments for public consumption; appellate judges’ decisions on whether to hear an appeal on a ruling from a lower court (variously referred to as, depending on the court and jurisdiction, “certiorari,” “leave to appeal,” “determination on application for leave to appeal,”); decisions on whether to write long or short judgments, on what words to use, what style to use, or whether or not to cite particular cases in judgments; and studies on whether to dissent in a particular case. Simply put, when we speak of judicial decision-making, the dominant concern is decisions in the sense of judicial outcomes but not to the exclusion of the many other types of decisions that judges make that affect the parties before them. As for research methodology – how researchers have empirically investigated judicial decision-making over the years – three main modes emerge: archival studies, experimental studies and role analysis studies. It is important for readers to be able to distinguish between these, to understand their strengths and weaknesses and that none is perfect, and also that the quality of research varies across all three types. Archival studies capture and investigate actual data from actual decisions by real judges. These studies are ‘archival’ in the sense that they involve a researcher delving into archives of court records of judges’ decisions, whether offline or, more commonly nowadays, online. Generally, but not exclusively, archival studies are quantitative, statistical analyses of judges’ decision-making trends gleaned from data on their decisions. These quantitative, archival studies typically have the following format: a researcher hypothesises that a particular factor or set of factors – for example, the judges’ political affiliations or views – affects their judicial decisions. Trends in the dataset of decisions 5

INTRODUCTION

are the dependent variable that the researcher speculates may fluctuate on account of the factor under investigation, the independent variable. To start, the researcher must identify a set of cases from the court records of a particular court or courts, or a particular judge or judges, over a particular time span, and often in a specific area of law. This will be the dataset of cases to work from. From there, the researcher will perform statistical analyses to investigate whether their hypothesis – that the independent variable has an effect – is borne out in the dataset of decisions. Here, the researcher is looking for correlations: for instance, the older the judge, the more conservative a stance they take in their rulings on particular cases. The outcomes are observational in nature: the researcher observes apparent trends in decision-making related to these independent characteristics of the judge. An obvious limitation of such studies is that they are correlational in nature and correlation does not necessarily imply causation. An observed association in the data is merely suggestive and certainly not definitive proof that, for instance, judges’ apparently more conservative stance is because they are older. Furthermore, researchers must often control for other variables to try to parse out whether the specific variable that they are interested in independently interacts with judicial decision-making trends. The more variables that can be washed out, the more confidently the researcher can assert that there may be a causative link between the independent variable and its apparent effects on judicial decision-making trends. This quantitative research approach based on archival data is the method most commonly used by researchers to investigate how factors beyond the law affect judicial decision-making. Chapter 4 on judges’ personal characteristics, for instance, describes research that is almost entirely reliant on this methodology. Although many archival studies on judicial decision-making take this quantitative, correlational approach, other researchers make use of archival data of judges’ decisions in other ways. For instance, researchers observe and analyse different motifs or themes in the language used by judges in their rulings. As such, the defining characteristic of archival studies is the source of the data used to extrapolate judicial decision-making phenomena: the ‘archives’ of judges’ past decisions. Experimental studies, for the purposes of this book, refer to controlled experiments that investigate how different factors affect judicial decision-making in a simulated setting – a sort of judicial laboratory. Generally, these studies have the following format: a researcher asks participants (often, but not always, practising judges) to give their decision on a hypothetical legal case. Participants are divided into two groups, a ‘control’ group and an ‘experimental’ group. Participants in both groups are provided with the same materials on the hypothetical legal case, but in the experimental group, the factor that the researcher wishes to test for is added to the mix. The researcher then compares and contrasts the decision-making of judges in the two different groups to see what difference the factor made to decisions, if any.11 11 The well-known behavioural scientist Dan Ariely lucidly describes how experimental studies can help understand human and therefore also judges’ behaviour: Life is complex, with multiple forces simultaneously exerting their influences on us, and this complexity makes it difficult to figure out exactly how each of these forces shapes our behaviour. For social scientists, experiments are like microscopes or strobe lights. They help us slow human behaviour to a frame-by-frame narration of events, isolate individual forces, and examine those forces carefully and in more detail. They let us test directly and unambiguously what makes us tick.

Dan Ariely, Predictably Irrational: The Hidden Forces That Shape Our Decisions (HarperCollins Publishers 2008) xxi.

6

INTRODUCTION

Although experimental studies undoubtedly sharpen the focus on specific factors that may affect judicial decision-making, we should be cautious about how much we extrapolate from results based on experiments using hypothetical legal scenarios. Law and psychology researcher Avina Sood correctly observes that “the road from the lab to the courtroom is a long one.”12 Undertaking experimental tests within a (generally) short time frame, often at a judicial education conference, is a far lower-stakes environment than the courtroom. Judges participating in such studies may not agonise over their decision in the same way as they would in a real-life case in their chambers. Fewer factors may, therefore, be at play than in real life. Despite these limitations, experimental studies can be very informative, as we will particularly see in chapter 2 on the psychology of judicial decision-making. Researchers are starting to explore factors affecting decision-making using hybrid or dual methodological approaches, combining both experimental simulations with studies on real-life judging. Segal and his colleagues advocate this approach. They note the shortcomings of experimental studies whose high internal validity of experimental control, must be set against a less certain external validity of generalisability to the real world – ecological validity.13 They propose that these shortcomings can be alleviated by combining experimental results and analysis from archival studies on actual judicial decisions, a research methodology they call empirical triangulation.14 They argue that this hybrid approach can allow for “more nuanced and confident insights” on how, when and why judges are affected by different phenomena when making judicial decisions.15 Epstein and Knight also observe, along similar lines, that “should the experimental and the observational converge, we can be far more confident in our conclusions.”16 The key is to combine the forces of archival and experimental methods to get closer to a more certain conclusion on the phenomena affecting judicial decision-making. The final category of studies are role analysis studies. “Role analysis” borrows terminology from UK judicial scholar, Alan Paterson, from his seminal 1982 socio-legal study of judges on the House of Lords, The Law Lords, although it is used somewhat more broadly here than Paterson originally defined it.17 Role analysis studies are those where judges offer their own insights and analysis on their role as decision-makers. These insights and analysis may take the form of judges’ speeches, extrajudicial writing (to include, for instance, journal articles or autobiographies), or judges’ notebooks, for example. Alternatively, their views may be gleaned through interview studies, survey studies and phenomenological accounts of judging by researchers who shadow judges ‘in the field’. The key characteristic of role analysis studies is that judges themselves generate insights and analysis. Either they present or publish these insights and analysis

12 Avani Metha Sood, ‘Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule’ (2015) 103 Georgetown Law Journal 1543, 1565. 13 Jeffrey A Segal, Avani Mehta Sood and Benjamin Woodson, ‘The “Murder Scene Exception” – Myth or Reality? Empirically Testing the Influence of Crime Severity in Federal Search-and-Seizure Cases’ (2019) 105 Virginia Law Review 543, 556–557. 14 Ibid. 15 Ibid. 557. 16 Lee Epstein and Jack Knight, ‘Strategic Accounts of Judging’ in Robert M Howard and Kirk A Randazzo (eds), Routledge Handbook of Judicial Behavior (Routledge 2017) 56. 17 Alan Paterson, The Law Lords (Macmillan 1982) 201–213.

7

INTRODUCTION

directly, or researchers gather these insights and analysis from judges and repackage the results through a published work. Role analysis studies, then, are about judges’ self-reflections, their thoughts on aspects of the judicial process and about how they ‘do’ judging. It is inherently qualitative in nature. As with the two other modes of researching judicial decision-making, this mode has advantages and disadvantages: insights and analysis from judges are ‘straight from the horse’s mouth,’ as it were, affording us direct, unfiltered access to what judges say about their work. On the other hand, when judges talk about their role, we must take them at their word, while retaining some level of critical scrutiny of the accuracy and generalisability of what they say.18 Research of this nature is open to the criticism that it can be anecdotal and impressionistic, and not as robust as testing hypotheses through statistical analysis of data gleaned from archives of court records or experiments.19 Each of these three types of research offers its own insights and perspectives into how judges judge. Our understanding of a particular aspect of judicial decision-making is undoubtedly bettered where researchers investigate the same issue using a combination of these different methodological perspectives. Equally, our understanding is bettered where researchers investigate the same issue across a number of jurisdictions. If similar findings are replicated in more than one jurisdiction, we can become more confident that the factor affects judges generally, rather than only in one particular jurisdiction owing to its particular characteristics. Unfortunately, research on different aspects of judicial decision-making has for many years been dominated by studies on US judges operating within the US judicial system, with all the idiosyncrasies and unique societal context that that brings. US scholar Burton Atkins noted in 1991 that “most theory and data developed by social scientists” on judicial decision-making was “bound to, the inevitable peculiarities of the U.S. context.”20 Recently, German scholar Hanjo Hamann described how “a scarcity of available data on judicial decision making, even at the highest levels of adjudication” is one the main reasons why research had not extended too far beyond US shores.21 That said, the situation is improving, with a growing body of research outside the US experience. Readers should, therefore, be mindful of the jurisdiction and context in which the findings of research play out. To briefly acknowledge some of the main contrasting jurisdictional contexts, what may be a particularly relevant factor affecting judicial decision-making in common law jurisdictions may not apply in civil law jurisdictions,22 or what may influence judges operating in adversarial proceedings may be entirely irrelevant in inquisitorial proceedings.23 Where appropriate, jurisdiction-specific factors will be flagged for the reader. 18 In this respect, judges self-reporting on their decision-making may – like the rest of us – engage in post hoc rationalisation of their decisions. 19 See further discussion on this in the introduction to Penny Darbyshire’s Sitting in Judgment: The Working Lives of Judges, itself an excellent and thorough example of a role analysis study on different tiers of the UK judiciary. Penny Darbyshire, Sitting in Judgment: The Working Lives of Judges (Bloomsbury Publishing 2011) 13. 20 Burton M Atkins, ‘Party Capability Theory as an Explanation for Intervention Behavior in the English Court of Appeal’ [1991] American Journal of Political Science 881, 881–882. 21 Hanjo Hamann, ‘The German Federal Courts Dataset 1950–2019: From Paper Archives to Linked Open Data’ (2019) 16 Journal of Empirical Legal Studies 671. 22 John Henry Merryman and Rodrigo Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (Stanford University Press 2019). 23 See section 6.2.1 Inquisitorial and adversarial trial modes and judicial decision-making.

8

INTRODUCTION

1.3 A preview of this book The book is organised into seven remaining chapters. Chapter 2 considers research from psychology and its sub-disciplines on judicial decision-making. It explains and appraises research on the following: • Heuristics and cognitive biases: heuristics are rules of thumb or shortcuts of intuitive thinking that can lead to cognitive biases – systematic cognitive errors – in judges’ decisions; • Errors in numerical decision-making: when judges make decisions on numerical values, for instance, in the context of interpreting complex statistical evidence, or making decisions on an appropriate award of damages or an appropriate sentence length; • Motivated reasoning: non-conscious tendencies to reason towards a preferred result; • Emotions: how emotions can affect judges’ decision-making; • Group psychological effects: how psychological phenomena, both positive and negative, can affect decision-making by judges deciding cases together as groups on judicial panels. All of these topics share the common characteristic of exploring how psychological phenomena affect judges’ decision-making. Much of the research described in chapter 2 is based on experimental studies. Chapter 3 addresses research on judges as professionals, each with their own goals and interests. Matters of work-life balance, career ambition and aspirations, concerns for reputation and prestige, pay, retirement and promotion are considered, and how all of these factors can nudge judges’ decisions in particular directions. Chapter 4 is concerned with how judges’ personal characteristics may affect their decision-making. Researchers investigate how, for example, a judge’s gender, race or ethnicity, age, experience, religious beliefs or political ideology may correlate with particular decision-making trends. Chapter 5 is a companion to chapter 4, also concerned with personal characteristics, but flips the perspective to consider the personal characteristics of litigants that appear before judges, and how these characteristics correlate with differences in judges’ decision-making. Chapter 6 is the first of two chapters that consider the institutional context in which judges operate – how external factors, both within and beyond the courtroom can affect judicial decision-making. This chapter considers influences within a judge’s immediate institutional context, the court. The in-court influences considered in this chapter are: • how different actors within the courtroom can influence judicial decision-making – lawyers, judicial assistants and expert witnesses; • how courts operate – more specifically, how the degree of judges’ specialisation in particular areas of law, court rules and procedures for selecting cases for hearing, and rules and procedures for how hearings are conducted may all have a bearing on judicial decision-making; and • courtroom layout and design – how they can subtly shift dynamics in courtrooms, and ultimately maybe even judges’ decisions. 9

INTRODUCTION

Chapter 7 continues with the theme of external institutional influences on judges’ decisionmaking. This chapter considers the wider institutional context, factors outside of a judge’s immediate court that affect judicial decision-making. The beyond-court influences considered in this chapter are: • how judges’ decision-making on a particular court is affected by the influence of other judges on other courts within the same judicial system, a sort of intercourt dialogue within a judicial hierarchy; • how judges from different jurisdictions influence each other through collaboration and networking, leading to a cross-pollination of ideas and trends in decisionmaking across jurisdictional borders; • how other branches of government, legislative and executive, influence judicial decision-making through judicial selection and removal mechanisms, and through their control over court operations and the terms and conditions of judges’ employment; • the public’s influence on judicial decision-making; and • the media’s influence on judicial decision-making. Chapter 8 considers the future of judicial decision-making. As judges increasingly rely on technologies that assist them in their day-to-day decisions, this chapter assesses the profound consequences of technological advancement for judges as decision-makers. As artificial intelligence becomes increasingly more sophisticated and capable, this undoubtedly gives rise to the prospect that some, maybe many, judges will be replaced altogether. AI judging, while perhaps extraordinary now, may become ordinary in many judicial systems in the not-too-distant future. The chapter concludes with both a warning for, and a defence of global empirical scholarship on judges and judicial decisionmaking – past, present and future. The warning reflects on the consequences of a remarkable and sweeping criminal ban on any analysis of individual French judges and their decision-making – scholarly or otherwise – in 2019. It is the first ban of its kind, perhaps motivated by a fear of how technology may harm the judicial function or expose its frailties. The book will conclude by defending the work of empirical researchers, and how their work on judges and their decision-making ought to be encouraged, rather than stifled. In summary then, this book presents a snapshot of what we know about how judges judge, from rich and diverse empirical perspectives. Over the course of the chapters ahead, we will see how judges can be just as susceptible as the rest of us to cognitive biases, prejudices and error, not to mention their own self-interest and self-preservation, and to profound institutional influences both within and beyond the courtroom. In many ways, none of this is all that surprising. Yet, some of the research findings can be unnerving, straying far from the ideals embodied by Lady Justice. To offer some brief examples, we will see how some judges may sentence criminals more harshly immediately after their favourite sports team loses.24 In experimental research, judges appear influenced by all manner of completely irrelevant anchoring numbers when awarding damages and

24 Ozkan Eren and Naci Mocan, ‘Emotional Judges and Unlucky Juveniles’ (2018) 10 American Economic Journal: Applied Economics 171.

10

INTRODUCTION

deciding sentence lengths; a number contained in the name of the litigant,25 or the roll of a dice, for instance.26 Judges, seeking promotion to a higher court, may be more inclined to support the death penalty to appear ‘tough on crime.’27 Judges seem to bow to pressure from authoritarian rulers in politically sensitive cases.28 However, this research should not be viewed as a concerted effort to undermine judges and their important work. Rather, research on judicial decision-making, and the work described in this book, should be viewed as a catalogue of opportunities to learn, to harness and understand the factors that affect judicial decision-making. This work will help judges – and all actors who work with them, both within and beyond the legal community – to make better, fairer decisions, striving towards more perfect justice. It is hoped that this book will go some of the way towards that cause.

25 Unpublished manuscript by Rachlinski and Wistrich, referred to in Jeffrey J Rachlinski and Andrew J Wistrich, ‘Judging the Judiciary by the Numbers: Empirical Research on Judges’ (2017) 13 Annual Review of Law and Social Science 203, 215. 26 Birte Englich, Thomas Mussweiler and Fritz Strack, ‘Playing Dice with Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making’ (2006) 32 Personality and Social Psychology Bulletin 188. 27 Melinda Gann Hall, ‘Electoral Politics and Strategic Voting in State Supreme Courts’ (1992) 54 The Journal of Politics 427; Paul Brace and Brent D Boyea, ‘State Public Opinion, the Death Penalty, and the Practice of Electing Judges’ (2008) 52 American Journal of Political Science 360; Brandice Canes-Wrone, Tom S Clark and Jason P Kelly, ‘Judicial Selection and Death Penalty Decisions’ (2014) 108 American Political Science Review 23. 28 Gretchen Helmke, ‘The Logic of Strategic Defection: Court–Executive Relations in Argentina under Dictatorship and Democracy’ (2002) 96 American Political Science Review 291.

11

CHAPTER 2

The psychology of judicial decision-making

How can psychology research and theory explain and help us to understand judicial decision-making? Historically, psychology research has played a lesser role than other disciplines in the study of judicial decision-making.1 More recently, however, researchers have embraced developments in psychology and its sub-disciplines as a lens through which to investigate judges’ work. Researchers have taken key concepts from the general psychology literature and applied them to judicial decision-making.2 Experimental studies, often using practising judges as participants, have been at the heart of this developing research, casting a spotlight on how specific psychological phenomena may make all the difference in judicial outcomes. Researchers in this field have had to grapple with the challenges of transferring psychology research on everyday decision-making to the highly specialised activity of judicial decision-making. Judging a legal case is an altogether different species of decision-making to mundane decision-making in everyday life. Judicial scholar Lawrence Baum observes that although judges and judging “differ in important ways from the people and activities that psychologists generally study,” nevertheless, we can gain considerable insight into how judges behave through psychology research.3 This chapter presents an overview and analysis of this fast-developing area of research. It is divided into five sections, each addressing specific themes and phenomena from psychological research on decision-making as applied to judging. The five sections are: • Heuristics and cognitive biases: heuristics are roughly rules of thumb or shortcuts of intuitive thinking that can lead judges to predictable cognitive biases – systematic cognitive errors – in their judicial decision-making.4 • Errors in numerical decision-making: errors, often arising through heuristical reasoning, can affect judges when they make crucial numerical evaluations in court, and in their judgments on issues such as evaluating statistical evidence, awarding damages or sentencing decisions. 1 Political scientists have historically led progress in this field, see section 4.5.1. 2 Baum, whose body of work epitomises this shift of emphasis, suggests that psychological theory, cognitive processes and motivated reasoning can all be harnessed to help understand how judges judge. Lawrence Baum, ‘Motivation and Judicial Behavior: Expanding the Scope of Inquiry’ in David E Klein and Gregory Mitchell (eds), The Psychology of Judicial Decision Making (Oxford University Press 2010) 11. 3 Ibid. 3. 4 Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus and Giroux 2011) 7–8.

12

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

• Motivated reasoning: as its name suggests, psychologists describe how motivation can affect someone’s reasoning when making decisions. In a judicial context, judges may sometimes be motivated to arrive at a particular outcome in a case, and this may affect their reasoning in a psychological (as distinct from a legal) sense. Judges may, for instance, subconsciously rely on a biased set of cognitive processes and reasoning strategies such that they are more likely to arrive at their desired conclusion.5 Put another way, judges may alter their decision-making processes to get to their desired result.6 • Emotion: despite a relatively persistent script that it should have no place in the courtroom, emotion can and does play a part in judicial decision-making, for better or worse.7 • Group decision-making effects: judicial panels are prevalent in court systems around the globe and judges on them work together to arrive at decisions. Researchers identify psychological effects that affect group decision-making both positively and negatively. These effects are explored in the context of judicial panels making decisions. We turn to the first of these phenomena: how judges may rely on heuristical reasoning that may lead to cognitive biases in their decision-making. 2.1 Heuristics, cognitive biases and judicial decision-making Using the pioneering work of Daniel Kahneman and Amos Tversky in the field of judgment and decision-making as a springboard, researchers in judicial decision-making have explored how heuristics – rules of thumb or shortcuts of intuitive thinking – can lead to cognitive biases in judges’ decisions. Over the past 20 years or so, researchers at the intersection of law and psychology – most prominently, Chris Guthrie, Jeffrey Rachlinski and Andrew Wistrich, whose work features prominently in this chapter – have taken the concepts identified by Kahneman and Tversky and conducted groundbreaking experimental studies on practising judges to investigate their susceptibility to errors in judicial decisionmaking brought about by heuristics.8 These studies have explored “inside the judicial mind,” generating extraordinary insights into how, leaving politics, ideologies, prejudices, institutional influences and group behaviour aside, the very process of making decisions can give rise to errors that can have significant consequences for litigants.9 Before we begin, a brief note on terminology is required. Researchers speak in terms of heuristics and biases. Sometimes the distinction between the two can be unclear, sometimes the terms are used interchangeably and sometimes they are collectively referred

5 Ziva Kunda, ‘The Case for Motivated Reasoning’ (1990) 108 Psychological Bulletin 480. 6 Avani Mehta Sood, ‘Motivated Cognition in Legal Judgments: An Analytic Review’ (2013) 9 Annual Review of Law and Social Science 307. 7 Terry A Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’ (2011) 99 California Law Review 629. 8 Amos Tversky and Daniel Kahneman, ‘Judgment under Uncertainty: Heuristics and Biases’ (1974) 185 Science 1124. 9 Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘Inside the Judicial Mind’ (2000) 86 Cornell Law Review 777.

13

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

to as “cognitive illusions.”10 For present purposes, heuristics are mental shortcuts that occur when thinking intuitively about what decision to make, and biases – sometimes cognitive biases – are the systematic cognitive errors in decision-making that arise as a consequence.11 The term ‘bias’ used in this context should, therefore, not be confused with bias in the sense of referring to someone displaying prejudice, either for or against particular individuals or groups owing to their personal or other characteristics. Biases, in the latter ‘prejudicial’ sense, are discussed in chapters 4 and 5. Nor should bias here be confused with “bias” in the legal sense, compromising principles of natural justice or fair procedures.12 It is worth briefly setting out some of the fundamental concepts of the research on heuristics and biases before considering their application in a judicial decision-making context. In Thinking, Fast and Slow, Kahneman popularised categorising modes or systems of thinking into two types: “system 1 thinking” and “system 2 thinking.”13 System 1 is thinking that is fast, automatic, stereotypic, unconscious, based on reaction and gut instinct. System 2 thinking is slower, more deliberative, effortful, controlled and conscious. System 1 thinking is a necessary part of human adaptation to a complex environment, but over-reliance on it can lead to systematic errors. One might hope that judges, in the courtroom and their chambers, predominantly engage in system 2 thinking. After all, judges are expected to be more measured and deliberative in their decisions than the rest of us making more mundane, everyday choices.14 Researchers have, however, shown how and why that is not necessarily the case. Heuristics – manifestations of system 1 thinking – can lead to errors in judicial decision-making. Before exploring specific heuristics and their consequent effects on judicial decisionmaking, consider the following broad question: are judges intuitive or deliberative decision-makers? A popular way to test for intuitive versus deliberative reasoning is Shane Frederick’s cognitive reflection test. Answer the following three questions without thinking about them too much: A bat and a ball together cost $1.10. The bat costs $1.00 more than the ball. How much does the ball cost?

10 Ibid. 780. 11 Tversky and Kahneman speak of “cognitive biases that stem from the reliance on judgmental heuristics [emphasis added],” Tversky and Kahneman (n 8) 1130. 12 See generally on bias in these contexts and 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). 13 Kahneman (n 4) 19. Kahneman adopted this terminology, dividing thinking into two systems, from an earlier article by Stanovich and West; Keith E Stanovich and Richard F West, ‘Individual Differences in Reasoning: Implications for the Rationality Debate?’ (2000) 23 Behavioral and Brain Sciences 645. Earlier research had also identified these two types of cognitive processes. See further, Seymour Epstein, ‘Integration of the Cognitive and the Psychodynamic Unconscious’ (1994) 49 American Psychologist 709; Steven A Sloman, ‘The Empirical Case for Two Systems of Reasoning’ (1996) 119 Psychological Bulletin 3; Shelly Chaiken and Yaacov Trope, Dual-Process Theories in Social Psychology (Guilford Press 1999); Daniel Kahneman and Shane Frederick, ‘Representativeness Revisited: Attribute Substitution in Intuitive Judgment’ (2002) 49 Heuristics and Biases: The Psychology of Intuitive Judgment 81. 14 Viscusi comments, for example, that judges “are not a random draw from the population and may not reflect all the usual patterns of error. They should be less prone to the kinds of biases and risk decision errors exhibited by the populace more generally.” W Kip Viscusi, ‘How Do Judges Think about Risk?’ (1999) 1 American Law and Economics Review 26, 27.

14

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?15

Responding intuitively, many answer 10 cents, 100 minutes and 24 days respectively. However, the correct answers are 5 cents, 5 minutes and 47 days. To arrive at the correct conclusions requires slower, deliberative, system 2 thinking. Guthrie, Rachlinski and Wistrich tested 252 practising trial judges from Florida using this cognitive reflection test to see if they fell into the same error or whether, as a collective, they were more deliberative thinkers than others were.16 Nearly one-third of participating judges failed to answer a single question correctly, a similar number answered one question correctly, less than a quarter answered two correctly, while roughly one-seventh answered all three correctly. Judges were susceptible to intuitive, incorrect reasoning and were just as susceptible as other well-educated adults were.17 The follow-up question then arises: if judges are susceptible to intuitive, system 1 thinking just like everyone else, can judges set their intuitive hunches to one side when ruling in the courtroom? Research has developed rapidly in recent years, with at least 175 different heuristics or biases identified, although many of these conceptually overlap.18 The focus of this chapter is on a limited range of the well-known heuristics and biases that appear prominently in the literature on judicial decision-making. The first to be addressed here is confirmation bias, which concerns how decision-makers selectively use and rely upon information that supports their initial preconceptions on a matter. This phenomenon intuitively seems to be particularly relevant to judicial decision-making. 2.1.1 Confirmation bias The Roman emperor Julius Caesar once remarked “[F]ere libenter homines id quod volunt credunt.”19 This loosely translates as “[M]en freely believe that which they desire.” Confirmation bias occurs when we selectively seek out information that supports our preconceived belief.20 Unpacking this a little, confirmation bias happens when decision-makers selectively choose information that supports one’s belief while disregarding information that does not, or when they overestimate the quality of information that supports their 15 Shane Frederick, ‘Cognitive Reflection and Decision Making’ (2005) 19 Journal of Economic Perspectives 25. 16 Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (2007) 93 Cornell Law Review 1. 17 Ibid. 14–15. 18 Hershey H Friedman, ‘Cognitive Biases That Interfere with Critical Thinking and Scientific Reasoning: A Course Module’ (2017) Available at SSRN 2958800 3 accessed 17 July 2020. 19 Julius Caesar, De Bello Gallico (Clarendon Press 1890) bk 3. 20 Plous describes it as “a preference for information that is consistent with a hypothesis rather than information which opposes it.” Scott Plous, The Psychology of Judgment and Decision Making (McGraw-Hill Book Company 1993) 233. Fischer and his colleagues define it as a tendency “to systematically prefer standpoint-consistent information to standpoint-inconsistent information in information evaluation and search.” Peter Fischer, Tobias Greitemeyer and Dieter Frey, ‘Self-Regulation and Selective Exposure: The Impact of Depleted Self-Regulation Resources on Confirmatory Information Processing’ (2008) 94 Journal of Personality and Social Psychology 382.

15

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

position.21 It reflects Julius Caesar’s musing that we choose what we want to hear rather than what we ought to hear. Does confirmation bias affect judging in courtrooms? Do judges set about using information in improper and misguided ways, driven by their preconceptions of a case? In their seminal article on heuristics and biases in 1974, Tversky and Kahneman suggested that confirmation bias could affect judicial decision-making.22 Although studies have since shown how confirmation bias affects legal decision-making by mock jurors and prosecution investigators, there is far less research investigating whether judges are affected.23 Judges are aware of their obligations to use information cautiously and even-handedly. As far back as 1660, English Chief Justice Matthew Hale drafted a sort of early self-help guide for the judicial profession, which he called “things necessary to be continually had in remembrance.”24 One of his resolutions was “that I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard.”25 Simply put, judges should consciously resist the urge to prejudge a case before all evidence is aired. Nevertheless, research shows that, in fact, judges form impressions and make preliminary decisions on cases at an early stage in proceedings.26 Two questions arise: are judges susceptible to confirmation bias in how they use information, and if so, what does this mean for judicial outcomes? Two recent studies directly tested judges for confirmation bias, with both finding that they tended to use information in ways biased towards backing up their preliminary views on a case. The first of these tested 130 German criminal law experts (comprising 54 judges, 24 prosecutors, 32 defence lawyers and 20 who did not specify their current 21 Schmittat and Englich usefully describe how confirmation bias subsumes two strongly related tendencies: selective exposure, namely, selectively choosing only information that supports one’s belief and disregarding conflicting information, and biased assimilation, which is overestimating the quality of supporting information. Susanne M Schmittat and Birte Englich, ‘If You Judge, Investigate! Responsibility Reduces Confirmatory Information Processing in Legal Experts’ (2016) 22 Psychology, Public Policy, and Law 386, 387. 22 Tversky and Kahneman (n 8) 1124. 23 Karl Ask and Pär Anders Granhag, ‘Motivational Sources of Confirmation Bias in Criminal Investigations: The Need for Cognitive Closure’ (2005) 2 Journal of Investigative Psychology and Offender Profiling 43; Kurt A Carlson and J Edward Russo, ‘Biased Interpretation of Evidence by Mock Jurors’ (2001) 7 Journal of Experimental Psychology: Applied 91; Christian A Meissner and Saul M Kassin, ‘“He’s Guilty!”: Investigator Bias in Judgments of Truth and Deception’ (2002) 26 Law and Human Behavior 469; Eric Rassin, Anita Eerland and Ilse Kuijpers, ‘Let’s Find the Evidence: An Analogue Study of Confirmation Bias in Criminal Investigations’ (2010) 7 Journal of Investigative Psychology and Offender Profiling 231; Karl Ask, Anna Rebelius and Pär Anders Granhag, ‘The ‘Elasticity’ of Criminal Evidence: A Moderator of Investigator Bias’ (2008) 22 Applied Cognitive Psychology: The Official Journal of the Society for Applied Research in Memory and Cognition 1245; Andrea M Halverson and others, ‘Reducing the Biasing Effects of Judges’ Nonverbal Behavior with Simplified Jury Instruction’ (1997) 82 Journal of Applied Psychology 590. 24 Brian D Johnson, ‘The Multilevel Context of Criminal Sentencing: Integrating Judge-and County-Level Influences’ (2006) 44 Criminology 259; Carol T Kulik, Elissa L Perry and Molly B Pepper, ‘Here Comes the Judge: The Influence of Judge Personal Characteristics on Federal Sexual Harassment Case Outcomes’ (2003) 27 Law and Human Behavior 69. 25 Sir Matthew Hale’s resolutions are fully set out in ‘Sir Matthew Hale’s Resolution’ (2014) 27 Arbitration International 281. 26 Kassin notes, “a warehouse of psychology research suggests that once people form an impression, they unwittingly seek, interpret, and create behavioural data that verify it.” Saul M Kassin, ‘On the Psychology of Confessions: Does Innocence Put Innocents at Risk?’ (2005) 60 American Psychologist 215, 219. Schmittat and Englich similarly remark how “people intuitively work toward proving a rule, or maintaining an opinion, instead of refuting it.” Schmittat and Englich (n 21) 386.

16

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

judicial profession) with two hypothetical cases.27 One case was about a supermarket employee who claimed she was unfairly dismissed after she took three slices of ham from the meat counter to make a sandwich; the other case was about a minor theft by a defendant with a criminal record and a psychiatric illness. Participants were asked to give a preliminary decision after reading the vignettes. After this, they were presented with a series of arguments either for or against the parties in both cases and were asked to rate them. The arguments were deliberately designed, and pre-tested, to be either strong or weak. The researchers found that participants evaluated arguments that supported their preliminary decision more positively than arguments that conflicted with it. They concluded that their results suggest that confirmation bias may affect judicial decision-making.28 A second impressively thorough experimental study on Swedish judges provided further evidence of confirmation bias in judicial decision-making, this time in assessing criminal defendants’ guilt or innocence. Lidén and her colleagues considered criminal justice systems where the same judge decided both pre-trial matters and then themselves went on to decide the substantive issue at the main trial. They examined whether judges’ initial pre-trial decisions to detain suspects triggered a confirmation bias that influenced their subsequent assessment of guilt or innocence in the subsequent trial.29 Sixty-four judges decided eight cases inspired by different real-life criminal law cases. These eight cases were divided randomly into two sets of four. In the first set, judges were asked to determine both the pre-trial matter (whether the defendant should be detained) and the substantive trial (whether the defendant was guilty or innocent). In the other four cases, judges were told what the pre-trial detention decision was, and were then asked only to determine guilt or innocence at the substantive trial. Where judges were asked to make the pre-trial detention decision, they were presented with relatively scarce evidence and were subsequently presented with more detailed evidence afterwards for the substantive trial, mimicking real-life judging conditions. Overall, in both sets of cases, judges were more inclined to convict detained defendants than non-detained defendants, but the highest levels of conviction were in cases where judges themselves had decided to initially detain the defendant. The margin was remarkable. Where judges had decided to detain, they were 2.79 times more likely to convict than where a colleague had decided to detain. Confirmation bias – in the sense that their decision on guilt served to confirm their original decision on pre-trial detention – seemed to be at play, and strongly so. Lidén and her colleagues’ study highlights the potentially unfair consequences of court procedures that facilitate judges doubling down on initial decisions for or against a particular litigant. Others have pointed out how a similar arrangement may also affect judges in ongoing child custody cases. The same judge may have to make decisions about the custody of the same child time and again, engaging in ‘position-hardening’ behaviour when asked to revisit their previous decisions.30 Confirmation bias, as Lidén

27 Schmittat and Englich (n 21) 392–393. 28 The researchers acknowledged limitations of the study – in particular, that hypothetical cases based on short vignettes are not as weighty or as consequential as real-life cases. Ibid. 396–397. 29 Moa Lidén, Minna Gräns and Peter Juslin, ‘“Guilty, No Doubt”: Detention Provoking Confirmation Bias in Judges’ Guilt Assessments and Debiasing Techniques’ (2019) 25 Psychology, Crime & Law 219, 223. 30 Matthew I Fraidin, ‘Decision-Making in Dependency Court: Heuristics, Cognitive Biases, and Accountability’ (2013) 60 Cleveland State Law Review 913, 963.

17

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

and her colleagues put it, is a self-enhancement bias.31 Judges, having decided one way initially, are more likely to confirm their initial approach in later decisions. Indeed, they may do so out of genuine concern to appear reasonable and consistent. Nevertheless, such a process may lend itself to injustice if and where procedures eliminate the possibility of fresh evaluation of evidence. These two studies on German and Swedish judges build upon consistent evidence from mock juror studies that confirmation bias may sometimes play out in courtrooms, perhaps to detrimental effect. Debiasing techniques to counter confirmation bias, including breaking the trial process down into chunks for separate evaluation, are addressed later in this chapter.32 2.1.2 Hindsight bias In 2009, six Italian scientists were asked to predict the likelihood of whether a damaging earthquake would strike the town of L’Aquila, Italy, after a series of frightening tremors. They concluded that it was impossible to predict a large earthquake. Six days later, a magnitude 6.3 earthquake struck with devastating consequences, causing the deaths of over 300 people. At a subsequent trial, the judge ruled that the scientists were criminally mistaken in their assessment of risk, and convicted them of manslaughter. Although the conviction was later overturned on appeal, scholars have reflected on how knowledge of the outcome may have skewed the judge’s thinking in the original trial – an instance, perhaps, of hindsight bias.33 Judges assess past events with the benefit of hindsight all the time. A judge will already know that a cycling accident victim, claiming that the driver who knocked them down was negligent, has considerable physical injuries. A judge will already know, in a case alleging negligently defective construction work, that the building is damaged. Judges operate after the fact, yet they must rewind the clock in a bid to resist the preconception that the outcome was predictable or inevitable simply because it occurred.34 As Wistrich, Guthrie and Rachlinski put it, judges must engage in “repredicting the past.”35 Hindsight bias is the tendency to think that an event is more predictable or inevitable after it has happened than it actually was.36 The statement “I knew that Donald Trump 31 Lidén, Gräns and Juslin (n 29) 238. 32 See section 2.1.6 Combatting heuristics and biases in judicial decision-making. 33 For a full discussion of this fascinating case, see Massimo Cocco and others, ‘The L’Aquila Trial’ (2015) 419 Geological Society, London, Special Publications 43. Giroux and her colleagues comment that “this ruling illustrates how outcome knowledge can lead to erroneous legal judgments,” Megan E Giroux and others, ‘Hindsight Bias and Law’ (2016) 224 Zeitschrift für Psychologie 190, 200. 34 Viscusi (n 14) 46. Rachlinski observes that judges deciding negligence cases must “do something that people cannot do – see the world through the eyes of the defendant before the adverse outcome occurred.” Jeffrey J Rachlinski, ‘A Positive Psychological Theory of Judging in Hindsight’ (1998) 65 The University of Chicago Law Review 571, 591. 35 Andrew J Wistrich, Chris Guthrie and Jeffrey J Rachlinski, ‘Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding’ (2005) 153 University of Pennsylvania Law Review 1251, 1313. 36 Hawkins and Hastie elaborate that the hindsight bias is “the tendency for individuals with outcome knowledge (hindsight) to claim that they would have estimated a probability of occurrence for the reported outcome that is higher than they would have estimated in foresight (without the outcome information).” Scott A Hawkins and Reid Hastie, ‘Hindsight: Biased Judgments of Past Events after the Outcomes Are Known’ (1990) 107 Psychological Bulletin 311. For meta-analyses of hindsight bias, see Jay JJ Christensen-Szalanski and Cynthia Fobian Willham, ‘The Hindsight Bias: A Meta-Analysis’ (1991) 48 Organizational Behavior and Human Decision

18

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

was going to win the 2016 US presidential election” is probably an assertion that more people would identify with after that election, than people would have identified with the statement “Donald Trump will win the 2016 US presidential election” before that election. Because he won, it seems it was more predictable than it perhaps in fact was. Hindsight bias would appear to be particularly relevant to judicial decision-making. If judges know that something bad has already happened, can they block that out when assessing what happened before the damage was done? Judges frequently acknowledge the perils of judging with hindsight in their decisions: “[N]othing is so easy as to be wise after the event,” remarked one 19th-century UK judge.37 More recently, a US judge warned how “the ex post perspective of litigation exerts a hydraulic force that distorts judgement,”38 and a UK judge noted how “courts must . . . resist the lure of hindsight bias as a result of which events known to have occurred are judged to have been more predictable than they actually were.”39 An Irish judge observed how one must “always keep in mind the issue of retrospective bias . . . there are potential hazards in any method of evaluation after the fact.”40 Aside from judicial pronouncements acknowledging the perils of hindsight bias, does empirical research demonstrate that hindsight bias systematically affects judges’ decisionmaking? Although experimental studies have long-demonstrated its effects on mock jurors and other decision-makers, the first experimental studies using practising judges as participants emerged at the turn of the century, with mixed and inconclusive results.41 As we will soon see, it seems judges are capable of resisting hindsight bias just as often as they appear to fall foul of it. Some studies have demonstrated judges’ susceptibility to Processes 147; Rebecca L Guilbault and others, ‘A Meta-Analysis of Research on Hindsight Bias’ (2004) 26 Basic and Applied Social Psychology 103. Gordon Wood describes the hindsight bias as the “knew-it-all-along-effect,” Gordon Wood, ‘The Knew-It-All-along Effect’ (1978) 4 Journal of Experimental Psychology: Human Perception and Performance 345. Bursztajn and his colleagues note how it “obscures the prospective uncertainty of the outcome, exaggerates its foreseeability.” Harold Bursztajn and others, ‘“Magical Thinking,” Suicide, and Malpractice Litigation’ (1988) 16 Journal of the American Academy of Psychiatry and the Law Online 369. The first to describe hindsight bias, Baruch Fischhoff, explained how “people believe that others should have been able to anticipate events much better than was actually the case.” Baruch Fischhoff, ‘For Those Condemned to Study the Past: Reflections on Historical Judgment’ (1980) 4 New Directions for Methodology of Social and Behavioral Science 79, 83. Rachlinski discusses different theories that account for hindsight bias, see Rachlinski (n 34) 582–586. For an overview of the causes of hindsight bias, see Neal J Roese and Kathleen D Vohs, ‘Hindsight Bias’ (2012) 7 Perspectives on Psychological Science 411. 37 19th century British judge George Bramwell, quoting a colleague, Chief Justice John Jervis, ‘The Court of Exchequer Cornman v The Eastern Counties Railway Company’ (1860) 8 The American Law Register (1852–1891) 173, 176. 38 US Court of Appeals for the Seventh Circuit Judge Frank Easterbrook in Carroll v Otis Elevator, 826 F.2d (1990). 39 English High Court Judge Mark Turner in CC (by his litigation friend MC) v Leeds City Council [2018] EWHC 1312, para. 10. 40 Mr Justice Kevin Cross in the Irish High Court in Morrissey v Health Service Executive and others [2019] IEHC 268, para. 75–76. See further, Morrissey v Health Service Executive and others [2020] IESC 6, 20 and 33. 41 For a review of studies investigating mock jurors’ hindsight bias, see Erin M Harley, ‘Hindsight Bias in Legal Decision Making’ (2007) 25 Social Cognition 48. For examples of studies on mock jurors, see Reid Hastie, David A Schkade and John W Payne, ‘Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards’ (1999) 23 Law and Human Behavior 445; Kim A Kamin and Jeffrey J Rachlinski, ‘Ex Post≠ Ex Ante’ (1995) 19 Law and Human Behavior 89; Susan J LaBine and Gary LaBine, ‘Determinations of Negligence and the Hindsight Bias’ (1996) 20 Law and Human Behavior 501. On auditors’ hindsight bias, see John C Anderson and others, ‘The Mitigation of Hindsight Bias in Judges’ Evaluation of Auditor Decisions’ (1997) 16 Auditing 20.

19

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

hindsight bias, while others have not, suggesting that under certain circumstances, judges may be able to stifle their knowledge of the outcome when tasked with assessing how predictable that outcome was in the first place. In an earlier study, Viscusi asked 95 US judges to decide a hypothetical case about whether a railway company must follow an order of a railway safety board requiring it to make safety improvements and repairs to a track.42 The judges were told that repairs would be expensive and that they would result in a severe economic impact on the community served by the railway. They were also told that there had been no accidents in the previous 20 years. One group of the judges, however, received additional information: although there had not been any accidents in that period, a rail accident had in fact just occurred on the railway, causing damage to a river and to the residents and businesses alongside the river.43 This latter group, burdened with this additional information, was being asked to judge with knowledge of a negative outcome. Notably, knowledge of the accident did not affect judicial outcomes to a statistically significant degree. Judges who had heard of the accident were only marginally less inclined to rule against requiring safety improvements compared to those who had not heard of the accident.44 Overall, the judges did not display hindsight bias when deciding the case.45 In a later study, Guthrie, Rachlinski and Wistrich tested judges for hindsight bias using a hypothetical case about the admissibility of police evidence in a criminal trial.46 The judges learned that a police officer had noticed a smell of drugs from a parked car, had looked inside the car from the outside, but had not seen any drugs. One group of judges was asked whether, in their assessment, there was “probable cause” (the applicable legal standard) to issue a search warrant to conduct a full search of the inside of the car. The other group of judges learned that the police officer had, in fact, decided to search the car without a warrant (a call that police officers are within their rights to make, provided the same legal standard of “probable cause” is met). In this latter scenario, the police officer had, in fact, found illegal drugs and a murder weapon. Judges in this latter group were asked whether they would allow this evidence to be admitted. In both scenarios, the same legal standard applied – whether there was “probable cause” to search the car. The researchers wondered whether the revelation of the incriminating evidence would sway judges’ assessments, relative to the other group of judges. Impressively, there was very little difference between the two groups’ determinations. Hindsight bias did not seem to affect the judges. Among judges who did not know of the subsequent discovery, 11 out of 46 judges concluded there was probable cause and granted 42 Viscusi (n 14) 50. Another early study was that undertaken by John C Anderson and his colleagues which found that 157 US judges’ evaluations of auditors’ performance was subject to hindsight bias. Knowing of a negative outcome for the auditors’ clients rendered their evaluation of the auditor’s work more negatively than judges who did not know of the negative outcome. Anderson and others (n 41). 43 The materials for this hypothetical scenario derived from an earlier study by Hastie and Viscusi testing for hindsight bias among lay people. Reid Hastie and W Kip Viscusi, ‘What Juries Can’t Do Well: The Jury’s Performance as a Risk Manager’ (1998) 40 Arizona Law Review 901, 905. 44 Of judges who had not heard of the accident, 85.1% did not favour requiring safety improvements. A markedly similar percentage of judges who had heard of the accident, 76.6%, judged the same way. 45 Viscusi (n 14). 46 Wistrich, Guthrie and Rachlinski (n 35). This study improved upon an earlier, perhaps less direct experimental study of hindsight bias about the propriety of a prisoner suing for alleged negligent medical treatment while in prison. Ibid. 1313–1318.

20

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

a warrant. Among judges who did know of the subsequent discovery of the drugs and murder weapon, 13 out of 47 judges ruled the evidence admissible, a strikingly similar proportion.47 While acknowledging the sample size of participating judges was relatively small, the researchers nevertheless noted that the results were surprising because they suggested that the judges were seemingly able to ignore the damning evidence that the search had produced.48 The same three researchers, this time led by Rachlinski, undertook another larger study to investigate whether this was a one-off result.49 Across three experiments asking some 900 state and federal judges to make judgments either in foresight or in hindsight in hypothetical “probable cause” cases, they made similar rulings whether they were in the foresight and hindsight conditions. Although judging the reasonableness of a police search in hindsight may have put pressure on judges to side with the prosecution, they did not bow to it. They seemed to be able to suppress their reliance on the outcome to determine the case based on the police’s conduct in obtaining the evidence.50 Again, the results indicated judges’ impressive ability to suppress hindsight bias. Turning from decisions on criminal trial procedure to determining liability for negligence, many studies have demonstrated that mock jurors without legal training are susceptible to hindsight bias.51 However, might hindsight bias affect judges deciding negligence cases? Oeberst and Goeckenjan tested for this on 84 German early-career judges.52 The hypothetical case concerned the treatment of a man kept in a closed psychiatric ward due to his prolific crime record and his diagnosed personality disorder. His carers attested to his positive progress, the man entered into a relationship and the psychiatric ward’s chief physician decided to allow him to leave to go for a walk with his new partner. Participants in the hindsight condition learned of catastrophic consequences: that the man escaped, did not return and was captured six months later, at which stage he had robbed eight people, killing two and severely injuring three others in the process. Participants in the control condition were not told of this outcome. Although knowledge of the outcome did not have any effect on judges’ assessment of the perceived foreseeability of “a harm” occurring,53 judges with outcome knowledge perceived the catastrophic consequences as significantly more foreseeable than those in the control condition did. They were also more damning in their assessment of the staff at the

47 Wistrich, Guthrie and Rachlinski (n 35) 1316. 48 Ibid. 1317. 49 Jeffrey J Rachlinski, Chris Guthrie and Andrew J Wistrich, ‘Probable Cause, Probability, and Hindsight’ (2011) 8 Journal of Empirical Legal Studies 72. 50 Ibid. 73. 51 Anderson and others (n 41); Edith Greene, Michael Johns and Jason Bowman, ‘The Effects of Injury Severity on Jury Negligence Decisions’ (1999) 23 Law and Human Behavior 675; Reid Hastie, David A Schkade and John W Payne, ‘Juror Judgments in Civil Cases: Hindsight Effects on Judgments of Liability for Punitive Damages’ (1999) 23 Law and Human Behavior 597; LaBine and LaBine (n 41); Alison C Smith and Edith Greene, ‘Conduct and Its Consequences: Attempts at Debiasing Jury Judgments’ (2005) 29 Law and Human Behavior 505; Merrie Jo Stallard and Debra L Worthington, ‘Reducing the Hindsight Bias Utilizing Attorney Closing Arguments’ (1998) 22 Law and Human Behavior 671. 52 Aileen Oeberst and Ingke Goeckenjan, ‘When Being Wise after the Event Results in Injustice: Evidence for Hindsight Bias in Judges’ Negligence Assessments’ (2016) 22 Psychology, Public Policy, and Law 271. 53 Ibid. 275.

21

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

psychiatric ward: more than twice as many judges (30%) thought the staff were negligent when they knew of the outcome compared with the other judges’ estimation (14%).54 The results of Rachlinksi, Guthrie and Wistrich’s studies on hindsight bias in criminal law procedure contexts were encouraging – judges seemed able to resist it. However, Oeberst and Goeckenjan’s result was, as they put it, “not very reassuring,”55 given that their participants apparently succumbed to the effects of hindsight bias. An important limitation of the latter study, acknowledged by the researchers, was the limited professional experience of the judges who took part – an average of one and a half years of professional experience in judicial decision-making.56 Overall, no clear pattern emerges from the research on hindsight bias in judicial decision-making. One variable that may be at play is the nature and extremity of the harm described in hypothetical cases and how this may affect results. One may wonder, for instance, whether the null finding for hindsight bias in Viscusi’s study on railway safety would have been replicated if the hindsight condition had involved a catastrophic accident killing dozens of people rather than the more minor harm of pollution damage described in the hypothetical case. Further studies on a broader range of legal issues, and presenting a wider range of more or less serious outcomes in the hindsight condition, would present a clearer understanding of the true impact of hindsight bias on judicial decision-making. The lasting impression is of judges’ often-impressive resistance to hindsight bias. Judges, however, do sometimes fall foul to its potentially harmful effects, and interventions designed to mitigate hindsight and other biases ought to be considered. These are discussed later in this chapter.57 2.1.3 Representativeness heuristic The representativeness heuristic is a mental shortcut for making judgements about the probability of something being the case. The heuristic occurs when people make assumptions about something or someone belonging to a particular category because it possesses characteristics that are representative of that category.58 Tversky and Kahneman offer a non-legal example where they describe a character ‘Steve’ as “very shy and withdrawn, invariably helpful, but with little interest in people, or in the world of reality. A meek and tidy soul, he has a need for order and structure, and a passion for detail.”59 Faced with an array of options as to what Steve’s profession is, people are more likely to think Steve is a librarian than a farmer. They associate Steve’s traits with those of a librarian and conclude he is more likely to be one. However, he is, in fact, more likely to be a farmer because there are more of them in the general population than there are librarians. 54 Oeberst and Goeckenjan (n 52). 55 Ibid. 276. 56 Ibid. 277. 57 See section 2.1.6 Combatting heuristics and biases in judicial decision-making. 58 As Tversky and Kahneman explain, someone relying on the representativeness heuristic assesses a probability “by the degree to which A is representative of B, that is, by the degree to which A resembles B.” Tversky and Kahneman (n 8) 1124. 59 Ibid.

22

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

The traits override an assessment of the objective probabilities involved. This phenomenon – whereby people tend to undervalue or discount statistical information about frequency – is called ‘base rate fallacy’ or ‘base rate neglect’.60 That Steve possesses characteristics supposedly representative of librarians influences people’s thinking and leads them to an error in their judgement. Such representative evidence tends to be clear and compelling, while base-rate statistics are murkier and less compelling in comparison.61 Guthrie, Rachlinski and Wistrich offer an example of this in a judicial decision-making context.62 When assessing the credibility of a criminal defendant, a judge might observe whether a defendant’s demeanour on the witness stand is representative either of the category of a guilty person or of an innocent person. If the defendant is nervous and shifty, a judge may be inclined to view this as evidence of guilt, whereas if the defendant appears at ease, a judge may be inclined to view this as evidence of innocence. Of course, this may have some value as an observation, but it can often lead people, including judges, to discount relevant statistical information.63 Fraidin offers another example, speculating that the representativeness heuristic may be at play in judges’ decision-making in child welfare matters.64 Judges may over-rely on dispositional traits that parents display in the courtroom or may draw all too readily from stories about “beastly parents and victimized children,” leading to decisions that are more punitive than objective evidence would support.65 Guthrie, Rachlinski and Wistrich tested judges for their susceptibility to the representativeness heuristic. Judges evaluated probative evidence in a torts claim based on a classic case, Byrne v Boadle.66 The plaintiff, passing by the defendant’s warehouse, was struck by a barrel from above, causing injury. The barrel was being hoisted from the ground into the warehouse when the incident occurred. The defendant was not sure what happened, surmising either that the barrel was negligently secured or that the rope was faulty. The 159 participating US judges were told that safety inspectors had determined that (i) when barrels are negligently secured, there is a 90% chance that they will break loose, (ii) when barrels are safely secured, they break loose only 1% of the time and (iii) workers negligently secure barrels only .01% of the time. The judges were asked how likely it was that the barrel fell due to the defendant’s negligence, by selecting from one of four percentage ranges: between 0 to 25%, 26 to 50%, 51 to 75%, or 76 to 100%. The researchers hypothesised that judges would neglect the base rate, and would assume that the likelihood that the barrel fell due to the defendant’s negligence was higher than it actually was. As the researchers described, the accident “sounds like it was the product of negligence, so intuition would suggest negligence must have caused it.”67 In fact, the

60 Tversky and Kahneman (n 8); Daniel Kahneman and Amos Tversky, ‘On the Psychology of Prediction’ (1973) 80 Psychological Review 237, 239. 61 Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 806. 62 Ibid. 805. 63 Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9). 64 Fraidin (n 30). 65 Ibid. 66 159 Eng. Rep. 299 (Ex. Ch. 1863). 67 Guthrie, Rachlinski and Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (n 16) 23.

23

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

probability is low: 8.3%.68 The judges performed a bit better than the researchers expected.69 The correct answer (0–25%) was selected by 40.9% of the judges. Nevertheless, that left nearly 60% of judges concluding the probability of the barrel falling due to negligence was higher than it actually was. A majority of judges apparently preferred evidence that seemed representative of what was likely to happen over the statistical reality – the barrel did, in this instance, fall onto the plaintiff’s head, and if one relies on the representativeness heuristic, it seems that negligence may be to blame. A caveat to this finding is that hindsight bias may have been at play as much as the representativeness heuristic was. After all, participants knew that the plaintiff had suffered injuries and had to determine the probability of negligence with knowledge of the outcome. Trying to parse out the possible influence of hindsight bias from the representativeness heuristic in this instance is difficult. Nevertheless – and whatever the precise source of their inaccuracy – for many of the judges, information that seemed to be representative was persuasive. 2.1.4 Egocentric bias The egocentric bias occurs when people tend to overestimate their abilities and prospects. People think they have more input in group problem-solving than they in fact do,70 are unrealistically optimistic about their health and their future education success71 and think they are better drivers than average.72 Married couples give combined percentage estimates in excess of 100% when asked the percentage amount of household tasks they are responsible for.73 Put simply, the egocentric bias suggests people are likely to think they are more successful at life than they actually are.74 This can have consequences in legal 68 The researchers explain how they arrived at the figure of 8.3% as follows: Because the defendant is negligent .1% of the time and is 90% likely to cause an injury under these circumstances, the probability that a victim would be injured by the defendant’s negligence is .09% (and the probability that the defendant is negligent but causes no injury is .01%). Because the defendant is not negligent 99.9% of the time and is 1% likely to cause an injury under these circumstances, the probability that on any given occasion a victim would be injured even though the defendant took reasonable care is 0.999% (and the probability that the defendant is not negligent and causes no injury is 98.901%). As a result, the conditional probability that the defendant is negligent given that the plaintiff is injured equals .090% divided by 1.089%, or 8.3%. Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 809

69 Guthrie, Rachlinski and Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (n 16) 24. 70 Michael Ross and Fiore Sicoly, ‘Egocentric Biases in Availability and Attribution’ (1979) 37 Journal of Personality and Social Psychology 322. 71 Neil D Weinstein, ‘Unrealistic Optimism about Future Life Events’ (1980) 39 Journal of Personality and Social Psychology 806. 72 Ola Svenson, ‘Are We All Less Risky and More Skillful than Our Fellow Drivers?’ (1981) 47 Acta Psychologica 143. 73 Ross and Sicoly (n 70). 74 A related phenomenon to egocentric bias is the so-called bias blind spot. As its name suggests, the bias blind spot is, in effect, a “bias about biases,” Glenn S Sanders and Brian Mullen, ‘Accuracy in Perceptions of Consensus: Differential Tendencies of People with Majority and Minority Positions’ (1983) 13 European Journal of Social Psychology 57, 58. It occurs when an individual believes they are less susceptible to cognitive, social or motivational biases than others. Interestingly, research suggests that more cognitively-sophisticated individuals are more susceptible to the bias blind spot than less cognitively sophisticated individuals. Richard F West, Russell J Meserve and Keith E Stanovich, ‘Cognitive Sophistication Does Not Attenuate the Bias Blind Spot’ (2012) 103 Journal of Personality and Social Psychology 506. See also Lee Ross, David Greene and Pamela House, ‘The “False Consensus Effect”: An Egocentric Bias in Social Perception and Attribution Processes’ (1977) 13 Journal of Experimental Social Psychology 279.

24

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

decision-making contexts. Egocentric bias may cause litigants to over-estimate the merits of their case, for instance, and some scholars have suggested that this partly explains why some cases fail to settle and go to trial.75 Are judges susceptible to egocentric bias? Guthrie, Rachlinski and Wistrich tested 155 practising judges by asking them how often they thought their decisions were reversed on appeal, relative to their colleagues. A lower rate of reversal by appellate courts might reflect better on a judge’s ability. Judges were asked to place themselves into a quartile (highest rate of reversal – greater than 75%; second-highest rate of reversal – greater than 50%; third-highest rate or reversal – greater than 25%; or the lowest rate of reversal – less than 25%). Of the 155 judges, 56.1% reported that their appeal rate placed them in the lowest quartile – less than 25%. Being in this quartile painted them in the best light. Just 4.5% of judges placed themselves in the highest quartile. Of course, this could not be so. The judges, as a whole, displayed a strong egocentric bias. Administrative law judges displayed similar self-serving evaluations of different aspects of their judging prowess in a later study by the same authors using the same methodology.76 When asked to anonymously self-report their ability to evaluate the credibility of witnesses, 83% of judges said that they were in the best or second-best quartile of ability. Asked to self-report their ability to avoid prejudice on the grounds of race or gender, 97% of judges said that they were in the best or second-best quartile.77 In both self-assessments, not one judge placed themselves in the lowest quartile.78 These studies go towards how judges rate themselves. Whether egocentric bias actually affects judicial decisions is a different matter, and has not yet been directly tested. However, one possible manifestation of egocentric bias affecting judicial decisions is the false consensus effect, a tendency to perceive one’s views on a matter as being more commonly held by others than they actually are.79 The false consensus effect and its possible impact on judicial decisions are discussed later in this chapter in the context of group judicial decision-making by judicial panels.80 2.1.5 Other heuristics and biases Researchers suggest but have yet to test how other heuristics and biases, such as the availability heuristic, status quo bias and omission bias, may also infiltrate judges’ decisionmaking. Despite the absence of empirical evidence, they merit brief consideration here to highlight their potential impact in the courtroom and possible avenues for future research. To take the availability heuristic first – a cousin of the representativeness heuristic – Tversky and Kahneman describe it as follows: “people assess the frequency of a class or the probability of an event by the ease with which instances or occurrences can be 75 George Loewenstein and others, ‘Self-Serving Assessments of Fairness and Pretrial Bargaining’ (1993) 22 The Journal of Legal Studies 135, 152. 76 Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice’ (2009) 58 Duke Law Journal 1477, 1520. 77 Ibid. 78 Ibid. 79 See Sanders and Mullen (n 74) 58. See also Ross, Greene and House (n 74). 80 See section 2.5.1 Positive effects of group decision-making.

25

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

brought to mind.”81 The instance or occurrence of an event that is salient, vivid or foremost in the mind of the decision-maker may affect their decision; for example, personal experience may hold more sway than statistical knowledge.82 Like the representativeness heuristic, the availability heuristic is a mental shortcut for making judgements about the probability of something being the case. Although the availability heuristic may be useful for assessing probability, many have suggested it can lead to biases in decision-making in the courtroom.83 For example, a judge considering whether to declare a company bankrupt may give it one last chance to recover if they recall a recent instance of another business successfully recovering against the odds. This positive, recent example may be foremost in a judge’s mind in the subsequent case, and its ‘availability’ might persuade them to allow the business in the instant case one more chance to set things right. Or, to take a criminal law example, a judge may refuse to grant bail after recalling a recent instance where an accused person committed a theft while on bail. Perhaps surprisingly, there is no study directly testing judges for their susceptibility to the availability heuristic. However, related experimental research that investigates how salient, available, but legally irrelevant numerical values can sway judges’ decisions overlaps with the availability heuristic to an extent.84 Judges’ errors in deciding on numbers are discussed later in the chapter.85 Two final biases, status quo bias and omission bias, are closely related to each other and merit brief consideration. Status quo bias refers to the tendency of wishing to maintain consistency with a decision already made to preserve the current state of affairs.86 Shoppers will continue to choose the same brand of a household essential item every week simply because it is what they ordinarily decide rather than properly consider the merits of other brands each week. Omission bias is subtly different: the preference to do 81 Tversky and Kahneman (n 8) 1127. 82 Schauer describes how when decision-makers are in the thrall of a highly salient event, that event will dominate their thinking. Frederick Schauer, ‘Do Cases Make Bad Law?’ (2006) 73 The University of Chicago Law Review 883, 895. Chugh and Bazerman refer to “the human tendency to make judgments based on attention to only a subset of available information, to overweigh that information, and to underweigh unattended information.” Dolly Chugh and Max H Bazerman, ‘Bounded Awareness: What You Fail to See Can Hurt You’ (2007) 6 Mind & Society 1, 7. Chiodo and her colleagues elaborate, “[P]eople often give too much weight to memorable evidence, even when better sources of information are available.” Abbigail J Chiodo and others, ‘Subjective Probabilities: Psychological Theories and Economic Applications’ (2004) 86 Federal Reserve Bank of St. Louis Review 33, 35. On highly publicised causes of death, consider the example of deaths by shark attacks as something that many would disproportionately fear in comparison to other more likely causes of death, perhaps owing to its higher salience in the media. Plous (n 20) 121. 83 Tversky and Kahneman (n 8) 1127. Faure offers the example of how “highly publicised causes of death (through particular accidents) could thus lead [judges] to higher estimations concerning the danger of those activities.” Michael G Faure, ‘Calabresi and Behavioural Tort Law and Economics’ (2007) 1 Erasmus Law Review 75, 88. See also Schauer (n 82) 895; Neal Devins and Alan Meese, ‘Judicial Review and Non-Generalizable Cases’ (2005) 32 Florida State University Law Review 323, 332; Emily Sherwin, ‘A Defense of Analogical Reasoning in Law’ (1999) 66 University of Chicago Law Review 1179, 1191. 84 See, for example, Jeffrey J Rachlinski, Andrew J Wistrich and Chris Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (2015) 90 Indiana Law Journal 695, 704; Guthrie, Rachlinski and Wistrich, ‘The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice’ (n 76). 85 See section 2.2 Cognitive errors in judges’ numerical decision-making. 86 William Samuelson and Richard Zeckhauser, ‘Status Quo Bias in Decision Making’ (1988) 1 Journal of Risk and Uncertainty 7, 8.

26

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

nothing rather than something or to view omissions favourably over equivalent commissions, even though it may not be the best course of action. Some parents decide not to vaccinate their children because of a small risk to health, even though vaccination – the positive act – may objectively be a far less risky option. Both biases share the common feature of loss-aversion, that is, better to avoid making a risky or novel decision where possible, either by continuing to act in accordance with the status quo, or to prefer inaction to action. Again, researchers have speculated about, but not investigated, how these biases may affect judges’ decision-making. For instance, in the context of sentencing decisions, Isaacs suggested that the omission bias may cause judges to favour an initial baseline in sentencing, rather than deviate from it. This, Isaacs suggests, may occur “because judges may prefer the harms caused by passively applying the default sentence over the harms caused by actively altering it.”87 Concerning the status quo bias, Isaacs further suggested, again in a sentencing context, that judges may skew sentencing decisions towards typical sentences favouring the status quo.88 Research has not yet tested these intuitively appealing hypotheses. Experimental studies could investigate whether judges are susceptible to these as-of-yet underexplored phenomena when deciding cases. All told, research on heuristics and biases in judicial decision-making is at a relatively early developmental stage. That said, experimental studies have already offered illuminating insights into the inner workings of the judicial mind, highlighting judges’ subconscious foibles, and equally at times, their admirable resistance to errors that can plague their decision-making. Unsurprisingly, this burgeoning line of research often demonstrates that judges, like the rest of us, sometimes think and decide intuitively. To some degree, this research confirms the assertions of legal realists nearly a century ago that judges sometimes decide cases on a “hunch.”89 Outside the courtroom, judges are not impervious to erroneous, system 1 reasoning.90 In judicial decision-making contexts, while judges put to the test in experimental studies often seem admirably capable of resisting the perils of judging in hindsight, sometimes they fall foul of them. In the relatively small amount of empirical research undertaken on confirmation bias, judges appear to process and evaluate information in biased ways, perhaps led by their preconceptions of a case, and they seem eager to double down on their own previous decisions. Judges also display egocentric bias, believing that they are better at their job than they objectively are. Research on heuristics and biases on judicial decision-making will no doubt continue to grow. Over time, more nuanced and sophisticated experiments will develop on how these and other, heretofore-unstudied heuristics and biases may affect judicial decisionmaking in different ways. Given existing knowledge, what can be done to combat the negative consequences of heuristics and biases that have been proven to affect judicial decision-making and to reduce the risk that they will compromise actual case outcomes? The next section considers measures and interventions suggested in the literature.

87 Daniel M Isaacs, ‘Baseline Framing in Sentencing’ (2011) 121 Yale Law Journal 426, 444–446. 88 Ibid. 447–448. 89 See Joseph C Hutcheson Jr., ‘Judgment Intuitive: The Function of the Hunch in Judicial Decision’ (1929) 14 Cornell Law Review 274. 90 Guthrie, Rachlinski and Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (n 16) 14–15.

27

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

2.1.6 Combatting heuristics and biases in judicial decision-making As the law has developed, lawyers and judges have developed legal maxims and constructs to guide decision-making processes: the ‘reasonable person’ and ‘reasonable foreseeability’ standards, for instance. These legal maxims perhaps implicitly recognise that heuristics and biases are vices that judges ought to avoid. The “reasonable person” standard calls upon a judge to step outside their own subjective perspective and adopt a more objective mindset. The judge ought not to simply rely on information that confirms the result they were predisposed towards. By employing the reasonable foreseeability standard when deciding claims of negligence, a judge rewinds the clock to try to consider the events that led up to the harm before they happened. By considering what was reasonably foreseeable, a judge implicitly recognises that they ought not to decide with the benefit of hindsight. Rachlinski conceives of a judge’s obligation to comply with these ex ante norms as an inbuilt mechanism for tempering bias.91 However, as empirical research suggests, legal maxims and constructs may not be enough, and there is no “smart pill” that judges can take.92 Researchers have suggested strategies to combat heuristics and consequent biases in the courtroom that go beyond relying on general legal principles.93 Recall that heuristics and biases occur due to an overreliance on system 1, rather than system 2 reasoning. The general premise of interventions and strategies to combat heuristics and biases is to get judges to rely on system 2, rather than system 1 thinking. The rationale is straightforward, argue Wistrich and Rachlinski: “[S]ystem 2 is where logic – and hence most legal reasoning – lies.”94 Strategies to combat the insidious, harmful effects of heuristics and biases can be categorised into three general forms: • increase awareness about particular heuristics and biases; • arm judges with different, better modes of deliberating the legal problem at hand; and • alter and improve court procedures and improve resources to reduce the adverse effects of heuristics and biases indirectly. To take the first of these – increase awareness about particular heuristics and biases – some suggest that if judges are made more aware of heuristics and biases and why they occur, this may help to mitigate their harmful effects in judicial decision-making. Rachlinski and Wistrich suggest that training judges to help them understand their reliance on intuitive, heuristical thinking is a necessary first step towards self-correcting errors in their decision-making.95 Is there evidence that awareness training would work? 91 Rachlinski (n 34) 608–615. 92 Andrew Wistrich and Jeffrey Rachlinski, ‘Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It’ in Sarah Redfield (ed), Enhancing Justice: Reducing Bias (American Bar Association, Judicial Division 2017) 104. 93 See generally on debiasing techniques, Gary Edmond and Kristy A Martire, ‘Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision-Making’ (2019) 82 The Modern Law Review 633, 657–660. 94 Wistrich and Rachlinski (n 92) 90. 95 Ibid. 118. In a general, rather than legal context, debiasing training against confirmation bias has proven to be effective. In a recent study by Sellier and her colleagues on 290 graduate students, some received a one-off video game-based training intervention designed to reduce confirmation bias before solving an unannounced business case based on the decision to launch the Space Shuttle Challenger. Compared to a control group who did not receive training, trained participants were 29% less likely to choose the inferior hypothesis-confirming

28

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Stallard and Worthington experimentally tested whether making mock jurors aware of hindsight bias would make them less susceptible to it when deciding a hypothetical criminal law case.96 They ran a mock trial where participants watched and listened to different defence lawyers’ closing arguments. Half of the jurors watched a defence lawyer’s closing argument warning them of hindsight bias, namely that the prosecutor’s strategy was to turn jurors into “Monday-morning quarterbacks.”97 The defence lawyer’s argument also included an appeal to them not to be tempted to use hindsight when deciding the case. The other half of the jurors did not receive this material. The defence lawyer’s arguments in the hindsight condition seemed to work, significantly reducing hindsight bias compared to the other jurors who did not hear it.98 In other studies, however, similar interventions on mock jurors in negligence trials, rather than criminal law trials, were not successful.99 Whether an equivalent intervention would work on experienced judges is another matter. Unlike jurors, judges deal with cases every day, and constant reminders by lawyers about the perils of hindsight bias would likely lose potency over time. Kang and his colleagues remarked, however, that “it is important for judges to constantly doubt and reevaluate their own objectivity.”100 Perhaps then, rather than simply being reminded to be wary of heuristics, bespoke, regular judicial training comprising small-scale experiments on heuristical reasoning and structured self-reflection might be an alternative, more effective means of reducing bias. Such training would, of course, have to be appropriately and rigorously pre-tested. Can different modes of deliberation after court hearings reduce judges’ susceptibility to the harmful consequences of heuristics and biases? Oeberst and Goeckenjan argue that simply deliberating more does not cure all; rather, the way judges deliberate ought to be considered.101 Considering alternative outcomes, often referred to as the ‘consider-the-opposite’ technique, is one such mode of nuanced deliberation.102 The technique requires a decision-maker to imagine and consider – deliberately, and with effort – alternative outcomes that conflict with the opinion the decision-maker holds. The method has been proven to effectively combat a range of heuristics both within and beyond the courtroom.103 Anderson and his solution. Notably, training influenced the case decision without any explicit connection between it and the case; a reminder to participants in the training group before completing the task was not necessary. The training was enough. Anne-Laure Sellier, Irene Scopelliti and Carey K Morewedge, ‘Debiasing Training Improves Decision Making in the Field’ (2019) Psychological Science 0956797619861429. 96 Stallard and Worthington (n 51). 97 The reference to “Monday-morning quarterbacks” is an analogy from American football, referring to a person who passes judgement on or criticises something after the event. Ibid. 675. 98 Ibid. 679–680. 99 Smith and Greene (n 51); Kamin and Rachlinski (n 41). 100 Jerry Kang and others, ‘Implicit Bias in the Courtroom’ (2011) 59 UCLA Law Review 1124, 1172–1173. 101 Reflecting on ways to combat hindsight bias, they contend that it “is not an intuitive error that vanishes with deliberation. Instead, hindsight bias results from deliberation and can only be reduced or eliminated by specific types of deliberation.” Oeberst and Goeckenjan (n 52) 277. 102 See generally, Charles G Lord, Mark R Lepper and Elizabeth Preston, ‘Considering the Opposite: A Corrective Strategy for Social Judgment’ (1984) 47 Journal of Personality and Social Psychology 1231. 103 Rachlinski and Guthrie note how it has proven to be effective at combatting hindsight bias, the anchoring effect and overconfidence bias; see Wistrich and Rachlinski (n 92) 112. See also Hal R Arkes, ‘Impediments to Accurate Clinical Judgment and Possible Ways to Minimize Their Impact’ (1981) 49 Journal of Consulting and Clinical Psychology 323; Roese and Vohs (n 36).

29

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

colleagues tested the consider-the-opposite technique in an experimental study on 193 US state judges who were asked to review a hypothetical negligence case about an auditor’s allegedly negligent actions.104 They heard that an acquiring company that relied on the auditor’s allegedly negligent advice had suffered financial losses. One group of judges was asked to consider and reflect on how, even in such circumstances, it could have been the case that a positive outcome could have materialised. Contrary to the researchers’ hypothesis, asking judges to consider alternative outcomes did not have a bearing on the judges’ evaluation of the auditor’s conduct, and it did not mitigate hindsight bias.105 This is the only study to date on the consider-the-opposite technique in a judicial decision-making context, but the research should not stop there, given its apparent success in other settings. Further research could explore whether the consider-the-opposite technique might mitigate hindsight bias in other legal scenarios. However, Oeberst and Goeckenjan question the practicability of compelling judges to employ this technique and how it could be systematically introduced.106 In a later section in this book, we will see how judicial assistants offer something akin to the consider-the-opposite technique by occasionally playing a ‘devil’s advocate’ role to tease out what alternatives there may be to a particular judicial outcome.107 Lidén and her colleagues suggest another deliberation technique to combat heuristics and biases by drawing inspiration from Swedish criminal trial procedure. In Sweden, criminal law judges first evaluate all parts of the evidence of a case individually and separately, before evaluating all of the evidence in its totality.108 Using law student participants deciding a hypothetical criminal trial, Lidén and her colleagues demonstrated that those who assessed individual parts of evidence in a structured way perceived it as less strong overall, in comparison to those who assessed the evidence in an unstructured way.109 More structured deliberation of evidence in a compartmentalised way may, therefore, help to combat confirmation bias. Another technique to combat heuristics and biases, particularly hindsight bias, is trial bifurcation. Trial bifurcation involves breaking legal proceedings down into two parts, or in some instances, three parts, trifurcation.110 We have seen earlier in our treatment of confirmation bias how judges who decide to detain a criminal defendant at the pre-trial stage are more likely to double down and find the defendant guilty in the substantive trial.111 Justice may be better served if different judges made decisions at these two stages of the process. To offer another example of trial bifurcation in a non-criminal law context, consider breaking down negligence proceedings into two parts wherein the first part a judge would only hear evidence about the defendant’s actions before making a judgment about negligence. If found negligent, the same, or a different judge would only then 104 Anderson and others (n 41). 105 Ibid. 29. 106 Oeberst and Goeckenjan (n 52) 276, referring to Arkes (n 103); Roese and Vohs (n 36). 107 See Wistrich and Rachlinski (n 92) 113. See section 6.1.2 Judicial assistants’ influence. 108 See Lidén, Gräns and Juslin (n 29) 222. See also, with regard to how the Swedish criminal justice model takes advantage of this technique, Moa Lidén, ‘Confirmation Bias in Criminal Cases’ (Doctoral dissertation, Uppsala University 2018) 175. 109 Lidén, Gräns and Juslin (n 29) 233–237. 110 On trifurcation of trials, see Irwin A Horowitz and Kenneth S Bordens, ‘An Experimental Investigation of Procedural Issues in Complex Tort Trials’ (1990) 14 Law and Human Behavior 269, 270–272. 111 Lidén, Gräns and Juslin (n 29) 223–233.

30

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

move on to discover the extent of the plaintiff’s injuries and determine damages. In this format, therefore, the decision-maker is unaware of the specifics of the outcome before they decide on negligence, and this could help mitigate hindsight bias. Trial bifurcation or trifurcation is not without its critics, however. Judges have described how it may create “a sterile trial atmosphere” devoid of “the reality of injury,” which should be part of the decision-making equation.112 Others have questioned, specifically with regard to negligence cases, whether limiting the amount of information available to judges may be unconstitutional in some jurisdictions because knowledge of the type and extent of a plaintiff’s injuries may well be necessary to prove causation.113 Mock jury experiments have considered the implications of bifurcating trials, demonstrating that defendants are more likely to prevail,114 but that it does not consistently mitigate hindsight bias.115 Oeberst and Goeckenjan consider employing trial bifurcation when it comes to expert witness reports, for instance, in medical negligence actions. To avoid hindsight bias, they suggested, the court “could provide the expert witness with only the information that was available to the defendant at the time of his or her behaviour.”116 There appear to be no experimental studies on practising judges on the effects of trial bifurcation as a means of mitigating hindsight bias. Further research would establish whether trial bifurcation or trifurcation ought to be considered and appropriately implemented. Finally, other researchers have suggested that workload and time pressures are often at the heart of the problem of intuitive, heuristic-driven judicial decision-making.117 High workload and consequent work-related stress are a common complaint in many judicial systems and may lead to errors when deciding cases.118 More appointments to the bench, improved resources and assistance, and case management efficiencies would allow judges to spend more time on cases, thereby perhaps freeing up more time to engage in system 2, rather than system 1 reasoning. Wistrich and Rachliniski suggested minimising the number of spur-of-the-moment decisions that judges must make. Pre-trial measures such as settlement conferences or pre-hearing motions may give judges a better shot at making less impressionistic and more deliberative, wellreasoned decisions.119 Other suggested measures include affording judges more time to write more judgments – a more deliberative exercise than making a spontaneous decision – or requiring judges to proceed more methodically through scripts, checklists or multifactor tests as they deliberate cases.120 112 In re Bendectin Litigation, 857 F.2d 290 (6th Cir. 1988), 315. 113 Oeberst and Goeckenjan (n 52) 277. 114 Horowitz and Bordens (n 110); Hans Zeisel and Thomas Callahan, ‘Split Trials and Time Saving: A Statistical Analysis’ (1963) 76 Harvard Law Review 1606; Brian H Bornstein, ‘From Compassion to Compensation: The Effect of Injury Severity on Mock Jurors’ Liability Judgments’ (1998) 28 Journal of Applied Social Psychology 1477; Smith and Greene (n 51). 115 Roselle L. Wissler, Katie A. Rector and Michael J. Saks, ‘The Impact of Jury Instructions on the Fusion of Liability and Compensatory Damages’ (2001) 25 Law and Human Behavior 125. 116 Oeberst and Goeckenjan (n 52) 277. 117 Wistrich and Rachlinski (n 92) 116–117. 118 See further on judges’ workload and its effects section 3.1 Work-life balance and judicial decision-making: workload, leisure and retirement. 119 Wistrich and Rachlinski (n 92) 117. 120 Ibid. 117–119. In a similar vein, a recent unpublished study by Engel and Weinshall suggested that lowering the caseload of Israeli judges had a significant impact on judicial decision-making outcomes. Judges invested

31

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Increasing awareness about heuristics and biases, improving judges’ deliberation techniques, trial bifurcation and increasing resources for judges – while all are suggested as techniques to mitigate the effects of heuristics and biases – should be rigorously pretested for their efficacy and feasibility before being implemented.121 As research grows, researchers will hopefully not just focus on testing judges’ susceptibility to heuristics and biases but also increasingly move towards devising and testing techniques to mitigate against their harmful consequences. Next, we turn our attention to a separate category of cognitive errors: those that relate specifically to how judges perform numerical evaluations in the courtroom, either during hearings or when deciding cases. 2.2 Cognitive errors in judges’ numerical decision-making Judges make numerical decisions all the time. For instance, they weigh up statistical evidence given by expert witnesses, choose the appropriate length of a sentence to match the severity of the crime, decide an appropriate award of damages in a personal injuries case and determine legal costs. Although judges may develop a sense of what is fair and appropriate when making these numerical evaluations, judging in numbers can be tricky and, like the rest of us, they can fall foul of cognitive errors. Psychology researchers explain how people’s decision-making on numbers can be clouded by cognitive errors, categorising them as ‘effects’. To briefly introduce three of these: • the anchoring effect, where someone’s judgement of a value is influenced by a preceding value; • the framing effect, the way a numerical value is presented or framed changes decision-makers’ perception of it; and • the contrast effect, the tendency to base a judgement in contrast to a comparison judgement. Researchers have investigated how these and other effects can lead to inconsistent and irrational numerical judicial decision-making by conducting archival studies on sentence lengths in criminal law trials and on awards of damages in civil law cases. Researchers have also conducted experimental studies on practising judges using hypothetical cases. Furthermore, they have explored whether interventions designed to make numerical decisions in courtrooms fairer and more consistent actually work. Such interventions include sentencing guidelines, damages caps, or damages guidelines. Some studies show that these interventions can, in fact, paradoxically work against the goals of preventing excessive sentences or damages amounts.

more resources into resolving each case, mainly leading to advantages to plaintiffs, who were more likely to win, recover more money and be reimbursed for costs. Christoph Engel and Keren Weinshall, Manna from Heaven for Judges–Judges’ Reaction to a Quasi-Random Reduction in Caseload (Max Planck Institute for Research on Collective Goods 2020). 121 Lidén and her colleagues’ research on confirmation bias is a good example of how research can inform ways to improve judicial decision-making. It presents a clear finding that bifurcating decision-making at the pretrial and substantive trial stages in criminal law cases appears to mitigate confirmation bias. Lidén, Gräns and Juslin (n 29).

32

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Judges make decisions on numbers in two main ways, either, as Helm and her colleagues helpfully categorise it, “extracting numbers from meaning” or “extracting meaning from numbers.”122 Judges extracting numbers from meaning put a number on a qualitative value – for example, converting the harm caused by a negligently inflicted injury into a monetary amount of damages. Judges extracting meaning from numbers evaluate a numerical value presented in evidence and decide whether it meets a particular legal standard – for example, deciding whether evidence on the statistical likelihood of a DNA sample match proves that the crime was committed beyond reasonable doubt. The first of these tasks, extracting numbers from meaning, is a ubiquitous one for judges.123 Damages awards should reflect the severity of the plaintiff’s injury and the defendant’s conduct. A judge meting out a sentence must weigh up the egregiousness of the criminal offender’s conduct and convert this into time in prison or a fine amount. Commentators acknowledge the vagaries and difficulties associated with converting qualitative assessments into quantitative judgments; one group of researchers described this exercise as a “largely mysterious process,”124 for instance. One Oklahoma judge suggested that sentencing can be an “overwhelming responsibility [where judges] retreat into the comforting concept that [it] is somehow the product of superhuman processes.”125 In a similar vein, US lawyer Kenneth Feinberg, reflecting on his role of awarding compensation for victims of the 9/11 terrorist attacks, suggested that the task required “the wisdom of Solomon . . . and the insight of a mystic with a crystal ball.”126 The second task, extracting meaning from numbers, is also a common feature of many judges’ daily work. To offer some examples, a judge may be required to consider complex numerical evidence from an expert witness about air pollution in a nuisance case taken against a chemical production plant. In other cases, a judge may be tasked with analysing admission rates of minoritised racial group pupils to a school accused of race discrimination, or to pore over the accounts of a company accused of breaches of company law. In these situations, judges must rely on their numeracy skills to interpret the data to make the all-important call on whether the conduct complained of meets or breaches the legal standard: for example, a breach of the duty of care in torts, or whether the accused person committed the crime beyond reasonable doubt. Judges’ abilities to interpret numbers and make sensible numerical judgements is, therefore, a measure of their quality. Judges often have aids at their disposal to help judge by numbers, particularly for extracting numbers from meaning. Sentencing guidelines, guidelines on personal injuries awards, legal standards or mandatory minimum or maximum amounts prescribed by law, guide – and sometimes compel – judges towards numerical decisions. These mechanisms 122 Rebecca K Helm, Valerie P Hans and Valerie F Reyna, ‘Trial by Numbers’ (2017) 27 Cornell Journal of Law & Public Policy 107, 109 and 111. 123 Theodore Eisenberg, Jeffrey J Rachlinski and Martin T Wells, ‘Reconciling Experimental Incoherence with Real-World Coherence in Punitive Damages’ (2001) 54 Stanford Law Review 1239, 1240. 124 Valerie P Hans, Jeffrey J Rachlinski and Emily G Owens, ‘Editors’ Introduction to Judgment by the Numbers: Converting Qualitative to Quantitative Judgments in Law’ (2011) 8 Journal of Empirical Legal Studies 1, 1. 125 See Alfred P. Murrah’s remarks in Simon Chester, ‘Sentencing as a Human Process by John Hogarth: An International Review Symposium’ (1972) 10 Osgoode Hall Law Journal 233, 257. 126 Kenneth R Feinberg, What Is Life Worth?: The Inside Story of the 9/11 Fund and Its Effort to Compensate the Victims of September 11th (Public Affairs 2005) 144.

33

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

are designed, at least in principle, to make judges’ numerical evaluations fairer and more consistent. They can be categorised as follows: • laws that prescribe qualitative factors for judges to consider when making numerical decisions; • guidelines on numerical values; and • laws that prescribe numerical values. To take the first of these – laws that prescribe qualitative factors for judges to consider when making numerical assessments in particular areas of law – for instance, a judge in England and Wales deciding on an amount of contributory negligence must apply s1(1) of the Law Reform (Contributory Negligence) Act 1945. It prescribes that the damages recoverable shall be reduced “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”127 This qualitative guidance is not particularly prescriptive. One would hope a judge will be “just and equitable” in making any decision notwithstanding a statutory obligation to do so.128 In other circumstances, qualitative factors prescribed by law to guide quantitative assessments are more specific and itemised. For example, the Irish Defamation Act 2009 sets out a list of non-exhaustive factors a judge must consider when deciding an award of general damages for defamation. These include, for instance, “the nature and gravity of any allegation in the defamatory statement concerned” and “the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement.”129 Although the legislation requires judges to consider such factors, they may wonder how precisely to convert these qualitative factors into monetary values. In common law systems, precedent rulings may also serve a similar purpose, describing factors that judges ought to consider when making quantitative decisions in future cases. Sometimes, judges are aided by guidelines that suggest specific amounts for specific types of harm, for instance, suggested monetary amounts or value ranges for general damages for specific types of personal injury.130 Sentencing guidelines serve a similar purpose in the criminal law context, varying considerably in sophistication and levels of prescription. Some sentencing guidelines may originate through common law precedent. In contrast, others may be the product of government policy development, prescribing rigorous processes involving matrices of factors for judges to consider and suggesting sentencing ranges when that process is complete.131 127 Section 1(1) of the Law Reform (Contributory Negligence) Act 1945. 128 The same criteria apply to an Irish judge assessing contributory negligence. See section 34(1) of the Civil Liabilities Act 1961: where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant [emphasis added].

129 S31(4) Defamation Act 2009. 130 See, for example, in England and Wales, the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases, in Northern Ireland, the Judicial Studies Board’s Guidelines for the Assessment of General Damages in Personal Injury, in Ireland, General guidelines as to the amounts that may be awarded or assessed in personal injury claims – Book of Quantum. 131 An example of the application of a sentencing matrix is the Basic Sentencing Matrix that applies to sentencing decisions in the state of Pennsylvania; see Chapter 303 of the Pennsylvania Code.

34

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

In other contexts, laws prescribe amounts or parameters that judges are obliged to follow when converting qualitative assessments into numbers. In a criminal law context, laws set out mandatory minimum or maximum sentences for certain types of offences. In civil law contexts, caps may be set on awards of general damages. To offer one example, there is a legally prescribed cap on damages for defamation in Austria.132 These three mechanisms – legally prescribed qualitative factors, guidelines on amounts, and legally prescribed amounts – are designed either to guide judges in the process of deciding on a numerical value, or they are designed to oblige judges to deliver particular quantitative results. All ostensibly have the same objective: to make judges’ numerical decisions less arbitrary and more consistent. While they may often achieve this, on some occasions they can have the opposite effect, causing less rational judicial decisionmaking.133 How these mechanisms are designed can, therefore, be the difference between consistency and fairness on the one hand and rough justice on the other. Before we turn to research investigating the effects that can cause judges to make errors when judging on numbers, consider the following scenarios: • Scenario 1: One Sunday evening, a judge reads a story in the newspaper about a cyclist who was awarded damages of €950,000 to compensate for an accident caused by a bus driver’s negligent driving. The following morning, the judge is assigned a trial with similar facts: a cyclist injured in an accident caused by a truck driver’s allegedly negligent driving. The evidence suggests negligence and the judge is inclined to find against the truck driver and award damages. Weighing up what would be an appropriate award of damages, the newspaper story and the figure of €950,000 comes readily to the judge’s mind. • Scenario 2: A criminal law judge presides over several sentencing hearings, one after another in the same week. The judge sentences the first two defendants with substantial prison time for utterly reprehensible crimes: the first, a violent rape, the second a vicious assault that caused brain injuries to the victim. On it goes; the judge hears several more awful crimes, one after another, until the final defendant of the week appears before the court. The facts and circumstances are in stark contrast to the preceding cases; an 18-year-old first-time offender who had opportunistically stolen cash from a local shop to help pay for medical care that an impecunious and terribly sick relative desperately needed. Struck by the remarkable contrast between the moral bankruptcy of the defendants earlier in the week and the defendant in this case, the judge mulls over whether to let the defendant off without a custodial sentence. • Scenario 3: Two judges hear two coincidentally near-identical medical negligence cases in separate courtrooms on the same day, each alleging that surgeons negligently performed surgery and claiming damages. Whether negligence occurred hinges on what may have caused the bad post-surgery outcome: negligent surgery, or an unfortunate vicissitude, unavoidable despite best medical practice. In the first court, a medical expert witness explains that the statistical likelihood of the surgery going wrong through no fault on the part of the surgeon is 1 in 132 Article 6(1) of the Mediengesetz (Media Law). 133 On consistency of judicial approach, see generally, Cass R Sunstein and others, ‘Predictably Incoherent Judgments’ (2001) 54 Stanford Law Review 1153.

35

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

80 surgeries. In the second court, another medical expert witness describes the same level of risk, but in a different way: the likelihood of the surgery going wrong through no fault on the part of the surgeon is in 0.0125 cases. The two judges meet the following week, only to realise the remarkable coincidence of hearing near-identical cases. Each judge is surprised to hear that they came to entirely different conclusions. They describe to each other how the medical expert witness in their respective cases explained the statistical likelihood of a no-fault complication during surgery. They wonder if the divergent results they came to had something to do with how the statistic was framed. In Scenario 1, it seems that the judge may have been drawn to an extraneous number – the amount of the award of damages in the case in the newspaper – as an anchor when deciding the case, an example of the anchoring effect. In Scenario 2, the judge was struck by the remarkable contrast between the relatively inoffensive nature of the case compared to the previous cases that week. The contrast weighed heavily when the judge decided the case, an example of the contrast effect. In Scenario 3, the different ways the statistic about the likelihood of no-fault complication during surgery were framed maybe influenced the judges to make different decisions, an example of the framing effect. A vast number of archival and experimental studies have demonstrated the remarkable power of these effects on numerical decision-making, both generally and in judicial decision-making. At a broader level, researchers have analysed the consistency of judges’ numerical decisionmaking; a much sought after virtue in judicial systems.134 However, despite this ideal, researchers have often demonstrated that judging by numbers is plagued with inconsistency, “itself . . . a form of injustice,” according to former President of the UK Supreme Court Tom Bingham.135 From the 1890s onwards, researchers have investigated and revealed inconsistencies and irrationalities in judges’ numerical decisions, predominantly on disparities in sentencing, through archival studies reviewing sentencing decisions.136 In an innovative study in 1971, Hogarth combined qualitative analyses of judicial attitudes with quantitative analyses of sentencing data by interviewing magistrate judges in Ontario about their background and penal philosophy and matching them to their actual sentencing decisions.137 He demonstrated that their sentencing behaviour was significantly associated with their attitudes. In 1977, Austin and Williams undertook the first experimental study on sentencing disparities, asking 47 Virginia judges to deliver sentences in five hypothetical cases.138 He found significant 134 Sunstein and his colleagues note, for instance, that “coherence in law is a widely shared ideal” and “almost everyone hopes for a legal system in which the similarly situated are treated similarly.” Ibid. 1153. 135 Tom Bingham, ‘The Sentence of the Court’ in The Business of Judging: Selected Essays and Speeches: 1985–1999 (Oxford: Oxford University Press 2011) 310. Inconsistency also has consequences for the legal profession: a litigation lawyer’s reputation rests to some degree on successfully predicting case outcomes. See Jane Goodman-Delahunty and others, ‘Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes’ (2010) 16 Psychology, Public Policy, and Law 133, 134. 136 For examples of early studies, see Francis Galton, ‘Terms of Imprisonment’ (1895) 52 Nature 174; 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. 137 Hogarth sought the views of 71 of Ontario’s 83 magistrate judges; see John Hogarth, Sentencing as a Human Process (University of Toronto Press 1971). 138 William Austin and Thomas A Williams III, ‘A Survey of Judges’ Responses to Simulated Legal Cases: Research Note on Sentencing Disparity’ (1977) 68 Journal of Criminal Law and Criminology 306.

36

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

variation in the lengths of sentences handed down for the same cases. Since then, researchers have turned their attention to identifying and investigating specific effects that may explain inconsistencies and irrationalities in numerical decision-making by judges. The first to be considered here – the anchoring effect – has probably received more attention than any other in this context. 2.2.1 Anchoring effect The anchoring effect occurs when someone’s judgement of a value is influenced by a preceding value, an anchor.139 When making numerical decisions, people may rely on an anchor, a number that is available to them that acts as a reference point for the decision they are about to make.140 Although many anchors are uncontroversial, decision-making can be clouded by over-reliance on an anchor that may be irrelevant to the decision at hand or that is arbitrary in some other way.141 There are different theoretical accounts for anchoring. On one account, the anchoring effect occurs because a decision-maker insufficiently adjusts from the initial anchor, failing to put enough effort into adjusting away from it out of cognitive laziness.142 A second account is that anchors affect the focus of people’s attention, and consequently their judgement.143 For instance, put a ludicrously high anchor price for a category of a product – say a house in a particular neighbourhood – to a consumer, and they may reject it, but the high anchor nevertheless leads them to recall examples of other high-priced products when making an evaluation.144 A third account is called numeric priming, that anchoring is rather superficial and purely numeric in nature.145 Here the decision-maker responds purely to a number. The value of the anchoring number is the very thing that causes anchoring, rather than the context. Whatever may be the case with respect to the competing theories behind the anchoring effect, it is one of the most reliable and robust findings of experimental psychology, and

139 For reviews of the anchoring effect, see Adrian Furnham and Hua Chu Boo, ‘A Literature Review of the Anchoring Effect’ (2011) 40 The Journal of Socio-Economics 35; Štěpán Bahník, Birte Englich and Fritz Stack Rüdiger, ‘Anchoring Effect’ in Rüdiger F Pohl (ed), Cognitive Illusions: Intriguing Phenomena in Judgement, Thinking and Memory (Psychology Press 2016). 140 Jeffrey J Rachlinski, Andrew J Wistrich and Chris Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (2015) 90 Indiana Law Journal 695, 695. 141 In a classic experiment on the anchoring effect published in 1974, Tversky and Kahneman asked participants whether the percentage of African nations in the United Nations was higher or lower than an arbitrary percentage determined by spinning a wheel of fortune (which either landed on 10% or 65%). Participants’ estimates assimilated towards the number that they spun on the wheel. Tversky and Kahneman (n 8). Quattrone and his colleagues also demonstrated the same effect by asking participants to provide an estimate of the average temperature in San Francisco. Participants gave higher estimates of the average temperature if first asked to indicate whether it was higher or lower than 558 degrees, an incongruously high number. George A Quattrone and others, ‘Explorations in Anchoring: The Effects of Prior Range, Anchor Extremity, and Suggestive Hints’ (1984) Unpublished manuscript, Stanford University. 142 Tversky and Kahneman (n 8) 1128. See also Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 140) 703. 143 Gretchen B Chapman and Eric J Johnson, ‘Anchoring, Activation, and the Construction of Values’ (1999) 79 Organizational Behavior and Human Decision Processes 115. 144 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 140) 704. 145 Bahník, Englich and Stack Rüdiger (n 139) 231.

37

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

it plays a part, for better or worse, in courtroom decision-making.146 Archival studies on judicial outcomes and experimental studies on practising judges demonstrate how the anchoring effect may have an insidious influence on their decisions. Experimental studies, in particular, sometimes present troubling findings, showing how irrelevant anchors affect judicial decision-making. For example, through case vignettes, researchers have shown how plaintiffs referring to ludicrously high compensation amounts that they saw on reality television shows, journalists’ questions, numbers contained in the name of a litigant, and even dice rolls and heckling in the courtroom can all affect judges’ decisions in hypothetical legal decisions. Furthermore, numerical values that flow from different rules or guidelines permitted within the court system – prosecutors’ sentencing demands or damages caps, for instance – have also been shown to act as anchors that can adversely affect judicial decision-making. Turning to examples of experimental research, Guthrie, Rachlinski and Wistrich conducted an experiment on 82 US administrative law judges, asking them to determine compensation in a hypothetical case about an employee who had been discriminated against by her line manager.147 One group of judges was told that the claimant employee had mentioned during the hearing that she had seen that $415,300 had been awarded in a case similar to hers on a court reality television show. The other group of judges did not receive this additional information. Judges who heard about the television show award – which was both unfathomably high and an entirely irrelevant consideration – nevertheless treated it as an anchor, awarding an average amount of $58,755, some $23,267 more than the average amount of $35,488 awarded by the judges who did not hear about it. Even though it should not have, the unrealistically high and irrelevant anchor had a substantial influence on the judges’ decisions. The same researchers demonstrated the same effect on 106 US federal magistrate judges in a hypothetical case about a catastrophic road traffic accident. In the hypothetical case, the defendants argued to strike the case out on jurisdictional grounds that the case was not worth a meagre amount of $75,000. Unrealistic, and clearly incorrect, this low-ball anchor nevertheless influenced judges who heard of it in their ultimate assessment of damages.148 As the authors noted, “[T]he moral of these anchoring studies seems to be “ask, and ye shall receive.”149 In another study, Rachlinksi and Wistrich starkly demonstrated the influence on judges of an entirely irrelevant numerical value that nevertheless seemed to have a subconscious effect on their judging. Municipal judges from Ohio, Texas and Canada were asked to decide on the amount of a fine against a nightclub that had violated a noise ordinance to appropriately reflect the degree of disruption and to deter future offences. For half of the judges, the nightclub was called Club 58; for the other half, the club was called Club 11,866. The only difference was the number in the name of the nightclub. The median fine amounts are set out in the table below.150 146 Daniel Kahneman, Thinking, Fast and Slow (Macmillan 2011) 119. For an overview of the different theoretical accounts of the anchoring effect, see Bahník, Englich and Stack Rüdiger (n 139) 229. 147 Guthrie, Rachlinski and Wistrich, ‘The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice’ (n 76). 148 Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 790. 149 Ibid. 789–790. 150 Unpublished manuscript by Rachlinski and Wistrich, referred to in Jeffrey J Rachlinski and Andrew J Wistrich, ‘Judging the Judiciary by the Numbers: Empirical Research on Judges’ (2017) 13 Annual Review of

38

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Judges’ State

Median fine – Club 58

Median fine – Club 11,866

Ohio

$500

$1,000

Texas Canada

$500 $2,000

$1,500 $3,750

The name of the nightclub – an entirely irrelevant anchor – seemed to have a remarkable, subconscious bearing on the fine amounts that the judges decided upon across all three jurisdictions. Englich and Mussweiler point out that judges can be exposed to all sorts of potential irrelevant anchors in a sentencing context; the mass media, visitors to the court hearings or the private opinion of the judge’s partner, family or neighbours are all possible sources of sentencing demands.151 In one experiment, they demonstrated the impact journalists’ commentary might have on sentencing outcomes. The researchers exposed 23 experienced German judges and 19 experienced German prosecutors to anchors in the form of one of two questions from a journalist: either “Do you think the sentence for the defendant in this case will be higher or lower than 1 year?” (the low anchor condition), or “Do you think the sentence for the defendant in this case will be higher or lower than 3 years?” (the high anchor condition). Again, the results demonstrated the anchoring effect. The mean of sentences in the low anchor condition was 25.43 months, while the mean of sentences in the high anchor condition was 33.38 months.152 The journalist’s questions seemed to have a significant impact on the judges’ decisions. In another experiment, albeit on junior lawyers as participants rather than judges, sentence lengths in a hypothetical rape case were affected by a partisan heckler in the courtroom. In one condition, the partisan heckler cried out “Give him five years!” while in the other condition, the partisan heckler cried out “Set him free!” Again, the results suggested a clear anchoring effect, this time caused by a heckler in the courtroom.153 Whether these results would transfer to real courtroom settings is, of course, a matter of speculation. Nevertheless, the consistent findings from studies across different jurisdictions and in many different contexts suggest that this is plausible. What about numbers that are legitimately put to judges? Litigation and court rules are replete with numerical values that may influence numerical decisions. Parties requesting amounts of damages in their submissions, statutory damages caps, insurance policy limits, amounts mentioned during settlement talks, narrowly tailored sentencing guidelines and statutory multipliers can all serve as anchors in judicial decision-making.154 That judges rely on and consider specific numerical values put to them when making a numerical Law and Social Science 203, 215. See further, Jeffrey J Rachlinski, ‘Intuition, Deliberation and Judicial Decision Making,’ Lecture delivered at Cornell Law School as part of the Behavioral Decision Research Workshop Showcase on 8 September 2015. 151 Birte Englich, Thomas Mussweiler and Fritz Strack, ‘Playing Dice with Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making’ (2006) 32 Personality and Social Psychology Bulletin 188, 194. 152 Ibid. 191. 153 Birte Englich, ‘Geben Sie Ihm Doch Einfach Fünf Jahre!’ (2005) 36 Zeitschrift für Sozialpsychologie 215. 154 Eisenberg, Rachlinski and Wells (n 123) 22–23.

39

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

decision is not tantamount to irrational or poor decision-making. It is appropriate that judges should reflect on sentencing guidelines, for instance, as they are – in effect – anchors specifically designed to afford certainty and predictability in judicial outcomes. However, some experimental studies have shown that judges may over-rely on such guidelines, instead of properly considering the specifics of the case. Two studies by Englich and her colleagues demonstrated how prosecutors’ demands act as an anchor when making sentencing decisions. In the first small-scale study, Englich and Mussweiler asked 19 relatively inexperienced German judges to decide a hypothetical case of alleged rape.155 Half of the participants heard that the prosecutor demanded a two-month prison sentence (the low anchor) while the other half heard that the prosecutor demanded 34 months (the high anchor). Judges in the low anchor condition gave a median sentence of 18.78 months while judges in the high anchor condition gave a median sentence of 28.70 months, a difference of nearly ten months.156 The higher demand in the high anchor condition drew judges substantially towards a higher sentence. In the second study, Englich, this time with Mussweiler and Strack, further tested for the anchoring effect in sentencing decisions, using German judges and legal professionals as participants.157 Remarkably, the researchers demonstrated that even a game of chance affected sentencing decisions.158 They asked 52 early-career judges to determine an appropriate sentence for a serial shoplifter. In advance, participants were asked to throw a pair of dice and were told to consider the sum of the two numbers displayed to be the hypothetical sentencing demand in months of a hypothetical prosecutor in the case. Unbeknownst to the participants, the dice were loaded to land on lower or higher numbers, thereby creating lower or higher anchors. Even though the participants would have appreciated that the resulting sentencing demand was a matter of chance by the roll of dice, it nevertheless had a bearing on their sentencing decisions. Those exposed to the high anchor gave higher final sentences (a mean of 7.81 months) than those confronted with a low anchor (a mean of 5.28 months).159 Judges were susceptible to the anchoring effect simply by the roll of dice. More recently, Rachlinski, Wistrich and Guthrie published another multifaceted experimental study on the anchoring effect, this time to investigate how specific rules and processes within judicial systems may inadvertently serve as anchors that affect judicial decisions.160 They tested whether the unit of value in which sentences are meted out (whether they were described in terms of months or in years) affected sentencing outcomes, whether damages caps unwittingly served as anchors drawing damages awards up towards them, and whether the order in which evidence is presented may have an effect. Their findings revealed how rules and processes used day-to-day in courtrooms can cause the anchoring effect, possibly affecting judicial outcomes.

155 Birte Englich and Thomas Mussweiler, ‘Sentencing under Uncertainty: Anchoring Effects in the Courtroom’ (2001) 31 Journal of Applied Social Psychology 1535, 1538. 156 Ibid. 1540. 157 Englich, Mussweiler and Strack (n 151). 158 Ibid. 188. 159 Ibid. 194. 160 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 22).

40

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

To turn to the first of these experiments, the researchers tested whether the unit of value in which sentences were meted out, either in months or in years, affected sentence lengths. They asked 135 experienced US judges to determine a sentence for a defendant who had pleaded guilty to manslaughter.161 Half the judges were asked how many years the defendant should serve in prison while the other half were asked how many months they should serve. The anchor, not a specific numerical value but rather the scale in which the numerical value was presented, appeared to have a significant effect. Judges that sentenced in years meted out an average sentence of 9.7 years compared to an average of 5.5 years among those who sentenced in months. The different units of value, therefore, appeared to have a very strong effect on sentencing outcomes.162 The researchers suggested that judges who normally sentence in years may have made inadequate upward adjustments when asked to sentence in months. They may have intuitively scaled up from years to months, rather than deliberately made an effort to multiply what they deemed an appropriate sentence in years by twelve in order to get the product in months.163 Whether this is the precise explanation for the considerable discrepancy in sentencing, the experiment suggests that the unit of value used for sentencing has ramifications. Scale appears to matter. The researchers do acknowledge, however, that judges may become accustomed to a new scale over time.164 In a second experiment as part of this study, the researchers investigated whether damages caps could unintentionally serve as anchors, despite their aim of preventing excessive awards. Are judges drawn towards awarding amounts on or near a cap where they otherwise would have opted for a lower amount? Building on earlier evidence that mock jurors treated damages caps as anchors, the researchers asked 115 Canadian trial judges and 65 newly elected trial judges from New York State to determine compensation for pain and suffering in a hypothetical road traffic accident case.165 Half of the judges received extra information about a damages cap. For the Canadian judges, they were reminded of a damages cap that actually applied in their jurisdiction: between $332,236 and $367,160.166 For the New York judges, they were told of a hypothetical rather than an actual damages cap to the amount of $750,000. The median award among Canadian judges was $85,000 among those who were reminded of the cap, versus $57,500 among those who were not so reminded. The median award among New York judges who learned of the hypothetical damages cap was $250,000 versus $100,000 among those who did 161 The judges were told to disregard maximum sentences available in their own jurisdiction. 162 The authors suggest that this is an example of scale distortion, a theory of anchoring proposed by Shane Frederick and Daniel Mochon, ‘A Scale Distortion Theory of Anchoring’ (2012) 141 Journal of Experimental Psychology: General 124. 163 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 140) 717. The researchers offer previous research experiments demonstrating this explanation, citing Tversky and Kahneman (n 8) 1128. 164 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 140) 717. 165 Ibid. 718–724. On earlier studies on mock jurors, see Michael J Saks and others, ‘Reducing Variability in Civil Jury Awards’ (1997) 21 Law and Human Behavior 243; Verlin B Hinsz and Kristin E Indahl, ‘Assimilation to Anchors for Damage Awards in a Mock Civil Trial’ (1995) 25 Journal of Applied Social Psychology 991; Jennifer K Robbennolt and Christina A Studebaker, ‘Anchoring in the Courtroom: The Effects of Caps on Punitive Damages’ (1999) 23 Law and Human Behavior 353. 166 This difference in damages cap amounts is attributable to data collection that took place over a number of years from 2010 to 2013 during which time the damages cap increased.

41

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

not. In both instances, the researchers found a large difference in median awards seemingly attributable to the anchoring damages cap. “Telling judges not to award more than the cap led them to award more than when no reference was made to that cap,” they observed.167 The effect was perhaps all the more remarkable for the Canadian judges, all of whom were presumably at least aware of the existence of the cap. However, reminding them of the precise cap amount seemed to be the critical factor.168 The effect arose from increasing the salience of the cap. Of course, in a real courtroom and perhaps with more time available, Canadian judges would likely remind themselves of the damages cap, and it would therefore always be salient. Nevertheless, the judges should not have been influenced by any reference to the damages cap, whatever its source or its salience.169 The third issue that Rachlinski, Wistrich and Guthrie investigated was whether the order in which judges decided cases affected outcomes. Would giving a low sentence for a less severe offence act as a downwards anchor when sentencing in the next case for a more serious offence, and, vice versa? Running three separate experiments on 71 newly appointed US military judges, 39 experienced US judges, and 62 experienced Dutch judges, the researchers found that the order in which judges heard cases generally had an impact on sentencing outcomes.170 In each experiment, judges were asked to give sentences in two cases, one for a more serious crime, the other for a less serious crime. Some judges heard the more serious crime first, while others heard the less serious crime first. For example, the US military judges were asked to hear a manslaughter case (the more serious crime) and an assault case (the less serious crime), with half of them hearing the cases in one order, the other half hearing them in the opposite order. Those who heard the more serious manslaughter case first handed down longer sentences in the subsequent less serious assault case (1.61 years) than those who heard the assault case first (1.15 years). Vice versa, judges who sentenced the assault case first handed down shorter sentences in the manslaughter case (6.65 years) than those who heard the manslaughter case first (8.52 years).171 The order in which the judges heard the cases had a significant effect, with the sentence in the first case having an anchoring effect on the sentence in the second case. All told, all of the experimental studies suggest that the anchoring effect affects judges’ decision-making, sometimes profoundly so. Furthermore, the trio of experiments by Rachlinski, Wistrich and Guthrie demonstrate how court procedures and mechanisms – even those designed to make numerical decision-making fairer and more consistent – can have the opposite effect. However, we must be cautious how much we extrapolate from experiments alone that are specifically designed to cast a spotlight on the anchoring effect.172 That said, complementing experimental research, archival studies analysing actual court decisions also suggest that the anchoring effect can affect real and not just hypothetical 167 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 84) 723. 168 “The judges who were not reminded of it were likely not thinking about it,” the researchers suggested. Ibid. 169 Ibid. 724. 170 Ibid. 726. 171 Ibid. 730. 172 Chang and his colleagues note, for instance, that “[w]hile ingenious design of experiments can clearly distill elements of decision-making which are solely due to the influence of anchoring, they are only hypothetical cases . . . many experiments are designed in such a way that the subjects can easily fall into the ‘trap’ of anchoring.” Yun-chien Chang, Kong-Pin Chen and Chang-Ching Lin, ‘Anchoring Effect in Real Litigation: An Empirical Study’ (2016) University of Chicago Coase-Sandor Institute for Law & Economics Research Paper 3.

42

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

judicial decisions. Researchers have demonstrated, for example, how erroneously calculated sentencing guidelines act as anchors, how judges’ decisions on lawyers’ fees are tethered to the size of court awards without justification and how judges over-rely on suggested sentences from prosecutors or probation officers. Bushway and his colleagues analysed the effect that erroneously calculated sentencing guidelines had on judges’ actual sentencing decisions in Maryland circuit courts in the US.173 In Maryland, prosecution and defence lawyers collaborate to suggest an appropriate sentence to a judge. As part of this process, they perform calculations based on a matrix that combines an “offense score” that reflects attributes of the instant offence with an “offender score” that reflects the offender’s criminal history and other attributes. Sometimes the lawyers get this calculation wrong in that the facts of the case are not consistent with the final sentence recommendation. The researchers isolated instances where lawyers issued erroneous, miscalculated sentencing scores to the judge, and investigated whether these affected judges’ ultimate sentencing decisions. Where lawyers erroneously suggested lesser sentences for certain violent offences, judges were drawn towards these low anchors when sentencing. Initial mistakes – the lawyers’ miscalculations – were compounded by further mistakes – the judges’ susceptibility to the anchoring effect in their ultimate sentencing decisions. Eisenberg and Miller investigated whether the anchoring effect influenced judges’ decisions on lawyers’ fees by analysing data on all US state and federal class actions with reported decisions on lawyers’ fees between 1993 and 2002.174 When determining lawyers’ fees, a judge should be guided by what a reasonable number of hours and a reasonable hourly rate would be for the case at hand. The researchers in fact found that the amount that the lawyers’ clients won was overwhelmingly the most significant factor in determining the lawyers’ fees – the judges seemed to be tethered to this irrelevant anchor in their numerical evaluation.175 Other studies show that judges seem drawn to amounts suggested by other court actors, for example, prosecutors or probation officers recommending sentences.176 This may not be surprising; indeed, it is appropriate for judges to at least consider what prosecutors and probation officers say. The issue is whether judges sometimes over-rely and slavishly follow recommendations, rather than treat them as one factor of many in their overall decision. Leifker and Sample found, for instance, that 79% of sentences matched the exact recommendation prepared by probation officers in a county in California between 2004 and 2006.177 Through a complementary interview study, the researchers concluded that a courtroom “workgroup” existed that engaged in “a very convoluted process of sentencing

173 Shawn D Bushway, Emily G Owens and Anne Morrison Piehl, ‘Sentencing Guidelines and Judicial Discretion: Quasi-Experimental Evidence from Human Calculation Errors’ (2012) 9 Journal of Empirical Legal Studies 291. 174 Theodore Eisenberg and Geoffrey P Miller, ‘Attorney Fees in Class Action Settlements: An Empirical Study’ (2004) 1 Journal of Empirical Legal Studies 27. 175 Ibid. 27. 176 One of the earlier archival studies on this issue was undertaken by Ebbe B Ebbesen and Vladimir J Konečni, ‘The Process of Sentencing Adult Felons’ in The Trial Process (Springer 1981). 177 Denise Leifker and Lisa L Sample, ‘Do Judges Follow Sentencing Recommendations, Or Do Recommendations Simply Reflect What Judges Want to Hear?: An Examination of One State Court’ (2010) 33 Journal of Crime and Justice 127, 138.

43

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

in which several actors are perceived as influencing sentencing standards.”178 The strong association between probation officers’ sentencing recommendations and judges’ decisions showed that judges seemed to heavily rely on the decisions of their colleagues in the probation office, for better or worse. Studies from other jurisdictions present similar findings. Garrido and Alonso presented evidence that Spanish judges appeared to be anchored by prosecutors’ recommendations in their sentencing decisions, albeit only in serious crime cases.179 The researchers speculated that this might be owing to judges’ reluctance to deviate from suggested sentences in these weighty cases, more readily handing over responsibility for the decision to the prosecutor. In contrast, in lesser crime cases, judges seemed more comfortable with assuming all responsibility.180 Kim and Chae identified a similar trend in South Korean sexual crime cases. Comparing sentences in 2,273 cases to corresponding prosecutors’ sentence recommendations, they found that one-month increases in prosecutors’ recommended sentences had a more robust influence in the most serious crimes (judges increased sentences by 0.78 months) than in the least serious crimes (judges only increased sentences by 0.25 months).181 Again, the researchers suggested that judges, when handing down sentences in more serious crimes, tended to divest responsibility by more readily accepting the sentence recommended by the prosecutor.182 To gain further, more nuanced understanding of the anchoring influence of other court actors, Fariña and her colleagues coded the language in 555 sentencing decisions made by judges in Galicia, Spain, to see whether their reasoning differed in cases where they followed the public prosecutor’s sentencing request against cases where they did not.183 The researchers coded statements in judgments as indicating more deliberative or more intuitive reasoning. They found that where judges anchored to the prosecutor’s recommendation, the language in judgments tended to be less information-based and more intuition-based. Where judgments were not anchored to the prosecutor’s recommendation, judges tended to use more deliberative language and reasoning that was more factorientated, more legally justified and causally guided.184 The researchers concluded that where judges appeared more systematic and information-based in the language used in their judgments, this correlated with reduced susceptibility to the anchoring effect of the prosecutor’s recommendation.

178 Ibid. 146. 179 Eugenio Garrido and Carmen Herror Alonso, ‘Influence of the Prosecutor’s Plea on the Judge’s Sentencing in Sexual Crimes: Hypothesis of the Theory of Anchoring by Tversky and Kahneman’ in Santiago Redondo and others (eds), Advances in Psychology and Law: International Contributions (Walter de Gruyter 2011) 215. In this study, the researchers investigated anchoring effects across a range of sexual crime cases ranging from high severity (rape, sexual offences against minors) to relatively low severity (attempted rape). 180 Santiago Redondo and others, Advances in Psychology and Law: International Contributions (Walter de Gruyter 2011) 223. 181 Jungwook Kim and Chae Subok, ‘Anchoring Effect of the Prosecutor’s Demand on Sentence: Evidence from Korean Sexual Crime Cases’ 39 KDI Journal of Economic Policy 1. 182 Ibid. 15. 183 Francisca Fariña, Ramón Arce and Mercedes Novo, ‘Anchoring in Judicial Decision Making’ (2003) 7 Psychology in Spain 56. 184 Ibid. 61.

44

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

That judges are drawn towards prosecutors’ sentencing recommendations is understandable, perhaps even a viable and appropriate strategy, because prosecutors are legal experts who have studied the case at hand. Their recommendations are valid, valuable information.185 However, tallying the persistent findings of the anchoring effect affecting judges in experimental studies alongside archival evidence showing judges’ frequent assimilation to amounts suggested by other courtroom actors, an alternative, more uneasy conclusion perhaps emerges. Judges’ numerical decisions may not entirely be the product of careful, deliberate consideration of each case’s facts; instead, the anchoring effect may – at least some of the time – be a substantial, or even overriding factor in many instances. While amounts suggested by prosecutors or probation officers can certainly be informative given their roles and expertise, the same cannot as easily be said for amounts suggested by litigants themselves, particularly where they are clearly off the mark. Recall Guthrie, Rachlinski and Wistrich’s experimental finding that a plaintiff’s irrelevant and outlandish compensation demand based on a television show seemed to have an anchoring effect on judges’ rulings on damages.186 Some recent archival research suggests a similar dynamic may play out in the real world. Chang and his colleagues demonstrated that in Taiwanese personal injuries cases, judges were drawn to plaintiffs’ demands for compensation when determining damages for pain and suffering.187 Another working paper by the same lead author and other colleagues demonstrated the same effect where judges had to determine the rent value of land: in the absence of objective measures of land values, plaintiffs’ assertions as to the correct values acted as anchors for judges.188 Interestingly, the more experienced a judge was, the less susceptible they were to the plaintiffs’ assertions, a dynamic that may be worth exploring in future research.189 Whatever may be the case with respect to experienced court actors such as prosecutors and probation officers holding sway, Chang and his colleagues’ studies on how plaintiffs’ demands can anchor judges’ decisions, coupled with Guthrie, Rachlinski and Wistrich’s earlier experimental findings, are perhaps more worrying. This research is at an early stage, but initial results from this archival research suggest that Guthrie, Rachlinski and Wistrich’s assertion that “ask, and ye shall receive” may indeed be true.190 Given the apparent prevalence of the anchoring effect on judicial decision-making in the research findings, measures to combat its harmful consequences should be considered and implemented. Interventions designed to curb the anchoring effect in judging are discussed later in this chapter.191 185 Englich and Mussweiler (n 155) 1541. Although in some instances they may be given too much weight. In Japan, for example, where the conviction rate in criminal law cases is extremely high, some scholars argue that too much power is afforded to prosecutors. See Muraoka Keiichi and Murai Toshikuni, ‘Order in the Court: Explaining Japan’s 99.9% Conviction Rate’ (nippon.com) accessed 17 July 2020. 186 Guthrie, Rachlinski and Wistrich, ‘The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice’ (n 76). 187 Yun-chien Chang and others, ‘Pain and Suffering Damages in Personal Injury Cases: An Empirical Study’ (2017) 14 Journal of Empirical Legal Studies 199. 188 Chang, Chen and Lin (n 172). 189 Ibid. 36–37. On judges’ experience, and differences in judicial decision-making, see section 4.3 Judges’ age and experience. 190 Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 789–790. 191 See section 2.2.6 Combatting errors in judges’ numerical decision-making.

45

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

2.2.2 Contrast effect Human judgement is profoundly sensitive to context.192 People make decisions relative to surrounding factors. For example, a product will seem more attractive to a consumer if surrounded by less attractive products, and less attractive if surrounded by more attractive products. An estate agent may show a potential buyer a poor-quality property before showing them a better property in order to make the latter seem more attractive.193 Recall Scenario 2 described earlier in the chapter. The judge, weighing up how to sentence an 18-year-old first-time offender for theft, was struck by the contrast that the case presented against a background of other cases about much more heinous crimes, possibly nudging the judge towards a more lenient sentence. This scenario is an example of the contrast effect: the tendency to base a judgement in contrast to comparison judgement(s), even though they should be decided independently of each other. The contrast effect can affect decisions because, as Kelman and his colleagues put it, “[T]he same option is evaluated more favourably in the presence of a similar option that is clearly inferior to it.”194 The contrast effect produces the opposite result to the anchoring effect: rather than an initial value drawing a subsequent value judgement to it, where the contrast effect occurs, an initial value pushes a subsequent value judgement away from it.195 Does the contrast effect affect judicial decision-making? Although there are far fewer studies than there are on the anchoring effect, there is some limited empirical evidence employing both archival and experimental methodologies to suggest that the contrast effect affects judicial outcomes.196 Leibovitch’s study analysing the sentencing decisions of judges in Pennsylvania over a 12-year period is the only archival study directly investigating the contrast effect on judicial decision-making. She starts by asking an important, yet under-investigated question: “[I]s the outcome of a particular case influenced by how that case fares in comparison to the other cases in a judge’s caseload?”197 She showed that judges who generally dealt with a caseload of predominantly serious crime cases tended to be much more lenient when sentencing on the rare occasions less serious cases came before them, when compared to other judges whose caseloads predominantly comprised less serious cases. The difference was considerable – a remarkable 25% disparity in the length of sentences – leading Leibovitch to conclude that the contrast effect seemed to be at play, as a result of variation in judges’ caseloads.198

192 Jeffrey J Rachlinski and Forest Jourden, ‘The Cognitive Components of Punishment’ (2002) 88 Cornell Law Review 457, 459. 193 Itamar Simonson and Amos Tversky, ‘Choice in Context: Tradeoff Contrast and Extremeness Aversion’ (1992) 29 JMR, Journal of Marketing Research 281, 281. 194 Mark Kelman, Yuval Rottenstreich and Amos Tversky, ‘Context-Dependence in Legal Decision Making’ (1996) 25 The Journal of Legal Studies 287. 195 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 84) 725. The differences and conflicting impacts of anchoring and contrast effects are explained in Muzafer Sherif, Daniel Taub and Carl I Hovland, ‘Assimilation and Contrast Effects of Anchoring Stimuli on Judgments’ (1958) 55 Journal of Experimental Psychology 150. 196 Adi Leibovitch, ‘Relative Judgments’ (2016) 45 The Journal of Legal Studies 281, 282. 197 Ibid. 281. 198 “Exposure to different levels of criminal behavior through caseloads can lead to a substantial and significant impact on sentencing outcomes,” Leibovitch concluded. Ibid. 284.

46

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Only a handful of experimental studies address the contrast effect in legal decisionmaking, and only one of these used judges as participants.199 Rachlinski, Wistrich and Guthrie asked judges to assess the credibility of expert witnesses in a hypothetical child custody case.200 They found that the relative credibility of well-qualified psychiatric experts was improved by exposing judges to another less-qualified psychiatric expert.201 The ‘bad’ expert witness made the ‘better’ expert witness look good in the eyes of the judges. However, as part of the same study, the authors tested for the contrast effect among 42 judges another way, to see if judges were more likely to approve an improved settlement offer where a previous, inferior offer had been on the table. In this instance, the judges did not fall foul of the contrast effect.202 Aside from directly testing judges, researchers have also investigated the contrast effect in legal decision-making using mock jurors as participants. For instance, Rodríguez and Blanco asked mock jurors to choose penalties in a series of five offences, exploiting a dynamic similar to the one described in Scenario 2 whereby the levels of sympathy aroused by different criminal offenders in a judge’s caseload contrast with each other.203 The mock jurors were split into two groups, and all were given the same fifth offence, a violent robbery. The preceding four offences for the first group were relatively severe, while for the second group, they were relatively mild. The researchers found that sentences for the identical fifth offence were more lenient in the first group (those exposed to four preceding more severe cases) than they were in the second group (those exposed to four preceding milder cases). The contrast effect seemed to be at play.204 Another experimental study tested for the contrast effect among mock jurors by categorising different types of crime in terms of how harmful society deems them to be, and 199 In Rachlinski, Wistrich and Guthrie’s study on order effects, using US military judges, US judges and Dutch judges as participants, the authors alluded to the possibility that the contrast effect may impact judicial decision-making. However, the anchoring effect – in essence, the opposite phenomenon to the contrast effect – prevailed. See Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 84) 724. 200 Jeffrey J Rachlinski, Andrew J Wistrich and Chris Guthrie, ‘Altering Attention in Adjudication’ (2012) 60 UCLA Law Review 1586, 1599–1604. It should be noted that this experiment, asking judges how they perceived expert witnesses’ credibility, tested for the contrast effect in a qualitative non-numerical sense rather than a quantitative numerical sense. 201 Ibid. 1601. 202 Ibid. 1602. 203 Gabriel Rodríguez and Sara Blanco, ‘Contrast Effect on the Perception of the Severity of a Criminal Offence’ (2016) 26 Anuario de Psicología Jurídica 107. 204 Kelman, Rottenstreich and Tversky also demonstrated the contrast effect in an experiment asking mock jurors to impose a sentence against a fraudulent estate agent. Participants were asked to determine an appropriate sentence for an estate agent who failed to disclose a serious defect in a property (which he was obliged to disclose under pain of criminal sanction). One group of participants was asked to choose either, option 1: the prosecutor’s recommendation of a $2,500 fine and one month in jail, or, option 2: the probation department’s recommendation of a $2,500 fine plus six months’ probation during which the defendant would serve 50 hours’ community service. A second group was given these two options plus an additional option 3: a $2,500 fine plus 6 months’ probation during which the defendant would undergo 50 hours of counselling sessions on the importance of ethical business practices. With the additional option 3 for context, the researchers hypothesised that participants in the second group would be sceptical about how useful the counselling would be, and so they speculated that more participants in that group would choose option 2 – a $2,500 fine plus 6 months’ probation during which the defendant would serve 50 hours’ community service. The researchers’ hypothesis proved correct. Participants with the additional option 3 (a fine, probation and counselling) reacted adversely to it and were more inclined to choose the contrasting option 2 of probation plus community service (88%) than participants in the first group who only had two options, in which just 74% chose option 2. Kelman, Rottenstreich and Tversky (n 194) 295–297.

47

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

presenting participants with different examples of individual crimes of varying degrees of seriousness within those categories. To describe the examples used by the researchers: suppose two sentences have to be handed down. One is for an armed robber who walked into a shop with an unloaded gun, handed a note to the shopkeeper and demanded money, opening his coat to show the shopkeeper the gun. The type of crime – armed robbery – is one society deems particularly harmful, but this is a relatively mild version of such a crime. The second case concerns a fraudster who preyed on an elderly widow, pretending to be a salesman and tricking her into handing over her entire life-savings on the pretence of providing a government-backed home insulation service. This is an outrageous example of a type of crime – fraud – that society deems to be, relatively speaking, less harmful. The researchers wondered whether mock jurors, asked to determine sentences for both crimes separately and without the knowledge of the other, would differ from those who evaluated the two crimes together.205 When mock jurors evaluated and sentenced one of the two cases separately without knowledge of the other, they ordered an average sentence of 12.27 years in the outrageous fraud case and 6.83 years in the mild armed robbery case. However, where mock jurors were asked to sentence in both cases together with knowledge of both of them, the fraudster’s sentence dropped to 10.39 years, and the armed robber’s sentence increased to 7.63 years.206 Jurors who had an opportunity to compare the cases seemed to be affected by the contrast effect, sentencing relative to the other crime. Comparing the types of crime and their relative offensiveness seemed to influence their decisions: the armed-robbery is still an armed-robbery after all, a type of crime that society generally deems more harmful than fraud, and accordingly, that seemed to be factored into the sentence.207 As noted earlier, research on the contrast effect on judicial decision-making is relatively limited, aside from Leibovitch’s archival study and Rachlinski, Wistrich and Guthrie’s finding in one of the two experiments they ran on judges.208 Future studies could investigate how the contrast effect may have an insidious effect on judges’ evaluation in different ways. Despite the limited evidence available thus far, the findings should not be ignored. In particular, Leibovitch’s finding that differing caseloads among criminal law judges appear to affect sentencing outcomes may have implications for how cases are distributed among judges, a theme that will be returned to later in the chapter when considering interventions to combat the contrast effect.209 2.2.3 Framing effect In 1999, Sally Clark was convicted of murdering her two infant children by a majority jury verdict of ten to two in a trial that gripped mainstream media and the public consciousness in the UK and beyond. The conviction was overturned after a second appeal 205 Rachlinski and Jourden (n 192). 206 Ibid. 477. 207 This finding builds on a previous study that found a similar contrast effect. Parducci asked participants to rate the “moral value” of different acts of behaviour. Those exposed to graver, more wrongful acts rated less grave acts more leniently than those who were not exposed to those graver, more wrongful acts. Allen Parducci, ‘The Relativism of Absolute Judgments’ (1968) 219 Scientific American 84. 208 Leibovitch (n 196); Rachlinski, Wistrich and Guthrie, ‘Altering Attention in Adjudication’ (n 200) 1599. 209 See section 2.2.6 Combating cognitive errors in judges’ numerical decision-making.

48

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

in 2003 when new exculpatory evidence indicated that one of the infants had died of natural causes.210 During the original trial, a distinguished paediatrician, Dr Roy Meadow, gave expert evidence on the likelihood of two children dying of sudden infant death syndrome, describing the odds (incorrectly) as one in 73 million.211 Dr Meadow framed the information as follows: It’s the chance of backing that long odds outsider at the Grand National, you know; let’s say it’s an 80 to 1 chance, you back the winner last year, then the next year there’s another horse at 80 to 1 and it is still 80 to 1 and you back it again and it wins. Now here we’re in a situation that, you know, to get those odds of 73 million you’ve got to back that 1 in 80 chance four years running . . . the chance of it happening four years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely.212

Meadow forcefully framed the statistics in such a way as to portray the extreme unlikelihood of the event, most vividly perhaps, using the metaphor of repeatedly backing longodds horses at the Grand National horse race. There was a multitude of errors in how that statistic was arrived at, not least Meadow’s failure to factor in the increased likelihood of a second sudden infant death occurring owing to a genetic predisposition to the syndrome within the same family or owing to environmental factors. That aside, the judgment on appeal of Lord Justice Kay also reflected on how Meadow framed the statistical evidence: “[I]t was the headline figures of 1 in 73 million that would be uppermost in the jury’s minds with the evidence equated to the chances of backing four 80 to 1 winners of the Grand National in successive years.”213 The point here is that people may react to the same piece of information differently, depending on how it is presented to them.214 Consider the following example: a man with cancer and dementia has recently come under the wardship of the court, and a judge must decide which is the best treatment for the cancer – surgery or radiation treatment. Surgery offers a very good long-term survival rate, but there is a small chance the man will not survive immediately after the surgery. In contrast, there is no mortality risk associated with radiation treatment in the short-term, but it does not offer nearly as good a long-term survival rate as surgery. The judge considers expert medical evidence on the man’s shortterm prognosis if surgery is performed. This evidence could be framed one of two ways: There is a one-month survival rate of 90%,

or There is 10% mortality in the first month.

The statistics are the same except for how they are framed.215 Might the judge be more likely to opt for the riskier short-term option if the statistics are framed positively as a 210 R v Clark [2003] EWCA Crim 1020. 211 Ibid. para. 96. 212 Ibid. para. 57. 213 Ibid. para. 102. 214 In many ways, the framing effect is encapsulated by the catchphrase of popular Northern Irish comedian and actor Frank Carson: “It’s the way I tell ’em!” 215 This hypothetical example is a variation on an experiment McNeil and her colleagues undertook using physicians as participants. They demonstrated that the way survival rates were framed affected the physicians’

49

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

survival rate rather than framed negatively as a mortality rate? Kahneman puts it starkly, stating that “90% survival sounds good, 10% mortality is frightening.”216 The framing effect has been demonstrated to affect lawyers’ decisions on out-of-court civil litigation settlements and judges’ perception of settlement negotiations.217 What about the impact of the framing effect on judicial decision-making? The example of prognosis following different modes of treatment presents the judge with a risky decision. Rachlinksi, Guthrie and Wistrich experimentally tested for the framing effect in another context presenting a risky judicial decision, asking bankruptcy judges in a hypothetical case to decide to liquidate a business or to allow it to continue to operate.218 They asked the judges to choose between two different business reorganisation plans for a small home supply and service business, elements of which were failing. Judges were split into two groups, and although they all received the same information about the different plans to choose from, in one group the information about the two plans was framed in terms of potential gains for unsecured creditors, whereas in the other group the information was framed in terms of potential losses for them.219 Judges in the “gain” condition tended to go for the less risky plan for unsecured creditors, whereas judges in the “loss” condition were relatively more likely to prefer to opt for the more risky plan.220 Although statistically speaking the risk was the same across the board, how the information was framed seemed to affect the judges’ decisions. The framing effect seemed to be at play. Aside from decisions on risk, how numerical values are framed may also affect perceptions of fairness. The same researchers asked US administrative law judges to evaluate the fairness of payment options imposed by a landlord on a tenant.221 The judges were split into two groups. In one group, the judges learned that the monthly rent was $2,100 and that the landlord had offered a $50 discount if the tenant chooses to pay by cheque or cash. In the other group, the judges learned that the monthly rent was $2,000 but that the landlord would impose a $50 surcharge if the tenant chose to pay by credit card. In both instances, the tenant would pay the same amount – $2,050 – if he or she chose the special payment option. The judges in both conditions were asked to rate the conduct of the landlord as “completely fair,” “acceptable,” “unfair,” or “very unfair.”222 In the credit card surcharge group, 47.1% found the landlord’s behaviour unfair, whereas in the cash discount group, just 4.8% found the landlord’s behaviour unfair. The surcharge seemed decisions between alternative treatments BJ McNeill and others, ‘On the Elicitation of Preferences for Alternative Therapies’ (1982) 306 New England Journal of Medicine 1259. 216 Kahneman (n 146) 367. 217 Ian K Belton, Mary Thomson and Mandeep K Dhami, ‘Lawyer and Nonlawyer Susceptibility to Framing Effects in Out-of-Court Civil Litigation Settlement’ (2014) 11 Journal of Empirical Legal Studies 578; Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 794–799. 218 Jeffrey J Rachlinski, Chris Guthrie and Andrew J Wistrich, ‘Inside the Bankruptcy Judge’s Mind’ (2006) 86 Boston University Law Review 1227, 1238. This is not the first study that these researchers explored the framing effect. See Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 794–799. 219 Rachlinski, Guthrie and Wistrich (n 218) 1239. The research design drew inspiration from a classic experiment on the framing effect: Amos Tversky and Daniel Kahneman, ‘The Framing of Decisions and the Psychology of Choice’ (1981) 211 Science 453. 220 Rachlinski, Guthrie and Wistrich (n 218) 1240. 221 Guthrie, Rachlinski and Wistrich, ‘The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice’ (n 76) 1507. 222 Ibid. 1508.

50

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

less fair than a discount, even though the ultimate amount payable was exactly the same. How the information was framed had a significant impact on the judges’ evaluation of it.223 In the most comprehensive exploration of the framing effect on judicial decision-making to date, Rachlinski and Wistrich ran no less than eight experimental studies on over 1,000 US judges who evaluated hypothetical cases from differing perspectives framed as either gains or losses.224 In all eight experiments, the fact patterns and information remained the same for all judges. Yet in all eight instances across eight different areas of law, the judges reached different outcomes depending on whether the information was framed as either gains or losses.225 To offer one example from the study, judges were asked to resolve a contract dispute about what should amount to “a fair salary” for an independent contractor.226 In one condition, the area in which the independent contractor lived experienced 12% inflation, and the independent contractor’s salary increased by 5%, whereas in the other condition there was no inflation and the independent contractor’s salary was reduced by 5%. The net effect on the plaintiff’s purchasing power was the same – a reduction of 7%. Nevertheless, because of the way the scenario was framed, the judges more often favoured the independent contractor in the ‘decrease in salary’ condition than in the ‘increased salary during a period of inflation’ condition. Across the board, to varying extents, framing – specifically, whether information was presented as a gain or a loss – had a pervasive influence on judges’ decision-making.227 One final consideration in this regard is the scale used to present statistical information. The amounts of 0.1%, 0.001 and the phrase “one in one thousand” all mean the same mathematical value. However, how one describes these amounts can influence how someone extrapolates meaning from the number.228 Koehler argues that the scale used to present DNA-match statistics can be crucial for judicial outcomes.229 As an example, he described different ways of presenting the same DNA-match statistic: • Statement 1: “The probability that the suspect would match the blood specimen if he were not the source is 0.1%.” • Statement 2: “The frequency with which the suspect would match the blood specimen if he were not the source is one in one thousand.”230 Both are legitimate ways of describing the evidence, but statement 1 may be more likely to persuade a decision-maker that the blood specimen is more certainly the suspect’s than statement 2 is likely to persuade a decision-maker. Take statement 2 again: by mentioning one in one thousand, an example is offered, and the decision-maker might mull over that 223 Ibid. 224 Jeffrey J Rachlinski and Andrew J Wistrich, ‘Gains, Losses, and Judges: Framing and the Judiciary’ (2018) 94 Notre Dame Law Review 521. 225 Ibid. 528. 226 Ibid. 548–549. 227 Ibid. 570. This also has consequences for lawyers who, Rachlinski and Guthrie note, “will find they have more persuasive force when describing their client as facing a loss than a lost opportunity.” Ibid. 571. 228 See, for example, William C Thompson and Eryn J Newman, ‘Lay Understanding of Forensic Statistics: Evaluation of Random Match Probabilities, Likelihood Ratios, and Verbal Equivalents’ (2015) 39 Law and Human Behavior 332. 229 Jonathan Koehler, ‘The Psychology of Numbers in the Courtroom: How to Make DNA-Match Statistics Seem Impressive or Insufficient’ (2000) 74 Southern California Law Review 1275. 230 Ibid. 1278.

51

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

one example that the blood specimen is not, in fact, belonging to the suspect. There is a nagging doubt that the “one” in the “one in one thousand” might actually be the case. This is an example of what Koehler and his colleague Macchi call “exemplar cueing.”231 On the other hand, statement 1 is expressed in bland statistical terms with no example readily coming to mind, and therefore it may not resonate as strongly with the decisionmaker. Testing this across three experiments, Koehler demonstrated that mock jurors were indeed more convinced of the DNA evidence’s veracity, and therefore the suspect’s guilt, where the chances that a blood specimen match was wrong were expressed in bland statistical terms, rather than as a matter of probability bearing an example.232 Koehler suggested that this phenomenon may have its roots in the availability heuristic.233 Overall, experimental research on judges and mock jurors alike suggests that how numerical information is framed for a judge may well have a bearing on judicial outcomes, often to a great extent. Framing arguments in gains or losses, for instance, can affect how judges perceive the risk involved in ruling a certain way or the fairness of a litigant’s case. Moreover, using different scales to describe numerical values may nudge judges to decide cases in different ways. Unlike research in other areas such as the anchoring effect and the contrast effect, the empirical evidence is drawn exclusively from experimental work. Extracting data about framing through analysing real-world decisions may be difficult, given the many variables at play. Later in this chapter we will return to possible interventions that may curb the potentially harmful consequences of the framing effect. 2.2.4 Gambler’s fallacy The gambler’s fallacy occurs when people irrationally base their current decision on patterns of previous events. If the roulette wheel shows black several times in a row, this may play on the gambler’s mind when making their next call. Decision-makers sometimes have a habit of basing their present decision on a series of past decisions. Chen and his colleagues offered some evidence that this may even affect judicial decision-making, demonstrating that US asylum judges tend to make decisions that follow seemingly arbitrary patterns.234 Although judges must decide on legal criteria alone, the data showed that when judges went on a streak, siding the same way in a sequence of cases, they tended to compensate for this in the next case by being more likely to vote the opposite direction. Robustly controlling for a wide range of factors, and all else being equal, the researchers found that judges were 5.5 percentage points less likely to grant asylum in a case that followed a streak of two previous decisions where they had granted asylum, relative to judges making a decision in a case that followed a streak of two decisions denying asylum.235 Here again, the evidence suggests that numbers – in this case, sequential

231 Jonathan J Koehler and Laura Macchi, ‘Thinking about Low-Probability Events: An Exemplar-Cuing Theory’ (2004) 15 Psychological Science 540. 232 Koehler (n 229) 1286, 1288 and 1292. 233 Ibid. 1281. See section 2.1.5 Other heuristics and biases. 234 Daniel L Chen, Kelly Shue and Tobias J Moskowitz, ‘Decision Making Under the Gambler’s Fallacy: Evidence from Asylum Judges, Loan Officers, and Baseball Umpires’ (2016) 131 The Quarterly Journal of Economics 1181. 235 Ibid. 1201.

52

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

patterns in judges’ decisions – play on judges’ minds.236 This appears to be the only study directly on the gambler’s fallacy and judicial decision-making, and further research should explore whether this phenomenon is evident in other specialist areas of law. 2.2.5 Clustering The Victorian-era polymath Francis Galton was one of the first researchers to apply statistical methods to study human behaviour and decision-making. Among his diverse range of some 340 works was one of the first archival studies on judicial decision-making, an elegant examination of the distribution of sentence lengths given by British judges.237 Galton observed that sentence lengths tended to cluster on or around specific lengths of prison time without any apparent justification.238 “It is impossible to believe that a judicial system acts fairly . . . when it allots only 20 sentences to 6 years imprisonment, allots as many as 240 to 5 years, as few as 60 to 4 years, and as many as 360 to 3 years,” he observed.239 He identified “trifles” and “curious whimsies” such as the complete absence of any sentences of 17 months’ length in the dataset (which he described as “a large and awkward prime number”), despite a multitude of sentences of 16 or 18 months’ length.240 Concluding, Galton mused “on the large effects upon the durance of a prisoner, that flow from such irrelevant influences as the associations connected with decimal or duodecimal habits and the unconscious favour or disfavour felt for particular numbers.”241 Galton’s study was the first to identify what came to be known as sentencing clustering. Judges, converting their qualitative assessment of a criminal’s conduct into a quantitative amount, seem drawn towards certain numbers, clustering around, for instance, six-month, twelve-month or eighteen-month prison sentences. The phenomenon, well documented since Galton’s study, can lead to injustices if, as scholars have noted, a court unconsciously rounds up or down a sentence of imprisonment. In these situations, the offender is effectively serving more or less time without justification.242 Roberts and his colleagues speculated that judges might favour some sentence lengths over others because of a preference for certain round numbers, owing to their intuitive appeal.243 They demonstrated clustering in sentencing decisions in assault cases before the UK Crown Court between 2011 and 2015, showing that although there were 194 different sentence lengths in their sample set of 6,743 decisions, ten sentence lengths

236 Chen and his colleagues also demonstrated the gambler’s fallacy in the same study in two other high-stakes fields: loan application reviews and Major League Baseball umpire pitch calls. 237 Galton (n 136). 238 “It would have been expected that the various terms of imprisonment awarded by judges should fall into a continuous series. Such, however, is not the case,” wrote Galton. Ibid. 174. 239 Ibid. 175. 240 Ibid. 175–176. 241 Ibid. 176. 242 A Keith Bottomley and Ken Pease, Crime and Punishment: Interpreting the Data (Milton Keynes: Open University Press 1986); Catherine Fitzmaurice and Ken Pease, The Psychology of Judicial Sentencing (Manchester: Manchester University Press 1986); Craig E Jones and Micah B Rankin, ‘Justice as a Rounding Error-Evidence of Subconscious Bias in Second-Degree Murder Sentences in Canada’ (2014) 52 Osgoode Hall Law Journal 109. On the absence of such justification, see J Roberts, Jose Pina Sanchez and Ian Marder, ‘Individualisation at Sentencing: The Effects of Guidelines and “Preferred” Numbers’ (2018) 2 Criminal Law Review 123, 135. 243 Roberts, Pina Sanchez and Marder (n 242) 123 and 127.

53

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

accounted for 56% of them.244 Narrowing in on a subset of more serious criminal cases from the data – cases of assault causing grievous bodily harm – the effect was even more pronounced: of 111 different sentence lengths in their sample set of 1,526 sentences, ten sentence lengths accounted for 71% of the total sample.245 Interestingly, they noted that the introduction of sentencing guidelines decreased the effect of clustering.246 Roberts and his colleagues also identified another seemingly arbitrary phenomenon in the data: judges had a strong inclination to cluster around even, as opposed to odd numbers when sentencing. Across their dataset of assault cases, three-quarters of custodial terms imposed were in even, rather than odd, months.247 Jones and Rankin, examining a sample of 477 Canadian decisions on parole eligibility, presented a similar finding, with judges imposing an even number of years of parole ineligibility in 62% of cases.248 Excluding rulings on parole ineligibility expressed in multiples of five resulted in a starker effect, with 70% of remaining decisions meted out in an even number of years.249 These findings mirror decision-makers’ general preference for even numbers in a range of decision-making contexts, (although not necessarily in Japan, where odd numbers appear culturally preferable).250 Similar findings emerged from a recent study by Dhami and her colleagues who reported that judges preferred certain numbers when meting out sentence lengths and fine amounts in courts in England and Wales and in New South Wales, Australia.251 Judges handed out sentences and fines around a small number of specific numerical values in over 90% of cases. Again, what was striking about the results was how arbitrary and pervasive the phenomenon appeared to be, with judges often making numerical decisions that seem to have inbuilt irrationalities. All told, judges sometimes fall into error when making crucial numerical decisions in their day-to-day work, either when extracting numbers from meaning, or meaning from numbers, as Helm and her colleagues usefully categorised it.252 The next section addresses what can be done to combat cognitive errors in judges’ numerical decision-making. 2.2.6 Combating cognitive errors in judges’ numerical decision-making Researchers suggest many specific interventions to try to improve how judges judge in numbers, including: • pooling data about other judges’ numerical decision-making to enable individual judges to self-reflect on their own practice; • examining whether existing guidelines or interventions are having the desired effect of reducing inconsistencies or irrationalities in numerical decision-making; 244 Ibid. 129. 245 Ibid. 132. 246 Ibid. 133–134. 247 Ibid. 129. 248 Jones and Rankin (n 242) 127. 249 Ibid. 250 Terence M Hines, ‘An Odd Effect: Lengthened Reaction Times for Judgments about Odd Digits’ (1990) 18 Memory & Cognition 40; Yutaka Nishiyama, ‘A Study of Odd-and Even-Number Cultures’ (2006) 26 Bulletin of Science, Technology & Society 479. 251 Mandeep K Dhami and others, ‘Criminal Sentencing by Preferred Numbers’ (2020) 17(1) Journal of Empirical Legal Studies 139. 252 Helm, Hans and Reyna (n 122).

54

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

• to combat the anchoring effect, presenting judges with multiple anchoring points rather than one, changing the unit of value in which numerical decisions are made or changing the order judges receive certain information; and • to combat the framing effect, improving how information is presented to judges. To broadly consider what makes for good policy intervention in this sphere in the first place, Marder and Pina-Sánchez draw from a theory proposed by behavioural scientists Richard Thaler and Cass Sunstein called ‘choice architecture’. Marder and Pina-Sánchez suggested that interventions such as sentencing guidelines can be thought of as part of the “choice architecture” – that is, the context in which people make decisions – and policy developers who devise these interventions can be conceived of as “choice architects.”253 Unfortunately, interventions ostensibly designed to promote better numerical decision-making are not always research-driven or research-proven. Rather, interventions may be politically motivated, with policy-makers sometimes failing to appreciate the limitations of human judgement.254 Given that psychologists have identified these errors, it makes sense, therefore, that their research should also underpin and inform the design of interventions to improve judges’ numerical decision-making. Psychologists’ input, in particular, is vital to maximising the chances that interventions to improve decision-making actually work in practice. Marder and Pina-Sánchez offered recent sentencing guidelines introduced in England and Wales as an example of good ‘choice architecture’ in practice. They described how the guidelines are process-focused, with judges following a series of structured steps to arrive at an appropriate sentence, yet all the while they are afforded an appropriate level of discretion. Marder and Pina-Sánchez highlighted, for instance, how the English and Welsh sentencing guidelines prescribe dozens of factors for a judge to consider when selecting the category of seriousness of a particular offence. Although starting-point sentences are provided to them, judges are reminded that they may deviate from them (an effort perhaps to help mitigate against judges anchoring to the starting point). In short, Marder and Pina-Sánchez viewed these sentencing guidelines as a model for how behavioural science can inform the development and implementation of interventions to aid judges in making numerical decisions. Their exposition on ‘choice architecture’ may be transferable to policy interventions in other realms of law: guidelines for the assessment of damages in civil cases, for instance. Turning to researchers’specific suggestions to combat poor numerical decision-making, the first involves pooling data on other judges’ numerical decision-making to enable individual judges to self-reflect on their own practice in a more rounded context. Leibovitch proved that criminal offenders’ sentences could depend on how they fare in comparison to other criminal offenders on a judge’s list of cases, based on a relative ranking of blameworthiness, comparing the instant case to previous cases.255 Judges’, particularly specialist judges’ caseloads could, therefore, sometimes be limiting, narrowing their frame of reference for 253 Ian D Marder and Jose Pina-Sánchez, ‘Nudge the Judge? Theorizing the Interaction between Heuristics, Sentencing Guidelines and Sentence Clustering’ (2018) Criminology & Criminal Justice 1748895818818869. The authors draw inspiration from Richard H Thaler and Cass R Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (Penguin 2009). 254 Eisenberg, Rachlinski and Wells (n 123) 1263–1264. 255 Adi Leibovitch, ‘Punishing on a Curve’ (2016) 111 Northwestern University Law Review 1205–1207.

55

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

what is the appropriate punishment, thereby affecting sentencing outcomes. Leibovitch calls this phenomenon “relative judgment.”256 To combat the negative consequences of relative judgment, she argued that judges would benefit from better, more extensive information from sources beyond their own perhaps narrow and blinkered experience of what amounts to a fitting punishment for each crime.257 She suggested that judges should see the full distribution of sentences for the same or similar offences across different courts, to provide a broader context for judges to reflect on the decision they are about to make. She elaborated that this information could be displayed graphically on a “punishment curve,” with the density of sentences presented on the x-axis and sentence lengths presented on the y-axis.258 These punishment curves show how sentencing decisions in a narrow jurisdictional area may cluster around a limited range. By presenting judges with graphs of a broader range of sentencing decisions from a wider jurisdictional area, they may realise that a broader range of sentencing opportunities can apply.259 Leibovitch’s model and its efficacy are untested. However, in a mock jury experiment undertaken by Saks and his colleagues, a similar mechanism – providing mock jurors with examples of damages awards for pain and suffering in other cases before evaluating the case at hand – alleviated unpredictability in the size of awards compared to those made by mock jurors in a control group.260 Further research along similar lines is merited. It is possible that broadening judges’ decision-making horizons through data could also alleviate sentencing clustering around specific, arbitrary sentence lengths, as Francis Galton observed in his early study.261 Aside from presenting data to judges to inform their numerical decision-making, policy-makers should review whether current mechanisms ostensibly designed to reduce inconsistency and irrational decision-making are actually having the desired effect. As described above, legal systems are replete with guidelines and interventions: sentencing guidelines, damages caps, specialist courts and damages schedules, for example. Sometimes these interventions make positive use of effects on decision-makers to steer judges in a particular direction; for example, sentencing guidelines provide “ready-made anchors.”262 This is not necessarily a bad thing. Guthrie, Rachlinski and Wistrich note that “anchoring often improves the quality of a decision.”263 However, as we have seen, some studies suggest that such interventions can have the opposite effect of their intended purpose in some situations. For instance, a damages cap, designed to curb excessively high awards, may in fact act as an anchor that draws the average level of awards higher and towards it. In such circumstances, the damages cap 256 Ibid. 1218–1225. 257 Leibovitch is not the first to suggest this. Guthrie and his colleagues suggested that “judges should use more reliable numerical reference points, such as a composite of damage awards in similar cases.” Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 823. Wissler and her colleagues suggested the same for juries: pool jury awards for similar injuries and present their award distributions to juries for guidance. Roselle L Wissler, Allen J Hart and Michael J Saks, ‘Decisionmaking about General Damages: A Comparison of Jurors, Judges, and Lawyers’ (1999) 98 Michigan Law Review 751, 817. 258 See, for example, the punishment curves set out in Leibovitch (n 255) 1261. 259 Ibid. 260 Saks and others (n 165). 261 Galton (n 136). 262 Nancy Gertner, ‘What Yogi Berra Teaches About Post-Booker Sentencing’ (2006) 115 Yale Law Journal Pocket Part 137. 263 Guthrie, Rachlinski and Wistrich, ‘Inside the Judicial Mind’ (n 9) 823.

56

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

defeats at least some of the purpose and results in paradoxical effects.264 Where a damages cap or a new maximum sentence is introduced, they ought to be reviewed after some time to investigate if they have had the unintended effect of inadvertently serving as an anchor that drags decisions upwards towards it. Perhaps, if anchoring effects are apparent in the data, such measures should be revisited, as they may be doing more harm than good. Remaining on the issue of curbing the anchoring effect, researchers have suggested and sometimes tested different interventions. These include presenting judges with alternative, multiple anchoring points;265 changing the unit of value in the scale judges used to make sentencing decisions (for example, from years to months, or from months to days);266 procedural changes at hearing, including changing the order in which arguments and information regarding sentencing are presented to judges;267 and even banning litigants from mentioning figures altogether.268 To take the first of these – that multiple anchoring points should be put to judges when making numerical decisions – effectively suggests fighting fire with fire: if there is a ‘bad’ anchor, replace or supplement it with several ‘good’ ones. For example, Fariña and her colleagues suggested that judges could be presented with alternative or multiple anchoring values. Each would have its own narrative on when it should be considered, in order to guide the judge.269 Others have suggested damages schedules with multiple anchoring values. Eisenberg, Rachlinski and Wells proposed that the statutory provision of what they called “meaningful anchors” may be the only sensible cure for anchoring,270 while Wistrich, Guthrie and Rachlinski recommended that damage schedules, akin to sentencing guidelines, would structure judges’ reasoning and mitigate the anchoring effect’s harmful consequences.271 Elsewhere, Rachlinksi, Wistrich and Guthrie put the suggestion of presenting judges with multiple anchors to the test.272 They asked 242 experienced Ohio judges, broken into three groups to assess the value of serious personal injuries claim arising from a road traffic accident. The first group of judges evaluated the case with no anchor, the second 264 Robbennolt and Studebaker (n 165) 368; Jennifer K Robbennolt, ‘Determining Punitive Damages: Empirical Insights and Implications for Reform’ (2002) 50 Buffalo Law Review 103, 173; Theodore Eisenberg, Jeffrey J Rachlinski and Martin T Wells, ‘Reconciling Experimental Incoherence with Real-World Coherence in Punitive Damages’ (2001) 54 Stanford Law Review 1239, 1264. 265 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 140). Fariña, Arce and Novo (n 62) 63; quoting Scott Plous, The Psychology of Judgment and Decision Making (McGraw-Hill Book Company 1993). 266 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 84); Michael Tonry, Richard Frase and Tapio Lappi-Seppälä (eds), ‘Finnish Sentencing’ in Sentencing and Sanctions in Western Countries (Oxford University Press 2001) 113. 267 On changing the order in which lawyers’ arguments are heard, see Birte Englich, ‘Blind or Biased? Justitia’s Susceptibility to Anchoring Effects in the Courtroom Based on Given Numerical Representations’ (2006) 28 Law & Policy 497, 509. On changing the order in which information in presentence reports is presented, see Mark W Bennett, ‘Confronting Cognitive Anchoring Effect and Blind Spot Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw’ (2014) 104 Journal of Criminal Law and Criminology 489, 490. 268 Reese v Hersey 29 A. 907, 908 (Pa. 1894); Porter v Zenger Milk Co., 7 A. 2d 77, 78 (Pa. Super. Ct. 1939); see also EEOC v Wal-Mart Stores. Inc., 276 F.R.D. 637, 639–40 (E.D. Wash. 2011). 269 Fariña, Arce and Novo (n 183) 63; Plous (n 20); Mercedes Novo Pérez and Pilar Gómez Ulla, Bases Para La Concreción de Sentencias Consistentes: Guidelines (Biblioteca Nueva 2000). 270 Eisenberg, Rachlinski and Wells (n 264) 1267. 271 Wistrich, Guthrie and Rachlinski (n 35) 1328. 272 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 84) 731–739.

57

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

group evaluated the same case with a low anchor (the plaintiff mentioned seeing a court television show where ‘a victim like me’ received a $150,000 award), while the final group evaluated the same case with a high anchor (the same as the low anchor condition except that the suggested amount was $10,000,000). All three groups were subdivided in turn, with half of the judges in each group provided with additional material. This additional material was a newspaper article describing three reasonable, sensible damages awards in other, unrelated cases ranging from appropriately low, medium and high awards for low, medium and high severity injuries, respectively. This newspaper article, presenting multiple anchors, was to act as a scale that the researchers hypothesised would encourage sensible decision-making and to curb the anchoring effect in the different groups. The results were complex. The newspaper article did not affect judges in the second group – the low anchor condition – but it reduced the influence of the anchor in the third group – the high anchor condition.273 At the same time, the article had an unintended consequence, increasing the size of awards. The experiment only half-worked. The researchers concluded that although exposing judges to sensible numerical anchors might aid their decision-making, such interventions must be carefully tailored and might have unintended consequences. The quality of that information and the manner in which it is presented is crucial, they observed.274 The experiment highlighted just how important rigorous testing of suggested interventions is and how untested mechanisms can lead to unintended and potentially harmful consequences. What about changing the unit of value in which judges make their numerical decisions? We have seen how changing sentencing scales from years to months can affect sentencing decisions in a hypothetical mock trial setting.275 This seems to translate to real-world settings. In 1991, Finnish judges were instructed to sentence theft offenders in days rather than months. Lappi-Seppälä noted that although there had been a general downward trend in sentence lengths around that time, the change of the unit of value appeared to cause an additional drop off, further reducing the average length of sentences.276 Of course, there may well have been many variables at play here. Further research, both through experimental studies and archival research on real-world examples, would inform which units of value are most appropriate for specific contexts. Other researchers have suggested that changing the order judges take in certain information at trial could alleviate the anchoring effect. For instance, as we have seen, prosecutors’ sentencing demands can have an anchoring effect on judges when sentencing. Generally, the prosecutor’s sentencing demand is made first, followed by the defence lawyer’s counter-demand. Drawing from research on the anchoring effect in the courtroom, Englich suggested that this order – prosecution first, defence second – ought to be reconsidered.277 A previous study had shown that once prosecutors had demanded a particular sentence, defence lawyers’ sentencing recommendations assimilated towards that demand, and this had a knock-on effect for judges’ subsequent sentencing decisions which themselves

273 274 275 276 277

Ibid. 734. Ibid. 735. Ibid. Tonry, Frase and Lappi-Seppälä (n 266) 113. Englich (n 267) 509.

58

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

assimilated towards the prosecutor’s demand.278 Put another way, the first word of the prosecutor initially anchored the defence lawyer’s sentencing recommendation upwards, which in turn affected the judge’s ultimate sentence. Englich argued that this phenomenon suggests that the standard procedural sequence in the courtroom may actually put the defendant at a distinct disadvantage. The supposed benefits of the defendant ‘having the last word’ may have the opposite effect because the prosecution enjoys the advantages of the anchoring effect.279 Consequently, Englich argued that procedural sequences in court ought to be reassessed.280 Another unpublished study by Englich and Rost found that by simply reversing the order in which sentencing demands were presented, allowing the defence go first, led to judges giving lower sentences.281 Would reversing the order, thereby drawing judges towards the defence’s sentencing recommendation, improve the objectivity of the verdict? Probably, concluded Englich.282 That, of course, depends on one’s perspective on the balance between a convicted criminal’s rights on the one hand, and society’s interests in preventing and punishing crime on the other. Staying on the theme of the order in which sentencing information is presented, one US researcher proposed reordering how judges absorb information in pre-sentence reports there. As things stand, often complex sentencing guidelines calculations come first in these reports, with information about the defendant’s personal history and other factors following afterwards. Bennett suggested that because the sentencing guidelines calculations are set out first, judges may be contaminated by the anchoring effect from that point on and may already have started formulating a tentative sentence before considering the defendant’s individuating factors set out later in the report.283 Bennett cited research that found that first impressions are powerful influences on legal decision-making, and he proposed that judges should absorb information in the opposite order: information about the defendant’s personal history and other factors first, followed by sentencing guidelines calculations afterwards.284 Bennett’s suggestion remains untested, but the principle behind it – to reconsider the order that judges absorb information – is worth further investigating, perhaps through experimental research. Such work may inspire consideration of other instances where the order that information is presented to judges may have inadvertent consequences for case outcomes. Finally, on tackling the anchoring effect in civil law cases, Rachlinski, Wistrich and Guthrie suggested that prohibiting litigants from mentioning figures for general damages may dampen the anchoring effect. They point to instances where this approach has been adopted in some contexts in certain jurisdictions.285 278 Birte Englich, Thomas Mussweiler and Fritz Strack, ‘The Last Word in Court: A Hidden Disadvantage for the Defense’ (2005) 29 Law and Human Behavior 705. 279 Englich (n 267). 280 Ibid. 281 Birte Englich and Viola Rost, ‘The Reason Why the Defense Has No Chance: Anchoring-Effect Contra Argument Quality in the Courtroom’ (2006) Unpublished Manuscript. Along related lines, Paterson’s interview study of lawyers before the House of Lords similarly reveals that almost every counsel saw an advantage in speaking first. Alan Paterson, The Law Lords (Macmillan 1982) 57. 282 Englich (n 267) 511. 283 Bennett (n 267) 531. 284 Robert A Prentice and Jonathan J Koehler, ‘A Normality Bias in Legal Decision Making’ (2002) 88 Cornell Law Review 583, 603–604. 285 Rachlinski, Wistrich and Guthrie, ‘Can Judges Make Reliable Numeric Judgments: Distorted Damages and Skewed Sentences’ (n 140) 736.

59

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Turning to the framing effect, few concrete measures have been suggested to combat its harmful influence. Out of duty to put their best case forward for their client, lawyers and maybe sometimes expert witnesses sometimes frame numerical information in a particular way to their client’s strategic advantage.286 Experiments could investigate whether interventions requiring lawyers or expert witnesses to present numerical information to judges in multiple ways, rather than one – say an obligation to present a percentage also as a decimal point or as a frequency – may improve the accuracy of judges’ perception of that information and, therefore, their understanding of how compelling and useful it is. All of the above-suggested interventions have a common theme – to improve the quality and presentation of information judges take on board when making numerical decisions. Interventions must be properly tested before being introduced to real-world judging. The unexpected results from Rachlinski, Wistrich and Guthrie’s experiment on Ohio judges introducing multiple anchors highlights just how important rigorous testing is, and how untested mechanisms may lead to unintended negative consequences. Perhaps the only guaranteed way to mitigate against errors in numerical evaluation is to remove judges’ discretion to make numerical choices in particular instances altogether, either through legally prescribed outcomes or with the benefit of technologies described in chapter 8.287 But, of course, this would be at the expense of reduced individualisation and judicial discretion. A version of an age-old debate emerges: do the benefits of judicial discretion outweigh certainty and predictability in the law? 2.3 Motivated reasoning and judging In the 1950s, two researchers asked students from two US colleges to evaluate referees’ calls during a college football game.288 They found that students perceived referees’ calls against their college team as more erroneous than decisions in their team’s favour. Their stake in their team’s fortunes seemed to influence how they ‘saw’ the game. Their perceptions were affected by their motivation to see their team do well. Like partisan college students, do judges see things differently when they decide cases depending on their motivations? Categorising the factors that broadly describe what motivates judges’ decisions is a complex task. Political scientists argue that a judge’s political beliefs motivate their decisions, while sociologists and researchers in gender or race studies may argue that judges may be motivated by their perceptions of different races or genders. Scholars of judging and emotion – itself a nuanced subfield of research considered later in this chapter – suggest judges’ emotions have a bearing on their decisions.289 Identifying motivations for judicial decision-making in this broad sense involves flitting between different disciplines, but here, for present purposes, the focus is narrower.290 This section considers a strand of research from the field of psychology on decision-making: motivated reasoning. 286 Rachlinski and Wistrich (n 224) 571. 287 See chapter 8. 288 Albert H Hastorf and Hadley Cantril, ‘They Saw a Game: A Case Study’ (1954) 49 The Journal of Abnormal and Social Psychology 129. The two teams were from Dartmouth College and Princeton University. 289 See section 2.4 Judging and emotion. 290 One example of research on the debate on what explains judges’ motivations is Kahan’s article investigating the differences between judges’ political ideology and subconscious cognitive factors as distinct motivators

60

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Earlier in this chapter we saw how heuristics – shortcuts for decision-making through system 1 thinking – influence judicial decision-making in many ways. Motivated reasoning is subtly different: it concerns how our motivations alter the processes we use to make decisions, thereby affecting decision-making outcomes. English philosopher Sir Francis Bacon once remarked that “the human understanding when it has once adopted an opinion draws all things else to support and agree with it.”291 Psychologists investigating motivated reasoning parse this general idea out, explaining how decision-making processes – how we reason – can be altered by our particular motivations towards a particular outcome. In its simplest terms, motivated reasoning – sometimes referred to as ‘motivated cognition’ – is the “less-than-conscious tendency to reason towards one’s preferred result.”292 In a seminal article on the concept, Ziva Kunda explained that motivated reasoning occurs when someone making an evaluative decision is more likely to arrive at a conclusion they prefer by relying on a biased set of cognitive processes. The decision-maker’s motivations affect the cognitive processes for deciding, influencing which beliefs and rules to use when making a decision.293 Kunda described these cognitive processes as “strategies for accessing, constructing, and evaluating beliefs.”294 Decision-makers driven by motivated reasoning may, for instance, rely more on biased beliefs about events or other people, favour particular heuristics or evaluate research in such a way as to best serve their preferred direction of their decision.295 Might motivated reasoning affect judicial decision-making? Kunda explained how decision-makers will often “attempt to be rational and to construct a justification of their desired conclusion that would persuade a dispassionate observer.”296 Some judges hint at this dynamic in their extrajudicial writing. English judge Patrick Devlin described, for instance, how “once a judge has formed a view,” a judge’s notes “will consist mainly of what he thinks to be significant; the insignificant, being omitted, will disappear from memory.”297 US judge Joseph Hutcheson, Jr noted how “the astute judge, having so decided, enlists his every faculty and belabors his laggard mind. . . . Accordingly, he passes in review all of the rules, principles, legal categories, and concepts ‘which he for judging, Dan M Kahan, ‘“Ideology in” or “Cultural Cognition of” Judging: What Difference Does It Make?’ (2009) 92 Marquette Law Review 413. 291 Bacon continued: “And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects and despises, or else by some distinction sets aside and rejects, in order that by this great and pernicious predetermination the authority of its former conclusion may remain inviolate.” Francis Bacon, Francis Bacon: The New Organon (Cambridge University Press 2000). (Originally published in 1620). 292 Avani Metha Sood, ‘Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule’ (2015) 103 Georgetown Law Journal 1543, 1547. Marcus elaborated that motivated reasoning entails “our tendency to accept what we wish to believe (what we are motivated to believe) with much less scrutiny than what we don’t want to believe.” Gary Marcus, Kluge: The Haphazard Evolution of the Human Mind (Houghton Mifflin Harcourt 2009) 56. 293 Kunda (n 5). 294 Ibid. 480 and 483. 295 Ibid. 482–490. Observant readers may note similarities with the confirmation bias described earlier in this chapter, see section 2.1.1 Confirmation bias. Both concepts relate to how information supporting a preferred outcome is used or treated differently to information contradicting a preferred outcome. Marcus distinguished between confirmation bias and motivated reasoning as follows: “whereas confirmation bias is an automatic tendency to notice data that fit with our beliefs, motivated reasoning is the complementary tendency to scrutinize ideas more carefully if we don’t like them than if we do.” Marcus (n 292) 56. 296 Kunda (n 5) 482–483. 297 Patrick Devlin, The Judge (Oxford University Press 1979) 91.

61

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

may find useful, directly or by an analogy, so as to select from them those which in his opinion will justify his desired result.’”298 These reflections hint at how judges motivated by a particular outcome alter the process of decision-making to get to their desired result, echoing the concept of motivated reasoning described by psychologists. To borrow a phrase, “where there’s a will, there’s a way.” After Kunda’s seminal article in 1990, judicial scholars soon latched on to the concept’s importance for understanding and explaining judicial reasoning and outcomes. Baum argues that close consideration of motivation in a psychological sense is important to understanding how judges behave,299 while Sood asks directly on point, “[H]ow and when might preferred outcomes, based on legally irrelevant factors, drive the perception and reasoning of . . . judges, without their full awareness?”300 Sood identified two categories of motivating factors. The first category comprises judges’ characteristics such as their political ideology (including sociopolitical views on certain matters), cultural factors and group identity, on the one hand.301 The second category consists of factors within specific cases such as certain features of the defending, transgressing party; for example, the defendant’s moral character or reason for acting the way they did, on the other hand. Citing mock juror studies, Sood suggested that these case-specific motivators, and the motivated reasoning that they can give rise to, can undermine the rule of law.302 On the first of these categories, while much research has focused on correlating judges’ characteristics with decision-making, Braman rightly observed that not nearly as much has been done to investigate the specific mechanisms and cognitive processes that may explain why judges reach conclusions consistent with their preferences.303 She tested for motivated reasoning in legal decision-making among both legally trained and non-legally trained participants across a series of experiments, demonstrating that the way they arrived at their decision differed based on their preferred outcome.304 Specifically, when participants were presented with different precedent cases 298 Jerome Frank, Law and the Modern Mind (Brentano’s 1930) 104. It should be noted that this suggests a conscious rather than an unconscious process of reasoning, a point others have made. Legal decision-makers “muster up evidence necessary to support” their conclusion, to maintain an “illusion of objectivity,” suggests Sood (n 6) 483, quoting John M Darley and Paget H Gross, ‘A Hypothesis-Confirming Bias in Labeling Effects’ (1983) 44 Journal of Personality and Social Psychology 20; Tom Pyszczynski and Jeff Greenberg, ‘Toward an Integration of Cognitive and Motivational Perspectives on Social Inference: A Biased Hypothesis-Testing Model’ in Leonard Berkowitz (ed), Advances in Experimental Social Psychology, vol. 20 (Elsevier 1987). And decision-makers may operate as “motivated tacticians” selecting different strategies to fit the circumstances, argue Operario and Fiske. Don Operario and Susan T Fiske, ‘Social Cognition Permeates Social Psychology: Motivated Mental Processes Guide the Study of Human Social Behavior’ (1999) 2 Asian Journal of Social Psychology 63, 67. 299 Baum (n 2). Indeed, he argues that the field of judicial behaviour (a term considered below at section 4.5.1 Background and development of research on judges’ politics and their decision-making) implicitly centres on motivation “in that legal scholars and political scientists explain judges’ choices in terms of what they seek to accomplish with their decisions.” Ibid. 3. 300 Sood (n 6) 308. 301 Ibid. 310. Some of these judges’ characteristics are considered in chapter 4. 302 Ibid. 319. 303 Eileen Carol Braman, ‘Motivated Reasoning in Legal Decision-Making’ (Dissertation for the Degree Doctor of Philosophy, Ohio State University 2004) 1. Braman. Eileen Braman further expounds upon motivated reasoning in Eileen Braman, Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning (University of Virginia Press 2009). On how judges’ politics affects their decision-making, see section 4.5 Judges’ politics and judicial decision-making. 304 Braman (n 303). Her goal was, as she put it, “to get inside the heads of decision-makers to discover how they reach decisions consistent with their preferences.” Ibid. 51. Segal and Spaeth were among the first to suggest

62

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

to help them decide a hypothetical case, they perceived specific precedent cases as being more analogous to the case at hand if they aligned more closely to their own policy preferences. The participants’ consideration and application of the precedent rulings differed depending on their policy preferences and decision-making goals, suggesting that their desired results drove the process of decision-making.305 Mock jury experimental studies have demonstrated how other factors that are not legally relevant to cases can motivate decision-makers towards particular results. For instance, Alicke asked non-legally expert participants what they thought was the primary cause of a car accident in a hypothetical case: a speeding driver or other factors such as an oil spill, a tree branch or another car.306 Participants were more likely to deem the speeding driver as the primary cause when they were told that the driver’s reason for speeding was to hide a vial of cocaine, rather than when they were told that it was to hide his parents’ anniversary gift. The level of negligence was the same in both scenarios – the standard of driving was the same in both instances – but participants’ perception of his legal liability was affected by the legally irrelevant reason as to why he committed the wrong in the first place.307 Similarly, Nadler showed how irrelevant information about a criminal defendant’s character, entirely unconnected to the legal scenario at hand, can nevertheless affect perceptions of the defendant’s legal blameworthiness.308 Participants ruled on a hypothetical case about whether a skier who caused a death on a ski slope should be tried for reckless manslaughter.309 All participants were provided with the same facts about the accident, except that they heard either that the skier was of good character (a model employee, a good son and a volunteer for an animal shelter) or of bad character (a poor employee, a bad son). The portrayal of the defendant’s character did not go towards his behaviour on the ski slopes when the incident occurred, of course. Nevertheless, participants in the ‘bad character’ condition treated the skier as being more responsible for the death on the ski slopes than participants in the ‘good character’ condition did. The defendant’s moral character, an entirely independent consideration to events on the ski slope, played a role.310 Extraneous character judgement appeared to be at play just as much, or sometimes that judges engaged in motivated reasoning in an article in 1996. Jeffrey A Segal and Harold J Spaeth, ‘Norms, Dragons, and Stare Decisis: A Response’ (1996) 40 American Journal of Political Science 1064, 1075. The same authors later referred to motivated reasoning in a later book, Jeffrey A Segal and Harold J Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press 2002). Braman argued, however, that Segal and Spaeth did not provide any direct evidence for this. Braman (n 303) 2. 305 Braman (n 303) 53–94. 306 Mark D Alicke, ‘Culpable Causation’ (1992) 63 Journal of Personality and Social Psychology 368. 307 That said, it is of course true that the standard of care expected of defendants in a torts case can depend on a variety of factors that touch upon the defendant’s motivations for acting the way they did. One such factor is the social utility of the defendant’s conduct. A bus driver who suddenly applies the brakes, injuring an alighting passenger, in order to avoid a collision with a child who suddenly ran out in front of the bus will not be held to the same standard of care as a bus driver who applied the brakes, similarly injuring an alighting passenger, purely for their own amusement. See, for example, Flynn v Bus Átha Cliath [2012] IEHC 398. 308 Janice Nadler, ‘Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame’ (2012) 75 Law and Contemporary Problems 1. 309 The legal scenario was loosely based on a real case before the Colorado Supreme Court, People v Hall 999 P. 2d 207 (Colo. 2000). 310 Nadler (n 308) 1. Nadler concluded, “[W]e give the benefit of the doubt to a person with a virtuous character who causes harm: we perceive his actions as less intentional and perhaps even less causal, and the harm less foreseeable than if his character is flawed.” Ibid. 29. In a later experimental study, Nadler, this time with her

63

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

even more so than legal considerations. Perhaps, as Nadler and others have suggested, judgement is affected because moral violations provoke an emotional response.311 These studies demonstrate that extraneous factors may motivate non-legally trained people, but what about judges? Given their professional expertise and training, can they suppress their responses to similar stimuli, or are they as susceptible to motivated reasoning when deciding on the law? Baum argues that there must be a difference between judges and others: “almost surely, the motivations that underlie judicial decision making operate more consciously than those of people in other situations.”312 Wistrich, Rachlinski and Guthrie extended the question of motivated reasoning to judges, testing US judges across six experiments for whether the level of sympathy or disgust that a litigant aroused influenced their interpretation of laws either for or against them. Although their primary objective was to investigate how emotions can affect judges’ decision-making, the study also considered motivated reasoning in a judicial context.313 Drawing from the literature of Kunda and others, the researchers suggested that the tendency to seek consistency between one’s emotions and one’s judgment is an example of motivated reasoning.314 By way of example, one of the six experiments asked 508 judges to decide whether pasting a false US entry visa into a genuine foreign passport constituted the criminal offence of forging an identification card.315 One group of judges learned that the defendant had been hired to sneak into the US to track down someone who had stolen drug proceeds from the cartel. The other group of judges learned of a father who had illegally entered into the US to earn more money to pay for a liver transplant needed to save the life of his critically ill daughter. Both scenarios required the judges to perform exactly the same task: interpret whether pasting a false visa into a genuine passport amounted to forging identification. However, overall, the judges interpreted the law differently, depending on which defendant they were dealing with.316 Forty-four percent of judges ruled that the act constituted forgery for the father trying to earn money for his ill daughter, while 60% ruled that the act constituted forgery for the drug criminal.317 Statistically significant results persisted in the other five scenarios, presenting clear evidence, the researchers contended, colleague McDonnell, demonstrated a similar effect where participants were asked to determine the responsibility of a woman whose dogs mauled a child to death. By varying the experimental conditions, the researchers found that the woman’s unpleasant, but entirely legally irrelevant characteristics had a similar effect on participants’ assessment of her responsibility as the woman’s demonstrable awareness of the danger that her dogs posed, which was a relevant legal consideration. Janice Nadler and Mary-Hunter McDonnell, ‘Moral Character, Motive, and the Psychology of Blame’ (2011) 97 Cornell Law Review 255. Holyoak and Simon demonstrated the same effect by asking participants to assess whether a particular publication was libellous in circumstances where the publisher was either a likeable or an unlikeable character. Keith J Holyoak and Dan Simon, ‘Bidirectional Reasoning in Decision Making by Constraint Satisfaction’ (1999) 128 Journal of Experimental Psychology: General 3. 311 Nadler (n 308) 14; Joshua D Greene and others, ‘An FMRI Investigation of Emotional Engagement in Moral Judgment’ (2001) 293 Science 2105. 312 Baum (n 2) 13. 313 Literature on emotions and judicial decision-making is considered later in this chapter. See section 2.4 Judging and emotion. 314 Andrew J Wistrich, Jeffrey J Rachlinski and Chris Guthrie, ‘Heart versus Head: Do Judges Follow the Law of Follow Their Feelings’ (2014) 93 Texas Law Review 855, 869–870, quoting Brent L Hughes and Jamil Zaki, ‘The Neuroscience of Motivated Cognition’ (2015) 19 Trends in Cognitive Sciences 62–63. 315 Wistrich, Rachlinski and Guthrie (n 314) 876. 316 Ibid. 878. 317 Ibid.

64

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

that emotions influenced judges across the board.318 Furthermore, the researchers suggested that rather than deliberately and consciously siding with sympathetic litigants, subconscious motivated reasoning may have been at play.319 The researchers further observed that participating judges were likely wrestling in legal conventions – for example, the language of statute, legislative history, and precedent – but, unconsciously, in so doing, “their thumbs were on the scale, covertly tipping the balance toward the more likeable or sympathetic litigant.”320 Spamann and Klöhn also demonstrated how defendants’ legally irrelevant traits could influence judicial decisions.321 In an impressively immersive experimental study, they asked 32 judges to review a full set of legal briefs and materials on a trial that resembled a real case before the International Criminal Court for the former Yugoslavia for almost one hour before coming to a decision. Judges were randomly assigned one of two defendants with different legally irrelevant traits (one was described as a “nationalist, hateful Serb defendant,” the other a “conciliatory, regretful Croat defendant”). Judges were also randomly assigned one of two precedent cases, which acted as legally relevant factors. One precedent weakly favoured the defendant; the other precedent weakly favoured the prosecution. The researchers found that the precedents, a legally relevant factor, had very little bearing at all on the judges’ decisions. Instead, a very significant driver of the results were the legally irrelevant defendants’ traits. For judges who judged the nationalist, hateful Serb defendant, 87% upheld convictions, while for the conciliatory, regretful Croat defendant only 41% upheld convictions.322 The legally irrelevant factor seemed to hold more sway. Notably, this experiment also required judges to give written reasons for their decisions. Judges did not seem to display any awareness in their written decisions that the defendants’ characteristics had a bearing. Indeed, their written reasons entirely disregarded the defendants’ characteristics and focused on the precedent. Although the researchers remained agnostic about what precise psychological mechanisms may have been at play, they referred to work on motivated reasoning as one possible explanation.323 That the outcomes appeared to have been driven by the defendants’ characteristics, yet the judgments themselves seemed to have been concerned with the machinations of precedent, is at least consistent with the theory of motivated reasoning. The judges perhaps changed their decision-making processes – that is, how they used precedent – out of a less-thanconscious desire to get to a particular result. On another view, the defendants’ characteristics may in fact have played a more conscious role, but the judges may not have been prepared to acknowledge as much in their judgments.

318 This conclusion has been critiqued. See Terry A Maroney, ‘Who Choose: A Response to Rachlinski, Wistrich, & Guthrie’s Heart versus Head: Do Judges Follow the Law or Follow Their Feelings’ (2014) 93 Texas Law Review 317. For discussion see section 2.4 Judging and emotion. 319 The researchers remarked, “[A]lthough we cannot say for certain, we doubt that the judges in our study consciously intended to do what they did. More likely, it was the result of motivated cognition.” Wistrich, Rachlinski and Guthrie (n 314) 899. 320 Ibid. 321 Holger Spamann and Lars Klöhn, ‘Justice Is Less Blind, and Less Legalistic, than We Thought: Evidence from an Experiment with Real Judges’ (2016) 45 The Journal of Legal Studies 255. 322 Ibid. 256. 323 Ibid. 257.

65

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Aside from emotional resonance based on defendants’ characteristics affecting judges’ reasoning, researchers have also investigated how motivated reasoning can affect decisionmaking in cases where the question of admissibility of evidence is raised. Segal and his colleagues demonstrated that when deciding more serious criminal law cases, judges become significantly more likely to rule that evidence should be admitted rather than declared inadmissible.324 Their study used an empirical triangulation methodological approach, combining experimental studies with archival research of actual decisions. Ostensibly, the standard for the admissibility of evidence should remain the same across all criminal law cases regardless of crime severity, and judges should be blind as to the nature of a crime when deciding whether evidence should be included or excluded.325 However, the researchers showed that this was not the case: the more serious the crime, the more flexible judges seemed in their interpretation of rules, allowing evidence to be admitted to trial more frequently.326 The researchers drew from results from previous experimental studies undertaken by Sood and one of the six experiments undertaken by Wistrich, Rachlinski and Guthrie’s Heart versus Head study.327 In her earlier work, Sood had demonstrated that crime severity linked to how decision-makers used and processed rules regarding the admissibility of evidence.328 Where lay participants were faced with having to exclude evidence in particularly serious crime cases, they tended to reason in a different way, construing case facts in such a way as to allow them to rely on different legal exceptions to the general rules on the admissibility of evidence. By changing how they viewed the facts, this opened different, more flexible legal options to them, thereby allowing them to arrive at the ‘goal’ of admitting evidence more often in the more serious crime cases. The egregiousness of the crime seemed to affect how participants approached decision-making. Sood contended, in these instances, that motivated reasoning – or “motivated justice” as she coined it – was at play.329 Wistrich, Rachlinski and Guthrie replicated this finding on judges. They asked 366 judges to rule on a motion from a hypothetical criminal defendant to suppress allegedly improper evidence indicating possession of drugs. In one group, an unsmoked joint had been found, in the other, several bags of heroin. Here the only difference was the severity of the purported crime. Nevertheless, among the judges who reviewed the marijuana version, 44% admitted the evidence, while among the judges who reviewed the heroin version, 55% admitted it. 324 Jeffrey A Segal, Avani Mehta Sood and Benjamin Woodson, ‘The “Murder Scene Exception”: Myth or Reality? Empirically Testing the Influence of Crime Severity in Federal Search-and-Seizure Cases’ (2019) 105 Virginia Law Review 543. 325 Other studies have also shown the strong motivating force of crime severity even where it is not a legally relevant factor. See, in the context of crime severity seemingly impacting on parole decisions, Carolyn TurpinPetrosino, ‘Are Limiting Enactments Effective? An Experimental Test of Decision Making in a Presumptive Parole State’ (1999) 27 Journal of Criminal Justice 321. 326 Along similar lines, Orfield, reflecting on an interview study with judges and other courtroom actors in Chicago courts observed, noting the remarks of a public defence lawyer: “it is not clear whether judges’ unwillingness to suppress evidence in serious cases is an entirely conscious process. . . . The seriousness of the crime has a powerful subconscious effect on the way one evaluates testimony – it is inescapable.” Myron W Orfield Jr., ‘Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts’ (1992) 63 University of Colorado Law Review 75, 121. 327 Sood (n 292); Maroney, ‘Who Choose: A Response to Rachlinski, Wistrich, & Guthrie’s Heart versus Head: Do Judges Follow the Law or Follow Their Feelings’ (n 318). 328 Sood (n 292). 329 Ibid. 1560.

66

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

The severity of the purported crime appeared to affect outcomes, despite the same legal standards applying in both scenarios. Segal, Sood and Woodson connected these experimental findings to similar effects that emerged from an archival analysis of real-life cases. Analysing a set of 495 US search-and-seizure decisions from 1972 to 1986, and accounting for other variables such as the political ideology of the judge, they found that judges were more likely to admit evidence in more serious cases.330 Breaking down the data, however, the researchers found that most of the increase in the probability that evidence would be admitted occurred in lower-severity crime cases. There was a dramatic increase in the likelihood that evidence would be admitted in cases about alleged crimes carrying a maximum sentence of one year compared to cases where the maximum sentence length was eight years. After that, the increase in likelihood tapered off. What is impressive is that this data from real cases triangulated with the experimental results, suggesting a pattern consistent with motivated reasoning in judicial decisionmaking. Sood suggested that judges may have been reaching for and exploiting the open-endedness of some legal rules, perhaps a sign of motivated reasoning.331 Aside from whether motivated reasoning has a bearing on whether to admit evidence or not before a trial begins, researchers have also investigated how evidence revealed during trial, but that should not have been so revealed, can affect judicial decision-making. When inadmissible evidence gets aired at trial, a decision-maker ought to push it out of their mind. Nevertheless, several studies suggest mock jurors cannot resist being affected by such evidence in their legal decision-making.332 Wistrich, Guthrie and Rachlinski experimentally tested for this issue on judges through a series of hypothetical cases.333 In one experiment, 90 judges were split into two groups and asked to give a verdict in a trial about an alleged rape at a college party. One group of judges heard inadmissible evidence – oral testimony from a witness about the rape complainant’s prior sexual history that she “liked to loosen her inhibitions with a few beers too many and have rough sex with the first guy she saw.”334 By law, this evidence was inadmissible and irrelevant to determining the defendant’s guilt or innocence. Judges ought to disregard such evidence. The other group of judges did not hear this oral testimony. In a troubling finding, those who had heard the oral testimony convicted the suspect 20% of the time; those who had not heard it convicted 49% of the time.335 The oral evidence appeared to have a pernicious effect on verdicts. The evidence at issue in this last study – oral testimony of a witness about a rape complainant’s prior sexual history – did not directly relate to the facts of the alleged crime. However, where inadmissible evidence directly speaks to the accused’s guilt 330 Segal, Sood and Woodson (n 324) 572. 331 Along similar lines, Burns explored the ideal of judicial “common sense,” recognising the possible unconscious, cognitive limitations that judges might experience when making judicial decisions that require interpreting other open-ended legal standards. She gave the “reasonable man” test in tort law or the “best interest of the child” test in family law as two examples of such. Kylie Burns, ‘Judges, “Common Sense” and Judicial Cognition’ (2016) 25 Griffith Law Review 319, 320. 332 Nancy Steblay and others, ‘The Impact on Juror Verdicts of Judicial Instruction to Disregard Inadmissible Evidence: A Meta-Analysis’ (2006) 30 Law and Human Behavior 469. 333 Wistrich, Guthrie and Rachlinski (n 35). 334 Ibid. 1301. 335 Ibid. 1302.

67

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

or innocence – for example, an incriminating confession without being told of one’s rights to speak to a lawyer first – does this affect decisions? In these situations, judges may be even more conscious of the general expectation that they ought to ignore such incriminating, inadmissible evidence. In the US at least, the well-known Miranda doctrine, whereby confessions are invalid without the benefit or the offer of legal counsel, should spring readily to judges’ minds.336 Where evidence is more direct, but inadmissible owing to legal doctrine, are judges more inclined to stick to the letter of the law? To test this, Wistrich, Guthrie and Rachlinski asked judges to convict or acquit a criminal defendant of an armed robbery. All judges were presented with the same pieces of circumstantial evidence linking him to the crime. In addition to the circumstantial evidence, half the judges heard that the defendant had confessed to the crime but only after he had twice requested and twice been refused access to a lawyer. Interestingly, there was a minimal difference in conviction rates between the group of judges who heard about the confession (20.7%), and the group who did not (17.7%). The judges appeared to be able to ignore the improperly obtained confession, upholding the principles of the Miranda doctrine. The researchers suggested that the judges were aware that their thinking was influenced by the inadmissible confession and implicitly raised their threshold for their willingness to convict.337 Whether the results of this study would transfer to real-world cases is uncertain. “Exonerating a real, live defendant that a judge knows to be guilty might be a more serious matter,” the researchers suggested.338 Still, the results indicated that judges might have more ability to ignore such evidence in situations where the ‘fruit of the poisonous tree’ is quite poisonous indeed, going directly to determining guilt or innocence and where legal doctrine is clear-cut.339 Aside from this result in a Miranda doctrine scenario, Wistrich, Guthrie and Rachlinski identified a more general trend that inadmissible evidence does indeed affect outcomes in the other experiments as part of this study. Their findings are not a one-off. Another earlier experimental study by Landsman and Rakos found that judges were also susceptible to the influence of biasing, inadmissible evidence in civil trials.340 Where judges are susceptible to the influence of biasing but inadmissible evidence, is motivated reasoning at play? Wistrich, Guthrie and Rachlinski suggested and speculated other psychological effects may be at work. For example, they referred to psychological reactance (a variation on what is commonly known as “reverse psychology”),341 ironic process theory (the difficulty people have ignoring thoughts they are trying to suppress),342 or mental contamination (the idea that misleading information persists in contaminating

336 Miranda v Arizona, 384 U.S. 436 (1966). 337 Wistrich, Guthrie and Rachlinski (n 35) 1322. 338 Ibid. 339 Wistrich, Guthrie and Rachlinski (n 35). 340 Stephan Landsman and Richard F Rakos, ‘A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation’ (1994) 12 Behavioral Sciences & the Law 113. 341 Jack W Brehm, A Theory of Psychological Reactance (Academic Press 1966). 342 Daniel M Wegner, ‘Ironic Processes of Mental Control’ (1994) 101 Psychological Review 34. An example: if someone tells you “try not to think of a white bear,” it is very hard to suppress the urge to do so. This observation comes from ‘Winter Notes on Summer Impressions’, Fyodor Dostoevsky’s 1863 account of his travels to western Europe.

68

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

decision-making, even after someone is aware it is misleading).343 There is some degree of overlap between these psychological phenomena and motivated reasoning. Whatever the case, results from these studies suggest that judges sometimes seemed motivated to reason towards a particular result relying on inadmissible evidence, even though they knew to suppress and ignore it. What can be done to mitigate the harmful consequences of motivated reasoning? Assuming that motivated reasoning is a less-than-conscious process and that judges do not deliberatively flout legal principles, interventions should, therefore, perhaps focus on raising their awareness of how legally irrelevant factors can affect their decision-making processes. Sood argued, for instance, that directly drawing decision-makers’ attention to a legally irrelevant factor that could influence them might help to combat its motivating effect.344 To test this, she ran an experiment on 344 lay participants, asking them to rule on the admissibility of evidence in a drugs case. Participants were randomly assigned to decide cases either where a suspect was caught in possession of heroin for sale to high school students (a more abhorrent crime) or was caught in possession of marijuana for sale to cancer patients (a less abhorrent crime). Some participants were also given instructions to make them explicitly aware that the abhorrence of the crime was a legally irrelevant factor in the following terms: “feelings . . . or your desire to punish or not to punish . . . may influence your judgments . . . this would violate the purpose of the law.”345 Participants’ decisions to admit the evidence were markedly reduced when they received these instructions, although participants judging the heroin case were still more inclined to admit evidence than those judging the marijuana case were.346 Nevertheless, this simple intervention worked to a considerable extent; decision-makers with the awareness-raising instruction about the pitfalls of motivated reasoning chose not to engage in it and tended to operate by the law. There are two caveats to this finding. The first is whether it would transfer to real-world contexts. It may be considerably easier for decision-makers to suppress their motivation to punish a hypothetical egregious crime than it is to punish a real egregious crime. Decision-makers may find it more troubling to let someone suspected of a serious crime to ‘get away with it’, so to speak, on a point of legal procedure.347 Indeed, as we will see in later chapters, judges may set out to deliberately portray a ‘tough-on-crime’ stance to their public through their decisions for career-motivated reasons – an entirely separate consideration to subconscious reasoning processes.348 The second caveat is that participants in Sood’s study were not practising judges, and she acknowledged that further research is needed to confirm whether such a strategy would work on them. Notwithstanding that, Sood suggested measures to combat motivated reasoning among judges, including judicial training on the phenomenon, and possibly even getting judges to read awareness-generating 343 Timothy D Wilson, David B Centerbar and Nancy Brekke, ‘Mental Contamination and the Debiasing Problem’ in Thomas Gilovich, Dale Griffin and Daniel Kahneman (eds), Heuristics and Biases: The Psychology of Intuitive Judgment (Cambridge University Press 2002). 344 Sood (n 292) 1592. 345 Ibid. 346 Ibid. 1594. 347 Sood did acknowledge the importance of successfully replicating the results of the study in real-world settings; ibid. 1603. 348 Segal, Sood and Woodson (n 324) 585.

69

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

instructions by way of a public commitment to legal objectivity.349 Indeed, as a cohort, studies have shown that judges may hold stronger illusions of objectivity about their decision-making compared to laypeople.350 Nevertheless, suggested interventions such as these ought to be rigorously tested before they are implemented in real-world courtrooms. 2.4 Judging and emotion “I couldn’t read out the judgment, I just had to hand it down in writing.”351 Here, Stephen Wildblood, a senior family law judge in the UK, describes an occasion when he could not bring himself to read out his judgment in court, such was his emotional response to ruling in a child custody case, which took a child away from her young mother. During the hearing, the young mother got down to her knees, pleading with him not to take away her daughter. Wildblood took the unusual step in UK family law proceedings of making the written decision public.352 His emotion is apparent in his judgment, expressing his sadness and regret in coming to the “wretched” conclusion to take the child from her mother, and his anger at what he perceived to be flaws and inefficiencies in the social care and legal systems that seemed to have worked against her.353 In a recent Canadian case, controversy arose after a judge dabbed a tear from her eye during a victim’s impact statement in a sexual abuse case.354 In her ruling refusing to recuse herself from sentencing the perpetrator, she reasoned, “[J]udges are human, they are not expected to be robots. There is therefore nothing wrong with the Court showing emotion. Just because a judge demonstrates human compassion, it does not amount to judicial bias.”355 Sympathy is, of course, just one emotion that judges may feel or express in the courtroom. Consider the high-profile instance of Judge Rosemarie Aquilina’s apparent anger when sentencing former USA Gymnastics team doctor Larry Nassar for a multitude of serious sexual offences against women and girls: [I]t is my honor and privilege to sentence you . . . I’m giving you 175 years, which is 2,100 months. I’ve just signed your death warrant. . . . I wouldn’t send my dogs to you. . . . Our Constitution does not allow for cruel and unusual punishment. If it did, I have to say, I might allow what he did to all of these beautiful souls – these young women in their childhood – I would allow someone or many people to do to him what he did to others.356 349 Sood (n 292) 1603–1605. 350 Ibid. 1585; Landsman and Rakos (n 340) 125; Richard E Redding and N Dickon Reppucci, ‘Effects of Lawyers’ Socio-Political Attitudes on Their Judgments of Social Science in Legal Decision Making’ (1999) 23 Law and Human Behavior 31, 49. 351 UK Judge Stephen Wildblood, as quoted in Emily Dugan, ‘This Judge Says He Cries When He Has To Take Children Away From Their Parents’ BuzzFeed (14 October 2017) accessed 17 July 2020. 352 A Local Authority v The Mother & Anor [2017] EWFC B59. 353 [2017] EWFC B59 para 1 and 50. In a similar vein, Irish Supreme Court Justice and well-known children’s rights advocate Catherine McGuinness acknowledged her “reluctance and some regret” in a high-profile case allowing an appeal to transfer custody of a two-year-old child from its proposed adoptive parents back to her natural parents. N v Health Service Executive [2006] 4 IR 374, 498. Speaking extrajudicially in an interview, she singled out the decision as being one that was particularly difficult for her to make, Irish Association of Law Teachers, Spring Discourse 2019, 8 April 2019. 354 R v Carlson [2018] BCPC 209. 355 Ibid. 10. 356 Judge Rosemarie Aquilina, sentencing hearing in People of the State of Michigan v Lawrence Gerard Nassar Case No. 17–000526-FC, 24 January 2018.

70

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

Addressing the victims, Judge Aquilina remarked, “[T]he monster who took advantage of you is going to wither, much like the scene in the ‘Wizard of Oz’ where the water gets poured on the witch and the witch withers away.”357 She even tossed away in disdain a letter written by Nassar expressing remorse. Whether Judge Aquilina’s comments breached the boundary between judge and advocate for the victims is a matter of perspective, and whether the judge’s emotions actually affected her decision-making is a matter of speculation. Furthermore, as an elected judge, and with cameras rolling, there may have been a performative aspect to Judge Aquilina’s behaviour and discourse at the sentencing hearing. Whatever the case, she undoubtedly made a decision to express anger in strong terms.358 That emotion is, at least some of the time, felt by judges during the process of judicial decision-making is not a revelation, and judges acknowledge as much.359 Yet blind justice is seen as an ideal to aspire to. According to Terry Maroney, a scholar on emotion and judging, the “persistent cultural script” has been one of “judicial dispassion.”360 Posner describes similarly how emotional reactions are (or at least are supposed to be) forbidden moves in the judicial game.361 In a thorough analysis of the prevalence of rhetoric disapproving of emotional judging, Maroney described how: [I]n contemporary Western jurisprudence it is never appropriate for emotion –anger, love, hatred, sadness, disgust, fear, joy – to affect judicial decision making . . . to call a judge emotional is a stinging insult, signifying a failure of discipline, impartiality, and reason.362

Both Maroney and Posner challenge assertions that emotional reactions in judging are inevitably wrong, necessarily leading to sloppiness, bias and irrationality.363 And, indeed, some judges agree. In the late 1980s, US Supreme Court Justice William Brennan, writing extrajudicially, railed against the persistent cultural script against judicial emotion that Maroney alluded to, opening up something of a Pandora’s Box in the process. Brennan argued that judges draw upon their emotions when deciding cases and that this could even be a good thing: “dialogue of reason and passion, does not taint the judicial process, but is in fact central to its vitality,” he contended.364 For a judge of such considerable influence to suggest that emotion not only plays but should play a role in judging and judicial decision-making caused not a little controversy.365

357 Ibid. 358 On the theme of angry judges generally, see Terry A Maroney, ‘Angry Judges’ (2012) 65 Vanderbilt Law Review 1205. In this article, Maroney describes how we may expect judges to act as society’s “anger surrogates,” which maybe captures how Judge Aquilina saw her role when sentencing Nassar. Ibid. 1209. 359 Former Australian Chief Justice Gerard Brennan confided that sentencing criminals was “emotionally draining,” for instance. Gerard Brennan, ‘The High Court and the Sentencing Environment,’ Paper presented at the Conference on Sentencing: Principles, Perspectives and Possibilities, Canberra, Australia, 10–12 February 2006. 360 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’ (n 7). 361 Richard A Posner, How Judges Think (Harvard University Press 2010) 106. 362 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’ (n 7) 629. 363 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’ (n 7). Posner agrees. The fact that emotional reactions are, to some extent, taboo “does not make emotion always an illegitimate or even a bad ground for a judicial decision.” Posner (n 361) 106. 364 William J Brennan Jr., ‘Reason, Passion, and the Progress of the Law’ (1988) 10 Cardozo Law Review 3, 3. 365 Fiss noted that Justice Brennan’s remarks caused a “tremendous stir,” Owen M Fiss, ‘Reason in All Its Splendor’ (1990) 56 Brooklyn Law Review 789, 796. For further commentary on the impact of Justice Brennan’s remarks, see Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’ (n 7) 658.

71

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

More recently, and equally memorably, Barack Obama thrust emotion and judging back in the spotlight before and during his presidency. Obama argued that in hard cases at least, “the critical ingredient is supplied by what is in the judge’s heart,” suggesting that emotion, or at least compassion, has a role in judging. On another occasion, he described how he viewed the “quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions.”366 Distinctions between empathy, compassion and emotion aside – more on that later in this section – Obama’s comments proved controversial. Yet even his own Supreme Court nominees during his presidency stuck to the cultural script, disavowing the role of emotion in judging. Elena Kagan, during her Supreme Court confirmation hearing, was asked by Senator Jon Kyl for her view on Obama’s analogy that “the law only takes you the first 25 miles of the marathon, and that the last mile has to be decided by what’s in the judge’s heart.” Kagan replied: Senator Kyl, I think it’s law all the way down. It’s – when a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is – and this is true of constitutional law, it’s true of statutory law – the question is what the law requires.367

Another of Obama’s nominees to the Supreme Court, Sonia Sotomayor, similarly responded to the same question asked by the same senator on the marathon analogy in her confirmation hearing: “No sir. . . . I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart . . . . [I]t’s not the heart that compels conclusions in cases, it’s the law.”368 This juxtaposition, the pitting of law against empathy, led some commentators to somewhat dramatically describe the matter as the Empathy War.369 The reality, though, of course, is that judges cannot simply rid themselves of their emotional or empathetic selves, and these facets of their personality may seep into their work, for better or worse. US Supreme Court Justice Robert Jackson emphasised that there was no such thing as a judge devoid of emotion, describing dispassionate judges in the same breath as Santa Claus, Uncle Sam and the Easter Bunny.370 Interestingly, that empathy – note, not emotion – is a pernicious, undesirable trait in judges is not necessarily a view shared by the public, at least not in the US. In a survey, 77% of Democratic voters and 63% of Republican voters viewed empathy as a “very important” characteristic

366 Press Briefing, Barack Obama on Justice David Souter’s retirement, 1 May 2009. On another occasion, Barack Obama said “[W]e need somebody who’s got the heart – the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” Planned Parenthood convention in Washington DC, 17 July 2007. 367 Elena Kagan, Supreme Court Confirmation Hearing, 29 June 2010. 368 Sonia Sotomayor, Supreme Court Confirmation Hearing, 14 July 2009. 369 Richard Just, ‘The Empathy War’ The New Republic (14 July 2009) accessed 17 July 2020; Mary Anne Franks, ‘Lies, Damned Lies, and Judicial Empathy’ (2011) 51 Washburn Law Journal 61, 62. During Sonia Sotomayor’s confirmation hearing, Senator Orrin G Hatch remarked, perhaps for effect, that emotional judges would put “nothing less than our liberty is at stake.” Opening Statement of Senator Orrin Hatch, Senate Judiciary Committee’s confirmation hearing for Supreme Court nominee Sonia Sotomayor. 370 United States v. Ballard, 322 U.S. 78 (1944), 94.

72

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

for a Supreme Court judge to have.371 The appropriate role of emotion and empathy in judging will presumably continue to provoke considerable differences of opinion.372 Moving to our present concern – empirical research on how emotion affects judicial decision-making – and further debate emerges. Importantly, scholars rightly acknowledge and debate the complexities of defining emotion in the first place.373 Marsons encapsulates this complexity, noting that emotion is not a singular, coherent phenomenon, but “a complex stream of multiple phenomena operating at a range of biological, neural, physiological, experiential, psychological, social, cultural, temporal and individual levels, without a singular definition.”374 When one speaks of emotion in a judicial context, other considerations and concepts overlap – judicial temperament and empathy, for instance.375 Indeed, the above examples of so-called ‘emotion’ in the courtroom, perhaps conflate several different concepts, for example, empathy, which according to scholars is not necessarily an emotion per se, and strictly speaking, is value-free.376 Moreover, parsing out whether a judicial decision is affected by a judge’s emotional response (howsoever defined) or by a different variable – a judge’s political ideology, for instance – requires a nuanced approach. To take a hypothetical example, in a case where a judge liberally interprets an immigration law to grant the applicant asylum in circumstances that arouse particular sympathy where does that judge’s liberal political views on immigration issues end, and their emotional response to the plight of the applicant begin? This hypothetical case hints that the litigant may be the source of a possible emotional response by the judge. As UK judge Patrick Devlin once asked, “[D]oes the wind of the law blow equally upon the meritorious and the unmeritorious litigant?”377 We have already seen Wistrich, Rachlinski and Guthrie’s Heart versus Head study suggest that this is not the case. In a series of hypothetical cases, US judges interpreted laws differently depending, it seemed, on the sympathy or disgust that the litigant aroused in them. The researchers 371 James L Gibson, ‘Expecting Justice and Hoping for Empathy’ (2010) 20 Law and Courts 21. 372 For further examples of judges’ commentary on the place of emotion in judging, see Wistrich, Rachlinski and Guthrie (n 314) 856–860. 373 Damasio noted the difficulty psychologists and neuroscientists had with grasping the concept of emotion: “[E]motion was too subjective; it was too elusive and vague,” Antonio Damasio, ‘A Second Chance for Emotion’ in Ralph Lane and Lynn Nadel (eds), Cognitive Neuroscience of Emotion (Oxford Books 2000) 12. 374 Lee Marsons, ‘Audiovisualities and the Courtroom: The New Frontier for Empirical Law and Emotion Research?’ (Draft doctoral dissertation, University of Essex 2020) ch 1. Referring to Elaine Fox, Emotion Science: Cognitive and Neuroscientific Approaches to Understanding Human Emotions (Palgrave Macmillan 2008) 353. 375 In a recent paper, Maroney used the term “judicial emotion” as an umbrella term for three interrelated phenomena: judicial emotional experience, judicial emotional regulation and judicial emotional impact. See further, Terry A Maroney, ‘Empirically Investigating Judicial Emotion’ (2019) 9 Oñati Socio-Legal Series 799, 801. On judicial temperament, see Terry A Maroney, ‘(What We Talk About When We Talk About) Judicial Temperament’ (2020) Vanderbilt Law Research Paper. 376 Empathy, “by itself, is merely an instrumental concept . . . a capacity, a tool used to achieve a variety of ends” according to Susan Bandes. Susan Bandes, ‘Empathy, Narrative, and Victim Impact Statements’ (1996) 63 University of Chicago Law Review 361, 379. Empathy, argues Michael Basch, “[s]trictly speaking . . . is value-free.” Michael Franz Basch, ‘Empathic Understanding: A Review of the Concept and Some Theoretical Considerations’ (1983) 31 Journal of the American Psychoanalytic Association 101, 119. In another comprehensive exploration of empathy in law, Lynne Henderson describes how empathy captures three basic phenomena: “(1) feeling the emotion of another, (2) understanding the experience or situation of another, both affectively and cognitively, often achieved by imagining oneself to be in the position of the other, and (3) action brought about by experiencing the distress of another (hence the confusion of empathy with sympathy and compassion).” Lynne N Henderson, ‘Legality and Empathy’ (1987) 85 Michigan Law Review 1574, 1579. 377 Devlin (n 297) 92.

73

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

concluded that emotion was at play, and while they did not doubt that the judicial head prevailed “most of the time” nevertheless, “judicial heart wins many skirmishes.”378 They contended that an honest theory of judging must take emotion into account.379 Is that all there is to it, though? Did Wistrich, Rachlinski and Guthrie really focus the microscope on judges’ emotions? In a follow-up article critiquing their study, Maroney suggested that despite its considerable merits, Wistrich, Rachlinski and Guthrie oversimplified emotion as a concept. She pointed out that the dichotomies on which they relied – whether judges follow laws or their feelings, their hearts or their minds – did not heed the complexity and breadth of emotion. While the hypothetical cases isolated variables that had emotional elements,380 their study tested more for intuitive heuristic-driven reasoning, based on “fast and relatively unreflective judgments of good/like and bad/dislike.”381 Such judgments, Maroney contended, were unreflective of the true complexity of emotion. She pointed out that others have identified many other different forms that emotion can take in the courtroom: for example, “courage,” and “compassion,”382 “anger,”383 and US judge Edward Devitt’s suggestion that “a kind and understanding heart” was the pre-eminent attribute of an ideal judge.384 Maroney concluded that a full exploration of judicial emotion must reflect on all of these facets.385 Emotion can also come from many different sources, both within and beyond the courtroom and can be triggered in many different ways.386 Factors within a courtroom – for example, a persistently emotionally draining caseload, a dislikeable lawyer or a particularly moving witness testimony – may potentially arouse emotions in a judge. Moving beyond the courtroom, one can speculate that an entirely unrelated disappointment in the judge’s life – even a very mild one such as a favourite sports team suffering an unexpected loss,387 or presiding over a case that resonates with an emotional episode in their personal life – may also affect their decisions. Measuring whether such non-legal factors act as emotional triggers that affect judicial decision-making is undoubtedly tricky. Nevertheless, researchers have investigated whether certain factors that may trigger emotions do, in fact, correlate with decision-making trends. 378 Wistrich, Rachlinski and Guthrie (n 314) 911. 379 Ibid. 912. 380 Maroney, ‘Who Choose: A Response to Rachlinski, Wistrich, & Guthrie’s “Heart versus Head: Do Judges Follow the Law or Follow Their Feelings?”’ (n 318) 318 and 321. 381 Ibid. 324 and 326–327. Maroney suggests that the results therefore probably only demonstrate the affect heuristic which occurs when “a rapid, felt sense of goodness/liking or badness/disliking sometimes drives choices we then rationalize.” Ibid. 324, citing Robert B Zajonc, ‘Feeling and Thinking: Preferences Need No Inferences’ (1980) 35 American Psychologist 151. See further, on the affect heuristic, Kahneman, who explains that the affect heuristic “is an instance of substitution, in which the answer to an easy question (How do I feel about it?) serves as an answer to a harder question (What do I think about it?).” Kahneman (n 4) 139. 382 Guido Calabresi, ‘What Makes a Judge Great: To A. Leon Higginbotham, Jr.’ (1993) 142 University of Pennsylvania Law Review 513. 383 Terry A Maroney, ‘Emotional Regulation and Judicial Behavior’ (2011) 99 California Law Review 1485, 1527. 384 Edward J Devitt, ‘Ten Commandments for the New Judge’ (1979) 65 ABA Journal 574, 574. It should be noted that describing a judge as “kind” perhaps strays into the territory of judicial temperament rather than judges’ emotional responsivity. 385 Maroney, ‘Who Choose: A Response to Rachlinski, Wistrich, & Guthrie’s “Heart versus Head: Do Judges Follow the Law or Follow Their Feelings?”’ (n 318) 328–329. 386 It should be acknowledged that Wistrich, Guthrie and Rachlinski do not claim otherwise in their study. 387 Ozkan Eren and Naci Mocan, ‘Emotional Judges and Unlucky Juveniles’ (2018) 10 American Economic Journal: Applied Economics 171.

74

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

One such factor is how judges’ personal relationships may provoke an empathetic or emotional response in their work. One example described more fully elsewhere is Glynn and Sen’s archival study on judges with daughters.388 They demonstrated that US courts of appeals judges who had daughters were more pro-plaintiff when deciding gender-related discrimination claims taken by women, and in women’s rights cases.389 Glynn and Sen cautiously speculated that these cases perhaps resonated more with judges with daughters owing to their relationships with them. They theorised that judges may have been protecting their daughters, or that daughters may have lobbied their judge parent in the family home, or that judges’ pro-plaintiff decision-making in gender-salient cases was a manifestation of empathy. Necessarily, Glynn and Sen resisted stating that empathy or an emotional response was the definitive cause of their finding in this study. Still, their statistically robust finding suggests that the impact of personal relationships on judges’ decision-making ought to be further explored in other contexts. Aside from family matters, another archival study showed how an entirely external and relatively innocuous factor might result in emotional judging.390 Analysing all juvenile sentencing decisions in the US state of Louisiana between 1996 and 2012, Eren and Mocan identified how a trivial emotional hardship in judges’ lives seemed to affect their work – the fortunes of a local sports team. Sentence lengths against young black male juveniles aged between 10 and 17 increased whenever a hugely popular local American college football team, the Louisiana State University Tigers, lost a game that the bookmakers expected them to win. The researchers calculated that surprise losses by the Tigers correlated to excess punishments of black male juvenile defenders in Louisiana by an average of 32 days, an increase of about 6%, with the effect lasting about a week after a match. There was an even more significant effect if the judge had attended Louisiana State University as an undergraduate – an average of an additional 72 days to sentence lengths.391 Overall, each surprise loss by the Tigers accounted for an increase in the total of sentencing days in Louisiana of more than 1,296 days.392 There was no discernible difference between black and white judges, and the effect only applied to black male defendants.393 The researchers acknowledged that the difference in sentencing outcomes might not just have been caused solely by underperforming emotional judges. It might also have been the case that other courtroom actors such as lawyers and the defendants themselves underperformed after an unexpected loss and this might have had a knock-on effect on sentence lengths.394 Dietrich, Enos and Sen took an innovative approach to investigating emotional judging by extracting emotional content from 3,000 hours of audio recordings of oral arguments before the US Supreme Court spanning some 1,773 cases over 30 years.395 The researchers 388 Adam N Glynn and Maya Sen, ‘Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?’ (2015) 59 American Journal of Political Science 37. See further, section 4.1.2 Gender and judicial decision-making on gender-salient issues. 389 Ibid. 390 Eren and Mocan (n 387). 391 Ibid. 187 and 194. 392 Ibid. 200. 393 Ibid. 193. 394 Ibid. 395 Bryce J Dietrich, Ryan D Enos and Maya Sen, ‘Emotional Arousal Predicts Voting on the US Supreme Court’ (2019) 27 Political Analysis 237.

75

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

measured justices’ emotional arousal by vocal pitch. They found that when a judge’s vocal pitch heightened, therefore suggesting heightened emotional arousal, they were more likely to decide the case against the attorney they were speaking to.396 Emotional arousal, as measured through vocal pitch, seemed to be a yardstick for eventual case outcomes. Staying with the general theme of judge-lawyer dialogue, Gleason presented findings that women lawyers were more successful when they employed more emotional language in their oral arguments than male lawyers who used similarly emotional language were.397 On the other hand, when it comes to written submissions, Black and his colleagues found that lawyers who employed less emotional language in their briefs to the US Supreme Court were generally more likely to succeed than those who employed emotional language.398 Of course, these findings ought to be replicated in further studies to draw any generalisable conclusions. Moving from judge-lawyer dialogue to analysing the effect of the daily grind on a judge’s work, a now-famous study by Danziger, Levav and Avnaim-Pesso suggested a correlation between when judges ate and how they decided cases.399 Analysing a large dataset of parole decisions by Israeli judges, the researchers found that the likelihood of a judge granting parole started out relatively high at the beginning of their working day – about 65% of cases, then it dropped precipitously to nearly zero during each session before a judge had a break. Immediately after a break, the likelihood abruptly increased back up to about 65%. Put another way, as judges made repeated rulings without a break, they showed an increased tendency to rule in favour of the status quo – to keep prisoners in prison and not to grant parole.400 The researchers rightly did not draw any conclusions as to whether low mood, irritability or a willingness to engage in difficult decisions caused these trends, but they did cautiously speculate that judges’ cognitive effort in making decisions may have declined the longer they went without a food break, and were, therefore, more inclined to preserve the status quo. A food break – by increasing glucose levels and consequently positive mood and mental resources – might have made judges more willing to engage more fully in the cognitively demanding task of deciding whether prisoners should be granted parole rather than take the easier option to preserve the status quo.401 The study generated considerable publicity and some criticism. Other researchers have since questioned their interpretation of their findings, offering more mundane and palatable 396 “Justices choose their words carefully, but have far less control over how those words are spoken,” observed Dietrich and his colleagues. Ibid. 6. 397 Shane A Gleason, ‘Beyond Mere Presence: Gender Norms in Oral Arguments at the US Supreme Court’ (2019) Political Research Quarterly 1065912919847001, 6–9. 398 Ryan C Black and others, ‘The Role of Emotional Language in Briefs before the US Supreme Court’ (2016) 4 Journal of Law and Courts 377. 399 Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, ‘Extraneous Factors in Judicial Decisions’ (2011) 108 Proceedings of the National Academy of Sciences 6889. 400 On status quo bias, see section 2.1.5 Other heuristics and biases. 401 With regard to mood and judging in an experimental setting, Englich and Soder tested non-legal-expert participants for their susceptibility to the anchoring effect when delivering sentences in a hypothetical criminal trial, depending on their mood. The anchor was a prosecutor’s demand. Where participants were induced with a sad mood (they were asked to recall and re-experience an incident that made them sad), they were more prone to the anchoring effect than participants induced with a happy mood. Birte Englich and Kirsten Soder, ‘Moody Experts: How Mood and Expertise Influence Judgmental Anchoring’ (2009) 4 Judgment and Decision Making 41, 43–45.

76

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

explanations. The drop off in judges’ likelihood of granting parole throughout the session may have been because parole applicants who appeared without legal representation were more likely to have been heard before breaks, although the authors of the original study rebutted this particular criticism.402 More recently, Glöckner demonstrated using a simulation model on the same original study’s data that judges’ good time-management of their busy court schedules may have accounted for the effect Danziger and his colleagues found.403 Glöckner suggested that judges with a full grasp of their caseload may be able to identify cases where granting parole may be a realistic outcome. Therefore, judges may decide to schedule ‘hard’ cases after breaks because they can take longer than the ‘no-hope’ cases that can be dealt with quickly and easily before a break. Glöckner’s findings at least cast the conclusions of the original study into some doubt; the explanation may be more mundane. Again, the study on the Israeli judges highlights the limitations of archival research and how difficult it can be to identify precisely the cause of judicial decision-making trends. Perhaps through empirical triangulation, further archival study and complementary experimental studies may cast more light on this issue, although whether judges would be prepared to get “hangry” (a scientifically valid concept!)404 for the sake of research is another matter. Finally, a recent pioneering study by researchers from the University of Tokyo offers a glimpse into the future of understanding emotion and judicial decision-making. Ota and his colleagues investigated whether legally trained and non-legally trained individuals responded more or less emotionally to legal problems in an experimental study using brain imaging techniques. They asked lawyers and non-lawyers to resolve legal problems – one about the prosecution of a murder suspect, the other about a joint robbery-murder – while under observation in an fMRI brain imaging scanner. Images taken of the participants’ brains when resolving the legal problems showed that the areas of the brain associated with emotion were more engaged in non-lawyers than they were in lawyers.405 To their credit, researchers in this field have already displayed considerable ingenuity in their methodological approaches, exploring emotion through vocal pitch, language analysis and even brain imaging techniques. More extensive experimental work will paint ever-more-sophisticated pictures of how judges respond to different emotional contexts in the courtroom, but such research should remain cognisant of Maroney’s important reflections on the breadth and complexity of conceptualising emotions in a judicial context. Role analysis studies could collate judges’ own self-reflections on how they think emotion either does or perhaps should affect judicial decision-making, although there would of

402 Keren Weinshall-Margel and John Shapard, ‘Overlooked Factors in the Analysis of Parole Decisions’ (2011) 108 Proceedings of the National Academy of Sciences E833. But see the researchers’ reply, Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, ‘Reply to Weinshall-Margel and Shapard: Extraneous Factors in Judicial Decisions Persist’ (2011) 108 Proceedings of the National Academy of Sciences E834. 403 Andreas Glöckner, ‘The Irrational Hungry Judge Effect Revisited: Simulations Reveal That the Magnitude of the Effect Is Overestimated’ (2016) 11 Judgment and Decision Making 601. 404 Sarah Keating, ‘The Brain Science That Explains “Hanger”’ accessed 17 July 2020. 405 Shozo Ota and others, ‘A Brain-Science of “Legal Mind”: MRI Experiments Comparing the Brain Activities of Legal Professionals and Lay Persons,’ Paper presented at the Law and Society Association Annual Meeting, Washington DC on 31 May 2019.

77

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

course be limitations to this.406 It may prove to be a tricky line of enquiry if judges stick to the “persistent cultural script” against judicial emotion.407 2.5 Group psychology effects on judicial panels’ decision-making One spring morning in 1798, a leather tanner named Joseph Barker was going about his business selling leather hides at the Leadenhall Market in London. Six inspectors authorised by the Mayor of London arrived at Mr Barker’s stall to inspect whether the leather hides were “well and thoroughly dried” after tanning, in accordance with laws on selling leather goods. Four inspectors agreed that Mr Barker’s leather hides were not adequately dried, while two inspectors disagreed, and so Mr Barker’s leather hides were seized. Mr Barker argued before the courts that all six inspectors ought to have agreed for his hides to have been lawfully seized.408 Judge Eyre ruled otherwise; the opinion of four out of six inspectors was robust enough and should stand. In so doing, Eyre reflected on the psychological drama of legal decision-making by a group: It is impossible that the bodies of men should always be brought to think alike; there is often a degree of coercion and the majority is governed by the minority and vice versa according to the strengths of opinions, tempers, prejudices and even interests.409

His comments foretold some of the issues and dynamics that psychologists would consider many centuries later when investigating group decision-making on legal questions. In just a few lines Eyre hinted at the unruliness of group decision-making, the efforts that group members make to cajole others within the group towards their position and an array of extraneous factors that might affect a group’s decision. Of course, the decision of a panel of leather hide inspectors had only limited implications for a certain trade. However, panel courts are a feature of most judicial systems, often operating at the highest levels of the judicial hierarchy, or on transnational courts, hearing the so-called ‘hard cases’, where the legal, political and societal stakes are at their highest.410 This section’s focus is on how psychological phenomena associated with group decisionmaking may affect the work of these judicial panels, who are, at their most fundamental level, small groups that make big decisions. Judges and scholars have reflected on the advantages and disadvantages of panel judging. Former US Supreme Court judge and influential legal writer Benjamin Cardozo suggested in his classic text The Nature of the Judicial Process that a plurality of judges on an appellate court “balance one another,” leading to “a constancy and uniformity and average value greater than its component 406 See, for example, the work of Elena Kapardis on the related issue of judicial resilience among Cypriot judges, relying primarily on rich data from interviews with the judges themselves, Elena Kapardis, ‘Judicial Resilience : The Cypriot Tale of Crisis and Transformation,’ Paper presented at the Law and Society Association Annual Meeting, Toronto on 9 June 2018; Elena Kapardis, ‘What Resilient Judges Do Differently,’ Paper presented at the Law and Society Association Annual Meeting, Washington DC on 30 May 2018. 407 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’ (n 7). 408 Grindley v Barker (1798) 1 Bos. & Pul. 229. 409 Ibid. 239. 410 Of course, panel judging is not confined to the highest national and international courts: for instance, tribunals for discrete legal areas such as workplace disputes often operate three-person panels. The Labour Court in Ireland and the Employment Appeals Tribunal in the UK employ tripartite panels to adjudicate employment rights appeals cases.

78

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

elements.”411 Martinek described the logic of panel judging: “[D]eliberation among a set of judges is intended to enhance the likelihood of arriving at the correct decision; that is, reduce the likelihood of erroneously reversing a correct lower court decision or erroneously affirming an incorrect lower court decision.”412 Drahozal similarly described how appellate courts, because of their “collegial decision making,” correct the mistakes of trial courts.413 However, this viewpoint is not entirely shared. Kornhauser and Sager were more sceptical about the perceived benefits of judicial panels, referring to the “naïve belief” that having a “multiplicity of judges is in some sense a route to better decisions.”414 With these observations in mind, it makes sense to consider how psychological phenomena may affect decision-making as a group. Before examining the research on group decision-making psychological phenomena and their implications for understanding judicial panels’ decision-making, it is worth noting that researchers have investigated group dynamics on judicial panels from a variety of other disciplinary perspectives and methodologies. To briefly preview this research considered in later chapters, political scientists have demonstrated that judges with particular political ideologies appear to influence their colleagues on judicial panels towards particular outcomes in politically sensitive cases.415 Judges on panels behave strategically to achieve their political goals.416 Women judges appear to influence otherwise all-male panels in judicial panels’ decisions in gender-salient cases.417 In a similar vein, judges of minoritised racial groups appear to influence their colleagues on judicial panels’ decisions in race-related cases.418 Judges on panel courts self-report the often considerable influence their colleagues have on them when deciding cases.419 Empirical research suggests, then, and judges acknowledge, that colleagues operating on judicial panels influence each others’ decision-making. To return to our present concern – the psychology of judicial panels’ decision-making – what follows is an overview and analysis of the phenomena identified in psychology literature that can affect group decision-making and a consideration of how they may apply to and therefore affect judicial panels’ decision-making. These psychological group 411 Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press 1921) 177. 412 Wendy L Martinek, ‘Judges as Members of Small Groups’ in David E Klein and Gregory Mitchell (eds), The Psychology of Judicial Decision Making (Oxford University Press 2010) 73. 413 Christopher R Drahozal, ‘Judicial Incentives and the Appeals Process’ (1997) 51 Southern Methodist University Law Review 469, 469. 414 Lewis A Kornhauser and Lawrence G Sager, ‘Unpacking the Court’ (1986) 96 Yale Law Journal 82. 415 See section 4.5.3 The strategic model. 416 Epstein and Knight describe judges as “strategic actors who realize their ability to achieve their goals depends on a consideration of the preferences of other actors, the choices they expect others to make, and the institutional context in which they act.” Lee Epstein and Jack Knight, The Choices Justices Make (Sage 1997) 10. See section 4.5.3 The strategic model. 417 See section 4.1.2 Gender and judicial decision-making on gender-salient issues. 418 See section 4.2 Judges’ race and ethnicity. 419 Ninety percent of US state supreme court judges who participated in one interview study expressed the view that other judges have a significant impact on their decision-making. Close collaboration on judgment writing was common. Rick A Swanson, ‘Judicial Perceptions of Voting Fluidity on State Supreme Courts’ (2007) 28 Justice System Journal 199. Other role analysis studies reveal similar dynamics. Paterson (n 281); Gunnar Grendstad, William R Shaffer and Eric N Waltenburg, Policy Making in an Independent Judiciary: The Norwegian Supreme Court (ECPR Press 2015); Penny Darbyshire, Sitting in Judgment: The Working Lives of Judges (Bloomsbury Publishing 2011); Harry T Edwards, ‘The Effects of Collegiality on Judicial Decision Making’ (2003) 151 University of Pennsylvania Law Review 1639.

79

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

decision-making phenomena are split into two broad categories: positive effects that can help groups make better decisions and negative effects that can cause poorer decisionmaking by groups. To briefly introduce the state of the literature on this topic, as we have seen earlier in this chapter, experimental research studies have examined cognitive biases and errors in individual judges’ decision-making. However, there is almost no experimental research specifically on how psychological group decision-making phenomena affect judicial panels. Notwithstanding this notable absence of experimental work using practising judges as participants, psychology researchers have often investigated group decision-making in other legal contexts using mock jurors as participants.420 These studies are informative, although we are left to merely speculate as to whether findings from mock juror studies might transfer to practising judges on judicial panels. Aside from mock juror studies, judicial scholars have conducted archival research on real-world decisions by judicial panels, sometimes identifying decision-making trends related to the group dynamic. To explain the trends they find, researchers sometimes draw inspiration from, and refer to, the psychology literature on group decision-making phenomena. To a great extent then, understanding psychological group decision-making phenomena on judicial panels is an ‘arms-length’ exercise, extrapolating from statistical trends that emerge from archival research and findings from mock-juror experimental studies. We remain mostly unenlightened as to how precisely psychological group decision-making phenomena may affect the work of judges working together on panels. With this in mind, the following section is unlike others in this chapter. It is predominantly concerned with describing how this body of research from psychology could potentially apply to judges (in this case, judicial panels) and suggests avenues for future experimental work. We first turn to studies identifying and explaining various positive effects on the types of decision-making tasks that judicial panels may face.421 For instance, groups can be better at exchanging information leading to more accurate judgement, better at assessing probability and detecting lies following group discussion and can sometimes detect individual group members’ biases. On the other hand, groups experience problems when they make decisions. Some adverse effects of group decision-making include: • how individuals’ cognitive errors can be amplified in a group setting; • cascade and conformity effects (herd mentality); • group polarisation (groups end up taking more extreme positions after deliberating); • problems arising from sharing information; • social loafing (where individual members of a group make less effort in making decisions where other individual members are prepared to pull their weight); and • in-group biases.422 420 See generally, Dennis J Devine, Jury Decision Making: The State of the Science, vol. 8 (New York University Press 2012). 421 For an overview of the literature, see Dan Bang and Chris D Frith, ‘Making Better Decisions in Groups’ (2017) 4 Royal Society Open Science 170193. 422 The first four of these negative effects on group decision-making draw directly from Cass Sunstein and Reid Hastie’s useful breakdown of the concept of groupthink into four ways groups encounter problems when

80

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

These negative effects are considered in turn, both generally and to explain their possible effects on judicial panels’ decision-making. 2.5.1 Positive effects of group decision-making Consider some of the skills and faculties a judge must draw upon when deciding cases; absorbing information, assessing the credibility and persuasiveness of evidence and weighing the probability that events did or did not happen, or may or may not occur in the future. Are groups better than individuals at these decision-making tasks? Psychology research on group decision-making suggests that they may be. One advantage groups may have over individuals is in how they use information. Individuals within groups can pool information together, leading to better or more accurate judgement. Francis Galton demonstrated the ‘wisdom of crowds’ when he collected individual entries to a “guess the weight of the ox” competition and showed that the average of these entries was closer to the truth than the single winning entry.423 This ‘wisdom of crowds’ effect applies to small groups as well.424 If small groups engage in open discussion, knowledge is better used.425 These discussions allow group members to reflect on the reliability of information and to assess evidence.426 These advantages that groups have when exchanging and pooling information may well transfer to the work of judicial panels, although there is no empirical evidence for such. Judge Harry T Edwards, reflecting on his own experiences on judicial panels on the US Court of Appeals for the District of Columbia Circuit noted the positive aspects of information exchange among colleagues: To be able to admit that one is not perfect and to look to one’s colleagues to provide a safety net and a check against error is a wonderful thing in a work environment. The result is a better work product. If one’s reasoning or writing admits of ambiguities that one did not intend or legal consequences that one did not foresee, these can be cured through the giveand-take of collegial deliberation.427

Aside from processing information, the ability to accurately assess probability can be vital for excellent judicial decision-making. Assessing probability can be a retrospective exercise (for example, assessing whether a negligent act occurred) or a prospective one (for example, weighing up whether to grant an injunction to prevent possible future harm). Experimental research findings suggest that groups may be better than individuals at assessing probability.428 One phenomenon that psychologists observe in this respect is probability matching. Probability matching is a flawed decision-making strategy, predicting that something or they make decisions. See Cass R Sunstein and Reid Hastie, Wiser: Getting Beyond Groupthink to Make Groups Smarter (Harvard Business Press 2015) 23–24. 423 Francis Galton, ‘Vox Populi’ (1907) 75 Nature 450. 424 Bahador Bahrami and others, ‘Optimally Interacting Minds’ (2010) 329 Science (New York, NY) 1081; Piotr Migdał and others, ‘Information-Sharing and Aggregation Models for Interacting Minds’ (2012) 56 Journal of Mathematical Psychology 417. 425 Bang and Frith (n 421) 6. 426 Bahador Bahrami and others, ‘What Failure in Collective Decision-Making Tells Us about Metacognition’ (2012) 367 Philosophical Transactions of the Royal Society B: Biological Sciences 1350. 427 Edwards (n 419) 1650. 428 Boris Maciejovsky and others, ‘Teams Make You Smarter: How Exposure to Teams Improves Individual Decisions in Probability and Reasoning Tasks’ (2013) 59 Management Science 1255.

81

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

someone is a member of a particular group or class based on proportional base rates. To illustrate, take a well-known experiment where participants were asked to predict the roll of a die with ten sides, seven red and three green.429 The intuitive strategy is perhaps to choose red 70% of the time and green 30% of the time rather than the more prudent course of action which is to accept the inevitability of probability and always choose the dominant colour, red. Groups are less susceptible to probability matching than individuals; in fact, they can almost eliminate it.430 This research, suggesting that groups are better than individuals at assessing the probability of an outcome, may indicate that a group of judges working together as a panel may be better at assessing important matters of probability than their colleagues working alone would be. To give an example, a panel of bankruptcy judges may make better decisions than a judge working alone when weighing up the probability that a company would be likely to survive as a going concern if given one last reprieve from the court. What about separating truth from lies? Judges, of course, regularly scrutinise whether witnesses are telling the truth or are lying. Studies have shown that groups are consistently more accurate than individuals in distinguishing truth from lies across several experiments.431 This group advantage comes through the process of group discussion. Thus, this research suggests that judicial panels may be better at accurately detecting the truthfulness or otherwise of a witness’ testimony than their colleagues working alone are. Experimental studies on groups of judges versus colleagues working alone could test whether groups have an advantage in this respect. We have seen earlier in this chapter how individual judges are susceptible to biases and cognitive errors when making judicial decisions. Psychology researchers on group decision-making phenomena demonstrate that groups can shed light on, and challenge the biases of individual members within a group. This is because it is easier to detect others’ biases than our own.432 For instance, groups may alleviate the effects of egocentric bias.433 Psychologists identify a phenomenon called the false consensus effect: the tendency for someone to overestimate the extent to which others hold their beliefs, opinions or values.434 The false consensus effect can affect judicial decision-making when judges work alone, as Solan and his colleagues have demonstrated.435 They showed that the effect could compromise the quality of decision-making where a judge was asked to interpret the terms of a contract. A judge working alone may fail to appreciate that other judges might interpret the meaning of a contract term differently than they do. Solan and his colleagues suggested that the false consensus effect may affect other areas of the law 429 Derek J Koehler and Greta James, ‘Probability Matching in Choice under Uncertainty: Intuition versus Deliberation’ (2009) 113 Cognition 123. 430 Christin Schulze and Ben R Newell, ‘More Heads Choose Better than One: Group Decision Making Can Eliminate Probability Matching’ (2016) 23 Psychonomic Bulletin & Review 907. 431 Nadav Klein and Nicholas Epley, ‘Group Discussion Improves Lie Detection’ (2015) 112 Proceedings of the National Academy of Sciences 7460. 432 Emily Pronin, Jonah Berger and Sarah Molouki, ‘Alone in a Crowd of Sheep: Asymmetric Perceptions of Conformity and Their Roots in an Introspection Illusion’ (2007) 92 Journal of Personality and Social Psychology 585; Emily Pronin, Thomas Gilovich and Lee Ross, ‘Objectivity in the Eye of the Beholder: Divergent Perceptions of Bias in Self versus Others’ (2004) 111 Psychological Review 781. 433 Pronin, Gilovich and Ross (n 432). 434 Ross, Greene and House (n 74). 435 Lawrence Solan, Terri Rosenblatt and Daniel Osherson, ‘False Consensus Bias in Contract Interpretation’ (2008) 108 Columbia Law Review 1268.

82

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

such as statutory interpretation and also contended that the effect could be flagged and possibly mitigated by colleagues working together as part of a judicial panel.436 Solan and his colleagues concluded that judges working on a panel “should take seriously the disagreements among themselves in their initial understanding of language as possible evidence that there is no single understanding of a term in dispute.”437 Put another way, deliberation among colleagues on a judicial panel may correct for the negative consequences of the false consensus effect. At a broader level, the mere experience of working in a group may also improve performance. This is known as the ‘Köhler effect’ from seminal research by German psychologist Otto Köhler in the 1920s.438 Later research suggested that individuals within a group work harder so as not to be thought of as the weakest link in that group.439 It remains to be seen whether this dynamic affects judicial panels. The positive effects identified by psychologists and described here indicate that groups may have advantages over individuals when making decisions. However, researchers have generally yet to consider how these advantages may work to the benefit of judicial panels. Judicial scholars should collaborate with psychology researchers to explore whether these proven psychological phenomena apply to the business of panel judging. Our attention now turns to the psychological effects that negatively affect group decision-making. How might these disadvantages negatively impact judicial decisionmaking by judicial panels? 2.5.2 Negative effects of group decision-making Groups make errors when they make decisions. Collectively, these errors are sometimes referred to as ‘groupthink’, defined by Irving Janis as “a mode of thinking that people engage in when they are deeply involved in a cohesive in-group, when the members’ striving for unanimity overrides their motivation to realistically appraise alternative courses of action.”440 Groupthink captures the instances when in-group pressures deteriorate mental efficiency, reality testing and moral judgement within a group.441 Sunstein and Hastie argue Janis’s ‘groupthink’ concept is more “an evocative account [that] can be seen as akin to a work of literature rather than as a precise account of how groups go wrong.”442 As a result, they argue that research must “go beyond the idea of groupthink to obtain a more precise understanding of the problem of group failures.”443 To assess the adverse consequences of group decision-making for judicial panels’ decision-making, recall the categories of negative effects mentioned earlier: 436 Ibid. 1297. 437 Ibid. 438 Otto Köhler, ‘Kraftleistungen Bei Einzel-Und Gruppenabeit [Physical Performance in Individual and Group Situations]’ (1926) 3 Industrielle Psychotechnik 274. 439 Guido Hertel, Norbert L Kerr and Lawrence A Messé, ‘Motivation Gains in Performance Groups: Paradigmatic and Theoretical Developments on the Köhler Effect’ (2000) 79 Journal of Personality and Social Psychology 580. 440 Irvine Lester Janis, Victims of Groupthink: A Psychological Study of Foreign-Policy Decisions and Fiascoes (Houghton Mifflin Company 1972) 9. 441 Sunstein and Hastie (n 422) 24–25. 442 Ibid. 7. 443 Ibid.

83

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

• how individuals’ cognitive errors can be amplified in a group setting; • cascade and conformity effects (herd mentality); • group polarisation (groups end up taking more extreme positions after deliberating); • problems arising from sharing information; • social loafing (where individual members of a group make less effort in making decisions where other individual members are prepared to pull their weight); and • in-group biases. To take the first category – groups amplifying individual members’ errors – when making decisions, individuals can make mistakes. As we have seen earlier, biases and heuristics compromise decision-making, both within and beyond the courtroom.444 Sunstein and Hastie presented evidence that groups sometimes are not only incapable of correcting individual biases and heuristics but occasionally groups amplify individual group members’ errors.445 For example, groups are more susceptible to framing effects than individuals.446 There are no studies directly testing for group amplification of errors by comparing judicial panels’ group decision-making versus individual judges’ decision-making. However, experimental studies using mock jurors as participants are instructive. These studies show that group deliberation exacerbates certain biases of individual jurors, while other biases may diminish through group deliberation. Kramer and his colleagues demonstrated that group deliberation increased individual biases against defendants caused by the impact of pre-trial publicity, for instance.447 On the other hand, Carretta and Thompson presented the opposite finding. They analysed the impact of jury deliberations on bias due to inadmissible evidence that, legally speaking, ought not to have a bearing on a case outcome. They found that group deliberation dampened rather than amplified individual jurors’ reliance on the prejudicial, inadmissible evidence, thereby counteracting its biasing effect.448 Researchers have also investigated whether group deliberation exacerbates or diminishes biases in favour of physically attractive defendants. The results are mixed. In one study, mock juries were more likely to acquit an attractive defendant than they were to acquit an unattractive defendant after they had deliberated with each other.449 However, another study demonstrated that deliberation dampened the bias in favour of attractive defendants and in fact had the opposite effect – jurors were more likely to find an attractive defendant 444 See section 2.1 Heuristics, cognitive biases and judicial decision-making and section 2.2 Cognitive errors in judges’ numerical decision-making. 445 Sunstein and Hastie (n 422) 43. 446 For discussion on the framing effect, see section 2.2.3 Framing effect. See further, Timothy W McGuire, Sara Kiesler and Jane Siegel, ‘Group and Computer-Mediated Discussion Effects in Risk Decision Making’ (1987) 52 Journal of Personality and Social Psychology 917; Paul W Paese, Mary Bieser and Mark E Tubbs, ‘Framing Effects and Choice Shifts in Group Decision Making’ (1993) 56 Organizational Behavior and Human Decision Processes 149. 447 Geoffrey P Kramer, Norbert L Kerr and John S Carroll, ‘Pretrial Publicity, Judicial Remedies, and Jury Bias’ (1990) 14 Law and Human Behavior 409. 448 Thomas R Carretta and Richard L Moreland, ‘The Direct and Indirect Effects of Inadmissible Evidence’ (1983) 13 Journal of Applied Social Psychology 291; William C Thompson, Geoffrey T Fong and David L Rosenhan, ‘Inadmissible Evidence and Juror Verdicts’ (1981) 40 Journal of Personality and Social Psychology 453. 449 Robert J MacCoun, ‘The Emergence of Extralegal Bias during Jury Deliberation’ (1990) 17 Criminal Justice and Behavior 303.

84

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

guilty after deliberating with each other.450 The subtleties of this dynamic ought to be explored further in a judicial decision-making context, given the contradictory results. Given that studies have demonstrated individual judges’ susceptibility to cognitive error and biases, and studies on mock juries have demonstrated that deliberation sometimes amplifies and sometimes dampens the impact of certain biases, it makes sense to synthesise these two strands of research in future, perhaps investigating group effects of deliberation on judicial panels. We move now to the second category of group decision-making error identified by Sunstein and Hastie – cascade and conformity effects. Poorer decision-making can occur when individual members follow others within a group about what decision to make. Cascade and conformity effects may occur due to a lack of effort, social or political pressure or a desire to fit in with the group.451 In a classic experiment in social psychology, Solomon Asch demonstrated that individuals often made a wrong decision just to conform with other group members who made the same wrong decision.452 Some judges hint at some of these dynamics on judicial panels. Judge Edwards, writing extrajudicially about his early days on the US Court of Appeals for the District of Columbia Circuit – a court he once colourfully referred to as a “collectivity of fighting cats”453 – described a degree of coercion and conformity among judges when deliberating. “You were not supposed to break ranks if a colleague asked for your allegiance . . . there was pressure to conform . . . these tendencies do damage to the rule of law.”454 Lord Viscount Radcliffe of the House of Lords spoke of a similar dynamic on that court when he first joined in 1949: “[T]here was a bit of an olde worlde feeling . . . that we all ought to hang together and you oughtn’t to expose the differences in the House of Lords because it weakened its authority.”455 These nods to social or institutional in-group pressures are suggestive of something akin to the conformity effects that psychology researchers describe. Researchers have undertaken mock jury experiments that demonstrate how the conformity and cascade effects can negatively affect legal decision-making. Davis demonstrated that the order in which individual mock jurors give their verdict affected juries’ overall verdicts as a group.456 Waters and Hans asked nearly 3,500 real jurors after their trials had completed “if it were entirely up to you as a one-person jury, what would your verdict have been in this case?”457 Over one-third of jurors privately said they would have come to a different conclusion, leading the researchers to conclude that deliberation played a 450 Marc W Patry, ‘Attractive but Guilty: Deliberation and the Physical Attractiveness Bias’ (2008) 102 Psychological Reports 727, 731. 451 For instance, one experiment demonstrated how individuals’ opinions on what music they liked strongly correlated to their knowledge of the popularity of the song. The more popular the song among their peers, the more they were impressed by it. Matthew J Salganik, Peter Sheridan Dodds and Duncan J Watts, ‘Experimental Study of Inequality and Unpredictability in an Artificial Cultural Market’ (2006) 311 Science 854. 452 Solomon E Asch, ‘Opinions and Social Pressure’ (1955) 193 Readings about the Social Animal 17. 453 Jeffrey B Morris and Chris Rohmann, Calmly to Poise the Scales of Justice: A History of the Courts of the District of Columbia Circuit (Carolina Academic Press 2001) 187. 454 Edwards (n 419) 1648. 455 Paterson (n 281) 109. 456 James H Davis and others, ‘Some Social Mechanics of Group Decision Making: The Distribution of Opinion, Polling Sequence, and Implications for Consensus’ (1989) 57 Journal of Personality and Social Psychology 1000. 457 Nicole L Waters and Valerie P Hans, ‘A Jury of One: Opinion Formation, Conformity, and Dissent on Juries’ (2009) 6 Journal of Empirical Legal Studies 513.

85

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

vital role in generating consensus among jurors, in conformity with the majority view of the jury.458 Archival studies of judicial panels’ decision-making demonstrate a phenomenon that hints at something approaching the conformity effect – ‘dissent aversion’ – that is, judges tend to avoid issuing dissenting judgments against their colleagues in certain circumstances.459 Aside from political or institutional factors that may affect the rate of dissent, Hazelton and her colleagues suggested a socio-psychological factor: the level of interpersonal contact that judges have with each other.460 The higher the interpersonal contact between judges, the less likely they were to dissent against one another. Straying a little away from purely psychological effects of judicial panels’ decisionmaking to the political realm, political scientists identify ‘conformity voting’ whereby judges who change their mind tend to join the majority more often than they join minority dissenters.461 For example, in their sophisticated archival analysis of decision-making on different tiers of the federal judiciary in the US, Epstein, Landes and Posner demonstrated that while there were no conformity effects on the US Supreme Court, there were conformity effects on US courts of appeals.462 All told, archival research, judges’ and jurors’ self-reflections on their experiences, and some experimental research on mock jurors’ legal decision-making suggest conformity and cascade effects may be at play in courtroom decision-making by groups. Experimental research on practising judges operating on judicial panels would again shed further light on whether this dynamic infiltrates judicial panels’ overall outcomes. The third category of group decision-making errors is group polarisation. Group polarisation refers to the intensification of a position held by a majority of group members as a result of group discussion.463 It occurs when individual members of a group tend to be drawn towards taking a more extreme position after deliberating with others. Several hundred studies have demonstrated this phenomenon.464 There are different explanations for group polarisation. One account is that the exchange of information between members of a group can become skewed, pulling the group towards a position they were initially inclined to. Another account is that people like to be liked, so they may adjust their position to that most favoured by the group. Finally, a separate account is that agreement

458 Ibid. 539. 459 Lee Epstein, William M Landes and Richard A Posner, ‘Why (And When) Judges Dissent: A Theoretical and Empirical Analysis’(2011)’ 3 Journal of Legal Analysis 101; Felipe de Mendonça Lopes, ‘Dissent Aversion and Sequential Voting in the Brazilian Supreme Court’ (2019) Journal of Empirical Legal Studies accessed 17 July 2020. 460 Morgan LW Hazelton, Rachael K Hinkle and Michael J Nelson, ‘The Elevator Effect: How Collegiality Impacts Dissent’ (2017) Unpublished working paper. 461 Epstein, Landes and Posner (n 460) 108; Forrest Maltzman and Paul J Wahlbeck, ‘Strategic Policy Considerations and Voting Fluidity on the Burger Court’ (1996) 90 American Political Science Review 581. 462 Lee Epstein, William M Landes and Richard A Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press 2013) 186. 463 Helmut Lamm, ‘A Review of Our Research on Group Polarization: Eleven Experiments on the Effects of Group Discussion on Risk Acceptance, Probability Estimation, and Negotiation Positions’ (1988) 62 Psychological Reports 807. Isenberg explains that group polarisation occurs “when an initial tendency of individual group members toward a given direction is enhanced [by] group discussion.” Daniel J Isenberg, ‘Group Polarization: A Critical Review and Meta-Analysis’ (1986) 50 Journal of Personality and Social Psychology 1141. 464 Glen Whyte, ‘Escalating Commitment in Individual and Group Decision Making: A Prospect Theory Approach’ (1993) 54 Organizational Behavior and Human Decision Processes 430, 435.

86

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

from others tends to increase individual group members’ confidence, thereby fuelling more extreme positions, simply through corroboration of their point of view by peers.465 Some archival studies consider group polarisation on judicial panels through the prism of politicised judicial decision-making. In chapter 4 we will see how judges’ political affiliations and ideologies sometimes correlate with trends in case outcomes.466 For instance, researchers often categorise US judges by their affiliation to either the Republican or the Democratic parties, and investigate whether they decide cases in line with their party’s policies. Some researchers investigate whether judges of different political stripes are pushed and pulled in different ideological directions when deciding cases on judicial panels in ways that suggest group polarisation. For instance, Sunstein and his colleagues’ archival study on US courts of appeals judges indicated group polarisation may be a factor in their decision-making.467 The researchers first identified US courts of appeals judges’ political affiliations and found that their political preferences in their decision-making were dampened if they sat with two judges of a different political party, while their political preferences were amplified if sitting with two judges from the same political party.468 The researchers suggested that the data presented strong evidence that group psychology phenomena, including group polarisation, may have been at play. They acknowledged, however, the limitations of relying on archival data to analyse group polarisation in this context, given the multitude of variables.469 Epstein, Landes and Posner also investigated group polarisation, this time relying on archival data of decisions from both the US Supreme Court and US courts of appeals. They investigated if judges became more ideologically polarised as the court’s composition became more ideologically one-sided; that is, if either the conservative (Republican Party) or the liberal (Democratic Party) blocs of judges increased in numbers.470 On the Supreme Court, their results did not support the hypothesis that group polarisation affected decision-making. However, on courts of appeals, the data did suggest that group polarisation may have had an effect.471 Blocs of ideologically similar judges tended to decide cases more aligned to their political view as the blocs grew larger. For instance, conservative judges decided cases more conservatively when there were more conservative judges on the panel with them. Judges seemed more strident in their approach when flanked by colleagues of similar political persuasion. Other studies experimentally test mock jurors for group polarisation. For example, Schkade and his colleagues led a large-scale experimental study of some 3,000 people serving

465 Cass R Sunstein, ‘Group Polarization and 12 Angry Men’ (2007) 23 Negotiation Journal 443, 445–446. 466 See section 4.5 Judges. 467 Cass R Sunstein, David Schkade and Lisa Michelle Ellman, ‘Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation’ (2004) 90 Virginia Law Review 301; Cass R Sunstein and others, Are Judges Political?: An Empirical Analysis of the Federal Judiciary (Brookings Institution Press 2007). 468 The areas where “substantial panel effects” were observed were “campaign finance, affirmative action, disability discrimination, piercing the corporate veil, race discrimination, sexual harassment, sex discrimination, and judicial review of environmental regulations at the behest of industry plaintiffs” Sunstein, Schkade and Ellman (n 468) 337. 469 They accept that testing for phenomena such as group polarisation “in the real world . . . is extremely hard to test in light of the range of confounding variables.” Sunstein and others (n 468) 309. 470 Epstein, Landes and Posner (n 460) 149. 471 Ibid. 148.

87

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

on 500 mock juries for mock civil trials.472 Participants were asked to award amounts of damages. Where participants deliberated with like-minded peers, their decisions were more extreme. Juries initially inclined at the outset to award punitive damages (damages designed to punish the wrongdoer, as distinct from serving a purely compensatory function), ultimately decided on awards that were significantly higher than the median of what individual jurors thought was an appropriate award before deliberation.473 Deliberation seemed to cause this severity shift, apparently a manifestation of group polarisation. Just as significantly, group polarisation also affected mock juries’ judgments in a criminal trial context, influencing decision-making on guilt and sentencing.474 To turn to the fourth category of group decision-making errors – how groups use and share information – in deliberating groups, information that is common knowledge among all group members will dominate the decision-making process. Information held by only some individual members of the group is less likely to be discussed, even if that lesserdiscussed information may be just as crucial to making a good decision. The bigger the group, the more pronounced this effect.475 Elsewhere in this book, we see how judicial panels’ deliberation processes, information sharing and collaboration differ from court to court.476 Sometimes judges may try to strategically manipulate the agenda of judicial panels’ deliberations where they have an opportunity to present their arguments first.477 How judges share their information – for instance, discussing a particular precedent and emphasising its relevance to the resolution of a case – may have consequences for the judicial panel’s ultimate decision. Researchers could experimentally test this aspect of judicial panels’ operations: different modes of information exchange may affect judicial panels’ outcomes. Results could have implications for the design of judicial panels’ deliberation and collaborative techniques. We now turn to the fifth negative effect on group decision-making: social loafing. Social loafing occurs when members of a group have low motivation to perform a task and are not prepared to pull their weight in a group task.478 This may arise because individual members of a group may feel they are less open to scrutiny being part of a group, or 472 David Schkade, Cass R Sunstein and Daniel Kahneman, ‘Deliberating about Dollars: The Severity Shift’ (2000) 100 Columbia Law Review 1139. 473 Ibid. 474 David G Myers and Martin F Kaplan, ‘Group-Induced Polarization in Simulated Juries’ (1976) 2 Personality and Social Psychology Bulletin 63. Similar trends of group polarisation emerge in experiments testing people’s attitudes to difficult socio-legal questions, for instance, that of the merit of capital punishment or same-sex civil unions. Lord and his colleagues found that proponents and opponents of capital punishment became more polarised in their opinion when exposed to identical studies of empirical evidence about the matter. Charles G Lord, Lee Ross and Mark R Lepper, ‘Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence’ (1979) 37 Journal of Personality and Social Psychology 2098. In another study, people from a liberal city in the US, Boulder, Colorado, became more extreme in their endorsement of same-sex civil unions after deliberating with each other whereas people from the more conservative city of Colorado Springs, Colorado, became more disapproving of same-sex civil unions after deliberating with each other. Sunstein and Hastie (n 422) 81. 475 Janis (n 440) 268. 476 See section 6.2.3.3 Deliberation on panel courts. 477 Epstein and Knight (n 416) 88. 478 Indeed, not “pulling one’s weight” was quite literally the basis for first demonstrating social loafing: Maximilien Ringlemann demonstrated that when working in groups, individuals can slacken, by showing that the effort exerted by persons working as a group in a tug-of-war contest was less than the sum of the efforts exerted by those acting individually. David A Kravitz and Barbara Martin, ‘Ringelmann Rediscovered: The Original Article’ (1986) 50 Journal of Personality and Social Psychology 936.

88

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

that it is unnecessary for them to do the work when more capable or more motivated colleagues could do it. In one group decision-making experiment, Tindale showed that over 60% of the time, participants simply chose a single member’s undefended judgment.479 As long as a given individual’s preference seemed plausible, the group members seemed to accept it without thorough debate. Researchers have also considered social loafing in the context of individual judges’ efforts to dispose of case lists.480 However – and although there is some anecdotal evidence that judges may not pay as much attention as their colleagues in certain situations481 – researchers have yet to experimentally test whether social loafing affects individual judges’ decision-making efforts on a judicial panel. Of course, it may be difficult to distinguish this as a factor, as judges may well make more effort in real-world courtrooms where there is a lot more at stake than in an experimental setting. Nevertheless, such research could compare and contrast the effort and interaction of differently configured judicial panels such as judges operating on three-person panels as against seven-person panels.482 In a similar vein, social loafing has been demonstrated in a mock jury setting: results from one experimental study suggested that jurors on a 12-person jury paid less attention and made poorer decisions than jurors on a six-person jury.483 One final negative effect of group decision-making merits consideration: in-group bias. In-group bias is the tendency to have positive attitudes (or preferences) in favour of social in-groups, thereby affecting decision-making within a group.484 We have already 479 R Scott Tindale and others, ‘Further Explorations of Conjunction Errors by Individuals and Groups,’ Paper presented at the British Psychological Society Social Psychology Section Conference, Canterbury, UK on 21–23 September 1998. 480 Mary Lee Luskin, ‘Social Loafing on the Bench: The Case of Calendars and Caseloads’ (1987) 12 The Justice System Journal 177. 481 For example, Darbyshire, in her interview study of UK judges, recounts the following interaction with one UK Court of Appeal judge “At lunch, Kind showed me an envelope of unrelated paperwork he had been doing on the bench whilst ‘presiding’. I asked if he had been paying attention. A bit. You get pretty good idea of how an appeal should be resolved, even in a case where you’d feel inadequate to describe why. You can conclude without being able to make a judgment of the calibre expected of this court. I won’t have read the papers in as much depth as the other two.” Darbyshire (n 419) 347

Ayres observes that the diaries of Owen Dixon, Chief Justice of the Australian High Court suggest his fellow justices George Rich and Edward McTiernan free-rode off Dixon’s exertions: “Numerous entries show [Dixon] regularly helping Rich with his judgments (even when Dixon had not sat on the case), and occasionally he helped McTiernan with his. Later entries state that he wrote some of Rich’s judgments for him, though it is possible that Dixon meant he was writing sections of Rich’s judgments.”

Philip Ayres, ‘Dixon Diaries’ in Tony Blacksfield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press 2001) 223. 482 For instance, the question of leadership in the context of judicial behaviour could be explored. On this, Burton M Atkins and William Zavoina, ‘Judicial Leadership on the Court of Appeals: A Probability Analysis of Panel Assignment in Race Relations Cases on the Fifth Circuit’ (1974) 18 American Journal of Political Science 701; Stacia L Haynie, ‘Leadership and Consensus on the US Supreme Court’ (1992) 54 The Journal of Politics 1158. 483 Kaushik Mukhopadhaya, ‘Jury Size and the Free Rider Problem’ (2003) 19 Journal of Law, Economics, and Organization 24. 484 Katherine McAuliffe and Yarrow Dunham, ‘Group Bias in Cooperative Norm Enforcement’ (2016) 371 Philosophical Transactions of the Royal Society B: Biological Sciences 20150073. Sunmer describes (with some degree of rhetorical flourish) how: “[T]he view of things in which one’s own group is the center of everything and all others are scaled and rated with reference to it. . . . Each group nourishes its own pride and vanity, boasts itself superior, exalts its own divinities, and looks with contempt on outsiders.” William Graham Sumner,

89

THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING

seen evidence of this from Sunstein’s archival study that showed US judges’ political preferences were amplified if a judge sat with two judges from the same political party. In chapter 5 we will consider studies suggesting how in-group biases may lead judges to rule more favourably towards litigants of their in-group (if the judge and litigant shared the same race or ethnicity, for instance). In the narrower context of judicial panels, however, further research could assess whether in-group favouritism takes place as between the judges themselves. For example, might individual judges have a propensity to side with other judges on a panel of the same gender, race, age group or even the college they went to? We will return to this theme later in chapter 4 on judges’ personal characteristics, to consider studies that suggest ‘panel effects’ – that is, how the mere presence on a panel of a judge with a particular personal characteristic (race or gender, for instance), seems to affect how other judges rule on particular legal issues.485 Reflecting on this research overall, psychologists identify several group decision-making phenomena that may positively or negatively affect decisions. Groups may be better at sharing information, assessing probability and detecting truthfulness. However, group discussion and deliberation may amplify individual group members’ errors, as well as lead to conformist ‘herd mentality’ views, more polarised views, skewed over-reliance on certain information, social loafing and in-group biases. All of these phenomena have the potential to affect judicial panels’ decision-making and may well do so. Judge Edwards once argued that “any credible attempt to explain judges’ behaviour . . . must take account of the collective nature of the enterprise.”486 Crucially, however, what we know so far about these group decision-making phenomena is relatively anecdotal or speculative. Our understanding is limited because of a dearth in experimental studies using practising judges as participants. This presents an opportunity for judicial scholars because, as others have observed, many of the theories and effects described here may well overlap with the tasks that judicial panels face.487 Many of the world’s leading courts are built on the assumption that a plurality of judges is better at deciding cases than one judge working alone. By drawing inspiration from group decision-making research, future studies could consider how the themes and phenomena discussed here may affect judicial panels. This will help to increase understanding of how being part of a group affects judicial decision-making. Through this work, researchers might identify and test practical interventions for how judges work with each other on panels towards their decisions, or perhaps even present radical perspectives on whether the traditional reverse pyramid structure of court systems is justified at all. This relatively uncharted area of research is a rich opportunity to improve our overall understanding and knowledge of crucial aspects of decision-making that may particularly affect the daily work of many of the world’s leading and most influential courts. Folkways: A Study of the Sociological Importance of Usages, Manners, Customs, Mores and Morals (Ginn and Company 1907) 12–13. 485 See sections 4.1 Judges’ gender and 4.2 Judges’ race and ethnicity. 486 Edwards (n 419) 1656. 487 Miller and Curry note that “[T]he psychology of small-group decision making is well understood. Yet . . . such theories have not been widely applied to investigations of decision making in courts. This is curious, because these theories fit well with the nature of the task that most appellate courts face.” Banks Miller and Brett Curry, ‘Small-Group Dynamics, Ideology, and Decision Making on the US Courts of Appeals’ (2017) 39 Law & Policy 48. See also Edwards (n 419).

90

CHAPTER 3

Judges’ professional motivations and judicial decision-making

What motivates judges in their day-to-day role? Moreover, how does this affect their decision-making? It is not unreasonable to assume that judges are self-interested to some degree, yet the self-interested judge is largely an “absent figure” in the literature on the judicial role.1 To maybe overgeneralise somewhat, judges may have career ambitions, they may feel a sense of achievement when they are promoted or praised, and they may enjoy the status that comes with their role. They may worry about their reputations and like to be liked and well respected. They may smart when their work is criticised in the media or by their colleagues on a higher court. They presumably prefer to be well paid, enjoy their leisure time to varying degrees and think about retirement. Aside from research on judges’ demographic characteristics, psychological effects and judicial politics, judicial scholars have considered how judges’ personal and professional motivations can affect their decision-making. This chapter addresses this research.2 The focus of this chapter is not on external influences arising from the institutional context in which judges operate, such as pressures from other branches of government, for instance.3 Nor is the focus on how judges’ or litigants’ personal characteristics – age, gender, religion or political ideology, for example – may affect judicial decision-making.4 The attention here instead is on matters of judges’ self-interest and self-preservation when they go to work, and how these intrinsic personal and professional motivations may affect judicial decisions. Judicial scholar Lawrence Baum remarks that amid ever-more prolific and sophisticated efforts to understand many aspects of the judicial function, particularly the role of politics in judicial decision-making,5 it is worth pausing to reflect

1 Frederick Schauer, ‘Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior’ (1999) 68 University of Cincinnati Law Review 615, 616. 2 See generally, Lee Epstein, William M Landes and Richard A Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press 2013); Elliott Ash and W Bentley MacLeod, ‘Intrinsic Motivation in Public Service: Theory and Evidence from State Supreme Courts’ (2015) 58 The Journal of Law and Economics 863; Stephen M Bainbridge and G Mitu Gulati, ‘How Do Judges Maximizethe Same Way Everybody Else Does-Boundedly: Rules of Thumb in Securities Fraud Opinions’ (2002) 51 Emory Law Journal 83; Greg A Caldeira, ‘The Incentives of Trial Judges and the Administration of Justice’ (1977) 3 Justice Systems Journal 163. 3 On external influences on judges’ work, see chapters 6 and 7. 4 See chapters 4 and 5. 5 Baum argues that to focus solely on law and policy as drivers of judicial decision-making seems quite narrow. Lawrence Baum, ‘Supreme Court Justices as Human Decision Makers’ (2014) 41 Ohio Northern University Law Review 567, 573. Lawrence Baum is, of course, not the first to emphasise this. See Jerome Frank, ‘Are Judges Human?’ (1931) 17 University of Pennsylvania Law Review 47.

91

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

that judges are but “human decision makers.”6 Although an obvious point, it is nevertheless an important one, hinting at the importance of not disregarding the more mundane, everyday and intrinsic motivations that may affect judges and that may get lost in the clamour to better understand their role. Over the years, scholars from the Law and Economics movement, who apply economic theory to the study and analysis of law, have investigated how judges’ personal and professional motivations act as influences on their decision-making by conceiving of judges as labourers in a labour market. Researchers have explored how the likes of income and leisure affect judicial performance. A great deal of the literature on judges’ personal motivations is framed in economic theory.7 The leading proponent of the economic theory of judicial behaviour is Richard Posner, a prolific writer and judge of the US Court of Appeals for the Seventh Circuit in Chicago. In 1993, Posner wrote an influential and memorably titled article, “What do Judges and Justices Maximize? (The Same Thing Everybody Else Does),”8 which proposed a positive economic theory for judicial behaviour, a theoretical alternative to the “common view of judges as Prometheans or saints.”9 He argued that judges are rational actors driven by economic incentives. He explained a simple model – what he called the ‘judicial utility function’ – in the following formula: U = U(tj, tl, I, R, O) U is judicial utility, tj is the number of hours per day that the judge devotes to judging, tl is the time the judge devotes to leisure, I is pecuniary income, R is reputation, O represents other sources of judicial utility such as popularity, prestige and avoiding reversal.10 So by Posner’s basic model, judges are pushed and pulled by concerns of income, leisure and the enjoyment of the “power that goes with deciding cases,” among others.11 In his view, “[J]udges, like other people, seek to maximize a utility function that includes both monetary and nonmonetary elements (the latter including leisure, prestige, and power).”12 In a similar vein, Epstein and Landes, together with Posner, proposed that judges’ behaviour in their role can be investigated by conceiving of judges as workers, participants in a labour market.13 The most fruitful theory to guide empirical study of judges’ behaviour, 6 Baum (n 5) 567. 7 See generally, Avery Wiener Katz, Foundations of the Economic Approach to Law (Oxford University Press 1998); Boudewijn Bouckaert and Gerrit De Geest, Encyclopedia of Law and Economics, Volumes I–V (Edward Elgar Publishing 2000); Richard A Posner, Economic Analysis of Law (4th edn., Boston: Little, Brown 1992). 8 Richard A Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (1993) 3 Supreme Court Economic Review 1. 9 Ibid. 1. 10 Ibid. 31. Later, Posner, together with colleagues Lee Epstein and William Landes proposed a more sophisticated model of the “judicial utility function,” Epstein, Landes and Posner (n 2) 48. 11 Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8) 3. 12 Posner, Economic Analysis of Law (n 7) 534. 13 Epstein, Landes and Posner (n 2).

92

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

they argued, “is one of self-interested behaviour, broadly understood, in a labor-market setting.”14 But of course, aside from theorising that judges are motivated like other workers are, the question remains as to what extent do these factors actually affect judicial decision-making? What follows is an account and analysis of empirical research investigating judges’ personal, self-interested, intrinsic motivations. It is worth noting that there is some overlap here with other factors discussed elsewhere in this book – external political and institutional factors or psychological effects on decision-making, for instance. For example, judges’ ability to make decisions may be compromised by an overwhelming workload which may be both the product of an external factor (an under-resourced judicial system) and the internal reaction of the judge to it (an inability to cope and a consequent compromise in his or her decision-making processes). It is also worth acknowledging at the outset that judges may well have widely varying professional priorities; some may crave prestige while others may want to prioritise leisure.15 Research on how workload, leisure and retirement affect judicial decision-making will now be considered. 3.1 Work-life balance and judicial decision-making: workload, leisure and retirement A US judge once anonymously remarked, “I didn’t get elected [as a judge] to work hard. I worked hard as a trial lawyer.”16 Of course, this is just one judge’s self-reflection that may have been little more than a throwaway remark, perhaps tinged with wry humour. There is nothing to suggest that this perspective is broadly representative of judges’ motivations on the bench.17 Nevertheless, this anonymous judge acknowledges a dynamic that most workers in any job will understand yet may be reluctant to admit to in the open: the value of leisure time and a healthy work-life balance. Baum suggests that judges on any court might seek to maximise leisure time.18 Posner, arguing from an economic analysis perspective of judging, describes leisure as a form of income.19 Judges’ salaries are often lower than similarly experienced lawyers’ salaries from private practice. For judges, leisure time is the additional compensation. Although most federal judges work “quite hard,” they are less likely to work as hard as colleagues in private practice, contends Posner.20 To back up his claims, Posner offers specific examples of leisure-seeking behaviour in judicial decision-making. He provides “going-along” voting – a judge deciding to 14 Ibid. 25–26. 15 “Some will want to maximize leisure, some will want to maximize their own prestige,” notes Macey. Jonathan R Macey, ‘Judicial Preferences, Public Choice, and the Rules of Procedure’ (1994) 23 The Journal of Legal Studies 627, 630. 16 Anonymous judge, quoted in Roy B Flemming, Peter F Nardulli and James Eisenstein, The Craft of Justice: Politics and Work in Criminal Court Communities (Philadelphia: University of Pennsylvania Press 1992) 98. 17 That said, Posner argues that there may be some truth in this: “[W]e should expect that judges on average do not work as hard as lawyers of comparable age and ability.” Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8) 10. 18 Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton University Press 2009) 12. 19 Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8) 11. 20 Ibid. 11 and 13.

93

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

rule alongside his colleagues in a bid to minimise effort – as an example of this.21 He also suggests that judges’ use of the obiter dicta mechanism – writing into a decision something that is not essential and not legally binding as precedent in future cases – can also be rationalised as leisure-seeking behaviour. A judge writing obiter dicta can say that they disagree with their colleagues, yet can still join them in their ultimate holding in the case. Posner conceives of this as a “‘live and let live’ attitude” that “reduces the amount of effort that judges need invest in their own opinions.”22 Epstein and Landes, together with Posner, characterise this as “effort aversion,” a preference for leisure and a reluctance to quarrel with colleagues.23 Is there empirical evidence that judges’ decision-making is systematically affected by how much (or how little) they value their time off the bench? Researchers have investigated this by assessing the productivity of judges and the quality of their decisions. Work-life balance, the pursuit of leisure and a judge’s workload are interconnected. When judges’ workloads are manageable and appropriate, some judges may decide not to put more time and effort into deciding a case than other judges do because they value their leisure time more. The consequence may be that different judges may give different decisions, depending on how much effort they put in. Equally, a judge’s workload may be so overwhelming and unworkable as to affect their capacity to make the best possible judicial decisions. Occasionally, judges acknowledge this phenomenon. In 1993 US judge Stephen Reinhardt conceded that “when our caseload increases, we inevitably pay less attention to individual cases . . . [t]hose who believe we are doing the same quality work that we did in the past are simply fooling themselves.”24 Judges’ workloads differ profoundly from court to court. To take some of the world’s leading apex courts, for instance, the UK, US and Canadian Supreme Courts currently hear between 70 to 90 cases per year, whereas the Indian Supreme Court hears a remarkable 7,000 or so cases per year, albeit with 31 members breaking into panels of two to three judges. As such, even this cursory observation of some of the world’s leading courts indicates considerable variation in workload. How does variation in workload affect judges’ output and decision-making? Ash and MacLeod, analysing a data set of published decisions from all US state supreme courts from 1947 to 1994, concluded that when faced with a large caseload, judges resisted the urge to get through as many cases as possible, preferring quality over quantity in their decision-making.25 When faced with high pressure on their caseload, judges preferred to reduce the number of judgments they wrote rather than compromise on their quality, as measured by the number of citations that decisions subsequently accrued.26 Taha investigated the issue of workload and effort in judicial decision-making by analysing decisions about the constitutionality of US Federal Sentencing Guidelines.27 21 Ibid. 20. This suggestion overlaps with the group phenomenon identified by social psychologists, social loafing, discussed elsewhere, see section 2.5 Group psychology effects on judicial panels’ decision-making. 22 Ibid. 21. 23 Epstein, Landes and Posner (n 2) 7. 24 Stephen Reinhardt, ‘Too Few Judges, Too Many Cases’ (1993) 79 ABA Journal 52, 52. 25 Ash and MacLeod (n 2) 863. 26 Ibid. 900. 27 Ahmed E Taha, ‘Publish or Paris? Evidence of How Judges Allocate Their Time’ (2004) 6 American Law and Economics Review 1.

94

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

He ascertained that publishing a written decision seemed to require more effort than issuing unpublished decisions to the parties: published decisions averaged 5,113 words compared to 1,562 words for unpublished decisions. He analysed whether judges’ workload and judges’ performance ratings – as measured by the American Bar Association’s (ABA) scale for rating how well-qualified federal judicial nominees were for the post – correlated with judges’ propensity to publish their decisions.28 Other factors aside, Taha showed that judges that the ABA rated higher, and judges with lower workloads, were more likely to publish their decision.29 Better-rated judges and judges under less pressure appeared to make the more effortful choice to publish. The researcher rightly acknowledged, however, that other motivations might have been at play. Some judges may enjoy the prestige of writing published decisions or may be motivated to consolidate their legacy, for example. Concerns of workload aside, Clark and his colleagues offered perhaps the most vivid insights into the direct effects of leisure on judicial performance.30 Their findings suggested that judges work less and perform worse when their favourite sports team is playing. Clark and his colleagues correlated the productivity and quality of work of US courts of appeals judges during the time of the year when their alma mater college basketball team was participating in the hugely popular National Collegiate Athletic Association (NCAA) Men’s Basketball Tournament.31 If a judge’s team was playing in the tournament, which runs from late February to early April, that judge was on average more sluggish in writing judgments than they were at other times of the year. The effect of having one’s team in the tournament was to delay the publication of a decision by 21 days.32 Not only that, Clark and his colleagues’ results also suggested that judges distracted by their team’s participation in the NCAA tournament also issued lower-quality judgments. They used citation patterns for judgments, specifically the number of negative citations of a judgment, as a proxy for judicial quality. Negative citations occur when a subsequent court cites a judgment adversely: criticising, distinguishing, overruling or otherwise referring to a judgment negatively. Judgments written by judges when their team was participating in the tournament had a 50% increase in subsequent negative citations, jumping from an average of 1.9 negative citations to 2.8.33 The results suggested that the judges may have been distracted from their work. The study uniquely focuses on one event – a popular sports tournament – to explain variability in the quality and quantity of judicial decision-making. A question then arises: what other, perhaps more profound, incentives and distractions may affect judges’ work? Clark and his colleagues highlighted the broader consequences of their finding and called for further research. If a basketball tournament affects judicial output, what about other, 28 Ibid. 7. See further, William Glaberson, ‘Caseload Forcing Two-Level System for US Appeals’ New York Times (14 March 1999); Lawrence J Fox, ‘Those Unpublished Opinions: An Appropriate Expedience or an Abdication of Responsibility Legal Ethics Conference: Judging Judges’ Ethics’ (2003) 32 Hofstra Law Review 1215. 29 Taha (n 27) 17–21. 30 Tom S Clark, Benjamin G Engst and Jeffrey K Staton, ‘Estimating the Effect of Leisure on Judicial Performance’ (2018) 47 The Journal of Legal Studies 349. 31 They are not the first to study the impact of the NCAA men’s basketball tournament. For further consideration of the impact of the tournament on productivity, see Amber A Smith, Alan D Smith and O Felix Offodile, ‘March Madness and Perceived Influences on Workplace Productivity by Business Professionals: An Exploratory Study’ (2011) 1 Sport, Business and Management: An International Journal 43. 32 Clark, Engst and Staton (n 30) 372. 33 Ibid. 381.

95

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

more significant events in a judge’s life? They offered a judge’s child’s marriage or the death of a loved one as two instances when life, entirely understandably, may get in the way of their work. Further research will reveal the extent to which leisure and the vicissitudes of life affect judicial decision-making. Do more highly educated judges work harder? Schneider correlated level of education with the productivity of judges on nine German Labour Courts of Appeal, finding that courts with higher shares of judges with PhDs in law were more productive.34 Schneider argued that this is a plausible correlation because judges with PhDs may be better equipped to cope with substantial caseloads, having developed experience in scientific legal research.35 How do judges adapt to higher caseloads and difficult working conditions? Moreover, how do these factors affect judges’ motivations and efforts in their role? In some jurisdictions, judges have self-reported deteriorating working conditions, reduced resources, and have expressed concern that this affects the delivery of justice. For instance, a comprehensive study of the attitudes of the UK judiciary in 2016 reported some worrying findings.36 Seventy-six percent of judges reported that their working conditions had deteriorated in the last two years,37 83% of judges reported judicial morale as a concern38 and 38% of judges reported that their caseload over the last 12 months was too high.39 Some researchers have presented tentative evidence that judges try to protect themselves from overwhelming caseloads by deciding certain types of cases in strategic ways. Cohen’s study on cases about the constitutionality of sentencing guidelines in the US found that judges with heavier caseloads were more likely to find sentencing guidelines unconstitutional.40 This, Cohen suggested, is because judges had expressed fears that introducing sentencing guidelines would encourage more criminal defendants to go to trial, thereby making courts busier, rather than avoid trial and instead engage in plea bargaining. Cohen tentatively drew a connection between busy judges’ apparent negative disposition towards sentencing guidelines and their fear of a busier workload because of their introduction.41 Turning attention to multi-member courts, judges serving on judicial panels have a particular choice to make when balancing effort versus workload: whether to issue a dissenting judgment.42 Preparing a dissenting judgment is the more effortful option, and it also has the potential to irritate colleagues.43 Epstein, Landes and Posner suggested that the effort cost of writing a dissent tended to be higher when the court’s caseload is higher.44 They demonstrated, therefore, that judges with heavier caseloads tended to dissent less than those who have more time to do so. There were more dissenting judgments on 34 Martin R Schneider, ‘Judicial Career Incentives and Court Performance: An Empirical Study of the German Labour Courts of Appeal’ (2005) 20 European Journal of Law and Economics 127. 35 Ibid. 132. 36 Cheryl Thomas, 2016 UK Judicial Attitude Survey (University College London Judicial Institute 2017). 37 Ibid. 13. 38 Ibid. 67. 39 Ibid. 15. 40 Mark A Cohen, ‘Explaining Judicial Behavior or What’s “Unconstitutional” about the Sentencing Commission?’ (1991) 7 Journal of Law, Economics, & Organization 183, 193. 41 Ibid. 198. 42 On judicial collegiality, see Harry T Edwards, ‘The Effects of Collegiality on Judicial Decision Making’ (2003) 151 University of Pennsylvania Law Review 1639 and Epstein, Landes and Posner (n 2) 255–304. 43 See section 2.5.2 Negative effects of group decision-making. 44 Epstein, Landes and Posner (n 2) 261.

96

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

the US Supreme Court than there were on the courts of appeals, for instance.45 However, other factors may well have been at play here; cases that reach the US Supreme Court are more likely to raise ideological issues.46 Nevertheless, judges may tend to take the more effortful choice to dissent more often when their workload is more accommodating. Other researchers have investigated how judges work different court procedure rules and decision-making avenues to their advantage in a bid to manage high workloads.47 Gulati and McCauliff hypothesised that in tough cases demanding highly specialist expertise, US judges might shirk from writing a full decision and prefer to issue a ruling without comment where court procedures allowed.48 Not making law may seem like a more sensible option than crafting a decision which may take time and effort, may lead to error in future cases, or may get overturned on appeal by a higher court. Offering evidence to support this hypothesis, Gulati and McCauliff studied the US Court of Appeals for the Third Circuit’s use of judgment orders – a decision of the court made without comment. They showed that where judges faced heavy caseloads, and had to decide ‘hard’ cases – that is, cases that had strong and plausible legal arguments on both sides – they tended to issue judgment orders rather than prepare and publish fully reasoned decisions. Workload constraints affected the way judges approached their decision-making: judges relied on the time and effort-saving option where they could.49 This last study, in particular, strays mainly into the territory of demonstrating how an external, institutionally driven pressure – a high workload – affects how judges decide cases. This finding is perhaps less to do with judges wanting to enjoy things in life other than judging, and more to do with ensuring the wheels of justice do not grind to a halt. That said, there is a thread that connects studies on judges firefighting burdensome caseloads and studies on judges’ performance being affected by their desire for leisure. All told, these studies demonstrate that judges seem to alter their decision-making behaviour to manage their workload in both contexts. Whether borne out of concerns for efficient justice (the public interest) or to preserve time to enjoy life outside work (self-interest), the above studies report correlations between fluctuations in workload and the effort and time judges put into their decision-making. Judges, Baum observes, must “determine where to draw the line, at what point to stop working on a case because the likely benefits of additional work are outweighed by the value of spending time on other pursuits.”50 Clark and his colleagues’ study provides reasonably clear evidence that judges can get distracted. In one sense, this is hardly surprising. The effects of leisure on judging that Clark and his colleagues observe are, in one sense, mundane; judges are not robots, and they need their down-time.51 But of course, the public will have views on where exactly to draw the line on what is tolerable in terms of compromising judicial performance.52 45 Ibid. 264. 46 Ibid. 262–263. 47 See, for example, Macey (n 15). 48 Mitu Gulati and Catherine MA McCauliff, ‘On Not Making Law’ (1998) 61 Law and Contemporary Problems 157. 49 Ibid. 173. 50 Baum (n 18) 13. 51 Clark, Engst and Staton (n 30) 384. On the specific issue of rest and sleep and judging, see Ronald R Grunstein and Dev Banerjee, ‘The Case of “Judge Nodd” and Other Sleeping Judges–Media, Society, and Judicial Sleepiness’ (2007) 30 Sleep 625. 52 Clark, Engst and Staton (n 30) 384.

97

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

Aside from judges’ concerns over workload pressures and their understandable desire for some downtime outside the courtroom, a related issue is the prospect of retirement and how this affects judges’ decision-making and their overall judicial performance. Studies on US judges at different levels of the judicial system demonstrate that an increased workload incentivises voluntary retirement.53 Do judges change their decision-making behaviour or performance as they contemplate and near retirement? Ash and MacLeod directly investigated correlations between looming retirement and judicial decision-making. They investigated the quantity and quality of judgments of all US state supreme court judges from 1947 to 1994 to assess whether the content and writing style of their judgments changed as they approached a mandatory retirement age.54 They found a steep decline in output as judges neared a mandatory retirement age, suggesting a negative incentive effect on judges’ effort.55 However, there was no difference in the quality of judges’ output when the researchers compared judges who faced a mandatory retirement age with those who did not.56 Other research concentrates on the overlapping issues and effects of judges’ age and experience on decision-making, which are discussed elsewhere.57 Aside from investigating the issue of judicial performance, other researchers have investigated links between impending judicial retirement and judges’ politics. For instance, Gray observed how US state supreme court judges nearing retirement decided cases differently to judges facing reappointment processes by state legislatures at various intervals earlier in their career. Senior judges nearing retirement – undaunted by the legislature’s scrutiny through the reappointment process – tended to decide cases less in line with the preferences of the state legislature’s politics than their earlier-career colleagues who faced reappointment.58 Another related dynamic is how judicial retirement itself can be used as leverage to strategically shift ideologies on courts. Judges may pick their moment to retire in a bid to ensure their successor is aligned to their political agenda. In the US, where judicial appointments can be a particularly politically partisan affair, researchers have observed that judges tend to retire at times that coincide with when their preferred political party was in government, suggesting the timing of their retirement was politically strategic.59 This dynamic does not necessarily travel to other jurisdictions. For instance, Massie and 53 David C Nixon and J David Haskin, ‘Judicial Retirement Strategies: The Judge’s Role in Influencing Party Control of the Appellate Courts’ (2000) 28 American Politics Quarterly 458; James F Spriggs and Paul J Wahlbeck, ‘Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893–1991’ (1995) 48 Political Research Quarterly 573; Deborah J Barrow and Gary Zuk, ‘An Institutional Analysis of Turnover in the Lower Federal Courts, 1900–1987’ (1990) 52 The Journal of Politics 457. 54 To measure the quality of decision-making, the researchers relied on machine learning of the text of judgments to form predictions of citations from the text features of a case. The measure of quality was the prediction of citations from the text features of a judge’s judgment. Elliott Ash and W Bentley MacLeod, ‘Aging, Retirement and High-Skill Work Performance: The Case of State Supreme Court Judges’ (2017) Available at SSRN 2992828 accessed 17 July 2020, 3–4. 55 Ibid. 31. 56 Ibid. 57 See section 4.3 Judges’ age and experience. 58 Thomas Gray, ‘The Influence of Legislative Reappointment on State Supreme Court Decision-Making’ (2017) 17 State Politics & Policy Quarterly 275. 59 For a review, see Alvaro Bustos and Tonja Jacobi, ‘A Theory of Justices’ Retirement’ (2015) 17 American Law and Economics Review 529, 531–532; Spriggs and Wahlbeck (n 53); Nixon and Haskin (n 53); Michael A Bailey and Albert Yoon, ‘“While There’s a Breath in My Body”: The Systemic Effects of Politically Motivated

98

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

her colleagues found no evidence that judges on the Supreme Court of Canada or the UK House of Lords strategically retired to achieve political objectives.60 Having considered leisure, workload and the effect of looming retirement, we now turn our attention to how judges, just like everyone else, may care about their reputation and about how they are perceived by others. Some judges also strive to be influential, even famous. These matters of personal pride are considered in the next section. 3.2  Reputation,    prestige and influence Baum remarks, entirely reasonably, that “the idea that judges care a great deal about what people think of them is not very radical.”61 All judges engage in some level of selfpresentation.62 Judges may wish to cultivate their reputation within certain groups important to them: the public, the legal professional community, academics, or fellow judges, for example.63 Judges may use their decisions as a way of enhancing, as they see it, their reputation.64 Concern for reputation may motivate judges’ decision-making in the same direction as the policy goals that they wish to pursue.65 However, these two motivating factors – a judge’s policy goals and a judge’s concern for reputation – may not necessarily always converge.66 Researchers have considered how judges may bear their reputation and how others perceive them in mind when deciding cases. Law and economics scholars contend, for instance, that lower-tier judges decide cases and use specific case precedents to preserve and enhance their reputation with one eye on promotion to an appellate court.67 Posner argues that for an “extraordinary” judge, reputation may be a “dominating objective.”68 Judges may seek prestige, while understanding that this does not necessarily equate to popularity.69 For other judges, fame may even sometimes be a motivator.70 Schauer suggests that some judges may simply want to have an impact for the sake of having an impact through their rulings, either in their substance or in “trademarks” in their judicial Retirement from the Supreme Court’ (2011) 23 Journal of Theoretical Politics 293; Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court (SUNY Press 2012). 60 Tajuana Massie, Kirk A Randazzo and Donald R Songer, ‘The Politics of Judicial Retirement in Canada and the United Kingdom’ (2014) 2 Journal of Law and Courts 273. Aside from judges making their own choices on when to retire, equally, governments have powers to make choices about when judges must retire. In increasingly authoritarian regimes, governments may tinker with retirement ages to flush out non-compliant judges in order to establish a more acquiescent judiciary over time, a manifestation of “abusive constitutionalism.” See section 7.2.2.1 How judges are selected and the consequences for judicial decision-making. On abusive constitutionalism, see further, David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189. 61 Baum (n 18) 22. 62 Ibid. 39. 63 On judges’ groups and social identities, see ibid. 27–28. 64 Miceli and Coşgel point out that judges’ decisions are “inputs” into their reputation. Thomas J Miceli and Metin M Coşgel, ‘Reputation and Judicial Decision-Making’ (1994) 23 Journal of Economic Behavior & Organization 31, 33. 65 See section 4.5 Judges’ politics and judicial decision-making 66 Baum (n 18) 45. 67 Miceli and Coşgel (n 64); Gilat Levy, ‘Careerist Judges and the Appeals Process’ (2005) 36 The RAND Journal of Economics 275. 68 Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8) 16. 69 Posner observes that “[F]ew judges . . . care whether they are popular with the litigants themselves. How could they be? Virtually every decision produces a happy winner and an unhappy loser.” Ibid. 13. 70 Richard A Posner, Cardozo: A Study in Reputation (University of Chicago Press 1993) 59.

99

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

writing.71 Baum argues that this can lead to maverick judging: “without boldness in interpreting the law, a judge has little chance of becoming famous.”72 Epstein, Landes and Posner analogise a propensity towards ‘bold’ judging with the ‘Babe Ruth’ effect. Revered baseball player Babe Ruth tended to play aggressively, seeking more home runs even though his batting average suffered. He could have swung his bat less to play more conservatively, but his reputation would have suffered as a result.73 However, such fame-seeking behaviour is generally confined to judges at the upper echelons of court systems. Most lower-rank judges will not have the luxury of pursuing fame and fortune, owing to the nature of their caseload and workload pressure. In these circumstances, judges may engage in decision-making behaviour designed to limit potential damage to their reputation, rather than actively pursue reputation-enhancing judging. Bainbridge and Gulati speculate that where caseload pressures are inordinately high, judges may play it safe, disposing of cases summarily rather than issuing judgments in timeconsuming, complicated cases out of fear of failure and consequent reputational damage.74 These scholars speculate how judges’ concerns for their reputation, prestige and influence may affect their decision-making in different ways. Empirically demonstrating the impact of reputation, prestige and influence is a different matter, however, and testing whether these are, in fact, “inglorious determinants of judicial behaviour” as Schauer once put it, is not easy.75 Few judges will admit to having very much self-interest in reputation or promotion. “For a non-judge to raise the topic of judicial self-interest in the company of judges is something like raising the topic of steak tartare at a convention of vegetarians,” Schauer colourfully remarked.76 Researchers have sought to identify who the most influential, reputed, prestigious judges are.77 In 1976, Landes and Posner published a seminal article suggesting that judicial citations can measure individual judges’ influence.78 Since then, many scholars have ranked and tested the prestige or influence of judges using judicial citations as a yardstick.79 This measure has its limitations,80 and some researchers have sought to improve on merely measuring raw citation counts by considering and adjusting for different factors, such as eliminating instances where judges cite themselves.81 Other researchers have suggested 71 Schauer (n 1) 633. 72 Baum (n 18) 109. 73 Epstein, Landes and Posner (n 2) 49–50. 74 Bainbridge and Gulati suggest that judges will focus their attention on making sure that the judgments that they do write are “’good enough’ so as to avoid negative attention . . . . [J]udges may well care more (at least subconsciously) about avoiding negative attention than about getting it right.” Bainbridge and Gulati (n 2) 108–109. 75 Schauer (n 1) 636. 76 Ibid. 623. 77 Richard Posner notes how these terms can sometimes be used interchangeably, specifically how citations can be used as a ranking as “a rough guide to quality, or influence, or reputation – it is not altogether clear which is being measured.” Richard A Posner, ‘An Economic Analysis of the Use of Citations in the Law’ (2000) 2 American Law and Economics Review 381, 392. 78 William M Landes and Richard A Posner, ‘Legal Precedent: A Theoretical and Empirical Analysis’ (1976) 19 The Journal of Law and Economics 249. 79 See, for example, Richard A Posner, ‘The Hand Biography and the Question of Judicial Greatness (Reviewing Gerald Gunther, Learned Hand: The Man and the Judge (1994))’ (1994) 104 Yale Law Journal 511. 80 William M Landes, Lawrence Lessig and Michael E Solimine, ‘Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges’ (1998) 27 The Journal of Legal Studies 271, 276. 81 Mita Bhattacharya and Russell Smyth, ‘The Determinants of Judicial Prestige and Influence: Some Empirical Evidence from the High Court of Australia’ (2001) 30 The Journal of Legal Studies 223, 225.

100

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

that the number of times that a judge is referred to by name is a more satisfactory measure of judges’ prestige.82 Researchers have measured and ranked the influence of judges on many courts, including, for example, the US Supreme Court,83 US courts of appeals,84 the Canadian Supreme Court85 and the Australian High Court.86 While these studies go towards identifying and ranking which judges are prestigious, have a good reputation, or have influence, they do not explain how and when judges decide cases differently because they are motivated by concerns of prestige, reputation or influence. Baum offers perhaps the most coherent way of looking at how these factors (among others) may affect judging. He suggests taking an audience-based perspective to understand judicial decision-making. Because self-image is important to judges like everyone else, judges “may be willing to work to achieve what they see as good law or good policy . . . if they think those efforts foster the image they want” among particular audiences.87 These audiences include colleagues on the bench, the voting public in judicial elections, the public more generally and other branches of government.88 Baum also suggests that lawyers are an important reputation-granting audience for judges who may have a bearing on decision-making.89 Judges concerned about how lawyers think of them may be more inclined to publish their decisions to demonstrate skill and creativity in the law to their fellow legal professionals.90 Barton went further, presenting empirical evidence that suggested judges decided certain types of cases in ways that favour the interests of legal professionals.91 He found that US judges tended to be more favourable to lawyers in malpractice claims than they were to workers in other professions.92 They were also far more likely to invalidate non-compete clauses that worked against lawyers, in contrast to rulings on non-compete clauses in other professions.93 Barton speculated why judges may favour lawyers where the legal profession’s interests were at stake in litigation. Lawyers are often involved in appointing judges to some degree. Where candidate judges are subjected to a rating system, bar 82 David Klein and Darby Morrisroe, ‘The Prestige and Influence of Individual Judges on the US Courts of Appeals’ (1999) 28 The Journal of Legal Studies 371, 375; Bhattacharya and Smyth (n 81). 83 Montgomery N Kosma, ‘Measuring the Influence of Supreme Court Justices’ (1998) 27 The Journal of Legal Studies 333. 84 Landes, Lessig and Solimine (n 80); Michael E Solimine, ‘Judicial Stratification and the Reputations of the United States Courts of Appeals’ (2004) 32 Florida State University Law Review 1331. 85 Peter McCormick, ‘Supreme Court Cites the Supreme Court: Follow-Up Citation on the Supreme Court of Canada, 1989–1993, The’ (1995) 33 Osgoode Hall Law Journal 453. 86 Bhattacharya and Smyth (n 81). 87 Baum (n 18) 47. On judges and their reputation, see generally, Nuno Garoupa and Tom Ginsburg, Judicial Reputation: A Comparative Theory (University of Chicago Press 2015); Baum (n 18) 25–49. 88 These audiences and their influence on judicial decision-making are discussed elsewhere. See generally chapter 7. 89 Baum (n 18) 117. Baum is not alone in suggesting a link between judges’ reputation-seeking behaviour and their relations with lawyers. “Self-interested judges seek prestige,” Cooter suggests, particularly among lawyers who appear before them, their “most immediate audience.” Robert D Cooter, ‘The Objectives of Private and Public Judges’ (1983) 41 Public Choice 107, 129. 90 Baum (n 18) 114–115. Baum cited Taha’s study on sentencing cases as suggestive evidence for the link between judges’ concern for their reputation among the legal community with the propensity to publish decisions. Taha (n 27) 18–19. 91 Benjamin H Barton, ‘Do Judges Systematically Favor the Interests of the Legal Profession’ (2007) 59 Alabama Law Review 453. 92 Ibid. 491–502. 93 Ibid. 487–491.

101

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

associations usually dictate them. Bar associations also have sway in debates on judicial salaries, and judges are frequently bar association members themselves.94 At a more social level, the vast majority of judges, at least in common law systems, were practising lawyers before being elevated to the bench, having spent a large part of their career working as lawyers. Their peer group, former colleagues and many of their friends are likely to be lawyers.95 “On a conscious level any judge will think hard about the reactions of his or her peer group,” reasoned Barton.96 The set of cases that Barton relied on were relatively narrow, but within those cases at least, his argument that judges are concerned about lawyers’ interests and adjust their decision-making accordingly is convincing. However, whether the apparently preferential treatment of lawyers is a product of judges seeking to protect or enhance their reputation among this peer-group is a matter of speculation. Another reputational factor for judges is the prospect of review and reversal by appellate courts. Former president of the UK Supreme Court Tom Bingham once remarked that “[J]udges (being human) do not like being reversed on appeal, although some dislike it more than others.”97 A judge may feel admonished or that their reputation has been tarnished if their decisions are reversed on appeal. Assuming some judges will feel this way, do judges strategically factor this into their decisions? Do they fear reversal to the extent that they tailor their decision-making to avoid it? Scholars argue that judges are motivated by reputation in this regard.98 However, empirical evidence for this dynamic, as we will see in chapter 7, is mixed at best.99 Moving away from inter-court dynamics and reputational concern within a judicial hierarchy, Van Winkle investigated whether judges look to avoid being reversed by colleagues sitting with them on their own court.100 Van Winkle studied a sample of search and seizure decisions in US courts of appeals cases from the early 1990s. Assuming that liberal judges were generally more likely to take the liberal position in these cases and find a search unreasonable, he found that when individual liberal judges had strength in ideological numbers on judicial panels, they were emboldened and more likely to find a search unreasonable. Vice versa, when they were outnumbered by conservative colleagues on a panel, they were less likely to dissent against them. One interpretation is that judges had their reputation in mind: when outflanked by conservative colleagues on a panel, they wished to avoid unwanted attention. However, concern for reputation is certainly not the only interpretation.101 Other factors – group dynamics or strategic behaviour, to name two – may have been at play. 94 Ibid. 458. 95 Ibid. 458–459. 96 Ibid. 459. 97 Tom Bingham, ‘Judicial Ethics’ in The Business of Judging: Selected Essays and Speeches: 1985–1999 (Oxford: Oxford University Press 2011) 83. 98 Cameron and colleagues contend, for example that “frequent reversals bring the derision of colleagues and a decline in professional status.” Charles M Cameron, Jeffrey A Segal and Donald Songer, ‘Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court’s Certiorari Decisions’ (2000) 94 American Political Science Review 101, 102. 99 Pauline T Kim, ‘Beyond Principal-Agent Theories: Law and the Judicial Hierarchy’ (2011) 105 Northwestern University Law Review 535, 557. See section 7.1 Other courts in the judicial system: judicial decisionmaking in a hierarchy. 100 Steven R Van Winkle, ‘Dissent as a Signal: Evidence from the US Courts of Appeals,’ Paper presented at the Annual Meeting of the American Political Science Association, Washington DC on 28–31 August 1997. 101 David E Klein, Making Law in the United States Courts of Appeals (Cambridge University Press 2002) 38.

102

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

Empirical studies provide decidedly underwhelming evidence that judges fear reversal by superior courts, at least in the US system, and, less still, that they are motivated to comply out of concern for their reputation. Moreover, it is not self-evident that lowercourt judges actually suffer reputational harm when they are reversed, according to one scholar.102 Some judges agree. Posner suggests, speaking from personal experience on the bench, that although he and other judges do not like to be reversed on appeal, they are not motivated significantly in their decision-making by the fear of reversal.103 Indeed, there are some suggestions that reversal on appeal can even be a reputation-enhancing badge of honour in certain contexts. Baum gives the example of the US Court of Appeals for the Ninth Circuit with jurisdiction over states on the US West Coast, a court traditionally applauded by liberals and perceived as having something of a rebellious streak.104 Putting these strands of literature together, some familiar themes emerge. The research is somewhat myopic, concerned almost exclusively with the upper tiers of the US judicial system.105 Furthermore, disentangling judges’ concern for reputation from other overlapping factors is difficult. Parsing out which audiences judges may be particularly concerned with over others is also tricky. We now turn to career-specific motivations that may affect judges. Income, and promotion to higher courts, are inevitably considerations and motivations that weigh on some judges’ minds as they progress with their judicial careers. However, do they tangibly affect their decision-making? 3.3 Pay Workers care about pay. A standard economic model of worker behaviour posits that better pay incentivises better job performance.106 Good pay is used to attract people to apply for the job in the first place. But remuneration for judges does not necessarily fit this standard model. To generalise somewhat, candidates for judicial posts often stand to lose out financially. Many judges do not maximise their wealth by joining the bench, because they could earn significantly more money in private practice as a lawyer, among other roles.107 Once judges are appointed to the bench, they are generally paid the same amount as other judges of similar rank.108 Aside from the possibility of promotion to a 102 Pauline T Kim, ‘Lower Court Discretion’ (2007) 82 New York University Law Review 383, 402. 103 Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8) 14; Jonathan M Cohen, Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals (University of Michigan Press 2009) 44. 104 Baum (n 18) 112–113. 105 Joanna Shepherd, ‘Measuring Maximizing Judges: Empirical Legal Studies, Public Choice Theory and Judicial Behavior’ (2012) Revista Forumul Judecatorilor 33, 35. 106 Adam Smith, The Wealth of Nations (1776); Edward P Lazear, ‘Performance Pay and Productivity’ (2000) 90 American Economic Review 1346. 107 Choi and colleagues note that “many people who become judges give up millions of dollars of compensation as a law firm partner,” Stephen J Choi, G Mitu Gulati and Eric A Posner, ‘Are Judges Overpaid: A Skeptical Response to the Judicial Salary Debate’ (2009) 1 Journal of Legal Analysis 47, 58. See also Baker, who compares salaries of lawyers to judges in the United States, Scott Baker, ‘Should We Pay Federal Circuit Judges More?’ (2008) 88 Boston University Law Review 63, 65–66. 108 An exception applied in Slovenia. Judges can apply for promotions on the basis of an assessment of judicial performance. See further, Valentina Dimitrova-Grajzl and others, ‘Judicial Incentives and Performance at Lower Courts: Evidence from Slovenian Judge-Level Data’ (2012) 8 Review of Law & Economics 215, 221.

103

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

higher court – often a remote enough possibility – judges are generally not incentivised by increased pay in the same way other workers are. Even if they were, such an incentive might not work. Smyth contends, for instance, that it is “highly unlikely that many judges are motivated by financial returns.”109 Of course, the effect of pay cannot be evaluated in isolation.110 Status, tenure, pension entitlements, working conditions and the satisfaction of being a judge may all incentivise judges in their role.111 Anderson and Helland identify instances of famous historical figures such as Plato and Winston Churchill speaking to the importance of appropriate pay for judges.112 But does judicial pay correlate with judicial performance? Judges often assert that if you do not pay judges enough, poorer-quality judging will result. This can be a thorny issue. For instance, in the 2000s, senior members of the US judiciary strongly criticised pay levels and suggested that if pay increases were not introduced, the quality of the judiciary would diminish.113 Indeed, Chief Justice John Roberts confined his entire year-end report on the federal judiciary in 2006 to the issue of judicial pay, describing it as having “reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.”114 His colleague on the US Supreme Court bench, Justice Samuel Alito, argued that there was a direct correlation between judicial pay and how judges perform. Eroding judicial salaries would lead “ultimately to inferior adjudication,” he contended.115 Lawyers and law academics alike agitated for judicial pay increases.116 Claims that the quality of judiciaries may deteriorate owing to insufficient pay are not unique to the US. Recently, Irish politicians expressed similar concerns,117 and in the UK, a recent recruitment crisis precipitated increases in judicial salaries.118 A 2016 survey of 109 Russell Smyth, ‘Do Judges Behave as Homo Economicus, and If So, Can We Measure Their Performance: An Antipodean Perspective on a Tournament of Judges Symposium: Empirical Measures of Judicial Performance’ (2004) 32 Florida State University Law Review 1299, 1304. 110 Choi, Gulati and Posner (n 107) 48–49. 111 Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8); Baker (n 107) 73. 112 See James M Anderson and Eric Helland, ‘How Much Should Judges Be Paid: An Empirical Study on the Effect of Judicial Pay on the State Bench’ (2012) 64 Stanford Law Review 1277, 1278. Plato warned that public officials should not be paid too much for fear of encouraging selfish motivations to seek public office, Desmond Lee, The Republic (Penguin Books 1974) 184–187; quoted by Anderson and Helland in James M Anderson and Eric Helland, ‘How Much Should Judges Be Paid-An Empirical Study on the Effect of Judicial Pay on the State Bench’ (2012) 64 Stanford Law Review 1277, 1278. Winston Churchill argued for appropriately high pay for judges because “[t]he Bench must be the dominant attraction to the legal profession.” Winston Churchill and Robert Rhodes James, Winston S. Churchill: His Complete Speeches, 1897–1963 (Chelsea House Publications 1974) 8548. 113 Choi, Gulati and Posner (n 107) 47–48; Blake Denton, ‘The Federal Judicial Salary Crisis’ (2009) 2 Drexel Law Review 152. 114 He argued that since 1969 federal judicial pay had declined 23.9%, while US workers’ wages rose 17.8%, a gap of 41.7%. John Roberts, ‘2006 Year-End Report on the Federal Judiciary’ (2007) 1 accessed 17 July 2020. 115 Samuel Alito, testimony on federal judicial compensation in a hearing before the Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary, US House of Representatives, One Hundred Tenth Congress, First Session, 19 April 2007. 116 Choi, Gulati and Posner (n 107) 48. 117 Irish Senator Michael McDowell expressed concern that “the quality of judicial appointments has, unfortunately, declined in recent times due to a number of economic factors. If we allow the quality of the Judiciary to decline, we will suffer economically and internationally in the long run as far as our reputation is concerned.” Seanad Debate, 28 March 2017, vol. 25 col 13. 118 Owen Bowcott, ‘High Court Judges Get Pay Rise to Deal with Hiring Crisis in England and Wales’ The Guardian (5 June 2019); ‘Judges Win 16% Pay Rise to Stem Recruitment Crisis’ The Times (6 June 2019).

104

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

the UK judiciary, generating a response rate of 86% of all salaried judges, reported that 63% of surveyed judges said their judicial salary was negatively affecting their morale.119 On the other hand, too much judicial pay can become a major political and public issue, as it was in the 2004 Australian federal election, for example.120 Two studies have investigated correlations between judicial pay and judicial performance.121 Both indicate that judicial pay has very little impact on judicial performance. Choi and his colleagues correlated US state judges’ salary levels, ranging between states from $83,550 to $150,000, and their corresponding performance levels in decision-making from 1998 to 2000, as measured by their productivity (the number of written decisions) and quality (citation rates).122 They found no evidence that pay affected these metrics for productivity or quality.123 Rather, they found that performance was more closely tied to security or insecurity of tenure. The case for increasing salaries was not particularly strong, concluded Choi and his colleagues.124 Instead, “nonpecuniary benefits of being a judge – including status and the ability to exercise power over the lives of others – substitute for cash compensation, and lots of it.”125 Baker came to a similar conclusion. He proposed that the salary sacrifice that judges make is the true measure of pay as an effect on judicial performance. He measured salary sacrifice as the opportunity cost that judges accept by deciding to take a position on the bench rather than as partners in regional law firms. Baker investigated whether differences in such opportunity cost correlated to differences in judicial performance. He proposed three hypotheses: paying judges more creates a less ideological judiciary, paying judges more creates a harder working judiciary and paying judges less makes them more keen to publish influential judgments. None of Baker’s hypotheses were borne out, save for one marginally significant measure of increased judicial effort correlating with higher pay: in circumstances where judges made a lower salary sacrifice to join the bench, they tended to be marginally more productive. Baker concluded, “[J]udicial compensation is irrelevant to most quantifiable measures of judicial performance . . . pretty much nothing would happen if [the US] Congress decided to raise judicial salaries.”126 One step removed from directly investigating correlations between judicial pay and judicial performance are studies that analyse whether judicial pay affects the composition of the judiciary. Anderson and Helland investigated whether different judicial salaries on different US courts of appeals affected who was likely to apply for a role on these courts.127 Higher salaries appeared to slightly increase the likelihood that lawyers, either district attorneys or lawyers, would apply for appellate judge roles than other legal professionals, specifically academics, judges in other courts, or public defenders.128 119 Thomas (n 36) 37. 120 Smyth (n 109) 1303. 121 Choi, Gulati and Posner (n 107); Baker (n 107). 122 The researchers acknowledge the imperfections of this measure of judicial quality. Choi, Gulati and Posner (n 107) 102–103. 123 The researchers accounted for a host of variables, including the level of support staff provided to judges, the cost of living for the city in which the court is located and judges’ level of experience. 124 Choi, Gulati and Posner (n 107) 102. 125 Ibid. 58. 126 Baker (n 107) 66. 127 Anderson and Helland (n 112) 1281. 128 Ibid.

105

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

At the opposite end of the judicial career, studies show, unsurprisingly, that US Supreme Court judges who become eligible for pension benefits – described by Posner as “extraordinarily generous”129 – are more likely to retire.130 Other studies arrive at the same conclusion regarding US courts of appeals judges.131 However, these studies do not directly address whether judicial pay affects how judges decide cases. That said, Anderson and Helland note that the composition of the bench and their decision-making behaviour are “not entirely discrete,” and may affect each other.132 Beyond the US, other studies have investigated the introduction of performance-based pay raises for judges in Slovenia and Spain. In these jurisdictions, schemes were introduced whereby if judges performed ‘better’ according to prescribed metrics, they were rewarded with better pay.133 Researchers in both jurisdictions correlated productivity, as measured by the number of decisions that judges hand down, with judicial pay. DimitrovaGrajzl and her colleagues investigated the effect of pay on judicial performance in the lower courts of the Slovenian judiciary.134 Slovenian judges are eligible for a salary increase every three years based on an evaluation of their performance by the Slovenian Judicial Council (Sodni svet).135 The researchers found a correlation between how hard judges worked and their salaries. They pointed out that while there was an association, it was not clear whether better pay caused higher productivity or vice versa.136 The researchers also demonstrated that in the year where judges were eligible for a salary increase, their productivity went up relative to that of other judges. The chance of higher pay seemed to incentivise judges. The researchers did not, however, find support for a corollary hypothesis that judges would slack off once they had secured their higher salary. Judges’ productivity did not taper off after a pay increase.137 In Spain, two separate pay-for-performance schemes were introduced through legislation in the 2000s, both designed to incentivise judicial productivity.138 The first scheme, introduced in 2003, proved controversial. In a survey of Spanish judges, 60% of respondents opposed it, while 36% thought it had a negative effect on the quality of the judiciary’s output.139 A particular gripe among responding judges was that those who did not meet a set productivity ‘benchmark’ had their salary cut. The Spanish Supreme Court annulled the scheme in February 2006.140 A second scheme – this time without the threat of a salary cut for under-productive judges – was introduced in 2007. 129 Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8) 5. 130 Peverill Squire, ‘Politics and Personal Factors in Retirement from the United States Supreme Court’ (1988) 10 Political Behavior 180, 186; Christopher JW Zorn and Steven R Van Winkle, ‘A Competing Risks Model of Supreme Court Vacancies, 1789–1992’ (2000) 22 Political Behavior 145, 154–155. 131 Spriggs and Wahlbeck (n 53) 590, 593. 132 Anderson and Helland (n 112) 1302. 133 For instance, in Slovenia, the measures by which judges’ performance is evaluated include a judge’s overall expertise; performance in and timeliness of, case resolution; work to alleviate and prevent backlogs; case management; communication with plaintiffs and authorities; efforts at safeguarding judicial independence; impartiality, reliability and overall performance on the job. Dimitrova-Grajzl and others (n 108) 221. 134 Dimitrova-Grajzl and others (n 108). 135 Ibid. 221. 136 Ibid. 218. 137 Ibid. 231. 138 Manuel Bagues and Berta Esteve-Volart, ‘Performance Pay and Judicial Production: Evidence from Spain’ (2010) Unpublished manuscript. 139 1803 out of 4221 Spanish judges on the bench at the time responded. 140 Bagues and Esteve-Volart (n 138).

106

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

Bagues and Esteve-Volart demonstrated that the first scheme worked insofar as it increased productivity: judges’ output increased by 7%, at an added cost in judicial salaries of 2%.141 However, they found that the second scheme – without the looming threat of salary cuts if judges failed to meet productivity targets – did not have much of an effect.142 Relative to the period of time when the first scheme was operable, judges’ output during the second scheme declined slightly. However, relative to the time before either scheme was introduced, judicial productivity during the second scheme was higher. To a limited extent then, overall, the schemes did incentivise higher levels of productivity. However, these results are purely quantitative. The studies did not analyse whether the quality of judges’ decision-making improved or diminished owing to the introduction of the pay-for-performance schemes. Where the base measure for evaluating performance is simply the number of cases disposed of, performance-for-pay initiatives may overemphasise the quantity of judicial output over its quality. Depending on the context, justice may suffer. Even performancefor-pay schemes where measures for assessing performance are qualitative rather than quantitative creates difficulties. Assessing judges on the basis of “a judge’s overall expertise,” their “impartiality,” “reliability” or “overall performance on the job,” as is the case in Slovenia, is an inherently subjective exercise. Posner argues that subjective performance-based criteria could compromise judicial independence.143 Aside from higher income, how are judges motivated by the chance of promotion to higher judicial office? And how does this affect decision-making? 3.4 Promotion Although judges may be circumspect about admitting it, it is entirely reasonable to suggest many judges desire promotion to the upper courts over the course of their judicial career.144 Judges are not, suggest Sisk and his colleagues, “immune from the temptations of higher office within the judiciary.”145 Promotion – for present purposes, elevation to a higher court in the same judicial system – is inevitably an incentive for many judges. Might the prospect of promotion influence their decision-making? Would a promotionseeking judge produce more written judgments, at the expense of efficiency? Would such a judge be especially concerned about not being reversed on appeal and produce entirely uncontroversial decisions?146 Choi and Gulati even theorise a “tournament of judges” where judges vie for promotion through their decisions.147 Researchers have investigated and have sometimes found that judges do indeed change their decision-making behaviour on particular legal issues, seemingly in a bid to impress those who promote candidates to higher judicial office. To understand changes in judicial 141 Ibid. 7. 142 Ibid. 143 Richard A Posner, How Judges Think (Harvard University Press 2010) 158. 144 Schauer (n 1) 631. 145 Gregory C Sisk, Michael Heise and Andrew P Morriss, ‘Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning’ (1998) 73 New York University Law Review 1377, 1487. 146 Schauer (n 1) 632. 147 Stephen Choi and Mitu Gulati, ‘A Tournament of Judges’ (2004) 92 California Law Review 299. See also Smyth (n 109); Stephen J Choi and G Mitu Gulati, ‘Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance Articles & Commentary’ (2004) 78 Southern California Law Review 23.

107

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

decision-making as promotion looms, a key consideration is how probable promotion is in the first place. Take the US federal judicial system as an example. Promotion may only be a relatively low-level incentive in the upper ranks of the US judiciary, and some suggest that the process of promotion may be too much a matter of chance to influence judges’ decisions.148 Nevertheless, archival studies on different levels of the US judicial system have shown that judges with a higher chance of promotion than others – sometimes referred to in the literature as “auditioners” – do indeed change their behaviour in order to improve their chances. Some researchers have investigated the behaviour of US courts of appeals judges seeking promotion to the Supreme Court. Black and Owens demonstrated that these judges appeared to change their decision-making when a vacancy arose, more likely to decide cases consistent with the preferences of the president (who, of course, wields considerable power over appointments to the Supreme Court).149 The probability that an auditioner judge would decide consistently with the president’s preferences increased from 0.42 when no vacancy existed to 0.51 when one did, a 21% relative increase.150 Furthermore, auditioner judges were more than twice as likely to issue a dissenting judgment when there was a vacancy on the Court as when there was not. The researchers suggested that this indicated that auditioner judges might look to differentiate themselves from their colleagues.151 Epstein, Landes and Posner also reported promotion-seeking behaviour by auditioner judges for the US Supreme Court.152 They identified auditioner judges from the courts of appeals for the Supreme Court between 1930 and 2009 through a combination of presidential shortlists and newspaper and scholarly accounts of judges. Around 20% of active courts of appeals judges fell into this category. After public opinion swung to a “tough-on-crime” stance from the 1960s onwards, Epstein and her colleagues hypothesised that judges seeking promotion would toughen their stance in criminal cases. Analysing decision-making in street crime cases, the researchers found that auditioner judges were indeed significantly less likely to decide in favour of defendants than non-auditioner judges were.153 Rather starkly, a similar trend prevailed in capital punishment cases. Judges looking to improve their chances of promotion may literally have been a matter of life and death on some occasions.154 Notably, the ‘tough-on-crime’ stance did not translate to white-collar crime cases which were less likely to arouse the emotions of the public than other types of cases were.155 148 Posner describes how promotion from the ranks of federal court of appeals to the US Supreme Court is “a small carrot . . . the probability of such an appointment is low . . . the impact of a particular decision on the prospects for promotion is normally very slight.” Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (n 8) 5. The figures reflect this. From 1933 to 2010 only 3% of courts of appeals judges have been promoted to the US Supreme Court. See Epstein, Landes and Posner (n 2) 337–338. Cooter agrees: the process of promotion within the US judicial system is “too random to discipline judges effectively.” Cooter (n 89) 129. 149 Ryan C Black and Ryan J Owens, ‘Courting the President: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court’ (2016) 60 American Journal of Political Science 30. 150 Ibid. 38. 151 Ibid. 39–40. 152 Epstein, Landes and Posner (n 2) 337–384. 153 Ibid. 359. 154 Ibid. 362–363. 155 Ibid. 361.

108

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

Researchers have also examined changes in decision-making at lower tiers of the US judicial system, specifically by US district court judges seeking promotion to courts of appeals. Cohen reported that these judges adopted a “tough-on-crime” stance when sentencing in antitrust offences in the 1980s.156 Noting that both the White House and the Department of Justice consistently criticised judges who were lenient in antitrust cases in the 1980s, Cohen demonstrated that auditioner judges increased their sentencing levels by a factor of three when vacancies arose.157 In a later study, Cohen showed changes in the same judges’ decision-making when ruling on the constitutionality of sentencing guidelines. Auditioner judges were more likely to uphold the constitutionality of sentencing guidelines, in alignment with government policy, than non-auditioner judges were.158 Beyond the US, Grendstad, Shaffer and Waltenburg pointed to evidence that aspiring chief justices on the Norwegian Supreme Court also displayed changes in voting behaviour with one eye on promotion to the role. Aspiring chief justices who were subsequently appointed were 30 percentage points more likely to decide for government litigants in nonunanimous civil cases before their appointment than they were after they were appointed.159 On the whole, these studies find that judges with a realistic prospect of judicial promotion appear to modify their behaviour, seemingly in a bid to impress the government actors who may promote them. Judges may well sacrifice at least some consistency and purity in their decision-making to further their career goals. In other work environments, many of us may change our behaviour when courting promotion. In judicial systems, however, the implications are profound, with potentially life-altering consequences for the litigant who appears before a judge vying for higher office. 3.5 Conclusions on judges’ professional motivations and judicial decision-making When Richard Posner conceived of judges as labourers in an economic market, this opened the door to properly considering how personal and professional motivations affected judges in their day-to-day role. The Law and Economics movement emerged as a sensible paradigm for understanding how the likes of leisure, income and promotion may affect judges’ behaviour and decision-making. Political scientists and psychology scholars have also contributed to understanding the effect of judges’ motivations – particularly how less tangible motivations (prestige, reputation and influence) are factors that may affect judicial decision-making. Something perhaps more basic and human is at play here: judges like the prestige and reputation that comes with pleasing their audiences.160 “People want to be liked,” notes Baum, and this “affects people’s behavior.”161 156 Mark A Cohen, ‘The Role of Criminal Sanctions in Antitrust Enforcement’ (1989) 7 Contemporary Economic Policy 36. 157 Ibid. 43–44. See also Mark A Cohen, ‘The Motives of Judges: Empirical Evidence from Antitrust Sentencing’ (1992) 12 International Review of law and Economics 13. Cohen identified judges who were more likely to be promoted as those associated with the President’s party and in districts where vacancies had arisen. 158 Cohen, ‘Explaining Judicial Behavior or What’s “Unconstitutional” about the Sentencing Commission?’ (n 40). 159 Gunnar Grendstad, William R Shaffer and Eric N Waltenburg, Policy Making in an Independent Judiciary: The Norwegian Supreme Court (ECPR Press 2015) 154–155. 160 Baum (n 18) 60–71. 161 Ibid. 25.

109

PROFESSIONAL MOTIVATIONS AND DECISION-MAKING

By extension, this may influence how judges decide cases. Research on judges’ personal and professional motivations is amorphous, shape-shifting from the disciplines of economics to politics to psychology and back again. Whatever the academic discipline that drives research on judges’ personal and professional motivations, what emerge are, in many ways, relatively unsurprising findings. Judges desire and strive for the same things that other professionals do: a sense that they are valued, that their expertise is properly acknowledged by the community and an opportunity to enjoy life beyond their working day. The controversy that follows, of course, is how much or how little leeway is afforded to judges when these motivations start to affect judicial outcomes.

110

CHAPTER 4

Judges’ characteristics and effects on judicial decision-making

Judges’ decisions are not the product of their innate personal characteristics such as their gender, their race or their age. The colour of a judge’s skin or their gender does not, of itself, affect how they think about and decide cases. Moreover, judges will seldom acknowledge that their views on specific legal issues – and by extension, their decisionmaking – are in any way connected to personal characteristics they happen to possess. Indeed, if a judge acknowledged as much, they would in principle fall foul of the rules against judicial bias that apply in their jurisdiction. Nevertheless, researchers speculate that judges’ personal characteristics serve as proxies for judges’ views on specific legal issues. Consequently, empirical researchers investigate whether there are correlations between judges’ different personal characteristics and how they tend to decide certain types of cases. Aside from innate personal characteristics, researchers also consider whether judges’ acquired characteristics, such as their religious beliefs or political views, are linked to patterns in their decision-making. This chapter examines and critiques research in this mould. Most commonly, researchers take an archival approach, investigating patterns in decision-making from real case data. Less often, researchers undertake experimental studies, putting judges with distinct characteristics into different groups to investigate if and whether they decide hypothetical cases differently. The chapter is divided into sections based on the main personal characteristics of judges that researchers have considered. They are judges’ gender, race and ethnicity, age (and, related to this, experience on the bench), their religious beliefs and finally, their political views. On the last topic alone – judges’ political views and their effects on judicial decision-making – vast swathes of research have emerged globally since the middle of the 20th century.1 Some of the hypotheses that researchers put forward include the following: Are judges of a minoritised racial group more inclined to rule in favour of claimants in race discrimination cases than judges of the dominant racial group are? Are women judges more likely to rule in favour of women claiming gender-based discrimination than their male colleagues are? Are judges who are members of a conservative political party inclined to be tougher on crime, less liberal in cases about social issues or more pro-business than judges who are affiliated to more liberal political parties are? Each hypothesis speculates that there is an association between a particular personal characteristic that a particular group of judges share and trends in how that group decides specific types of cases. 1 Necessarily, owing to the sheer volume of studies, just the main themes and modes of research, along with some exemplar studies, are presented in the section on judges’ politics and judicial decision-making, section 4.5.

111

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

It is important to flag some common criticisms of this strand of research at the outset. The first relates to causation. Short of judges explicitly admitting to such, it is impossible to definitively establish a causal link between judges’ personal characteristics and trends in their decision-making.2 Indeed, innate personal characteristics do not, and cannot, cause particular modes of judging. Researchers must layer assumptions onto how judges with particular characteristics may think, act or decide, and their basis for doing so can sometimes be murky. For instance, if a researcher hypothesises that women judges tend to find in favour of women claiming gender discrimination more often than their male colleagues do, is that premised on women judges displaying in-group bias towards fellow women? Or is the researcher assuming that women judges share lived experiences that inform their views on the topic of gender discrimination, thereby justifying investigating the decision-making of women judges as a distinct group as against men? On other occasions, researchers may simply intuit differences in judges’ decision-making attributable to their personal characteristics. They may reflexively hypothesise that it seems that a group of judges sharing a particular characteristic ought to decide cases in a particular way and that, in itself, merits investigation. Sometimes, researchers fall into this trap of baldly hypothesising links between judges’ personal characteristics and their decision-making without any meaningful consideration. This raises concerns over how such questions should be asked or whether they should even be asked at all. Another criticism is that it can be difficult to disentangle how just one among many personal characteristics may have a bearing on judges’ decision-making. Readers should remind themselves throughout that all judges possess a multitude of characteristics. Indeed, judges possess many more characteristics beyond those addressed in this chapter, but these have not been subject to enough meaningful empirical investigation to be considered here. Finally, readers should also bear in mind that studies correlating litigants’ characteristics with judicial decision-making are considered in the next chapter, chapter 5. Inevitably, there is a frequent overlap between considerations here – judges’ characteristics – and considerations in this next chapter – litigants’ characteristics. A study investigating the decision-making of older adult judges in cases involving older adult litigants, for instance, straddles both topics. We now turn our attention to the first category for consideration: judges’ gender. 4.1 Judges’ gender An extralegal factor often studied by empirical researchers – but far less often proven to affect judicial decision-making – is the gender of the judge. From the 1970s onwards, empirical researchers began to investigate whether men and women judges decided certain cases differently. Quantitative analysis was made possible by increased proportions of women judges on the US bench, in particular.3 Perhaps driven by Carol Gilligan’s 2 On the difficulty of inferring causal effects from perceived immutable personal characteristics, see D James Greiner and Donald B Rubin, ‘Causal Effects of Perceived Immutable Characteristics’ (2011) 93 Review of Economics and Statistics 775. 3 Gender representation on courts is on the increase in many jurisdictions. In Sweden, for instance, there is near gender parity, 50.3% men, 49.7% women. The Swedish National Courts Administration, Internal Statistics Database, May 2018, quoted in Moa Lidén, Minna Gräns and Peter Juslin, ‘“Guilty, No Doubt”: Detention Provoking Confirmation Bias in Judges’ Guilt Assessments and Debiasing Techniques’ (2019) 25 Psychology, Crime & Law 219, 223.

112

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

influential theory published in 1982 that women think and act “in a different voice,” judicial scholars stridently set about investigating if a judge’s gender acted as a proxy for differences in their decision-making.4 In most studies, however, differences in decisionmaking fail to emerge, or emerge inconsistently, and there is no general trend of a distinction between men and women judges’ decision-making.5 Some scholars and judges question the merit and rationale for this research enquiry in the first place, criticising it as a manifestation of gender essentialism that assumes and attributes innate differences to men and women. Sally Kenney, a scholar on gender and judging, argues, for instance, that the question of whether judges decide differently owing to their gender is misguided, based on “tenacious and ubiquitous assumptions,” and that it has “a Groundhog Day quality to it.”6 She continues: It is as if we can only think of one question to ask about women judges: “are they different”? . . . [W]e should not use sex as a variable as part of a misguided quest to uncover essential sex differences. Differences mostly do not exist, or small differences become mistakenly framed as universal and dichotomous: all men are one thing and all women another.7

Others criticise this research as tending to treat women judges as ‘the other’, pitting them against assumed norms of male judicial behaviour.8 High-profile women judges also call the premise of this research into question. US Supreme Court Justice Sandra Day O’Connor argued, for example, that “the move to ask again the question whether women are different merely by virtue of being women . . . recalls old myths.”9 She dismissed the idea that women judges decide cases differently, drawing inspiration from an adage offered by a colleague that “a wise old man and a wise old woman reach the same conclusion.”10 These criticisms of gender essentialism have been vindicated to the extent that results from studies that seek out differences between men and women judges’ decision-making are often contradictory and inconsistent. However, others believe that investigating judges’ gender as a variable in judicial decision-making is reasonable and legitimate.11 US judge Patricia Wald thought the adage that wise men and women come to the same conclusions is perhaps simplistic because “being a woman and being treated by society as a woman can be a vital element of a judge’s experience. That experience in turn can subtly affect the lens through which she views issues and solutions.”12 Theresa Beiner, a scholar in gender within the legal professions, 4 Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Harvard University Press 1982). 5 Hunter notes, for instance, that “many of the expectations and aspirations about the ‘difference’ that women judges would make have proved unrealistic.” Rosemary Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7, 7. 6 Sally J Kenney, Gender and Justice: Why Women in the Judiciary Really Matter (Routledge 2012) 23. 7 Ibid. 23 and 43. 8 Rebecca D Gill, Michael Kagan and Fatma Marouf, ‘The Impact of Maleness on Judicial Decision Making: Masculinity, Chivalry, and Immigration Appeals’ (2017) Politics, Groups, and Identities 1. 9 Sandra Day O’Connor, ‘Portia’s Progress’ (1991) 66 New York University Law Review 1546, 1553. 10 O’Connor quotes her colleague, a judge from Minnesota, Jeanne Coyne, as the source on this adage in a judicial decision-making context. David Margolick, ‘Women’s Milestone: Majority on Minnesota Court’ New York Times (22 February 1991). 11 See further, Darrell Steffensmeier and Chris Hebert, ‘Women and Men Policymakers: Does the Judge’s Gender Affect the Sentencing of Criminal Defendants?’ (1999) 77 Social Forces 1163, 1165–1166. 12 Patricia M Wald, ‘Six Not-So-Easy Pieces: One Woman Judge’s Journey to the Bench and Beyond’ (2004) 36 University of Toledo Law Review 979, 989.

113

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

also suggested that Gilligan’s ‘different voice’ theory should not be dismissed out of hand. “Something about it rings true,” she submitted, “or at least true based on some stereotyped notion of the way in which women behave.”13 Whatever the outcome of the arguments for or against gender-based differences as a premise for this research, some studies show that there may indeed be correlations between a judge’s gender and trends in their decision-making, albeit only in certain types of cases. Therefore, the research merits consideration, all the while bearing these criticisms in mind. Empirical research – all of it, incidentally, based on gender as binary (men or women) rather than on a gender spectrum – falls into three main strands. The first investigates whether judges’ gender correlates with differences in sentencing outcomes. The second investigates differences in outcomes in cases on a gender-salient issue, while the third and final strand shifts the focus away from judicial outcomes, to differences in judicial reasoning. It is particularly important in this area to reflect on how other factors beyond a judge’s gender may account for differences that appear in decision-making. Far too often, court observers or litigants themselves jump to the conclusion that a judge’s gender must be the reason for a particular decision. After the ruling in Wal-mart v Dukes, a high-profile US Supreme Court case on gender discrimination in the workplace, journalists readily pointed out that all three women judges dissented to find in favour of the woman complainant. One journalist concluded that these judges showed “more sympathy” to the plaintiff, for instance.14 Earlier in the proceedings when the US Supreme Court was asked to consider whether the case should receive an oral hearing, another journalist remarked that “the three female judges on the court bench voiced qualified support for allowing the suit. Two of the male judges were less enthused.”15 The journalists’ commentary seemed to imply, crudely but perhaps unwittingly, that the judges’ gender was a factor in their decision-making. Kenney noted how in the Wal-Mart case political ideology could just as easily have explained away the Court’s decision-making. All justices appointed by a Republican president were in the majority, and all justices appointed by a Democratic president, including one man, dissented.16 Journalists often note the presence of women judges on judicial panels in cases with gender dimensions,17 and sometimes assume that women judges may decide certain areas of law involving children differently.18 Sometimes, judges themselves make this assumption.19 Litigants also sometimes draw inferences between the judge’s gender and the outcome of their case. Former Italian prime minister, Silvio Berlusconi, who was ordered by a Milan court to pay his ex-wife a €245,000-a-day divorce settlement in 2013, attacked the judges who ruled in the case as follows: “[T]hese are three women judges, feminists and 13 Theresa M Beiner, ‘The Elusive (but Worthwhile) Quest for a Diverse Bench in the New Millennium’ (2002) 36 UC Davis Law Review 597, 602. 14 Wal-Mart Stores, Inc. v Dukes 564 U.S. 338 (2011). Lara Marlowe, ‘Battle Lines Drawn between Downtrodden and Corporate America’ The Irish Times (2 April 2011). 15 Laura Slattery, ‘Planet Business’ The Irish Times (1 April 2011). 16 Kenney (n 6) 42 and 100. 17 Patrick Smyth, ‘Father One More and Go to Jail, Court Tells Penniless Procreator’ (The Irish Times) accessed 17 July 2020. 18 ‘Criticism of Judge Was Not Unfair, Says Arnold’ The Irish Times (1 December 1995) 4. 19 Paul O’Neill, ‘Lawyer Urges End of Right to Remain Silent’ The Irish Times (16 April 1994) 3.

114

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

communists, okay?”20 Assumptions and stereotypes aside, the focus here is on empirical work that investigates statistically significant correlations between the judge’s gender and their decision-making. The first strand of studies investigates whether a judge’s gender appears to correlate with different sentencing outcomes. 4.1.1 Gender and judicial decision-making on sentencing Do women judges sentence more or less harshly than their male colleagues? Research on this topic, predominantly archival studies on US judges, has been chequered with “a hodgepodge of findings.”21 The first archival study from the US in 1977 found no differences between men and women judges in their sentencing decisions.22 Kritzer and Uhlman collected a sample of sentencing decisions of over 62,000 criminal court cases from an anonymised major US metropolitan area between 1968 and 1974. Despite their hypothesis to the contrary, they found that women judges did not sentence differently to their male colleagues, even in areas of law with a significant gender-related element, for example, in rape cases.23 Researchers have also investigated whether women judges treat women offenders differently compared to how their male colleagues do. Kritzer and Uhlman found no such effects in the study described above – women judges treated women offenders much the same as their male colleagues did.24 On the other hand, in a later study using the same data, Gruhl and his colleagues reported that while differences in sentencing were generally not evident, women judges were twice as likely as men judges to send women offenders to prison.25 However, this study relied on a small sample size of just seven women judges, and their finding has not been replicated in later studies.26 In fact, the opposite conclusion has more often emerged in later studies. Boyd and Nelson found that women judges were more lenient than men judges were in sentencing women offenders convicted of marijuana-related drug cases in Colorado from 2004 to 2009.27 Along similar lines, a study from the early 1990s on Philadelphia judges found that women judges were less likely to incarcerate women offenders than their male colleagues were.28 This result was 20 ‘Berlusconi Blasts Judges for Ex-Wife’s $260K-a-Day Divorce’ CBC (9 January 2013); ‘Angry Berlusconi Blames “Feminist, Communist” Judges for €200,000 a Day Divorce Settlement’Irish Independent (9 January 2013). 21 Christina L Boyd and Michael J Nelson, ‘The Effects of Trial Judge Gender and Public Opinion on Criminal Sentencing Decisions’ (2017) 70 Vanderbilt Law Review 1819, 1824. 22 Herbert M Kritzer and Thomas M Uhlman, ‘Sisterhood in the Courtroom: Sex of Judge and Defendant as Factors in Criminal Case Disposition’ (1977) 14 Social Science Journal 77. 23 Ibid. 86. 24 The researchers investigated whether men judges were “chivalrous” in the sense that they treated women offenders more leniently, or whether women judges were empathetic to women offenders, factors they had speculated might lead judges to treating different gender litigants differently. They did not find evidence of either effect. Ibid. 83 and 86. 25 John Gruhl, Cassia Spohn and Susan Welch, ‘Women as Policymakers: The Case of Trial Judges’ (1981) 25 American Journal of Political Science 308. On this trend, Mitchell recently speculated that men judges who appear to sentence women more leniently than women judges do “could reflect a form of paternalism or benevolent sexism on the part of male judges,” but cautioned that this hypothesis had not yet been tested. Gregory Mitchell, ‘Judicial Decision Making’ in Neil Brewer and Amy Bradfield Douglass (eds), Psychological Science and the Law (Guilford Publications 2019) 398. 26 Kenney, commenting on Gruhl and his colleagues’ study, not only noted that the sample of seven judges was small but also that among those seven women there were more sentencing differences between them than there were between men and women judges. Kenney (n 6) 28. 27 Boyd and Nelson (n 21) 1819. 28 Steffensmeier and Hebert (n 11) 1177.

115

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

replicated in the same jurisdiction a few years later.29 The results, then, on whether women judges sentence women offenders differently, are markedly inconclusive. Beyond the US, Yiwei Xia and his colleagues analysed a dataset of all published sentencing decisions in Chinese rape cases from 2012 to 2015. They found that women-majority judicial panels were inclined to give shorter custodial sentences to male defendants in rape cases than those meted out by male-dominated or entirely male judicial panels.30 However, where only one judge, rather than a judicial panel handed down sentences, there were no differences in how men and women judges sentenced offenders. These studies explore interactions between judges’ gender with offenders’ gender. Returning to the broader question of whether women judges generally sentence differently to their male colleagues regardless of the gender of the offender, Myers and Talarico could not find any differences in general sentencing behaviour between men and women judges in the state of Georgia.31 On the other hand, Spohn’s analysis of men and women judges’ decision-making in sexual assault cases in Detroit between 1976 and 1985 found that women judges imposed longer sentences than their male colleagues did. However, again, the sample size was small, with the decision-making of just nine women judges included in the study.32 Lim and her colleagues found that women judges in Texas did not sentence differently to how their male colleagues did, except for a slight increase in women judges’ sentence lengths in violent offence cases.33 On the other hand, Johnson found that women judges in Pennsylvania were less likely to incarcerate offenders at trial.34 Beyond the US again, Bogoch found that Israeli women judges were significantly more lenient than men judges were in terms of the length of custodial sentences meted out.35 Yet she also found that judicial panels that included women judges were more likely to hand down higher sentences than exclusively male panels were.36 When these studies are read together, again, there is no discernible trend. Trying to find a clear, generalisable conclusion from the research on correlations between judges’ gender and sentencing outcomes is next to impossible, given the contradictory findings. 4.1.2 Gender and judicial decision-making on gender-salient issues Scholars in gender and judging have considered whether there is a link between the gender of the judge and their decision-making in cases on gender-salient issues, 29 David Muhlhausen, The Determinants of Sentencing in Pennsylvania: Do the Characteristics of Judges Really Matter? (The Heritage Centre 2004) 19. 30 Yiwei Xia, Tianji Cai and Hua Zhong, ‘Effect of Judges’ Gender on Rape Sentencing’ (2019) 19 China Review 125. 31 Martha A Myers and Susette M Talarico, The Social Contexts of Criminal Sentencing (Springer Science & Business Media 2012). 32 Cassia Spohn, ‘Decision Making in Sexual Assault Cases: Do Black and Female Judges Make a Difference?’ (1991) 2 Women & Criminal Justice 83. However, as with other studies in this field, sample size was an issue. The study analysed the decisions of only nine women judges. 33 Claire SH Lim, Bernardo S Silveira and James M Snyder, ‘Do Judges’ Characteristics Matter? Ethnicity, Gender, and Partisanship in Texas State Trial Courts’ (2016) 18 American Law and Economics Review 302. 34 Brian D Johnson, ‘Judges on Trial: A Reexamination of Judicial Race and Gender Effects across Modes of Conviction’ (2014) 25 Criminal Justice Policy Review 159, 174. 35 Bryna Bogoch, ‘Judging in a “Different Voice”: Gender and the Sentencing of Violent Offences in Israel’ (1999) 27 International Journal of the Sociology of Law 51, 62. 36 Ibid. 63.

116

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

particularly in sex discrimination cases. Writing in 1981, as more women judges emerged onto US benches, Cook spoke of “the hope that women judges will seize decision-making opportunities to liberate other women.”37 Has this proven to be the case? Scholars have investigated whether women judges or judges who self-identify as feminist judges tend to be more pro-claimant in sex discrimination cases than other judges are. Other studies have investigated panel effects to see whether the presence of a woman judge on judicial panels influences that panel to become more pro-plaintiff in gender-salient cases. Again, the results are mixed, although to suggest a vague general trend, there appears to be somewhat more evidence of a consistent link between judges’ gender and decision-making in these gender-salient cases. In one of the earlier studies investigating whether women judges decided gender-salient cases differently to their male colleagues, Gottschall presented some limited evidence that US women judges had a propensity to decide in favour of plaintiffs in sex discrimination cases.38 He found that among President Jimmy Carter’s judicial appointees to US courts in the late 1970s and early 1980s, white women judges were more likely to favour the plaintiff in sex discrimination cases than white men judges were (66% compared to 57%). However, not much can be read into this finding, as white women judges only decided a mere 19 cases on sex discrimination in this dataset.39 In a study soon afterwards – also on President Carter’s appointments – Walker and Barrow explored gender-based differences on what they described as cases “involving issues of particular interest to women,” such as gender discrimination, sexual harassment, maternity rights, affirmative action for women, equal employment rights and reproductive rights. Contrary to Gottschall’s limited finding, they revealed no significant gender-based differences.40 In fact, men judges supported women’s policy positions at a higher rate than women judges did. However, again, the sample size was small and differences could easily have been attributable to chance.41 Segal, investigating US President Bill Clinton’s judicial appointees to district courts arrived at a similar, counterintuitive conclusion: white men judges were more proplaintiff in sex discrimination cases than their women colleagues were.42 Songer and his colleagues found that, after accounting for political ideology, women judges serving on US courts of appeals between 1981 and 1990 were considerably more likely than their male colleagues were to support the alleged victim in cases about sex discrimination in the workplace.43 With all other independent variables set at their mean, the probability of a male judge deciding in favour of the alleged victim was 38%, while the probability of a woman judge so deciding was 75%.44 In a later study on US courts of 37 Beverly B Cook, ‘Will Women Judges Make a Difference in Women’s Legal Rights?’ in Margherita Rendel (ed), Women, Power and Political Systems (Croom Helm 1981) 216. 38 Jon Gottschall, ‘Carter’s Judicial Appointments: The Influence of Affirmative Action and Merit Selection on Voting on the US Courts of Appeals’ (1983) 67 Judicature 165. 39 Ibid. 171–172. 40 Thomas G Walker and Deborah J Barrow, ‘The Diversification of the Federal Bench: Policy and Process Ramifications’ (1985) 47 The Journal of Politics 596, 607. 41 Ibid. 42 Jennifer A Segal, ‘Representative Decision Making on the Federal Bench: Clinton’s District Court Appointees’ (2000) 53 Political Research Quarterly 137. 43 Donald R Songer, Sue Davis and Susan Haire, ‘A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals’ (1994) 56 The Journal of Politics 425, 434–436. 44 Ibid. 435.

117

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

appeals between 1981 and 1996, Crowe also demonstrated that women judges were more likely to decide for plaintiffs in sex discrimination cases than their male colleagues were.45 More recently, in perhaps the most sophisticated study to date on the topic, Boyd demonstrated a difference between men and women judges on US district courts deciding dispositive (pre-trial) motions in employment discrimination cases brought by the Equal Employment Opportunity Commission (EEOC). The EEOC has statutory authority to sue private employers on discrimination issues in the US.46 Boyd’s research design was particularly thoughtfully constructed. The cases analysed here were those taken by an agency, the EEOC, as distinct from lay litigants. This ensured that frivolous, less meritorious cases were more likely to be filtered out, presenting a concentrated set of cases which narrowly focused on a specific gender-salient issue.47 Moreover, as Boyd explained, focusing on dispositive motions rather than on case outcomes, presents a truer, less filtered examination of judges’ behaviour and their decision-making.48 Boyd’s main finding was that “diverse trial court judges make decisions on motions that are significantly more protective of plaintiffs than their colleagues.”49 For women judges, the average predicted probability of ruling for the plaintiff claiming sex discrimination was .35, for men judges it was only .20.50 Tellingly, by way of comparison, there were no statistically significant differences between men and women judges’ decision-making in race discrimination cases.51 Furthermore, judges’ political party affiliations did not affect these results. Although the study concentrated on a narrowly defined set of cases, the results nevertheless demonstrated that judges’ gender clearly correlated with differences in decision-making. The results of Boyd’s study matched those found by Knepper who reviewed outcomes in 1,000 workplace sex discrimination cases brought by the EEOC between 1997 and 2006.52 He found that women plaintiffs were six to seven percentage points more likely to settle, and five to seven percentage points more likely to win compensation whenever a woman judge was assigned to the case.53 Aside from comparing women judges’ decision-making directly against their male colleagues, others have explored gender-based panel effects on judicial panels, examining whether the presence of a woman judge (or judges) on a panel precipitates changes in their male colleagues’ decision-making in certain areas of law. Peresie investigated whether women judges on US courts of appeals appeared to influence their male colleagues sitting on judicial panels in sex discrimination and sexual harassment cases between 1999 and 2001. In a sizeable majority of cases, 416 out of 556 (nearly 75%), the plaintiff lost. However, in those 416 losing cases women judges were on the panel only 38% of the time, whereas in the 140 cases where the plaintiff won, women judges were 45 Nancy E. Crowe, The Effects of Judges’ Sex and Race on Judicial Decision Making on the U.S. Courts of Appeals, 1981–1996 (University of Chicago 1999) xii and 4. 46 Christina L Boyd, ‘Representation on the Courts? The Effects of Trial Judges’ Sex and Race’ (2016) 69 Political Research Quarterly 788, 788 and 792. 47 Ibid. 791–792. 48 Ibid. 791. 49 Ibid. 789. 50 Ibid. 793. 51 Ibid. 52 Matthew Knepper, ‘When the Shadow Is the Substance: Judge Gender and the Outcomes of Workplace Sex Discrimination Cases’ (2018) 36 Journal of Labor Economics 623. 53 Ibid. 624.

118

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

on the panel 62% of the time.54 The data indicated that the presence of a woman judge significantly increased the probability that the plaintiff would be successful.55 Where a male judge sat on a panel with a woman judge, this increased the likelihood that he would find for the plaintiff. Adding a woman judge to the panel more than doubled the probability that a male judge would rule for the plaintiff in sexual harassment cases (increasing the probability from 16% to 35%), and nearly tripled the probability in sex discrimination cases (increasing from 11% to 30%). These trends persisted regardless of judges’ political ideology – conservative men judges were affected as much as liberal men judges were by the presence of a woman judge on the panel.56 Reflecting on panel effects, Peresie described the many opportunities women judges may have to influence their male colleagues; before or during oral argument, deliberations after hearings, in informal conversations about the case or in writing as judges exchange drafts of their opinions.57 She also speculated as to the reasons why men judges appeared to change their decisions when a woman sat with them on a judicial panel. First, through deliberation, men judges may move towards a compromise view.58 Second, men judges may defer to women judges because they may view them as more credible and persuasive in cases with a gender dimension.59 A third hypothesis is logrolling – that men judges, siding with women colleagues, may be acting strategically for future gains in the hope that women judges will side with them in subsequent cases.60 A final explanation may be that the presence of women judges might cause men judges to moderate their antiplaintiff preference.61 These explanations, Peresie acknowledges, are conjecture, but they raise several issues about why and how gender diversity on the bench appears to matter in a tangible sense. On higher-tier panel courts, at least in the US, gender diversity on the bench may not merely be a matter of representation; it may also have consequences for judicial outcomes.62 Two further studies by Allen and Wall also considered judges’ gender and decisionmaking by judicial panels in gender-salient cases in the US. While the studies described immediately above investigated whether women judges influenced their male colleagues’ decisions on judicial panels, the researchers here returned to the theme of difference between men and women judges. They investigated differences between men and women judges on the same courts (US state supreme courts) in so-called “women’s issues” cases 54 Jennifer L Peresie, ‘Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts’ (2004) 114 Yale Law Journal 1759, 1768. 55 Ibid. 1768–1769. 56 Ibid. 1778. That said, in a separate study comparing decision-making between men and women judges in sexual harassment cases, Kulik and her colleagues did not find – contrary to their hypothesis – a pro-plaintiff disposition or any difference in treatment by women judges compared to their male colleagues, a finding they labelled “surprising.” Carol T Kulik, Elissa L Perry and Molly B Pepper, ‘Here Comes the Judge: The Influence of Judge Personal Characteristics on Federal Sexual Harassment Case Outcomes’ (2003) 27 Law and Human Behavior 69, 81. 57 Peresie (n 54) 1780. 58 Ibid. 1781–1782. 59 Ibid. 1783–1784. 60 Ibid. 1785. 61 Ibid. 1786. 62 On women judges’ self-reflections on their representative role, see Elaine Martin, ‘The Representative Role of Women Judges’ (1993) 77 Judicature 166. See generally on the case for gender representation on judiciaries, Kenney (n 6).

119

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

and in criminal rights and economic liberties cases.63 Women judges tended to be the most “pro-women” member of their court on women’s issues.64 The two studies also identified a separate, interesting gender effect in decision-making: women judges tended to be the “outsiders” on the court, that is, their decision-making tended to be the furthest away from the political centre relative to their colleagues, and this effect applied in both conservative and liberal directions.65 Allen and Wall concluded that women judges may adopt a representative role on gender issues and adopt an outsider role generally, indicative of Gilligan’s “different voice” theory.66 Aside from studies on US judges, a recent study of decision-making on the European Court of Human Rights found no evidence that women judges were generally more favourably disposed towards women applicants than men judges were.67 However, in sex discrimination taken by women applicants, there was a large effect. Women judges were 25 percentage points more likely to find in favour of the applicant in such cases than their male colleagues were, although the researcher flagged that this was imprecisely estimated due to the small sample size.68 On the Norwegian Supreme Court, a court that consistently ranks at, or near the top in terms of the proportion of women judges who sit on it, Grendstad and his colleagues investigated whether judges’ gender is associated with differences in decision-making. They analysed decision-making in family and estate law cases and in sentencing adjustment cases but ultimately found that evidence for gender-based differences was mixed at best.69 In family and estate law cases – cases concerning marriage, divorce, child custody, inheritance and succession – the researchers hypothesised that women judges, particularly younger women judges, would be more likely to find for women litigants, but they found no evidence whatsoever for this.70 Women judges, in the domain of family and estate law, “do not appear to perceive themselves as special representatives of women, and they do not seek to protect and promote the interests of women as a class through litigation,” they concluded.71 On the other hand, in sentencing adjustment cases, and in line with their hypothesis, the researchers pointed to some, but relatively meagre statistically significant evidence, that women judges were a little more likely to decide to reduce criminal sentences than their male colleagues were.72 This finding matched results from an earlier 1980s study on Norwegian judges that women judges were generally more lenient than their male colleagues were.73 63 David W Allen and Diane E Wall, ‘The Behavior of Women State Supreme Court Justices: Are They Tokens or Outsiders?’ (1987) 12 The Justice System Journal 232; David W Allen and Diane E Wall, ‘Role Orientations and Women State Supreme Court Justices’ (1993) 77 Judicature 156. 64 David W Allen and Diane E Wall, ‘The Behavior of Women State Supreme Court Justices: Are They Tokens or Outsiders?’ (n 63) 242. 65 Ibid. 66 Allen and Wall, ‘Role Orientations and Women State Supreme Court Justices’ (n 63) 165. 67 Erik Voeten, ‘Gender and Judging: Evidence from the European Court of Human Rights’ (2020) Journal of European Public Policy, DOI: 10.1080/13501763.2020.1786146. 68 Ibid. 15. 69 Gunnar Grendstad, William R Shaffer and Eric N Waltenburg, Policy Making in an Independent Judiciary: The Norwegian Supreme Court (ECPR Press 2015) ch 6. 70 Ibid. 133. 71 Ibid. 72 Ibid. 123 and 133–134. 73 Henry Østlid, Dommeratferd i Dissenssaker (Universitetsforlaget 1988).

120

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Grendstad and his colleagues also tested for panel effects, investigating whether women judges influenced their male colleagues deciding cases together on the Norwegian Supreme Court. In line with most of their other null findings, the researchers did not find any difference in decision-making in either family and estate law cases or sentencing adjustment as between all-male panels and panels with a woman judge. Reflecting on this study on the Norwegian Supreme Court overall, there appears to be little evidence that judges’ gender correlates with different judicial outcomes, although it is important to note that they were only investigating decision-making patterns in two discrete areas of law. Notwithstanding their limited findings on case outcomes, the researchers suggested that women judges may influence the Court in a different way – specifically, which cases get heard by the Court in the first place because of its discretionary jurisdiction.74 This interesting hypothesis remains untested. Overall, on balance, the US-dominated literature presents more evidence than not to suggest women judges may tilt the balance in favour of women plaintiffs in gender-salient cases on some US courts, and on the European Court of Human Rights. That said, the almost entire absence of gender effects on the Norwegian Supreme Court, at least in some case areas, serves as a cautionary note that findings on gender-based effects are not generalisable. Further studies, particularly from other jurisdictions, would improve understanding. Finding correlations between judges’ gender with decision-making in gender-salient cases is one thing, but – speculation aside – these findings are not particularly probative as to why these trends sometimes emerge. Some researchers, to their credit, have gone beyond merely observing binary differences in judicial outcomes to consider other facets of the judging process. Some reflect on how judges reason towards their decision and the language that they use. Other researchers survey judges themselves to see what they make of the argument that judges’ gender can play a part in judicial decision-making. Davis explored whether men and women judges reasoned differently in their judgments.75 Relying on feminist legal theory that asserts that judicial decision-making is the product of “reasoning from context,” she categorised how judges reasoned in similar cases into whether they were more focused on legal rules, or more focused on context.76 Assuming that decisions that were more context-focused would be more representative of women’s “different voice,” Davis hypothesised, therefore, that women judges would be more likely to compose their decisions in this mould. To perform the analysis, she ‘paired up’ women judges on the US Court of Appeals for the Ninth Circuit with male colleagues whose backgrounds were as similar as possible.77 Overall, however, Davis did not find evidence to support her hypothesis that women judges spoke in a different voice to their male colleagues and, save for a few exceptional judgments, women judges tended to speak 74 “Perhaps the presence of women affects the nature of the cases being brought to the Court in the first place,” the researchers suggested. Grendstad, Shaffer and Waltenburg (n 69) 139. 75 Sue Davis, ‘Do Women Judges Speak in a Different Voice–Carol Gilligan, Feminist Legal Theory, and the Ninth Circuit’ (1992) 8 Wisconsin Women’s Law Journal 143. 76 On “reasoning from context,” see Hunter (n 5) 12, where she discusses literature on this theory. 77 Each pair was appointed by the same president (as a proxy for the same general political orientation) and was matched up insofar as was possible according to legal education, occupation prior to appointment and whether they had prior judicial or prosecutorial experience. Davis (n 75) 143.

121

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

in a rule-based voice.78 Moreover, men spoke in the different, context-focused voice in their judgments just as often as women did.79 Another smaller-scale study by Fox and Van Sickel of 360 decisions by 28 US criminal trial judges came to a similarly inconclusive finding, with no clear evidence that men and women judges judged in different voices one way or another.80 In a similar vein, Belleau and Johnson also investigated whether men and women judges reasoned cases differently.81 They investigated the propensity of women judges on the Supreme Court of Canada either to dissent, or to concur with a majority decision but with their own reasoning (as opposed to fully accepting colleagues’ reasoning without comment). Belleau and Johnson found that the three women judges were the most likely on the Court to disagree with their colleagues’ reasoning, either by dissenting or by concurring with differently reasoned judgments. The researchers observed, “it is difficult to avoid the conclusion that gender is linked to certain differences in the process of decision-making.”82 However, they rejected the proposition that women judges spoke in a homogenous different voice, noting another earlier study that had demonstrated that the three women judges on the Court were as likely to disagree with each other as they were with their male colleagues.83 Other researchers compare how women judges reason in specific cases with a gender element compared to their male colleagues. For example, Rackley analysed Lady Hale’s influence on the House of Lords’ ruling in Secretary of State for the Home Department v K (FC); Fornah (FC) v Secretary of State for the Home Department, a case about a woman who sought asylum in the UK on the basis of the threat of female genital mutilation if she returned to her home country, Sierra Leone.84 Rackley contended that Hale’s explicit recognition of gender-related and gender-specific persecution was an example of how the presence of a woman judge on a court can subtly shift how cases are reasoned.85 Although Hale’s opinion was not “all that different” compared to her male colleagues, “what difference there is is perhaps more a matter of style than substance-of discursive narrative compared to restrained legal reasoning.”86 Rackley concluded that incorporating difference through more gender diverse appointments to the bench improves the judicial product.87 78 Ibid. 171. 79 Davis implored future researchers to investigate beyond her study, broadening the sample of cases and sample of judges to explore further whether women judges speak in a different voice. Ibid. 172. 80 Richard Fox and Robert Van Sickel, ‘Gender Dynamics and Judicial Behavior in Criminal Trial Courts: An Exploratory Study’ (2000) 21 Justice System Journal 261, 269. 81 Marie-Claire Belleau and Rebecca Johnson, ‘Judging Gender: Difference and Dissent at the Supreme Court of Canada’ (2008) 15 International Journal of the Legal Profession 57. 82 Ibid. 62. 83 Frederick Lee Morton, Peter H Russell and Troy Riddell, ‘The Canadian Charter of Rights and Freedoms: A Descriptive Analysis of the First Decade, 1982–1992’ (1994) 5 National Journal of Constitutional Law 1. Belleau and Johnson, reflecting on the results from this study, said that the women judges “did not always share the same perspective, but rather they shared a positioning that left them seeing something different, or having a different view about how a common result should be better understood.” Belleau and Johnson (n 81) 63. 84 [2006] UKHL 46. 85 Erika Rackley, ‘What a Difference Difference Makes: Gendered Harms and Judicial Diversity’ (2008) 15 International Journal of the Legal Profession 37, 49. 86 Ibid. 48. 87 Ibid. 48–49. On a similar theme, in an unpublished study Gill and Hall undertook a word-usage analysis of some 22,773 cases from US courts of appeals, and demonstrated that the presence of women judges caused

122

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Thus far, the research described here is based on archival analysis of cases. What do judges themselves think on possible gender-based differences? Upon her appointment to the US Supreme Court Sandra Day O’Connor remarked: “I think the important thing about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases.”88 Studies surveying and interviewing about gender and decision-making offer further reflections in a similar vein. In a survey study published in 1999, European judges overwhelmingly agreed that a judge’s gender made no general difference to judicial outcomes.89 That said, a significant minority of judges believed that gender made a difference in specific types of cases with a gender dimension, such as cases about violence against women and sex discrimination.90 Complementing this finding, Resnik reported that in many jurisdictions, significantly higher percentages of women judges reported occasions where they deemed gender to be relevant compared to their male colleagues.91 Martin’s survey of US women judges found that 76.9% of participants agreed that “women judges have an influence on how their judicial colleagues perceive cases involving women’s issues.”92 In an interview study, women state judges in Rio de Janeiro, Brazil, denied gender made a difference in decision-making generally.93 Interestingly, however, they self-reported that they were tougher on women litigants in decisions on maintenance in family law disputes than their male colleagues were.94 Another interview study of men and women judges in family law courts in Buenos Aires, Argentina, presented a similar finding.95 Women judges self-reported a subtly different approach to family law cases, placing a stronger emphasis on care than men judges did.96 Notably, women judges in both South American interview studies identified a different approach to judging family law cases, perhaps complementing results from archival studies on decided cases. Whatever evidence there is to suggest that women judges may decide differently appears to be confined to cases with a gender dimension. Finally, one study – not directly on the judge’s gender, but nevertheless concerning gender effects and a particular characteristic of judges – merits consideration. Glynn and Sen investigated whether judges with daughters decided gender-salient cases differently.97 This is the first study to consider the effects of a judge’s personal relationships on their decision-making. Analysing the decisions of 244 US courts of appeals judges in systematic changes in the frequencies with which specific, legally important words appeared in decisions. Michael Gill and Andrew Hall, ‘How Judicial Identity Changes the Text of Legal Rulings’ (2015) Available at SSRN 2620781 accessed 17 July 2020. 88 Sandra Day O’Connor, following her appointment to the US Supreme Court. See further, Kenney (n 6) 17. 89 Miriam Anasagasti and Nathalie Wuiame, Women and Decision-Making in the Judiciary in the European Union (Office for Official Publications of the European Communities 1999) 22. 90 Ibid. 23. 91 Judith Resnik, ‘Asking about Gender in Courts’ (1996) 21 Signs 952, 963. 92 Martin (n 62) 170. 93 Eliane Bothelho Junqueira, ‘Women in the Judiciary: A Perspective from Brazil’ in Ulrike Schultz and Gisela Shaw (eds), Women in the World’s Legal Professions (Bloomsbury Publishing 2003). 94 Ibid. 448. Generally, Junqueira reports, her interviewee judges saw themselves as “helping women . . . to develop and fulfil their potential as human beings . . . helping them to break away from . . . economic dependency.” Ibid. 95 Beatriz Kohen, ‘Family Judges in the City of Buenos Aires: A View from Within’ (2008) 15 International Journal of the Legal Profession 111. 96 Ibid. 111 and 119. 97 Adam N Glynn and Maya Sen, ‘Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?’ (2015) 59 American Journal of Political Science 37. For further discussion see section 2.4 Judging and emotion.

123

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

990 gender-related cases about gender discrimination against women or women’s rights between 1996 and 2002, Glynn and Sen tested whether having a daughter or daughters made them more pro-plaintiff. Judges who had daughters were consistently and robustly more likely to rule in favour of plaintiffs in these cases than other judges were.98 Men judges affiliated to the Republican Party who had daughters primarily drove the effect.99 The same effect did not permeate women judges’ decision-making, although the researchers did not rule this possibility out.100 The greatest change came simply from having one daughter; additional daughters did not have an additional effect.101 Glynn and Sen speculated why and how daughters seemed to have an effect on the judges’ decisions. They hypothesised that having daughters allows men judges to learn from their daughters’ life experiences; that they may have been motivated to protect their daughters through their decision-making, and even that their daughters may have lobbied or scolded them at the dinner table were they to rule unfavourably in gender-related cases.102 While immutable and inherent characteristics of judges themselves have been heavily researched, Glynn and Sen shed important light on the entirely unexplored question of how judges’ personal relationships may influence how they decide cases. They rightly argue that a robust theory of judicial decision-making should take these factors into account.103 Their study gives rise to a whole host of interesting hypotheses and avenues for future research on how judges’ personal relationships, layered with inevitable complexity, may move the dial when judges walk into their courtroom. 4.2 Judges’ race and ethnicity Scholars and policymakers alike often make the case that judiciaries ought to be representative of the diverse communities that they serve.104 Racial and ethnic diversity on judiciaries is viewed by many as a necessary objective, and without it, institutional credibility may suffer.105 Aside from the important concerns of a representative judiciary, what, if any, consequence does a more racially and ethnically diverse judiciary have for judicial outcomes? Do judges of different races or ethnicities decide cases differently?106 98 Ibid. 45. 99 Ibid. 50. 100 Ibid. 101 Ibid. 45. 102 Ibid. 41. 103 Glynn and Sen (n 97). 104 For example, a UK Ministry of Justice report on judicial diversity notes that a “judiciary which is visibly more reflective of society will enhance public confidence,” UK Ministry of Justice, The Report of the Advisory Panel on Judicial Diversity 2010 (Ministry of Justice 2010) 15. On judicial diversity in the US, see Susan B Haire and Laura P Moyer, Diversity Matters: Judicial Policy Making in the US Courts of Appeals (University of Virginia Press 2015). On judicial diversity in the UK and other jurisdictions, see Graham Gee and Erika Rackley, Debating Judicial Appointments in an Age of Diversity (Routledge 2017). 105 For instance, the UK Judicial Appointments Commission has a diversity strategy regarding judicial appointments to the UK bench. See Judicial Appointments Commission, ‘Diversity Strategy’ accessed 17 July 2020. Writing in 2004, UK judicial scholar Kate Malleson, remarked how the UK judiciary’s lack of diversity had become “its Achilles’ heel.” Kate Malleson, ‘Creating a Judicial Appointments Commission: Which Model Works Best?’ (2004) Public Law 102, 105. 106 On the broader issue of race and the law, readers ought to consider the work of critical race theory scholars. For a brief introduction, see Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press 2017) ch 14.5.

124

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Some judges suggest that a more racially or ethnically diverse judiciary can have tangible, beneficial effects for judicial decision-making. US Supreme Court Justice Sonia Sotomayor once memorably remarked that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”107 Her comments landed her in hot water, and although she later acknowledged that her choice of words might have been a bad idea, the sentiment struck a chord with judicial scholars and crossed into the mainstream media.108 In 1971, US judge, and then-Chair of the Judicial Council of the National Bar Association, George Crockett Jr went even further. Reflecting on what he saw as pervasive racism against black Americans in the US justice system, he argued that judges’ race matters for judicial outcomes – that black American judges do indeed decide, and maybe on some occasions should decide cases differently.109 Are such arguments – that judges’ race or ethnicity matters for, and affects judicial decision-making – borne out by empirical evidence? Questions of race or ethnicity in judicial decision-making more often focus on the effect of litigants’ race or ethnicity, discussed later in chapter 5.110 Research on judges’ race or ethnicity is far less common, characterised in 2001 as an “important missing element” in understanding the interactions of race or ethnicity and judging.111 Several studies, mostly since then, have investigated whether a judge’s race or ethnicity correlates with differences in judicial outcomes. Like other strands of judicial scholarship, research on this topic is unfortunately particularly myopic, predominantly focused on US judging. Further still, it is mainly narrowly focused on comparing the decision-making of black judges (the main minoritised racial group in the US) to that of white judges (the dominant racial group). As a result, perhaps more so than any other topic addressed in this book, the findings are inextricably linked to one specific jurisdiction and societal context: race relations in the US over the past 50 years or so. Results from US studies cannot, of course, be generalised beyond its shores. Furthermore, the usual caveats regarding research of this nature apply. If archival research suggests judges of different races or ethnicities decide cases differently, at best all that this demonstrates is a correlation between that characteristic and judicial outcomes. It cannot be concluded that a judge’s race or ethnicity demonstrably causes differences in judges’ decisions. Mitchell further observes that empirical studies rarely delve into the precise “psychological and social mechanisms that may give rise to differences in outcomes.”112 These qualifying remarks aside, there is now a reasonable amount of research sometimes demonstrating a correlation between judges’ race or ethnicity with judicial decision-making, mostly in specific areas of the law where race or ethnicity are particularly salient or relevant. To start with, how do judges themselves view their race or ethnicity as a factor in their decision-making? To return to Crockett’s robust views on decision-making in cases with 107 Sonia Sotomayor, ‘A Latina Judge’s Voice’ (2002) 13 Berkeley La Raza Law Journal 87, 92. 108 Sonia Sotomayor, Supreme Court Confirmation Hearing before the US Senate Judiciary Committee, 14 July 2009. 109 George W Crockett Jr., ‘Racism in the Courts’ (1971) 20 Journal of Public Law 385. 110 For an overview of that topic, see section 5.2 Litigants’ race and ethnicity. 111 Darrell Steffensmeier and Chester L Britt, ‘Judges’ Race and Judicial Decision Making: Do Black Judges Sentence Differently?’ (2001) 82 Social Science Quarterly 749, 749. 112 Mitchell (n 25) 397–398.

125

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

a race dimension, he argued that more black judges on US courts would lead to decisions that would curb racism.113 He offered examples of judicial activism by black judges on behalf of the black community, describing how he himself released “130 black victims of a mass arrest” detained in a police garage for six hours without legal representatives.114 For Crockett, these “non-conformist” rulings demonstrate that he and other black judges are products of their environment. As he described it, black judges may be better at tackling racism through the judicial process because they are able to recognise it when they see it.115 His arguments bear the hallmarks of a representational theory of judging: minoritised racial group judges will decide cases where opportunities present themselves to protect the community that they represent.116 On the other hand, another US judge and influential scholar, Harry T Edwards, offers an alternative perspective. He sets out four “debatable propositions,” that “all black judges perceive their role in the same way . . . that race routinely influences the decision making of black judges . . . that, in their decision making, black judges are obliged to respond to the perceived needs of the black community at large . . . [and] that the presence of blacks in the judiciary has changed our system of justice for the better.” Edwards only subscribes to the last, thinking it wrong to conceive of race as a proxy for judicial ideology given the obviously diverse range of views that black legal scholars and judges possess.117 There is “no overriding ‘black perspective’ on which black judges rely in their decision making,” he argues.118 Moving away from judges’ impressions about matters of race or ethnicity and judging, what do empirical studies tell us? Empirical judicial researchers have investigated: • correlations between judges’ race or ethnicity and sentencing decisions; • differences among different race or ethnicity judges’ decision-making in cases where race or ethnicity is salient; and • whether appellate court judges treat decisions of lower court judges differently on account of their race or ethnicity. As we will soon observe, generally speaking, researchers often cannot demonstrate a link between judges’ race or ethnicity and their decisions. However, where race or ethnicity is a salient issue in a case, judges’ race or ethnicity appears to have more of an association with case outcomes. Moreover, in the US, minoritised racial group judges’ decisions tend to fare worse than their colleagues’ do when reviewed by an appellate court.

113 Crockett remarked, “Many of us are convinced that [the] relative paucity of black judges and the frantic efforts to block the election or appointment of more, stems from the fear in some quarters that [the] awesome state power which inheres in the trial judge will be used by black judges to correct many of the racist and classist practices of our judicial system. These fears are not far-fetched.” Crockett Jr. (n 109) 388. 114 Ibid. 115 Ibid. 388–389. 116 See further Elizabeth Tillman, ‘Race and Sex on the Bench: The Key Impacts of Diversity on State High Courts’ (Doctoral dissertation, State University of New York at Buffalo 2018) 7. Quoting, inter alia, Hanna F Pitkin, The Concept of Representation, vol. 75 (University of California Press 1967). Crockett is not the only one to make the same argument with Welch and her colleagues writing in 1988, contending, “[A]s more black judges hear more cases . . . perhaps existing racial discrimination in sentencing will disappear.” Susan Welch, Michael Combs and John Gruhl, ‘Do Black Judges Make a Difference?’ (1988) 32 American Journal of Political Science 126, 135. 117 Harry T Edwards, ‘Race and the Judiciary’ (2002) 20 Yale Law & Policy Review 325, 325. 118 Ibid. 327.

126

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Turning to studies on sentencing decisions first, many, but not all, studies present a null finding. Uhlman compared conviction rates and sentencing lengths of 16 black judges to 91 white judges from a dataset of cases from an anonymised major city in the US in the 1970s.119 He found little to no difference between the judges. White trial judges convicted criminal defendants at roughly the same rate as black judges did, and sentencing patterns between the two groups were “only marginally different.”120 Spohn came to a similar conclusion in her study on decision-making in Detroit, finding that judges’ race had relatively little predictive power in sentencing decisions.121 In a more recent study, Lim and her colleagues analysed the sentencing data of about 440,000 felony criminal cases from Texas, spanning 2004 to 2013. Comparing Hispanic and black judges against their white colleagues, the researchers found no discernible difference between them in sentencing outcomes.122 The researchers also noted, however, that the jurisdiction of Texas had particular characteristics that may have had a bearing on the null finding.123 Schanzenbah’s nationwide study investigating US judges’ race and sentencing disparity at district level again presented a null finding.124 The apparent persistence of null findings in studies investigating correlations of judges’ race or ethnicity with sentencing outcomes is telling. However, bucking this trend to some extent, a recent study suggested a limited correlation between judges’ race or ethnicity and their decisions. Cohen and Yang investigated disparities in the sentencing of 500,000 federal defendants in the US between October 1998 and September 2015, finding that black judges tended to impose lower sentences (by 0.77 months on average) than non-black judges did.125 However, other characteristics may explain away this finding. The discrepancy may have had as much to do with judges’ political party affiliation and ideology as it had to do with race. Cohen and Yang also found that judges appointed by the Republican Party (who have historically appointed proportionately fewer black judges) sentenced more harshly than their colleagues appointed by the Democratic Party did.126 Therefore, the lower sentences imposed by black judges may be attributable to political affiliation and ideology rather than to race. That said, the researchers presented some evidence that different race judges appointed by the same party – the Republican Party – did indeed tend to decide cases differently. Republican-appointed black judges sentenced defendants of different races more similarly than Republican-appointed non-black judges did, who tended to sentence defendants of

119 Thomas M Uhlman, ‘Black Elite Decision Making: The Case of Trial Judges’ (1978) 22 American Journal of Political Science 884. 120 Ibid. 884. 121 Cassia Spohn, ‘The Sentencing Decisions of Black and White Judges: Expected and Unexpected Similarities’ (1990) 24 Law & Society Review 1197. 122 Claire SH Lim, Bernardo S Silveira and James M Snyder, ‘Do Judges’ Characteristics Matter? Ethnicity, Gender, and Partisanship in Texas State Trial Courts’ (2016) 18 American Law and Economics Review 302, 305 and 308. 123 The researchers noted that judges are elected and local bar associations’ publish ratings of judges: “A judge whose behaviour clearly fits racial or ethnic stereotypes might easily attract the attention from these associations, causing a controversy that could be detrimental to her career.” Ibid. 324. 124 Max Schanzenbach, ‘Racial and Sex Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics’ (2005) 34 The Journal of Legal Studies 57. 125 Alma Cohen and Crystal S Yang, ‘Judicial Politics and Sentencing Decisions’ (2019) 11 American Economic Journal: Economic Policy 160, 175–176. 126 Ibid. 169.

127

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

different races more disparately.127 On this measure at least, the judges’ race seemed to be a factor after taking political affiliation out of the equation. Finally, moving away for a moment from sentencing outcomes to decisions by US federal judges in a particular area of law – sexual harassment cases – Kulik and her colleagues found that judges’ race or ethnicity had no bearing on the likelihood that claimants would succeed in their claim.128 Overall, the results of studies investigating judges’ race or ethnicity and sentencing outcomes fairly consistently find that judges’ race or ethnicity is not a factor.129 All, save for Cohen and Yang’s recent study, did not identify any correlation between judges’ race or ethnicity and decision-making. The substantial caveat that these studies only address decision-making in the US judicial system must be re-emphasised. However, when researchers focus their investigation on decisions in cases with a race or ethnicity dimension, more differences in judicial decision-making emerge. We will now turn to this strand of research. In contrast to research on sentencing decisions, researchers have found much more evidence that judges’ race or ethnicity may be a factor in cases where race or ethnicity is significant. Researchers have investigated how judges’ race or ethnicity may affect voting rights cases, discrimination cases and affirmative action cases, among others. Unfortunately, this body of research is again narrowly confined to studies on the US judiciary, and again mainly on how black judges compare to their white colleagues. Cox and Miles investigated whether black judges in the US decided cases alleging race-related breaches of voting rights differently from how their white colleagues did between 1982 and 2004.130 They found a strong effect. Black judges were more than twice as likely to find a breach of voting rights legislation than their white colleagues were, with the finding persisting even after accounting for party affiliation.131 The researchers noted that this was the first study to find a strong relationship between judges’ race and judicial outcomes. They speculated that voting rights – a central focus of the civil rights movement in the 1960s – “may possess a distinctive valence,” more so than in other areas where race may seem salient.132 Kastellec’s study on US courts of appeals judges’ rulings on affirmative action programmes revealed a similar trend, with black judges between 23% and 30% more likely 127 Ibid. 177. 128 Kulik, Perry and Pepper (n 56) 80. However, they note that this finding may be a function of low statistical power. Ibid. 81. 129 The same dynamic applied to another study that hypothesised correlations between judges’ race and decision-making in another general area of law. Ashenfelter and his colleagues studied 2,258 cases comprised of nearly every federal civil rights and prisoner case filed in three federal districts (the Central District of California, the Eastern District of Pennsylvania and the Northern District of Georgia) in 1981. The judges’ race had no statistically significant correlation with case outcomes. Orley Ashenfelter, Theodore Eisenberg and Stewart J Schwab, ‘Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes’ (1995) 24 The Journal of Legal Studies 257. 130 Adam Cox and Thomas J Miles, ‘Judging the Voting Rights Act’ (2008) 108 Columbia Law Review 1. The study focused on the application of Section 2 of the Voting Rights Act 1965, landmark legislation in the United States designed to prohibit racial discrimination in voting by enforcing voting rights for minorities. Section 2 of the Act prohibits voting practices or procedures that discriminate against minorities. As such, judges deciding Section 2 cases are deciding an issue where race or ethnicity is a particularly salient issue. 131 Ibid. 30. 132 Ibid. 32.

128

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

than non-black judges were to support such programmes in their rulings.133 Another unpublished study by the same author considered race-based panel effects on US courts of appeals. Kastellec found that where black judges sat on an otherwise all-non-black judicial panel, this increased the probability that the panel would grant relief to a defendant on death row by about 25 percentage points, compared to an entirely non-black judicial panel.134 In this instance, racial diversity on the bench seemed to correlate with differences in judicial outcomes in cases involving life or death. Boyd’s study on employment discrimination cases brought by the Equal Employment Opportunity Commission (EEOC) found a remarkable difference between black and white judges ruling in race discrimination cases, with black judges about 39 percentage points more likely to decide in favour of a plaintiff claiming race discrimination than white judges were.135 Earlier studies arrived at similar conclusions. Chew and Kelley found that black judges ruled favourably considerably more often (45.8%) than white judges did (20.6%) on the related issue of workplace racial harassment cases, even after taking judges’ political affiliation into account.136 In a similar vein, Haire and Moyer found that on US courts of appeals, the probability of a black judge supporting a liberal policy outcome in a race discrimination case was .47, a substantially higher probability than support from white judges was at .31.137 However, not all results point to race or ethnicity-based differences in cases with a race or ethnicity dimension. For example, Segal found no race-based effects between black and white judges appointed during Bill Clinton’s presidency when deciding cases on what she characterised as “black issues” – race discrimination, voting rights, school desegregation and affirmative action.138 Going further back, Walker and Barrow arrived at the same null finding for judges appointed during Jimmy Carter’s presidency.139 Meanwhile, more recent studies comparing decision-making across multiple racial or ethnic groups within the US judiciary have also produced arguably contradictory results.140 For instance, Morin compared the decisions of white, black and Hispanic judges in employment discrimination claims between 2001 and 2009 on US courts of appeals. He found 133 Jonathan P. Kastellec, ‘Racial Diversity and Judicial Influence on Appellate Courts’ (2013) 57 American Journal of Political Science 167, 177. The trend held even when comparing black judges who were similar to non-black judges in every respect except race. 134 Jonathan P Kastellec, ‘Race, Context, and Judging on the Courts of Appeals: Race-Based Panel Effects in Death Penalty Cases’ (2016) Available at SSRN 2594946 accessed 17 July 2020. 135 Boyd (n 46) 793–794. The results of this study echo those of an unpublished PhD thesis by Crowe which found that the race of judges on the US courts of appeals made a significant difference in both sex discrimination and race discrimination cases between 1986 and 1991. Black judges held for plaintiffs nearly twice as often in sex discrimination cases and over twice as often in race discrimination cases when compared to their white colleagues. E. Crowe (n 45). 136 Pat K Chew and Robert E Kelley, ‘Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases’ (2008) 86 Washington University Law Review 1117, 1141. 137 Haire and Moyer (n 104) ch 1. 138 Segal, ‘Representative Decision Making on the Federal Bench: Clinton’s District Court Appointees’ (n 42) 143–144. 139 Thomas G Walker and Deborah J Barrow, ‘The Diversification of the Federal Bench: Policy and Process Ramifications’ (1985) 47 The Journal of Politics 596. 140 Studies have generally focused on the black-white judge dichotomy, a traditional lack of racial or ethnic diversity on the US bench had made it difficult to detect differences in decision-making. Allison P Harris and Maya Sen, ‘Bias and Judging’ (2019) 22 Annual Review of Political Science 241.

129

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

that while black judges were more likely to decide for claimants than their white colleagues were by four percentage points, Hispanic judges were less likely to decide for claimants than their white colleagues were by nine percentage points.141 Other studies come to similar conclusions. For instance, Haire and Moyer found that Hispanic judges were also marginally less inclined to favour claimants in race discrimination cases than other judges were.142 Importantly, the results from these studies underscore the importance of avoiding assumptions that all minoritised racial or ethnic group judges will act in the same way, to protect minoritised racial groups.143 Notwithstanding indications that black judges in the US tend to decide cases differently to their white colleagues where race is an issue, overall, the results remain complex, mixed and occasionally inconsistent. One final consideration is how decisions made by judges of different races or ethnicities are reviewed by their colleagues on appellate courts. Are minoritised racial group judges’ decisions more likely to be overturned by their colleagues on an appellate court than other judges’ decisions are? Sen presented a worrying finding: US appellate judges were more likely to overturn the decisions of black district court judges than they were to overturn white colleagues’ decisions from the same court. This finding persisted even after accounting for a range of other variables including political partisanship, qualifications, experience and jurisdiction.144 Cases decided by black judges were up to ten percentage points more likely to be overturned than decisions written by equivalent white judges were.145 Furthermore, the finding was not particularly skewed by reversal rates in cases with a race or ethnicity dimension. Excluding cases about civil rights had no effect. Black judges were not overturned more or less depending on the area of law – the trend of increased reversal rates against black judges’ decisions applied consistently across the board. Sen described the rather stark consequences of this troubling finding: “[I]f blacks were reversed at whites’ comparably lower reversal rates, some 2,800 cases authored by black judges would have been upheld on appeal over the last 12 years.”146 Sen comes to the unfortunate conclusion that implicit racial bias on the part of appellate court judges may have been at play.147

141 Jason L Morin, ‘The Voting Behavior of Minority Judges in the US Courts of Appeals: Does the Race of the Claimant Matter?’ (2014) 42 American Politics Research 34. That said, Morin’s study examined decisionmaking by a relatively small group of minority judges from the upper echelons of the US judicial system. The study included data about decisions by 13 Hispanic and 17 black judges. Ibid. 40. 142 Haire and Moyer (n 104). Another unpublished study on lower federal courts in the United States also found Hispanic judges were less likely to rule in favour of defendants in criminal cases. Kenneth L Manning, ‘Como Decide? Decision-Making by Latino Judges in the Federal Courts’ (2004). A further study comparing Hispanic judges to white judges in El Paso, Texas found that Hispanic judges sentenced similar Hispanic and white defendants similarly, while white judges sentenced white defendants more leniently than they sentenced similarly situated Hispanic defendants. Malcolm D Holmes and others, ‘Judges’ Ethnicity and Minority Sentencing: Evidence Concerning Hispanics’ (1993) 74 Social Science Quarterly 496. 143 Gregory Mitchell cautions, for instance, “one should not assume that all minority groups will exhibit the same patterns.” Mitchell (n 25) 398. 144 Maya Sen, ‘Is Justice Really Blind? Race and Reversal in US Courts’ (2015) 44 The Journal of Legal Studies S187. 145 Ibid. S188. 146 Ibid. 147 Ibid. S221.

130

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

4.2.1 Conclusions on judges’ race and ethnicity Studies on the US judiciary dominate the empirical research on judges’ race or ethnicity and judicial decision-making. Therefore, the results are jurisdiction and society-specific, concerned with race and ethnicity issues in the US, and are not generalisable.148 Global empirical research on judges’ race and ethnicity from other jurisdictions, and its possible effects on decision-making, remains embryonic.149 Furthermore, the available literature predominantly concerns sentencing, or issues where race or ethnicity is particularly relevant. While this research ought not to be dismissed, it is important to put it into context. There is little to no evidence to suggest that judges’ race or ethnicity are a factor in most cases in most areas of law.150 However, that US appellate judges overturn the decisions of black judges more often than their white colleagues do, and that studies show, more often than not, that black judges decide cases on race-related issues differently are not insignificant findings. Judges’ race or ethnicity seem to be a factor. That said, any measured reflection on the totality of this research should bear in mind the broader context of what we do not know and what we cannot assume. Researchers looking to empirically test how judges’ race or ethnicity may affect judicial decision-making will, in time, no doubt come up with more sophisticated and nuanced modes for understanding how judges’ race or ethnicity may affect judicial outcomes. Thoughtfully constructed experimental studies may yet play an important role in this development.151 Importantly, research on judges’ race and ethnicity ought to reach beyond US shores to consider questions beyond the context of US race relations, particularly in jurisdictions where multiple races and ethnicities coexist, both in society generally and on the bench. Such future research would cast a better light on why judicial diversity truly matters in increasingly diverse societies.

148 Judge Edwards, reflecting on the uniquely American experience of judging and race relations, provides further context in this regard: “[B]ecause of the long history of racial discrimination and segregation in American society, it is safe to assume that a disproportionate number of blacks grow up with a heightened awareness of the problems that pertain to these areas of the law . . . it is inevitable that judges’ different professional and life experiences have some bearing on how they confront various problems that come before them.” Edwards (n 117) 328. 149 That said, in chapter 5 we will consider research on the Israeli judiciary that considers the interaction between judges’ and litigants’ ethnicity in judicial decision-making patterns. Oren Gazal-Ayal and Raanan Sulitzeanu-Kenan, ‘Let My People Go: Ethnic In-Group Bias in Judicial Decisions–Evidence from a Randomized Natural Experiment’ (2010) 7 Journal of Empirical Legal Studies 403; Moses Shayo and Asaf Zussman, ‘Judicial Ingroup Bias in the Shadow of Terrorism’ (2011) 126 The Quarterly Journal of Economics 1447. 150 Again, Judge Edwards’s self-reflections are illuminating, reminding us with some justification that in the vast majority of his work, race or ethnicity is irrelevant: I am not even sure how to conceptualize a ‘black perspective’ in thinking about, say, a rate-making case on appeal from the Federal Energy Regulatory Commission, or an appeal in a Freedom of Information Act case, or a challenge to regulations promulgated by the Environmental Protection Agency, or an appeal from a final order of the SEC [the United States Securities and Exchange Commission] in a securities fraud case. These are the types of cases that I hear and decide every day. Edwards (n 117) 327–328

151 As we will see in chapter 5, Rachlinski and his colleagues have conducted an impressive experiment exploiting litigants’ race as a variable. Jeffrey J Rachlinski and others, ‘Does Unconscious Racial Bias Affect Trial Judges’ (2009) 84 Notre Dame Law Review 1195.

131

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

4.3 Judges’ age and experience Compared to other personal characteristics, judges’ age and the overlapping and related issue of experience on the bench have not received as much empirical attention from researchers.152 This is perhaps surprising because age cuts across other attributes such as race or gender, or socio-economic status.153 Some researchers have, however, investigated how judges’ age and the related and overlapping issue of experience on the bench may be factors in how judges decide cases. Researchers have hypothesised and often demonstrated that: • older and more experienced judges tend to be more politically conservative in their decisions than younger and less experienced judges are;154 • older judges are more inclined to support claimants alleging age discrimination; and • newly appointed judges display unique trends in their decision-making as they acclimatise to their new role, a phenomenon labelled the “freshman effect” by judicial scholars. Examining research on this topic requires measured reflection on whether trends in decision-making should be attributable either to the judge’s age, to their level of experience on the bench or a combination of both. Sometimes studies do not distinguish between judges’ age and judicial experience, compromising our understanding of why judges may decide cases differently at different stages in their life or career. This distinction between age and professional experience should be borne in mind when reading this section. We start with research investigating – and often finding – that older judges are more conservative than their younger colleagues are. Some studies also suggest that judges become more conservative as they accrue experience on the bench, although this is not an entirely ubiquitous finding. 4.3.1 Judges’ age and conservative judging Glendon Schubert, one of the pioneers of scholarship in judicial decision-making, provocatively suggested in 1968 that “there is an inescapable acceleration of rigidity in personality and soma alike that accompanies advanced ageing, there is a corresponding rigidity in attitudes which results in greater conservatism in one’s ideology.”155 A collection of US studies from the 1970s onwards compared decision-making by older judges

152 Jeffrey J Rachlinski and Andrew J Wistrich, ‘Judging the Judiciary by the Numbers: Empirical Research on Judges’ (2017) 13 Annual Review of Law and Social Science 203, 208. 153 Manning and his colleagues note that “age, unlike most other social attributes, cuts across all racial, gender, and socioeconomic lines. As judges age, they may be affected by changes in perspectives and behavior that the aging process might bring about.” Kenneth L Manning, Bruce A Carroll and Robert A Carp, ‘Does Age Matter? Judicial Decision Making in Age Discrimination Cases’ (2004) 85 Social Science Quarterly 1, 4. 154 Differentiating judicial decision-making on a political spectrum from liberal to conservative is a complex topic, discussed later in this chapter. See section 4.5 Judges’ politics and judicial decision-making. 155 Glendon Schubert, ‘Opinion Agreement Among High Court Justices in Australia’ (1968) 4 The Australian and New Zealand Journal of Sociology 2, 12. Segal referred to Schubert as the founder of the attitudinal model in Jeffrey A Segal, ‘The Pioneers of Judicial Behavior’ in Nancy Maveety (ed), Glendon Schubert: The Judicial Mind (University of Michigan Press 2003) 78.

132

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

to that of their younger colleagues, suggesting that older judges did indeed tend to decide cases more conservatively. Analysing decision-making on US courts of appeals between 1965 and 1971, Goldman found that older judges tended to be more conservative across a host of areas of law, including civil liberties, criminal trial procedure and labour law than their younger colleagues were.156 Another study by Ulmer revealed a similar pattern, correlating the age of 14 US Supreme Court judges at their appointment to their decisions in cases about criminal law procedure between 1947 and 1956.157 He found that the older a judge was when they were appointed, the more likely they were to side with the government rather than with the defendant.158 Moving to lower courts, Steffensmeier and Hebert analysed sentencing outcomes in Pennsylvania between 1991 and 1993 and found that older judges sentenced more harshly than their younger colleagues did.159 However, perhaps counterintuitively, more experienced judges tended to give more lenient sentences than their less experienced colleagues did.160 The researchers speculated that the longer judges served, the more they perceived the futility of sending defendants to prison.161 The contrasting results highlight how judges’ age and their experience on the bench are distinct factors, and ought not to be conflated with each other as they may have separate and even opposing effects. However, other researchers have found evidence for trends in the opposite direction – judges may become harsher when sentencing as they become more experienced. For instance, Lamb conducted a longitudinal study on criminal law decisions on the US Court of Appeals for the District of Columbia Circuit, tracing apparent shifts in individual judges’ attitudes over time, thereby testing both for their age and experience on the bench simultaneously. Lamb identified that where judges’ attitudes shifted as they aged and accrued more experience, the shift tended to be in a conservative direction, becoming considerably less sympathetic to criminal appellants as the years passed.162 Lamb correctly flagged that this finding did not prove that judges became more conservative only because of age; other factors and influences, both internal or external, may well have been at play.163 A later smaller-scale, court observation study by Fox and Van Sickel on 360 decisions by 28 US criminal trial judges in the 1990s also considered judges’ age or experience on the bench as a factor.164 They found that older judges sided with the prosecution more often than their younger colleagues did. However, the researchers did not parse out whether this was a product of judges’ age or their experience on the bench. 156 Goldman measured the age of judges on a particular date, 1 January 1968, and identified more conservative approaches to decision-making in “criminal procedures, civil liberties, labor, injured persons, political liberalism, economic liberalism, and activism dimensions.” Sheldon Goldman, ‘Voting Behavior on the United States Courts of Appeals Revisited’ (1975) 69 The American Political Science Review 491, 499. 157 S Sidney Ulmer, ‘Social Background as an Indicator to the Votes of Supreme Court Justices in Criminal Cases: 1947–1956 Terms’ (1973) 17 American Journal of Political Science 622. 158 Ibid. 627. 159 Steffensmeier and Hebert (n 11) 1179. 160 Ibid. 161 Ibid. 162 Charles M Lamb, ‘Exploring the Conservatism of Federal Appeals Court Judges’ (1976) 51 Indiana Law Journal 257, 273. 163 Lamb noted that the result “does not say that judges become more conservative only because of age.” Ibid. 278. 164 Although the researchers considered the age and experience variables, they were predominantly concerned with judges’ gender and decision-making. Fox and Van Sickel (n 80) 275.

133

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

These studies suggest that older and more experienced judges tend to be more conservative in their judging. It is less clear, however, whether they become more conservative as they accrue experience on the bench. These studies are both jurisdiction-specific to the US, and for the most part, now relatively dated. Other researchers have compared decision-making by judges of different generations on specific legal issues. Kulik and her colleagues compared US district court judges from different age cohorts, to investigate if there were differences of approach in “hostile environment sexual harassment cases.”165 Noting that deciding these cases required a perceptual judgment, the researchers hypothesised that the age of the judge – ranging in the dataset from 35 to 84 years old – might, therefore, have had a bearing.166 The researchers pitted judges of different generations against each other, comparing the decision-making of judges one standard deviation above the mean age of 60.61 years (judges aged 71.04 years and above) against the decision-making of judges whose age was one standard deviation below that mean age (that is, judges aged 50.17 years or below). They found a large difference; the probability that the decision would favour the plaintiff was 16% when heard by an older judge but 45% when heard by a younger judge.167 While the researchers acknowledged that their methodology did not allow them to assess why age was influential, they offered some possible explanations.168 They suggested that the apparent divergence might have been owing to a lower tolerance of sexual harassment among the younger generation of judges. Alternatively, it might have been that age served as a proxy for political conservatism – that is, as judges got older they became more conservative in their views – a theme borne out in the studies described earlier.169 Goldman vividly suggested that over time a “hardening . . . of the bureaucratic judicial arteries” can occur.170 Cumulatively, the results of studies bear this out, mostly pointing to greater and lesser extents to the same conclusion: older and more experienced judges tend to be more conservative in their decisions. 4.3.2 Judges’ age and age discrimination claims A handful of studies investigate whether older judges are more likely to decide in favour of claims of age discrimination than their younger colleagues are and sometimes find evidence to support this hypothesis. Manning and his colleagues examined patterns in age discrimination cases in US district courts from 1984 to 1995 where there was a clear win-loss outcome, a total of 554 cases ruled by 287 judges.171 They hypothesised that older judges, drawing on their own life experiences, may be more favourable and sensitive to the plight faced by ageing workers.172 They discovered – after accounting for race 165 These were cases that alleged that “the behaviour of other people in the organisational context (supervisors, co-workers, customers) interfered with a person’s job performance or creates an intimidating, hostile, or offensive work environment.” Kulik, Perry and Pepper (n 56). 166 Ibid. 74. 167 Ibid. 80. 168 They also acknowledged that their sample of cases was not entirely representative of all sexual harassment cases. Ibid. 84. 169 Ibid. 82. Referring to Kritzer and Uhlman (n 22); Lamb (n 162). 170 Goldman (n 156) 499. In this instance, Goldman was referring to judicial experience, rather than age. 171 Manning, Carroll and Carp (n 153). 172 Ibid. 4.

134

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

and gender, region, political ideology and measures of national public opinion – that the oldest judges were the most sympathetic to age discrimination claimants, while the youngest judges were the least sympathetic to them.173 They concluded, therefore, that the age cohort of a judge was linked to their decision-making in age discrimination cases. However, Epstein and Martin called this finding into question.174 They demonstrated that the inference that Manning and his colleagues drew rested entirely on their methodological choice to group the judges into three age cohorts.175 Epstein and Martin took particular issue with the arbitrary cut-off point of 45 years between the first and second age cohorts. They demonstrated that by sliding this cut-off point in either direction away from 45 years to any year between 40 and 62, it unravelled Manning and his colleagues’ finding that older judges were more pro-claimant in age discrimination cases.176 The authors of the original study responded in turn to this criticism, noting that their original results nevertheless revealed some different behaviour between younger and older judges, while appreciating that categorising them as such was always going to be a subjective exercise.177 Since this debate, just one further unpublished study has focused explicitly on judges’ age and decision-making in age discrimination cases, this time on US courts of appeals.178 Rather than grouping judges into cohorts (Epstein and Martin’s main criticism of Manning and his colleagues’ original study), Hanebrink used the year of the judge’s birth as the age variable.179 For each additional year of age, the predicted probability of the judge deciding for the plaintiff increased significantly.180 Moving from the youngest to the oldest judge increased the probability of deciding for the plaintiff by a remarkable 45%.181 It seems, then, that judges’ age may well play a part in how sympathetic they are to age discrimination claims, but research remains at an early developmental stage and is confined to judging in the US. 4.3.3 Judicial experience and the “freshman effect” US Supreme Court Justice John Paul Stevens once remarked that “learning on the job is essential to the process of judging. At the very least, I know that learning on the bench has been one of the most important and rewarding aspects of my own experience

173 Ibid. 11. 174 Lee Epstein and Andrew D Martin, ‘Does Age (Really) Matter? A Response to Manning, Carroll, and Carp’ (2004) 85 Social Science Quarterly 19. 175 Ibid. 19. 176 Epstein and Martin offer a note of caution about grouping ungrouped data which they describe as “a procedure that almost always discards information and thus, as a general matter, a procedure to shun.” Ibid. 29–30. 177 Kenneth L Manning, Bruce A Carroll and Robert A Carp, ‘A Reply to Epstein and Martin’s “Does Age (Really) Matter?”’ (2004) 85 Social Science Quarterly 31. On the point of methodological decisions to group data, they contend, “if in a search for methodological purity, social science was to disavow the grouping of data, then it may risk the loss of many important substantive observations.” Ibid. 32. As an aside, the three articles are a relatively rare example of meaningful debate over methodology in judicial decision-making scholarship, perhaps reminding us how work in this area remains in many ways at a relatively early, developmental stage. 178 Bruce Hanebrink, ‘Does Age of the Judge Matter? Explaining Appellate Court Decision Making in Age Discrimination Cases,’ Paper presented at the Annual Illinois State University Conference for Students of Political Science, Normal, Illinois on 23 April 2010. 179 Ibid. 13. 180 Ibid. 181 Ibid.

135

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

over the last thirty-five years.”182 Researchers have investigated whether judges joining a court for the first time undergo a period of adjustment, displaying different patterns in their judicial decision-making during their initial forays, compared to their more senior colleagues.183 This, of course, is a matter that relates to the level of experience on the bench, rather than to a judge’s age, and much of this work concentrates on US Supreme Court judges. Researchers look to identify whether newer judges either tend to be less decisive or to be less inclined to take consistent positions on a political spectrum from left to right. Alternatively, some researchers look at whether new appointees tend to be more compliant on judicial panels – less inclined to issue dissenting judgments, perhaps out of deference to their more senior colleagues. Researchers call such trends the “freshman effect,” or less commonly, the “acclimation effect.” Some test newly appointed judges’ decision-making against that of their colleagues,184 while others track individual, often famous, judges’ decision-making over time, comparing their early to later career work.185 Earlier studies pointed to “rookie indecisiveness,”186 such as Snyder’s innovative 1958 study showing that judges on the US Supreme Court assimilated to a bloc of fellow judges at the political centre when they arrived on the Court but over time gradually moved more towards one or the other end of the political spectrum.187 Later studies also drew similar conclusions of indecisiveness and assimilation to the political centre.188 However, others have called these findings into question. Dudley suggested Snyder’s finding was only a product of the methodology she used, while another study by Bowen and Scheb found no freshman effects for any judges on the US Supreme Court between

182 John Paul Stevens, ‘Learning on the Job’ (2005) 74 Fordham Law Review 1561, 1567. 183 Wasby wrote, “[J]udges must become acclimated to their jobs.” Stephen L Wasby, ‘Into the Soup: The Acclimation of Ninth Circuit Appellate Judges’ (1989) 73 Judicature 10. US Supreme Court Justice William Brennan once remarked, “[N]o prior experience, including judicial experience, prepares one for the work of the Supreme Court.” William J Brennan, ‘The National Court of Appeals: Another Dissent’ (1973) 40 The University of Chicago Law Review 473, 484. Charles Hughes, Chief Justice of the US Supreme Court in the 1930s, observed, “[I]t takes a new judge a long time to become a complete master of the material of his Court,” while Chief Justice of the US Supreme Court in the 1940s, Harlan Stone, remarked, “[A] new judge beginning the work of the Court should be put at his ease in taking on the work until he is thoroughly familiar with it,” Terry Bowen and John M Scheb, ‘Freshman Opinion Writing on the US Supreme Court, 1921–1991’ (1992) 76 Judicature 239, 240. 184 Eloise C Snyder, ‘The Supreme Court as a Small Group’ (1957) 36 Social Forces 232; Saul Brenner, ‘Another Look at Freshman Indecisiveness on the United States Supreme Court’ (1983) 16 Polity 320; Edward V Heck and Melinda Gann Hall, ‘Bloc Voting and the Freshman Justice Revisited’ (1981) 43 The Journal of Politics 852. 185 John M Scheb, ‘Justice Sandra Day O’Connor and the Freshman Effect’ (1985) 69 Judicature 9; Thea F Rubin and Albert P Melone, ‘Justice Antonin Scalia: A First Year Freshman Effect’ (1988) 72 Judicature 98; Albert P Melone, ‘Revisiting the Freshman Effect Hypothesis: The First Two Terms of Justice Anthony Kennedy’ (1990) 74 Judicature 6; Scott P Johnson and Christopher E Smith, ‘David Souter’s First Term on the Supreme Court: The Impact of a New Justice’ (1991) 75 Judicature 238. 186 CL Ostberg, Matthew E Wetstein and Craig R Ducat, ‘Acclimation Effects on the Supreme Court of Canada: A Cross-Cultural Examination of Judicial Folklore’ (2003) 84 Social Science Quarterly 704, 707. 187 Snyder (n 184) 237–238. 188 Brenner (n 184); Saul Brenner and Timothy M Hagle, ‘Opinion Writing and Acclimation Effect’ (1996) 18 Political Behavior 235; Terry Bowen, ‘Consensual Norms and the Freshman Effect on the United States Supreme Court’ (1995) 76 Social Science Quarterly 222; Timothy M Hagle, ‘“ Freshman Effects” for Supreme Court Justices’ (1993) 37 American Journal of Political Science 1142; Sandra L Wood and others, ‘“Acclimation Effects” for Supreme Court Justices: A Cross-Validation, 1888–1940’ (1998) 42 American Journal of Political Science 690.

136

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

1921 and 1990.189 Nevertheless, the majority of studies do point to some evidence of the freshman effect, at least on the US Supreme Court. Other studies have shown how newer colleagues on judicial panels seem to be more deferential to their more senior colleagues, tending not to dissent as often.190 Work in this area is more diverse, reaching beyond an analysis of judging on the US Supreme Court.191 To take one example, Boyea analysed tort law decisions by US state supreme court judges between 1995 and 1998, demonstrating that the more experienced a judge was relative to their colleagues, the more inclined they were to dissent.192 As judges became more senior on the bench, they tended to decide in more independent directions.193 Interestingly, Boyea’s finding only applied to appointed as distinct from elected judges.194 Not all studies find that less experienced colleagues are more deferential and less inclined to dissent. In a rare example of a study beyond the US on this issue, Ostberg and her colleagues found no evidence that newly appointed judges on the Canadian Supreme Court were less likely to dissent than more senior colleagues were.195 The researchers emphasised that the freshman effects often found on US benches do not necessarily translate to courts in other jurisdictions, each possessing a unique combination of political and institutional factors.196 4.3.4 Interpreting judges’ age and experience on the bench meaningfully Researchers investigate age and judicial experience in many different ways, presenting special challenges for understanding judicial decision-making.197 Sometimes researchers pit the decision-making of younger judges against older judges to test for differences in their decision-making, whereas on other occasions they track how individual judges change their decision-making behaviour as they age and accrue experience on the bench. When investigating decision-making at different stages, either in a judge’s life or in their judicial career, researchers must make important and careful methodological choices that profoundly affect the outcomes of studies. Australian High Court judge Anthony Mason once reflected, “I have been a judge 25 years. It would be strange indeed if all my views remained static over that period of time. If they did, I would regard that as a worthy 189 Robert L Dudley, ‘The Freshman Effect and Voting Alignments: A Reexamination of Judicial Folklore’ (1993) 21 American Politics Quarterly 360; Terry Bowen and John M Scheb, ‘Reassessing the “Freshman Effect”: The Voting Bloc Alignment of New Justices on the United States Supreme Court, 1921–90’ (1993) 15 Political Behavior 1. 190 Brent D Boyea, ‘Does Seniority Matter? The Conditional Influence of State Methods of Judicial Retention’ (2010) 91 Social Science Quarterly 209, 211. 191 See, for example, Virginia A Hettinger, Stefanie A Lindquist and Wendy L Martinek, ‘Separate Opinion Writing on the United States Courts of Appeals’ (2003) 31 American Politics Research 215; Ostberg, Wetstein and Ducat (n 186). 192 Boyea (n 190) 220–223. 193 Ibid. 224. 194 For more on elected judges, see section 7.2.2.1 Governments’ powers over courts’ operations and the judiciary. 195 Ostberg, Wetstein and Ducat (n 186). 196 However, a study on judges of the Australian High Court presented some evidence of differences in dissent rates, but rather than testing for freshmen effects, Smyth correlated dissent rates to age at appointment, finding that older judges tended to dissent more than younger judges did. Russell Smyth, ‘Explaining Historical Dissent Rates in the High Court of Australia’ (2003) 41 Commonwealth & Comparative Politics 83, 105. 197 Goldman (n 156) 505.

137

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

subject of criticism.”198 Of course, over that 25 years Mason both aged and accrued more judicial experience. Changes in his views may, therefore, be attributable to either factor or – perhaps more likely – a combination of both. Therefore, researchers in this area ought to treat age and experience on the bench as two distinct metrics, and account for both in their studies. Sometimes researchers do not parse out age and judicial experience, compromising results. Comparing a 60-year-old judge with two years’ judicial experience to a 60-year-old judge with 20 years’ experience may not be meaningful. Equally, comparing two judges who have 12 years’ judicial experience, while not acknowledging a 20-year age gap between them, is also flawed.199 Methodological nuances aside, researchers have identified how judges’ age or experience on the bench seem to affect decision-making. As we have seen, studies often report that older and more experienced judges are inclined to be more conservative than their younger and less experienced colleagues are. Whether this apparent slide to conservatism is due to the “hardening . . . of the judicial arteries”200 brought about by more experience on the bench, or whether it is a by-product of an “inescapable acceleration of rigidity . . . in attitudes”201 as a judge ages, remains a matter of speculation. Another possibility is that judges from different generations simply have different attitudes. Over time, social norms change and intergenerational differences emerge, possibly leading younger judges to decide certain cases in different ways to their older colleagues. Aside from this apparent tendency to be more conservative, there is some limited evidence that older judges tend to be more sympathetic to older litigants making age discrimination claims. This follows a similar pattern to other studies investigating other characteristics of judges. Judges who share a characteristic with a litigant seem more sympathetic to them where that characteristic is the source of the litigant’s plight, perhaps suggesting something approaching in-group bias.202 Moving exclusively to judicial experience (or lack thereof) as a factor, many studies report fluctuations and differences in decision-making by newly appointed judges: the freshman effect. Relatively inexperienced judges might oscillate in their decision-making at first, before settling on a position that they believe to be the correct approach. On judicial panels, inexperienced judges might be more deferential to their more experienced colleagues.203 What causes such effects remains unclear. Whether judges become more 198 Anthony Mason, as quoted by Kristen Walker in an entry on Mason in Michael Coper, Tony Blackshield, and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press 2007) 460. 199 Furthermore, researchers must pinpoint a particular moment in time when to observe a judge’s age, or the particular moment at which judges start accruing judicial experience. When investigating judges’ age, a decision to use ‘age at the judge’s appointment’ or ‘age at the time of the decision’ as the age variable is an important nuance. On the significance of this nuance, see Ulmer, ‘Social Background as an Indicator to the Votes of Supreme Court Justices in Criminal Cases: 1947–1956 Terms’ (n 157) 628. Moreover, if investigating judicial experience, a researcher must choose whether experience accrues from the year that a judge started out in their judicial career, or from the year that they started judging on a particular court. All of these methodological considerations have a bearing on the outcomes of studies. 200 Goldman (n 156) 499. 201 Schubert, ‘Opinion Agreement Among High Court Justices in Australia’ (n 155) 12. 202 Recall, as we have seen already in this chapter, that researchers hypothesise and sometimes find that women judges are more favourable towards women litigants in gender-salient cases, and minoritised racial group judges may be more sympathetic to claimants in race discrimination claims in some contexts. 203 In an experimental context, fewer senior members of UK tribunals were inclined to defer to the judgment of their more senior colleagues. See further, Cheryl Thomas and Dame Hazel Genn, Understanding Tribunal Decision-Making (Nuffield Foundation 2013) 12.

138

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

assertive, more knowledgeable or perhaps undergo a socialisation process as they become more accustomed to the customs and norms of their court are all possible reasons.204 Overall, studies present interesting correlations between judges’ age and judicial experience and trends in decision-making, from archival analysis mostly conducted in the US. However, moving from raw correlations to identifying the precise reasons behind them has proven a much more challenging and speculative exercise. Researchers present a range of explanations for each of the effects, making meaningful and coherent interpretation of the results difficult. Further research longitudinally tracking individual judges’ patterns of decision-making on discrete issues might perhaps shed the most light on how judicial experience affects judging.205 Experimental research could also complement archival studies to test judges’ perceptions on different issues at different stages of their judicial career (or indeed, at different ages). Triangulating experimental studies with archival findings could help to reduce speculation as to why older or more experienced judges seem to sometimes judge differently to how their younger or less experienced colleagues do. 4.4 Judges’ religion In 1980s Ireland, a gay man, David Norris, sought a declaration from the Irish courts that laws criminalising sexual activity between two men were unconstitutional. In 1983, the Chief Justice of the Irish Supreme Court, Thomas O’Higgins delivered judgment for the majority of the Court, rejecting Norris’ claim. He relied trenchantly on Christian teaching in his reasoning: [T]he general teaching of the Christian Churches . . . is that homosexual acts are wrong . . . . [T]he conduct in question [has] been condemned consistently in the name of Christ for almost two thousand years. . . . On the ground of the Christian nature of our State and on the grounds that the deliberate practice of homosexuality is morally wrong . . . I can find no inconsistency with the Constitution in the laws which make such conduct criminal.206

O’Higgins’ colleague on the Court, Séamus Henchy, dissented and was of the view that the laws were unconstitutional. Like O’Higgins, he too drew inspiration from Christian teaching: “having regard to the purposive Christian ethos of the Constitution . . . there is necessarily given to the citizen . . . a range of personal freedoms [emphasis added].”207 Here, both judges relied on the tenets and values of Christianity, yet interpreted them differently, leading them to opposite conclusions. To suggest that the two judges’ personal views on religion affected their decision-making in this case is entirely speculative. Nevertheless, their divergent interpretations of Christianity undoubtedly played a part. How might judges’ religion – insofar as we can glean their religious beliefs from their known religious affiliation – affect their decision-making? Researchers have investigated correlations between judges’ known religious affiliation and their decisions, predominantly through archival studies on US judges at different tiers of the US judicial system. Compared to the more developed literature on the influence of other personal characteristics 204 205 206 207

Boyea (n 190) 210. Certain researchers have pursued this mode of research. See, for example, Lamb (n 162). Norris v Attorney General [1984] 1 IR 36, 42, 64 and 65, per O’Higgins CJ. Ibid. 71, per Henchy J.

139

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

such as judges’ gender and race or ethnicity, judges’ religion is a relatively underexplored factor, which is perhaps unfortunate given the enormous importance of religion in people’s lives and identities.208 Of course, where a correlation between judges’ religious affiliation and their decisionmaking appears, researchers can only speculate as to a causative link between the two. Other factors may be at play and may well overlap. For instance, a judge’s political views may be influenced by their religious beliefs. As such, an assertion that judges’ religion is decisive may simply be conflating this factor with judges’ political ideology.209 Conservative stances on cases about social issues – abortion, for example – may be a combination of political and religious ideology. Further still, researchers must rely on stated religious affiliations as their basis for a judge’s “religion” in the sense that it aligns to the religious beliefs or values that they actually hold. Of course, stated religious affiliation is just a proxy – judges inner, deeply held beliefs may well diverge from the strict tenets and teachings that their religion upholds. While the focus here is on whether judicial decision-making is linked to religious affiliation or belief, it is worth bearing in mind that some argue that judges should rely on their religious beliefs to guide certain types of judicial decisions. Judge Wendell Griffen, a judge on the Arkansas Court of Appeals and a pastor for a Baptist church, regretted the “aversion” and “outright fear and hostility” about the role religious values play in decision-making.210 He argued that to rid decision-making of the influence of religious values “does a disservice to the deliberative processes that judges employ . . . [and] dehumanizes religiously devout judges by requiring them to either abandon the role of religious faith in their concept of moral knowledge or falsely mask the operation of that faith in the deliberative process.”211 In a similar vein, Conkle argued that certain religious values can enhance the process of judicial decision-making.212 Others forcefully disagree, arguing that a judge’s religious beliefs should play no part in decision-making.213 Others suggest that it would offend principles of religious freedom if losing litigants were bound to obey the dictates of a religion they did not believe in if imposed on them through a judicial decision.214 One way or another, if and where religion is an influence, judges will more often than not tend to conceal their religious values in decision-making.215 Aside from the debate over whether religious values should play a role in decisionmaking, archival studies show how decision-making patterns sometimes correlate with judges’ religious affiliations. Some studies investigate whether judges’ religion correlates 208 Sepehr Shahshahani and Lawrence J Liu, ‘Religion and Judging on the Federal Courts of Appeals’ (2017) 14 Journal of Empirical Legal Studies 716. 209 Songer and Tabrizi noted how “religion has a role in determining political attitudes and guiding political behavior.” Donald R Songer and Susan J Tabrizi, ‘The Religious Right in Court: The Decision Making of Christian Evangelicals in State Supreme Courts’ (1999) 61 The Journal of Politics 507, 507. 210 Wendell L Griffen, ‘The Case for Religious Values in Judicial Decision-Making’ (1998) 81 Marquette Law Review 513, 513. 211 Ibid. 514. 212 Daniel O Conkle, ‘Religiously Devout Judges: Issues of Personal Integrity and Public Benefit’ (1997) 81 Marquette Law Review 523. 213 Greenwalt says that judges should generally disregard their religious values when making decisions. Kent Greenawalt, Private Consciences and Public Reasons (Oxford University Press 1995) ch 13. 214 Howard Kislowicz, ‘Judging Religion and Judges’ Religions’ (2018) 33 Journal of Law and Religion 42. 215 Scott C Idleman, ‘The Concealment of Religious Values in Judicial Decisionmaking’ (2005) 91 Virginia Law Review 515.

140

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

with liberal or conservative trends in cases about general legal issues, such as workers’ rights and business affairs. Other studies investigate whether judges seem to comply with the instructions and tenets of their religion in cases about sensitive social issues and how minority religion judges tend to support cases claiming religious freedoms. As is common in research on judges’ other personal characteristics, US studies dominate the literature, presenting an unfortunately narrow and jurisdiction-specific view of how judges’ religious affiliation can affect judicial decision-making. 4.4.1 Judges’ religion and liberal or conservative judicial decision-making Researchers in the US have correlated judges’ religion with their propensity to decide in liberal or conservative directions. Nagel undertook one of the earliest studies, categorising 313 US state and federal supreme court judges in 1955 by their religion – Protestant (87%), Catholic (11%) and Jewish (2%) – and investigated differences in their decisionmaking across 15 types of cases.216 He hypothesised that Catholic judges would tend to have more liberal views on specific issues compared to Protestant judges, mirroring trends established in political science studies on voters. Nagel found differences in just four of the 15 areas of law – criminal matters, business regulation, divorce settlement and employee injury – with Catholic judges more likely to show a more liberal decision-making pattern in non-unanimous cases than Protestant judges were.217 Perhaps more revealing, however, was the null finding in the remaining 11 areas of law where judges’ religious beliefs appeared to have no impact whatsoever. In two later studies, Goldman suggested that minority religion judges could be categorised as “outsiders,” and, as such, he hypothesised that they would favour the underdog litigant in cases more often than other judges would.218 However, observing decisionmaking by US courts of appeals judges from 1961 to 1964 across eight areas of law, he found little evidence that religious affiliation played a part.219 Judges’ religious affiliation did not affect decision-making in all areas, except one. Catholic judges (the minority “outsider” judges in the US) were more inclined to oppose the government in fiscal cases such as tax cases and those about compulsory purchase orders than Protestant judges were.220 Goldman performed the same analysis in a follow-up study of US courts of appeals judges, this time from 1965 to 1971.221 Again, judges’ religion seemed to have only a trivial effect. Although some limited differences between judges of different religions emerged initially, these were almost entirely eradicated after controlling for judges’ political affiliation to either the Democratic or the Republican party. The only residual difference after accounting for political party was that Democratic Catholic judges tended to be more liberal in economic liberalism cases than Democratic Protestant judges were.222 216 Stuart S Nagel, ‘Ethnic Affiliations and Judicial Propensities’ (1962) 24 The Journal of Politics 92. 217 Ibid. 97. 218 Goldman (n 156) 498. 219 Sheldon Goldman, ‘Voting Behavior on the United States Courts of Appeals, 1961–1964’ (1966) 60 The American Political Science Review 374. 220 Ibid. 374. 221 Goldman (n 156). 222 Ibid. 498. ‘Economic liberalism’ cases were those in which a ‘liberal’ ruling would be to decide for workers in industrial relations disputes, for insured persons claiming against insurance companies, in opposition to alleged anti-trust law violations, for tenants in landlord-tenant cases, for debtors or bankrupts, for buyers of

141

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

In short, although Goldman’s two studies cast the net far and wide to investigate whether judges’ religion made a difference, evidence for this was scarce, with little to no impact across almost all areas of law considered. Songer and Tabrizi investigated whether US state supreme court judges’ religion affected their decision-making from 1970 to 1993. Rather than examining general areas of law and assessing whether judging was liberal or conservative, the researchers investigated decision-making in cases on three ‘hot button’ issues where judges’ religious affiliation may intuitively seem to be more of a factor. The three areas were death penalty cases (a random sample of 30 decisions per year generating a total of 3,909 decisions), gender discrimination cases (a total of 437 decisions) and obscenity cases (a total of 2,023 decisions). In contrast to Goldman’s findings, religious affiliation appeared to affect decision-making much more, in all three areas, even after accounting for political party affiliation.223 Categorising evangelical, mainline Protestant, Catholic and Jewish judges, evangelical judges were significantly more likely to uphold the death penalty than mainline Protestant or Jewish judges were, mirroring the general public in attitudes on the death penalty.224 After accounting for political affiliation and experience on the bench, Catholic judges were similarly significantly more likely to uphold the death penalty, but not as much as evangelical judges were.225 Evangelical judges and Catholic judges were significantly more likely to decide to support conservative outcomes in obscenity cases than mainline Protestant judges were.226 The differences in decision-making as between judges of different religions were also apparent in gender discrimination cases, but only between evangelical judges and other judges.227 Evangelical judges were substantially more likely to support conservative decisions in favour of the gender gap than other judges were. There were no differences between Catholic and Jewish judges compared to mainline Protestant judges in these cases. Across the board, evangelical judges were more conservative, and Catholic judges were also conservative in two of the areas, tending to favour the death penalty more often and more likely to support conservative outcomes in obscenity cases. Songer and Tabrizi concluded that the apparent effects were most likely a reflection of the connection between judges’ religious affiliation and their attitudes.228 Another study reviewed decision-making in cases about civil rights for people who are gay and lesbian, another issue on which some religions hold views. Analysing some 1,439 decisions in state and federal appeals cases in the US from about 1981 to 2000, Pinello found that Jewish judges were somewhat more inclined to favour gay rights than goods as opposed to sellers, for stockholders in stockholder cases, and for the government agency in regulation of business cases. 223 Songer and Tabrizi (n 209). 224 Ibid. 521. For an interesting mock juror experimental study on religious rhetoric in death penalty sentencing cases, see Monica K Miller and Brian H Bornstein, ‘The Use of Religion in Death Penalty Sentencing Trials’ (2006) 30 Law and Human Behavior 675. 225 Songer and Tabrizi (n 209) 521. 226 Ibid. 227 Ibid. 228 Ibid. 523. In further support of this conclusion, the researchers also noted that when only non-unanimous decisions of the courts were examined, the relationships between religious affiliation and decision-making were substantially stronger.

142

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Protestant judges were and considerably more inclined than Catholic judges were.229 Religious affiliation appeared to have a sizable correlation to decision-making – Catholic judges’ decisions, in particular, tended to align with the strict teachings of their religion. Ulmer’s study of US Supreme Court judges between 1947 and 1956 also investigated correlations between religious affiliation and decision-making, examining whether judges of specific religions were more or less likely to support either the government or criminal defendants in criminal law cases.230 Only three judges among the small sample were not Protestant: Justices Brennan and Murphy (both Catholic) and Justice Frankfurter (Jewish). Ulmer acknowledged that one should not generalise any findings beyond the 14 judges investigated.231 This significant caveat aside, Ulmer found that the two Catholic judges were less likely than the 11 Protestant judges were to support the government’s position in criminal cases.232 In a subsequent study, Ulmer also found that Catholic judges on the Supreme Court were more likely to dissent than Protestant judges were.233 These findings are, of course, confined to an analysis of only a handful of judges with unique characteristics on a unique court. Songer and Tabrizi’s study on judges on the state supreme court level on ‘hot-button’ social issues presented broader evidence that religion may be a factor in judicial decisionmaking, although only in particularly socially and religiously sensitive cases. Goldman’s analysis of decision-making by US courts of appeals judges of different religions is perhaps more telling. After expanding the enquiry to a broader set of judges across a broader range of issues, religious affiliation had little effect on decision-making. Aside from judges’ religion as a proxy for more liberal or conservative attitudes, other researchers have investigated whether religion appears to affect outcomes in religious freedom cases. 4.4.2 Judging on religious freedom cases In cases about religious freedoms – claims about the freedom to practice or profess a religion or claims challenging government actions that support a mainstream ‘state’ religion – researchers hypothesise and often find that minority religion judges tend to be more positively disposed to the claimant, compared to judges of the mainstream religion in a jurisdiction. In an early study, Sorauf analysed decisions by US state and federal appellate courts on church-state separation cases from 1951 to 1971. In non-unanimous cases, Jewish judges (Judaism being a minority religion) tended to decide in favour of plaintiffs seeking separation between church and state more than judges of other religions did.234 In another study analysing 1,356 decisions concerning religious freedoms under the First 229 Daniel R Pinello, Gay Rights and American Law (Cambridge University Press 2003) 87. 230 Ulmer, ‘Social Background as an Indicator to the Votes of Supreme Court Justices in Criminal Cases: 1947–1956 Terms’ (n 157). 231 Ibid. 630. 232 Ibid. 627. 233 S Sidney Ulmer, ‘Dissent Behavior and the Social Background of Supreme Court Justices’ (1970) 32 The Journal of Politics 580, 597. 234 Frank Joseph Sorauf, The Wall of Separation: The Constitutional Politics of Church and State (Princeton University Press 1976). Jewish judges favoured such claims 82.4% of the time.

143

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Amendment of the US Constitution in US courts of appeals from 1970 to 1990, Yarnold found that Catholic and Baptist judges were more inclined to decide in favour of religious freedom claims than other judges were.235 Tellingly, non-religious judges did not make significantly different decisions to their colleagues who were affiliated to a religion.236 Sisk and his colleagues analysed decisions in religious liberties cases in US district courts and courts of appeals from 1986 to 1995, reporting a similar result to Sarouf’s: Jewish judges were significantly more likely to uphold religious freedom claims than other judges were.237 Judges’ religious affiliation had a much stronger interaction with decisions than other judges’ characteristics such as gender, race, educational background, employment background and political ideology did.238 Shahshahani and Liu examined US courts of appeals cases involving religious liberties decided between 1986 and 2015 and found that Jewish judges were significantly more likely than their non-Jewish colleagues were to favour claimants in religious freedom cases.239 They concluded that Jewish judges seemed to have a greater concern for the separation of church and state in the US, more so than judges of other religions did. Significantly, the researchers also showed that Jewish judges did not treat Jewish plaintiffs more favourably than other judges did. Jewish judges’ differences in approach in religious freedom cases in the US appeared, therefore, to be a product of secularist attitudes rather than heightened sympathy for their in-group. 4.4.3 Understanding religious affiliation as a factor in judicial decision-making Religious faith is a very personal issue. It is not one-size-fits-all. Moreover, people’s interpretations of religious teachings differ. Recall the divergence between two judges on the Irish Supreme Court in their interpretation of Christian values in David Norris’ case.240 Chief Justice Thomas O’Higgins’ doctrinal, orthodox approach contrasted with his colleague Séamus Henchy’s more purposive interpretation, leading them to different judicial outcomes. As researchers in this area have observed, we should not over-extrapolate from findings correlating judges’ religious affiliations with their decisions.241 Feldman suggests remaining sceptical even of what researchers hypothesise, given they start with certain assumptions, both overt and tacit.242 Moreover, although judges may self-identify with a particular faith, there is no way to meaningfully evaluate a judge’s level of observance of their stated religion.243 Establishing correlations between religion and judicial decision-making goes

235 Barbara M Yarnold, ‘Did Circuit Courts of Appeals Judges Overcome Their Own Religions in Cases Involving Religious Liberties? 1970–1990’ (2000) 42 Review of Religious Research 79, 83. 236 Ibid. 82–83. 237 Gregory C Sisk, Michael Heise and Andrew P Morriss, ‘Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions’ (2004) 65 Ohio State Law Journal 491. 238 Ibid. 501–502, 614. 239 Shahshahani and Liu (n 208). The researchers built the data upon a first dataset of such cases between 1986 and 2005, created by Gregory Sisk (the author of the study referred to above) with his colleague Michael Heise, and supplemented their own database of cases from 2006 to 2015. 240 Norris v Attorney General [1984] 1 IR 36. 241 Stephen M Feldman, ‘Empiricism, Religion, and Judicial Decision-Making’ (2006) 15 William & Mary Bill of Rights Journal 43, 52–57. 242 Ibid. 52–53. 243 Sisk, Heise and Morriss (n 237) 580.

144

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

only a small way to understanding how personal and often deeply held beliefs may worm their way into a judge’s mind when writing a judgment in the privacy of their chambers. This research, like many other related areas of judicial scholarship, suffers from overhomogeneity, confined to the US societal and judicial context. As such, what empirical evidence there is that judges’ religion affects their decision-making generally applies only to US judges. Indeed, religious affiliation may be far less of a factor in more secular societies. Equally, it may be a more potent factor in other more religious societies. Much of the work on judges’ religion and decision-making is now quite dated, which in itself, is an important consideration. The strength of religious values may wax or wane over the years, and while religion may have been an influential factor in the 1970s, it may be less so today in certain societies. To truly understand how judges’ religion may affect decision-making in a more global, and modern context, research should address different jurisdictions and perhaps discern how reliance on religious values has affected decision-making over time. One possibility for future research would be to review the actual text of judgments in order to glean judges’ propensity to rely on religious values in their decisions over many years. This may prove a more nuanced approach than merely relying on correlations of judges’ religious affiliation with judicial outcomes in particular case types. 4.5 Judges’ politics Lee Epstein and Jack Knight, scholars in judicial behaviour, recently observed that “political scientists have long had a ready and singular answer to the question of . . . judges’ desires: it’s all politics, stupid!”244 Courts are political institutions operating within a political system and, therefore, by extension, judges serve a political function. On one level, all judicial decision-making is an exercise of political power conferred upon judges through a political system, but of course, rulings in some types of cases are inevitably more ‘political’ than others. Where judges on a constitutional court declare legislation unconstitutional, this necessarily has political consequences, directly meddling with legislators’ law-making function. Judgments on where the boundaries of the separation of powers lie between the executive and legislative branches of government, or on whether government actions adhere to legislation, or on foreign policy matters, all overlap and sometimes intrude on the work and role of other actors within political systems. Where cases raise sensitive, high-profile social issues, court rulings have political consequences. Classic examples from the US Supreme Court include Roe v Wade245 liberalising abortion laws, Brown v Board of Education of Topeka246 declaring racial segregation in public schools unconstitutional – a case where “the entire social and moral fabric of an area of the United States was challenged,” according to one scholar247 – and Bush v Gore248 ruling on a dispute over counting votes in the aftermath of the 2000 presidential election. In 244 Lee Epstein and Jack Knight, ‘The Economic Analysis of Judicial Behavior’ in Lee Epstein and Stefanie A Lindquist (eds) The Oxford Handbook of U.S. Judicial Behavior (Oxford University Press 2017). 245 410 U.S. 113 (1973). 246 347 U.S. 483 (1954). 247 Charles H Sheldon, ‘Public Opinion and High Courts: Communist Party Cases in Four Constitutional Systems’ (1967) 20 The Western Political Quarterly 341, 347. 248 531 U.S. 98 (2000).

145

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

the UK, the recent Supreme Court decisions in R (Miller) v Secretary of State for Exiting the European Union249 and R (on behalf of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland250 had significant implications for the politics surrounding Brexit. Lady Hale and Lord Reed acknowledged as much in the latter case: “[T]he fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it,” they observed.251 The Indian Supreme Court’s recent decisions in Navtej Singh Johar v Union of India252 decriminalising same-sex sexual relations in India and in M Siddiq (D) Thr Lrs v Mahant Suresh Das & Ors,253 a case about the control of a holy site in Ayodhya, also had profound effects on Indian politics. In cases such as these with an inherently political dimension, do judges allow their own political views to sway their decisions? Or, to take more run-of-the-mill examples from the lower tiers of judicial systems, are rulings motivated by judges’ own political views where, for example, a judge almost always grants asylum, rejecting the immigration authorities’ efforts to deport? Or where a judge is almost uniformly inclined to favour tenants in landlord and tenant disputes? This section presents a (necessarily brief) overview of empirical studies that investigate how judges’ political views may affect their decision-making. Along the way, this section will consider some of the main models for studying the politics of judging since empirical research began on this topic on US Supreme Court judges’ decision-making in the 1940s. It will then explore other studies on other US courts and courts from other jurisdictions with different political landscapes.254 Judges’ politics – that is their own political beliefs, ideologies and preferences – is perhaps the extralegal factor that has engaged empirical judicial scholars more than any other. Some argue that in order to understand judging, one must understand the ‘politics’ that motivates it.255 To emphasise, the focus here is on judges’ own political beliefs as a particular characteristic individual to each judge that may influence or motivate their decision-making. The focus is not on how external political actors – that is to say political actors in the legislative and executive branches of government – induce or constrain particular judicial decision-making. This latter topic is dealt with elsewhere in chapter 7. However, there is inevitably some overlap between what is to follow here and the material covered in chapter 7 because judges do not make decisions in a political vacuum. The most obvious intersection in the material is that political actors are very often centrally involved in the appointment of judges in the first place. Therefore, when politicians appoint judges in their own political mould, it may be fair to suggest that politicians’ external influence and judges’ internal personal political beliefs may operate in tandem 249 [2017] UKSC 5. 250 [2019] UKSC 41. 251 [2019] UKSC 41, para 31. 252 AIR 2018 SC 4321. 253 [2019] SCI Civil Appeal Nos 10866–10867 of 2010. 254 Rachlinski and his colleagues describe an effort to summarise research in this field as “a nearly Herculean task.” Jeffrey J Rachlinski, Andrew J Wistrich and Chris Guthrie, ‘Judicial Politics and Decisionmaking: A New Approach’ (2017) 70 Vanderbilt Law Review 2051, 2052. 255 Bailey argues, for instance, that “no serious discussion of the modern courts can avoid ideology.” Michael A Bailey, ‘Measuring Ideology on the Courts’ in Robert M Howard and Kirk A Randazzo (eds), Routledge Handbook of Judicial Behavior (Routledge 2017) 63.

146

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

to affect judicial decision-making. Indeed, as we will soon observe, researchers often determine judges’ personal political identities by reference to the political actors who appointed them. The link between judges’ own political views and the political actors around them is often inextricable. Judges, of course, have political views outside the courtroom, but they tend not to explicitly flag them in their decisions. Indeed, they may well deny that their personal politics affect their decision-making at all, despite evidence to the contrary.256 Rachlinski and his colleagues suggest that judges who offer this view are “naïve realists.”257 However, they also accept that this may be borne out of judges’ concerns to protect the legitimacy of their judiciary as an institution. Before analysing studies, we must first reflect on the scope of this research and the methods researchers employ. A fundamental consideration is what we actually mean by a judge’s ‘politics’ in the first place. And at what point do we characterise values seemingly embedded in decisions as political as distinct from any other type of value? Immediately concluding that the motives behind a particular decision are ‘political’ may lack nuance. To take a hypothetical example, if a judge rules against a claim that a law discriminates against the LGBTQ community, is it fair to say that they were motivated exclusively by their apparently politically conservative stance? It may simply be that the law required the judge to take that position. Or, other factors may have been at play – the judge’s religious beliefs or social background, for instance, or a combination thereof, may equally have had a bearing. Because judges do not openly declare their political views in their decisions, researchers must devise a measure to determine a judge’s baseline political persuasion or identity to begin with. Once that is established, researchers then investigate whether there are correlations between such a measure and their decision-making.258 Researchers often rely on the politics of the political party or political actor that appointed a judge as a proxy for that judge’s own political beliefs. They then investigate whether judges’ decision-making aligns to or supports the policies of that party or individual political actor.259 Aside from the difficulties of devising a yardstick for judges’ political views, researchers must also grapple with how to measure how ‘political’ their decision-making is.260 Many researchers measure the politics of individual judicial decisions along a liberal-conservative continuum, for example. However, this can be problematic because researchers must make arbitrary calls on what a “liberal” decision is and what a “conservative” decision is. Of course, what society deems “liberal” or “conservative” changes over time.261 Furthermore, to describe aggregations of political views displayed through judicial decision-making

256 On this point, see Harry T Edwards, ‘Public Misperceptions Concerning the Politics of Judging: Dispelling Some Myths about the DC Circuit’ (1984) 56 University of Colorado Law Review 619. 257 Rachlinski, Wistrich and Guthrie (n 254) 2053–2054. 258 For an impressive overview of how researchers have grappled with how to properly measure judicial ideology, see Bailey (n 255). 259 Daniel R Pinello, ‘Linking Party to Judicial Ideology in American Courts: A Meta-Analysis’ (1999) 20 The Justice System Journal 219. 260 Bailey notes that “sometimes, simple suffices. Other times, sophistication is essential.” Bailey (n 255) 62. 261 Lawrence Baum, ‘Law and Policy in Decision Making’ in Kirk A Randazzo and Robert M Howard (eds), Routledge Handbook of Judicial Behavior (Routledge 2017) 125.

147

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

as either “left” or “right” can be, as one scholar suggested, an egregious oversimplification.262 In any event, judges’ political views may not be distinguishable from the laws that they are being asked to interpret or apply. Laws are made by politicians, after all. Moreover, as the hypothetical example of the case about gay rights highlights, parsing out judges’ other characteristics or traits that they bring into the courtroom from their personal politics can be tricky.263 In archival studies – the dominant mode in research on judges’ politics – researchers must also make crucial decisions on what type of cases to analyse and over what time frame. Should constitutional review cases be considered? Or should the focus be on immigration, social welfare, economic or environmental issues or a combination thereof? Can a researcher glean ‘political’ judging from cases about criminal trial procedure by assuming that a ruling in favour of a defendant’s criminal trial rights is always liberal, while a ruling in favour of the prosecution side is inherently conservative, regardless of the nuance of the laws and circumstances at play in each individual case? Furthermore, how many years’ worth of case law should the researcher include in their study, and how should they account for fluctuations in the politics of the day over an extended time frame? All of these are decisions that researchers are obliged to make, and they must weigh up their consequences when interpreting results. Put simply, methodology matters, perhaps even more so in this area of research than others considered in this book.264 After all, it is far easier to categorise a judge’s age, gender or race than a judge’s personal political beliefs, or how ‘political’ a particular decision is. Readers of the remainder of this section are advised, therefore, to reflect particularly closely on the choices that researchers make. A further note of caution is that studies in this area are intensely jurisdiction-specific. Findings only provide an understanding of judges’ political decision-making in the jurisdiction concerned, and by extension, the judicial and political systems in which they operate. If a jurisdiction’s politics are polarised (as they are in the US, for instance), this may lead to clearer evidence of politicised judging than in jurisdictions where politics are relatively less polarised (in Ireland, for example). Institutional features within a particular judicial system may also have a bearing on the outcomes of studies. For example, the effects of judges’ political views on their decision-making may be diluted if an appellate court must hear all cases submitted to it, compared to appellate courts that have discretionary jurisdiction and can cherry-pick which cases to hear. Bearing these caveats in mind, we now turn to the empirical and mostly archival research on the politics of judicial decision-making. Two leading models for understanding how political views affect judicial decision-making have emerged: the attitudinal and strategic models. What follows is a brief overview of the background and development of research on judges’ political decision-making, an explanation of these two leading models and how they emerged, and some influential, exemplar studies by leading scholars from the US. Following that, the section afterwards presents a handful of examples of studies applying 262 Frederick Schauer, ‘Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior’ (1999) 68 University of Cincinnati Law Review 615, 625. See also Rosen’s piece on the vagaries of conservative and liberal labels in a legal context, Jeffrey Rosen, ‘Disorder in the Court Legal Conservatism Goes to War with Itself’ New Republic (12 July 2011). 263 Bailey (n 255). 264 On this, see Gregory C Sisk and Michael Heise, ‘Judges and Ideology: Public and Academic Debates about Statistical Measures’ (2004) 99 Northwestern University Law Review 743; Bailey (n 255).

148

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

these models to different judiciaries around the globe. Here, more than any other area of the book, choices have necessarily had to be made on which studies to include, owing to the huge volume of material. Studies presented here have been chosen on the basis that they are exemplars of understanding political judging in different political contexts and judicial systems. 4.5.1 Background and development of research on judges’ politics and their decision-making In chapter 1, we noted that the term ‘judicial behaviour’ – despite having broad connotations – generally refers to understanding judging through a decidedly political lens.265 Judicial scholar Jeffrey Segal starts out his oft-quoted definition of judicial behaviour as “what courts and judges do,” – a decidedly broad frame of reference.266 However, he narrows the scope of his definition as he goes on: [T]he extent to which judges choose to move beyond their policy preferences divides the field of law and politics. Normatively, influences over what judges ought to do include evaluating legal rules such as precedent or legislative intent in an attempt to find the best answers to cases before them. Thus, in addition to the judges’ own preferences, legal influences should be useful in explaining judicial behavior, though the extent to which it does undoubtedly varies throughout the judicial system. Judicial politics can be law or politics, but frequently it is both, with the mixture dependent on the type of court and the context of the case.267

When talking about judicial behaviour, then, Segal very much emphasises the political aspects of judging, and most scholars generally conceive of the term ‘judicial behaviour’ in this way.268 C Herman Pritchett’s The Roosevelt Court: A study in judicial politics and values, 1937–1947 was a seminal publication in empirical judicial scholarship. Building upon legal realists’ theory from the early part of the 20th century,269 Pritchett compiled the decision-making patterns of US Supreme Court judges during the 1940s, investigating how their political ideology seemed to influence their decision-making.270 By systematically examining when and how different judges on the Court concurred, dissented and ruled in blocs of a particular political hue, Pritchett pointed to evidence that they operated along party-political lines. His work was a catalyst for new theoretical models and debates on the role of politics in judging, helping to develop ways of understanding judges’ work that contradicted the traditional legal formalist model. The legal formalist model – later conceptualised as the “legal model” of judicial decision-making271 – suggests that 265 See section 1.1 A brief introduction to the development of judicial decision-making research. 266 Jeffrey A Segal, ‘Judicial Behavior’ in Gregory A Caldeira, R Daniel Kelemen and Keith E Whittington (eds), The Oxford Handbook of Law and Politics (Oxford University Press 2008). 267 Ibid. 268 Interestingly though, the pioneer in the field that later came to be known as judicial behaviour, C Herman Pritchett, used the term judicial politics. His seminal volume compiling archival analysis of the decisions of the US Supreme Court in the 1940s was titled The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947 (Palgrave Macmillan 1948). 269 See section 1.1 A brief introduction to the development of judicial decision-making research. 270 Pritchett (n 268). 271 Pinello observes that the “legal model” is a construct of political scientists, as distinct from law academics. See Pinello (n 229) 4.

149

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

judicial outcomes are caused by formal legal reasoning alone and that judges are entirely constrained and dictated by the law when they make decisions.272 The two main models that emerged after Pritchett’s initial empirical enquiry were the attitudinal model and the strategic model. Most researchers using these models investigate judging on supreme courts or constitutional courts. Cases on these courts more often tend to have a political dimension than cases on other courts do, and judges are less constrained in their decision-making because their decisions cannot be appealed. What follows is an account and analysis of these two models and some exemplar studies. We begin with the attitudinal model. 4.5.2 The attitudinal model Jeffrey Segal and his colleague Alan Champlin describe the essential premise behind the attitudinal model: “[P]ersonal policy preferences are the strongest influence . . . on how a judge will rule on the merits of a case.”273 This is a bold claim. On this account of judging, personal policy preferences are stronger than any other factor, stronger even than the law to be interpreted or applied in a case, or indeed any other extralegal characteristic or trait that a judge may have. Yet the attitudinal model remains the “stilldominant paradigm of judicial scholarship.”274 The attitudinal model had its genesis in the Legal Realist movement of the 1920s, with Pritchett’s studies on the US Supreme Court in the 1940s serving as a prototype – the first to suggest that judges’ decision-making was motivated by their own preferences through empirical data. Schubert developed a more detailed and sophisticated model of attitudinal decision-making in Quantitative Analysis of Judicial Behavior and later in The Judicial Mind. He showed how decisions could be placed at ideological points on an attitudinal spectrum.275 Other notable studies followed.276 Among the most influential works proposing the attitudinal model of judicial decisionmaking are Jeffrey Segal and Harold Spaeth’s The Supreme Court and the Attitudinal Model,277 and its follow-up, The Supreme Court and the Attitudinal Model Revisited.278 272 J Mitchell Pickerill and Christopher Brough, ‘Law and Politics in Judicial and Supreme Court Decision Making’ in Robert M Howard and Kirk A Randazzo (eds), Routledge Handbook of Judicial Behavior (Routledge 2017) 37. In the context of the US Supreme Court, for instance, Segal and Spaeth conceptualise the legal model as postulating that “the decisions of the Court are based on the facts of the case in light of the plain meaning of statutes and the Constitution, the intent of the framers, precedent, and a balancing of societal interests.” Jeffrey A Segal and Harold J Spaeth, The Supreme Court and the Attitudinal Model (Cambridge University Press 1993), 32. 273 Ibid. 274 Robert M Howard and Kirk A Randazzo, ‘Introduction: Understanding Judicial Behavior: A Work in Progress’ in Robert M Howard and Kirk A Randazzo (eds), Routledge Handbook of Judicial Behavior (Routledge 2017) 3. They articulate the attitudinal model as follows: “[J]udges decide cases in light of their sincere ideological values juxtaposed against the factual stimuli presented by the case. Simply put, a liberal justice will vote in a liberal direction because she is a liberal, while a conservative justice will vote conservatively because he or she is conservative.” Ibid. “The core idea of the attitudinal model” writes Solum “is that ideology (and not the law) is the most important determinant of judicial behaviour.” Lawrence B Solum, ‘The Positive Foundations of Formalism: False Necessity and American Legal Realism’ (2014) 127 Harvard Law Review 2464, 2465. 275 Pritchett (n 268) xiii; Glendon A Schubert, Quantitative Analysis of Judicial Behavior (Free Press 1960); Glendon Schubert, The Judicial Mind (Northwestern University Press 1965). 276 S Sidney Ulmer, ‘The Dimensionality of Judicial Voting Behavior’ (1969) 13 Midwest Journal of Political Science 471; DW Rohde and HJ Spaeth, Supreme Court Decision Making (W H Freeman 1976). 277 Segal and Spaeth (n 272). 278 Jeffrey A Segal and Harold J Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press 2002).

150

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Segal and Spaeth sought to analyse and explain the US Supreme Court, its processes, and its decisions from an attitudinal perspective, arguing that the political attitudes and values of judges explain their output.279 They conceived of their model as a counterpoint to the legal model that, they argued, served “only to cloak – to conceal – the motivations that cause the justices to decide as they do.”280 Relying on data on the Court’s decisions from 1953 to 1990, Segal and Spaeth found that individual judges’ political ideologies were predictive of how they decided cases.281 They further observed that the US President and US Senate tended to nominate and confirm candidates for judicial appointment that mirrored their own political ideology.282 The researchers also showed that judges’ personal policy preferences were a significant factor in determining which cases were granted leave to appeal (certiorari) to the Supreme Court in the first place.283 More recently, Segal and Champlin offered another example of what they described as attitudinal decision-making on the US Supreme Court, this time by analysing decisions on search and seizure cases from 1962 to 2011.284 These cases hinged on the legality of police procedures when searching for evidence relating to an alleged crime, pitting criminal defendants’ rights against society’s interest in investigating crime. A conservative decision, the researchers assumed, was one that allowed the evidence obtained under allegedly questionable circumstances to be used, whereas a liberal decision was prodefendant, declaring such questionable evidence inadmissible. As a preliminary measure of the judges’ individual baseline political persuasions, Segal and Champlin devised a metric of individual US Supreme Court justices’ political attitudes called a ‘perceived ideology’ score, which they borrowed from an earlier study by Segal and his colleague, Albert Cover.285 A perceived ideology score is generated by analysing selected newspapers’ editorials written about Supreme Court nominees following their nomination by the US President, and prior to their confirmation by the US Senate.286 Segal and Champlin demonstrated that judges’ perceived ideology scores could predict how they would decide search and seizure cases between 64% and 71% of the time.287 The more liberal a judge’s perceived ideology score, the more likely they were to declare evidence inadmissible, and vice versa. Notably, this study replicated results from earlier studies as far back as 279 Howard and Randazzo (n 274); Segal and Spaeth (n 272). 280 Segal and Spaeth (n 272) 1. 281 Ibid. 245–255. 282 Ibid. 159. 283 Ibid. 206. In a later work, Spaeth and Segal set about debunking a key pillar of the legal model: that judges are constrained by precedent cases when making decisions. They pointed to statistical evidence that when judges on the US Supreme Court originally dissented in a case on a particular issue, they tended to stick to their position if the same issue arose in a later case. Despite the ruling from the first case, and despite its precedential value, judges nevertheless tended to persist with their opposition on the issue. This course of action contradicts the decisionmaking pattern that proponents of the legal model would advocate; that a judge is obliged to adhere to precedent regardless of personal political preference. Harold J Spaeth and Jeffrey A Segal, Majority Rule or Minority Will: Adherence to Precedent on the US Supreme Court (Cambridge University Press 2001). 284 Segal and Champlin (n 273). 285 Ibid. 26–27; Jeffrey A Segal and Albert D Cover, ‘Ideological Values and the Votes of US Supreme Court Justices’ (1989) 83 American Political Science Review 557. 286 That the researchers describe it as a perceived measure of a judge’s political ideology rather than an actual measure is telling and appropriate. For further analysis of the ‘Segal-Cover’ judicial ideology measure, see Lee Epstein, William M Landes and Richard A Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press 2013) 73–74. 287 Segal and Champlin (n 273) 28.

151

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

30 years beforehand.288 While the attitudinal model has held up to scrutiny across multiple studies on US Supreme Court judicial decision-making, we will see shortly that results analysing judicial decision-making in other jurisdictions are less clear-cut. 4.5.3 The strategic model The strategic model, as its name suggests, proposes that judges decide cases strategically to achieve their goals.289 Lee Epstein and Jack Knight proposed this model to help understand political judging on the US Supreme Court in their influential work, The Choices Justices Make. They offered the following authoritative description: [J]ustices may be primarily seekers of legal policy, but they are not unsophisticated characters who make choices based merely on their own political preferences. Instead, justices are strategic actors who realize that their ability to achieve their goals depends on a consideration of the preferences of others, of the choices they expect others to make, and of the institutional context in which they act. In other words, the choices of justices can best be explained as strategic behaviour, not solely as responses to either personal ideology or apolitical jurisprudence.290

The key features are that judges, while goal-orientated, understand that they must interact strategically with colleagues and within the constraints of the institutional framework to attain their objectives. Judges’ actions are, therefore, “in part, a function of their expectations about the actions of others.”291 This involves compromise. As Ostberg and Wetstein vividly put it, “[I]t is better for justices to win half a loaf than to lose the entire loaf.”292 Although Epstein and Knight do not claim that theirs is a complete account of judicial decision-making, it has since inspired many studies across many jurisdictions.293 In The Choices Justices Make, Epstein and Knight investigated decision-making in a tailored set of US Supreme Court cases: those listed in Justice William Brennan’s register and landmark cases handed down during the period when Warren Burger was chief justice. They complemented this set of cases with rich data from some judges’ private 288 Jeffrey A Segal, ‘Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962–1981’ (1984) 78 American Political Science Review 891. 289 Walter Murphy’s Elements of Judicial Strategy was the first to propose a strategic account of judging on the US Supreme Court. Applying rational choice theory in political science, he argued that judges act strategically in their role when making decisions about which cases should be heard by the Court or when making decisions about whether to join the majority or to dissent. He further argued that judges pay attention to their colleagues on the bench and members of Congress’ expectations of them, and make decisions accordingly. Walter F Murphy, Elements of Judicial Strategy (University of Chicago Press 1964). 290 Lee Epstein and Jack Knight, The Choices Justices Make (Sage 1997) xiii. Krewson and Owens described this description as the “authoritative description.” Christopher N Krewson and Ryan J Owens, ‘Historical Development of Supreme Court Research’ in Routledge Handbook of Judicial Behavior (Routledge 2017) 101. Howard and Randozzo, reflecting on some of the key characteristics of the model, observe how judges’ actions are, “to some extent, premised on their expectations about the actions of others. To say that a judges acts strategically is to say that she realizes that her success depends on the preferences of other relevant actors and the actions she expects them to take, not just on her own preferences and actions.” Randazzo and Howard (n 4), 4. 291 Lee Epstein and Jack Knight, ‘Strategic Accounts of Judging’ in Robert M Howard and Kirk A Randazzo (eds), Routledge Handbook of Judicial Behavior (Routledge 2017) 49. 292 Cynthia L Ostberg and Matthew E Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (UBC Press 2011) 9. 293 Ibid. xiv. For a brief overview of follow-up research employing this model, see Lee Epstein, ‘Some Thoughts on the Study of Judicial Behavior’ (2016) 57 William and Mary Law Review 2050.

152

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

papers. Epstein and Knight identified different interactions and tactics used by judges as indicative of the strategic account of judging. Such interactions and tactics included judges bargaining over whether or not to grant certiorari (leave to appeal), chief justices manipulating the agenda during post-hearing deliberations, and judges strategically deciding with the majority to preserve unanimity in the Court’s decision, thereby affording them an opportunity to write particular points of law into that decision.294 It has been suggested that the only real difference between the attitudinal and strategic models is that the strategic model accounts for how judges attempt to achieve their political goals through different strategic interactions.295 However, Epstein and Knight, reflecting recently on what they said in The Choices Justices Make, now conceive of the strategic model as having a wider ambit than they originally proposed. They now argue that the strategic model can go beyond describing the means by which judges attempt to achieve merely political goals, and that it can also encapsulate strategic interactions to achieve other goals.296 The work of Segal, Spaeth and colleagues, and Epstein and Knight, are the pre-eminent examples of the attitudinal and strategic models respectively. Both models help to understand how judges’ politics and their decision-making interact. This work mainly focuses on decision-making at the uppermost echelon of the US courts system, where cases can be particularly politically sensitive in an already politically polarised jurisdiction. Their findings are, therefore, highly jurisdiction-and court-specific. With this in mind, Epstein, together with Landes and Posner, broadened the scope to investigate how judges’ politics influenced decision-making at lower tiers of the US judicial system. They found that judges’ politics did indeed affect decision-making on lower courts, albeit in increasingly diluted amounts going down the judicial hierarchy.297 Although the work of these researchers – along with the work of earlier, pioneering scholarship in the field – has predominantly focused on the US, it has acted as a catalyst for researchers further afield to investigate similar dynamics on other leading courts around the globe.298 We now turn to how these models have translated to other jurisdictions in different political landscapes.

294 Epstein and Knight, The Choices Justices Make (n 290) ch 2. 295 Pickerill and Brough (n 272). 296 “Strategic accounts enable researchers to posit any motivations they believe judges hold . . . the policy goal is hardly the only one; it may not even be dominant for many judges,” they propose. Epstein and Knight, ‘Strategic Accounts of Judging’ (n 291) 48–49. 297 Judges’ politics only appears to play a small role at district court level, for instance. Epstein, Landes and Posner (n 286). See, for commentary on political judging at district court level, Epstein, Landes and Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (n 469) 253. See generally, also, Christopher Zorn and Jennifer Barnes Bowie, ‘Ideological Influences on Decision Making in the Federal Judicial Hierarchy: An Empirical Assessment’ (2010) 72 The Journal of Politics 1212. 298 An earlier pioneer of the attitudinal model, Glendon Schubert, for example, conducted studies on the effects of political ideology on judicial decision-making in Swiss, Australian and South African courts. Glendon Schubert, ‘Political Culture and Judicial Ideology: Some Cross-and Subcultural Comparisons’ (1977) 9 Comparative Political Studies 363; Glendon Schubert, ‘Subcultural Effects on Judicial Behavior: A Comparative Analysis’ (1980) 42 The Journal of Politics 951; Glendon Schubert, ‘The Dimensions of Decisional Response: Opinion and Voting Behavior of the Australian High Court’ in Frontiers of Judicial Research (New York: Wiley 1969); Glendon Schubert, ‘Two Causal Models of Decision-Making by the High Court of Australia’ in Glendon Schubert and David Danelski (eds), Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (Oxford University Press 1969).

153

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

4.5.4 Judges’ politics and decision-making: a global perspective As the attitudinal and strategic models of judging developed in the US, researchers elsewhere started to apply them to how judges’ political views may affect decision-making on other leading courts around the world.299 Research has been prolific, and its reach is now truly global, including studies on courts in Canada,300 the UK,301 Ireland,302 Germany,303 Spain,304 Portugal,305 Italy,306 Norway,307 the Philippines,308 Taiwan,309 Japan,310 Australia,311

299 Studies based on the attitudinal model alone have “generated a virtual cottage industry . . . exploring the significance of judicial ideology within . . . appellate courts around the world,” note Cynthia L Ostberg and Matthew E Wetstein. Ostberg and Wetstein (n 292) 6. 300 Sidney Raymond Peck, ‘A Behavioural Approach to the Judicial Process: Scalogram Analysis’ (1967) 5 Osgoode Hall Law Journal 1; Sidney R Peck, ‘The Supreme Court of Canada, 1958–1966: A Search for Policy Through Scalogram Analysis’ (1967) 45 Canadian Bar Review 666; C Neal Tate and Panu Sittiwong, ‘Decision Making in the Canadian Supreme Court: Extending the Personal Attributes Model across Nations’ (1989) 51 The Journal of Politics 900; Ostberg and Wetstein (n 292); Benjamin Alaire and Andrew Green, ‘Policy Preference Change and Appointments to the Supreme Court of Canada’ (2009) 47 Osgoode Hall Law Journal 1. 301 David Robertson, ‘Judicial Ideology in the House of Lords: A Jurimetric Analysis’ (1982) 12 British Journal of Political Science 1; Chris Hanretty, ‘The Decisions and Ideal Points of British Law Lords’ (2013) 43 British Journal of Political Science 703; Matias Iaryczower and Gabriel Katz, ‘More than Politics: Ability and Ideology in the British Appellate Committee’ (2015) 32 The Journal of Law, Economics, and Organization 61. 302 Robert Elgie, Adam McAuley and Eoin O’Malley, ‘The (Not-so-Surprising) Non-Partisanship of the Irish Supreme Court’ (2018) 33 Irish Political Studies 88. 303 Christoph Hönnige, ‘The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts’ (2009) 32 West European Politics 963; Georg Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press 2004). 304 Chris Hanretty, ‘Dissent in Iberia: The Ideal Points of Justices on the Spanish and Portuguese Constitutional Tribunals’ (2012) 51 European Journal of Political Research 671; Nuno Garoupa, Fernando Gomez-Pomar and Veronica Grembi, ‘Judging under Political Pressure: An Empirical Analysis of Constitutional Review Voting in the Spanish Constitutional Court’ (2013) 29 Journal of Law, Economics, and Organization 513. 305 Hanretty (n 304). 306 Giuseppe DiFrederico and Carlo Guarnieri, ‘The Courts in Italy’ in Jerold Waltman and Kenneth M Holland (eds), The Political Role of Law Courts in Modern Democracies (Springer 1988); Lucia Dalla Pellegrina and Nuno Garoupa, ‘Choosing between the Government and the Regions: An Empirical Analysis of the Italian Constitutional Court Decisions’ (2013) 52 European Journal of Political Research 558. 307 Grendstad, Shaffer and Waltenburg (n 69). 308 Laarni Escresa and Nuno Garoupa, ‘Judicial Politics in Unstable Democracies: The Case of the Philippine Supreme Court, an Empirical Analysis 1986–2010’ (2012) 3 Asian Journal of Law and Economics iii; Laarni Escresa and Nuno Garoupa, ‘Testing the Logic of Strategic Defection: The Case of the Philippine Supreme Court: An Empirical Analysis (1986–2010)’ (2013) 21 Asian Journal of Political Science 189; Victor E Flango and Glendon Schubert, ‘Two Surveys of Simulated Judicial Decision-Making: Hawaii and the Philippines’ in Glendon Schubert and David Danelski (eds), Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (1969); Abelrado G Samonte, ‘The Philippine Supreme Court: A Study of Judicial Background Characteristics, Attitudes, and Decision-Making’ in Glendon Schubert and David Danelski (eds), Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (1969); C Neal Tate, ‘The Philippines and South East Asia’ in C Neal Tate and Torbjorn Vallinder (eds), Global Expansion of Judicial Power (New York University Press 1995). 309 Nuno Garoupa, Veronica Grembi and Shirley Ching-ping Lin, ‘Explaining Constitutional Review in New Democracies: The Case of Taiwan’ (2011) 20 Pacific Rim Law & Policy Journal 1. 310 J Mark Ramseyer, ‘Why Are Japanese Judges so Conservative in Politically Charged Cases?’ (2001) 95 American Political Science Review 331; J Mark Ramseyer and Eric B Rasmusen, ‘The Case for Managed Judges: Learning from Japan after the Political Upheaval of 1993’ (2005) 154 University of Pennsylvania Law Review 1879. 311 For an overview of studies in Australia, see Russell Smyth, Empirical Studies of Judicial Behaviour and Decision-Making in Australian and New Zealand Courts (2018) 3–4.

154

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

New Zealand,312 Mexico,313 Brazil,314 Chile,315 Colombia,316 and Argentina,317 to name some jurisdictions, not to mention studies on supranational courts such as the European Court of Justice318 and the European Court of Human Rights.319 Accounting for all of these studies is beyond the scope of this section, but suffice to say the question of judges’ politics almost certainly preoccupies empirical scholars of judicial decision-making around the globe more than any other factor. To give just a flavour of the global reach of this research in different political contexts, research on the following jurisdictions will be considered here: • studies on the supreme courts of Canada, UK and Ireland as examples from other common law apex courts to compare and contrast with studies on the US Supreme Court; • studies on the constitutional tribunals of Spain, Portugal and the Supreme Court of Norway as examples from civil law jurisdictions; • a study on the European Court of Human Rights as an example from a supranational court; • and a study on the Philippine Supreme Court as an example from a jurisdiction that has transitioned from dictatorship to a (relatively unstable) democracy. The purpose is to reflect on how judges’ political views play out differently in different political contexts, although for the many reasons outlined at the start of this section – particularly the political idiosyncrasies of jurisdictions – drawing firm conclusions, or even trends, that traverse international boundaries is difficult. First, we turn to examples of studies on apex courts in other common law jurisdictions by way of comparison with the US Supreme Court. Research on the decision-making of the Canadian, Irish and UK supreme courts often highlight how judges’ politics do not appear to infiltrate decision-making to nearly the same extent as they do on the US 312 Ibid. 5. 313 Andrea Castagnola and Saúl López Noriega, ‘Are Mexican Justices True Arbiters among the Political Elites? An Empirical Analysis of the Court’s Rulings from 2000–2011’, Judicial Politics in Mexico (Routledge 2016); Jeffrey K Staton, Judicial Power and Strategic Communication in Mexico (Cambridge University Press 2010). 314 Fabiana Luci Oliveira, ‘Justice, Professionalism, and Politics in the Exercise of Judicial Review by Brazil’s Supreme Court’ (2008) 3 Brazilian Political Science Review 93; Scott W Desposato, Matthew C Ingram and Osmar P Lannes Jr., ‘Power, Composition, and Decision Making: The Behavioral Consequences of Institutional Reform on Brazil’s Supremo Tribunal Federal’ (2014) 31 The Journal of Law, Economics, and Organization 534. 315 Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (Cambridge University Press 2007); Andrés Pavón Mediano and Diego Carrasco, ‘Ideology beyond Partisanship: The Behavior of Judges on Freedom of Information Cases in Chile’ (2019) 36 Government Information Quarterly 614. 316 Juan Carlos Rodrıguez-Raga, ‘Strategic Deference in the Colombian Constitutional Court, 1992–2006’ in Gretchen Helmke and Julio Rios-Figueroa (eds), Courts in Latin America (Cambridge University Press 2011). 317 Matías Iaryczower, Pablo T Spiller and Mariano Tommasi, ‘Judicial Independence in Unstable Environments, Argentina 1935–1998’ (2002) 46 American Journal of Political Science 699; Gretchen Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (Cambridge University Press 2012); Juan González Bertomeu, Lucia Dalla Pellegrina and Nuno Garoupa, ‘Estimating Judicial Ideal Points in Latin America: The Case of Argentina’ (2017) 13(1) Review of Law & Economics 35. 318 Clifford J Carrubba, Matthew Gabel and Charles Hankla, ‘Judicial Behavior under Political Constraints: Evidence from the European Court of Justice’ (2008) 102 American Political Science Review 435. 319 Erik Voeten, ‘The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights’ (2007) 61 International Organization 669.

155

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Supreme Court. Studies on the Canadian Supreme Court, for instance, have shown that over time judges’ decision-making has become less tethered to party-political lines, particularly since the introduction of the Canadian Charter of Rights and Freedoms to the Canadian Constitution in 1982, a watershed development that led to the Canadian Supreme Court playing centre-stage in important policy debates in Canadian society.320 An earlier study, analysing the Court’s decision-making mainly in the pre-Charter era, found that decisions tended to fall along party-political lines. Tate and Sittiwong investigated non-unanimous rulings of the Court – that is, cases where there was a dissenting judgment – on civil rights and liberties and economics cases between 1949 and 1985. Coding these decisions as liberal or conservative, they found that individual judges had reasonably clear ideological lines that correlated with the politics of the prime minister who appointed them.321 However, later studies focusing on the decision-making of Canadian Supreme Court judges after the introduction of the Charter presented complex and perhaps surprising results. Ostberg and Wetstein’s study on decision-making in the post-Charter era analysed case outcomes in criminal law, and civil rights and liberties cases. To measure judges’ baseline politics, the researchers used a combination of the politics of their appointing prime minister together with newspaper accounts of the judges’ ideology at the time of their appointment. Ostberg and Wetstein found that while judges displayed pervasive liberal or conservative ideological positions that matched their baseline politics in criminal law cases, the same did not apply in civil rights and liberties cases.322 Conservative judges were just as inclined to give activist rulings as their liberal colleagues were in civil rights and liberties cases.323 Half of the judges exhibited unstable ideological decision-making patterns over time.324 The attitudinal model’s “applicability is less definitive and more subtle in the Canadian context than in the US Supreme Court,”325 Ostberg and Wetstein concluded. In a later study, this time analysing both unanimous and non-unanimous decisions on the Canadian Supreme Court, Alarie and Green came to a similar conclusion: judges’ decision-making did not strongly associate with the politics of the prime minister who appointed them.326 In fact, Alarie and Green offered evidence of judges who went on “to become notable champions of attitudinal positions that are unlikely to have been shared by the appointing prime minister.”327 Overall, evidence of personal politics affecting judges’ decision-making to the extent that their views are tethered to their appointing political actors is considerably less clear-cut on the Canadian Supreme Court. 320 Ostberg and Wetstein (n 292) 1. 321 Tate and Sittiwong (n 300). 322 Ostberg and Wetstein (n 292) 16–17. On the matter of methodology, the researchers included individual cases’ facts as a variable in their analysis, an element that they described as integral to understanding the politics of judicial decision-making but one that had been largely ignored by previous researchers. By categorising the factual circumstances of cases in specific areas of law and demonstrating that individual judges tended to respond differently to different factual circumstances, Ostberg and Wetstein offered an additional layer of subtlety and sophistication to their analysis. Often, judges’ decision-making trends appeared to be driven just as much by specific factual circumstances as they were by their political ideology. Ibid. 7. 323 Ostberg and Wetstein (n 292) 17. 324 Ibid. 325 Ibid. 11. 326 Alaire and Green (n 300). 327 Ibid. 42.

156

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

In the UK, evidence that judges decide cases based on their political views is also underwhelming. Although earlier research by Robertson suggested that Law Lords on the House of Lords in the 1960s and 1970s were politically driven,328 a more recent study analysing decision-making trends of Law Lords from 1969 and 2009 came to the opposite conclusion.329 Hanretty compiled a database of 1,592 decisions in non-unanimous rulings of the House of Lords across seven areas of law and coded them as either liberal or conservative.330 He investigated whether individual Law Lords were inclined to decide with or against the majority in either liberal or conservative-leaning directions. His model did not predict the probability that individual judges would decide with the majority any better than a simple null model did (a null model predicts that each judge has the same probability of deciding with the majority regardless of their baseline politics). Hanretty concluded, therefore, that Law Lords did not seem to decide cases based on their political ideology, going so far as to suggest that “we ought not describe the Law Lords as political.”331 In a similar study – this time analysing rulings in human rights cases – Poole and Shah also found that Law Lords’ decision-making patterns could not “be tied straightforwardly to differences of political ideology.”332 Iaryczower and Katz approached the same question of whether Law Lords decided cases along political lines differently.333 They accounted for differences in individual judges’ ability to stick to the facts and how the law applies in a case, rather than succumb to their political inclination as measured by whether they were nominated to the bench by the left-leaning Labour Party or the right-leaning Conservative Party. Ultimately, their results were largely the same as Hanretty’s, leading them to the conclusion that the judges’ own political or ideological views had little influence on their decision-making.334 Although judges were not entirely without ideological predispositions, the influence of their politics appeared to be rather benign.335 On the Irish Supreme Court, Elgie and his colleagues investigated whether there was any correlation between judges’ decision-making and the political party that appointed them to the bench.336 Interestingly, the study found no evidence of political partisanship – judges did not have a propensity to decide in line with the political party that appointed them. The researchers suggested that this was not surprising owing to jurisdiction-specific factors. The Irish Supreme Court does not hear exclusively constitutional matters, and as a result, has a caseload that is less politically charged than other apex courts. Furthermore, until 2014, the Irish Supreme Court did not have discretionary jurisdiction and had been obliged to hear all cases submitted to it, thereby diluting the amount of cases that may 328 Robertson (n 301). 329 Hanretty (n 301) 703. 330 The seven areas were civil liberties, commercial law, criminal law, family law, other cases, public law and tort. See ibid. 707–708. 331 Ibid. 716. 332 Thomas Poole and Sangeeta Shah, ‘The Law Lords and Human Rights’ (2011) 74 The Modern Law Review 79, 104. 333 Iaryczower and Katz (n 301). 334 Ibid. 90. 335 The researchers noted that “decisions are shaped by an evolving balance between information and preferences, which reflects the power of the facts in each case to override ideological considerations.” Ibid. 336 Elgie, McAuley and O’Malley (n 302). Politicians are centrally but rather opaquely involved in judicial appointments to the Supreme Court and other courts in Ireland. See generally, Jennifer Carroll MacNeill, The Politics of Judicial Selection in Ireland (Four Courts Press 2016).

157

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

have a particularly political dimension. Moreover, Irish politics has been, relatively speaking, less polarised than other jurisdictions, traditionally dominated by two parties, Fianna Fáil and Fine Gael, that are “relatively undifferentiated in terms of policy,” subject to some exceptions.337 Where the researchers narrowed their analysis to types of cases where they speculated ideological differences would be apparent, the null finding persisted. The researchers also noted that dissenting judgments on the Irish Supreme Court were relatively uncommon, and where there was dissent, there was no evidence to suggest that it was politically motivated along party-partisan lines.338 Aside from tentatively suggesting party-political divides may have been an influence in a handful of major constitutional cases, the researchers’ main conclusion was that Irish Supreme Court judges’ political affiliations had little to no influence on their decision-making.339 Turning to civil law jurisdictions, Hanretty also investigated whether judges’ politics on the Spanish and Portuguese Constitutional Tribunals affected their decision-making. In contrast to his findings on UK Law Lords, Hanretty showed that judges on both courts displayed clear ideological points in their decision-making on a political spectrum running from left to right.340 In another study on the Spanish Constitutional Court, Garoupa and his colleagues investigated trends in individual judges’ decisions in constitutional review cases taken by political actors from 1980 to 2006.341 They found that judges had a propensity to decide in favour of political parties who appointed them to the bench.342 In Norway, another civil law jurisdiction, Grendstad and his colleagues showed how Norwegian Supreme Court judges’ politics seemed to affect their decisions.343 Distinguishing judges appointed by socialist and non-socialist governments, the researchers showed that the ideology of the government who made a particular judicial appointment correlated with that judge’s apparent attitudinal preferences on the bench.344 They found strong correlations in “economics” cases, particularly where there was a non-unanimous ruling of the Court. Judges appointed by socialist democratic governments were 36% more likely to find for a litigant pursuing a public economic interest than their non-socialist colleagues were.345 They also found that judges appointed by socialist-led governments were significantly more likely to support government litigants in civil cases than their non-socialist colleagues were.346 The researchers concluded that there was “systematic evidence that policy making by appointment occurs on the Norwegian Supreme Court . . . it matters who makes the appointments.”347 337 Raymond Carty, Party and Parish Pump: Electoral Politics in Ireland (Wilfrid Laurier University Press 1981) 1. 338 Elgie, McAuley and O’Malley (n 302) 105. 339 Ibid. 340 Hanretty (n 304) 688. 341 Garoupa, Gomez-Pomar and Grembi (n 304). 342 The researchers concluded that “party politics matter for how constitutional judges vote in constitutional review cases, although this influence presents itself in different and complex ways.” Ibid. 530. They noted that “pure party alignment cannot entirely explain” the judges’ behaviour “when ideological interests are not very strong or when there is little discretion left to the judges.” Ibid. 516. 343 Grendstad, Shaffer and Waltenburg (n 69) chs 4 and 7. 344 Ibid. 82. The researchers analysed decisions in cases decided by five-justice panels on the Court between 1948 and 2009 – a total of 1,003 cases. 345 Ibid. 114. 346 Ibid. 151–153. 347 Ibid. 115.

158

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Turning to judicial decision-making on supranational courts, Voeten analysed all dissents by European Court of Human Rights (ECtHR) judges between 1955 and 2006 to investigate whether judges made ideologically driven decisions.348 Cases before the ECtHR have a political dimension, both in terms of the protagonists – litigants complain that their national government has violated the European Convention on Human Rights – and often in terms of the politically sensitive nature of the cases. Voeten offers abortion rights in Ireland, gay people in the British military, property rights of East Germans, torture in Turkey and slow court proceedings in Italy and Poland as examples.349 Voeten placed judges on points along a continuum from judicial activism to judicial restraint based on their decisions and showed that judges appointed to the ECtHR by left-wing governments tended to be more activist in their decision-making than others.350 Are judges in unstable or transitional democracies politically motivated in their decisionmaking? The Philippines offers an interesting case of a transition from dictatorship to a (relatively unstable) democracy.351 Escresa and Garoupa investigated whether the decisionmaking of judges on the Philippine Supreme Court changed in the post-dictatorship era. Analysing politically salient cases from 1986 (immediately after the transition to democracy) to 2010, judges tended to decide in favour of the administration who appointed them more than other judges, but only marginally. Contrary to expectation, the attitudinal model was “less pronounced than anticipated in the sense that the correlation between appointer and appointee is far from overwhelming.”352 The above studies are but a handful of examples from around the globe on how judges’ political views sometimes do, but often do not, affect their decision-making. The variability in the findings demonstrates how important jurisdictional context is, both in terms of each jurisdiction’s unique political landscape and in terms of the nuances of different judicial systems’ procedures. We will return to these themes when we consider external political actors’ influence on judicial decision-making in chapter 7. The next section examines important recent research that takes an experimental, rather than an archival approach to investigating how judges’ politics can affect their decisions. 4.5.5 Experimental studies on judges’ political views and judging All of the above studies are archival, identifying statistical trends from real case data. Experimental researchers, Rachlinski, Wistrich and Guthrie published a unique, experimental study in 2017 offering fresh perspectives on understanding the role that judges’ political views play in their decision-making.353 They analysed the decision-making of some 2,209 US judges at lower tiers in the judicial system across 25 hypothetical cases. The judges were asked which political party (Republican or Democratic) most closely matched their own political beliefs. Of course, the binary divide within US politics – Democrats 348 Voeten (n 224). 349 Ibid. 677. 350 Ibid. 692. Voeten excluded the decisions of judges on cases involving their home countries. 351 Escresa and Garoupa, ‘Judicial Politics in Unstable Democracies: The Case of the Philippine Supreme Court, an Empirical Analysis 1986–2010’ (n 308). 352 Ibid. 19. 353 Rachlinski, Wistrich and Guthrie (n 254) 2055.

159

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

tend to be more liberal, Republicans tend to be more conservative – offered a neat dichotomy from which to draw hypotheses. To give a few examples, the researchers speculated that Republican judges would be more inclined to support creditors in bankruptcy scenarios, be tougher on crime and more pro-government in civil rights cases than their Democratic colleagues would be. Notably, the overall influence of political beliefs was very modest indeed, presenting a counterpoint, at least in the US context, to the prevailing argument that judging is often driven by judges’ politics. One experiment, asking bankruptcy judges to adjudicate five bankruptcy cases, hypothesised that Republican judges would tend to support creditors more often than their Democratic colleagues would. This hypothesis was borne out in only two of the five scenarios. The majority of the time, judges’ political beliefs did not affect whether they were more pro-creditor or pro-debtor in their decisions.354 In hypothetical criminal law cases, the results were similarly mixed. The researchers found no clear evidence to support their hypotheses that Republican judges would be more pro-prosecution and tougher on crime, while Democratic judges would be more likely to support criminal defendants’ rights. In cases about the admissibility of evidence, Republican judges were just as likely to rule in favour of a criminal defendant to suppress key evidence as their Democratic colleagues were. In three cases where judges were asked to convict or acquit, although Republican judges were slightly more likely to convict than Democratic judges were in all three scenarios, none of the findings were statistically significant in any one individual case.355 That said, aggregating the evidence across all three scenarios, the researchers tentatively suggested that “a modest influence of politics might be at play.”356 Across nine different sentencing scenarios, just two produced a statistically reliable difference that Republican judges sentenced more harshly than Democratic judges, while one other showed a marginally statistically significant effect in the same direction. Tellingly, the researchers reported null findings in the other six scenarios.357 In civil law cases, further ambiguity persisted as to the influence of political ideology on decision-making. In a hypothetical civil rights case about the constitutionality of a blanket strip search policy adopted by a municipality’s jail, Republican and Democratic judges did not differ in their decision-making to a statistically significant degree.358 In a hypothetical case asking judges to determine an award of punitive damages against a chemical plant that had dumped hazardous waste in a lake, although Democrats tended to award more punitive damages than Republicans, the trend was not statistically significant.359 Across four tort law scenarios, the researchers predicted that Democrats would be more inclined to favour plaintiffs over defendants than Republican judges would be, yet only one yielded a marginally significant result in that direction. Overall, like bankruptcy judging, and criminal law judging, the influence of judges’ political ideology on their decision-making in civil cases was weak at best.

354 355 356 357 358 359

Ibid. 2059–2068. Ibid. 2073. Ibid. 2077. Ibid. 2078–2088. Ibid. 2089–2090. Ibid. 2091.

160

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

Rachlinski, Wistrich and Guthrie concluded, on the evidence of their findings, that judges’ politics were not a “worrisome source of inequity in the courtroom.”360 Case facts, law and psychological phenomena may have a much bigger influence, they argued.361 An important point to reflect on is that Rachlinski, Wistrich and Guthrie’s study tested judges at lower levels in the US judicial system. Their modest findings perhaps highlight how politically motivated judging may be a phenomenon that is more prevalent on upper courts, either at appellate level,362 or on apex courts. These upper courts are where so-called ‘hard cases’ on politically sensitive matters end up, and judges on them have perhaps more power and opportunity to respond politically. Finally, it is worth noting that the results of the Rachlinski, Wistrich and Guthrie study are complemented by findings from an earlier, less wide-ranging experimental study by Redding and Reppuci on judges and their political views in death penalty cases. Redding and Reppuci asked US state supreme court judges to rate the legal relevance and admissibility of social science evidence that either supported or opposed capital punishment in hypothetical cases about the death penalty. They found no correlation between judges’ political views and how they rated the social science evidence.363 Archival research dominates the literature on how judges’ politics affects decisionmaking. Rachlinski, Wistrich and Guthrie’s study, along with Redding and Reppuci’s smaller study offer a different methodological lens through which to analyse the supposed effects of judges’ politics on decision-making. Their results perhaps confound expectations set by findings from archival research.364 Further experiments on judges from other jurisdictions, particularly those with more diverse political landscapes than the relatively binary and polarised two-party US system, would further enhance understanding. 4.5.6 Conclusions on judges’ politics and their decision-making Researchers approach the question of whether judges’ political views infiltrate their decision-making in different ways. Archival researchers make use of the attitudinal or strategic models, while other researchers employ experimental methods, offering a different perspective on judges’ politics in their decision-making. Researchers must make important choices on how to measure judges’ baseline politics in the first place, often using proxies such as the political party of the actor(s) who appoints the judge, scores based on newspaper editorials or sometimes asking judges directly. Researchers must also code individual decisions as leaning in particular political directions. Different methods and measures make direct comparisons between studies difficult. 360 Ibid. 2098. 361 Ibid. 362 Cass R Sunstein and others, Are Judges Political?: An Empirical Analysis of the Federal Judiciary (Brookings Institution Press 2007). 363 Richard E Redding and N Dickon Reppucci, ‘Effects of Lawyers’ Socio-Political Attitudes on Their Judgments of Social Science in Legal Decision Making’ (1999) 23 Law and Human Behavior 31. 364 Other experimental studies had investigated political views on legal issues, but using law students and lawyers as participants. See, for example, Joshua R Furgeson, Linda Babcock and Peter M Shane, ‘Do a Law’s Policy Implications Affect Beliefs About Its Constitutionality? An Experimental Test’ (2008) 32 Law and Human Behavior 219; Redding and Reppucci (n 363). Rachlinski, Wistrich and Guthrie’s study is the first example of an experimental study testing the influence of judges’ political ideology on decision-making using exclusively judges as participants.

161

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

The studies described above show how and why judges’ politics may differently affect decision-making in different jurisdictions. Comparing judges’ politics and its influence on their decision-making across jurisdictions presents challenges. Different institutional factors within different judicial systems may either dilute or exacerbate the potential for judges’ politics to infiltrate decision-making because each jurisdiction has its own distinctive political landscape and judicial system. More polarised politics in jurisdictions may lead to more politically polarised judging and vice versa. To their credit, researchers often account for these important jurisdiction-specific characteristics.365 In jurisdictions where leading political parties are relatively similar, it is perhaps not surprising that researchers do not detect differences in judicial decision-making along party-affiliation lines, as Elgie and his colleagues discovered in their study on the Irish Supreme Court, for example.366 This finding contrasts with jurisdictions where politics are either already or are becoming increasingly polarised.367 Differences in decision-making along political lines are more apparent in archival studies on the US Supreme Court, for example.368 Yet in their discussion of judges’ politics on the Canadian Supreme Court, Ostberg and Wetstein stressed that “even in countries that share many of the same political and institutional features as the US,” there is a “flaw in thinking that attitudinal decision making will apply neatly and easily across national boundaries.”369 In a study on the Colombian Constitutional Court, Rodríguez-Raga also suggested that the attitudinal model sometimes does not travel well because it may rest on assumptions about the institutional setting – for example, life tenure for judges.370 Again, whether and how judges’ politics influence their decision-making is highly context-dependent. Another criticism of the archival method for investigating judges’ politics is that it does not account for different facts in individual cases. Rachlinski and his colleagues emphasised that cases vary; no two are truly alike.371 The advantage of experimental research is that hypothetical scenarios can control for case facts, allowing for a more precise isolation of judges’ politics as a variable in their decision-making. At a more fundamental level, establishing that judges’ decisions are actually motivated by their political beliefs is tricky, and researchers should be cautious about dismissing the reality that judging is primarily a legal, rather than a political exercise. It will always involve laws, their interpretation and application.372 Notwithstanding the prominence of 365 For particularly strong examples, see Voeten’s contextualisation of the work of the European Court of Human Rights, Voeten (n 56), and Elgie and his colleague’s explanation of Irish politics in Elgie, McAuley and O’Malley (n 302). 366 Elgie, McAuley and O’Malley (n 302). 367 Thomas M Keck emphasises the increasingly polarised political environment and its consequences for judicial politics on the US Supreme Court in Thomas M Keck, Judicial Politics in Polarized Times (University of Chicago Press 2014). 368 Segal and Spaeth (n 272); Segal and Spaeth (n 278); Segal and Champlin (n 273). The partisan divide on the US Supreme Court between judicial appointees of the two political parties appears to be widening in recent years, according to Keck, who emphasises the increasingly polarised political environment and its consequences for judicial politics on that court. Keck (n 367). Devins and Baum share this view. Neal Devins and Lawrence Baum, ‘Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court’ (2017) 2016 The Supreme Court Review 301. 369 Ostberg and Wetstein (n 292) 17. 370 Rodrıguez-Raga (n 316) 94. 371 Rachlinski, Wistrich and Guthrie (n 254) 2055. 372 For an interesting overview on the tensions between the role, and extent of the impact of law, in contradistinction to policy preferences on judicial decision-making, see Howard Gillman, ‘What’s Law Got to Do with

162

JUDGES’ CHARACTERISTICS AND DECISION-MAKING

political accounts of judicial decision-making, the legal model of decision-making, despite having “been killed again and again,” has “refused to stay dead.”373 Of course, judges on apex courts may have more leeway to ventilate their political views. Indeed, Spaeth and Segal go so far as to describe judging at this level as an entirely unconstrained free political choice.374 But some suggest their take is inflexible and uncompromising, while others argue that it is misleading, underplaying the extent of the role law plays in decision-making.375 Despite judges’ politics being the variable that has dominated a great deal of the empirical literature on judicial decision-making, it is always important to broaden the scope of enquiry beyond judges’ politics versus the law.376 Moreover, as Baum notes, if and when judicial scholars do talk politics, they ought to keep the complex meaning of politics and ideology in mind, rather than simply branding judges on a liberal-conservative spectrum.377 “Right/left politics is only one source of judicial bias. . . . Judges can be pro-dog or anti-dog,” one commentator wryly observed.378 When a researcher asserts that a decision is “political,” it is important to reflect on precisely what that means. It may be that that decision is simply a correct application of the law. Alternatively, perhaps some other external factor or factors beyond the law or political views are at play. As this book – and the research that it describes – demonstrate, judging has many more facets to it other than politics and the law. Effects related to other personal characteristics outlined in this chapter, cognitive frailties, emotional responses, career motivations, external institutional influences and group dynamics, to name a few, can all perhaps affect a judge’s decision. They must all be taken into account to develop a rounded understanding of judicial decision-making.

It? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making’ (2001) 26 Law & Social Inquiry 465. Solum warns against overstating the role that judges’ politics play: “[T]he claim that judging is politics all the way down seems absurd, because it fails to account for the phenomenology of judging.” Solum (n 274) 2473. 373 Ernest J Weinrib, ‘Legal Formalism: On the Immanent Rationality of Law’ (1987) 97 Yale Law Journal 949, 951. Along similar lines, Wrightsman notes that “[j]udges are unlikely to reach a decision consistent with their policy preferences when they would have great difficulty justifying it in legal terms. In contrast, the very hard case gives judges free rein to justify whatever decision best accords with their policy views.” Lawrence Baum, The Puzzle of Judicial Behavior (University of Michigan Press 2009) 66. 374 Spaeth and Segal’s articulate their position in Spaeth and Segal (n 283) 288. 375 Pinello comments that Spaeth and Segal can be viewed as “inflexible attitudinalists” who “brook no compromise and take no prisoners” in advocating that law has little to do with decision-making. Pinello (n 229) 4. Gillman argues that scholars of judicial politics sometimes underplay the role of law in decision-making, offering “misleading or at least incautious conclusions about the extent to which law influenced judicial decision making,” Gillman (n 372) 473. Others have made the same point. Edwards (n 256); Michael C Dorf, ‘Whose Ox Is Being Gored: When Attitudinalism Meets Federalism’ (2006) 21 St. John’s Journal of Legal Comment 497; Brian Z Tamanaha, ‘The Distorting Slant in Quantitative Studies of Judging’ (2009) 50 Boston College Law Review 685. 376 Baum, ‘Law and Policy in Decision Making’ (n 261) 125–126. 377 Lawrence Baum, Ideology in the Supreme Court (Princeton University Press 2017) 191. 378 Correspondence from the economist, Andrei Schleifer, quoted in Epstein, Landes and Posner (n 286) 4.

163

CHAPTER 5

Litigants’ characteristics and effects on judicial decision-making

Societies rightly expect judges to make unbiased decisions, blind to the personal characteristics of litigants who appear before them. Justice systems portray their impartiality through statues of Lady Justice wearing a blindfold,1 or tenets carved into court buildings that proclaim, among other things, “equal justice under law.”2 Judges’ professional codes of ethics, and rules of natural justice and due process, are replete with expressions of how judges must treat all litigants impartially and decide cases free from prejudice and bias. Despite these ideals, empirical studies regularly demonstrate differences and inconsistencies in judicial decision-making, apparently owing to particular characteristics of litigants, including gender, race or ethnicity or age. The preceding chapter considered research that investigates whether judges’ personal characteristics serve as a proxy for their views on specific legal issues with studies identifying correlations between these characteristics and trends in decision-making in some types of cases. This chapter explores a similar dynamic but instead concentrates on the swathes of research investigating how litigants’ rather than judges’ personal characteristics seem to be an influence on judges’ decisions. Like chapter 4 on judges’ personal characteristics, this chapter is divided into sections based on the main personal characteristics that researchers have considered. They are litigants’ gender, race and ethnicity, age and sexual orientation. Of course, litigants possess many more personal characteristics than these, but they have not been the subject of enough systematic empirical investigation to be considered here. The most prevalent strand of this research contains studies that highlight sentencing disparities, apparently owing to criminal offenders’ characteristics. Researchers have also investigated how litigants’ characteristics seem to affect outcomes in non-criminal law contexts. Aside from archival work analysing real-world decisions, some researchers directly test judges through controlled experiments for their susceptibility to implicit biases based on litigants’ characteristics. Moreover, and as we will soon see, researchers find that litigants’ different personal characteristics dynamically interact with each other and combine to affect judicial decision-making in different ways. Any study that finds a correlation and stridently concludes that a litigant group fares worse than others because judges are biased or prejudiced towards them ought to be treated with considerable caution. Parsing out whether unfavourable outcomes are a 1 Lady Justice does not always wear a blindfold. See, for example, the statue of Lady Justice atop Dublin Castle in Ireland. 2 As carved into the front façade of the US Supreme Court building in Washington DC.

164

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

manifestation of judicial bias, or whether they are owing to a host of other societal or institutional factors, is mostly a matter of speculation. Researchers have a responsibility to consider whether there may be alternative explanations for why judges seem to treat certain litigant groups differently in their decisions. To their credit, researchers generally flag alternative explanations beyond judicial bias for their findings. Readers of this chapter are urged to be similarly reflective when considering this literature. Despite these complexities, there is an impressive body of scholarship that allows us to draw some meaningful conclusions on how litigants’ personal characteristics do seem to have a bearing on judges’ decisions. This scholarship’s findings incentivise other scholars and policymakers to propose interventions to combat apparent biases and prejudices in judicial decision-making and steer judges towards the ideals of objectivity and impartiality. We start with research investigating the apparent influence of litigants’ gender in some areas of judicial decision-making. 5.1 Litigants’ gender Does a litigant’s gender affect judicial decisions? Do some judges, either deliberately or subconsciously, fall foul of stereotypes, treating litigants differently on account of their gender? Scholars have long argued that gender stereotypes affect judicial decision-making, sometimes pointing to instances of both overt and covert sexism in judgments.3 Notorious examples include Lord Denning’s utterances that “a woman’s hair is her crowning glory, so it is said. She does not like it disturbed: especially when she has just had a ‘hair-do’.”4 US Supreme Court judge Joseph Bradley, deciding in 1873 that women did not have the right to practise law, reasoned “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”5 More recently, in 1982, UK judge Bertrand Richards fined a man £2,000 for raping a 17-yearold girl, holding that the victim was contributorily negligent.6 In 2013, Spanish judge Javier Albar ruled that a driving school was within its rights to charge women more because “men were better drivers.”7 When ruling on a public order offence in 2001, Irish judge Michael Connellan remarked that “it seems to me that women are getting drunk and acting like alley cats.”8 All of the above judicial pronouncements are examples of individual judges’ sexist attitudes or remarks towards women litigants, but they are not evidence of systematic gender-based effects in judicial decision-making.9 Troubling examples of judges’ sexist 3 Jesse Elvin, ‘The Continuing Use of Problematic Sexual Stereotypes in Judicial Decision-Making’ (2010) 18 Feminist Legal Studies 275. 4 Ministry of Defence v Jeremiah [1980] 1 QB 87, 96. 5 Bradwell v State of Illinois, 83 U.S. 130 (1873), 142. 6 The judge commented “I am not saying that a girl hitching home late at night should not be protected by the law, but she was guilty of a great deal of contributory negligence.” Unreported judgment of the Ipswich Crown Court, 1982. William Borders, ‘Britons Outraged Over 3 Rape Cases’ The New York Times (24 January 1982) accessed 17 July 2020. 7 Fiona Govan, ‘Spain Judge: Driving Schools Can Charge Women Learners More’ The Telegraph (3 October 2013). 8 Declan Fahy, ‘Judge Puzzled by Furore over Comments in Court’ The Irish Times (24 February 2001). 9 That said, Elvin offers examples of where stereotypes do affect decisions, with judges differentiating between men and women in cases on diverse issues such as the defence of provocation, workplace stress, infanticide and assault. Elvin (n 3). On the other hand, for balance, it should be noted that judicial scholars also identify and

165

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

attitudes aside, researchers have conducted empirical studies evaluating how litigants’ gender correlates with particular trends in judicial decision-making. Studies have investigated gender-based differences in sentencing decisions, and in decision-making in family law, where perceptions of traditional gendered roles may emerge. In sentencing studies, researchers hypothesise and often find that women are treated more leniently than men, all else being equal. In family law, researchers investigate, for instance, whether judges default to granting women custody of children regardless of other factors, including consideration of the best interests of the child. Studies generally take an archival approach, investigating the effects of litigants’ gender in actual cases. All studies are conducted on the premise that gender is binary, rather than on a spectrum, comparing judicial outcomes of how women litigants fare relative to men. Alongside archival work, there are a handful of experimental studies on judges investigating litigant gender as a variable.10 While studies generally concentrate on case outcomes, researchers often acknowledge that judicial rulings are the end product of a long, multifaceted trial process. Gender-based differences may have as much to do with factors during the trial process or even beforehand as they have to do with judicial bias. To start with studies on sentencing decisions, there are dozens of studies investigating litigant gender as a variable. A 2013 meta-analysis of 58 studies on the effect of gender on US sentencing decisions concluded that overall women were sentenced less severely than men were.11 However, tracing the findings across a half-century, Bontrager and her colleagues found that over time there had been a shift towards more balanced sentencing and less disparity between genders. Rachlinski and Wistrich note that gender disparity in sentencing decisions – the end point of proceedings – is not necessarily attributable to gender stereotypes on the part of judges.12 Personal characteristics other than the criminal defendant’s gender may be at play, and decisions or factors earlier on in the trial process may cumulatively lead towards a harsher sentence for men than women. Nevertheless, some studies control for other personal characteristics, and women defendants still appear to fare better than men do. Beyond the US, researchers have identified sentencing disparities associated with litigants’ gender in Australian and New Zealand courts.13 For example, in South Australia’s higher courts, Jeffries and Bond found that men were both significantly more likely to be analyse exemplars of feminist judgments. See, for example, Hunter’s treatment of feminist judgments in Rosemary Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7, 23–27; Rosemary Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-Making’ (2015) 68 Current Legal Problems 119, 135. 10 One unpublished experimental study investigating gender disparity in judicial decision-making on child custody disputes is mentioned in Jeffrey J Rachlinski and Andrew J Wistrich, ‘Judging the Judiciary by the Numbers: Empirical Research on Judges’ (2017) 13 Annual Review of Law and Social Science 203, 220. See also Andrea L Miller, ‘Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making’ (2019) 10 Social Psychological and Personality Science 227. 11 This trend was apparent across a variety of methodological conditions. Stephanie Bontrager, Kelle Barrick and Elizabeth Stupi, ‘Gender and Sentencing: A Meta-Analysis of Contemporary Research’ (2013) 16 Journal of Gender, Race & Justice 349. An earlier meta-analysis came to a similar finding: Kathleen Daly and Rebecca L Bordt, ‘Sex Effects and Sentencing: An Analysis of the Statistical Literature’ (1995) 12 Justice Quarterly 141. 12 Rachlinski and Wistrich (n 10) 221. 13 For a review of this literature, see Samantha Jeffries and Christine EW Bond, ‘Sex and Sentencing Disparity in South Australia’s Higher Courts’ (2010) 22 Current Issues in Criminal Justice 81, 83–84.

166

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

incarcerated than women were and were more likely to receive longer sentence lengths. The trend persisted after they accounted for several other variables.14 Other researchers analyse gender-based effects at the earlier stages in the criminal trial process, specifically in decisions on whether to remand accused persons in custody or whether to release them on bail. Empirical studies from Canada, the UK and the US have found that women were treated more leniently than men were, often by a considerable margin.15 However, some of these effects can be explained by patterns of women committing less serious offences and by women displaying less serious offending patterns and bail records.16 Nevertheless, residual gender-based biases in bail decisions may persist, independent of these explanatory factors. Aside from criminal law proceedings, researchers have identified gender-based differences in family law cases, specifically in child custody decisions in divorce proceedings.17 Statistically, judges grant custody of children to mothers the vast majority of time in many jurisdictions.18 Suffice to say, of course, in many of these cases there may be entirely justifiable reasons why women are granted custody more often than men are. Scholars have noted that women may already be the primary caregiver to children in many of these cases, that men are statistically more likely to perpetrate domestic violence than women are and that fathers may voluntarily forfeit custody more often than mothers do.19 Nevertheless, these factors aside, gender stereotypes may affect judicial decision-making in this area, at least in some cases. Analysing Spanish judges’ decision-making in child custody disputes, Arce and his colleagues found an overwhelming preference for awarding custody of children to mothers. In the 782 child custody cases they reviewed, custody was granted to the mother in 92% of cases, compared to 8% to fathers.20 Entirely justifiable gender-based differences aside, when the researchers analysed the content of judgments, more often than not (57%), decisions were devoid of any analysis of the proper reasoning criteria that judges ought to have used and applied.21 Heuristical, informal reasoning strategies were commonplace, the researchers concluded. However, what may seem at first blush to be gender stereotyping by judges in their decisionmaking may often be a by-product of rigid adherence to the recommendations by childcare 14 Ibid. 87–92. 15 Peter Jones, ‘Remand Decisions at Magistrates Courts’ in David Moxon (ed), Managing Criminal Justice (Home Office Research and Planning Unit 1985); Gail Kellough and Scot Wortley, ‘Remand for Plea. Bail Decisions and Plea Bargaining as Commensurate Decisions’ (2002) 42 British Journal of Criminology 186; Stephen Demuth and Darrell Steffensmeier, ‘The Impact of Gender and Race-Ethnicity in the Pretrial Release Process’ (2004) 51 Social Problems 222; Ellen Hochstedler Steury and Nancy Frank, ‘Gender Bias and Pretrial Release: More Pieces of the Puzzle’ (1990) 18 Journal of Criminal Justice 417. 16 Kate Steward, ‘Gender Considerations in Remand Decision-Making’ Gender and Justice (Willan 2013) 127. 17 For a review of the history of gender-stereotyping in child custody matters, see Richard A Warshak, ‘Gender Bias in Child Custody Decisions’ (1996) 34 Family Court Review 396. 18 Luiza Lopes Franco Costa and others, ‘Gender Stereotypes Underlie Child Custody Decisions’ (2019) 49 European Journal of Social Psychology 548. 19 Ibid. On the dangers of gender stereotypes in the context of domestic violence and its effects on decisionmaking in custody cases, see Donald G Dutton, John Hamel and Jon Aaronson, ‘The Gender Paradigm in Family Court Processes: Re-Balancing the Scales of Justice From Biased Social Science’ (2010) 7 Journal of Child Custody 1. 20 Ramón Arce, Francisca Fariña and Dolores Seijo, ‘Razonamientos Judiciales En Procesos de Separación’ (2005) 17 Psicothema 57, 60. 21 Ibid.

167

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

professionals in their expert evidence. For example, an archival study on child custody rulings in San Diego, California, in 1982 found that judges strongly favoured mothers over fathers and that the most substantial influence on judges’ decisions was the recommendation of a counsellor in the case.22 While neither finding may be surprising, counsellors appeared to be the true decision-makers, rather than judges. These two studies from Spain and California on child custody rulings hint (but no more than that) that judges may some of the time fall into a pattern of awarding custody to women by means other than by rigorous decision-making. In contrast to studies suggesting that gender stereotypes may work in women’s favour over men, Michelson’s recent archival study of 150,000 divorce applications filed in China between 2009 and 2016 found that judges were more likely to agree to men’s requests for divorces than they were to women’s requests.23 Judges were usually not swayed by women’s claims of violence. Michelson concluded that for abused women, courts were “the problem, not the solution.”24 Aside from archival studies showing correlations between litigants’ gender and actual judicial outcomes, experimental studies have investigated the effect of gender on judicial decision-making using practising judges as participants. In one study, Miller pitted some 619 US trial court judges from an unidentified US state against a sample of lay mock jurors to investigate whether judges were less susceptible to gender-biased decisions in child custody cases and in employment discrimination cases than the non-legally expert mock jurors were.25 Following a similar methodology to a study conducted by Rachlinski and his colleagues’ experiment on unconscious race bias among US trial judges,26 Miller first measured participants’ implicit gender bias using a 15-item measure of support for traditional social roles for men and women.27 Participants were then asked to decide on case vignettes concerning child custody in divorce and employment discrimination (specifically, a plaintiff who sued his/her employer for discrimination on the grounds of family responsibilities).28 In the child custody cases, litigant gender influenced both judges’ and laypeople’s decision-making, all else being equal.29 Indeed, in one of the vignettes, gender influenced judges more than laypeople.30 Even where judges were more experienced in the field of child custody disputes, their expertise did not temper their predisposition towards favouring women litigants.31 In the employment discrimination case vignettes, similar results emerged. Litigant gender was a significant predictor on both judges’ and laypeople’s perceived merit of the case.32 Where there was a difference 22 Carla C Kunin, Ebbe B Ebbesen and Vladimir J Konečni, ‘An Archival Study of Decision-making in Child Custody Disputes’ (1992) 48 Journal of Clinical Psychology 564. 23 Ethan Michelson, ‘Decoupling: Marital Violence and the Struggle to Divorce in China’ (2019) 125 American Journal of Sociology 325. 24 ‘In China, Courts Deny Women Divorces in the Name of “Social Harmony”’ The Economist (10 October 2019) accessed 17 July 2020. 25 Miller (n 10). 26 Jeffrey J Rachlinski and others, ‘Does Unconscious Racial Bias Affect Trial Judges’ (2009) 84 Notre Dame Law Review 1195. 27 Miller (n 10) 229. 28 Ibid. 230. 29 Ibid. 231. 30 Ibid. 31 Ibid. 32 Ibid.

168

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

between the two groups, litigant gender had a larger influence on the judges. Even where judges were specialist civil law judges, the effect persisted.33 Overall, Miller found that judges’ decision-making was substantially influenced by gender, that they were no less susceptible than laypeople were (and sometimes more so) to gender-based effects and that judges’ specialist expertise did not buffer them against its influence. Second, and seemingly replicating Miller’s result, Rachlinski and Wistrich briefly referred to one other unpublished experimental study by them and a colleague that confirmed favouritism among judges for women litigants in child custody disputes.34 The same authors also referred to an unpublished experimental study of a bias working against women litigants, reporting that judges awarded a higher amount of compensatory damages for lost wages for a deceased man than for a deceased woman in a hypothetical wrongful death case.35 Aside from these studies on judges, other experiments on non-legally expert mock jurors have shown that litigants’ gender affected decisions in cases about labour arbitration, compensation for loss of earnings and compensation for wrongful death cases.36 Leaving to one side any normative arguments, or even scientific evidence that genderbased differences ought, or ought not to prevail in some types of dispute – in the realm of custody disputes over very young children, for instance – these studies neatly isolate litigant gender as a variable. They demonstrate that it may be a factor in both judges’ and mock jurors’ decision-making, all else being equal. That said, however, these studies are merely indicative of an effect of gender on decision-making. Miller notes that it is not possible to infer a causal relationship from the results of her study, for instance.37 One final consideration is transgender litigants and judicial decision-making. Empirical research is at an embryonic stage. One study qualitatively analysed discourse in Argentinian judgments on cases about transgender litigants’ access to medical treatment to change gender.38 Tracing changes in how judges approached these cases over the period 1994 to 2008, Neer identified how judges moved away from articulating the suffering and risk associated with such treatment in earlier cases to principles of autonomy and self-identification regarding the provision of such treatment in later cases. 5.2 Litigants’ race and ethnicity Researchers have extensively investigated differences in how litigants of different races and ethnicities fare in courtrooms. A great number of studies concentrate on judges’ sentencing patterns of criminal offenders. Other researchers have examined differences 33 Ibid. 232. 34 Rachlinski and Wistrich (n 10) 220. 35 Andrew Wistrich and Jeffrey Rachlinski, ‘Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It’ in Sarah Redfield (ed), Enhancing Justice: Reducing Bias (American Bar Association, Judicial Division 2017) 103. 36 Erik Girvan and Heather J Marek, ‘Psychological and Structural Bias in Civil Jury Awards’ (2016) 8 Journal of Aggression, Conflict and Peace Research 247; Erik J Girvan, Grace Deason and Eugene Borgida, ‘The Generalizability of Gender Bias: Testing the Effects of Contextual, Explicit, and Implicit Sexism on Labor Arbitration Decisions’ (2015) 39 Law and Human Behavior 525; Jane Goodman and others, ‘Money, Sex, and Death: Gender Bias in Wrongful Death Damage Awards’ (1991) 25 Law and Society Review 263. 37 Miller (n 10) 232. 38 Anahí Farji Neer, ‘El Campo Judicial Frente a La Construcción Corporal Trans’ (2018) 18 Derecho y Ciencias Sociales 166.

169

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

in civil law cases. The bulk of this research investigates judicial decision-making in US courts, most commonly addressing how black Americans fare in courtrooms compared to how white Americans do. As flagged in chapter 4 when considering research on judges’ race or ethnicity, once again, jurisdiction-specific factors must always be borne in mind when considering research on the effects of litigants’ race or ethnicity on judges’ decisionmaking. This includes societal and historical contexts. Understanding race relations in the US is different from understanding race relations between, say, the Arab and Jewish communities in Israel, another jurisdiction where judicial scholars have investigated the effects of litigants’ race and ethnicity on judicial decision-making. A great deal of research in this area investigates sentencing disparities between different racial groups. There are dozens of studies on US judicial decision-making alongside a handful of meta-analyses that evaluate them holistically.39 A 2005 meta-analysis of 71 published and unpublished studies on race and sentencing in US courtrooms found that, on average, judges sentenced black people more harshly than they sentenced white people.40 An earlier meta-analysis study from the mid-1990s contextually assessed 38 studies on the same issue, reporting significant evidence of a direct impact of race on imprisonment. However, this trend was only apparent for judges’ increased propensity to incarcerate black people. It was not evident for the length of sentences meted out.41 The researchers also identified geographical disparity: black offenders were far more likely to be incarcerated in southern US states than elsewhere. Another study published by Spohn in 2000 evaluated 40 studies on the topic, reporting evidence of direct racial effects in sentencing.42 Black and Hispanic offenders were both more likely to be incarcerated than white offenders were, and there was also evidence that black offenders received longer sentences than white offenders did. Studies published after these meta-analyses point to similar trends, with minoritised racial groups tending to fare worse at sentencing after controlling for other variables.43 Furthermore, the general 39 This line of research was particularly prolific during the 1970s and early 1980s. For one leading researcher in the area, the issue “may well have been the major research inquiry for studies of sentencing in the 1970s and early 1980s,” Marjorie S Zatz, ‘Changing Forms of Racial Ethnic Biases in Sentencing’ (1987) 24 Journal of Research Crime and Delinquency 69, 69. For a review of this literature, see Cassia Spohn, How Do Judges Decide?: The Search for Fairness and Justice in Punishment (SAGE Publications Inc 2009) ch 5. For historical overviews on the topic of race and American courts, see Shaun L Gabbidon and Helen Taylor Greene, Race and Crime (Sage Publications 2018) 170–173; Cassia Spohn, ‘Race, Crime, and Punishment in the Twentieth and Twenty-First Centuries’ (2015) 44 Crime and Justice: A Review of Research 49, 54–59. For an overview of the demographics of the federal judiciary in the US (which is approximately 80% white), see Federal Judicial Center, ‘Demography of Article III Judges, 1789–2017’ accessed 17 July 2020. 40 Ojmarrh Mitchell, ‘A Meta-Analysis of Race and Sentencing Research: Explaining the Inconsistencies’ (2005) 21 Journal of Quantitative Criminology 439. 41 Theodore G Chiricos and Charles Crawford, ‘Race and Imprisonment: A Contextual Assessment of the Evidence’ in Darnell Hawkins (ed), Ethnicity, Race, and Crime: Perspectives across Time and Place (SUNY Press 1995) 300. 42 Cassia Spohn, ‘Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process’ (2000) 3 Criminal Justice 427. 43 Abrams and colleagues found variation in incarceration rates, but not sentence lengths, of black defendants in Illinois, David S Abrams, Marianne Bertrand and Sendhil Mullainathan, ‘Do Judges Vary in Their Treatment of Race?’ (2012) 41 The Journal of Legal Studies 347. Freiburger found that in the Pennsylvania Court of Common Pleas, white men were significantly less likely to be sentenced to prison than black men were if they performed the role of caretaker in a family, Tina L Freiburger, ‘The Effects of Gender, Family Status, and Race on Sentencing Decisions’ (2010) 28 Behavioral Sciences & the Law 378. King and Johnson found in an analysis of 850 criminal

170

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

trend that emerges from the US literature – that black defendants fare worse than others do – is not necessarily due to in-group bias favouring one’s own racial or ethnic group. In fact, in a recent finding investigating racial in-group bias in juvenile courts in Louisiana, black judges were more likely to place black juveniles in custody than their white colleagues were.44 Synopsising the literature from the US, Spohn concluded that “racial discrimination in sentencing is not a thing in the past.”45 What about other jurisdictions? In the UK, a less clear picture emerges from recent sentencing data. Recent custody rates among minority ethnicity adults in the UK were higher than for white adults, but only marginally.46 However, among juvenile offenders, there was a wider gap: black offenders had the highest custody rate at 13.7%, compared with 9.9% for white offenders and 10.3% for Asian offenders.47 Of course, raw statistics such as these do not identify whether judges are displaying biases. Disparities are not, after all, necessarily the same thing as discrimination.48 Nevertheless, an earlier study on UK sentencing trends published in 1992 indicated the influence of race upon sentencing after controlling for relevant case characteristics and criminal records, although this data is now quite dated.49 Although sentencing is ultimately a judge’s decision, researchers rightly observe that a sentencing decision is the end product of a cumulative process, affected by several variables embedded not just within criminal justice systems but also society generally. These factors may disadvantage minoritised racial or ethnic groups.50 Researchers, therefore, sometimes shift their focus away from the final sentencing outcome and to considering how disparities occur earlier in the criminal trial process.51 Judges may be more or less involved in earlier decisions depending on the jurisdiction and context. Gazal-Ayal and Sulitzeanu-Kenan’s investigation of bail decisions by Israeli Arab and Jewish judges on whether to release or detain Arab and Jewish suspects is one

cases in two Minnesota counties that darker skin tone and Afrocentric facial features were associated with harsher sanctions, Ryan D King and Brian D Johnson, ‘A Punishing Look: Skin Tone and Afrocentric Features in the Halls of Justice’ (2016) 122 American Journal of Sociology 90. 44 Briggs Depew, Ozkan Eren and Naci Mocan, ‘Judges, Juveniles, and In-Group Bias’ (2017) 60 The Journal of Law and Economics 209. 45 Spohn, How Do Judges Decide?: The Search for Fairness and Justice in Punishment (n 39) 190. 46 The average custody rate for all adults in 2017 was 34.9%. Breaking this down into ethnic groups: Asian 38.1%, Black 36.1%, Mixed 35.6%, White 34.5%, Other including Chinese 37.6%. UK Government, ‘Sentences and Custody’ (10 October 2018) accessed 17 July 2020. 47 Ibid. 48 Roger G Hood, Race and Sentencing: A Study in the Crown Court: A Report for the Commission for Racial Equality (Oxford University Press 1992) 48. On this distinction, see Christine Jolls and Cass R Sunstein, ‘The Law of Implicit Bias’ (2006) 94 California Law Review 969. 49 Hood (n 48). For analysis of this study and its findings, see Andrew von Hirsch and Julian V Roberts, ‘Racial Disparity in Sentencing: Reflections on the Hood Study’ (1997) 36 Howard Journal of Criminal Justice 227. 50 John Hagan, ‘Extra-Legal Attributes and Criminal Sentencing: An Assessment of a Sociological Viewpoint’ (1974) 8 Law & Society Review 357, 379; Gabbidon and Greene (n 39) 228; Zatz (n 39) 73; Eric P Baumer, ‘Reassessing and Redirecting Research on Race and Sentencing’ (2013) 30 Justice Quarterly 231, 240; John Wooldredge and others, ‘Is the Impact of Cumulative Disadvantage on Sentencing Greater for Black Defendants?’ (2015) 14 Criminology & Public Policy 187. 51 Spohn, ‘Race, Crime, and Punishment in the Twentieth and Twenty-First Centuries’ (n 39) 76. For a review of this literature, see ibid. 76–78.

171

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

such example of a study focusing on an earlier part of the criminal trial process.52 Like black Americans, Israeli Arabs suffer negative stereotypes at a societal level and are more likely to be socially associated with severe crimes.53 The researchers investigated whether judges displayed ethnic in-group bias when deciding on bail, the earliest stage in the criminal trial process that involves judicial decision-making. Bail decisions are generally based on quite limited information and are not anchored by earlier decisions in the criminal trial process. The researchers argued, therefore, that bail decisions presented a better opportunity to examine the true effect of ethnicity on judicial decisions. They found that Arab and Jewish judges treated Arab and Jewish suspects differently, after accounting for many other variables. Both sets of judges were considerably more likely to release suspects of their own ethnic group than they were to release suspects from the other group.54 Gazal-Ayal and Sulitzeanu-Kenan’s study is an important, all-too-uncommon example of research from beyond US shores investigating the interplay of personal characteristics and judicial decision-making. The findings are indicative of in-group bias – in this case, Israeli judges’ apparent preference for their ethnic in-group. Moving from trial judges to appellate judges in criminal law proceedings, Grossman and his colleagues identified another ethnicity-based in-group effect in Israeli courts, this time on judicial panels.55 Arab defendants received more lenient punishment when the panel included at least one Arab judge: there was a 14 to 20% reduction in incarceration and a 15 to 26% reduction in the length of prison sentences.56 Others have investigated sentencing of indigenous populations in the US, Australia and Canada. Indigenous peoples in these jurisdictions tend to be over-represented in prison populations. However, a 2012 review of archival studies found little evidence for negative discrimination in sentencing against indigenous peoples once offence and offender-related variables were accounted for.57 If anything, there may have been positive discrimination such that indigenous peoples were treated more leniently in some jurisdictions.58 This finding only serves to emphasise that archival research of this nature is jurisdiction-specific and not generalisable. Do race or ethnicity-based biases emerge in non-criminal law contexts? Returning to Israel, Shayo and Zussman investigated differences in decision-making between Arab and Jewish judges in Israeli small claims courts between 2000 and 2004, finding robust evidence for judicial in-group bias.59 A claim before these courts was between 17% and 20% more likely to win if the judge was the same ethnicity as the plaintiff. This effect 52 Oren Gazal-Ayal and Raanan Sulitzeanu-Kenan, ‘Let My People Go: Ethnic In-Group Bias in Judicial Decisions: Evidence from a Randomized Natural Experiment’ (2010) 7 Journal of Empirical Legal Studies 403. 53 Ibid. 409. 54 Ibid. 417. 55 Guy Grossman and others, ‘Descriptive Representation and Judicial Outcomes in Multiethnic Societies’ (2016) 60 American Journal of Political Science 44. 56 Ibid. 55–58. 57 Samantha Jeffries and Christine EW Bond, ‘The Impact of Indigenous Status on Adult Sentencing: A Review of the Statistical Research Literature from the United States, Canada, and Australia’ (2012) 10 Journal of Ethnicity in Criminal Justice 223. 58 Ibid. 238. 59 Moses Shayo and Asaf Zussman, ‘Judicial Ingroup Bias in the Shadow of Terrorism’ (2011) 126 The Quarterly Journal of Economics 1447.

172

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

translated to over $200 USD per case on average.60 The researchers showed that the strength of this effect fluctuated with the level of ethnic tensions in the region, measured by the intensity of Palestinian politically motivated fatal attacks in Israel.61 Where there was relatively little ethnic tension, the effect substantially lowered, suggesting a possibly significant effect of ethnic conflict.62 In a study of all workplace racial harassment cases in the US between 2002 and 2008, Chew and Kelley also found race and ethnicity-based differences.63 Hispanic claimants were 2.3 times more likely, and white claimants were 1.3 times more likely, to be successful in their claims than black claimants were.64 The researchers speculated, but did not definitively attribute their central finding that black claimants fared worse than others to a range of factors: societal, historical or judges simply being less sympathetic. The researchers also demonstrated that judges found for claimants of their own race or ethnicity more often than they found for claimants of other races or ethnicities.65 Like archival studies investigating other factors on judging, it is a matter of speculation as to what the precise causes of race or ethnicity-based disparities are. Other researchers pursue experimental studies to complement archival research. These studies remove the variability between cases, offering an alternative perspective on how litigants’ race or ethnicity can affect judicial decision-making. Many researchers have investigated mock jurors’ racial or ethnicity-based biases through experimental research.66 However, Rachlinski and his colleagues went one step closer to the nub of how race or ethnicity may be a factor in judicial decision-making by using practising judges as participants.67 They investigated whether unconscious racial bias affected 133 US trial judges making decisions in hypothetical criminal law cases. They first tested the judges for implicit racial bias, using a common standard test for such, the Implicit Association Test.68 Afterwards, the judges anonymously completed three hypothetical case vignettes. Before doing so, judges were either explicitly told the race of the criminal defendant, or they were exposed to race-biasing content through a subliminal priming technique which involved exposing judges to words associated with black Americans appearing rapid-fire on a computer screen.69 Judges were asked to predict the guilt of the defendant on a scale.

60 Ibid. 1448. 61 Ibid. 1449. 62 Ibid. 1483. 63 Pat K Chew and Robert E Kelley, ‘The Realism of Race in Judicial Decision Making: An Empirical Analysis of Plaintiffs’ Race and Judges’ Race’ (2012) 28 Harvard Journal on Racial & Ethnic Justice 91. 64 Ibid. 107. 65 Ibid. 102. 66 For examples of mock juror experiments on bias, see Danielle M Young, Justin D Levinson and Scott Sinnett, ‘Innocent until Primed: Mock Jurors’ Racially Biased Response to the Presumption of Innocence’ (2014) 9 PloS one e92365; Jerry Kang and others, ‘Are Ideal Litigators White? Measuring the Myth of Colorblindness’ (2010) 7 Journal of Empirical Legal Studies 886; Justin D Levinson, Robert J Smith and Danielle M Young, ‘Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States’ (2014) 89 New York University Law Review 513. 67 Rachlinski and others (n 26). For examples of mock juror experiments on bias, see Young, Levinson and Sinnett (n 66); Kang and others (n 66); Levinson, Smith and Young (n 66). 68 The authors explained that at the time of the study, nearly 4.5 million people had taken the test. Rachlinski and others (n 26) 1198. 69 Ibid. 1213–1214.

173

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

Some degree of implicit bias on the Implicit Association Test was shown by 87% of the judges. Crucially, this translated into biased decision-making in the hypothetical cases: implicit associations influenced both black and white judges when the researchers exposed them to subliminal priming. Judges with strong race preferences in the implicit bias test in favour of white people sentenced black criminal defendants more harshly. Judges with strong preferences in the implicit bias test in favour of black people were more lenient when the criminal defendant was black.70 However, judges’ implicit biases did not translate to race-based disparities where judges were explicitly told of the race of the defendant. An earlier experiment by the same researchers, using US bankruptcy judges as participants, found that litigants’ race did not influence judges’ decision-making. Rachlinski and his colleagues manipulated the names of a litigant debtor in a hypothetical bankruptcy case about a student’s debt.71 For half of the judges, the litigant’s name in the case implicitly suggested that they were a black American, for the other half, the litigant’s name suggested they were white. The judges were asked to determine the appropriate amount to be discharged by the debtor. The implied race of the debtor played no role in the judges’ assessments.72 Finally, Miller’s experimental study on US trial judges, discussed above in the section on litigants’ gender and judicial decision-making, also investigated whether litigants’ race had a bearing on case outcomes.73 The litigants’ race, as described in the vignettes, either black or white, did not correlate with any differences in the judges’ decision-making.74 On the whole, experimental studies that investigate whether litigants’ race or ethnicity affects judges’ decisions are inconclusive. That said, in Rachlinski and his colleagues’ 2009 study – the only one that concentrated solely on judges’ implicit racial bias – the results presented reasonably clear evidence that race may be an implicit, subliminal factor, at least in the US criminal trial context. Once more, it is worth re-emphasising the societal context and the jurisdiction-specific nature of race relations and issues. Jurisdictions with a history of racial or ethnic conflict may well be where discrepancies in judicial decision-making are most likely to arise. 5.3 Litigants’ age Do judges treat litigants differently on account of their age? Do age stereotypes sometimes creep into judges’ reasoning when deciding certain cases? The line between appropriately factoring a litigant’s age into a judicial decision and age stereotyping can be a fine one. In criminal law cases, for instance, does, or indeed should, a judge treat a 25-year-old criminal defendant the same way as a 75-year-old, particularly at sentencing? In civil law cases, do judges make unfounded assumptions when deciding cases involving older adults? To give some examples: might age stereotyping affect judges evaluations of older adults’ witness testimony, or when deciding cases of alleged elder abuse, or in cases where the 70 Ibid. 1223. 71 Jeffrey J Rachlinski, Chris Guthrie and Andrew J Wistrich, ‘Inside the Bankruptcy Judge’s Mind’ (2006) 86 Boston University Law Review 1227, 1246–1247. 72 Ibid. 1247–1248. 73 Miller (n 10). See section 5.1 Litigants’ gender . 74 Ibid. 228.

174

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

mental capacity of an older adult may be an issue? Perhaps in some situations judges may be unjustifiably more sympathetic to older adult defendants in negligence claims, purely on account of their age and perhaps defaulting to stereotypes, rather than remaining focused on applicable legal standards. Research on litigants’ age as a factor in judicial decision-making has predominantly focused on sentencing disparities between different age cohorts of criminal defendants, although some studies have empirically investigated whether ageist attitudes may affect judicial decision-making in certain areas of civil law, particularly in case areas of particular relevance to older adults. Turning to criminal offenders’ age as a factor in sentencing decisions first, there is debate over whether different age groups ought to be treated differently.75 Some argue that age should not be a consideration at all, while others suggest that sentencing older adult offenders more harshly may be justified because they should know better than younger offenders.76 Some researchers have argued that treating older adult offenders more leniently may not always be justified and may be based on ageist assumptions.77 However, the more widely supported view is that it is generally fair and justifiable to sentence older adults more leniently. Reasons include diminishing life expectancy, that it may be financially impractical to imprison older adults for extended periods, that older adults may be less likely to commit further crimes and that the community may perceive older adults as less of a threat to society.78 Whatever the argument may be, the reality is that often a judge will treat a 35-year-old defendant differently to how they treat an 80-year-old. In a similar vein, at the other end of the age spectrum, courts sometimes endorse youth as a mitigating factor in sentencing.79 What do judges themselves think on this issue? In a survey that asked US state trial judges to reflect on their sentencing of older offenders, only 31% of them acknowledged or accepted that they treated older offenders with greater leniency.80 The researchers observed that even though judges may differentiate between different age groups in practice, they may prefer not to admit as much.81 75 Darrell Steffensmeier, John Kramer and Jeffery Ulmer, ‘Age Differences in Sentencing’ (1995) 12 Justice Quarterly 583, 585–588; Anita N Blowers and Jill K Doerner, ‘Sentencing Outcomes of the Older Prison Population: An Exploration of the Age Leniency Argument’ (2015) 38 Journal of Crime and Justice 58, 61. 76 As noted by Darrell Steffensmeier, John Kramer and Jeffery Ulmer, although they do not necessarily support this view. Steffensmeier, Kramer and Ulmer (n 75) 586. 77 Helene Love, Fiona Kelly and Israel Doron, ‘Age and Ageism in Sentencing Practices: Outcomes from a Case Law Review’ (2013) 17 Canadian Criminal Law Review 253, 277. 78 Steffensmeier, Kramer and Ulmer (n 75) 586–587. Researchers have conceptualised the relationship between sentencing and the defendant’s age, among other characteristics, as a framework of three “focal concerns” which combine to influence judicial decision-making when sentencing. For an overview, see Patricia Warren, Ted Chiricos and William Bales, ‘The Imprisonment Penalty for Young Black and Hispanic Males: A Crime-Specific Analysis’ (2012) 49 Journal of Research in Crime and Delinquency 56, 58–60; Darrell Steffensmeier, Noah Painter-Davis and Jeffery Ulmer, ‘Intersectionality of Race, Ethnicity, Gender, and Age on Criminal Punishment’ (2017) 60 Sociological Perspectives 810, 813–815. 79 The US Supreme Court held in Miller v Alabama 567 U.S. 460 (2012) that mandatory sentences of life without the possibility of parole were unconstitutional for juvenile offenders. This ruling followed an earlier US Supreme Court ruling in Graham v Florida 60 U.S. 48 (2010) that held that mandatory sentences without parole except for murder were unconstitutional for juvenile offenders. 80 Martha S Smith and Jennifer L Schriver, ‘Judges’ Sentencing Decisions with Older Offenders’ (2018) 24 Psychology, Crime & Law 105, 111. 81 Ibid.

175

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

Turning to archival research on age and sentencing decisions, studies – mainly on US courts – consistently demonstrate that older adult offenders fare better than younger offenders do. Steffensmeier and his colleagues discovered a dynamic relationship between age and sentencing in Pennsylvania in cases from 1989 to 1992.82 Defendants in their twenties and early thirties were sentenced relatively harshly, while those in the 50+ age bracket received especially lenient sentences, even though the sentencing guidelines did not prescribe age as a factor to be taken into consideration.83 Later studies on sentencing in other US courts replicated these patterns.84 A Canadian study also reported more lenient sentences for older offenders; indeed, judges expressly acknowledged that older age was a factor in their decision-making.85 In mock jury experiments, using laypeople rather than judges as participants, age-based differences in sentencing also appear, with older defendants treated more leniently than younger defendants are.86 Whatever one’s view on the matter, the pervasive empirical finding is that older adults fare better than their younger counterparts when it comes to meting out sentences. Moving to the civil law sphere, researchers note that as populations age, litigation on issues of particular relevance to older adults will inevitably grow: age discrimination, health care and treatment, guardianship, asset transfer, estate planning and probate, elder abuse and nursing home torts, to name a few areas.87 Eglit observes that as more older adults engage in the legal system, age may increasingly become a factor in legal decisionmaking and one that may increasingly work against older adults.88 He further notes how ageism, compared to other ‘-isms’, may be seen as “less invidious and therefore a more acceptable basis for the allocation of rights, benefits, and responsibilities.”89 Findings from several mock juror studies suggest ageism may affect legal decisionmaking in non-criminal law contexts.90 For instance, in a hypothetical mock jury trial experiment about elder neglect and alleged negligence in a nursing home, mock jurors found a victim’s middle-aged niece more believable on the witness stand than they found the victim him or herself.91 82 Steffensmeier, Kramer and Ulmer (n 75). 83 Ibid. 84 Darrell Steffensmeier, Jeffery Ulmer and John Kramer, ‘The Interaction of Race, Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black, and Male’ (1998) 36 Criminology 763; Darrell Steffensmeier and Mark Motivans, ‘Older Men and Older Women in the Arms of Criminal Law: Offending Patterns and Sentencing Outcomes’ (2000) 55 The Journals of Gerontology Series B: Psychological Sciences and Social Sciences S141; Jill K Doerner and Stephen Demuth, ‘The Independent and Joint Effects of Race/Ethnicity, Gender, and Age on Sentencing Outcomes in US Federal Courts’ (2010) 27 Justice Quarterly 1. 85 Love, Kelly and Doron (n 77). 86 Katrin U Mueller-Johnson and Mandeep K Dhami, ‘Effects of Offenders’ Age and Health on Sentencing Decisions’ (2009) 150 The Journal of Social Psychology 77. 87 For instance, on the limited rise in the number of cases before the European Court of Justice concerning issues that affect older adults, see Israel Doron, ‘Older Europeans and the European Court of Justice’ (2013) 42 Age and Ageing 604. 88 Howard Eglit, Elders on Trial: Age and Ageism In the American Legal System (University Press of Florida 2004) 5. See also Howard Eglit, ‘Ageism and the American Legal System’ (2005) 29 Generations 59. 89 Eglit, Elders on Trial: Age and Ageism In the American Legal System (n 88) 15. 90 For an overview of this literature, see Nesa E Wasarhaley and Jonathan M Golding, ‘Ageism in the Courtroom: Mock Juror Perceptions of Elder Neglect’ (2017) 23 Psychology, Crime & Law 874, 876–877. 91 Ibid. See also Nesa E. Wasarhaley and Jonathan M Golding, ‘Perceptions of Institutional Elder Neglect in Civil Court’ (2013) 25 Journal of Elder Abuse & Neglect 305.

176

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

Aside from mock jury experimental studies, archival research investigating ageism in judicial decision-making in non-criminal law contexts reports mixed findings.92 One study investigated Los Angeles probate judges’ decision-making in cases about assigning guardianship of someone’s affairs to someone else.93 The law stated that guardianship ought to be assigned on the basis of need, specifically when the person was “gravely disabled” by mental illness or where they were “unable to manage.”94 The law did not prescribe age as a factor to be taken into consideration. Nevertheless, increasing age, rather than need appeared to drive decisions on assigning guardianship. Increasing age remained significantly associated with decisions assigning guardianship, even after the variables of the need-based assessment – “gravely disabled” and “unable to manage” – were accounted for.95 The judges’ decision-making was not age-blind, the study concluded, even though the law demanded it.96 In contrast, a 1994 study examining 88 reported cases in the US on adult patients and decisions about life-prolonging medical treatment found no suggestion of age-related bias in judges’ decision-making.97 The patients’ age did not by itself appear to influence findings of mental competency or the appropriateness of abating life-prolonging medical treatment.98 Empirical research on litigants’ age affecting judicial decision-making in civil law cases is relatively underdeveloped. However, with ever-ageing populations, it is bound to become an increasingly important consideration. All told, the research suggests that in (mainly US) criminal law settings, older adults are generally treated more leniently. Many argue that this is justified. In non-criminal law contexts, the effect of litigants’ age is less clear. Researchers will undoubtedly continue to investigate age as a factor as more older adults become involved in litigation. Thus far, there are no experimental studies directly testing for age-related bias in judges’ decisionmaking. This may prove a fruitful avenue for further work. Also, researchers have tended to focus entirely on judicial outcomes rather than on the content of judgments. Analysing the text of judgments, to examine whether age-related stereotypes or biases permeate judges’ decision-making, may also prove worthwhile. 5.4 Litigants’ sexual orientation A litigant’s sexual orientation is not a readily identifiable, visible characteristic in the courtroom in the same way that age, gender or race is. However, where a case concerns 92 Researchers have also considered judges’ attitudes to older adults through the theoretical prism of “narrative justice;” see Israel Doron, ‘A Judicial Rashomon: On Ageism and Narrative Justice’ (2012) 27 Journal of Cross-Cultural Gerontology 17. On the theory of narrative justice, and the judge as narrator, see Jean C Love, ‘The Value of Narrative in Legal Scholarship and Teaching’ (1998) 2 Journal of Gender, Race & Justice 87; George A Martinez, ‘Philosophical Considerations and the Use of Narrative Law’ (1998) 30 Rutgers Law Journal 683; J Yuval, ‘Narrative Justice’ (2002) 18 Iuney Mishpat 1. 93 Sandra L Reynolds, ‘Criteria for Placing Older Adults in Public Conservatorship: Age as Proxy for Need’ (1997) 37 The Gerontologist 518. 94 Ibid. 519. 95 Ibid. 523. 96 Ibid. 526. 97 Marshall B Kapp, ‘Ageism and Right to Die Litigation Law’ (1994) 13 Medicine and Law 69. 98 Ibid. 70–71.

177

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

legal rights or duties connected in some way to a litigant’s sexual orientation, it necessarily becomes an issue for the judge to consider. Commentators speak of a progressive transformation in judicial attitudes towards the LGBTQ community, at least in some jurisdictions.99 Landmark decisions from the US Supreme Court, Obergefell v Hodges,100 affirming marriage equality, and the Indian Supreme Court, Navtej Singh Johar v Union of India,101 decriminalising same-sex sexual relations, are two recent exemplars of this trend. Empirical research on how gay or lesbian litigants fare in courtrooms – generally conceiving of sexual orientation as binary – tends to focus on specific cases claiming improved rights for gay or lesbian people. Unlike studies on other litigants’ characteristics, studies do not generally investigate how judges treat differently sexually oriented litigants in different ways. The most prominent and comprehensive study is Pinello’s investigation of judicial decision-making in all 468 US appellate court cases about gay and lesbian rights during the 1980s and 1990s.102 Pinello found that a host of characteristics particular to the judge were associated with whether gay rights claims would succeed or fail. Correlating judges’ religion with decision-making in this area, for example, as we saw in chapter 4, Jewish judges were the most sympathetic to gay rights claims.103 On judges’ ethnicity, minority ethnicity judges were more sympathetic than other judges were to gay rights claims.104 Women judges were more sympathetic than their male colleagues were.105 Interestingly, Pinello did not find statistically significant effects that political party affiliation – either Democratic or Republican Party appointed judges – affected outcomes at state court level, although this finding has since been contested.106 However, party politics did have a strong effect at federal court level.107 Pinello’s study presented clear associations between judges’ characteristics and the outcomes of gay rights claims. In a similar vein, Lewis and his colleagues explored if and how elected US judges seemed to respond to public opinion in their decision-making on gay rights issues. The researchers hypothesised that gay rights issues would have been an unpopular cause among the public for much of the time frame analysed – 1981 to 2004.108 The researchers narrowed in on how judges were appointed – either elected or appointed by public actors – to 99 Adam referred to a move away from judges treating gay and lesbian people as being “the various abject statuses of the sinful, criminal, or mentally ill to that of people bearing the rights and responsibilities of citizens of liberal democratic countries.” Barry Adam, ‘Foreword’ in Patrice Corriveau (ed), Judging Homosexuals: A History of Gay Persecution in Quebec and France (UBC Press 2011) vii. 100 576 U.S. 644 (2015). 101 AIR 2018 SC 4321. 102 Daniel R Pinello, Gay Rights and American Law (Cambridge University Press 2003). Other researchers have written narratively about gay rights litigation. See, for example, Patricia A Cain, Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (Boulder, CO: Westview Press 2000); Patrice Corriveau, Judging Homosexuals: A History of Gay Persecution in Quebec and France (UBC Press 2011). 103 Pinello (n 102) 88. See section 4.4.1 Judges’ religion and liberal or conservative judicial decision-making. 104 Ibid. 78. 105 Ibid. 88. 106 Ibid. 276. A later study on the same dataset of decisions by Zschirnt used a different measure for political ideology and reported that it correlated with decisions for or against gay rights claims. Simon Zschirnt, ‘Gay Rights, the New Judicial Federalism, and State Supreme Courts: Disentangling the Effects of Ideology and Judicial Independence’ (2016) 37 Justice System Journal 348. 107 Pinello (n 102) 151. 108 Daniel C Lewis, Frederick S Wood and Matthew L Jacobsmeier, ‘Public Opinion and Judicial Behavior in Direct Democracy Systems: Gay Rights in the American States’ (2014) 14 State Politics & Policy Quarterly 367.

178

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

measure whether one group or another was more tethered to public opinion on gay rights issues in their decision-making. They found that where judges were publicly elected, they were less likely to vote in favour of gay rights cases than judges who were appointed by other means. The public’s preference seemed to infiltrate judicial decision-making to the detriment of litigants seeking gay rights. This finding cut both ways, however: as public support for gay rights grew, so did support for this cause among publicly elected judges. While there are no experimental studies of practising judges on whether litigants’ sexual orientation affects their decision-making, mock juror experimental studies are instructive. Notably, results from two studies have indicated that although mock jurors tended to perceive gay criminal defendants as more guilty or culpable, this did not affect judicial outcomes. One recent study asked 494 mock jurors split into two groups to judge a hypothetical murder case, with one group told that the defendant was gay or lesbian.109 Participants rated their perception of guilt and culpability of the defendant. Separately, they were asked to determine whether the defendant was guilty according to the applicable legal standard, and if so, to determine sentence length. Although participants perceived gay or lesbian defendants as more guilty and more culpable than they perceived straight defendants to be, this did not have a bearing on case outcomes. There were no statistically significant differences in guilty verdicts or sentences meted out to heterosexual defendants, compared to gay or lesbian defendants.110 The other mock juror experimental study asked 203 participants about their perceptions of criminal defendants and alleged victims in a hypothetical case alleging sexual abuse of a child; they were also asked to determine the guilt or innocence of the defendant.111 Participants were split into two groups, with the defendant portrayed as either gay or straight. Again, although participants perceptions of the crime diverged depending on the defendant’s portrayed sexual orientation, this did not affect outcomes. Participants perceived alleged victims as more credible where the defendant was portrayed as gay than they perceived alleged victims where the defendant was portrayed as straight.112 However, the defendant’s portrayed sexual orientation did not significantly affect verdicts on guilt or innocence either way.113 Aside from these archival and experimental studies on decision-making, other studies have investigated prejudicial treatment and attitudes in courts in a broader sense, apart from legal decision-making. Through surveying LGBTQ litigants and court employees, researchers have identified prejudicial attitudes in court settings in different US states and in England and Wales.114 Other scholars have analysed individual judgments as instances 109 Jennifer Coons and Russ Espinoza, ‘An Examination of Aversive Heterosexism in the Courtroom: Effects of Defendants’ Sexual Orientation and Attractiveness, and Juror Gender on Legal Decision Making’ (2017) 5 Psychology of Sexual Orientation and Gender Diversity 36. 110 Ibid. 40. 111 Tisha RA Wiley and Bette L Bottoms, ‘Effects of Defendant Sexual Orientation on Jurors’ Perceptions of Child Sexual Assault’ (2009) 33 Law and Human Behavior 46. 112 Ibid. 52. 113 Ibid. 114 Lambda Legal, ‘Protected and Served?’ accessed 17 July 2020; New Jersey Supreme Court, ‘Final Report of the Task Force on Sexual Orientation Issues’ (New Jersey Supreme Court 2001); Judicial Council of California, ‘Sexual Orientation Fairness in the California Court System’ (Judicial Council of California 2001); Todd Brower, ‘Pride and Prejudice: Results of an Empirical Study of Sexual Orientation Fairness in the Courts of England and Wales’ (2004) 13 Buffalo Women’s Law Journal 17.

179

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

of prejudice on sexual orientation grounds. For example, Ritenhouse analysed a handful of US cases where judges treated gay parents differently to straight parents when interpreting the ‘best interest of the child’ standard in child custody cases.115 In a similar vein, Morgan analysed instances of prejudice in cases where litigants sought asylum on the grounds of sexual orientation.116 In future, empirical researchers could take these, and other themes – adoption and employment rights, for example – to systematically investigate whether prejudice against LGBTQ litigants permeates judicial decision-making. Archival studies in these areas of law may improve understanding of how litigants’ sexual orientation possibly affects judicial decisions. Again, thus far, the focus has been on case outcomes. Analysing the text of judgments, to examine whether stereotypes or biases related to litigants’ sexual orientation affects decision-making, may prove fruitful. Moreover, there is a notable absence of any experimental research investigating whether practising judges display biases or prejudices against LGBTQ litigants. Of course, all of the studies described in this section bear a significant caveat: attitudes towards differently sexually orientated litigants are those expressed by judges and mock jurors from particular jurisdictions, each with their own social mores. Prevailing attitudes towards LGBTQ litigants may vary from one jurisdiction to the next, and indeed from one generation to the next. The findings from these studies, therefore, only speak to their own societal and jurisdiction-specific contexts. 5.5 Litigants’ other characteristics Researchers have also investigated and sometimes demonstrated how litigants’ physical appearance, different socio-economic statuses or having a mental illness may all lead judges to decide cases differently. To take studies on litigants’ physical appearance first, mock jury experiments dominate this research. In a criminal law context, studies often find that mock jurors are generally more sympathetic to more physically attractive defendants than less attractive defendants – a phenomenon labelled attractiveness bias – although this is not a pervasive trend.117 In a 115 Ritenhouse contended that judges in these cases may have been relying on unfounded stereotypes against gay and lesbian parents that have been debunked by a significant body of social science. Damon Ritenhouse, ‘What’s Orientation Got to Do With It? The Best Interest of the Child Standard and Legal Bias against Gay and Lesbian Parents’ (2011) 15 Journal of Poverty 309. 116 Deborah A Morgan, ‘Not Gay Enough for the Government: Racial and Sexual Stereotypes in Sexual Orientation Asylum Cases’ (2006) 15 Law & Sexuality: A Review of Lesbian, Gay, Bisexual & Transgender Legal Issues 135. 117 See, for example, Michael G Efran, ‘The Effect of Physical Appearance on the Judgment of Guilt, Interpersonal Attraction, and Severity of Recommended Punishment in a Simulated Jury Task’ (1974) 8 Journal of Research in Personality 45; Richard A Kulka and Joan B Kessler, ‘Is Justice Really Blind? The Influence of Litigant Physical Attractiveness on Juridical Judgment’ (1978) 8 Journal of Applied Social Psychology 366; Gloria Leventhal and Ronald Krate, ‘Physical Attractiveness and Severity of Sentencing’ (1977) 40 Psychological Reports 315; Michael R Solomon and John Schopler, ‘The Relationship of Physical Attractiveness and Punitiveness: Is the Linearity Assumption out of Line?’ (1978) 4 Personality and Social Psychology Bulletin 483; Mally Shechory-Bitton and Liza Zvi, ‘The Effect of Offender’s Attractiveness and Subject’s Gender on Judgments in Swindling’ (2015) 22 Psychiatry, Psychology and Law 559. However, in a recent mock jury study, attractive defendants were not treated more leniently, see S Taylor, YL Lui and L Workman, ‘Defendant’s Mens Rea or Attractiveness: Which Influences Mock Juror Decisions’ (2018) 6 Forensic Research & Criminology International Journal 00185.

180

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

non-criminal law context, one mock juror study found that more attractive plaintiffs were awarded higher damages in a personal injuries case arising from a road traffic accident than less attractive plaintiffs were.118 There is some limited evidence that attractiveness bias can sometimes affect judges’ decisions in the real world. In two observational studies undertaken in Pennsylvanian courtrooms in the 1980s, court observers rated the physical attractiveness of defendants and correlated this with sentencing decisions.119 These studies found that attractiveness predicted sentence severity: the more attractive the defendant, the less severe the sentence imposed.120 However, attractiveness only correlated with sentencing decisions. It did not correlate with actual verdicts. In a non-criminal law context – US small claims courts – Zebrowitz and McDonald found some evidence for attractiveness bias: more attractive plaintiffs were more likely to succeed than others were, although the difference was only marginally significant.121 The same, however, did not apply to defendants in these cases. Being more attractive did not associate with improved chances of defending cases. Researchers have also investigated whether litigants’ other physical features may also have an effect. One mock juror experiment in a criminal law context found that lay participants were less sympathetic to overweight defendants.122 Returning to Zebrowitz and McDonald’s study on judges’ decision-making on US small claims courts, the researchers also found more baby-faced plaintiffs were awarded higher compensation.123 Equally, the more baby-faced a defendant was, the more likely they were to successfully defend certain types of cases.124 These results are consistent with assumptions that baby-faced adults are perceived as more naïve or honest than mature-faced adults are.125 First impressions matter in many walks of life. The findings from these studies generally support the contention that this can have real-life consequences in courtrooms. Aside from physical characteristics, a litigant’s socio-economic status may also be a factor. A recent experimental study on 340 experienced US judges tested for how socioeconomic status affected judges’ assessment of criminal offenders’ likelihood to reoffend.126 Skeem and her colleagues tested whether risk assessment information provided to the judges about offenders interacted with information about the offenders’ socioeconomic background, thereby influencing the judges’ sentencing decisions. Some judges 118 Cookie Stephan and Judy Corder Tully, ‘The Influence of Physical Attractiveness of a Plaintiff on the Decisions of Simulated Jurors’ (1977) 101 The Journal of Social Psychology 149. 119 John E Stewart, ‘Defendant’s Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study’ (1980) 10 Journal of Applied Social Psychology 348; John E Stewart, ‘Appearance and Punishment: The Attraction-Leniency Effect in the Courtroom’ (1985) 125 The Journal of Social Psychology 373. 120 Stewart, ‘Defendant’s Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study’ (n 119); Stewart, ‘Appearance and Punishment: The Attraction-Leniency Effect in the Courtroom’ (n 119). 121 Leslie A Zebrowitz and Susan M McDonald, ‘The Impact of Litigants’ Baby-Facedness and Attractiveness on Adjudications in Small Claims Courts’ (1991) 15 Law and Human Behavior 603, 615. 122 Natasha A Schvey and others, ‘The Influence of a Defendant’s Body Weight on Perceptions of Guilt’ (2013) 37 International Journal of Obesity 1275. 123 Zebrowitz and McDonald (n 121) 617. Baby-facedness also appeared to have an effect in a mock jury also. See Diane S Berry and Leslie Zebrowitz-McArthur, ‘What’s in a Face? Facial Maturity and the Attribution of Legal Responsibility’ (1988) 14 Personality and Social Psychology Bulletin 23. 124 Specifically, they found that baby-faced defendants were more likely to defend cases that involved intentional actions. Zebrowitz and McDonald (n 121) 617. 125 Ibid. 619. 126 Jennifer Skeem, Nicholas Scurich and John Monahan, ‘Impact of Risk Assessment on Judges’ Fairness in Sentencing Relatively Poor Defendants’ (2020) 44 Law and Human Behavior 51.

181

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

were told that the offender was from a lower socio-economic background, while others were told that the offender was from a higher socio-economic background. In the test condition, judges were given the same risk assessment score, whether they were dealing with offenders from either the lower, or the higher socio-economic background. The same risk assessment score affected judges’ assessments differently: judges sentenced lower socio-economic background offenders more harshly than they sentenced higher socio-economic offenders. In fact, providing judges with the risk assessment information reversed the direction of judges’ disparities, transforming low socio-economic status from a circumstance that reduced the likelihood of imprisonment to a factor that made them more likely to incarcerate the offender. The researchers speculated that the risk assessment information had the effect of cueing judges to focus on the risk of future crime, rather than on offenders’ past blameworthiness. They acknowledged, however, that this variable may have a weaker effect in real courtroom settings where judges would likely be exposed to much richer information and more in-depth interactions with the parties involved. There are no studies directly comparing differences in judicial decision-making attributable to litigants’ mental health. Encouragingly, however, judges from Mississippi surveyed on their attitudes to criminal defendants with mental illnesses displayed a basic inclination to find appropriate solutions to care for and help them navigate barriers within the criminal justice system.127 The studies described here observe that different litigants’ characteristics – attractiveness and socio-economic background, for instance – sometimes correlate with differences in judicial decision-making. A further, important consideration is how different litigants’ characteristics interact with each other and how they combine to affect judges’ decisions in different ways. The next section considers researchers’ efforts to investigate this dynamic. 5.6 Combinations and interactions of different litigants’ characteristics and judges’ characteristics Aside from research investigating the effect of litigants’ individual characteristics, researchers also examine how combinations of different characteristics can also have unique effects on judges’ decision-making. For instance, a handful of studies show how litigants’ race, gender, familial role, and employment status combine in different ways to affect case outcomes.128 Steffensmeier and his colleagues argue that judges make imputations about criminal defendants’ character and their expected future behaviour by weighing up combinations of their characteristics.129 To take some examples, Steffensmeier and his colleagues found that race and gender disparities in sentencing in Pennsylvania were greater among younger offenders than they were among older offenders. In particular, young black men were sentenced more harshly than other groups were.130 127 Ashley B Batastini, Michael E Lester and R Alan Thompson, ‘Mental Illness in the Eyes of the Law: Examining Perceptions of Stigma among Judges and Attorneys’ (2018) 24 Psychology, Crime & Law 673, 683. 128 Freiburger (n 43); Darrell Steffensmeier and Chester L Britt, ‘Judges’ Race and Judicial Decision Making: Do Black Judges Sentence Differently?’ (2001) 82 Social Science Quarterly 749; Doerner and Demuth (n 84). 129 Steffensmeier, Painter-Davis and Ulmer (n 78) 815. 130 Steffensmeier, Ulmer and Kramer (n 84).

182

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

In a similar vein, Spohn’s analysis of race and sentencing studies showed that offenders from minoritised racial groups were sentenced more harshly than white offenders were, particularly so if they were also different combinations of being young, male and unemployed.131 Aside from combinations of litigants’ personal characteristics, we have also seen examples of how litigants’ characteristics can interact and combine with judges’ characteristics to correlate with particular decision-making trends. For instance, we have seen studies pointing to in-group favouritism: judges sometimes appear to favour litigants of their same ethnicity, for example. Beyond in-group effects, in the US, a combination of a judge’s politics with particular litigant characteristics may also associate with decision-making patterns. For instance, Cohen and Yang found that in the US, Republican Party-appointed judges sentenced black offenders to three more months than they sentenced equivalent non-black offenders when compared to how Democratic judges did. Republican Party judges also sentenced women offenders to two fewer months than they sentenced equivalent male offenders compared to how Democratic judges did.132 The implication is troubling: at the very least, statistically speaking, judges’ politics appeared to exacerbate differences in how judges treated offenders with different characteristics. As ever with reviewing archival research of this nature, assertions that judges are in fact biased towards litigants with particular characteristics, or combinations of characteristics, are based entirely on inferences from data on case outcomes. This makes findings from experimental studies on judges all the more valuable because they lend weight to the claims of archival researchers. Triangulating findings from archival studies with experimental studies presents the best opportunity to understand how personal characteristics – be they of the litigant or the judge – may affect judges’ decision-making. All told, there is a considerable body of empirical research that suggests litigants’ personal characteristics, and particular combinations thereof, appear to correlate with different judicial outcomes, leading to charges of judicial bias. Crucially then, what measures can judges take to identify biases and prejudices in their decision-making and to combat them where they are apparent? 5.7 Combatting bias based on litigants’ characteristics Although many studies have demonstrated that judges decide cases differently on account of litigants’ characteristics, remarkably few studies have tested interventions to combat these apparent biases. Generally, researchers have only gone so far as to propose methods to minimise and counteract their harmful effects.133 Of course, there are already several mechanisms built into many justice systems geared towards mitigating against biases of

131 Spohn, ‘Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process’ (n 42) 462. 132 Alma Cohen and Crystal S Yang, ‘Judicial Politics and Sentencing Decisions’ (2019) 11 American Economic Journal: Economic Policy 160. 133 John F Irwin and Daniel L Real, ‘Unconscious Influences on Judicial Decision-Making: The Illusion of Objectivity’ (2010) 42 McGeorge Law Review 1, 8.

183

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

this nature.134 However, it would seem that further countermeasures are necessary. Some of the measures suggested in the literature include: • implicit bias testing and training; • exposure to stereotype-incongruent information (which involves exposing decisionmakers to positive examples of people from particular groups to counter stereotypes); • auditing judges’ decisions for bias; and • subtle tweaks to court procedure.135 We saw earlier how some researchers test judges for their implicit biases using the Implicit Association Test (IAT).136 Some argue that judges ought to take the IAT as part of their training, to encourage them to self-reflect on any biases they display. Results could also help to develop better, more targeted training for those who display particular biases.137 Others have suggested that the IAT could help to de-bias jurors before a trial starts.138 However, whether judges simply taking the IAT would mitigate bias in their decisionmaking has yet to be empirically tested, although Kang and his colleagues have suggested that the discomforting act of taking the test may in itself motivate action.139 Outside of the courtroom context, however, one study reported that simply taking the IAT and learning of the result did not, by itself, lead to reduced bias in subsequent tests.140 Others have suggested that stereotype-incongruent modelling could help combat judges’ biases.141 Stereotype-incongruent modelling involves exposing a decision-maker who tends to respond unfavourably to someone with particular characteristics to positive, counterstereotypical role-model examples of people who share those characteristics. Some propose that this could help to diminish bias in courtrooms.142 Irwin and Real offered an example in a judicial decision-making context: if a judge’s sentencing decisions suggest a negative implicit bias toward black offenders, steps could be taken to expose that judge to more positive black role models, such as judicial colleagues, thereby reducing their implicit racial bias against black offenders.143 Again though, whether such measures would actually mitigate bias remains an untested assumption. Indeed, evidence is mixed as to whether 134 Wistrich and Rachlinski (n 35) 104. For example, in many jurisdictions, it may be reasonable to assume that most judges are trained, experienced decision-makers and that they are normally vetted through one appointments process or another. Moreover, it may also be fair to assume that judges are explicitly directed to avoid bias through professional codes of conduct and constitutional norms, and that they are accountable to the public, lawyers and their fellow judges through appellate review. Many jurisdictions’ judicial systems may not enjoy these characteristics, however. 135 For a summary of interventions, see Rachlinski and others (n 26) 1226–1231; Wistrich and Rachlinski (n 35) 106. 136 Rachlinski and others (n 26). 137 Jerry Kang and others, ‘Implicit Bias in the Courtroom’ (2011) 59 UCLA Law Review 1124, 1176; Wistrich and Rachlinski (n 35) 106. 138 Dale Larson, ‘A Fair and Implicitly Impartial Jury: An Argument for Administering the Implicit Association Test during Voir Dire’ (2009) 3 DePaul Journal for Social Justice 139. 139 Kang and others (n 137) 1177. 140 Patricia G Devine and others, ‘Long-Term Reduction in Implicit Race Bias: A Prejudice Habit-Breaking Intervention’ (2012) 48 Journal of Experimental Social Psychology 1267, 1273. 141 Kang and others (n 137) 1169; Rachlinski and others (n 26); Jerry Kang and Mahzarin R Banaji, ‘Fair Measures: A Behavioral Realist Revision of Affirmative Action’ (2006) 94 California Law Review 1063; Wistrich and Rachlinski (n 35) 105–106. 142 Irwin and Real (n 133) 9. 143 Ibid.

184

LITIGANTS’ CHARACTERISTICS AND DECISION-MAKING

stereotype-incongruent modelling works in other contexts.144 That said, others argue that it may at least be worth trying, simply because there is little to be lost.145 In a similar vein, Rachlinski and Wistrich suggested that where judges preside over a case list dominated by criminal defendants of a particular race or ethnicity, this constant exposure may harbour increasing negative associations towards that group, perhaps biasing their decision-making. They suggested that to reduce this risk, courts should consider rotating judges among specialist assignments so that implicit biases do not take hold.146 They also suggested a further tweak to courtroom practices. Unwavering drives towards efficiencies within courts, they argued, may be counterproductive because they may have the unintended effect of dehumanising the litigants before judges.147 The more people learn about individuals from a particular group, the less likely they may are to make stereotyped judgements about them. The same may apply in courtrooms. Simply put, a judge with a few extra minutes to get to know a party before them, and to allow lawyers more latitude to humanise their clients during direct examination, may make all the difference.148 Salmanowitz proposed an unconventional intervention: judges could participate in a novel form of implicit bias training, undertaking tasks using virtual reality technology.149 Entering immersive virtual environments, judges could interact with characters from different ages, genders, races or ethnicities to themselves in a variety of settings and contexts. This may reduce unjustified bias in favour of their in-group. Similar interventions in other contexts have proven to improve participants’ IAT scores.150 Finally, Kang and his colleagues, and Rachlinski and Wistrich have separately suggested auditing individual judges’ decision-making trends to identify bias.151 Through data and accountability, judges would be made aware of how they decide cases relative to their colleagues, providing an opportunity for self-reflection.152 Interventions to combat judges’ bias against litigants with particular personal characteristics – while they have been suggested – remain largely untested. This is quite remarkable given the considerable body of empirical evidence to suggest that judges’ decision-making can be affected by insidious biases based on litigants’ personal characteristics. The interventions suggested here may not work at all, and even if they did to some extent, they might not be sufficient.153 However, and particularly where there is a low cost associated with their implementation, they are surely worth a try.154

144 Cheryl Staats and others, State of the Science: Implicit Bias Review 2015, vol. 3 (Columbus, OH: Kirwan Institute for the Study of Race and Ethnicity 2015) 43; Jennifer A Joy-Gaba and Brian A Nosek, ‘The Surprisingly Limited Malleability of Implicit Racial Evaluations’ (2010) 41 Social Psychology 137. 145 Kang and others (n 137) 1172. 146 Wistrich and Rachlinski (n 35) 106. 147 Ibid. 111. 148 Ibid. 149 Natalie Salmanowitz, ‘Unconventional Methods for a Traditional Setting: The Use of Virtual Reality to Reduce Implicit Racial Bias in the Courtroom’ (2016) 15 University of New Hampshire Law Review 117. 150 Tabitha C Peck and others, ‘Putting Yourself in the Skin of a Black Avatar Reduces Implicit Racial Bias’ (2013) 22 Consciousness and Cognition 779. 151 Kang and others (n 137) 1178; Wistrich and Rachlinski (n 35) 108. 152 Wistrich and Rachlinski (n 35) 109. 153 Kang and others (n 137) 1186. 154 Ibid.

185

CHAPTER 6

Judicial decision-making in an institutional context In-court influences

Judges do not decide cases in a vacuum. They are the primary actors in an institution, a court. That court, in turn, is part of a wider network of institutions that make up a political system that serves the public. While other chapters in this book predominantly consider how internal factors peculiar to the judge affect their decision-making, this chapter and the next consider external factors – how a judge’s institutional environment affects their work. Scholars contend that judges are acutely influenced by their institutional setting.1 Therefore, to fully understand judicial decision-making, many argue that we must go beyond the internal machinations and foibles of individual judges, to appreciate how the institutional settings and contexts in which they operate affect their work.2 External institutional influences and factors that affect judicial decision-making can be broken into two main strands. First, there are influences immediately within a judge’s court. Courtroom actors such as lawyers, judicial assistants (judicial clerks in North America) 1 Schauer synopsising Howard Gillman’s approach to understanding the judicial role and judicial decisionmaking observed, “[J]udges are profoundly influenced by the institutional settings in which they find themselves.” Frederick Schauer, ‘Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior’ (1999) 68 University of Cincinnati Law Review 615, 617. See further, Howard Gillman, ‘The New Institutionalism, Part I: More and Less than Strategy: Some Advantages to Interpretive Institutionalism in the Analysis of Judicial Politics’ (1997) 7 Law and Courts 6. 2 Schauer (n 1) 617. Brace and Gann Hall elaborate on the importance of understanding the institutional context: A complete model of judicial decision making must consider the manner in which institutions influence individuals and mediate the effects of the environment. To understand fully the effects of institutions on judicial decision making requires a comparison of the decisions of courts with varying institutional structures over time.

Paul Brace and Melinda Gann Hall, ‘Neo-Institutionalism and Dissent in State Supreme Courts’ (1990) 52 The Journal of Politics 54, 67

Hönnige and Gschwend, analysing the Bundesverfassungsgericht, the German Federal Constitutional Court, emphasise the importance of understanding the institutional context in which it operates: “[T]he court should be understood as being embedded in an area of competing interests among government, opposition, courts, litigating citizens and public opinion.” Christoph Hönnige and Thomas Gschwend, ‘Das Bundesverfassungsgericht Im Politischen System Der BRD–Ein Unbekanntes Wesen?’ (2010) 51 Politische Vierteljahresschrift 507. Bainbridge and Gulati call for a new model of judicial behaviour altogether based on “an institutional perspective . . . one that links doctrinal developments to the characteristics of the institutions that produce them.” Stephen M Bainbridge and G Mitu Gulati, ‘How Do Judges Maximize - the Same Way Everybody Else Does Boundedly: Rules of Thumb in Securities Fraud Opinions’ (2002) 51 Emory Law Journal 83, 89. On the other hand, Epstein argues that the major theories and models of judicial behaviour already bear institutions in mind. The attitudinal, strategic, labour market and legal models, she observes, “overlap in one crucial respect: each emphasizes institutions.” Lee Epstein, ‘How Institutions Structure Judicial Behaviour: An Analysis of Alarie and Green’s Commitment and Cooperation on High Courts: A Cross-Country Examination of Institutional Constraints on Judges’ (2019) 69 University of Toronto Law Journal 275.

186

DECISION-MAKING IN INSTITUTIONAL CONTEXT

and expert witnesses all interact with judges and influence their work. Moreover, a court’s customs, rules and modes of operating may all have a bearing on judicial decision-making too. We will call these in-court influences. Beyond the courtroom, there is an additional, wider institutional context that also has a bearing on a judge’s work. This broader sphere of influence broadly comprises the political framework and the public in which judges operate. For instance, judges may engage in a sort of dialogue with other courts in their judicial system, with other branches of government, the public or the media, or their fellow judges in other jurisdictions. Equally, these other institutions and groups may have a top-down influence on how judiciaries operate, thereby affecting case outcomes. We will call these influences on judicial decision-making beyond-court influences. They are the subject of the next chapter, chapter 7. Returning to the present focus of this chapter, the in-court influences that will be addressed here are: • the influence different courtroom actors have on judges’ decision-making, taking lawyers, judicial assistants and expert witnesses each in turn, and • the influence different courts’ operations and procedures have on judicial decisionmaking. Specifically, we will consider the effects of different trial modes, comparing adversarial versus inquisitorial methods; the effects of judicial specialisation; the effects of different rules and procedures operated by panel courts, including considerations of discretionary jurisdiction, panel composition and panel deliberation; and finally, the effects of courtroom layout and design. We turn first to how different actors in the courtroom influence judicial decisionmaking. 6.1  Actors in the courtroom and their influence on judicial decision-making Judges do not work alone.3 In any courtroom drama, there is a cast of actors, including lawyers, judicial assistants and expert witnesses. Judges interact with and are influenced by all of them to varying extents. Judges must, of course, listen to lawyers and expert witnesses, and read and weigh up their submissions. And they may sound out their assistants for their input on cases. To fully understand judicial decision-making, therefore, we must understand how these actors influence judges’ thinking. A lawyer’s compelling oral argument, particularly excellent analysis from an expert witness or a well-crafted line of reasoning in a judicial assistant’s email to their judge may well be the difference between a particular litigant winning or losing. First, our attention turns to lawyers’ influence. How do different interactions between lawyers and judges, either in writing or in oral argument, affect judicial outcomes? 6.1.1 Lawyers’ influence A litigation lawyer’s goal is to persuade a judge towards a favourable outcome for their client. Presumably (and they must surely hope!), lawyers’ performance matters for judicial 3 Artemus Ward, ‘Law Clerks’ in Lee Epstein and Stefanie A Lindquist (eds), The Oxford Handbook of US Judicial Behavior (Oxford University Press 2017) 100.

187

DECISION-MAKING IN INSTITUTIONAL CONTEXT

outcomes. Although some judges have argued that this is not always the case,4 empirical evidence suggests that having legal representation generally correlates with a higher likelihood of success.5 For instance, many studies show that in civil law cases, litigants with lawyers fare better than those without them. In a comprehensive meta-analysis of 45 archival studies on the relationship between lawyer representation and civil law case outcomes in the US, Sandefur reported that having a lawyer increased the likelihood of winning by a substantial margin, some 540%.6 However, although having a lawyer generally correlated with improved chances in the courtroom, this was more to do with lawyers’ abilities to help clients navigate complex procedures rather than their ability to deal with complex substantive law.7 In fact, the positive effects of having a lawyer were dampened in more substantively complex cases. Similarly, Poppe and Rachlinski found that across a wide range of areas of civil disputes in the US – housing, governmental benefits, family law, employment law, small claims, tax, bankruptcy and torts – having a lawyer correlated with better outcomes.8 In a criminal law context, particularly in serious criminal matters, legal representation in one form or another is, in most jurisdictions, usually the norm. Therefore, scholars have not been able to directly study comparisons between defendants with and without legal representation at criminal trials, although some studies report that the quality and experience of lawyers can affect outcomes.9 Furthermore, studies demonstrate that experienced lawyers fare better than less-experienced colleagues in leading apex courts, including the South African Supreme Court of Appeal, the Supreme Court of Canada, the US Supreme Court and the House of Lords.10

4 Associate Justice of the US Supreme Court John Rehnquist (as he then was) opined that legal representation was not of much use to litigants in veterans’ disability cases: “[O]nly the rare case turns on a question of law . . . [there is] no adequate showing of the effect the availability of lawyers would have on the proper disposition of these cases.” Walters v National Association of Radiation Survivors 473 U.S. 305 (1985), 330 and 331. 5 There is some limited empirical evidence to suggest that lawyering up may sometimes not be of any benefit in some situations. Greiner and Wolos Pattanayak showed that legal representation by a well-regarded law school clinic did not have any effect on the probability that a client would succeed in unemployment benefit cases before administrative law judges in Massachusetts. James Grenier and Cassandra Wolos Pattanayak, ‘Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make’ (2011) 121 Yale Law Journal 2118. 6 Rebecca L Sandefur, ‘Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact’ (2015) 80 American Sociological Review 909, 921. 7 Ibid. 8 Emily S Taylor Poppe and Jeffrey J Rachlinski, ‘Do Lawyers Matter? The Effect of Legal Representation in Civil Disputes’ (2015) 43 Pepperdine Law Review 881. 9 James M Anderson and Paul Heaton, ‘How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes’ (2012) 122 Yale Law Journal 154; David S Abrams and Albert H Yoon, ‘The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability’ (2007) 74 University of Chicago Law Review 1443; Kevin T McGuire, ‘Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success’ (1995) 57 The Journal of Politics 187. 10 Stacia L Haynie and Kaitlyn L Sill, ‘Experienced Advocates and Litigation Outcomes: Repeat Players in the South African Supreme Court of Appeal’ (2007) 60 Political Research Quarterly 443; John Szmer, Susan W Johnson and Tammy A Sarver, ‘Does the Lawyer Matter? Influencing Outcomes on the Supreme Court of Canada’ (2007) 41 Law & Society Review 279; Andrea McAtee and Kevin T McGuire, ‘Lawyers, Justices, and Issue Salience: When and How Do Legal Arguments Affect the U.S. Supreme Court?’ (2007) 41 Law & Society Review 259; Chris Hanretty, ‘Haves and Have-Nots before the Law Lords’ (2014) 62 Political Studies 686.

188

DECISION-MAKING IN INSTITUTIONAL CONTEXT

It seems, then, that as a general proposition, litigants with lawyers seem to fare better than those without lawyers do.11 However, that does not inform how lawyers influence judges’ thinking and how they steer them towards particular case outcomes. Consequently, researchers have analysed the two primary and direct modes of interaction between lawyers and judges – written submissions and oral argument – to see if and how they are effective.12 6.1.1.1 Lawyers’ written submissions Written submissions afford lawyers an uninterrupted, direct line of communication to judges to convince them of why their argument should win the day.13 Written submissions have been described as the “main element in the decision-making process,”14 as mattering “every bit as much” as oral argument15 and as carrying the “lion’s share of the persuasion load.”16 Paul Michel, a judge on the US Court of Appeals for the Federal Circuit, reported that “in about 80 percent of all appeals, I reach a firm inclination just from reading the briefs.”17 US Supreme Court Justice Ruth Bader Ginsburg described the primacy of briefs and how they are more important than other written material such as lower court judgments, amicus briefs and transcripts from oral arguments are.18 Fellow US Supreme Court Justice Clarence Thomas reported along similar lines: “[I]in my view, most of the heavy lifting, most of the work, is done in the written briefs, written arguments by the parties.”19 Researchers have empirically tested the relationship between written submissions and judgments of the US Supreme Court.20 Some compare the text in lawyers’ written submissions with the text of judgments to see if they match up. Effectively, these studies investigate whether judges plagiarise lawyers’ submissions. For example, Corley analysed majority judgments of the US Supreme Court from the 2002 to 2004 terms using plagiarism software, to see what percentage of the written judgments drew from the language in parties’ briefs. Although there was considerable variation among the judges, on average, 10% of the judgments’ language came from briefs.21 The Court’s judgments 11 Sandefur suggested that by simply having a lawyer, this lends credibility to a litigant’s claim: “lawyers appear to affect outcomes because their presence on a case acts as an endorsement of its merits.” Sandefur (n 6) 910. 12 Lawyers can of course dialogue with judges about cases in other ways; they may be invited for informal conversations with judges in their chambers about resolving cases, for instance. 13 US Supreme Court Justice Samuel Alito pointed out the significance and importance of a well-drafted, convincing written submission by counsel: “What I am looking for in briefs is a roadmap for me to follow in deciding the case.” Samuel A Alito Jr. and others, ‘The Inaugural William French Smith Memorial Lecture: A Look at Supreme Court Advocacy with Justice Samuel Alito’ (2008) 35 Pepperdine Law Review 465, 469. 14 Adam Feldman, ‘A Brief Assessment of Supreme Court Opinion Language, 1946–2013’ (2017) Mississippi Law Journal 105, 121. 15 Jonathan Crow QC, interview in Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Bloomsbury Publishing 2013) 47. 16 Mark R Kravitz, ‘Written and Oral Persuasion in the United States Courts: A District Judge’s Perspective on Their History, Function, and Future’ (2009) 10 Journal of Appellate Practice and Process 247, 268. 17 Paul R Michel, ‘Effective Appellate Advocacy’ (1998) 24 Litigation 19, 21. 18 Ruth Bader Ginsburg, ‘Remarks on Appellate Advocacy Art of Advocacy’ (1998) 50 South Carolina Law Review 567, 567. quoted in Brian Lamb, Susan Swain and Mark Farkas, The Supreme Court: A C-Span Book Featuring the Justices in Their Own Words (Public Affairs 2011) 70. 19 As quoted in Lamb, Swain and Farkas (n 18) 70. 20 Pamela C Corley, ‘The Supreme Court and Opinion Content: The Influence of Parties’ Briefs’ (2008) 61 Political Research Quarterly 468; Feldman, ‘A Brief Assessment of Supreme Court Opinion Language, 1946–2013’ (n 14). 21 Corley (n 20) 472.

189

DECISION-MAKING IN INSTITUTIONAL CONTEXT

tended to rely more on briefs written by more experienced lawyers than on those written by less experienced lawyers.22 The researcher concluded that the connection between the language of the parties’ briefs and judgments demonstrated that the parties had the potential to influence the law.23 A later study by Feldman expanded the enquiry to a much larger dataset; all US Supreme Court cases between 1946 and 2013.24 Like the earlier study, judgments shared around 10% of their language with briefs, although there was considerable variation (occasionally as high as 59%).25 The study also found that the Court’s judgments relied more on petitioners’ briefs rather than on respondents’ briefs and that judges were slightly more likely to draw from briefs that were aligned to their own political ideology.26 The extent to which judges relied on language from briefs differed among different case types. Judges relied on briefs in cases dominated by statute, such as tax cases, to a greater extent than they did in constitutional cases dealing with civil liberties, for instance.27 Like Corley, Feldman also found that judges relied more on language from briefs written by experienced lawyers than they did on language from briefs written by novice lawyers.28 In a separate work, Feldman further noted scholarship that suggests that judges may rely more on the language in briefs written by lawyers with whom they have an established, working relationship.29 Overall, Feldman concluded that briefs are an essential resource for deciding cases on the Court.30 Lawyers, judges and researchers all agree that judges on the US Supreme Court heavily rely upon lawyers’ submissions when deciding cases, and these text analysis studies show by precisely how much. The same analysis could be performed on other courts, to investigate how lawyers’ written submissions influence judges’ decisions elsewhere. As text analysis methods become evermore sophisticated, researchers could investigate what kinds of written arguments tend to be more persuasive and impressive to judges than others are. What verbs, phrases and writing styles are more likely to win the day? If, as current Chief Justice of the US Supreme Court John Roberts observes, “[L]anguage is the central tool” of the judicial trade, then understanding what language works and what does not would be valuable knowledge for litigants, their lawyers and judges alike.31 6.1.1.2 Oral argument If written submissions are crucial to the decision-making process, are oral submissions at hearing little more than window dressing with little influence on case outcomes? Or are they sometimes, maybe often, the difference between winning and losing? Can a 22 Ibid. 470. 23 Ibid. 477. 24 Feldman, ‘A Brief Assessment of Supreme Court Opinion Language, 1946–2013’ (n 14). 25 Ibid. 131. 26 Ibid. 140 and 145. 27 Ibid. 143. 28 Ibid. 142. See also Adam Feldman, ‘Who Wins in the Supreme Court?: An Examination of Attorney and Law Firm Influence’ (2016) 100 Marquette Law Review 429. 29 Adam Feldman, ‘Opinion Construction in the Roberts Court’ (2017) 39 Law & Policy 192, 195. See further on this point, Paul M Collins Jr., ‘Friends of the Court: Examining the Influence of Amicus Curiae Participation in US Supreme Court Litigation’ (2004) 38 Law & Society Review 807; Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (Vintage Books 1988). 30 Feldman, ‘A Brief Assessment of Supreme Court Opinion Language, 1946–2013’ (n 14) 149. 31 Bryan Garner, ‘Interviews with United States Supreme Court Justices’ (2010) 13 The Scribes Journal of Legal Writing 5.

190

DECISION-MAKING IN INSTITUTIONAL CONTEXT

convincing speech by a lawyer persuade a judge toward a different decision than they had in mind? Shifting perspectives, how do judges use oral argument to acquire better information to refine their decision? Or, even, might judges subtly steer lawyers’ arguments in particular directions to serve their own preferred political or ideological preference in a case? Of course, a great deal hinges on how central oral argument is to each court’s operations. Depending on a court’s rules and procedures, judges may rely on oral argument to greater or lesser degrees to make decisions. On lower courts with higher caseload volumes, oral argument may be the most significant opportunity to persuade a judge, whereas on upper courts, oral argument will be but one of many information sources for the judge. Written submissions, separate submissions for leave to appeal, lower court judgments, amicus curiae briefs and possibly even media commentary may all have a bearing alongside oral argument, for instance. It is important, therefore, to bear in mind that oral argument may affect judges’ thinking and decision-making to greater and lesser extents depending on the court and the context. Leading judges debate the significance of oral argument. US Supreme Court Justice Antonin Scalia once suggested that oral argument was little more than a “dog and pony show,” although he later tempered his view, acknowledging that it can put things into perspective that cannot be in a written brief.32 On the other hand, his colleague John Roberts described oral argument as terribly important,33 how judges can be aggressively sceptical about arguments in a case before hearing, but that during oral argument, “doors begin to close” on alternative arguments and the “luxury of scepticism” yields “to the necessity of decision.”34 Another colleague, Ruth Bader Ginsburg, emphasised the pitfalls of oral argument: “[N]ot many cases, it is true, are won on the oral argument alone, but a case can be lost if a lawyer is unable or unwilling to answer a justice’s case question honestly and persuasively.”35 Leading judges on the House of Lords and its successor, the UK Supreme Court, have also held contrasting views on the significance of oral argument. According to a leading biography on Law Lord Kenneth Diplock, he “really didn’t have much time for advocacy.”36 On one occasion, for instance, Diplock announced to lawyers at a hearing that the result of the case was not going to change.37 On the other hand, Paterson described Law Lord and later President of the UK Supreme Court Tom Bingham as a “strong believer in the value of oral advocacy” who established a conversational style to proceedings.38 Contrasting views on its significance aside, oral hearings are more public and transparent than many other parts of the judicial process. It is no surprise, therefore, that researchers have taken to analysing how oral argument may affect judicial decisions. Much of 32 David M O’Brien, Storm Center: The Supreme Court in American Politics (WW Norton & Company 2008) 260. 33 John G Roberts Jr., ‘Oral Advocacy and the Re-Emergence of a Supreme Court Bar’ (2005) 30 Journal of Supreme Court History 68, 69. 34 Ibid. 70. 35 Ruth Bader Ginsburg, ‘Foreword’ in David C Frederick (ed), The Art of Oral Advocacy (West Publishing 2003) x. 36 Stephen Sedley and Godfray Le Quesne, ‘Diplock, (William John) Kenneth, Baron Diplock (1907–1985), Judge’ accessed 17 July 2020. 37 Paterson (n 15) 36. 38 Ibid. 38.

191

DECISION-MAKING IN INSTITUTIONAL CONTEXT

this research is relatively recent, with studies generally suggesting that oral argument can indeed sometimes play a pivotal role in leading courts’ decision-making processes. Oral argument affords litigants and their representatives an excellent opportunity to give life to arguments that are perhaps presented more dryly in written submissions. Excellent, impassioned oral advocacy is often described as an art, not a science.39 Judges, on occasion, can even be moved to tears by a compelling oral argument by an excellent advocate and often self-report how often enough, even to their own surprise, oral argument persuades them to decide a case differently to the way they were inclined to before the hearing.40 US Supreme Court Justice John Harlan, for instance, writing extrajudicially in 1955, described how he kept an informal scoreboard in the earlier stages of his career on the US Court of Appeals for the Second Circuit, comparing his pre-hearing to post-hearing positions on cases. He described his astonishment at how frequently his views changed after oral argument, while insightfully observing that different judges work differently; some listen better than they read and are more receptive to the spoken word than they are to the written word.41 Researchers have investigated the significance of oral argument as a means of persuading judges towards particular decisions. A series of studies by Timothy Johnson and various colleagues on the US Supreme Court presents compelling evidence that oral argument does indeed make a difference in how cases are decided. In a study reviewing oral arguments and corresponding decisions by the Court between 1946 and 1985, Johnson showed that information presented during oral argument but not presented in written briefs often made its way into judgments, a marker of oral arguments’ significance.42 A significant number (although never the majority) of the issues that judges addressed in their decisions originated exclusively from oral arguments.43 Oral arguments were, therefore, a unique source of information that affected decisions, Johnson concluded. Aside from oral argument as a source of new information that influences decisionmaking, Johnson and his colleagues Wahlbeck and Spriggs drew from a unique data source to investigate the effects of oral argument: the private notes of US Supreme Court Justice Harry Blackmun.44 Blackmun’s notes provided informal, but systematic, ratings of the quality of lawyers’ oral arguments in the cases he decided. Even after controlling for many variables – legal variables, Blackmun’s own ideological proclivity and the background characteristics of lawyers that appeared before him (whether they were former clerks of the Court, for instance) – his ratings on the quality of lawyers’ oral arguments held true, and correlated with his decisions. His ratings significantly predicted not only 39 John M Harlan, ‘What Part Does the Oral Argument Play in the Conduct of an Appeal?’ (1955) 41 Cornell Law Quarterly 6, 7; William H Rehnquist, ‘Oral Advocacy: A Disappearing Art’ (1983) 35 Mercer Law Review 1015; Robert H Jackson, ‘Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations’ (1951) 37 American Bar Association Journal 801, 863; David C Frederick, The Art of Oral Advocacy (West Group 2003). 40 Timothy Johnson and Thomas Pryor, ‘Oral Argument’ in Robert M Howard and Kirk A Randazzo (eds), Routledge Handbook of Judicial Behavior (Routledge 2017) 221. 41 Harlan (n 39) 6. 42 Timothy R Johnson, Oral Arguments and Decision Making on the United States Supreme Court (SUNY Press 2004) ch 5. 43 Ibid. 99–102. 44 Timothy R Johnson, Paul J Wahlbeck and James F Spriggs, ‘The Influence of Oral Arguments on the US Supreme Court’ (2006) 100 American Political Science Review 99.

192

DECISION-MAKING IN INSTITUTIONAL CONTEXT

his own decision-making, but also how the entire Court would ultimately rule in the case. Johnson and his colleagues suggested that their analysis indicated that “oral arguments do indeed enter into Supreme Court decision making.”45 Ringsmuth, Bryan and Johnson also drew from the personal notes of judges on the Supreme Court, this time the notes of Blackman and fellow US Supreme Court Justice Lewis Powell, to further investigate how oral argument can nudge the Court toward particular decisions.46 The researchers’ examination of the judges’ notes showed that their position in cases shifted in a significant minority of cases as a result of oral argument, leading to the conclusion that oral arguments played a distinct and vital role in the judges’ decision-making process.47 Aside from archival research, role analysis studies offer judges’ own self-reflection and perspectives from the bench. During the 1980s, two US Court of Appeals judges for the Eighth Circuit, Myron Bright and Richard Arnold, decided to keep a score on the merit and influence oral arguments had in each case they heard for ten months.48 They kept track of whether they thought the oral argument was necessary, whether it was helpful, and if it changed their minds in cases. They found that oral argument was both necessary and helpful between 75% and 85% of the time. They also found that oral argument changed, or maybe changed, their minds between 17% and 31% of the time.49 Although limited in scope to the two judges involved, this study was nevertheless illuminating, underscoring how judges may change their minds after oral argument. Paterson’s interview studies of UK judges on the House of Lords and their successors on the UK Supreme Court also provided telling insights on the influence of oral argument there.50 Notably, all of the Law Lords and Supreme Court judges that Paterson interviewed said that they had changed their mind during oral argument at least once and that this was not an infrequent occurrence for some judges.51 However, interviewing several top lawyers that appeared before these courts, Paterson found to his surprise that many of them were sceptical about whether and how often oral argument made a difference. For example, Jonathan Sumption QC, as he then was, and later a UK Supreme Court judge, opined that oral argument never made the difference between litigants’ success and failure but that it could make a difference to the reasoning of decisions.52 Paterson reflected on this important nuance: oral argument is “not just about persuasive advocacy to win the case but whether the input from counsel in the adversarial setting assists in the attainment of the final decision.”53 He further observed that good lawyers should provide a sounding board for judges’ ideas, acting as partners in the decision-making process alongside them.54 Former president of the UK Supreme Court Tom Bingham, writing extrajudicially, further elaborated on this two-way dialogue between lawyer and judge. During oral argument, 45 Ibid. 112. 46 Eve M Ringsmuth, Amanda C Bryan and Timothy R Johnson, ‘Voting Fluidity and Oral Argument on the US Supreme Court’ (2013) 66 Political Research Quarterly 429. 47 Ibid. 436. 48 Myron H Bright and Richard S Arnold, ‘Oral Argument: It May Be Crucial’ (1984) 70 ABA Journal 68. 49 Ibid. 70. 50 Paterson (n 15). And, before that, Alan Paterson, The Law Lords (MacMillan 1982). 51 Paterson (n 15) 50. 52 Ibid. 49. 53 Ibid. 63. 54 Ibid. 64.

193

DECISION-MAKING IN INSTITUTIONAL CONTEXT

he described how “you have [the judge’s] attention. Any discussion of this kind involves an engagement, if not a meeting, of minds. It is your best opportunity to persuade.”55 A final experimental strand of research investigates how subtle differences in the language lawyers use during oral argument can affect decision-making. In one experimental study, Schmid and her colleagues demonstrated how mock jurors (rather than practising judges) perceived protagonists in mock criminal trials differently depending on subtle grammatical choices that lawyers made in their argument.56 Participants were split into groups, all hearing slightly different versions of the same basic closing arguments. By manipulating the predicates (that is, the part of a sentence or a clause that contains a verb and tells you something about the subject) used to describe protagonists in the case narrative, mock jurors’ perceptions of guilt or innocence were affected.57 The above research demonstrates how lawyers’ oral arguments can persuade judges towards particular decisions. Changing perspective, how do judges themselves use oral argument to their advantage, or even to take control of the narrative to steer it towards their desired outcome? Aside from oral argument being an opportunity for lawyers to persuade judges, vice versa, judges can use oral hearings to their own advantage – to glean information, to probe issues and to test the limits of a lawyer’s legal argument58 and even to deliver messages to their colleagues on judicial panels about which way they are thinking.59 On apex courts, judges mindful that their decision will set a precedent may subtly steer lawyers towards particular positions. Chief Justice of the Irish Supreme Court, Frank Clarke remarked, “[A] judge who feels you ought to win will look for a way for you to win . . . they will be more persuadable to that legal position.”60 Miller and Barron investigated this dynamic on the US Supreme Court, identifying specific instances during notable cases where judges took charge of dialogue with lawyers in order to “subtly steer counsel beyond the frontiers of traditional doctrine.”61 Judges may use oral argument to acquire further information beyond that contained in written submissions and, if applicable, in the lower court’s decision.62 Some studies 55 Lord Bingham, ‘The Role of an Advocate in a Common Law System,’ Lecture delivered at Gray’s Inn on 6 October 2008. 56 Jeannette Schmid and others, ‘Taking Sides with the Defendant: Grammatical Choice and the Influence of Implicit Attributions in Prosecution and Defense Speeches’ (1996) 12 International Journal of Psycholinguistics 127. 57 Ibid. 145. 58 Lawrence Wrightsman, Oral Arguments before the Supreme Court: An Empirical Approach (Oxford University Press 2008) ix. 59 One lawyer, with considerable experience appearing before the US Supreme Court, described this dynamic rather colourfully: “[S]ometimes I think I am a post office. I think that one of the Justices wants to send a message to another Justice and they are essentially arguing through me.” Timothy R Johnson, Ryan C Black and Justin Wedeking, ‘Pardon the Interruption: An Empirical Analysis of Supreme Court Justices’ Behavior During Oral Arguments’ (2009) 55 Loyola Law Review 331, 335. See generally, Ryan C Black, Timothy R Johnson and Justin Wedeking, Oral Arguments and Coalition Formation on the US Supreme Court: A Deliberate Dialogue (University of Michigan Press 2012). 60 Chief Justice Frank Clarke, in conversation at the Spring Discourse of the Irish Association of Law Teachers, Sutherland School of Law, UCD, 25 April 2018. 61 Arthur Selwyn Miller and Jerome A Barron, ‘The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry’ (1975) 61 Virginia Law Review 1187, 1210. They describe how judges “by implication and by the substantive content of their questions, suggest to counsel their willingness to venture into new questions and to chart new constitutional doctrine.” 62 Johnson and Pryor (n 40) 224.

194

DECISION-MAKING IN INSTITUTIONAL CONTEXT

demonstrate that US Supreme Court judges raise questions during oral argument that go beyond the issues discussed in written submissions to the Court.63 In particular, judges use oral argument to glean information about what the policy implications would be if they were to rule in a particular way, and about the preferences of political institutions such as Congress, for instance.64 This, argue Johnson and Pryor, makes oral argument “a pivotal step” in the Court’s decision-making process, allowing them to seek out additional information about how external institutions and actors might respond to their proposed decision.65 Aside from studies investigating the effect of oral argument on specific judicial outcomes, researchers have also used data from oral argument to understand different elements of the court process. For example, Tutton, Mack and Roach Anleu undertook an insightful study of judges’ demeanour during oral hearings on the Australian High Court.66 Returning to the US Supreme Court, Jacobi and Sag demonstrated how judges have become dramatically more vocal during oral argument in recent years; more likely to interrupt, to interject, and to offer their views.67 This, argued Jacobi and Sag, is a new form of judicial advocacy on that Court. Researchers have also used data from oral argument on the US Supreme Court to demonstrate gender-related effects. Women judges were more frequently interrupted than their male colleagues,68 as were women lawyers appearing before that Court.69 Other studies also use different data from oral arguments to predict case outcomes. For example, the way judges intonate during oral argument on the US Supreme Court can predict case outcomes: the more a judge’s vocal pitch heightens when addressing lawyers, the more likely it is that that lawyer will lose the case.70 Others have shown how judges’ utterances during oral argument – the level and nature of interruption, and the number of questions – can be used to predict case outcomes, going some of the way to substantiate US Supreme Court Chief Justice Roberts’s claim that “the secret to successful advocacy is simply to get the Court to ask your opponent more questions”.71 Oral argument, it would appear, does influence judicial decision-making, at least some of the time. Some judges describe how they are particularly receptive to arguments made 63 Johnson (n 42); James C Phillips and Edward L Carter, ‘Source of Information or Dog and Pony Show: Judicial Information Seeking during US Supreme Court Oral Argument, 1963–1965 & 2004–2009’ (2010) 50 Santa Clara Law Review 79; Eve M Ringsmuth and Timothy R Johnson, ‘Supreme Court Oral Arguments and Institutional Maintenance’ (2013) 41 American Politics Research 651. 64 Ringsmuth and Johnson (n 63). 65 Johnson and Pryor (n 40) 225. 66 Jordan Tutton, Kathy Mack and Sharyn Roach Anleu, ‘Judicial Demeanor: Oral Argument in the High Court of Australia’ (2018) 39 Justice System Journal 273. 67 Tonja Jacobi and Matthew Sag, ‘The New Oral Argument: Justices as Advocates’ (2018) 94 Notre Dame Law Review 1161. 68 Tonja Jacobi and Dylan Schweers, ‘Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments’ (2017) 103 Virginia Law Review 1379. 69 Dana Patton and Joseph L Smith, ‘Lawyer, Interrupted: Gender Bias in Oral Arguments at the US Supreme Court’ (2017) 5 Journal of Law and Courts 337. 70 Bryce J Dietrich, Ryan D Enos and Maya Sen, ‘Emotional Arousal Predicts Voting on the US Supreme Court’ (2019) 27 Political Analysis 237. On judging and emotion, see Section 2.4 Judging and emotion. 71 Tonja Jacobi and Kyle Rozema, ‘Judicial Conflicts and Voting Agreement: Evidence from Interruptions at Oral Argument’ (2018) 59 Boston College Law Review 2259; Lee Epstein, William M Landes and Richard A Posner, ‘Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument’ (2010) 39 The Journal of Legal Studies 433; Roberts Jr. (n 33) 75; Johnson, Black and Wedeking (n 59).

195

DECISION-MAKING IN INSTITUTIONAL CONTEXT

at oral hearing. Others demonstrate how judges use oral argument as an informationgathering exercise. Former Chief Justice of the US Supreme Court William Rehnquist once observed that after oral arguments he sometimes left “feeling different about the case than I did when I came on the bench. The change is seldom a full 180-degree swing.”72 The research bears this out, suggesting that while oral argument often plays a significant part in a judge’s decision-making, it more often refines a judge’s thinking, rather than fundamentally changes their position on which side should win a case. 6.1.1.3 Lawyers’ characteristics One final consideration regarding lawyers’ influence on judicial decision-making is research on how lawyers’ innate personal characteristics may correlate with different judicial outcomes. As noted in chapter 5, US judge Joseph Bradley claimed that the “natural . . . timidity and delicacy” of women made them unfit “for many of the occupations of civil life,” including roles in the legal professions.73 Notwithstanding how preposterous such a statement may seem in the 21st century, some empirical research suggests that some level of sexism unfortunately prevails in some courtrooms, working against women lawyers. One archival study on the US Supreme Court found that, after controlling for several factors, including the gender of judges, women lawyers were less likely to receive a favourable decision from judges than the male lawyers they opposed at oral argument were.74 In addition, conservative judges were more likely than their liberal counterparts were to decide against litigants represented by women lawyers. On the other hand, women lawyers appearing before the US Supreme Court and US courts of appeals were found to be more successful than their male colleagues were in cases involving so-called ‘women’s issues’.75 A study on the Supreme Court of Canada found that women lawyers fared better than their male colleagues did when gender parity existed in terms of the number of lawyers appearing before the Court and the number of clerks serving on the Court at that time.76 It seems, then, that a lawyer’s gender may have an effect, at least on these leading North American courts. Mock juror experimental studies have also found that lawyers’ race can be a factor in assessing their defendant clients’ guilt, all else being equal. One study found that mock jurors were more likely to find defendants represented by black lawyers guilty than they were to find defendants represented by white lawyers guilty.77 Of course, this is a study relying on a sample of mock jurors from one particular jurisdiction. Whether a similar effect would emerge testing on practising judges is a matter of speculation. 72 William H Rehnquist, The Supreme Court: How It Was, How It Is (William Morrow and Company 1987) 176. 73 Bradwell v Illinois, 83 U.S. 130 (1873), 141. 74 John J Szmer, Tammy A Sarver and Erin B Kaheny, ‘Have We Come a Long Way, Baby? The Influence of Attorney Gender on Supreme Court Decision Making’ (2010) 6 Politics & Gender 1. 75 John Szmer and others, ‘The Impact of Attorney Gender on Decision Making in the United States Courts of Appeals’ (2013) 34 Journal of Women, Politics & Policy 72; Szmer, Sarver and Kaheny (n 74). 76 Erin B Kaheny, John J Szmer and Tammy A Sarver, ‘Women Lawyers before the Supreme Court of Canada’ (2011) 44 Canadian Journal of Political Science/Revue canadienne de science politique 83; Erin B Kaheny and others, ‘High Court Recruitment of Female Clerks: A Comparative Analysis of the US Supreme Court and the Supreme Court of Canada’ (2015) 36 Justice System Journal 355. 77 David L Cohen and John L Peterson, ‘Bias in the Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts’ (1981) 9 Social Behavior and Personality: An International Journal 81.

196

DECISION-MAKING IN INSTITUTIONAL CONTEXT

We now turn to another important, but sometimes overlooked actor in the courtroom: the judicial assistant. 6.1.2 Judicial assistants’ influence How do judicial assistants (judicial clerks in North America) influence judges’ decisionmaking?78 Judicial assistants can be crucial actors in a supporting role in the courtroom drama, and their work can permeate critical stages of the judicial process. To briefly introduce their potential for influence, on appellate courts with discretionary jurisdiction (that is, courts who select which cases to decide), judicial assistants may act as a gatekeeper on which appeal cases ought to be heard. Before hearings, they may prepare materials for their assigned judge, read briefs for them, and suggest laws and case precedents for them to consider. At hearings, judicial assistants often shadow their judge, directly assisting them in the courtroom. After hearings, they may act as a sounding board for their judge as deliberations get underway, and they may undertake further research at this critical juncture. Some judges ask their assistants how they think cases ought to be decided and even task them with writing first drafts of judgments. Therefore, judicial assistants’ influence on the judicial process can be considerable, and scholars have concocted all manner of emotive monikers to describe them: “sorcerers’ apprentices,”79 “legal Rasputins”80 and “puppet masters,”81 being the pick of the bunch. These provocative characterisations of judicial assistants are of course just that. Nevertheless, research findings demonstrate that judicial assistants do indeed affect different stages of the judicial process and, sometimes shape the decisions of the judges they serve.82 Swanson and Wasby, speaking to the experience of clerks on US courts, observed that “the express role of law clerks is to affect the behaviour” of judges.83 That may be more true in some courts than it is of others because the level of judicial assistants’ involvement at different stages of the judicial decision-making process varies considerably from one court to the next. It can even vary from one judge to another on the same court, owing to the highly individualised relationships between judges and their assistants.84 Moreover, lines 78 For present purposes, this section will generally use the term “judicial assistant” to describe those who directly and generally assist judges in their work (variously referred to in different courts and jurisdictions as “legal clerk,” “judicial clerk,” “secretariats” and “referendaires”). 79 Artemus Ward and David L Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York University Press 2006). 80 William H Rehnquist, ‘Who Writes Decisions of the Supreme Court?’ (1957) Brief 89; Adam Bonica and others, ‘Legal Rasputins? Law Clerk Influence on Voting at the US Supreme Court’ (2019) 35 The Journal of Law, Economics, and Organization 1. 81 Todd C Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Stanford University Press 2006) 2. 82 The question, of course, is whether judicial assistants accrue too much influence. A young former clerk of the US Supreme Court writing in 1957, William Rehnquist – later, of course, Chief Justice of that Court – was among the first to charge that clerks there may have undue influence over their judges. Rehnquist, ‘Who Writes Decisions of the Supreme Court?’ (n 80). Where judicial assistants play a role in the decision-making process, this may amount to an improper abdication of the responsibility by the judge, according to one leading researcher on this topic, Ward (n 3) 102. 83 Rick A Swanson and Stephen L Wasby, ‘Good Stewards: Law Clerk Influence in State Hugh Courts’ (2008) 29 Justice System Journal 24, 25. 84 Wrightman observes, for instance, “[T]he relationship between judge and clerk is individualized, and no general statement of degree of influence can be made.” Lawrence S Wrightsman, ‘Persuasion in the Decision

197

DECISION-MAKING IN INSTITUTIONAL CONTEXT

can become blurred between judicial assistants who shadow an assigned judge and act in an entirely assistive capacity, all the way through to staff who serve as quasi-judges, such as Rechtspfleger in Germany and Austria, who sometimes supplant judges to perform specific judicial duties and functions. This section is only concerned with judicial assistants who are assigned to specific judges in an assistive capacity. It is not concerned with court staff who have designated, explicit decision-making functions. While the US has a long tradition of reliance on judicial clerks since the 1880s, other jurisdictions, particularly in Europe, have since followed suit.85 What follows is a review of empirical research on how judicial assistants affect judges’ decision-making.86 This research often concerns judicial clerks on US courts, although their counterparts in the UK, Ireland and the Netherlands have also been the subject of scholarly work. Most studies are archival and, as emphasised numerous times elsewhere, it can be difficult to directly attribute differences in judges’ decision-making to one particular variable – in this case, the influence of judicial assistants. Complementing archival research studies are role analysis studies surveying and interviewing judges and their assistants, asking them to self-report how judicial assistants affect the judicial process. This mode of research has its own limitations because participants may be circumspect or not entirely accurate in their responses. The remainder of this section is broken down into the different contexts in which judicial assistants can affect different stages of the judicial process: their role in deciding which cases ought to be heard by appellate courts with discretionary jurisdiction, their role and activities before, during and in the immediate aftermath of hearings and their role in sometimes writing draft judgments. The first context – judicial assistants’ role in deciding which cases should be heard by courts with discretionary jurisdiction – will now be considered. 6.1.2.1 Judicial assistants as gatekeepers on courts with discretionary jurisdiction Appellate courts with discretionary jurisdiction must decide which appeal cases ought to be heard.87 Judicial assistants often play a role in this process, although their level of involvement differs from jurisdiction to jurisdiction, court to court, and even from judge to judge. Some judicial assistants are tasked with merely distilling information about potential appeal cases in order to make it easier for their judges to decide which to take on. Other judicial assistants may be more involved, recommending to their judges which cases should make the cut.88 Where subjective criteria apply in this exercise, judicial assistants may wield considerable power at this crucial step in the judicial process.

Making of U.S. Supreme Court Justices’ in David E Klein and Gregory Mitchell (eds), The Psychology of Judicial Decision Making (Oxford University Press 2010) 66. 85 For an overview of the growth of clerks in European courts, see European Commission for the Efficiency of Justice, European Judicial Systems: Efficiency and Quality of Justice (Council of Europe 2014) 158–167. 86 An excellent and recent review of the literature on role of law clerks can be found in Ward (n 3). This piece generally focuses on US clerks. This section here seeks to offer a more global perspective and emphasises judical assistants’ effects on decision-making over other aspects of their work. 87 Terminology differs on this process: “certiorari” in the US, or “leave to appeal” in the UK, for example. 88 The grounds for deciding which cases ought to be heard may range from the relatively objective to the more subjective. Stras examines the objective and subjective qualities of criteria for granting certiorari on the US

198

DECISION-MAKING IN INSTITUTIONAL CONTEXT

On the US Supreme Court, for instance, judicial clerks act as preliminary gatekeepers of certiorari (leave to appeal to the Court). Scholars have undertaken archival and role analysis studies investigating how clerks on the Court perform this function, which involves recommending the 80 or so cases that should be heard each term, from the thousands of petitions that get sent to it. Although the judges have the final call, clerks have considerable influence. Indeed, clerks and judges self-report that this agenda-setting function is where clerks have the most influence,89 and archival research bears this out. To explain briefly how the process works, all but two of the judges currently serving on the US Supreme Court allow their clerks to pool together the workload of sifting through petitions, a mechanism called the “cert pool.”90 This means that clerks do not report solely to their own assigned judge with their recommendations for grants of certiorari. They instead report back to a number of judges, bidding to persuade as many of them as possible that a particular case is worth hearing.91 As a result, clerks may hedge their bets when picking out which cases to propose to the group of judges who participate in the cert pool, bearing in mind that the judges are stratified across a wide political and ideological spectrum. For better or worse, this cert pool mechanism may well have ramifications for which cases ultimately trickle upwards to the judges for consideration and which are discarded at the initial stages. Indeed, several studies show that clerks’ recommendations from the cert pool are increasingly correlated with the judges’ eventual decisions on which cases are heard.92 It would seem, therefore, that judicial clerks – a small number of generally inexperienced lawyers – wield considerable influence on the US Supreme Court’s ultimate output.93 Beyond the US, Paterson described how judicial assistants on the UK Supreme Court also influence decisions on what cases are heard, but in a more limited way.94 Judicial assistants on this court provide neutral three to four-page petition memos for their judges, summarising what the appeal is about.95 They are not directly tasked with recommending which cases should be granted leave to appeal, although they do attend the meetings

Supreme Court in David R Stras, ‘The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process Book Review Essay’ (2006) 85 Texas Law Review 947, 980–981. 89 Ward and Weiden (n 79) ch 3. 90 For an account and analysis of the cert pool mechanism, see ibid. At present, two judges on the US Supreme Court, Samuel Alito and Neil Gorsuch, do not allow their clerks to join the cert pool. Their clerks review all petitions for certiorari individually on their behalf. Adam Liptak, ‘Gorsuch, in Sign of Independence, Is Out of Supreme Court’s Clerical Pool’ The New York Times (1 May 2017) accessed 17 July 2020. 91 This dynamic, contends Stras, may lead to clerks’ decisions being more homogenous, to cater for a wider range of judicial ideologies. Stras (n 88) 973. Worthy cases “could be falling through the cracks,” he contends. Ibid. 974. Justice John Paul Stevens notes in a similar vein: “[W]hen a clerk writes for an individual justice, he or she can be more candid.” Justice Stevens, quoted in Ward and Weiden (n 79) 127. 92 Stras (n 88) 991. Saul Brenner and Jan Palmer, ‘The Law Clerks’ Recommendations and Chief Justice Vinson’s Vote on Certiorari’ (1990) 18 American Politics Quarterly 68; Barbara Palmer, ‘The Bermuda Triangle: The Cert Pool and Its Influence over the Supreme Court’s Agenda’ (2001) 18 Constitutional Commentary 105; Ryan C Black and Christina L Boyd, ‘The Role of Law Clerks in the U.S. Supreme Court’s Agenda-Setting Process’ (2011) 40 American Politics Research 147; Ryan C Black, Christina L Boyd and Amanda C Bryan, ‘Revisiting the Influence of Law Clerks on the US Supreme Court’s Agenda-Setting Process’ (2014) 98 Marquette Law Review 75. 93 Black and Boyd (n 92) 165. 94 Paterson (n 15) 248–249. 95 Ibid. 249.

199

DECISION-MAKING IN INSTITUTIONAL CONTEXT

where judges deliberate which cases to hear.96 A former assistant on the UK Supreme Court described how judges would ask the judicial assistant who drafted the petition memo for their opinion on whether the case should be heard but only after the judges have spoken. On rare occasions, assistants have swayed judges on whether to grant or reject petitions to appeal.97 Moreover, some judges ask their assistants to provide short written notes on whether specific petitions should be granted.98 Aside from these firsthand accounts, the extent of UK judicial assistants’ influence at this stage of the process has not been empirically tested. 6.1.2.2 Judicial assistants’ influence at trial Moving from judicial assistants’ gatekeeping function on courts with discretionary jurisdiction, what influence do they have at and during trials? To generalise somewhat, many judicial assistants shadow their judge every step of the way through a case. Many judges and their assistants report a back-and-forth dialogue between them as a case progresses. Judges may ask their assistants to research particular points of law, use them as a sounding board during and after hearings and may occasionally ask them what they think the outcome should be.99 Swanson and Wasby’s role analysis study, interviewing US state supreme court judges on their working relationships with their clerks, illustrated this dialogue.100 About 30% of responding judges indicated their clerks acted as a sounding board for them when deciding cases.101 Some judges went further, describing their clerks as collaborative partners in the judicial decision-making process, although this was not as prevalent. Some judges described occasions when their clerks strong-armed them into a different result that they were not inclined towards to begin with. One remarked, “sometimes they convince me” of a particular result,102 while another confided that “on occasion, more frequently than I would have suspected before I became a judge, they convince me to change my mind about a case.”103 Another judge recalled a specific instance where theirs was the swing decision on the panel on a case, and their clerk convinced them to switch sides.104 Although these narratives were relatively uncommon in this interview study, Swanson and Wasby corroborated this anecdotal evidence through a survey of judges as part of the same study. The researchers asked judges to estimate the percentage of cases that their clerks’ advice had led them to change their decision on the substantive outcome. Of those asked, 13% responded that they had never changed a case outcome on clerks’ 96 These deliberations are called Petition to Appeal hearings, which are almost always held in private and without the benefit of oral argument. 97 Tatyana Nesterchuk, ‘The View from Behind the Bench’ in Andrew Burrows, QC David Johnston and Reinhard Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press 2013) 106. 98 Ibid. 107. 99 One remarkable account of dialogue between judges and their clerks can be found in an article about the behind the scenes correspondence on the seminal US Supreme Court case of Roe v Wade 410 U.S. 113 (1973). It seems that judges sought and acted upon the input of their clerks to a considerable extent. David J Garrow, ‘How Roe v. Wade Was Written’ (2014) 71 Washington & Lee Law Review 893. 100 Swanson and Wasby (n 83). 101 Ibid. 39. 102 Ibid. 103 Ibid. 36. 104 Ibid. 43.

200

DECISION-MAKING IN INSTITUTIONAL CONTEXT

advice, but 87% reported that they had done so. Of that number, 60% said that this had occurred in between 1% and 10% of cases. In other words, the vast majority of judges reported a small, but not insignificant, influence of clerks’ input on actual case outcomes.105 Beyond role analysis studies on judges and assistants, others have conducted archival research on assistants’ influence. Peppers and Zorn surveyed over 500 former judicial clerks on the US Supreme Court on their political ideology at the time of their clerkship and measured whether the judges they were assigned to tended to decide cases aligned to their clerks’ ideologies. After accounting for other variables, including the judges’ own ideologies, the researchers found a modest but persistent effect correlating clerks’ political ideology with their judges’ decision-making. This effect prevailed across several statistical models and even after accounting for judges’ tendency to pick clerks aligned to their own political view.106 Although the correlation was compelling, with clerks seeming to have had an independent effect on how their judges had decided cases, the researchers underscored that their findings did not necessarily demonstrate a causative link.107 Bonica and his colleagues investigated the same issue.108 Measuring the political ideology of clerks on the US Supreme Court by their disclosed political donations (some 70% of the clerks in the researchers’ sample had disclosed political donations), they found that they exerted a small influence on judicial decision-making overall.109 Clerks’ ideologies accounted for approximately one percentage point change in judges’ conservative decision-making overall.110 The influence was greater in high-profile, legally significant or close decisions.111 In another interesting result from a study on the US Supreme Court, Kromphardt found that where judges hired multiple women clerks, they were more likely to rule in favour of plaintiffs in sex discrimination and abortion cases, all other factors being equal.112 Beyond the US, researchers have examined judicial assistants in the UK and in the Netherlands. On the UK Supreme Court, Paterson described how judicial assistants shadow their judges at hearings (quite literally – they sit behind the judges on the bench). Law Lords Tom Bingham, David Hope and Alan Rodger, who presided on the House of Lords just before the introduction of the UK Supreme Court in 2009, would meet with judicial assistants every morning to discuss upcoming cases and canvass them for their views. Before that, Law Lords on the House of Lords also reported, in a similar vein, that their judicial assistants would act as a sounding board for them to bounce ideas and questions off in private.113 Whether the views of judicial assistants wormed their way into judges’ decisions through this dialogue remains a largely unanswered question and, as Paterson observed, each

105 “The clerk’s influence is more than trivial but far from enormous,” concluded Swanson and Wasby. Ibid. 42. 106 Todd C Peppers and Christopher Zorn, ‘Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment’ (2008) 58 De Paul Law Review 51, 72. 107 Ibid. 75. 108 Bonica and others (n 80). 109 Ibid. 110 Ibid. 3. 111 Bonica and others (n 80). 112 Christopher D Kromphardt, ‘Evaluating the Effect of Law Clerk Gender on Voting at the United States Supreme Court’ (2017) 38 Justice System Journal 183. 113 Paterson (n 15) 250–251.

201

DECISION-MAKING IN INSTITUTIONAL CONTEXT

relationship and experience between a judge and their judicial assistant is unique.114 Overall, it seems, however, that judicial assistants in the UK appear to have a growing influence. Holvast investigated judicial assistants on Dutch district courts, and found that they often have an influential role in the decision-making process.115 Holvast reported that before hearings, judicial assistants generally prepared neutral summaries of upcoming cases for their judges but sometimes also offered their views on specific cases.116 At hearing, a minority of judges welcomed substantial involvement of judicial assistants in the courtroom, even allowing them to ask questions of the parties during proceedings.117 After the hearing, it was commonplace for assistants to participate in the deliberation process and offer direct contributions. Especially in panels with less-experienced judges, noted Holvast, “the contribution of certain highly respected judicial assistants can be crucial.”118 Many judicial assistants self-reported that they were hesitant to reveal their views and to participate in deliberations.119 The picture that emerged from Holvast’s research was that although there was some variation, Dutch district court judicial assistants often wielded a considerable amount of power in the decision-making process. 6.1.2.3 Writing judgments Judicial assistants often play an important role in writing judgments. This is particularly evident in the US judicial system, where clerks usually compose first drafts. One study on federal district court judges found that no less than 97% of judges delegated judgment writing to their clerks,120 while another found that 95% of federal courts of appeals judges assigned judgment writing to them.121 On the US Supreme Court, delegating judgment writing to clerks has increased considerably over the years.122 A 2006 study found that a remarkable 30% of the final judgments of the US Supreme Court were almost entirely the work of clerks.123 Corroborating the influence of judicial assistants in the judgment writing process, several studies demonstrate that US Supreme Court judges’ writing style changes from term to term as clerks come and go.124

114 Ibid. 252–253. 115 Nina Holvast, In the Shadow of the Judge: The Involvement of Judicial Assistants in Dutch District Courts (Eleven International Publishing 2017). See also Nina Holvast, ‘The Power of the Judicial Assistant/Law Clerk: Looking behind the Scenes at Courts in the United States, England and Wales, and the Netherlands Professional Articles’ (2015) 7(2) International Journal for Court Administration 10. 116 Nina Holvast, ‘Summary of Thesis, In the Shadow of the Judge: The Involvement of Judicial Assistants in Dutch District Courts’ (University of Amsterdam 2017) 4. 117 Ibid. 5. 118 However, Holvast also notes that judicial assistants usually have the least influence during deliberations. Ibid. 119 Ibid. 120 Todd C Peppers, Michael W Giles and Bridget Tainer-Parkins, ‘Inside Judicial Chambers: How Federal District Court Judges Select and Use Their Law Clerks’ (2008) 71 Albany Law Review 623. 121 Todd C Peppers, Michael W Giles and Bridget Tainer-Parkins, ‘Surgeons or Scribes: The Role of United States Court of Appeals Law Clerks in Appellate Triage’ (2014) 98 Marquette Law Review 313. 122 Peppers (n 81) 192 and 205; Ward and Weiden (n 79) 202. 123 Ward and Weiden (n 79) 225. 124 Paul J Wahlbeck, James F Spriggs and Lee Sigelman, ‘Ghostwriters on the Court? A Stylistic Analysis of US Supreme Court Opinion Drafts’ (2002) 30 American Politics Research 166; Stephen J Choi and G Mitu Gulati, ‘Which Judges Write Their Opinions (and Should We Care)?’ (2004) 32 Florida State University Law Review 1077; Jeffrey S Rosenthal and Albert H Yoon, ‘Detecting Multiple Authorship of United States Supreme Court Legal Decisions Using Function Words’ (2011) The Annals of Applied Statistics 283; Keith Carlson, Michael A

202

DECISION-MAKING IN INSTITUTIONAL CONTEXT

On Dutch district courts, Holvast found that judicial assistants, like most of their counterparts on US courts, were responsible for writing the first drafts of judgments.125 Because they attend deliberations, judicial assistants were often afforded a large amount of autonomy when writing judgments. However, Holvast also found there was considerable variation in terms of control over who drafted final versions of them.126 Some judges left little room for their judicial assistants to contribute to the final product, and on other occasions, judges substantially altered judicial assistants’ drafts that they felt were inadequate.127 In contrast to the US Supreme Court and Dutch district courts, judicial assistants on the UK Supreme Court and clerks on the Australian High Court do not prepare first draft judgments. Instead, they review and offer feedback on drafts produced not just by their assigned judge but also on other judges’ drafts.128 The extent of judicial assistants’ feedback and its influence on decisions is unclear. One former UK Supreme Court judicial assistant reported that she was sometimes called upon to write short memos summarising differences between concurring draft judgments.129 These memos sometimes spurred judges into clarifying points of law in concurring judgments, which she observed was “one of the most important roles a judicial assistant could play” in terms of shaping the Court’s jurisprudence.130 While it would appear that judicial assistants’ influence on the UK Supreme Court and the Australian High Court is not as extensive as their counterparts in the US, for instance, it is not entirely insignificant either, although systematic empirical analysis would further our understanding in this regard. In Ireland, judicial assistants often prepare summaries of relevant material before proceedings, and summaries of facts, evidence, legal submissions and case law, as directed by their judge after proceedings.131 Such summaries are neutral, not evaluative.132 Judges, rather than their assistants, prepare drafts of judgments. While judicial assistants’ summaries may be useful to refer to, Irish judges firmly take charge of writing the judgments themselves. Judicial assistants in Irish courts, therefore, act in a research support role, rather than as actors in the decision-making process.133 Livermore and Daniel Rockmore, ‘A Quantitative Analysis of Writing Style on the US Supreme Court’ (2015) 93 Washington University Law Review 1461. 125 Holvast, ‘Summary of Thesis, In the Shadow of the Judge: The Involvement of Judicial Assistants in Dutch District Courts’ (n 116) 6. 126 Ibid. 127 Ibid. 128 Paterson (n 15) 254; Nesterchuk (n 97) 109. JD Heydon, ‘Varieties of Judicial Method in the Late 20th Century’ (2012) 34 Sydney Law Review 219, 222. 129 Nesterchuk (n 97) ch 11. 130 Ibid. 110. 131 Giacomo Bonetto and others, ‘A Valuable Resource: The Judicial Assistant in the Irish Legal System’ (2019) 37 Irish Law Times 194. For further information on Irish judicial assistants, see Genevieve Coonan, ‘The Role of Judicial Research Assistants in Supporting the Decision Making Role of the Irish Judiciary’ (2006) 6 Judicial Studies Institute Journal 171. 132 Bonetto and others (n 131). 133 Giacomo Bonetto and his colleagues strongly rebuffed the criticisms that Irish District Court judge Anthony Halpin set out in two successive articles about the role of judicial assistants in Ireland. Anthony Halpin, ‘Judicial Researchers: A Critical Assessment–Part I’ (2019) 37 Irish Law Times 154; Anthony Halpin, ‘Judicial Researchers: A Critical Assessment–Part II’ (2019) 37 Irish Law Times 171. Halpin had earlier excoriated the use of judicial assistants in Irish courts. Judicial independence was under threat by their involvement in the judicial process because, among other reasons, their role is opaquely defined and unregulated, he contended. Ibid.

203

DECISION-MAKING IN INSTITUTIONAL CONTEXT

These studies highlight the considerable variation in how much judges rely on their assistants to write judgments. Whatever their level of involvement, judicial assistants, more often than not, have an all-access pass to most, if not every step of the judicial process. If tasked with having a first go at drafting a judgment, they will invariably have a sense of their judge’s thinking on the case through back-and-forth dialogue. Although a judge may sometimes review an assistant’s first draft judgment and conclude that they could not have done much better, that assistant will nevertheless necessarily have made stylistic decisions.134 Posner has argued this can affect legal doctrine,135 that there is a loss when judgments are ghostwritten and that “judges fool themselves when they think that by careful editing they can make a judicial opinion their own.”136 Of course, whether there is a loss of quality is a matter of subjective evaluation. To consider the opposite – if judicial assistants had no involvement in drafting tasks – might their judges, therefore, have considerably less time to mull over the intricacies of the law in complex cases? Without assistants’ input, might the quality of the judicial product suffer overall? A careful balance ought to be struck between judge and assistant in the delicate enterprise of judgment writing. Whatever the case, judicial assistants ought to serve merely as their judge’s legal mouthpiece rather than serve as their legal brain, in order for the judge’s true function to prevail. 6.1.3 Expert witnesses’ influence Litigants and judges the world over rely on experts from an array of disciplines and professions to serve as witnesses. Accountants, forensic scientists, environmental scientists, surgeons, psychologists, engineers, to name a few, are all regularly called upon by courts to give their considered professional opinion. These expert witnesses provide valuable information to aid judges’ decision-making in matters where technical expertise is required. Generally speaking, expert witnesses’ duties are, first and foremost, to the court.137 In civil law jurisdictions, expert witnesses are often appointed by the court and are, at least in principle, neutral.138 However, in adversarial systems, expert witnesses are often hired, sometimes at great expense, by parties seeking to persuade the court of a particular position. How do judges rely on expert witnesses’ evidence, and what consequences does this have for judicial outcomes? How, for instance, do judges weigh up competing and contradictory information from different expert witnesses?139 Often the information provided by expert witnesses takes judges out of their comfort zone of common knowledge and 134 Ward (n 3) 111. 135 Richard A Posner, ‘Judges’ Writing Styles (And Do They Matter?)’ (1995) 62 The University of Chicago Law Review 1421. 136 Richard A Posner, ‘The Courthouse Mice’ (2006) 234 The New Republic 32, 34. 137 Creswell J for the UK High Court once explained: “An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate,” National Justice Cia Naviera SA v Prudential Assurance Co (The Ikarian Reefer) (1993) 2 Lloyds Rep 68, 81–82. 138 In this vein, Article 10 of the French Civil Code (translated) says, “[E]veryone is bound to co-operate with the administration of justice with a view to revelation of the truth.” 139 We have briefly considered this above in the context of the framing effect in chapter 2. See section 2.2.3 Framing effect.

204

DECISION-MAKING IN INSTITUTIONAL CONTEXT

their understanding of the world. Judges must develop strategies, within the constraints of court procedure and workload, to grasp expert witnesses’ evidence and to decide how to use and interpret it when deciding cases. Researchers have investigated how mock jurors use and respond to expert witnesses’ evidence, but there is much less research directly analysing judges on this issue.140 Mock jury experimental studies have demonstrated that expert evidence improves decisionmaking accuracy in certain contexts. For instance, in one study, expert witness testimony regarding the credibility of eye-witness identification improved the accuracy of jurors’ decision-making.141 Turning to research on judges, Perez investigated how Israeli judges dealt with expert witnesses’ evidence on physical injuries in torts cases. In Israel, the parties may themselves introduce an expert witness to speak to the extent of a victim’s physical injuries. If there is conflicting evidence between the plaintiff’s and defendant’s experts, the judge must weigh this up. However, since 1985, in road traffic accident cases, parties may not appoint experts to describe physical harm.142 Rather, the court may appoint its own expert to speak to the harm suffered by the victim. Perez exploited this difference of approach in different case types: how did judges deal with competing expert evidence compared to how they dealt with evidence from neutral, court-appointed experts? He hypothesised that judges would use heuristical reasoning to evaluate competing, contradictory evidence from different expert witnesses.143 Perez found that where party-appointed expert witnesses’ evidence conflicted, judges tended to resolve this conflict by simply averaging out the difference of opinion between the experts. Perez argued that this approach was a cognitive shortcut, and was problematic because the experts themselves may not have been infallible.144 Rather than judges properly investigating the reasons why there was a divergence of opinion, and whether one expert’s evidence was more correct than the other expert’s was, judges tended to take the easier option, meeting the conflicting experts somewhere in the middle. While such a strategy may have been “truth approximating,” judges seemed to have been concerned with reducing the cognitive effort involved in 140 One particularly egregious instance of juror error owing to poor-quality expert evidence occurred R v Clark [2003] EWCA Crim 1020 discussed in section 2.2.3 Framing effect. See also Neil Vidmar and Shari Seidman Diamond, ‘Juries and Expert Evidence The Jury in the Twenty-First Century: An Interdisciplinary Conference’ (2000) 66 Brooklyn Law Review 1121; Lora M Levett and Margaret Bull Kovera, ‘The Effectiveness of Opposing Expert Witnesses for Educating Jurors about Unreliable Expert Evidence’ (2008) 32 Law and Human Behavior 363; Bradley D McAuliff and Margaret Bull Kovera, ‘Juror Need for Cognition and Sensitivity to Methodological Flaws in Expert Evidence’ (2008) 38 Journal of Applied Social Psychology 385. 141 Brian L Cutler, Hedy R Dexter and Steven D Penrod, ‘Expert Testimony and Jury Decision Making: An Empirical Analysis’ (1989) 7 Behavioral Sciences & the Law 215. Another study demonstrated how different types of expert witness testimony affected mock jurors’ assessment of alleged victims’ credibility in child sexual abuse cases. Margaret Bull Kovera and others, ‘Does Expert Psychological Testimony Inform or Influence Juror Decision Making? A Social Cognitive Analysis’ (1997) 82 Journal of Applied Psychology 178. 142 Legislation was introduced in 1985 in an attempt to prevent the “outrageous waste of resources” associated with litigating parties appointing their own witnesses. Draft Bill Amending the Compensation for Road-Accident Victims Act (Amendment No. 5) 1984, HH No. 1674 p. 192 at 193, para. 4 (translated by the author of the study, Oren Perez), Oren Perez, ‘Judicial Strategies for Reviewing Conflicting Expert Evidence: Biases, Heuristics, and Higher-Order Evidence’ (2016) 64 American Journal of Comparative Law 75, 92. 143 Perez (n 142). Heuristics (considered elsewhere in this book at section 2.1 Heuristics, cognitive biases and judicial decision-making) “constitute a means of dealing with situations of information overload or lack of ability to sort out a complex problem.” Ibid. 89. 144 Perez (n 142) 103. On how and why experts make errors, see Itiel E Dror and David Charlton, ‘Why Experts Make Errors’ (2006) 56 Journal of Forensic Identification 600.

205

DECISION-MAKING IN INSTITUTIONAL CONTEXT

evaluating the evidence.145 In road traffic accident claims, the court adopted the courtappointed expert’s opinion in 91% of cases. Although hardly surprising that judges deferred to the expertise of a court-appointed expert witness, the vast majority of the time, the contrast between judges’ acquiescence in these cases compared to how they dealt with competing expert witnesses’ evidence in other cases is striking. The study highlighted how judges seemed to use expert witnesses’ evidence differently depending on whether experts were court-appointed or appointed by the parties involved. Jurisdictions often have quality-control standards for admitting expert witnesses’ evidence in order to prevent junk science infiltrating judges’ decision-making. In the US, the Supreme Court set out criteria for the admissibility of expert witnesses’ evidence in the seminal case of Daubert v Merrell Dow Pharmaceuticals.146 Researchers have since investigated how judges have applied, or have failed to apply, the Daubert criteria. In an archival analysis of decisions about the admissibility of psychological expert witness evidence, Shapiro and his colleagues demonstrated that more often than not, judges strayed away from the Daubert criteria.147 Examining how judges applied the Daubert criteria when evaluating psychological expert witness testimony across a dataset of 167 criminal and civil law trials, they found that all four of the criteria set out in Daubert were mentioned in less than 5% of the cases.148 Different judges applied different standards, many of which were entirely unrelated to those set in Daubert. In a similar vein, Merlino, Murray and Richardson analysed the content of 192 US district court cases on how judges evaluated the credibility of expert witness testimony. They found that as time passed after the introduction of the Daubert criteria, judges tended to increasingly rely on the professional credentials and qualifications of the expert witnesses themselves as a means of assessing the value of expert witnesses’ testimony, rather than increasingly scrutinise the evidence itself.149 6.1.4 Conclusions on the influence of courtroom actors The research described here highlights the many different ways that lawyers, judicial assistants and expert witnesses can affect judicial decision-making. Lawyers’ written submissions and oral arguments are, perhaps unsurprisingly, often significant influencers on judges’ decisions. Other studies observe how judges themselves use oral argument to serve their own goals in the decision-making process. Lawyers’ personal characteristics may also correlate with different decision-making trends, although evidence of this remains limited. Research on judicial assistants reports considerable variation from one jurisdiction to another as to the nature of their role and their level of influence in the judicial 145 Perez (n 142) 103 and 104. 146 509 U.S. 579 (1993). 147 David L Shapiro and others, ‘Psychological Expert Witness Testimony and Judicial Decision Making Trends’ (2015) 42 International Journal of Law and Psychiatry 149. 148 Ibid. 152. 149 Mara L Merlino, Colleen I Murray and James T Richardson, ‘Judicial Gatekeeping and the Social Construction of the Admissibility of Expert Testimony’ (2008) 26 Behavioral Sciences & the Law 187. See also Gregory Mitchell, ‘Judicial Decision Making’ in Neil Brewer and Amy Bradfield Douglass (eds), Psychological Science and the Law (Guilford Publications 2019) 401.

206

DECISION-MAKING IN INSTITUTIONAL CONTEXT

decision-making process. When surveyed and interviewed, judges and judicial assistants often self-report that assistants do indeed play a significant role in the decision-making process, and scholars contend that their influence may generally be increasing.150 Empirical evidence suggests that judicial assistants’ ideologies correlate with trends in their judges’ decision-making, but only to a modest extent. To generalise somewhat, judicial assistants are often capable early career lawyers who serve their judges well, ease their workload, and provide useful research to allow them to get on with the task of making difficult decisions. There is not enough empirical evidence to suggest that assistants, while influential, take control away from their judicial masters. It is also important to bear in mind that often judicial assistants are hired to ‘fit’ with the judge they will be assigned to. US Supreme Court Justice Clarence Thomas put it curtly enough: “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time and aggravates the pig.”151 Although only judges themselves can truly know quite how influential their judicial assistants are,152 concerns that they are “legal Rasputins” or “puppet masters” are probably overstated.153 Finally, research on expert witnesses suggests that judges may find it difficult to properly evaluate the quality of the evidence that they provide to the court. Judges sometimes stray away from criteria set in law for evaluating expert witness testimony. Given the apparent fluctuations and variability in judges’ approaches, scholars propose that judges need more education and better training to develop strategies to best negotiate the thicket of scientific information that can come their way in complex cases.154 We now move away from how actors in the courtroom can influence judges, to how a court’s operations and the physical environment of courtrooms can have a bearing on judges’ decision-making. 6.2 Courts’ operations and courtroom layout and design as in-court influences How do inquisitorial or adversarial trial modes have a bearing on judicial outcomes? What happens to judges’ decision-making when they specialise in discrete areas of law, compared to judges who are generalists? On courts with discretionary jurisdiction, how might different rules governing which cases get heard have a bearing on judges’ overall decision-making trends? Moving from rules and procedures governing courts’ operations, how might different elements of a courtroom’s layout and design subtly induce changes in how judges decide cases? This section reviews research on these questions, on how differences in courts’ practices and operations, and the physical courtroom environment, may affect judicial decision-making. We first turn our attention to how differences in trial mode – inquisitorial or adversarial – may shape judicial decision-making. 150 Ward (n 3) 100. 151 Justice Clarence Thomas, quoted in Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (Anchor 2008) 101. 152 Ward and Weiden (n 79) 151. 153 In a similar vein, Ward and Weiden, reflecting on the role of clerks in the US, conclude that they “are not merely surrogates or agents, but they are also not the behind-the-scenes manipulators portrayed by some observers. . . . [T]he influence of the clerk is neither negligible nor total.” Ibid. 246. 154 Shapiro and others (n 147) 153.

207

DECISION-MAKING IN INSTITUTIONAL CONTEXT

6.2.1 Inquisitorial and adversarial trial modes and judicial decision-making British Law Lord Patrick Devlin explained the fundamental difference between adversarial and inquisitorial systems as follows: [I]n the adversary system the judge in his quest for the truth is restricted to the material presented by the parties, in whose production he has played no part and which he cannot augment, while in the inquisitorial system the judge can find out what he wants to know. Put in a nutshell, the arbiter is confined and the inquisitor is not.155

Therefore, in simple terms, court proceedings in adversarial systems are party-driven, while in inquisitorial systems they are judge-driven. While many scholars have written about the differences between the two systems from a comparative law perspective, this section addresses empirical evidence investigating how these two different modes can affect judicial decision-making.156 Do adversarial systems, characterised by a conflictdriven presentation of evidence and legal argument between parties on opposing sides, lead to best-quality decision-making? Or, is justice better served by affording more control to the judge to intervene and dictate proceedings, as is characteristic of inquisitorial systems?157 Proponents of adversarial court proceedings argue that the conflict-driven presentation of fact and legal argument dampens bias, leading to better truth-finding and more accurate decision-making. Jurisprudence scholar Lon Fuller argued, for instance, that “an adversary presentation seems the only effective means for combating this natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known.”158 On the other hand, others criticise adversarial proceedings for leaving judges at the whims of lawyers who may present their arguments and evidence as they see fit.159 Tullock controversially suggested that in adversarial proceedings, a great deal of the resources are put in by a lawyer, who is “someone who is attempting to mislead.”160 Lawyers in adversarial systems would no doubt argue that their duty remains firmly and ultimately to the court, that their role is to present the best possible case for their client rather than to mislead and that between adversaries, truth and justice emerge. However, something of Tullock’s argument perhaps rings true because court proceedings in adversarial systems

155 Patrick Devlin, The Judge (Oxford University Press 1979) 61. 156 See, for example, Peter J Van Koppen and Steven D Penrod, ‘Adversarial or Inquisitorial’ in Adversarial versus Inquisitorial Justice (Springer 2003); Grażyna Anna Bednarek, Polish vs. American Courtroom Discourse: Inquisitorial and Adversarial Procedures of Witness Examination in Criminal Trials (Springer 2014); Halil Cesur, ‘The Analytical Value of the Adversarial-Inquisitorial Dichotomy in Approaches to Proof: The Examples of England and Turkey’ (2018) 6 Ceza Hukuku ve Kriminoloji Dergisi/Journal of Penal Law & Criminology 155; Kai Ambos, ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’ (2003) 3 International Criminal Law Review 1. 157 At the outset, it should be noted that adversarial and inquisitorial modes are not strictly binary, and hybrids between the two are also common. 158 Lon Fuller, ‘The Adversary System’ in Harold J Berman (ed), Talks on American Law (Voice of America 1971) 34. 159 That said, Spencer, in an article exploring the differences between adversarial and inquisitorial systems, suggests that this distinction between judges’ active and passive involvement should not be exaggerated, John R Spencer, ‘Adversarial vs Inquisitorial Systems: Is There Still Such a Difference?’ (2016) 20 The International Journal of Human Rights 601, 610–611. 160 Gordon Tullock, Trials on Trial: The Pure Theory of Legal Procedure (Columbia University Press 1980) 96.

208

DECISION-MAKING IN INSTITUTIONAL CONTEXT

rely on the parties’ own, entirely self-motivated, resources to present one side of an argument or the other. Researchers have empirically investigated how different trial modes, adversarial or inquisitorial, can affect judicial outcomes. Edmond and his colleagues studied one Canadian criminal case in depth to critique the adversarial approach. They postulated that what they called “judicial passivity” in adversarial systems – whereby judges are non-interventionist, and lawyers drive the narrative – may threaten the proper analysis of facts at trial and, ultimately, the fairness of case outcomes.161 Adversarialism, they elaborated, assumes that litigants and their lawyers, as partisan parties, are motivated and adequately resourced to search out applicable law and resolve facts.162 Judges, therefore, effectively rely on the ability of lawyers, or sometimes lay litigants, to explain to them the strengths and weaknesses of the evidence. Edmond and his colleagues used a 2013 Canadian criminal trial about an alleged theft that hinged on controversial fingerprint evidence as a prism through which to consider these issues. They identified failures in how the fingerprint evidence was presented in the case; specifically, the judge’s failure to intervene to ensure the evidence was properly scrutinised.163 Sometimes evidence and the way lawyers present it will fall short, the researchers contended. Judges should be “obliged to intervene to encourage more appropriate presentation of forensic science evidence” in such instances, the researchers concluded.164 There are a handful of experimental studies investigating differences between adversarial and inquisitorial proceedings, using mock jurors rather than practising judges as participants.165 Thibuat and Walker investigated the advantages and disadvantages of both trial modes and their suitability in different contexts. They argued that adversarial and inquisitorial modes could be used to resolve different elements in cases. The inquisitorial mode may be best for resolving conflicts on the facts underlying the dispute, while the adversarial mode may be best for resolving conflicts of interest, where the objective of the judge is to allocate resources justly among litigants.166 Thibaut and Walker, together with their colleague Lind, tested their proposal through two experimental studies. In one experiment, the researchers asked law student participants to gather and present facts to a court.167 Participants were split into groups and asked to play either the role of a client-serving adversarial lawyer or that of an 161 Gary Edmond, David Hamer and Emma Cunliffe, ‘A Little Ignorance Is a Dangerous Thing: Engaging with Exogenous Knowledge Not Adduced by the Parties’ (2016) 25 Griffith Law Review 383. 162 Ibid. 384. 163 Ibid. 397. 164 Ibid. 398. 165 John Thibaut, Laurens Walker and E Allan Lind, ‘Adversary Presentation and Bias in Legal Decisionmaking’ (1972) 86 Harvard Law Review 386; E Allan Lind, John Thibaut and Laurens Walker, ‘Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings’ (1973) 71 Michigan Law Review 1129; Michael K Block and others, ‘An Experimental Comparison of Adversarial versus Inquisitorial Procedural Regimes’ (2000) 2 American Law and Economics Review 170; Michael K Block and Jeffrey S Parker, ‘Decision Making in the Absence of Successful Fact Finding: Theory and Experimental Evidence on Adversarial versus Inquisitorial Systems of Adjudication’ (2004) 24 International Review of Law and Economics 89. Sevier investigated differences of perceptions of the truth and justice provided by the two systems: Justin Sevier, ‘The Truth-Justice Tradeoff: Perceptions of Decisional Accuracy and Procedural Justice in Adversarial and Inquisitorial Legal Systems’ (2014) 20 Psychology, Public Policy, and Law 212. 166 John Thibaut and Laurens Walker, ‘A Theory of Procedure’ (1978) California Law Review 541, 566. 167 Lind, Thibaut and Walker (n 165).

209

DECISION-MAKING IN INSTITUTIONAL CONTEXT

independent inquisitorial investigator. Interestingly, both groups were as diligent as each other in fact-finding. Ultimately, there was no reliable difference in the number of facts that each group communicated to the court. The adversarial system “apparently does not provoke a generally more vigorous search for facts” than the inquisitorial system, the researchers concluded.168 In another experiment, the same researchers switched their focus from fact-gathering to the question of which mode – adversarial or inquisitorial – better helped to combat bias among decision-makers.169 The researchers asked participants to judge a hypothetical case where a defendant accused of assault claimed self-defence. Participants were put into either an adversarial or an inquisitorial condition. In both conditions, participants heard factual statements. In the adversarial condition, a ‘prosecutor’ uttered the statements against the accused to participants, and a ‘defence lawyer’ uttered the statements for the accused. In the inquisitorial condition, just one individual ‘investigator’ uttered all statements both for and against the accused. Participants were further subdivided into “biased” and “unbiased” groups. Biased groups heard information about how similar assault cases had been decided, in one direction or another. This information was designed to nudge participants in this biased condition to decide the case in the way described in these other cases. “Unbiased” groups did not hear about other cases. The researchers found that participants provided with the biasing information about other cases who heard the adversarial presentation of facts were less biased than their peers provided with biasing information who heard the inquisitorial presentation of facts were.170 The adversarial mode seemed to dampen participants’ susceptibility to the biasing information about the other cases better than the inquisitorial mode did. Thibaut, Walker and Lind’s finding that the adversarial mode of hearing may dampen bias better than the inquisitorial mode can is revealing.171 However, this result would need to be replicated a number of times in further experiments before policy-makers ought to consider reforming trial modes – a fundamental edifice of judicial systems. Overall, research directly investigating the consequences of adversarial versus inquisitorial trial modes for judicial decision-making is rather limited. Indeed, there are no archival research studies investigating differences in actual decision-making between jurisdictions that operate inquisitorial trial modes as against jurisdictions that operate adversarial trial modes. Perhaps this is inevitable, because inquisitorial and adversarial trial modes are deeply engrained in most jurisdictions’ legal traditions. Comparing judges’ decisionmaking trends from one jurisdiction to another is to compare apples and oranges because, among many other variables, each jurisdiction has its own set of laws. Consequently, research on how different trial modes may affect decision-making is confined to a handful of experimental studies, each with their own limitations – not least that participants are not practising judges. Again, however, the absence of experimental research relying on practising judges is perhaps inevitable because members of any judiciary are so deeply embedded within their own jurisdiction’s trial mode as to make comparisons between them very difficult indeed. 168 169 170 171

Ibid. 1143. Thibaut, Walker and Lind (n 165). Ibid. 396. Thibaut, Walker and Lind (n 165).

210

DECISION-MAKING IN INSTITUTIONAL CONTEXT

6.2.2 Judicial specialisation Many, if not most, lawyers specialise in particular areas of law. However, in jurisdictions where lawyers are elevated to the bench, they often revert to a generalist role, presiding over cases on all areas of law. Increasingly common, however, are ‘specialist’ judges who only hear specific types of cases.172 Describing a judge as ‘specialist’ can mean different things and the extent of specialisation can vary considerably.173 Regardless of how clearly the lines of judicial specialisation are drawn, when judges functionally specialise in an area or areas of law, a new dynamic in understanding judicial decision-making is introduced. Commentators tease out the advantages and disadvantages of both generalist and specialist judges.174 Guthrie, Rachlinski and Wistrich suggest that generalist judges “simply cannot master the many complex areas of law and fact involved in modern litigation.”175 In a similar vein, former President of the UK Supreme Court Tom Bingham describes how generalist judges’ ability to make informed judgments can be taxed to the very utmost and are possibly sometimes exceeded where complex, technical evidence is involved.176 Generalist judges will not possess intricate, technical knowledge on all subjects that cross the courtroom door, nor could they be expected to. Nevertheless, as societies and litigation become increasingly complex, the concern is whether judges’ decision-making may be compromised as a result.177 Some scholars argue that judicial specialisation can serve as a safeguard178 because specialist judges are more efficient at dealing with burdensome caseloads and therefore they may have the capacity to deliver more predictable decisions in complex areas of law.179 On the other hand, others argue that judicial specialisation can lead to “tunnel vision,” perhaps leading to myopic, poorer-quality decision-making.180 Lemley and his colleagues ask, for instance, whether “familiarity breeds contempt” among patent judges against patentees.181 Because there are arguments both for and against specialist 172 See generally on judicial specialisation, Lawrence Baum, Specializing the Courts (University of Chicago Press 2011); Markus B Zimmer, ‘Overview of Specialized Courts’ (2009) 2 International Journal for Court Administration 46. Specialist courts are also a “growing trend among European countries,” European Commission for the Efficiency of Justice, ‘European Judicial Systems’ (Council of Europe 2006) 76. 173 Lawrence Baum, ‘Fortieth Annual Administrative Law Symposium: Judicial Specialization and the Adjudication of Immigration Cases’ (2010) 59 Duke Law Journal 1501, 1531. 174 For an overview of the advantages and disadvantages of judicial specialisation in European court systems, see Alan Uzelac, ‘Mixed Blessing of Judicial Specialisation: The Devil Is in the Detail’ (2015) 2 Russian Law Journal 146. 175 Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice’ (2009) 58 Duke Law Journal 1477, 1479. 176 Tom Bingham, ‘The Judge as Juror: The Judicial Determination of Factual Issues’ in The Business of Judging: Selected Essays and Speeches: 1985–1999 (Oxford: Oxford University Press 2011) 19. See further on the advantages of the generalist judge, Edward K Cheng, ‘The Myth of the Generalist Judge’ (2008) 61 Stanford Law Review 519, 520; Richard A Posner, ‘Will the Federal Courts of Appeals Survive until 1984?: An Essay on Delegation and Specialization of the Judicial Function’ (1982) 56 California Law Review 761, 762–763. 177 Sarang Vijay Damle, ‘Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court’ (2005) 91 Virginia Law Review 1267, 1269. 178 Lawrence Baum, ‘Probing the Effects of Judicial Specialization’ (2008) 58 Duke Law Journal 1667, 1671. 179 Damle (n 177) 1268–1269. Baum, ‘Probing the Effects of Judicial Specialization’ (n 178) 1675–1676; Vanessa Casado Perez, ‘Specialization Trend: Water Courts’ (2019) 49 Environmental Law 587, 592–593. 180 Damle (n 177) 1269; Rochelle Cooper Dreyfuss, ‘The Federal Circuit: A Case Study in Specialized Courts’ (1989) 64 New York University Law Review 1, 3. 181 Mark A Lemley, Su Li and Jennifer M Urban, ‘Does Familiarity Breed Contempt among Judges Deciding Patent Cases’ (2014) 66 Stanford Law Review 1121.

211

DECISION-MAKING IN INSTITUTIONAL CONTEXT

judges and courts, researchers have empirically investigated how judicial specialisation affects decision-making for better or worse, through experimental and archival studies. To take experimental research first, Guthrie, Rachlinski and Wistrich conducted two experimental studies to test whether US specialist judges in two areas of law, administrative law and bankruptcy law, made better decisions than generalist judges did.182 Noting that specialist judges tended to have greater subject-matter expertise, were the subject of more oversight and received more feedback than their generalist colleagues did, the researchers hypothesised therefore that specialist judges would make more deliberative, less intuitive decisions. To test this hypothesis, they examined and compared specialist and generalist judges’ susceptibility to a range of heuristics when deciding a set of hypothetical cases. The results from the study comparing specialist administrative law judges to generalist judges indicated that administrative law judges were generally as susceptible to heuristics and biases in the same way generalist judges were. There was no meaningful difference in the quality of decision-making between the two categories of judges.183 In the study comparing specialist bankruptcy judges to generalist judges, this time led by Rachlinski, the results generally followed the same pattern. Bankruptcy judges were as susceptible to intuitive decision-making errors – specifically anchoring and framing effects – as their generalist colleagues were.184 However, there was one exception to this: bankruptcy judges appeared impervious to the effects of the omission bias.185 The researchers concluded that the question of whether specialisation improves decision-making remains an open one.186 Nevertheless, the overriding impression from these two studies is that judicial specialisation may not be a panacea for errors caused by heuristical judicial reasoning. Moving to archival studies, Arlota and Garoupa compared the decision-making of specialist judges to that of generalist judges in Brazilian constitutional review cases.187 In some states in Brazil, constitutional review cases are heard by specialist panels of that state’s supreme court. In other states, the state supreme court sits en banc as a generalist court. This variation in different states’ courts’ operations afforded the researchers a probative comparison. Overall, clear differences did not emerge between state supreme courts that employed specialist judging panels against those that operated en banc as a generalist court. Compared to decision-making by generalist en banc courts, specialist judges were not more pro-plaintiff,188 their judgments were not longer in terms of word count,189 nor were they peppered with more citations than their generalist judge colleagues’ decisions were.190 However, specialist judges were somewhat quicker at processing cases to judgment.191 182 Guthrie, Rachlinski and Wistrich (n 175). 183 Ibid. 1522. 184 Jeffrey J Rachlinski, Chris Guthrie and Andrew J Wistrich, ‘Inside the Bankruptcy Judge’s Mind’ (2006) 86 Boston University Law Review 1227, 1235 and 1240. 185 Ibid. 1244. 186 Ibid. 1257. 187 Carolina Arlota and Nuno Garoupa, ‘Do Specialized Courts Make a Difference? Evidence from Brazilian State Supreme Courts’ (2016) 27 European Business Law Review 487. 188 Ibid. 496. 189 Ibid. 495. 190 Ibid. 498. 191 Ibid. 495.

212

DECISION-MAKING IN INSTITUTIONAL CONTEXT

An interesting real-world case study on whether specialisation has affected judicial decision-making trends is the recent move in the US judicial system to introduce specialist patent courts. Before the introduction of these specialist courts, Lemley and his colleagues considered whether generalist district court judges who had become increasingly experienced and specialised in the area of patent infringement cases displayed different decision-making patterns as they clocked up more cases.192 They found a strong trend: as judges heard more cases and became more experienced in the area, they became significantly less likely to rule for the patentee (that is, those with rights over a patent).193 Specialist patent trial courts might, therefore, help accused infringers of patents, not patentees, they contended.194 That said, the researchers observed whether more-specialised judges make better decisions may depend on one’s subjective point of view on the issue of patent infringement litigation.195 After specialist patent trial courts were introduced in some districts in the US, Semet investigated whether specialist judges’ decisions were more or less likely to be overturned on appeal compared to equivalent decisions from jurisdictions that had not introduced specialist courts. Her study used reversal rates on appeal as a proxy for the quality of decision-making: a lower reversal rate would imply that litigants and appellate judges were more accepting of decisions. However, there was no discernible difference in the rate of reversal on appeal between the jurisdictions that had established specialist courts and those that had not. In this instance, the findings suggested that introducing specialist courts had not had any impact on the quality of decision-making. However, Semet urged caution in interpreting the findings given litigants may “forum shop” from one jurisdiction to another to improve their chances of a successful outcome.196 6.2.3 Rules and procedures on panel courts Courts that employ judicial panels must establish, implement and develop rules, processes or customs on how judges work together to arrive at decisions. For example, appellate courts with discretionary jurisdiction must employ rules on how judges decide which cases ought to be heard. Multi-member courts must also have rules, processes or customs on how to put together judicial panels to hear particular cases and on how judicial panels deliberate towards judgment, either separately or together, after hearings. All of these rules, procedures and customs uniquely apply to panel courts where multiple judges are involved, and all may have a bearing on the decisions they produce. 6.2.3.1 Discretionary jurisdiction and effects on judicial decision-making On many apex courts, judges have discretionary jurisdiction; that is, they get to decide which appeals should be heard. Different courts adopt different methods to perform this

192 Lemley, Li and Urban (n 181). 193 Ibid. 1124. 194 Ibid. 1125. 195 Ibid. 1152. 196 Amy Semet, ‘Specialized Trial Courts in Patent Litigation: A Review of the Patent Pilot Program’s Impact on Appellate Reversal Rates at the Five-Year Mark’ (2019) 60 Boston College Law Review 519, 575.

213

DECISION-MAKING IN INSTITUTIONAL CONTEXT

filtering task.197 To give some examples, the US Supreme Court applies an informal “rule of four,” granting certiorari to hear a case if a minority of four judges think it should be heard.198 On other courts such as the Norwegian Supreme Court and the Irish Supreme Court, three-judge panels decide which cases should be granted leave to appeal. On the Norwegian Supreme Court, a three-judge panel called the Appeals Selection Committee fulfils this gatekeeping function, with judges sitting on it on a rotating basis.199 Unlike the “rule of four” on the US Supreme Court, the Norwegian Appeals Selection Committee will accept a case even if just one judge among the three concludes that it merits hearing.200 What effect does discretionary jurisdiction – and consequently, the different rules and processes for deciding which cases ought to be heard – have on decision-making? Judicial scholars identify an unsurprising trend: apex courts with discretionary jurisdiction tend to overturn lower courts’ decisions more often than courts without discretionary jurisdiction. This is to be expected because apex courts with discretionary jurisdiction are effectively mandated to choose so-called ‘hard’ cases – generally, cases that raise novel points of law or that are in the public interest. The Israeli Supreme Court offers an interesting opportunity to analyse the effects of discretionary jurisdiction. In some types of cases, the Court has mandatory jurisdiction – that is, it must hear cases where a litigant appeals to it. However, in other types of cases it has discretionary jurisdiction. In an archival analysis of all cases decided by the Court between 2006 and 2007, Eisenberg and his colleagues found that where the Court had mandatory jurisdiction, it affirmed the lower court’s ruling in about 70% of both criminal and civil cases. In cases where the Court had discretionary jurisdiction, it affirmed just 55% of criminal cases and about 31% of civil cases.201 Appellants were much more likely to succeed in cases where the Court had explicitly decided the appeal was worth hearing in the first place. Eisenberg, this time with other colleagues, performed a similar analysis of decisions made by all US state supreme courts in 2003.202 Some US state supreme courts have mandatory jurisdiction, some have discretionary jurisdiction, and some have a hybrid 197 Of course, there are also different legal criteria that must be met before an apex court will hear a case. These are generally concerned with selecting cases on the basis that they raise a novel point of law, or that they are of public interest. 198 Jeffrey R Lax, ‘Certiorari and Compliance in the Judicial Hierarchy: Discretion, Reputation and the Rule of Four’ (2003) 15 Journal of Theoretical Politics 61. We have seen already how judicial clerks play an important role in this case selection process. See section 6.1.2.1 Judicial assistants as gatekeepers on courts with discretionary jurisdiction. 199 Similarly, on the Irish Supreme Court, a panel of three judges from that Court considers applications for leave to appeal. See generally, Frank Clarke, ‘The Shape of Things to Come–the Conduct of Appeals in the Supreme Court after the 33rd Amendment’ in Eoin Carolan (ed), Judicial Power in Ireland (Institute of Public Administration 2018). 200 Appeals on the Norwegian Supreme Court are more likely to be heard if they raise constitutional issues, if they indicate conflict among the lower court, if they indicate that the law needs clarification or if the case has attracted substantial public attention. It rejects 80 to 90% of applications for leave to appeal. Gunnar Grendstad, William R Shaffer and Eric N Waltenburg, Policy Making in an Independent Judiciary: The Norwegian Supreme Court (ECPR Press 2015) 62–63. 201 Theodore Eisenberg, Talia Fisher and Issi Rosen-Zvi, ‘Israel’s Supreme Court Appellate Jurisdiction: An Empirical Study Symposium: The Future of Legal Theory: Essay’ (2010) 96 Cornell Law Review 693, 696. 202 Theodore Eisenberg and Geoffrey P Miller, ‘Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source’ (2009) 89 Boston University Law Review 1451.

214

DECISION-MAKING IN INSTITUTIONAL CONTEXT

between the two. Exploiting these different procedures, the researchers categorised 7,055 cases as a product of either mandatory or discretionary jurisdiction. They found that judges reversed the decision of the lower court in 51.6% of appeal cases where discretionary jurisdiction applied, compared to only 28.1% where mandatory jurisdiction applied.203 The researchers made no claim that jurisdictional rules caused particular outcomes, but they did conclude that a mandate to select cases profoundly influenced patterns of state supreme court outcomes.204 Another study led by Eisenberg analysed decision-making trends on the Taiwanese Supreme Court, presenting an interesting example of a court that underwent a transition from mandatory to discretionary jurisdiction in 2003.205 Comparing decisions either side of the transition, from 1996 to 2008, the researchers came to a surprising conclusion. Contrary to expectations, reversal rates remained largely the same before and after the transition from mandatory to discretionary jurisdiction in 2003.206 The Court remained an “error-correcting” institution as the researchers put it, primarily concerned with correcting the errors of other political branches, as opposed to one that was driven by political ideology.207 Aside from studies comparing reversal rates between courts with mandatory or discretionary jurisdiction, another strand of research considers whether judges use discretionary jurisdiction to cherry-pick cases for hearing that will likely lead to rulings that will further their particular policy goals. This phenomenon is often referred to as agenda-setting by scholars.208 One particularly sophisticated study on agenda-setting was Black and Owen’s analysis of US Supreme Court judges’ decisions on petitions for certiorari to the Court during the 1986 to 1993 terms.209 They found that judges tended to crystal-ball gaze, granting certiorari in cases where they believed that the Court’s decision to follow would go in their own preferred ideological direction. Conversely, they denied certiorari in cases where they preferred the current legal and ideological position on the matter as it stood.210 Epstein, Segal and Victor showed a dynamic interaction between the US Supreme Court and the legislative branch of government, the US Congress, in terms of how the Court exercised its discretionary jurisdiction to choose which cases it would hear. Analysing certiorari decisions from the Court’s 1946 to 1992 terms, the researchers showed that when the majority of judges on the Court were ideologically at odds with the corresponding Congress, they tended to grant certiorari to a higher proportion of constitutional cases, as opposed to statutory cases. The researchers suggested that the Court shifted its 203 Ibid. 1454. 204 Ibid. 1502. 205 Theodore Eisenberg and Kuo-Chang Huang, ‘The Effect of Rules Shifting Supreme Court Jurisdiction from Mandatory to Discretionary: An Empirical Lesson from Taiwan’ (2012) 32 The Economics of Efficiency and the Judicial System 3. 206 Ibid. 4. 207 Ibid. 15. 208 Ryan C Black and Ryan J Owens, ‘Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence’ (2009) 71 The Journal of Politics 1062; Lee Epstein, Jeffrey A Segal and Jennifer Nicoll Victor, ‘Dynamic Agenda-Setting on the United States Supreme Court: An Empirical Assessment’ (2002) 39 Harvard Journal on Legislation 395; Hersel W Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (Harvard University Press 2009); Roy B Flemming, Tournament of Appeals: Granting Judicial Review in Canada (UBC Press 2004). 209 Black and Owens (n 208). 210 Ibid. 1070–1072.

215

DECISION-MAKING IN INSTITUTIONAL CONTEXT

agenda-setting behaviour in this way because it was more difficult for Congress to override constitutional decisions than it was to override statutory decisions. Put another way, by opting for more constitutional cases in times when they were ideologically conflicted with Congress, the Court was picking its battles, becoming more assertive when they were at loggerheads with the legislators of the day.211 6.2.3.2 Composing judicial panels for cases The composition of judicial panels for specific cases, and the rules and customs governing how they are composed, are important factors to understand judicial decision-making on panel courts. As a general trend, where apex courts have discretion over panel composition, they will elect to sit in larger panels or as its full complement in particularly important cases. The recent significant UK Supreme Court judgment on the lawfulness of Prime Minister Boris Johnson’s decision to prorogue the Parliament is a good example.212 The President of the UK Supreme Court, Brenda Hale, ruled, “In view of the grave constitutional importance of the matter, and the disagreement between the courts in England and Wales and Scotland, we convened a panel of 11 Justices, the maximum number of serving Justices who are permitted to sit.”213 Judges also hint that the larger the panel, the greater the weight the judgment may carry. For example, in an important ruling that had implications for abortion rights in Ireland, Irish Supreme Court judge John MacMenamin, reflected on a precedent ruling of the same court, describing it as persuasive, but “albeit, a three panel court [emphasis added].”214 The implication here, perhaps, was that a judgment of a smaller panel of judges carried less weight. Arguably, this convention is reflected in the reverse pyramid structure that many court systems take – the premise being that important cases demand heightened scrutiny by more judges. Apex courts employ different rules, procedures or customs for determining what size panel should hear a case, which judges should sit on that panel, and who will issue the decision. For instance, on the UK Supreme Court, more than five judges should sit on a panel if a case is, among other criteria, of “high constitutional importance” or of “great public importance.”215 The Irish Supreme Court often sits in panels of three judges, but the Irish Constitution requires a minimum of five judges to hear cases concerning the important matter of the constitutional validity of an Act of the Oireachtas, the Irish parliament.216 The Court can also occasionally sit as a panel of seven judges for appeals “involving questions of law of particular importance or complexity.”217 On the other hand, 211 It should be acknowledged that these studies are just as much to do with a dynamic interaction of courts with other political branches – the subject matter of chapter 7 – as they are to do with internal rules on appellate courts’ jurisdiction. 212 R (on the application of Miller) v The Prime Minister, Cherry and others v Advocate General for Scotland [2019] UKSC 41. 213 Ibid. para 26. 214 Notes of author from attendance at hearing, Wednesday 21 February 2018, M (Immigration – Rights of Unborn) v Minister for Justice and Equality & ors, [2018] IESC 14. 215 ‘UK Supreme Court’ accessed 17 July 2020. On how panels are composed for cases on this court, see Chris Hanretty, ‘Panel Selection on the UK Supreme Court,’ Paper presented at the European Consortium for Political Research General Conference, Oslo on 8 September 2017 accessed 17 July 2020. 216 Article 26.2.1° of the Irish Constitution. 217 ‘Irish Supreme Court’ accessed 17 July 2020.

216

DECISION-MAKING IN INSTITUTIONAL CONTEXT

other leading courts will sit en banc, that is all available judges will sit on all cases, for instance, on the US Supreme Court. How panels are composed can have consequences for case outcomes. Hunter, commenting on the changing composition of the UK Supreme Court, observed how “constantly changing groups . . . creates the possibility for many different conversations depending on the particular combination of justices hearing each case, and hence differences of views and approaches can play out differently in different contexts.”218 Despite the possible consequences, there is relatively little research on how exactly panels of judges are put together.219 There are occasional high-profile instances when panel composition is a source of internal wrangling within a court, sometimes spilling over into the public consciousness. In 2018, four of the senior-most judges on the Indian Supreme Court held a press conference accusing the current and former chief justices of selectively assigning cases to their preferred panels without, they said, any rational basis for such assignment.220 The four judges effectively levelled accusations of bias against their colleagues on the Court, suggesting that holders of the top judicial office were trying to influence justice by allocating sensitive cases to particular judges to achieve particular judicial outcomes.221 Another example of a similar flare-up occurred on the Irish Supreme Court bench in 1984. Tensions emerged between two judges on the Court, Brian Walsh and the Chief Justice Tom O’Higgins. Walsh reported to the media that he felt he had been deliberately left off the bench by the Chief Justice for a politically sensitive extradition hearing.222 The implication was clear. Walsh had been left off the court because he was likely to have a different view to the Chief Justice and to oppose the extradition.223 High profile instances aside, empirical research on this particular issue is relatively scarce. What research there is focuses on chief justices empanelling judges who are likely to adhere to their preferences in specific cases and case types.224 For instance, studies have considered whether chief justices in South Africa during the apartheid era manipulated panel compositions on the South African Supreme Court.225 Ellman’s study of that Court under Chief Justice Pieter Rabie during the apartheid era from 1982 to 1989 showed that the panels he selected were dominated by five conservative judges, suggesting a bid to rebuff citizens’ challenges to the government’s policy of a state of emergency during 218 Rosemary Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-Making’ (2015) 68 Current Legal Problems 119, 138. 219 Chris Hanretty notes that there is “surprisingly little research on how panels of judges are put together,” Hanretty (n 215) 105. 220 Open letter issued by Indian Supreme Court judges J Chelameshwar, Ranjan Gogoi, Madan B Lokur, Kurian Joseph on 12 January 2018. 221 ‘Judges on India’s Supreme Court Accuse the Chief Justice of Bias–Bench Press’ The Economist (18 January 2018) accessed 17 July 2020. 222 The hearing concerned the extradition of a well-known member of the Irish Republican Army, Dominic McGlinchey. 223 Ruadhán Mac Cormaic, The Supreme Court (Penguin 2016) 236. 224 Stacia Haynie, ‘Judicial Decision-Making and the Use of Panels in the South African Appellate Division, 1950–1990’ (2002) 29 Politikon 147; Lori Hausegger and Stacia Haynie, ‘Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division’ (2003) 37 Law & Society Review 635; Kaitlyn L Sill, Joseph Daniel Ura and Stacia L Haynie, ‘Strategic Passing and Opinion Assignment on the Burger Court’ (2010) 31 Justice System Journal 164. 225 Hausegger and Haynie (n 224) 642.

217

DECISION-MAKING IN INSTITUTIONAL CONTEXT

that time.226 Ellman referred to this group of judges as the “emergency team” and noted that any member of the Court who dissented on the issue never again sat on a state of emergency case during Rabie’s tenure.227 A later study by Hausegger and Haynie found that chief justices on the Canadian and South African Supreme Court tended to assign civil rights and civil liberties cases to judges that they were most aligned to their political preferences.228 In Canada, the chief justice also tended to opt for more experienced, senior judges in these cases, perhaps because they tended to receive the most attention from the media and the public.229 These correlations suggested that chief justices on both courts appeared to use their power over panel composition, perhaps to further their policy goals. 6.2.3.3 Deliberation on panel courts Another important aspect of decision-making by judicial panels are the processes, customs or rules that govern how judges deliberate together, to work towards drafting their decisions. Of course, courts’ deliberation processes generally occur privately behind closed doors.230 The processes governing deliberation can be quite opaque and often based on customs and traditions rather than prescribed rules. Deliberation processes differ quite dramatically from one court to another and can even fluctuate from time to time on specific courts. Some judges on leading courts have commented on the collaborative processes they use. Recently retired President of the UK Supreme Court Brenda Hale described how on that Court, “traditions of collaboration wax and wane over time according to the personalities and preferences of the Justices involved.”231 She described how in the past colleagues had tended not to comment on each other’s draft judgments but that this became more commonplace.232 This illustrates how fluid decision-making processes are on one of the world’s leading courts over the space of just a few years. Going back to the House of Lords era, Paterson described observing Law Lords’ informal interactions after hearings. He referred to constant discussions as the Lords filed from the courtroom, in the lift, as they drifted towards their rooms, as they lunched together (although in separate groups), and during informal 15-minute corridor meetings.233 These were likely occasions when significant decisions were made, despite the informal contexts, Paterson explained. Other panel courts have more regimented deliberation processes. Writing about his experience on the US Court of Appeals for the District of Columbia, Harry T Edwards 226 Hausegger and Haynie (n 224); Stephen Ellmann, In a Time of Trouble: Law & Liberty in South Africa’s State of Emergency (Oxford University Press 1992). 227 Ellmann (n 226) 64–65. 228 Hausegger and Haynie (n 224) 651. 229 Ibid. 230 Although, not always. See further, Felipe Lopes, ‘Television and Judicial Behavior: Lessons from the Brazilian Supreme Court’ (2018) 9 Economic Analysis of Law Review 41. 231 Brenda Hale, ‘Judgment Writing in the Supreme Court’ (2010) 3 accessed 17 July 2020. 232 Ibid. Her colleague Lord Neuberger agreed, describing how he and his colleagues sent each other draft judgments, discussed matters by email and arranged meetings which have different purposes, sometimes to see whether they can agree on a single judgment, sometimes to reduce or eliminate differences, and sometimes for competing views to be discussed. Lord Neuberger, ‘The Role of the Supreme Court Seven Years On: Lessons Learnt’ (2016) para 41 accessed 17 July 2020. 233 Paterson (n 50) 89.

218

DECISION-MAKING IN INSTITUTIONAL CONTEXT

described how the most senior judge presided during scheduled conferences, with judges speaking in inverse order of seniority.234 Edwards’ view was that this, among other rules, helped keep the process “professional, respectful, and orderly.”235 The same format applies on the Irish Supreme Court; the tradition is for the most recent appointee to speak first at deliberation.236 This approach contrasts with judges’ deliberation conferences on the US Supreme Court. No one is allowed in the room during these conferences except the judges – if something is needed, the most junior judge calls to make the request. Deliberations begin with the Chief Justice presenting the facts of the case, who then offers his or her personal view on it and casts his decision.237 The other judges then present and decide in order of seniority until the Court’s newest member decides last.238 The Norwegian Supreme Court follows a similar format: the Chief Justice starts deliberations, and each judge offers his or her views in order of descending seniority.239 Darbyshire’s illuminating all-access account of the English and Welsh judiciary described how different judges on the Court of Appeal had different approaches to deliberation. Some experienced judges always sought the views of their junior colleagues before expressing any opinion, for example.240 Does deliberation affect case outcomes?241 And, by extension, do different processes for deliberation have different effects on decisions? Posner contended that “judicial deliberation is overrated,” going so far as to suggest that “the fact that they do not deliberate . . . very much is the real secret.”242 However, empirical studies present evidence to the contrary. Studies identify fluidity in judges’ decision-making before and after deliberation on the US Supreme Court, for example. In the 1969 to 1985 terms of the US Supreme Court, at least one judge changed the direction of their decision in 36.6% cases.243 On average, an individual judge switched 7.5% of the time.244 These findings suggest that group deliberation – howsoever conducted – does affect judicial outcomes on the Court.245 Researchers also parse out how different rules and customs governing the deliberation process can also have an effect. Epstein and Knight reported from empirical data on the 234 Lee Epstein, William Landes and Richard Posner also note that this is the procedure on many US courts of appeals. Lee Epstein, William M Landes and Richard A Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press 2013) 306. 235 Harry T Edwards, ‘The Effects of Collegiality on Judicial Decision Making’ (2003) 151 University of Pennsylvania Law Review 1639, 1665. 236 Mac Cormaic (n 45) 290. 237 Timothy R. Johnson, ‘The Supreme Court Decision Making Process’ 16 accessed 17 July 2020. 238 Lee Epstein and Jack Knight, The Choices Justices Make (Sage 1997). 239 Grendstad, Shaffer and Waltenburg (n 200) 66. 240 Penny Darbyshire, Sitting in Judgment: The Working Lives of Judges (Bloomsbury Publishing 2011) 337. 241 The empirical studies described here overlap with the themes of psychological group decision-making phenomena described in chapter 2. See section 2.5 Group psychology effects on judicial panels’ decision-making. 242 Richard A Posner, How Judges Think (Harvard University Press 2010) 2. Posner, together with his colleagues Epstein and Landes echo this sentiment: “[J]udicial deliberation, in short, is overrated.” Epstein, Landes and Posner (n 234) 308. Posner refers to his own experiences and the writings of two other American judges to support this contention. Patricia M Wald, ‘Some Real-Life Observations About Judging’ (1992) 26 Indiana Law Journal 173; William H Rehnquist, The Supreme Court (Vintage 2007) 254–255 and 258. 243 Forrest Maltzman and Paul J Wahlbeck, ‘Strategic Policy Considerations and Voting Fluidity on the Burger Court’ (1996) 90 American Political Science Review 581, 587. 244 Ibid. 245 On this theme, see also Timothy R. Johnson’s crowd-sourced research project to transcribe the private notes of certain US Supreme Court to better understand their deliberations. ‘SCOTUS Notes: Behind the Scenes at Supreme Court Conference’ accessed 17 July 2020.

219

DECISION-MAKING IN INSTITUTIONAL CONTEXT

US Supreme Court that judges who got to present their views first during deliberation sometimes attempted to manipulate the agenda of subsequent deliberations.246 A later study by Johnson and his colleagues, also on the US Supreme Court, highlighted the advantage of going first in deliberations. Using former US Supreme Court Justice Lewis Powell’s notes as data, they found that the presiding Chief Justice would forego his turn to offer his thoughts at conference discussions in order to glean more information from his colleagues. The Chief Justice, then more certain where his colleagues stood, would thus have more information at his disposal to strategically assign the writing of the majority’s judgment to a judge who most closely aligned to his preferred position.247 Experimental research on mock juries complements this archival work. Davis and his colleagues showed the order in which individual mock jurors gave their decision had an impact on the overall group decision.248 They found that the critical fourth voter in six-person mock juries was significantly influenced in their decision by the preceding sequence of votes. If this might be significant in a mock jury scenario, might it be significant, albeit in perhaps more subtle ways, for judicial panels? Experimental studies investigating judicial decision-making tend to focus on individual judges making individual decisions. There is little experimental research exploring the specific issue of how group dynamics and group decision-making processes may impact decision-making by judicial panels. Thomas and Genn’s study, Understanding Tribunal Decision-making, is an exception.249 It investigated the impact of deliberation on judicial decision-making using practising adjudicators as participants to decide a hypothetical but ‘real-life’ case that mirrored those that they ordinarily decided in their daily work. Using a case simulation, 66 tripartite tribunal panels around the UK decided the same hypothetical case, a claim about Disability Living Allowance, in the course of their normal working day. Among other things, the researchers investigated whether decisions made after panels’ deliberations were different from individual adjudicators’ initial decisions before deliberations. Overall, 22% of panel members changed their initial view on whether to reject or allow the appeal after they had deliberated with colleagues.250 Group deliberation had a clear impact in this experimental context. The researchers also found that panels’ final decisions typically reinforced the majority’s initial view of the case and rarely altered it – evidence perhaps of group polarisation, a theme described earlier in chapter 2.251 Individual panel members were more likely to change their mind on a case where both of the other members on the panel were more experienced than them, compared to when only one of the two other members had more experience than them.252 Participants also themselves acknowledged the considerable influence their colleagues had on their decision-making. Thirty-nine percent of panel members felt that their decision in the case would, or may have been, different if they had 246 Epstein and Knight (n 238) 88. 247 Timothy R Johnson, James F Spriggs and Paul J Wahlbeck, ‘Passing and Strategic Voting on the US Supreme Court’ (2005) 39 Law & Society Review 349. 248 James H Davis and others, ‘Some Social Mechanics of Group Decision Making: The Distribution of Opinion, Polling Sequence, and Implications for Consensus’ (1989) 57 Journal of Personality and Social Psychology 1000. 249 Cheryl Thomas and Dame Hazel Genn, ‘Understanding Tribunal Decision-Making’ (Nuffield Foundation 2013). 250 Ibid. 11. 251 Ibid. 12. 252 Ibid. On group polarisation, see section 2.5.2 Negative effects of group decision-making.

220

DECISION-MAKING IN INSTITUTIONAL CONTEXT

not had the benefit of deciding the case as a panel.253 The researchers also found that the specific expertise of each type of panel member was substantially relied upon by colleagues.254 These findings show how group deliberation affects judicial outcomes. The evidence presented by this experimental study suggests individuals’ decisions were affected by panel deliberation, by their colleagues’ experience and expertise and by the view of the majority on a panel. More experimental research would help to better understand these seemingly crucially important dynamics during deliberation and their consequent effects for judicial panels’ decisions. 6.2.4 The physical courtroom environment: courtroom layout and design The layout and design of courtrooms may have a bearing on how justice is done.255 A raised floor where judges look down on lawyers and parties,256 a curved bench where judges can observe their colleagues on panel courts,257 or a national symbol behind a judge’s chair258 can all convey meaning, and maybe even alter discourse and psychology in the courtroom. Court and courtroom architects may wish to communicate different atmospheres and meaning.259 To give one potent example, the architects for the German Federal Constitutional Court used glass as a metaphor for transparency to reflect on the aftermath of the atrocities of the Third Reich.260 Although difficult to isolate as a specific variable, there is some empirical evidence to suggest that aspects of courtroom layout and design affect how judges perform their duties. Black, Johnson and Owens investigated how one subtle layout change to the US Supreme Court – the installation of a curved judicial bench in 1972 – affected how judges dialogued with each other during hearings.261 Chief Justice Warren Burger had the bench installed before the 1972 term, wanting judges to be able to see each other and thereby improve communication between them.262 One of his colleagues on the bench, William Douglas, thought it “as useless and unnecessary as a man’s sixth Cadillac.”263 However, Chief Justice Burger’s innovation may well have achieved his desired result. 253 Ibid. 15. 254 Ibid. 255 Mulcahy argues that “understanding the factors which determine the internal design of the courtroom is crucial to a broader and more nuanced understanding of judgecraft. . . . Each time a floor is raised it has the potential to become the physical manifestation of hierarchy and power.” Linda Mulcahy, ‘Architects of Justice: The Politics of Courtroom Design’ (2007) 16 Social & Legal Studies 383, 383. 256 Ibid. 385. Interestingly, a deliberate decision was taken to have judges and lawyers seated at the same level when designing the UK Supreme Court. 257 Ryan C Black, Timothy R Johnson and Ryan J Owens, ‘Chief Justice Burger and the Bench: How Physically Changing the Shape of the Court’s Bench Reduced Interruptions during Oral Argument’ (2018) 43 Journal of Supreme Court History 83. 258 Mulcahy suggests that a national symbol such as a coat of arms placed behind a judge’s chair “makes clear the full authority of the state and legitimate force is behind the judge.” Mulcahy (n 255) 385. 259 David DesBaillets, ‘Representing Canadian Justice: Legal Iconography and Symbolism at the Supreme Court of Canada’ (2018) 14 International Journal of Law in Context 132. 260 Mulcahy (n 255) 384; Thorsten Bürklin, Das Bundesverfassungsgericht in Karlsruhe: Architektur Und Rechtssprechung (Springer 2004). 261 Black, Johnson and Owens (n 257). 262 Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (Simon and Schuster 1979) 31. 263 Clare Cushman, Courtwatchers: Eyewitness Accounts in Supreme Court History (Rowman & Littlefield Publishers 2011) 110.

221

DECISION-MAKING IN INSTITUTIONAL CONTEXT

Black, Johnson and Owens compared the transcripts of oral argument in the ten terms before and after the installation of the new bench. They found that the judges interrupted their colleagues less frequently after the new curved bench was installed compared to when they sat behind the old, straight bench. Judges seated farthest from centre benefitted the most from the new bench, experiencing the biggest decrease in interruptions.264 This change may have enhanced collegiality on the Court, the researchers concluded.265 Although Ryan, Johnson and Owens’ study presented a unique insight into how the layout of the courtroom can affect how judges interact with each other, they did not make any claims about how the new bench may have affected case outcomes. However, other researchers have devised controlled experiments to investigate how changing an aspect of courtroom layout may affect decision-making, albeit using mock jurors, rather than judges as participants. Rossner and her colleagues investigated the traditional use of the dock in a courtroom for criminal proceedings.266 The dock arguably has connotations of guilt; accused persons venture back and forth from their confined space in the courtroom. Even the word “dock” arguably insinuates guilt, deriving from a Flemish or Middle Dutch word, dok, meaning pen or rabbit hutch.267 Is placing an accused person in a dock prejudicial to the accused?268 Rossner and her colleagues demonstrated that jurors were indeed more likely to convict defendants when they were located in a traditional dock or a ‘secure dock’, compared to when they sat next to their lawyers at the bar table.269 The study relied on the verdicts of 404 participants who sat in on a 45-minute hypothetical trial performed by actors nine times over three days in a trial court in Sydney. The experimental variable placed the position of the accused in one of three positions: at the bar table, in an open dock or in a glass dock. Mock jurors who saw the accused in a dock, either open or glass, had a guilt level 14 percentage points higher than those who saw him at the bar table. The effect size was virtually identical between the open and glass docks. While the result cannot necessarily be extrapolated to judges’ decision-making, the finding is striking nonetheless. One change to a court’s layout may have a profound effect on court outcomes. These two studies capture the nuanced ways courtroom layout and architecture can affect discourse in the courtroom and maybe even legal decision-making. 6.2.5 Conclusions on courts’ operations, and layout and design All told, a court’s operations, and layout and design can have significant consequences for how judges decide cases. In terms of trial mode, judicial systems can generally be 264 Black, Johnson and Owens (n 257) 92–94. 265 Ibid. 94–95. 266 Meredith Rossner and others, ‘The Dock on Trial: Courtroom Design and the Presumption of Innocence’ (2017) 44 Journal of Law and Society 317. 267 Ibid. 319. 268 A further consideration is litigants’ appearance in the courtroom owing to institutional requirements for criminal litigants to wear, for example, prisoner uniforms or shackles. A recently published PhD dissertation by Frank demonstrates through a series of mock jury trials that mock jurors are more punitive when judging accused persons wearing prisoner garb and/or shackles than they are when judging those not required to do so. Hannah Jean Frank, ‘Appearance Discrimination in Criminal Court’ (Doctoral dissertation, Vanderbilt University 2019). On this matter generally, see Raneta Lawson Mack, ‘Of Docks and Shackles: A Comparative Examination of Courtroom Control and the Rights of the Accused’ (2018) 9 Wake Forest Journal of Law & Policy 311. 269 Rossner and others (n 266).

222

DECISION-MAKING IN INSTITUTIONAL CONTEXT

categorised as either adversarial or inquisitorial, although sometimes they operate a hybrid of the two. Research investigating the consequences of employing one or the other trial mode is somewhat difficult to execute because of deeply embedded traditions within jurisdictions. There is some evidence to suggest that adversarial trial modes may help to dampen bias better than inquisitorial modes can. However, findings are limited, and debates will no doubt persist as to which trial mode is superior. The growing complexity of litigation makes judicial specialisation attractive. However, empirical evidence to suggest that judicial specialisation improves the quality of decision-making is underwhelming. Experimental studies indicate that specialist judges may be just as susceptible to harmful heuristical reasoning as much as generalist judges are. Archival research investigating decision-making trends is at an early stage and rather context-specific. Robust evidence that heightened judicial specialism leads to qualitatively better outcomes is minimal. Rules and customs governing judicial panels have specific consequences for their decision-making. Unsurprisingly, researchers find that appellate courts with discretionary jurisdiction generally tend to overturn more lower-court decisions than appellate courts with mandatory jurisdiction do. Studies also find that judges operating on judicial panels sometimes strategically select cases for hearing to further their individual policy goals. As for putting together judicial panels for specific cases, chief justices sometimes wield their powers in this regard to opt for judges more likely to rule in their preferred policy direction in certain types of cases. With regards to how judicial panels deliberate together, different apex courts employ different processes – some formal, some informal. Despite some suggestions that deliberation is a relatively uninfluential stage in the judicial process, more commonly, practising judges acknowledge that they are influenced and persuaded by their colleagues. Archival and experimental research confirms this dynamic, demonstrating that deliberations are indeed an important part of the decision-making process. All told, how judges interact with each other on panel courts, and the rules and procedures that govern those interactions, can have an impact on the decisions they make. Given judicial panels operate on many of the world’s leading and most influential courts, this relatively uncharted area of research is rich with opportunities to improve understanding and knowledge of these important dynamics. Finally, some researchers show how subtle differences in the layout of the courtroom can affect decision-making. That said, there are no studies directly on how judges are affected in their decision-making by courtroom layout. Further experimental research could investigate how alterations to courtroom layouts and designs could have such an effect. Having considered in-court influences, in the next chapter we turn our attention to the wider institutional context in which judges make their decisions to investigate beyondcourt influences on judicial decision-making.

223

CHAPTER 7

Judicial decision-making in an institutional context Beyond-court influences

Judges know that their decisions can be scrutinised, not just by the parties involved in the case, but by other audiences outside the courtroom. Judges may, therefore, bear in mind other institutions beyond the door of their court when they deliver their judgments. Appellate courts, fellow judges in the broader judicial community, other branches of government, individual political actors, the public and the media may all, at one time or another, weigh on a judge’s mind. These other audiences can be categorised as external institutions that exert, to varying degrees, influence over judges when deciding particular cases. Judges, therefore, will perceive themselves as actors in a wider system of external, interrelated institutions. Judicial scholars, most prominently Epstein and her colleagues, propose that judges, viewed in this light, make decisions strategically, tailoring their decisions in response to these institutions.1 Judges may use their decisions to send messages from the bench, engaging in a sort of dialogue with, for example, other courts, fellow judges from other jurisdictions, governments, the public and the media. Equally, judges may weigh up what these institutions’ reactions to their decisions may be. Judges may tweak their judgments to avoid being reversed on appeal by an upper court. Sometimes, they may fear reaction, pressure or even direct reprisal from government or other political actors, or from the public as a consequence of their judgments. Worse still, in jurisdictions where judicial independence is not robust, judges may be concerned that if they persist with a particular pattern of decision-making, this may harm their careers. Governments may take action against judges to worsen their terms and conditions of employment, scupper their chances of promotion, or even remove them from judicial office altogether. Judges may also anticipate public and media backlash when deciding cases on sensitive, ‘hotbutton’ issues. In all of these situations, judges anticipate how institutions around them might react before they issue their decisions and, therefore, tailor them bearing these interests in mind. On the other hand, external institutions – more specifically, government actors – may sometimes exert their control over operating judicial systems to fundamentally affect the decisions that judges produce. For example, governments may use their powers over judicial appointments to pack courts with loyal appointees who will do their bidding in

1 Lee Epstein and Jack Knight, The Choices Justices Make (Sage 1997); Lee Epstein and Tonja Jacobi, ‘The Strategic Analysis of Judicial Decisions’ (2010) 6 Annual Review of Law and Social Science 341. For an account of the strategic model, see section 4.5.3 The strategic model.

224

DECISION-MAKING AND BEYOND-COURT INFLUENCES

particular areas of the law. Governments exerting their powers in this way may profoundly affect judicial decision-making in that jurisdiction.2 Collectively, the factors and influences described here that external institutions bring to bear on judges’ decision-making can be categorised as beyond-court influences. This chapter explores how each of these institutions can affect judicial decision-making. The institutions are: • • • • •

other courts in a court system; other branches of government; other judges from other jurisdictions; the public; and the media.

Before considering each separately, it is worth clarifying where the research described in this chapter fits in with other chapters in this book. While the subject matter of this chapter may overlap with others, the perspective of the empirical research described here shifts away from considering judges’ internal motivations to the influence external institutions have over judges. The distinction can be thought of as follows: other chapters consider bottom-up influences – the motivations and preferences of the individual judges themselves – whereas here top-down influences are considered, those provoked by external institutions. Admittedly, this distinction can sometimes be a little unclear, and empirical research may overlap to a degree. To offer two examples of where overlap may occur: in chapter 3 we considered how judges might themselves be concerned with income, reputation and prestige.3 But, of course, the givers of that income, or reputation and prestige are external institutions: governments, the public and the media, for example. This chapter considers research on how these external institutions wield their powers over such to affect judges’ thinking. Similarly, in chapter 4 we considered judges’ personal political views when deciding cases. In this section, we return to political influences in judging, but this time from the perspective of research on how governments and politicians use their influence to encourage or even induce judges into particular patterns of decision-making. We turn first to how judges interact with and are influenced by the first beyond-court influence: that of judges on other courts within the same judicial system. 7.1 Other courts in the judicial system: judicial decision-making in a hierarchy Judicial scholars propose different models for how judges on lower and higher courts interact with each other. One model is to conceptualise upper and lower courts as being in a “principal-agent” relationship; that apex courts act as the “principal” court which 2 Of course, here we enter the territory of constitutional law concepts, in particular, the separation of powers and concerns for judicial independence. The conceptual boundaries of judicial independence are the subject of much academic debate. See Jeffrey Kaplan Staton, ‘Judicial Independence Research beyond the Crossroads’ in Lee Epstein and Stefanie A Lindquist (eds), The Oxford Handbook of US Judicial Behavior (Oxford University Press 2017) 357. For further consideration of the meaning of judicial independence, see Stephen B Burbank, ‘What Do We Mean by Judicial Independence?’ (2003) 64 Ohio State Law Journal 323. 3 See section 3.2 Reputation, prestige and influence.

225

DECISION-MAKING AND BEYOND-COURT INFLUENCES

sets policies, and lower courts act as their “agents” to implement them.4 Other researchers conceive of higher courts’ role in overturning lower courts’ decisions as a means of “error-correction” within the judicial system.5 Appellate courts with discretionary jurisdiction may pick cases to review as a means of “strategically auditing” lower courts’ decisionmaking.6 Judges on lower courts may fear the prospect of an appellate court overturning their decisions, sometimes modifying their decisions as a result; a phenomenon labelled “reversal aversion.”7 Lower court judges may, therefore, strategically anticipate how the court above them may react to their decision.8 Another perspective is that sometimes lower courts can themselves act as a check on higher courts.9 These different theories and models form the basis of empirically testable hypotheses investigating how judges from different courts within the same judicial system can interact with each other and affect each other’s decisions. Save for one notable exception of a study on the UK judiciary, systematic research on interactions between judges on different courts in a judicial system are confined to the US judicial system.10 Suffice to say, a judgment on appeal is a review of a lower court’s decision and is primarily an exercise in legal interpretation. However, sometimes appellate judges may directly address the lower court judge in their judgment, going beyond mere differences in how laws should be interpreted. Consider, for instance, Lord Wilson’s decision in the UK Court of Appeal’s decision in Jones v Jones, a divorce case in 2011. Allowing the appeal, he criticised the preceding judgment of the High Court for being “far too long, too discursive and too unwieldy. I have devoted days to trying to understand it. So have

4 Donald R Songer, Jeffrey A Segal and Charles M Cameron, ‘The Hierarchy of Justice: Testing a PrincipalAgent Model of Supreme Court-Circuit Court Interactions’ (1994) 38 American Journal of Political Science 673; Tom S Clark, ‘A Principal-Agent Theory of En Banc Review’ (2008) 25 The Journal of Law, Economics, & Organization 55. Moe described the principal-agency theory as follows: The principal-agent model is an analytic expression of the agency relationship, in which one party, the principal, considers entering into a contractual agreement with another, the agent, in the expectation that the agent will subsequently choose actions that produce outcomes desired by the principal.

Terry M Moe, ‘The New Economics of Organization’ (1984) 28 American Journal of Political Science 739, 756. 5 Steven Shavell, ‘The Appeals Process as a Means of Error Correction’ (1995) 24 The Journal of Legal Studies 379. 6 Charles M Cameron, Jeffrey A Segal and Donald Songer, ‘Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court’s Certiorari Decisions’ (2000) 94 American Political Science Review 101; Matthew L Spitzer and Eric L Talley, ‘Judicial Auditing’ (2000) 29 Journal of Legal Studies 649. 7 David E Klein and Robert J Hume, ‘Fear of Reversal as an Explanation of Lower Court Compliance’ (2003) 37 Law & Society Review 579. 8 Kirk A Randazzo, ‘Strategic Anticipation and the Hierarchy of Justice in US District Courts’ (2008) 36 American Politics Research 669; Christina L Boyd and James F Spriggs, ‘An Examination of Strategic Anticipation of Appellate Court Preferences by Federal District Court Judges’ (2009) 29 Washington University Journal of Law & Policy 37. 9 Walter F Murphy, ‘Lower Court Checks on Supreme Court Power’ (1959) 53 American Political Science Review 1017. 10 Ali S Masood and Monica E Lineberger, ‘United Kingdom, United Courts? Hierarchical Interactions and Attention to Precedent in the British Judiciary’ (2019) Political Research Quarterly 1065912919853368. Other researchers on the Australian judiciary have investigated citation patterns there. Mita Bhattacharya and Russell Smyth, ‘The Determinants of Judicial Prestige and Influence: Some Empirical Evidence from the High Court of Australia’ (2001) 30 The Journal of Legal Studies 223; Russell Smyth, ‘What Do Intermediate Appellate Courts Cite? A Quantitative Study of the Citation Practice of Australian State Supreme Courts’ (1999) 21 Adelaide Law Review 51.

226

DECISION-MAKING AND BEYOND-COURT INFLUENCES

the parties’ advisers, at substantial further cost to the parties themselves.”11 Wilson clearly felt it necessary to use his judgment to admonish the quality of the lower court’s decision.12 Although such an explicit rebuke may be relatively rare, researchers investigate whether appellate judges send more subtle signals to lower courts about decisions they disagree with. Perry’s study on agenda-setting on the US Supreme Court investigated whether judges and their clerks made strategic decisions to grant certiorari in some cases over others, in such a way as to send messages to lower courts.13 Through interviews with several clerks on that Court, Perry noted that they frequently spoke of the need to “slap the wrist” of a lower court judge, by deciding to take a case that would not otherwise have necessarily merited certiorari.14 This would occur where the lower court judge’s decision displayed “a cavalier disregard for a precedent,” suggested one clerk.15 In a similar vein, empirical research by Cameron and his colleagues reported that the US Supreme Court used the certiorari process to pick lower court decisions that they tended to disagree with ideologically, a form of strategic auditing of lower courts.16 They compiled a dataset of search-and-seizure cases from the US Supreme Court under Chief Justice Warren Burger, which was ideologically more conservative on this issue than lower courts were. The researchers found that the Court tended to grant certiorari to review liberal decisions of lower courts more so than to review conservative decisions.17 This finding suggests that the upper court, in this case the US Supreme Court, sent a message to lower courts that they disagreed with on a particular area of law; a dialogue of sorts whereby the upper court signalled its agenda to lower courts. Colley and Wedeking presented another perspective on the dialogue between higher and lower courts.18 They analysed the assertiveness of the language used in different US Supreme Court decisions and investigated whether lower courts reacted to them differently as a consequence. They showed that when judgments were couched in more certain, less equivocal language, lower courts responded to this, tending to positively cite these judgments more often than they cited judgments with less certain, more equivocal language. This study suggests another dynamic at play within judicial hierarchies: if judges on higher courts want lower courts to follow their lead, they may improve their prospects by expressing their judgments in clear and certain terms to enhance the persuasiveness of their message.

11 Jones v Jones [2011] ECWA Civ 41, para. 3. 12 Another example can be found in the UK Court of Appeal case of Howell & Ors v Lees Millais & Ors. The Court of Appeal found that the trial judge, Peter Smith, was wrong to refuse to recuse himself in a case in which he was said to have had a vested interest. Master of the Rolls, Anthony Clarke, for the Court of Appeal criticised aspects of Judge Peter Smith’s discourse during a solicitor’s submissions as “extraordinary,” “quite wrong,” and “intemperate.” [2007] EWCA Civ 720, para. 22 and 25. 13 Hersel W Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (Harvard University Press 2009). 14 Ibid. 267. 15 Ibid. 16 Cameron, Segal and Songer (n 6). Matt Spitzer and Eric Talley also posit the theory of strategic auditing within the judicial hierarchy. Spitzer and Talley (n 6). 17 Cameron, Segal and Songer (n 6) 113. 18 Pamela C Corley and Justin Wedeking, ‘The (Dis) Advantage of Certainty: The Importance of Certainty in Language’ (2014) 48 Law & Society Review 35.

227

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Aside from higher courts overseeing lower courts, do lower court judges fear that their decisions will be reversed on appeal and modify their judgments accordingly? Elsewhere we have seen judicial scholars contend that judges, fearing reversal by an appellate court, may decide cases differently out of self-interested, personal reputational concerns.19 Whether apparent adjustments in lower court judges’ decision-making are derived from concerns of individual self-interest and reputation or whether such adjustments amount to institutional dialogue between lower and higher courts is difficult to distinguish. Whatever the case, researchers investigate this phenomenon using a variety of methodologies. Some researchers interview lower court judges, and some analyse whether lower court judges strategically opt for particular legal arguments that may be more palatable to appellate courts. Others compare whether judges on lower courts are less policy-driven than their counterparts on upper courts are. Empirical evidence is highly concentrated on US judicial decision-making, and overall, evidence that judges are motivated to modify their decisions out of concerns of appellate review is mixed. To broadly summarise the findings, researchers find clearer evidence that judges on lower courts tend to be more concerned with being reversed on appeal than judges further up the hierarchy. To take the upper tiers of the US judicial system first, Klein empirically tested whether US courts of appeals judges feared reversal on appeal. He found no evidence to draw firm inferences that courts of appeals judges complied with the US Supreme Court out of fear of reversal.20 In a later study, Klein and his colleague Hume came to much the same conclusion.21 Using a sample of search and seizure cases from 1961 through 1990, they identified important cases published by district court judges – ones that would set a precedent. Klein and Hume investigated if in these important cases, judges were more inclined to follow the Supreme Court’s preferences more closely, perhaps anticipating that Court’s scrutiny and fearing reversal. The researchers found no evidence for this. In fact, they found evidence to the contrary: instead of acting more cautiously in cases that seemed to have a better chance of reaching the Supreme Court, the judges were actually less likely to decide these cases in directions that the Supreme Court would be expected to.22 Barnes Bowie and Songer’s interview study with 28 US courts of appeals judges corroborated this finding.23 Judges reported that they were not clear which of their decisions were likely to be reviewed by the Supreme Court in the first place24 and perceived the costs of reversal as much too small to motivate them to change their decisions. Although an earlier mail survey study of the same cohort of judges reported that a majority of responding judges (57%) felt that the Supreme Court’s reaction to their decisions was either “important” or “very important” in their decision-making,25 this was a relatively low-level concern for them compared to other factors, placing sixth among other possible influences on their decision-making. Overall then, evidence suggesting that US judges modify their 19 See section 3.2 Reputation, prestige and influence. 20 David E Klein, Making Law in the United States Courts of Appeals (Cambridge University Press 2002) 126–129. 21 Klein and Hume (n 7). 22 Ibid. 597. 23 Jennifer Barnes Bowie and Donald R Songer, ‘Assessing the Applicability of Strategic Theory to Explain Decision Making on the Courts of Appeals’ (2009) 62 Political Research Quarterly 393. 24 Ibid. 393. 25 J Woodford Howard, Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth and District of Columbia Circuits (Princeton University Press 1981).

228

DECISION-MAKING AND BEYOND-COURT INFLUENCES

decision-making out of fear of reversal by the Supreme Court is unconvincing. These studies only speak to fear of reversal by one court in one jurisdiction. Indeed, crunching the numbers, the chance of reversal by the US Supreme Court is “vanishingly small”26 to the point that it is unlikely to affect decision-making behaviour. On other courts, maybe where reversal is much more likely, the dynamic might be different.27 Smith and Tiller did, however, report that courts of appeals judges reasoned certain cases in particular ways to improve their chances that their preferred outcome would withstand scrutiny if it went all the way to the Supreme Court.28 Specifically, they analysed judges’ different modes of legal reasoning in cases reviewing decisions of the US environmental regulator, the Environmental Protection Agency (EPA), and found that judges seemed to strategically base their decisions on particular legal grounds that would limit the prospects of reversal by the Supreme Court.29 The researchers contended that their findings demonstrated that judges strategically chose legal reasoning more likely to pass muster in the Supreme Court. Going further down the chain of the US judicial hierarchy, a clearer picture of reversal aversion emerges. Many studies find that US judges at district court level, the workhorses of the US judiciary, are more restrained in their judging, less ideologically driven and more compliant with courts above them.30 Gruhl found strong evidence that district court judges closely complied with Supreme Court doctrine in libel cases, for instance.31 Randazzo demonstrated that judges curtailed their ideological influences in civil liberties and economics cases, strategically anticipating negative review by higher courts.32 Vice versa, it would appear, then, that ideological and policy-related influences on judges’ decisions are more significant at the higher levels of the judicial hierarchy. A general criticism of this literature is that the role and effect of legal doctrine is underestimated, even “woefully understood,” charge Tiller and Cross.33 That lower courts are often compliant to higher courts’ rulings is perhaps not surprising at all, at least in common law jurisdictions, where judges are bound by the doctrine of precedent. Whether judges fear reversal when they apply a particular precedent, or whether they are simply sticking to the rule of stare decisis is a matter of one’s perspective. To parse this issue out further, Songer and his colleagues investigated whether judges applied precedent cases even where there was no prospect of reversal on appeal.34 To do 26 Pauline T Kim, ‘Lower Court Discretion’ (2007) 82 New York University Law Review 383, 401–402. 27 On other courts, the likelihood of reversal is far higher. For instance, 46% of all cases to the Irish Court of Appeal from its establishment in October 2014 to September 2016 were overturned in part or in full. Mark Tighe and Catherine Sanz, ‘Half of Cases Overturned on Appeal’ The Sunday Times (18 September 2016). 28 Joseph L Smith and Emerson H Tiller, ‘The Strategy of Judging: Evidence from Administrative Law’ (2002) 31 The Journal of Legal Studies 61. 29 Ibid. The judges appeared to tactically rely on legal arguments based on attacking the reasoning processes used by the EPA rather than those based on statutory interpretation, perhaps because they perceived the latter arguments as more vulnerable to reversal on appeal at the Supreme Court. Ibid. 71. 30 Christopher Zorn and Jennifer Barnes Bowie, ‘Ideological Influences on Decision Making in the Federal Judicial Hierarchy: An Empirical Assessment’ (2010) 72 The Journal of Politics 1212. 31 John Gruhl, ‘The Supreme Court’s Impact on the Law of Libel: Compliance by Lower Federal Courts’ (1980) 33 Western Political Quarterly 502. 32 Randazzo (n 8). 33 Emerson H Tiller and Frank B Cross, ‘What Is Legal Doctrine’ (2006) 100 Northwestern University Law Review 517, 517. 34 Donald R Songer, Martha Humphries Ginn and Tammy A Sarver, ‘Do Judges Follow the Law When There Is No Fear of Reversal?’ (2003) 24 Justice System Journal 137.

229

DECISION-MAKING AND BEYOND-COURT INFLUENCES

so, they identified a particular strand of tort law cases where there was no realistic threat of reversal hanging over US courts of appeals judges when they decided them.35 Notwithstanding this unusual dynamic that meant that judges had no fear of being overturned, courts of appeals judges tended to follow precedent cases nonetheless rather than take the opportunity to exercise their potential freedom to impose their policy preferences. The key point is that this finding muddies claims that fear of reversal is a central motivation for judges’ decision-making, at least in common law jurisdictions. It may just be that judges were simply sticking to the task that the rule of stare decisis demanded of them. In a rare example of a study investigating this issue beyond US shores, Masood and Lineberger’s analysis of judges on different UK courts also found that the rule of stare decisis was the driving force behind the interactions between judges on different rungs of the UK judicial ladder.36 Interviews with judges on the English and Welsh Court of Appeal universally reported, perhaps unsurprisingly, that they based their decisions on precedent and that they did not worry about being reversed on appeal.37 The researchers also conducted an empirical analysis of how judges on this Court used House of Lords precedents from 1970 to 2002 to investigate whether these claims held up to scrutiny. They indeed concluded that legal rather than policy factors exerted the most prominent influence on judges; there was no evidence of a principal-agent relationship between the courts.38 It would seem then, on these courts, that law is the overriding factor rather than fear of reversal. Kim argues that the role of law can sometimes be sidelined in studies asserting dialogue between higher and lower courts,39 while Tiller and Cross contend that researchers ought to pay more attention to legal analysis when empirically investigating inter-court dialogue.40 One study on US courts of appeals cases took a step in that direction, highlighting an interesting divergence in how judges approached decision-making between cases that were fact-bound (cases that predominantly focused on disagreements on facts) and cases that were law-bound (cases that predominantly focused on disagreements of law).41 Using computer-assisted content analysis, Smith coded US courts of appeals cases from 1995 to 2002 as being either fact-bound or law-bound. He found that courts of appeals judges were far more mindful of the threat of review and reversal by the Supreme Court where cases were law-bound than when they were fact-bound. The judges were inclined to display their own ideologies more readily in fact-bound cases because those were less likely to be reviewed by the Supreme Court, Smith suggested. Aside from compliance with higher courts, other researchers have investigated whether the opposite phenomenon can occur; that is, lower courts deliberately pushing back against decisions of higher courts. Murphy offered some specific instances of this,42 for instance, citing a 1954 study that analysed 46 Supreme Court decisions which reversed lower courts’ decisions and ordered those lower courts to reconsider the case at a later date. The lower court 35 This was because precedent dictated that courts of appeals judges ought to apply state law in these tort cases. 36 Masood and Lineberger (n 10). 37 Ibid. 2, 3 and 5. 38 Ibid. 10. 39 Pauline T Kim, ‘Beyond Principal-Agent Theories: Law and the Judicial Hierarchy’ (2011) 105 Northwestern University Law Review 535, 538. 40 Tiller and Cross (n 33) 532. 41 Joseph L Smith, ‘Law, Fact, and the Threat of Reversal from Above’ (2014) 42 American Politics Research 226. 42 Murphy (n 9).

230

DECISION-MAKING AND BEYOND-COURT INFLUENCES

effectively maintained its original position on the matter, rather than yield to the Supreme Court’s view in only slightly less than half of these follow-up cases.43 They did not seem to bow to the upper court. Murphy also pointed to state supreme courts in southern US states that resisted the effect of a series of Supreme Court decisions prohibiting racial segregation in schools.44 In a similar vein, Baum identified a rebellious streak in the decision-making of the US Court of Appeals for the Ninth Circuit (which has jurisdiction over states on the West Coast of the US). This court has an unusually high reversal rate by the Supreme Court.45 Judges on this court seem relatively unperturbed by the prospect that their decisions may be reversed. Baum suggested that judges are less concerned with the judicial hierarchy and more motivated by playing to the wider, more liberal community in which they operate.46 However, although there have been some examples of lower courts’ non-compliance with higher courts on certain matters, no empirical research has found systematic noncompliance by lower courts of higher courts’ decision-making.47 A prevailing theme in this research investigating how judges at different levels in a judicial hierarchy interact with each other is the strategic model of judicial decision-making, exemplified in Epstein and Knight’s The Choices Justices Make. Judges may strive to achieve their goals by engaging in strategic decision-making, perhaps mindful of other courts in the judicial hierarchy.48 The model proposes that judges consider the ability of other courts to override or interfere with their preferences, and make choices that they hope will maximise their own goals within the institutional constraints of the judicial hierarchy. That said, this dynamic is certainly not ubiquitous and empirical findings are mixed. Of particular note are Masood and Lineberger’s findings on the UK judiciary where strategic interaction between the courts appeared to be negligible. Adherence to the rule of stare decisis appeared to be the driving force behind judicial decision-making there. It appears then that judges concern themselves with the reactions of other judges to their decisions only some of the time. Moving from other judges’ influence on decision-making within the judicial hierarchy, what about the influence of other branches of government? 7.2 Other branches of government “The Government are disappointed and appalled by that ruling.”49 “I could carve out of a banana a judge with more backbone than that.”50 “The opinion of this so-called judge, 43 Editors’ Note, ‘Evasion of Supreme Court Mandates in Cases Remanded to State Courts Since 1941’ (1954) 67 Harvard Law Review 1251, 1251. 44 Murphy (n 9) 1019–1020. See also Jack Walter Peltason, Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation, vol. 74 (University of Illinois Press 1971) 93. See also Michael W Giles and Thomas G Walker, ‘Judicial Policy-Making and Southern School Segregation’ (1975) 37 The Journal of Politics 917. 45 Kevin M Scott, ‘Time for a Divorce? Splitting the Ninth Circuit Court of Appeals,’ Paper presented at the Annual Meeting of the Midwest Political Science Association, Chicago on 17 April 2004. 46 Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton University Press 2009) 112. 47 Boyd and Spriggs (n 8) 51. This observation, although made in the context of a review of the US literature, also appears to apply beyond the US courts system. 48 Lee Epstein and Jack Knight, The Choices Justices Make (Sage 1997). See further section 4.5.3 The strategic model. 49 Theresa May, Secretary of State for the Home Department, Hansard HC vol 523 col 959 16 February 2011. 50 US President Theodore Roosevelt’s reaction to a decision of Justice Oliver Wendell Holmes. Todd S Purdum, ‘Presidents, Picking Justices, Can Have Backfires’ New York Times (5 July 2005).

231

DECISION-MAKING AND BEYOND-COURT INFLUENCES

which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”51 “In 35 years of experience in central and local government, this decision takes first prize for the most dopey and ill-conceived solution to the problem.”52 All of these are quotes from well-known politicians decrying judgments from courts in their respective jurisdictions. It seems, then, that government actors sometimes feel it necessary to publicly denounce judgments, habitually those that go against them, of course. On one view, judges act, or at least should be allowed to act unconstrained by the influence of other political branches and actors. Leading judicial scholars, however, routinely acknowledge and demonstrate that other branches of government, legislative or executive or both, can have an effect on judicial decision-making.53 This section analyses how legislative and executive branches of government influence judges’ work in two main ways. First, when writing judgments, judges may engage in different dialogues with other branches of government when deciding cases.54 Sometimes judges may want to deliver a strong message to other branches of government, perhaps in a bid to defend judicial power. On the other hand, judges may anticipate negative responses or even retaliation from other branches of government to their rulings and take evasive action in their decision-making. They may tweak their reasoning, or even change the outcome altogether. Thought of in this way, judicial decision-making is not only dialogue with the litigating parties, but also dialogue with other branches of government. As Epstein and Knight point out, judges making decisions “must be attentive to the preferences of the other institutions and the actions they expect them to take.”55 The second way governments influence judicial decision-making is through their considerable top-down influence and powers over how courts operate. Governments can have powers over how judges get appointed, promoted and removed, how much judges get paid and how long they serve on the bench. Judges, through their decisions, may pander to government actors who pose a threat to them through these extensive institutional powers. Other judges may be personally loyal to particular government actors – those who were instrumental in appointing or promoting them, for instance – and may decide certain cases in their favour. Indeed, in some unfortunately not uncommon instances, governments may use their powers over court operations to usurp judicial independence altogether. They may pack courts with judges who will do their bidding, remove judges who pose a threat to their policy agenda, cut disloyal judges’ pay or introduce mandatory retirement ages to change the composition and therefore the ideological make-up of a court. These two ways that other branches of government exert influence over judges’ decisionmaking – first, judges in dialogue with other branches of government, and second, other political branches’ control over court operations – will each be considered separately.

51 Donald Trump Twitter.com (4 February 2017) accessed 17 July 2020. 52 Warren Cooper, Mayor of Queenstown, former Minister of Government, Australia. Pushkar Maitra and Russell Smyth, ‘Judicial Independence, Judicial Promotion and the Enforcement of Legislative Wealth Transfers: An Empirical Study of the New Zealand High Court’ (2004) 17 European Journal of Law and Economics 209, 211. 53 For a consideration of how these other branches of government are institutional audiences that judges bear in mind, see Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (n 46) 72. 54 Paterson also conceives of judicial decision-making as dialogue with other branches of government in Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Bloomsbury Publishing 2013) ch 7. 55 Epstein and Knight (n 48) 139.

232

DECISION-MAKING AND BEYOND-COURT INFLUENCES

7.2.1 Judicial decision-making as dialogue with other branches of government Judges often have to make decisions that other branches of government will not agree with. Judgments that declare legislation unconstitutional or that determine that a particular course of action taken by a government or its agent is a breach of the law are, of course, against that government’s interests. When judges decide such cases, there is necessarily dialogue between them and other branches of government. In their account of judicial decision-making as a strategic enterprise, Epstein and Knight note that judges are cognisant not only of their colleagues’ views on the bench but also of the reactions of other branches of government. Accordingly, judges may decide cases strategically aware of the reactions of other branches of government.56 To what extent then, if at all, do judges bend to other branches of government in their decision-making? And if they do so, in what circumstances and why? The political climate and the degree of judicial independence a judiciary enjoys are important factors in this regard. Of course, judiciaries depend on executive and legislative branches of government to enforce and implement decisions.57 Judges, about to make a decision that will compromise or even scupper a government policy, may compile information on what the government’s reaction is likely to be. On the US Supreme Court, for instance, Epstein and Knight observed examples from cases of judges reflecting on media coverage and on case briefs to gather information about how other branches of government were likely to react.58 Of course, sometimes, judges will jealously guard their independence when other branches of government try to dilute or infiltrate judicial power. These kinds of decisions are, however, the everyday work of only a small number of judges. Concerns of protecting judicial power are generally confined to decision-making on apex courts and are the subject of extensive scrutiny by constitutional law and comparative law scholars.59 More common than cases directly concerning the separation of powers are those where a judge decides a case against the government or its agents. Such rulings may lead to negative reactions or retaliation from government actors. Scholars identify three effects in this regard. First, judges may adjust their decision-making behaviour where they anticipate that other branches of government will not comply with their rulings – sometimes referred to as non-compliance in the literature. This, of course, is a particular concern for judges in jurisdictions experiencing authoritarian or increasingly 56 Ibid. 5. 57 Clifford J Carrubba and Christopher Zorn, ‘Executive Discretion, Judicial Decision Making, and Separation of Powers in the United States’ (2010) 72 The Journal of Politics 812, 812. Indeed, one of the founding fathers of the US, Alexander Hamilton pointed this dynamic out in The Federalist Papers. The judiciary “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Alexander Hamilton, James Madison and John Jay, “Federalist No. 78” in The Federalist Papers (Springer 2009). 58 Epstein and Knight (n 48) 145–146. 59 The locus classicus from the US is, of course, Marbury v Madison, where the US Supreme Court established the power of judicial review to strike down laws. 5 U.S. 137 (1803). Some view the case as a type of dialogue with other branches of government. Chavez and her colleagues describe it as a kind of “a kind of snatching of victory . . . from the necessity of backing down” to other branches in the US government. Rebecca Bill Chavez, John Ferejohn and Barry Weingast, ‘A Theory of the Politically Independent Judiciary: A Comparative Study of the United States and Argentina’ in Gretchen Helmke and Julio Rios Figueroa (eds), Courts in Latin America (Cambridge University Press 2011) 241. The seminal Irish constitutional law case of Buckley v Attorney General [1950] 1 IR 67 had a similar dynamic whereby the judiciary struck down legislation designed to deprive the plaintiffs from going to the court to argue that there had been a breach of their constitutional property rights.

233

DECISION-MAKING AND BEYOND-COURT INFLUENCES

authoritarian rule.60 Second, and related to this, judges may anticipate that the legislative branch of government will introduce new laws to nullify the effect of a judgment, a phenomenon called legislative override. Concerned by this prospect, judges may take evasive action and modify their decision-making behaviour in different ways. Judges may carefully choose legal rules or remedies in their decisions to reduce confrontation with government actors and to promote government actors’ compliance.61 Alternatively, judges may tailor their decisions, or even back down on occasion from making antigovernment rulings out of compromise, a give-and-take with other branches of government. Segal and Spaeth, for example, highlight two instances from 1937 and 1959 on the US Supreme Court where judges reversed previously unpopular decisions in the face of threats by the US Congress.62 Finally, scholars identify a third phenomenon called strategic defection. When a government’s grasp on power appears to be weakening, and they look likely to be soon replaced, judges may strategically defect from the current government through their decision-making by ruling against it more often. Researchers have systematically investigated these three phenomena through archival analyses of apex and supranational courts. Each phenomenon shares a common characteristic: judges changing their decision-making behaviour through interaction with other branches of government. These studies are couched in terms of separation of powers principles from constitutional law, a “game” of sorts between judiciaries and other branches of government.63 On appellate courts with discretionary jurisdiction, this game can start early on in the court process, when the court chooses which appeals ought to be heard.64 We have seen earlier how agenda-setting by these courts can act as an inter-court dialogue between courts at different levels in a judicial hierarchy. It can also act as a source of dialogue between courts and other organs of government. Earlier, for instance, we considered a study by Epstein and her colleagues reporting how the US Supreme Court exercises its powers of certiorari to dynamically interact with the US Congress, tending to pick more constitutional cases over statutory cases when the Court was ideologically at odds with Congress.65 Researchers have also investigated whether judges, anticipating the government’s non-compliance or legislative override, modify their decisions. For instance, Vanberg investigated decision-making by judges on the German Federal Constitutional Court who seemed to anticipate the German legislature’s reaction to their judgments declaring their

60 Staton and Vanberg offer the Russian Constitutional Court as an example of a court where “concerns over noncompliance dominate.” Jeffrey K Staton and Georg Vanberg, ‘The Value of Vagueness: Delegation, Defiance, and Judicial Opinions’ (2008) 52 American Journal of Political Science 504, 515. 61 Staton (n 2) 358. 62 Jeffrey A Segal and Harold J Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press 2002) 94. 63 Jeffrey A Segal, ‘Separation-of-Powers Games in the Positive Theory of Congress and Courts’ (1997) 91 American Political Science Review 28. 64 On discretionary jurisdiction, see section 6.2.3.1 Discretionary jurisdiction and effects on judicial decision-making. 65 Lee Epstein, Jeffrey A Segal and Jennifer Nicoll Victor, ‘Dynamic Agenda-Setting on the United States Supreme Court: An Empirical Assessment’ (2002) 39 Harvard Journal on Legislation 395.

234

DECISION-MAKING AND BEYOND-COURT INFLUENCES

legislation unconstitutional.66 Vanberg hypothesised that the Court sometimes weighed up the amount of public attention a prospective judgment against the government was likely to generate. Assuming that the more publicly “transparent” a case was, the more likely the legislature would face a backlash if they did not comply with the ruling against them, Vanberg hypothesised that in these publicly salient cases the Court would rule against the government more often. Measuring the publicity of the Court’s decisions on the constitutionality of statutes between 1983 and 1995,67 he showed that in cases that were more in the public eye, the Court was more likely to rule against the legislature. Where the case was less significant to the public, and public backlash was therefore less likely if the legislature did not comply with the decision against them, the Court was less likely to rule against the government, apparently taking a more deferential position.68 Carrubba and Zorn undertook a similar analysis on the US Supreme Court, this time investigating that Court’s interactions with the executive branch of the US government: the President, the Vice President and the Cabinet. Noting that the executive branch had discretion to comply or not with rulings of the Court, the researchers demonstrated that this substantially constrained the Court’s decision-making in cases about the constitutionality of legislation. Like Vanberg’s findings on the German Federal Constitutional Court, Carrubba and Zorn showed that the less likely the US public was to be concerned about a case, the less likely the Supreme Court was to rule against the government. The more transparent and publicly salient the case was, the more likely they were to rule against the government. These studies build on others that present similar outcomes.69 Vanberg’s, and Carrubba and Zorn’s studies suggest that apex courts acknowledge that public accountability may be needed to ensure that governments respect court decisions that they do not like. Other studies on judiciaries across Latin and South America have shown how legislative and executive branches of government influence judges’ decision-making. Staton found evidence that the Constitutional Court of Mexico appeared to be sensitive to threats of non-compliance by the Mexican legislature.70 Chávez demonstrated how the Argentinian government’s apparent influence over judicial decision-making on the Argentinian Supreme Court waxed and waned over time, depending on how fragmented or unified political power was between the executive and legislative branches.71 When different political parties held the executive and legislative branches of government – a more fragmented political climate – this correlated with more assertive decision-making by the Court; that is, the Court was more inclined to issue rulings opposing one of the political branches. Rodríguez-Raga examined decision-making trends between 1992 and 2006 on the Colombian Constitutional Court, which has a reputation for being a highly independent, 66 Georg Vanberg, ‘Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review’ (2001) 45 American Journal of Political Science 346. 67 Vanberg used different variables to measure the level of public attention that different cases got – whether there was oral argument and whether organised groups took an interest in the case, for instance. 68 Vanberg (n 66) 357. 69 For example, Harvey and Friedman found that US federal courts were sensitive to threats of legislative override by the US Congress. Anna Harvey and Barry Friedman, ‘The Limits of Judicial Independence: The Supreme Court’s Constitutional Rulings, 1987–2000’ (2006) 31 Legislative Studies Quarterly 533. 70 Jeffrey K Staton, ‘Constitutional Review and the Selective Promotion of Case Results’ (2006) 50 American Journal of Political Science 98. 71 Bill Chavez, Ferejohn and Weingast (n 59) 241.

235

DECISION-MAKING AND BEYOND-COURT INFLUENCES

activist court.72 He hypothesised that judges engaged in strategic deference to the executive branch of government. Coding variables based on the text of judgments in constitutional review cases between 1992 and 2006, Rodríguez-Raga showed that judges on the Court anticipated the executive branch’s negative reaction to their decisions and sometimes strategically deferred to the executive, where the prospective cost of going against the government was high. For instance, the Court deferred more often to the executive when reviewing executive decrees – that is, laws introduced directly by the executive – than when reviewing ordinary legislation.73 The phenomenon also seems to be evident on at least one supranational court. Carrubba and his colleagues reported that the European Court of Justice had used its decisions to claim substantial authority over national courts, national law and the interpretation of EU treaties, with the Court’s influence over EU member states’ governments increasing over time.74 That said, they also emphasised that EU member state governments sometimes did not comply with the Court’s rulings and sometimes effectively overrode them by revising founding treaties and adopting secondary legislation with the input of the EU’s Council of Ministers.75 Carrubba and his colleagues presented evidence that these threats of non-compliance influenced the Court’s judicial decision-making, as did legislative override, albeit to a lesser extent.76 They concluded that “small shifts in the number of governments aligned on one side of a legal issue or another have large substantive effects on the ECJ’s likely decision.”77 Inter-institutional dialogue in judicial decision-making and other organs of government is not just apparent in judicial outcomes. Studies have also shown how judges change their writing style in their judgments, perhaps anticipating reactions from other branches of government. Owens and his colleagues reported that the US Supreme Court appeared to make their decisions less readable in a bid to evade review by the US Congress.78 The researchers measured the readability of over 500 randomly selected Supreme Court majority judgments published between 1953 and 2009. Congress was more likely to override decisions that were more readable than those that were stylistically opaque and convoluted. Owens and his colleagues argued that their finding suggested that judges may have made strategic choices to produce stylistically less readable judgments in a bid to avoid review by a politically hostile Congress. The researchers contended that making judgments less readable exposed Congress’ members’ weaknesses – specifically, the scarcity of time and resources congressmen and women have to parse out the meaning and consequences of convoluted judgments.79 This, Owens and his colleagues suggested, made overriding decisions more costly, less attractive and ultimately less likely to happen.

72 Juan Carlos Rodrıguez-Raga, ‘Strategic Deference in the Colombian Constitutional Court, 1992–2006’ in Gretchen Helmke and Julio Rios-Figueroa (eds), Courts in Latin America (Cambridge University Press 2011) 83. 73 Ibid. 94. 74 Clifford J Carrubba, Matthew Gabel and Charles Hankla, ‘Judicial Behavior under Political Constraints: Evidence from the European Court of Justice’ (2008) 102 American Political Science Review 435. 75 Ibid. 438. 76 Ibid. 449. 77 Ibid. 78 Ryan J Owens, Justin Wedeking and Patrick C Wohlfarth, ‘How the Supreme Court Alters Opinion Language to Evade Congressional Review’ (2013) 1 Journal of Law and Courts 35. 79 Ibid. 38.

236

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Staton and Vanberg also suggested but did not empirically test for a related phenomenon in judgment writing. Judges may make their decisions substantively vague – note, this is different from making them less readable – to reduce the chances that other branches of government would not comply with them.80 The idea here is to safeguard the court against the negative consequences of open defiance by government. A brief example helps to explain Staton and Vanberg’s hypothesis. A ruling that says a government actor must perform an action by a specific date in the future is more precise than a ruling that says that the government actor must perform that action “reasonably expediently.” If the judge takes the more precise option, the specific date, a government’s failure to comply will make both the court and the branch of government look bad. The option of using the less precise phrase “reasonably expediently” affords both the court and the government actor some latitude to make both the decision, and the reaction to it more palatable to the public. This theory, however, has not been empirically tested. In jurisdictions where democracy is relatively weak and judicial independence is fragile, the influence of other branches of government on judicial decision-making can come sharply into focus.81 Empirical evidence of the influence other branches of government exert on judges’ decision-making in countries with weaker democracies has focused on the phenomenon of strategic defection. While judges’ decision-making may start out sympathetic to government, they may “strategically defect” over time, tending to decide more cases against that government as it begins to lose its grip on power.82 Helmke investigated strategic defection on the Argentinian Supreme Court, longitudinally analysing trends in its decision-making in 7,562 cases from 1976 and 1995. During this period, Argentinian politics underwent a great deal of upheaval, moving from a military coup to democracy. Helmke showed that judges’ tendency to decide cases against the government of the day surged in the lead-up to two transitions to new governments in the 1980s.83 As soon as the new government was in place, anti-government rulings tapered off. Judges seemed to strategically react to their political environment as it changed, adjusting their interpretation of the law to match the values and preferences of the incoming government.84 Helmke suggested that insecurity of tenure in the face of political upheaval may have accounted for this decision-making behaviour.85 RodriguezRaga’s study on the Colombian Constitutional Court demonstrated similar behaviour. The Court was more deferential to the executive branch of government at the start of its term in power than at the end of it.86 That said, such trends are not pervasive. Another study

80 Staton and Vanberg (n 60). 81 On the general theme of judicial power in weaker democracies, see Raul A Sanchez Urribarri, ‘Courts between Democracy and Hybrid Authoritarianism: Evidence from the Venezuelan Supreme Court’ (2011) 36 Law & Social Inquiry 854; Tamir Moustafa, ‘Law versus the State: The Judicialization of Politics in Egypt’ (2003) 28 Law & Social Inquiry 883. 82 Gretchen Helmke, ‘The Logic of Strategic Defection: Court–Executive Relations in Argentina under Dictatorship and Democracy’ (2002) 96 American Political Science Review 291. 83 Ibid. 296. 84 Ibid. 302. 85 Ibid. 300. 86 Rodrıguez-Raga (n 72) 95.

237

DECISION-MAKING AND BEYOND-COURT INFLUENCES

on the Philippine Supreme Court found no evidence of strategic defection, albeit using a much smaller dataset of cases.87 In jurisdictions transitioning to more democratic government, researchers identify changes in judicial decision-making as the judiciary’s independence steadily grows. In a rare example of empirical judicial scholarship on African courts, Nzau and Edgell demonstrated that judges on the Kenyan High Court and Court of Appeals became more inclined to rule against the state on civil liberties violations as Kenyan politics transitioned to multiparty democracy during the 1990s.88 One final note on dialogue between judges and other branches of government. Macroevents can sometimes influence judicial decision-making both in individual cases and in specific types of cases. By way of example, consider Lord Hoffman’s ruling in a UK judgment just after the terrorist attacks in the US on 11 September 2001. He appeared willing to defer to the UK executive on matters about national security: I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security.89

Researchers have empirically investigated the effects macro-events may have on decisionmaking in favour or against other branches of government. For instance, Howell and Ahmed reported that US Supreme Court judges supported presidents more during wartime. Judges were 15 percentage points more likely to side with the government on statutory cases most directly related to the exercise of presidential power when the country was at war.90 Staudt also presented evidence of what she called “crisis jurisprudence” in the US.91 Her archival analysis reported that during times of war and other crises, US federal judges used whatever influence they had through their decision-making to accommodate the government’s efforts to raise funds for defence spending.92 Overall, the research on how judges interact with governments through their decisionmaking identifies different back-and-forth dialogues in different jurisdictions and contexts. Of course, findings from archival research only suggest rather than definitively prove that judges change their decision-making behaviour in anticipation of responses and reactions from other branches of government. Nevertheless, more often than not, these studies do indeed suggest that there are complex interactions between judges and other government actors. The research also goes some way to disentangling the effects that judges’ personal political beliefs have on their decisions, as distinct from the effects of 87 Laarni Escresa and Nuno Garoupa, ‘Testing the Logic of Strategic Defection: The Case of the Philippine Supreme Court: An Empirical Analysis (1986–2010)’ (2013) 21 Asian Journal of Political Science 189. 88 Mumo Nzau and Amanda B Edgell, ‘Judicial Independence and Civil Liberties in Transitional Democracies: The Case of Kenya’ (2019) 41 Human Rights Quarterly 465. 89 Postscript to judgment of Lord Hoffman in Secretary of State for the Home Department v Rehman [2001] UKHL 47, para. 62. 90 William G Howell and Faisal Z Ahmed, ‘Voting for the President: The Supreme Court during War’ (2012) 30 The Journal of Law, Economics, & Organization 39. 91 Nancy Staudt, The Judicial Power of the Purse: How Courts Fund National Defense in Times of Crisis (University of Chicago Press 2011) 15. 92 Ibid. 3 and 4.

238

DECISION-MAKING AND BEYOND-COURT INFLUENCES

more strategic, interactive decision-making by judges weighing up how the branches of government may react to their rulings.93 Judges, therefore, seem to acknowledge their place in their political system, cognisant of key government players. They engage with governments and anticipate their demands in different ways: by strategically choosing certain cases for appellate hearing, by deciding certain cases in particular directions, and through how they reason individual judgments. In these ways, judges do appear concerned with institutional dynamics between the courts and other political branches of government. That said, there is also another important dynamic in the relationship between judges and other political branches. Governments wield considerable powers and control over how courts operate and over judicial careers. We now turn to research on how this can have significant effects on judges’ decision-making. 7.2.2 Governments’ powers over courts’ operations and the judiciary Justice systems champion the ideal of judicial independence. This concept, scholars observe, invites a simple question, “independence from whom?”94 The answer invariably is “the state.”95 The reality is, however, that judicial independence, where it exists, is generally an arm’s-length arrangement with the government of the day. Judges’ freedom to make decisions as they see fit is only as potent as the government allows. Governments can exert their control over judiciaries through their substantial powers over courts’ operations and judges’ careers. Notwithstanding the ideal of judicial independence, the reality is that many governments do leverage their control over courts’ operations and judges’ careers, often with consequences for judicial decision-making.96 Of course, here we enter the territory of constitutional law theory, the separation of powers and the rule of law more generally. The focus in this section is not on theoretical debates or doctrinal analysis of judicial independence. Instead – in line with the aims of this book – the focus is on empirical research investigating how governments and their actors use their powers over courts and judges to influence judicial decision-making, sometimes profoundly so.97 At an institutional and operational level, governments’ control over courts is generally significant. Executives and legislatures (or a combination of them) may dictate how judges are selected and removed from office, how much judges get paid, and if and when they

93 See section 4.5.2 The attitudinal model. 94 Pilar Domingo, ‘Judicial Independence: The Politics of the Supreme Court in Mexico’ (2000) 32 Journal of Latin American Studies 705, 708; Roderick A Macdonald and Hoi Kong, ‘Judicial Independence as a Constitutional Virtue’ in András Sajó and Michel Rosenfeld (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 833. 95 Macdonald and Kong (n 94) 833. 96 The precise meaning and scope of the concept of judicial independence is a subject of scholarly debate. See further Staton (n 2) 357; Burbank (n 2). One definition is that contained in the United Nations’ Basic Principles on the Independence of the Judiciary: The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect from any quarter or for any reason.

97 Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (n 46) 72.

239

DECISION-MAKING AND BEYOND-COURT INFLUENCES

must retire. Researchers investigate how governments’ decisions on these matters affect judicial decision-making. For instance, if one political branch or actor has broad and largely unchecked powers to appoint judges, their appointees may be inclined to favour that branch or actor in the courtroom. Equally, if a government decides that the public should elect judges, incumbent candidates running for re-election to judicial office may decide cases on certain issues to meet prevailing public opinion. The bottom line is that governments’ control and power over how judges are selected have consequences for judicial decision-making. Aside from governments’ control over mechanisms for selection to the bench, judges may fear that judgments they deliver against the government may bring reprisal. Governments may reprimand judges by worsening the terms and conditions of their employment, or their career prospects. This occurs mainly in jurisdictions experiencing authoritarian or near-authoritarian government, where judicial independence is weak. Governments may impose mandatory retirement ages or introduce significant pay reductions or pension cuts, for example. Helmke sums up these considerations: “[W]hen a judge decides a case in favour of the government, is it because he or she simply agrees with the government’s position in the case? Or does his or her decision instead reflect a fear of reprisal were he or she to stand up to the government?”98 At the other end of the same spectrum of governments’ influence over judiciaries, might judges simply display loyalty through their decision-making to the government actors who appoint them, promote them and pay their wages? The remainder of this section is split into two main parts: first, how governments’ powers over how judges are selected have consequences for judicial decision-making, and second, how governments’ powers over the terms and conditions of judges’ employment affect judicial decision-making. 7.2.2.1 How judges are selected and the consequences for judicial decision-making Perhaps the most significant influence that governments have over judiciaries in many jurisdictions is their ability to decide how judges are selected. Processes for selecting judges vary greatly from one jurisdiction to the next, but politics and political actors’ involvement “in one sense or another, cannot be removed from judicial appointments.”99 Of course, more often than not, the rules governing how judges are selected are not entirely within the control and discretion of governments. Rules and processes for appointing judges may be enshrined in constitutional provisions that are not easily done away with. Nevertheless, as we will observe, governments, particularly in authoritarian or increasingly authoritarian contexts, can fundamentally change or subtly manipulate who ends up on the bench without direct recourse either to the electorate or to judges themselves, with consequential effects for courts’ output.

98 Gretchen Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (Cambridge University Press 2012) 20. 99 Graham Gee and others, The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge University Press 2015) 159.

240

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Different jurisdictions employ a wide range of processes for appointing judges.100 In some jurisdictions, early career professionals train up to be judges after university.101 Elsewhere, the executive or legislative branches of government, or a combination of both, appoint judges directly.102 Many jurisdictions employ a hybrid system, where selection bodies host recruitment exercises to recommend candidates to government actors who in turn formally appoint them as judges.103 These selection bodies have different levels of power over the recruitment process. Sometimes appointment processes are rather opaque, out of the public eye, and sometimes they are very public indeed.104 Finally, and less commonly, in other jurisdictions, judges are elected directly by the public, as they are in many state courts in the US and for national courts in Bolivia, for instance. How do these different processes for selecting judges affect judicial decision-making trends? We have seen elsewhere how judges’ personal political views can be a factor in judicial decision-making, particularly on appellate and apex courts in politically sensitive areas of law.105 Often, researchers measure a judge’s baseline political preferences by reference to the political preferences of their appointers. Where a judge’s decision-making aligns to the political views of their appointer, we can interpret this correlation in one of two ways. We can characterise their apparent political orientations in their judging as a by-product of their own political views, or we can characterise this judge as merely acting as a conduit or proxy for the political actors who selected them for the bench. On 100 See further, Lee Epstein, Jack Knight and Olga Shvetsova, ‘Comparing Judicial Selection Systems’ (2001) 10 William & Mary Bill of Rights Journal 7; Peter H Russell and Kate Malleson, Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (University of Toronto Press 2006); Dermot Feenan, ‘Judicial Appointments in Ireland: Some Comparative Perspectives’ in Eoin Carolan (ed), Judicial Power in Ireland (Institute of Public Administration 2018). 101 Candidates for judicial office in Germany train and qualify to be judges. See Johannes Riedel, ‘Training and Recruitment Judges in Germany’ (2013) 5 International Journal for Court Administration 42. 102 Different levels of involvement by the executive and legislative branches in judicial appointments are evident from a cursory look at some of the world’s leading apex courts. In some jurisdictions the president appoints judges on the advice of the executive (rather than the legislative) branch; for example, appointments to Irish courts, including the Supreme Court. In other jurisdictions the president nominates judges and appoints them on the advice and consent of the legislative branch; for example, the interaction between the President and the Senate in the US when appointing candidates to the Supreme Court. Elsewhere, judges are appointed exclusively by the legislative branch: for instance, appointments to the German Federal Constitutional Court. The model whereby legislatures select judges has been categorised as the “legislative supermajority model.” Sujit Choudhry and Katherine Glenn Bass, ‘Constitutional Courts after the Arab Spring: Appointment Mechanisms and Relative Judicial Independence’ Report jointly published by the Center for Constitutional Transitions and International IDEA 2014 10. Alternatively, judges are appointed exclusively by the executive branch; appointments to the Australian High Court, for example, are led by the Attorney General, approved by the Cabinet and ultimately appointed by the Governor General. In constitutional monarchies the monarch or her representative appoints judges on the advice or recommendation of various individual political actors such as a Lord Chancellor (in the UK) or the Prime Minister (in Canada). That said, with regard to the power that the Lord Chancellor actually has over appointments in the UK, the reality is that the true powers of selection fall to the Judicial Appointments Commission. On only five occasions from nearly 3,500 recommendations between 2006 and 2013 did the Lord Chancellor not accept the recommendation of the Commission. Gee and others (n 99) 163. On mixed judicial selection systems, whereby a specific number of judges are selected by different government institutions, see Lydia Brashear Tiede, ‘Mixed Judicial Selection and Constitutional Review’ (2020) 53 Comparative Political Studies 1092. 103 An example of this is the Judicial Appointments Commission in the UK. 104 Regarding opacity in judicial selection, consider criticism of current arrangements for appointing judges in Ireland, Jennifer Carroll MacNeill, ‘How to Become a Judge’ (2016) 110(6) Law Society Gazette 32. On the other hand, an example of transparency in judicial selection processes are the public selection hearings for nominees to the US Supreme Court hosted by the US Senate Judiciary Committee. 105 See section 4.5 Judges’ politics and judicial decision-making.

241

DECISION-MAKING AND BEYOND-COURT INFLUENCES

the latter characterisation, the political actors who appoint the judges have a top-down influence on judicial decision-making. Different researchers emphasise these two perspectives in different ways. For instance, the attitudinal model typified by the work of Segal and Spaeth conceives of judges’ decision-making as being affected by judges’ individual, sincerely held views.106 On the other hand, Grendstad and his colleagues described their finding that Norwegian Supreme Court judges appointed by different governments decide certain cases differently as “[government] policy making by appointment.”107 The lead actor here is the government, rather than the judge. Therefore, where a study observes that a judge’s decision-making correlates with the political views of their appointing political actors, it can be difficult to parse out whether their apparently politically motivated judging is a manifestation of their own political preferences or of indirect government control over the judicial function. This section addresses research which argues the latter perspective: judicial decision-making as a product of political actors’ goals exercised through their control over judicial selection mechanisms. Researchers have observed these effects in three main contexts which suggest the following questions: • Where one political actor is instrumental to appointing judges – the president of the US, for instance – are appointees particularly loyal to that appointing actor? • Where executive or legislative branches of government directly control judicial appointments, do they engage in court-packing – appointing ‘loyal’ judges, removing ‘disloyal’ judges, or increasing or decreasing the number of judges on a court to weight it in their favour? How does court-packing affect judicial decision-making? • Where judicial elections are used to select judges, how does this affect judicial decision-making? US Vice President Dick Chaney went duck hunting with US Supreme Court judge Antonin Scalia when oral argument before the Court was pending in Cheney v United States District Court.108 The case concerned the activities of an energy task force over which Dick Cheney presided. When an opponent asked Justice Scalia to recuse himself from the case, he refused. In his refusal, he remarked “[M]any Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials – and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive.”109 Do judges display loyalty to specific political actors instrumental to their appointment through their decision-making?110 Scholars have argued that judges may have a sense of 106 Jeffrey A Segal and Harold J Spaeth, The Supreme Court and the Attitudinal Model (Cambridge University Press 1993); Segal and Spaeth (n 62). 107 Gunnar Grendstad, William R Shaffer and Eric N Waltenburg, Policy Making in an Independent Judiciary: The Norwegian Supreme Court (ECPR Press 2015) ch 4. 108 541 U.S. 913 (2004). The episode is detailed in Baum (n 46) 82–83. 109 541 U.S. 913 (2004) (Memorandum of Justice Scalia). 110 On the relationship between US presidents and their appointees to the Supreme Court, it should be noted that US presidents have appointed members of their own political party to the US Supreme Court more than 85% of the time. Paul M Collins and Lori A Ringhand, Supreme Court Confirmation Hearings and Constitutional Change (Cambridge University Press 2013) 28.

242

DECISION-MAKING AND BEYOND-COURT INFLUENCES

personal obligation to favour the political actors who appoint them111 and may struggle to weigh up their duty to be impartial against obligations of loyalty and gratitude to their appointers.112 Epstein and Posner provided some empirical support for these arguments.113 Analysing US Supreme Court decisions from 1937 to 2014, they found that judges decided for the government more frequently when the president who appointed them was in office than when subsequent presidents led the government.114 This difference persisted even when those subsequent presidents were of the same political party as their predecessor. The finding showed that judges’ decision-making appeared loyal to one political actor, the appointing president, independent of political party affiliation, thereby effectively disentangling judges’ personal as distinct from political loyalties.115 Aside from personal loyalty to their appointers, what about governments who exercise their powers over judicial appointments to pack influential courts with judges who they think will be loyal to their cause? Moreover, do such strategies work to the extent that there are consequential, discernible trends in judicial decision-making? Going back in time, the US Congress changed the size of the US Supreme Court on several occasions during and in the immediate aftermath of the Civil War in a largely partisan attempt to reshape it.116 US President Franklin D Roosevelt also famously sought, but failed, to change the composition of the Supreme Court through the Judicial Procedures Reform Bill 1937, which became known as the “court-packing plan.” The objective was to appoint judges who would be favourable to his New Deal legislation. More recently, would-be authoritarian rulers and their governments often seek to pack courts with judges loyal to their agenda, and they have several tools at their disposal to do so.117 111 Robert G Scigliano, The Supreme Court and the Presidency (Free Press 1971) 132. 112 Laura E Little, ‘Loyalty, Gratitude, and the Federal Judiciary’ (1994) 44 American University Law Review 699. 113 Lee Epstein and Eric A Posner, ‘Supreme Court Justices’ Loyalty to the President’ (2016) 45 The Journal of Legal Studies 401. Other studies on this topic using more limited datasets include Craig R Ducat and Robert L Dudley, ‘Federal Judges and Presidential Power: Truman to Reagan’ (1988) 22 Akron Law Review 561; Craig R Ducat and Robert L Dudley, ‘Federal District Judges and Presidential Power during the Postwar Era’ (1989) 51 The Journal of Politics 98; Jeff Yates, ‘Presidential Bureaucratic Power and Supreme Court Justice Voting’ (1999) 21 Political Behavior 349; Jeff Yates, Popular Justice: Presidential Prestige and Executive Success in the Supreme Court (SUNY Press 2002); Jeff Yates and Andrew Whitford, ‘Presidential Power and the United States Supreme Court’ (1998) 51 Political Research Quarterly 539; James C Brent, ‘Supreme Court Support for the United States: The Effect of Presidential Appointments’ (1998) 26 Southeastern Political Review 79; Jeffrey A Segal, Richard J Timpone and Robert M Howard, ‘Buyer Beware? Presidential Success through Supreme Court Appointments’ (2000) 53 Political Research Quarterly 557. 114 Epstein and Posner (n 113) 415. 115 Other researchers identify correlations between a president’s political ideology and the decision-making of their judicial appointees. Decision-making of judges appointed by President George W Bush were among the most conservative on record, for instance, matching the President’s conservative ideology. However, this does not parse out personal loyalty from political loyalty. Robert A Carp, Kenneth L Manning and Ronald Stidham, ‘The Decision-Making Behavior of George W. Bush’s Judicial Appointees’ (2004) 88 Judicature 20. As regards how US presidents generally fare before the Supreme Court, Epstein and Posner present recent evidence suggesting that the Court’s general deference to the President may be in decline. Lee Epstein and Eric A Posner, ‘The Decline of Supreme Court Deference to the President’ (2018) 166 University of Pennsylvania Law Review 829. 116 Eugenia Froedge Toma, ‘Congressional Influence and the Supreme Court: The Budget as a Signaling Device’ (1991) 20 The Journal of Legal Studies 131, 133. For an account of the circumstances, see Timothy Huebner, ‘The First Court-Packing Plan’ SCOTUS Blog (3 July 2013) accessed 17 July 2020. 117 David Landau and Rosalind Dixon, ‘Abusive Judicial Review: Courts Against Democracy’ (2020) 53 UC Davis Law Review 1313. Tiede notes that “the concern here is that overtly politicized judiciaries may be incapable

243

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Sometimes they increase the number of judicial positions on key courts, allowing them to put more loyal judges on to them. For example, in Hungary in 2010, the parliament passed radical constitutional reforms without a popular referendum, expanding the size of the Constitutional Court from 11 to 15 members. In Turkey, an omnibus package of constitutional amendments passed by popular referendum on an all-or-nothing basis in 2010 included increasing the size of the Turkish Constitutional Court by six members. Sometimes leaders remove supposedly ‘disloyal’ judges, wholesale. The Turkish Council of Judges and Prosecutors – the body responsible for overseeing the appointment, promotion, transfer, disciplining and dismissal of judges – dismissed no fewer than 4,238 judges and prosecutors after a failed coup attempt on 15 July 2016 against President Tayyip Erdoğan.118 Another mechanism governments use to the same end is to introduce mandatory retirement ages. In Poland, on 3 April 2018, a new law lowered the retirement age of judges at the Polish Supreme Court to 65, precipitating the early retirement of 27 of 72 judges on that court later that year, thereby freeing up positions for loyalist judges. Do these manoeuvres, designed to centralise power in the political branches of government, ultimately affect judicial decision-making? Despite commentary rightly characterising these exercises as abuses of judicial independence and democratic values generally, systematic empirical evidence that such measures are effective in changing judicial decision-making patterns is relatively underdeveloped. One study, however, investigated the impact of reforms to the Turkish Constitutional Court on judicial decision-making.119 In Turkey, a constitutional referendum introducing a wide range of reforms across many political institutions passed in September 2010. Among the reforms were significant changes to the composition of the Turkish Constitutional Court, imposing term limits on judges and adding six additional positions on it. This bolstered the government’s influence over who sat on the Court. Varol and his colleagues empirically tested whether these reforms affected judicial decision-making on that court. They compared decision-making in 245 rulings made by the Court between 2007 and 2014, covering the period before and after the reforms.120 While they did find that the Court’s ideology shifted somewhat to the right on the political spectrum after the 2010 reforms, this did not affect judicial outcomes to a statistically significant degree, as measured by changes in the number of decisions that either preserved or went against the status quo and changes in dissent rates.121 Interestingly, then, the sweeping reforms to the Court did not seem to affect results for litigants, at least not in the four years after their introduction. However, the researchers suggested that changes in judicial practice might occur in the longer term.122 of checking the powers of the officials who selected them, which is of special concern in the era of democratic backsliding,” Tiede (n 102) 2. 118 Gulsen Solaker and Daren Butler, ‘Turkish MPs Elect Judicial Board under New Erdogan Constitution’ reuters.com (2017) accessed 17 July 2020. 119 Ozan O Varol, Lucia Dalla Pellegrina and Nuno Garoupa, ‘An Empirical Analysis of Judicial Transformation in Turkey’ (2017) 65 The American Journal of Comparative Law 187. 120 Ibid. 121 Ibid. 208. 122 Ibid. 214. Another study on judicial decision-making and politics on the Turkish Constitutional Court, albeit not directly on the topic of governmental influence on the composition of that Court, is Aylin Aydin-Cakir, ‘The Impact of Judicial Preferences and Political Context on Constitutional Court Decisions: Evidence from Turkey’ (2018) 16 International Journal of Constitutional Law 1101.

244

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Aside from this isolated example of an empirical study on this issue, Landau and Dixon identified an emerging trend in the decision-making of courts in various authoritarian regimes.123 They proposed that, contrary to the general conceptualisation of courts acting as the last bulwark for democracy against rogue governments, it is, in fact, increasingly common for judges in these jurisdictions to do the opposite, using their decisions to intentionally attack democratic values. Landau and Dixon called this abusive constitutional review and presented several examples of decisions in this mould by different courts in authoritarian regimes. Examples included rulings that legitimised anti-democratic laws banning opposition parties, eliminated presidential term limits and repressed oppositionheld legislatures in jurisdictions. The cases Landau and Dixon presented to illustrate this phenomenon are convincing. Systematic archival work would further advance our understanding of what appears to be a significant and worrying trend. We now shift the focus away from governments’ control and powers over judicial selection to consider an entirely different mode of appointing judges: judicial elections. Globally, judicial elections are uncommon. The most substantial democratic exercises are in the US where public elections are held in 40 states to select judges at one or more state courts, including state supreme courts.124 Aside from the US, since 2011 judges are elected to the Bolivian national courts, as are judges in some cantons in Switzerland, and some municipalities in France, Peru, Colombia and Venezuela. In Japan, voters may vote in a referendum to remove judges from the Supreme Court.125 On the whole, therefore, judicial elections operate in only a small proportion of jurisdictions around the globe. That said, there is a considerable body of empirical research on their consequences for judicial decision-making, particularly on US judges’ decisions as they seek re-election. To begin with, there is substantial debate on whether judicial elections are an appropriate way to appoint judges. Judicial elections juxtapose two fundamental but contrasting values: democracy and judicial independence.126 On the one hand, electing judges is a democratic exercise, allowing citizens to have their say on who wields judicial power. Scholars note the value of public accountability – judicial elections are “powerful legitimacy-conferring institutions,” and given the considerable powers judges wield, they ought to be held accountable for their choices.127 On the other hand, others have argued that judicial elections can compromise judicial independence. As far back as 1835, French diplomat and political scientist Alexis de Tocqueville predicted that judicial elections “will sooner or later lead to disastrous results, and that some day it will become clear that to reduce the independence of magistrates in this way is to attack not only the judicial power but the democratic republic itself.”128 In the present-day US political landscape, 123 Landau and Dixon (n 117). 124 National Center for State Courts, ‘Methods of Judicial Selection’ accessed 17 July 2020. 125 Herbert Kritzer identifies these as four jurisdictions where judicial elections are held. Herbert M Kritzer, ‘The Politics of Changing Judicial Selection and Retention Methods,’ Paper presented at the Annual Meeting of the Law and Society Association, Toronto on 10 June 2018.Regarding referenda and the Japanese Supreme Court, see Jed Handelsman Shugerman, ‘Economic Crisis and the Rise of Judicial Elections and Judicial Review’ (2010) 123 Harvard Law Review 1061, 1064. 126 Paul Brace and Brent D Boyea, ‘State Public Opinion, the Death Penalty, and the Practice of Electing Judges’ (2008) 52 American Journal of Political Science 360. 127 Chris W Bonneau and Melinda Gann Hall, In Defense of Judicial Elections (Routledge 2009) 2. 128 Alexis de Tocqueville, Democracy in America: 1835 Trans. Henry Reeve (Bantam: New York 2000) 310.

245

DECISION-MAKING AND BEYOND-COURT INFLUENCES

increasingly sophisticated and expensive election campaigns have led to suggestions that judges seeking re-election may be “beholden to special interests, campaign financiers, and the manipulations of negative advertising.”129 Criticism of judicial elections has also been written into a US Supreme Court decision. Justice Sandra Day O’Connor commented in Republican Party of Minnesota v White that “if a state has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”130 Turning our attention to the US experience of judicial elections, many describe a new era, and a more aggressive style of judicial elections over the past 40 years or so.131 Traditionally, judicial elections were “low-information” contests,132 but more recently they have become increasingly characterised by intense competition and much more public engagement.133 Commentators have described them as “nastier, noisier, and costlier,”134 entailing a “perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special interest politics.”135 Given this apparent shift in gear, researchers on the US judiciary have hypothesised that judges may now engage in subtle electioneering through their decision-making in the run-up to elections. Researchers have investigated two main ways that elections can affect decision-making by judges seeking re-election. The first way analyses if and how incumbent judges adjust their decision-making behaviour to satiate public opinion as they bid for re-election. The second way analyses if and how judges decide cases to favour those who financially contribute to their election campaigns. Unsurprisingly, research on how judicial elections affect decision-making is dominated by studies on the US system. To briefly introduce US judicial elections onto state courts, there are three main types: • competitive, partisan elections along party-political lines; • competitive, non-partisan elections, where candidates are not labelled by their political affiliation, if any, on the ballot; and • non-competitive retention elections, where judges are initially appointed by means other than elections, but must face a public vote to keep their position.136 129 Speaking of the US state court elections, Shugerman further notes that “races usually cost many millions of dollars, often raised from parties with pending cases or interest groups with something at stake in those cases. And many states have partisan elections, which makes those judges reliant on partisan support.” Jed Shugerman, ‘Judicial Elections Are a Mess: Here’s How to Fix the Problem’ The Daily Beast (6 April 2018) accessed 17 July 2020. 130 (2002) 536 U.S. 765, 792. 131 David E Pozen, ‘The Irony of Judicial Elections’ (2008) 108 Columbia Law Review 265, 267; James L Gibson and Michael J Nelson, ‘Judicial Elections’ in Lee Epstein and Stefanie A Lindquist (eds), The Oxford Handbook of US Judicial Behavior (Oxford University Press 2017) 48. 132 Lawrence Baum, ‘Judicial Elections and Judicial Independence: The Voter’s Perspective Symposium: Perspectives on Judicial Independence: Elections and the Challenge to Judicial Autonomy’ (2003) 64 Ohio State Law Journal 13, 19. 133 Pozen (n 131). 134 Roy A Schotland, ‘[Judicial Independence and Democratic Accountability in Highest State Courts]: Comment’ (1998) 61 Law and Contemporary Problems 149. 135 Deborah Goldberg and Samantha Sanchez, The New Politics of Judicial Elections 2002: How the Threat to Fair and Impartial Courts Spread to More States in 2002 (Justice at Stake Campaign 2004) vi. 136 Different types of judicial election can lead to different levels of how responsive judges are to them in their decision-making. See Aaron-Andrew P Bruhl and Ethan J Leib, ‘Elected Judges and Statutory Interpretation’ (2012) 79 The University of Chicago Law Review 1215; Joanna M Shepherd, ‘Are Appointed Judges Strategic Too’ (2008) 58 Duke Law Journal 1589. Tabarrok and Helland suggest that tort awards are, on average, higher

246

DECISION-MAKING AND BEYOND-COURT INFLUENCES

There is also some limited research on the impact of judicial elections in Bolivia and Switzerland. Turning first to research investigating patterns in judicial decision-making by those seeking re-election in the run-up to polling day, former California Supreme Court judge Otto Kaus once remarked “[T]there’s no way a judge is going to be able to ignore the political consequences of certain decisions, especially if he or she has to make them near election time. That would be like ignoring a crocodile in your bathtub.”137 Another judge on the West Virginia Supreme Court even openly acknowledged how the electorate influenced him towards parochial, home-state favouritism in his decision-making.138 Several studies demonstrate how judges seeking re-election tailor their stance when deciding on ‘hot-button’ issues to align with popular opinion. Researchers on US courts have empirically analysed the decision-making of judges seeking re-election on cases about the death penalty, crime and abortion. Candidates for judicial office in the US often campaign on a ‘tough-on-crime’ stance. One candidate memorably employed the campaign slogan, “Maximum Marion’ Bloss: You do the crime, you do the time.”139 Researchers have investigated whether incumbent judges seeking re-election adopt a ‘tough-on-crime’ stance in the months leading up to polling day.140 Rather bleakly, researchers demonstrate that incumbent judges’ stance on death penalty sentences appears influenced by their re-election prospects. Hall analysed how judges decided death penalty cases across four state supreme courts in southern US states from 1983 to 1988 where public opinion generally favoured the death penalty.141 Hall identified state supreme court judges who generally took a more liberal stance on death penalty cases, contrary to the prevailing views of their voting public, but found that they altered their position on the death penalty issue in the run-up to re-election. These judges tended to side with the court majority in favour of the death penalty more often when an election was on the horizon, suppressing their inclination to dissent.142 These judges appeared to shift their decision-making in cases that were literally a matter of life or death in order to maximise their prospects of staying in their job. In a similar vein, Brace and Boyea found that in states where supreme court judges faced election, and where they must decide on capital punishment, judges were generally more sensitive to public opinion on the death penalty.143 In states that elected their judges, higher levels of in states with partisan elections than states with non-partisan elections. Alexander Tabarrok and Eric A Helland, ‘Partisan Judicial Elections and Home Court Advantage’ (2000) 23 Regulation 21. 137 Otto Kaus, quoted in Paul Reidinger, ‘The Politics of Judging’ (1987) 73 ABA Journal 52, 58. 138 This judge was quoted by Rustad and Koenig: “[A]s long as I am allowed to redistribute wealth from outof-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will re-elect me.” Michael Rustad and Thomas Koenig, ‘The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs’ (1993) 72 North Carolina Law Review 91, 142. 139 Schotland (n 134) 150. 140 Melinda Gann Hall, ‘Electoral Politics and Strategic Voting in State Supreme Courts’ (1992) 54 The Journal of Politics 427; Brace and Boyea (n 126); Brandice Canes-Wrone, Tom S Clark and Jason P Kelly, ‘Judicial Selection and Death Penalty Decisions’ (2014) 108 American Political Science Review 23. 141 Hall (n 140). Hall’s study builds upon an earlier case study focusing exclusively on the Louisiana Supreme Court. Melinda Gann Hall, ‘Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study’ (1987) 49 The Journal of Politics 1117. 142 Hall (n 140) 434. 143 Brace and Boyea (n 126) 370.

247

DECISION-MAKING AND BEYOND-COURT INFLUENCES

public support for the death penalty were associated with significantly lower probabilities of deciding to reverse death penalty sentences.144 Beyond research on trends in death penalty sentencing, other studies on general criminal sentencing also report that judges facing re-election adopt a popular ‘tough-on-crime’ stance when an election looms. Berdejó and Yuchtman investigated fluctuations in how Washington State judges sentenced in serious, visible crimes – assault, murder, rape and robbery – between 1995 and 2006.145 They found that sentences meted out in these cases were around 10% longer towards the end of the electoral cycle than they were at the beginning. Huber and Gordon identified a similar dynamic, analysing sentencing by Pennsylvania trial judges in over 22,000 serious crime cases in the 1990s.146 They found that trial judges sentenced more severely as re-election neared, conservatively estimating that 5.9% of total prison time – or, in absolute terms, between 1,818 to 2,705 years of additional prison time across their dataset – was attributable to the electoral dynamic.147 Gordon and Huber also reported in a separate study that differences in sentencing behaviour may depend on the type of judicial election employed in a particular jurisdiction.148 They explored decision-making in the state of Kansas, a jurisdiction where some districts host competitive partisan elections, and others host non-competitive retention elections. Exploiting this within-jurisdiction difference, the researchers found that judges seeking re-election in districts that hosted competitive partisan elections sentenced much more punitively than judges who sought re-election in non-competitive elections did. Significantly, however, these trends of sentencing fluctuation in tandem with electoral cycles were not replicated in a later study with a much wider geographical scope. Investigating whether sentencing patterns fluctuated with election cycles in eight other US states, Dippel and Poyker found that the effect was only apparent in North Carolina but not evident in the other seven states.149 The phenomenon may not be nearly as prevalent as previously thought. Dippel and Poyker explained the variation in the strength of the results between different states by drawing on the same factor Gordon and Huber identified in Kansas: the competitiveness of judicial elections.150 Testing this hypothesis, they found that the more competitive the judicial election, the more likely judges were to sentence more punitively in the run-up to polling day.151 These studies show that there is a link between more punitive sentencing in the run-up to judicial elections, but crucially it would seem, only where elections are competitive. The sentiment expressed in one pithy headline – “Vote for me and I’ll jail the people you hate” – does not play out universally.152 That said, there is enough empirical evidence of 144 Ibid. 367. 145 Carlos Berdejó and Noam Yuchtman, ‘Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing’ (2013) 95 Review of Economics and Statistics 741. 146 Gregory A. Huber and Sanford C Gordon, ‘Accountability and Coercion: Is Justice Blind When It Runs for Office?’ (2004) 48 American Journal of Political Science 247. 147 Ibid. 248 and 256. 148 Sanford C Gordon and Gregory Huber, ‘The Effect of Electoral Competitiveness on Incumbent Behavior’ (2007) 2 Quarterly Journal of Political Science 107. 149 Christian Dippel and Michael Poyker, How Common Are Electoral Cycles in Criminal Sentencing? (National Bureau of Economic Research 2019) 0898–2937, 11–12. 150 Ibid. 13. 151 Ibid. 15. 152 Headline from ‘The Trouble with Electing Judges’ The Economist (2014) accessed 17 July 2020.

248

DECISION-MAKING AND BEYOND-COURT INFLUENCES

sentencing fluctuation to suggest that judicial elections affect judges’ decision-making. Of course, whether or not this is a bad thing is a matter of one’s perspective and normative judgment.153 Moreover, judges often – and perhaps reasonably – acknowledge that they should be at least mindful of public opinion and changes in societal values and mores.154 To look at it another way, would judiciaries survive if they persistently made wildly unpopular decisions? However, the problem, of course, is that fluctuations and inconsistencies in decision-making may be based purely on when the decision happens to fall in the electoral cycle. As we have seen, this can sometimes even be a matter of life or death in death penalty rulings. Aside from judges becoming increasingly “tough on crime” as a judicial election looms, are judges responsive to the voting public on other issues? Two studies investigated whether US state supreme court judges change their decision-making in abortion cases in the runup to judicial elections, a prominent issue in US judicial campaigns.155 Caldarone and his colleagues investigated decision-making by state supreme court judges between 1980 and 2006 in abortion cases in states where competitive non-partisan elections are held – that is, where the ballot does not specify the candidate’s political party.156 Judges were between 11 and 24% more likely to decide cases in line with the electorate’s prevailing views on abortion if they faced election in the next two years.157 However, in a second study, Canes-Wrone and her colleagues found that judges did not alter their decision-making in abortion cases in the run-up to non-competitive retention elections.158 Again, the results from these two studies combined suggest that competition in judicial elections may be a primary factor explaining changes in judges’ decision-making on publicly salient issues.159 These studies all analyse decision-making in cases on ‘hot-button’ issues that tend to rouse public scrutiny during election campaigns. Canes-Wrone and her colleagues investigated how public opinion affects judicial decision-making on an issue that tends to be less salient during judicial elections, specifically cases on environmental law issues.160 The researchers compared state supreme court judges’ decision-making in environmental law cases in different jurisdictions with different types of judicial elections between 1990 and 2014. Tellingly, they found that public opinion was not associated with how judges decided the cases across the board, regardless of the type of judicial election, or indeed, whether there was a judicial election at all.161 Furthermore, judicial decision-making in these cases did not fluctuate as judicial elections neared.162 However, in the few states 153 Gibson and Nelson observe, for instance, that thinking of harsher sentences in the lead-up to elections as “improper,” and more lenient sentences outside of election season as “proper” is a question of normative judgement. Gibson and Nelson (n 131) 51. 154 See section 7.4 Judges, their public and decision-making. 155 Baum, ‘Judicial Elections and Judicial Independence: The Voter’s Perspective Symposium: Perspectives on Judicial Independence: Elections and the Challenge to Judicial Autonomy’ (n 132) 36. 156 Richard P Caldarone, Brandice Canes-Wrone and Tom S Clark, ‘Partisan Labels and Democratic Accountability: An Analysis of State Supreme Court Abortion Decisions’ (2009) 71 The Journal of Politics 560. 157 Ibid. 568. 158 Brandice Canes-Wrone, Tom S Clark and Jee-Kwang Park, ‘Judicial Independence and Retention Elections’ (2010) 28 The Journal of Law, Economics, & Organization 211. 159 Ibid. 227. 160 Brandice Canes-Wrone, Tom S Clark and Amy Semet, ‘Judicial Elections, Public Opinion, and Decisions on Lower-Salience Issues’ (2018) 15 Journal of Empirical Legal Studies 672. 161 Ibid. 688–690. 162 Ibid. 690.

249

DECISION-MAKING AND BEYOND-COURT INFLUENCES

where campaign advertisements attacked particular judges over their decisions in environmental law cases, these judges became responsive to public opinion in the years following the attack.163 So, aside from these uncommon instances where environmental law became a salient campaign issue through attacking campaign advertisements, the researchers concluded that public opinion on areas of law that do not dominate judicial election campaigns might not affect judges’ decision-making.164 On the evidence of this study, judges pandering to constituents in the run-up to elections may be confined to cases on ‘hot-button’ issues. Brace and Boyea contended that the widely held belief that judicial elections influence judicial decision-making “has taken on the status of a truism.”165 Overall, on the evidence of the above, it is hard to argue against this, although effects along these lines may be less potent than expected. A related issue is that of campaign funding. In recent years, interest groups, businesses and lawyers have become key players in financially supporting US judicial election campaigns.166 Take, for example, the $3 million raised by the CEO of a coal company, A.T. Massey Coal, to fund Brent Benjamin’s ultimately successful campaign to become a judge on the West Virginia Supreme Court of Appeals. After Benjamin’s appointment to the bench, A.T. Massey Coal appeared as a defendant in his court. However, Benjamin refused to recuse himself from the case. It ultimately took the US Supreme Court to determine that he must be removed from it.167 In this high-profile instance, campaign funding contributions made by a litigant to a judge was the source of controversy and suggestions of judicial bias. Campaign costs and campaign contributions in US judicial elections have grown significantly in recent years.168 Bannon and her colleagues presented an illuminating account of campaign spending in state supreme court elections over 2015–16.169 Overall spending on elections for 76 seats on US state supreme court benches during 2015–16 totalled an estimated $69.3 million.170 The researchers observed that non-party groups made up some 40% of this spending and that there was a lack of transparency171 because only 18% of interest groups’ outside expenditure could be easily traced to donors.172 They concluded that powerful businesses may see the courts as a vehicle for furthering their interests, potentially compromising justice.173 Aside from implications of judicial bias and concerns of transparency, researchers have investigated whether there is any empirical evidence that financial contributions to judicial election campaigns correlate with differences in elected judges’ decision-making. To begin 163 Ibid. 695–696. 164 Ibid. 691. 165 Brace and Boyea (n 126) 360. 166 Gibson and Nelson (n 131) 55. 167 Caperton v A T Massey Coal Co 556 U.S. 868 (2009). Justice Kennedy ruled “on these extreme facts the probability of actual bias rises to an unconstitutional level.” 168 Bonneau and Hall (n 127) 52. 169 Alicia Bannon, Cathleen Lisk and Peter Hardin, Who Pays for Judicial Races? (Brennan Center for Justice 2017) accessed 17 July 2020. 170 Ibid. 4. 171 Ibid. 2. 172 Ibid. 173 Ibid. 3.

250

DECISION-MAKING AND BEYOND-COURT INFLUENCES

with, many judges, the public and lawyers share the view that campaign funding can compromise the judicial function.174 In a 1998 survey of Texan judges, 48% thought that campaign contributions influenced judicial decisions, at least somewhat.175 Citing several public opinion studies, Geyh estimated that about 80% of the US public believed that elected judges’ decisions were influenced by the campaign contributions they received.176 A similar percentage of Texan lawyers surveyed thought that campaign contributions influenced judges there, while more recent surveys have presented similar findings.177 Aside from opinion surveys, what archival evidence is there that campaign contributions do, in fact, influence judicial decision-making? In US state judicial elections, lawyers may financially contribute to their preferred judicial candidate’s campaign. Intuitively, this seems a compromising dynamic on judicial decision-making. Cann investigated whether judges in the state of Georgia in 2003 were more likely to decide cases in favour of the clients of lawyers who donated to their campaigns.178 Although drawing only from a small sample of evidence – six judges in a single term of a single state supreme court – Cann found that lawyers’ campaign contributions increased the probability that a judge would rule in favour of those lawyers’ clients.179 However, in a separate study in Wisconsin, Cann did not find such a correlation between lawyers’ contributions and decision-making, pointing to institutional factors that may explain why lawyers’ contributions may have mattered in some states more than they did in others.180 In a later study, Cann, this time with his colleague Bonneau, presented tentative evidence that lawyers’ campaign contributions may have been a factor in jurisdictions that operated partisan rather than non-partisan judicial elections. Campaign contributions from lawyers appeared to affect case outcomes in two states where judges were elected in partisan elections (Michigan and Texas) but not where they were elected in non-partisan elections, (Nevada).181 From the results of these studies, there is some evidence that lawyers’ campaign contributions sometimes improved their chances when they subsequently appeared in court before the judge they donated to, at least in some US states.182

174 For example, US Supreme Court judge Sandra Day O’Connor, writing extrajudicially, argued that motivated interest groups “pouring money” into judicial elections “threaten the integrity of judicial selection and compromise public perceptions of judicial decisions.” Sandra Day O’Connor, ‘Justice for Sale’ Wall Street Journal (15 November 2007) accessed 17 July 2020. 175 Texas Supreme Court, Texas Office of Court Administration and State Bar of Texas, ‘The Courts and the Legal Profession in Texas: The Insider’s Perspective: A Survey of Judges, Court Personnel, and Attorneys’ (1999) 5. 176 Charles Gardner Geyh, ‘Why Judicial Elections Stink’ (2003) 64 Ohio State Law Journal 43, 54–55. 177 Texas Supreme Court, Texas Office of Court Administration and State Bar of Texas (n 175) 5. For an overview of more recent surveys, see Chris W Bonneau and Damon M Cann, ‘The Effect of Campaign Contributions on Judicial Decisionmaking’ (2009) Available at SSRN 1337668 5 accessed 17 July 2020. 178 Damon M Cann, ‘Justice for Sale? Campaign Contributions and Judicial Decisionmaking’ (2007) 7 State Politics & Policy Quarterly 281, 281. 179 Ibid. 287. The finding persisted after accounting for judge-specific factors that may have influenced their decisions. 180 Damon M Cann, ‘Campaign Contributions and Judicial Behavior’ (2002) 23 American Review of Politics 261, 290–291. 181 Bonneau and Cann (n 177). 182 Morgan LW Hazelton, Jacob M Montgomery and Brendan Nyhan, ‘Does Public Financing Affect Judicial Behavior? Evidence From the North Carolina Supreme Court’ (2015) 44 American Politics Research 587.

251

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Moving from lawyers’ contributions to business’ contributions to judicial election campaigns, similar trends emerge. Kang and Shepherd investigated the effect of business groups’ campaign contributions on US state supreme court judges’ decision-making between 1995 and 1998. The more campaign funding that judicial candidates received from businesses, the more likely that appointee was to favour business interests on the bench.183 A $1,000 contribution increased the average probability that a judge would decide for a business litigant by 0.03%, while a $1,000,000 contribution increased the average probability that a judge would decide for that business litigant in any case by 30%.184 However, the researchers found that the effect only applied in partisan elections but not in non-partisan elections.185 Using the same extensive dataset of cases heard before US state supreme court judges between 1995 and 1998, Shepherd found several correlations between specific interest groups’ contributions to campaigns and the subsequent decision-making of beneficiary judges. Contributions from pro-business groups, pro-labour groups, doctor and hospital groups and insurance companies all increased the probability that judges would subsequently decide for litigants favoured by those interest groups.186 However, isolating the impact of campaign contributions in non-partisan elections, the effects became weaker than those observed in partisan elections.187 Other studies have also investigated the effect of contributions from political parties. Kang and Shepherd found that political parties’ financial contributions in partisan state supreme court elections correlated with beneficiary judges’ subsequent decision-making in parties’ preferred directions in politically sensitive cases.188 These effects were generally stronger for Republican judges than they were for Democratic judges. On the whole, these studies suggest some evidence that justice may effectively, at least to some degree, be for sale in some US jurisdictions. Finally, a note on the Swiss and Bolivian experiences of judicial elections. In Switzerland, judges in some cantons are elected for terms of four to six years. Judges’ campaigns are almost exclusively along party-political lines. One 2016 study undertaken by a broadsheet newspaper Tages-Anzeiger offered, it would appear, the only empirical consideration of how judicial elections may affect decision-making there. Elected judges from conservative political parties reportedly rejected complaints by asylum-seekers as much as three times more frequently as other judges did.189 The Group of States against Corruption (GRECO) recently criticised the Swiss parliament

183 Michael S Kang and Joanna M Shepherd, ‘The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions’ (2011) 86 New York University Law Review 69, 98–106. 184 Ibid. 105. Of course, this is evidence merely of a correlation, rather than of a definitive causative link between campaign funding and judicial outcomes. 185 Ibid. 74. Elaborating on this, they contended that because judges depend on party support and parties want to curry favour with wealthy interest groups, this may tip the balance towards pro-business decision-making. Ibid. 119. 186 Joanna M Shepherd, ‘Money, Politics, and Impartial Justice’ (2009) 58 Duke Law Journal 623. 187 Ibid. 671. 188 Michael S Kang and Joanna M Shepherd, ‘Partisanship in State Supreme Courts: The Empirical Relationship between Party Campaign Contributions and Judicial Decision Making’ (2015) 44 The Journal of Legal Studies 161. 189 Sibilla Bondolfi, ‘Are Swiss Judges on a Tight Political Leash?’ (SWI swissinfo.ch) accessed 17 July 2020.

252

DECISION-MAKING AND BEYOND-COURT INFLUENCES

for their failure to follow recommendations to strengthen the quality and objectivity of the recruitment of judges.190 In October 2011, Bolivia became the first country to directly elect national judges, following the ratification of a new constitution in 2009.191 Candidates are prohibited from running on a party-political platform. Judicial elections have arguably been an unsuccessful democratic exercise. Voting is compulsory, yet nearly 60% of voters’ ballots were spoiled or left blank in the 2011 election.192 More recently, in 2017, that rate was even higher, 65.8%. Driscoll and Nelson have argued that this is an expression, at least in part, of the Bolivian public’s dissatisfaction with politicians, and commentators have questioned the quality of those elected.193 Reflecting on the main focus of this chapter – the institutional context in which judges operate and decision-making – a theme emerges from the literature on judicial elections. Judicial elections can affect judicial decision-making, sometimes profoundly so. Judges may well indeed be aware of the “crocodile in the bathtub” that Kaus mentioned.194 They may bear public opinion in mind in the run-up to re-election, particularly when deciding on cases about publicly salient, ‘hot-button’ issues and particularly where elections are competitive. It also seems that groups and individuals who contribute to judges’ election campaigns often fare better in court when they appear before their preferred judge. The empirical evidence suggests, therefore, that judicial elections can significantly compromise judicial independence.195 On the other hand, although some scholars malign judicial elections, they remain popular with the public, at least in the US.196 Democratic accountability of judges, some would argue, is perhaps a virtue worth the compromise. Also, it is worth considering judicial elections in context: is it any better or worse than other modes for selecting judges? Whether other modes of appointing or reappointing judges foster objectively greater judicial independence than judicial elections is not clear. Indeed, Shepherd compared the decision-making of judges facing reappointment through other modes involving appointment by government actors rather than by public election.197 She concluded that judges reappointed other than by re-election were at least as strategic, if not more so than judges facing re-election. However, other studies have shown that judges appointed other than by election are less responsive to public opinion than elected judges are.198 190 GRECO, Fourth Evaluation Round–Corruption Prevention in Respect of Members of Parliament, Judges and Prosecutors–Compliance Report Switzerland (GRECO 2019). 191 Amanda Driscoll and Michael J Nelson, ‘Judicial Selection and the Democratization of Justice: Lessons from the Bolivian Judicial Elections’ (2015) 3 Journal of Law and Courts 115, 115. 192 Ibid. 123. 193 Amanda Driscoll and Michael J Nelson, ‘Chronicle of an Election Foretold The 2017 Bolivian Judicial Elections’ (2019) 26 Política y Gobierno 41; Luis Pásara, Judicial Elections in Bolivia: An Unprecedented Event (Due Process of Law Foundation 2015) 3. 194 Otto Kaus, quoted in Reidinger (n 137) 58. 195 Gibson and Nelson’s “minimalist conclusion from the current research is that judicial independence in these courts has been significantly constrained.” Gibson and Nelson (n 131) 62. 196 Geyh (n 176) 43; Gibson and Nelson (n 131) 62. 197 Shepherd (n 136) 1625. 198 See, for instance, responsiveness to public opinion on the death penalty, Brace and Boyea (n 126) 369–370. Besley and Payne provide indirect evidence of the same difference between appointed and elected judges in the context of the implementation of anti-discrimination policy at state level. States where judges are appointed see fewer charges for discrimination being brought than in states where judges are elected. Timothy Besley and A

253

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Beyond the literature directly on the interaction between judicial elections and decisionmaking, scholars have researched other aspects of judicial elections: voting behaviour in judicial elections,199 voters’ perspectives on judicial elections,200 trends in judicial elections201 and how non-traditional candidates fare in judicial elections relative to other selection systems, for example.202 All of these issues may peripherally tie in with how judges ultimately decide cases in jurisdictions that host judicial elections. All told, the current state of the literature presents considerable empirical evidence that judicial elections may often compromise the ideal of impartial justice. Further studies on decision-making by elected judges in other US states not researched to date, on elected judges’ decision-making in further areas of law and on elected judges in the other jurisdictions that hold judicial elections will cast further light on the precise effects the voter and the campaign funder have on judges’ work. 7.2.2.2 Governments’ control over the terms and conditions of judges’ employment Aside from their powers over how judges are selected and removed from the bench, do governments leverage their powers over judges’ remuneration, over their promotion prospects and over court budgets and resourcing to influence how judges decide cases? The provision of secure and adequate judicial remuneration is generally recognised as a central requirement for judicial independence.203 Elsewhere, we considered studies on whether pay served as a personal motivator for judges to be more productive or to produce higher-quality decisions.204 Other studies have investigated governments’ control over judicial remuneration as an institutional, top-down influence on judges’ work. Are better-paid judges more independent when deciding cases that affect governments and their policies? Do governments sometimes use pay cuts, or the threat of pay cuts, to get judges to toe the line when deciding cases?205 Anderson and his colleagues tested whether governments incentivise judges to be more independent by paying them more.206 They based this hypothesis on a theory of judicial independence previously advanced by Landes and Posner: when governments make legislation they want it to be a durable contract of sorts with those who stand Abigail Payne, ‘Implementation of Anti-Discrimination Policy: Does Judicial Selection Matter?’ (2013) 15 American Law and Economics Review 212. 199 Lawrence Baum, ‘Voting in Judicial Elections’ (2001) Fall New York State Bar Association 32. 200 Baum, ‘Judicial Elections and Judicial Independence: The Voter’s Perspective Symposium: Perspectives on Judicial Independence: Elections and the Challenge to Judicial Autonomy’ (n 132); Kathleen Hall Jamieson and Michael Hennessy, ‘Public Understanding of and Support for the Courts: Survey Results’ (2006) 95 Georgetown Law Journal 899. 201 Larry T Aspin, ‘Retention Elections and Evaluations: A Response to Current Trends in Contested Judicial Elections’ (2007) Future Trends in State Courts 104. 202 Margaret Williams, ‘Women’s Representation on State Trial and Appellate Courts’ (2007) 88 Social Science Quarterly 1192. 203 Gee and others (n 99) 78. 204 See section 3.3 Pay. 205 For a recent example, see ‘Polish Judge Suspended in Row over Court Shake-Up’ bbc.com (4 February 2020) accessed 17 July 2020. 206 Gary M Anderson, William F Shughart and Robert D Tollison, ‘On the Incentives of Judges to Enforce Legislative Wealth Transfers’ (1989) 32 The Journal of Law and Economics 215.

254

DECISION-MAKING AND BEYOND-COURT INFLUENCES

to benefit from it – a particular group in society or an industry, for instance.207 So if governments want their legislation to stand the test of time, they may prefer to have in place an independent judiciary that will robustly defend legislation over many years, rebuffing subsequent legislatures’ attempts to circumvent it or whittle it down. Thus, judicial independence, according to this theory, refers to judges’ inclination to enforce existing legislation based on the intent of the legislature when the legislation was passed. Conceiving of judicial independence in this way, Anderson and his colleagues explored whether governments incentivise judges to be more independent by paying them more. They found that increases in salaries for chief justices of US state supreme courts positively correlated with their propensity to decide cases more independently over a 40-year period. Higher-salary judges were more likely to overturn subsequent governments’ attempts to meddle with existing legislation, thereby preserving that legislation’s durability and value. The researchers concluded from their findings that legislatures may reward judicial systems that display a greater degree of independence with higher salaries.208 Other studies have investigated whether governments use their power to promote judges as a means of rewarding judges who tend to decide cases in their favour. Empirical evidence for this is mixed. In the UK, where the Lord Chancellor is the government actor responsible for judicial promotions, Salzberger and Fenn investigated whether the Lord Chancellor was more inclined to promote judges from the Court of Appeal to the House of Lords if they tended to be more pro-government in their decision-making.209 Analysing decisions between 1951 and 1986, they found that Court of Appeal judges who had a higher propensity to decide cases against the government did not suffer in their chances for promotion. Nor did judges’ higher tendency to reverse pro-government decisions of lower courts appear to harm their chances of promotion. However, where judges displayed both tendencies – that is, both to decide more frequently against the government and to more frequently reverse favourable decisions of other lower court judges – the two combined did appear to harm their chances of promotion to a limited extent.210 A partial link between promotion prospects and a judge’s decision-making for or against the government was therefore apparent. Salzberger and Fenn suggested that one plausible interpretation of their findings was that while governments did not set out to punish disloyalty, they may have looked to weed out judges who displayed anti-government bias.211 In a similar study on judges’ chances of promotion from the New Zealand High Court to the Court of Appeal, Maitra and Smyth found no evidence of a correlation between government-friendly decision-making and judges’ prospects for promotion.212 In Japan, however, a different picture emerged, at least in the political climate there during the 1970s and 1980s. In Japan, judges train and pursue a judicial career immediately 207 William M Landes and Richard A Posner, ‘The Independent Judiciary in an Interest-Group Perspective’ (1975) 18 The Journal of Law and Economics 875. 208 Anderson, Shughart and Tollison (n 206) 226. 209 Eli Salzberger and Paul Fenn, ‘Judicial Independence: Some Evidence from the English Court of Appeal’ (1999) 42 Journal of Law & Economics 831. 210 Ibid. 846. 211 Ibid. 212 Maitra and Smyth (n 52).

255

DECISION-MAKING AND BEYOND-COURT INFLUENCES

upon finishing their legal education, and apply to the government for promotions as their career progresses. Ramseyer and Rasmusen found evidence that judges’ promotion prospects correlated with their propensity to decide cases for or against the government.213 Analysing civil law judges’ decision-making between 1975 and 1984, judges who decided cases against the interests of the party in power throughout that time, the Liberal Democratic Party, tended to be given less attractive and less prestigious judicial posts, both in terms of geographical location and in terms of rank within the judicial hierarchy.214 Ramseyer and Rasmusen offered a specific example of this phenomenon. Judges who ruled that a ban on door-to-door canvassing was unconstitutional – a stance the Liberal Democratic Party resolutely disagreed with – received less attractive posts than judges who took the party’s preferred stance of upholding the constitutionality of the canvassing ban.215 The same authors replicated the general result in a later study.216 Judges who sided with the government in politically volatile cases improved their promotion prospects.217 Finally, a reduction in a court’s budget can hurt its operations. Do governments, therefore, use their control over court budgets as a threat to incentivise changes in judges’ decisionmaking? Toma investigated whether this dynamic existed in the US by analysing whether the US Congress used court budgets as a “signalling device” to the US Supreme Court over the period from 1946 to 1977, thereby affecting decision-making.218 Categorising the Court’s decision-making in non-unanimous decisions on civil liberties and economic issues as either liberal or conservative, Toma found evidence suggesting a give-or-take between Congress’ budget and the Court’s decision-making. As the Court’s decisions became more conservative, this correlated with Congress subsequently allocating it with bigger budgets.219 When Congress’ budget allocation to the Court increased, the Court seemed to respond in turn by tending to become more conservative in their rulings.220 More liberal decisionmaking appeared to spur Congress into reducing the Court’s budget. Toma concluded that these findings suggest that Congress exerted political influence over judges’ decision-making “at the margin” through its management of the Court’s purse strings.221 Taken together, the findings from these studies show how governments sometimes exercise their powers over the terms and conditions of judges’ employment to influence judges’ decision-making, at least to some degree. The usual caveats of individual jurisdictions’ idiosyncrasies and the effects of prevailing political climates at the time studies were undertaken apply. Results ought not to be generalised beyond their own unique contexts. 213 J Mark Ramseyer and Eric B Rasmusen, ‘Judicial Independence in a Civil Law Regime: The Evidence from Japan’ (1997) 13 The Journal of Law, Economics, and Organization 259. 214 Ibid. 282. 215 Ibid. 284. 216 J Mark Ramseyer, ‘Why Are Japanese Judges so Conservative in Politically Charged Cases?’ (2001) 95 American Political Science Review 331. 217 A comprehensive account of the incentives on the Japanese judiciary can be found in J Mark Ramseyer and Eric B Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan (University of Chicago Press 2010). 218 Toma (n 116). 219 Ibid. 144. 220 Ibid. 146. 221 Ibid. 145.

256

DECISION-MAKING AND BEYOND-COURT INFLUENCES

7.3 Judges and their professional networks Judges increasingly interact with each other as part of a wider, global professional network.222 They meet colleagues both within and beyond their home jurisdictions at educational conferences and networking events,223 they exchange views in less formal settings224 and sometimes they participate in court exchanges, trading places to learn from each other’s jurisdictions’ practices.225 Slaughter describes a new global community of courts, where “judges see each other not only as servants and representatives of a particular polity, but also as fellow professionals in an endeavour that transcends national borders.”226 Judges’ ever-increasing social and professional engagement with each other has meaningful implications for judicial behaviour.227 Indeed some scholars call for a “relational approach” to understand aspects of judging.228 Cross-pollination of ideas influences judges when they return to their bench, not only in specific areas of substantive law229 but also in how they approach the business of judging and the task of making decisions. This section explores some of the ways that this judicial cosmopolitanism of sorts may affect how judges decide cases. Professional judicial networks, either within the same jurisdiction or across international borders, present opportunities for judges on different courts to establish and develop 222 Carl Baudenbacher, ‘Judicial Globalization: New Development or Old Wine in New Bottles’ (2003) 38 Texas International Law Journal 505; David B Goldman, Globalisation and the Western Legal Tradition: Recurring Patterns of Law and Authority (Cambridge University Press 2008); Olga Frishman, ‘Should Courts Fear Transnational Engagement’ (2016) 49 Vanderbilt Journal of Transnational Law 59; Maartje De Visser, ‘We All Stand Together: The Role of the Association of Asian Constitutional Courts and Equivalent Institutions in Promoting Constitutionalism’ (2016) 3 Asian Journal of Law and Society 105, 111–112. 223 For a sense of the increasing connectivity of judges, see a detailed list of face-to-face meetings in ‘The Changing Role of Highest Courts in an Internationalising World: Inventory and Bibliography’ (Hague Institute for the Internationalisation of Law 2008) 63–77 accessed 17 July 2020. 224 Mac Cormaic notes, for instance, how a dinner between Brian Walsh of the Irish Supreme Court and William Brennan of the US Supreme Court sparked not only a long friendship, but also inter-court dialogue that apparently led to considerable influence in each others’ decision-making: The two men hit it off straight away. They talked about the big issues of the day and exchanged views on some of the legal questions the courts in both countries were grappling with at the time, including the ‘exclusionary rule’ – the law that prohibits the use of illegally obtained evidence in a criminal trial. . . . Picking up on their “intensely interesting” discussion about the exclusionary rule, Brennan sent Walsh copies of three judgments the American court had given on the issue in the recent past. He also told Walsh that he would arrange with his office to have a “slip opinion”, or an unformatted early draft, of every US Supreme Court judgment posted to Walsh as soon as it was available. This arrangement would remain in place for almost thirty years, until both men retired in 1990. . . [t]hat flow of information, and the lifelong friendship the two men were to form, were to have a profound impact on the Irish court.

Ruadhán Mac Cormaic, The Supreme Court (Penguin 2016) 83–84

225 See further, Marin K Levy, ‘Visiting Judges’ (2019) 107 California Law Review 67. To give one example, Justice Walter Sofronoff, President of the Queensland Court of Appeal swapped places with his counterpart on the Western Australia Court of Appeal, Justice Michael Buss, for a two-week exchange in July 2019. Josh Robertson, ‘Two Judges Are Trading Places in the Hopes of Learning from Other States’ Methods’ ABC News (20 October 2019) accessed 17 July 2020. 226 Anne-Marie Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191, 193. 227 Björn Dressel, Raul Sanchez-Urribarri and Alexander Stroh, ‘The Informal Dimension of Judicial Politics: A Relational Perspective’ (2017) 13 Annual Review of Law and Social Science 413, 415. 228 Dressel, Sanchez-Urribarri and Stroh (n 227). 229 Giuseppe Franco Ferrari (ed), Judicial Cosmopolitanism (Brill | Nijhoff 2019).

257

DECISION-MAKING AND BEYOND-COURT INFLUENCES

relationships with each other, through face-to-face meetings and online forums.230 For example, organisations such as the European Judicial Network, the European Network of Councils for the Judiciary and the Association of Asian Constitutional Courts and Equivalent Institutions are international forums for judges to discuss their work and exchange ideas.231 Judges not only exchange knowledge on substantive law through such forums but may also use them to discuss their mutual concern for judicial independence – perhaps, some have argued, emboldening them to protect judicial autonomy from other political actors in their home jurisdictions.232 Slaughter goes so far as to describe how these meet-ups socialise judges as participants in a “common global judicial enterprise.”233 Evidence that such interactions lead to changes in judicial decision-making has been described as anecdotal at best.234 Nevertheless, it ought not to be disregarded. Former Australian High Court judge Michael Kirby, for instance, described how the ever-expanding opportunities for judges to meet with colleagues beyond their home jurisdiction inevitably influence how they resolve local legal problems.235 An interview study of US and UK judges who had participated in visits to each other’s courts described relationship-building with colleagues overseas and how it had opened their minds on some issues, leading to subsequent telephone exchanges about legal problems as they arose in each other’s jurisdictions.236 Judicial and comparative constitutional law scholars have suggested that judges’ increasing propensity to cite foreign law is evidence of an increasingly globalised judicial community, a form of “global judicial dialogue.”237 For example, an empirical analysis of foreign case law citations across ten European courts from 2000 to 2007 highlighted the complexity and breadth of interactions between judges on the different courts.238 In a similar vein, Flanagan and Ahern collated the views of 43 judges from many of the world’s leading supreme courts on their use of foreign law in constitutional rights cases.239 230 Monica Claes and Maartje de Visser, ‘Are You Networked Yet: On Dialogues in European Judicial Networks Special Issue on Highest Courts and Transnational Interaction’ (2012) 8 Utrecht Law Review 100, 109–111. 231 Dressel, Sanchez-Urribarri and Stroh (n 227) 419. Networking and knowledge exchange is not a uniquely international phenomenon. For example, administrative law judges in Switzerland, Germany and Netherlands self-report that they perceive themselves as relatively active knowledge sharers with their colleagues within their own jurisdictions. Sandra Taal, ‘Working Separately Together: A Quantitative Study into the Knowledge Sharing Behaviour of Judges’ (Doctoral dissertation, Utrecht University 2016). 232 Dressel, Sanchez-Urribarri and Stroh (n 227) 423. International judicial networks often espouse knowledge exchange as one of their stated goals. For example, the preamble of the Judicial Network of the Association of Asian Constitutional Courts and Equivalent Institutions refers to the “need of sharing experiences, exchanging information, and discussing issues of mutual concern over constitutional practice and jurisprudence for the development of the Asian constitutional courts and equivalent institutions.” 233 Anne-Marie Slaughter, A New World Order (Princeton University Press 2009) 99. 234 David S Law and Wen-Chen Chang, ‘The Limits of Global Judicial Dialogue Symposium: Global Law and Its Exceptions’ (2011) 86 Washington Law Review 523, 536. 235 Michael Kirby, ‘Transnational Judicial Dialogue, Internationalisation of Law and Australian Judges’ (2008) 9 Melbourne Journal of International Law 171, 173 and 189. 236 Elaine Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (A&C Black 2014) 84, 85 and 89. 237 For a critical analysis of the literature, see Law and Chang (n 234). See generally, Ferrari (n 229). 238 Martin Gelter and Mathias Siems, ‘Networks, Dialogue or One-Way Traffic: An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts’ (2012) 8 Utrecht Law Review 88. Law and Chang vividly describe how the phenomenon of international cross-citation may conjure up an image of “judges trotting the globe to chart the course of constitutional law behind closed doors before returning home to impose this master scheme on their unwitting compatriots, with no one the wiser except the judges themselves.” Law and Chang (n 234) 535. 239 Brian Flanagan and Sinead Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 International & Comparative Law Quarterly 1. The judges were from

258

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Reliance on foreign law was pervasive among all of the judges; 20 described using foreign law “occasionally,” and 23 described using it “regularly.” About half of the judges said they had personal contacts with judges from other jurisdictions that had contributed to their analysis of domestic rights.240 One-fifth described the international community as a specific audience for their judgments.241 The researchers suggested that some judges may have used comparative material to earn the professional approval of ‘respected’ foreign judges.242 For some judges, colleagues abroad formed a reference group for deciding constitutional rights cases, although that said, they were in the minority.243 The results of this survey study pointed to a dynamic, internationally connected community of judges on apex courts who seemed cognisant of, and inclined to draw inspiration from, each other’s work. Law and Chang conducted an empirical study on international judicial dialogue by measuring judges’ propensity to cite foreign law in their judgments.244 They compared the use of foreign law citations by Taiwanese Constitutional Court judges to that used by judges on the US Supreme Court. Characterising the Taiwanese judiciary as part of a marginalised democracy with limited opportunities to interact with the global judicial community, the researchers pointed out that Taiwanese judges nevertheless tended to cite more foreign law than their counterparts on the US Supreme Court who had vastly more opportunities to interact with their international peers. They contended, therefore, that reliance on foreign law is probably a product of the educational and professional background of the judges themselves245 rather than a product of the number of opportunities they have to liaise with their colleagues on other courts around the globe. Judicial dialogue through professional networking may, in fact, be a relatively minor factor in judges’ propensity to cite foreign law, depending on the background of judges.246 Overall then, this line of research confirms that judges have more and more opportunities to network with colleagues from other jurisdictions. This dialogue can lead to the cross-pollination of ideas both on substantive law and perhaps even judge-craft, and this may affect judicial decision-making some of the time. Some have suggested that the increased propensity to cite foreign law is evidence of this dynamic, although Law and Chang contended that the causative link between judges networking and their reliance on law from beyond their home jurisdiction may be overstated. Nevertheless, many judges on apex courts self-report that their overseas peers are a useful source of information and influence. Some judges even suggest that their equivalent colleagues in other jurisdictions are an important audience that they bear in mind when deciding cases. Of course, isolating the influence of colleagues as a discrete effect on judicial decision-making is difficult. It the UK House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States. 240 Ibid. 15. 241 Ibid. 16. 242 Ibid. 26. 243 Ibid. 28. 244 Law and Chang (n 234). 245 Ibid. 571. 246 That said, in a later article by one of the co-authors of this study, Law argued that judges from different courts may jockey with each other internationally for international influence and engage in what he calls judicial diplomacy. David S Law, ‘Judicial Comparativism and Judicial Diplomacy’ (2015) 163 University of Pennsylvania Law Review 927.

259

DECISION-MAKING AND BEYOND-COURT INFLUENCES

may be limited to only some areas of law. In this regard, it should be noted that much of this research concentrates on human rights, a field in which global networking is “particularly potent.”247 That said, it is reasonable to suggest that as formal and informal interactions among judges from different courts continue to develop, this may lead to further cross-pollination in more areas of law and in the business of judging generally. 7.4 Judges, their public and decision-making “No matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ illiction returns.”248 So said Mr Dooley, the celebrated fictional character of American satirist Finley Peter Dunne, offering his two cents on a controversial US Supreme Court case about whether the US government could tax citizens of Puerto Rico. For readers who may have trouble deciphering the thick Irish accent – County Roscommon to be specific! – the gist of Mr Dooley’s sentiments were that judges sometimes pander to public approval when deciding cases. This section considers empirical research investigating how the public mood can affect judges’ thinking. Researchers look to draw correlations between judicial decision-making and public opinion on specific case issues. If judges tend to decide cases more liberally when the prevailing public mood is more liberal, this can be interpreted in different ways. On the one hand, it may be a trickle-down effect of politicised judicial appointments. The public selects politicians who, in turn, select judges who decide cases in ways aligned to public opinion. On the other hand, it may be that judges enjoy the prestige and reputation boon that comes with pleasing the public who are, after all, one of their audiences.249 Further still, it may be that judges are cognisant that they ought to reflect present-day social mores in their judgments, aligned to the public’s prevailing attitudes. Certain courts tend to attract more attention from the public than others, and within them, certain cases inevitably arouse particular public controversy.250 Occasionally, judges will anticipate impending controversy and acknowledge as much in their rulings. Take

247 Anne-Marie Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99, 132. 248 Finley Peter Dunne, The World of Mr. Dooley (Collier Books 1962) 89. 249 Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (n 46) 60–71. 250 Sternberg and his colleagues refer to sizable proportions of the public expressing dissatisfaction with rulings of the German Federal Constitutional Court in high-profile rulings on the right to vote and on abortion, for example. Sebastian Sternberg and others, ‘Zum Einfluss Der Öffentlichen Meinung Auf Entscheidungen Des Bundesverfassungsgerichts. Eine Analyse von Abstrakten Normenkontrollen Sowie Bund-Länder-Streitigkeiten 1974–2010’ (2015) 56 Politische Vierteljahresschrift 570, 571. Speaking about the US judiciary in 1993, Posner observed that public comment on judicial decisions from courts other than the Supreme Court is rare. Richard A Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (1993) 3 Supreme Court Economic Review 1, 23. However, this may not necessarily hold in the age of digital news and social media. Moreover, in smaller jurisdictions, judges in lower courts occasionally bear the public in mind. For instance, Irish judge Jacqueline Linnane made comments in the Irish Circuit Court criticising solicitors for acting in fraudulent personal injuries claims in the context of ongoing public and political debate about so-called compensation culture in Ireland. See ‘Judge Slams Solicitors over Personal Injury Claims’ accessed 17 July 2020; ‘Solicitors Should Be “More Selective” about Personal Injury Clients: Judge Dismisses €300k Whiplash Claims’ (Independent.ie) accessed 17 July 2020.

260

DECISION-MAKING AND BEYOND-COURT INFLUENCES

the well-known US Supreme Court case of Texas v Johnson as an example.251 The Court invalidated laws prohibiting the desecration of the American flag on the grounds that such a law breached the protection of free speech under the First Amendment to the US Constitution. Justice Anthony Kennedy anticipated that his decision would be decidedly unpopular with many citizens and acknowledged as much in his decision: “The hard fact is that sometimes we must make decisions we do not like,” he explained.252 Many judges writing extrajudicially acknowledge that judges should not, nor do they, ignore the public they serve. Former President of the UK Supreme Court Tom Bingham suggested that it would be wrong, if not impossible for judges to ignore the opinions of the public.253 Judges, he observed, do not live as hermits, are alive to the opinions of their fellow citizens, and are bound to reflect on why the public may hold a different view on a legal matter than themselves.254 Several US Supreme Court judges have also acknowledged the importance of public opinion for its work, remarking, for instance, how the Court itself is a reflector of the general drift of public opinion,255 how individual judges are aware of the strong views of the public on ‘hot-button’ issues256 and how it would not be possible for the Court to isolate itself from the tides of public opinion, nor would it be wise to try.257 Cardozo eloquently described how “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”258 These comments suggest that the influence of public opinion on judicial decision-making on apex courts ought not to be discounted. Judges’ self-reflections on how the public perceives their work is one thing, but do they modify their decision-making to reflect the will of the public?259 Judicial scholars have set about systematically investigating this dynamic.260 As with many other areas of 251 491 U.S. 397 (1989). 252 491 U.S. 397 (1989), 420. Another recent example can be found in the ruling of Judge Max Barrett in the Irish High Court case, Jones v Minister for Justice and Equality, where he interpreted the phrase “one year’s continuous residence,” for the purposes of a requirement to apply for naturalisation, literally to mean that one may never leave the State for a year. He acknowledged in his ruling – perhaps wary of public perception – that this “may seem unfair.” [2019] IEHC 519, para. 8. The ruling was subsequently overturned on appeal. [2019] IECA 285. 253 Bingham notes, “I do not consider it would be right, even if it were possible, for judges to ignore the opinion of the public.” Tom Bingham, ‘The Sentence of the Court’ in The Business of Judging: Selected Essays and Speeches: 1985–1999 (Oxford: Oxford University Press 2011) 301. 254 Bingham (n 253). 255 Felix Frankfurter, Law and Politics: Occasional Papers of Felix Frankfurter, Archibald MacLeish and EF Prichard (eds) (Harcourt, Brace and Co 1939) 197. 256 Interview with Sandra Day O’Connor, ‘Dateline NBC’ (25 January 2002). 257 William H Rehnquist, The Supreme Court: How It Was, How It Is (William Morrow and Company 1987) 98. 258 Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press 1921) 168. 259 For instance, Garoupa and Ginsburg singled out one apparent instance of this when Chief Justice Roberts seemingly had a change of heart in a highly sensitive case about the constitutionality of the Affordable Care Act case in 2012, National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012). The researchers suggested that Roberts’s decision may have been at least partly motivated by his concern for the public’s perception of the Court. Nuno Garoupa and Tom Ginsburg, Judicial Reputation: A Comparative Theory (University of Chicago Press 2015) 1. For press coverage, see Jan Crawford, ‘Roberts Switched Views to Uphold Health Care Law’ CBS News (2012). Influential US constitutional law scholar Barry Friedman devotes an entire volume to arguing that public opinion shapes the decisions of the US Supreme Court. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux 2009). 260 Micheal W Giles, Bethany Blackstone and Richard L Vining Jr., ‘The Supreme Court in American Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision Making’ (2008) 70 The

261

DECISION-MAKING AND BEYOND-COURT INFLUENCES

judicial scholarship, the research is US-centric, mainly concentrated on the US Supreme Court, although some researchers have investigated courts further afield.261 The public’s influence over judicial decision-making may, of course, overlap with political influences on judging. Recall that judges sometimes display political preferences through their decisions that align with those of the political actors who appointed them to the bench.262 As the political landscape changes, the ideology of judiciaries may gradually change with it. Judges’ decision-making may, therefore, follow the political – and by extension – public tide. Giles and his colleagues observed, for example, that “the frequent replacement of [US Supreme Court] justices has kept the Supreme Court generally attuned to public opinion.”263 Several studies have presented evidence that the US Supreme Court responds to shifting tides in public opinion. An earlier, influential study by Mishler and Sheehan demonstrated that as the US public’s attitude became more liberal – for instance, in the early 1960s – the US Supreme Court’s decision-making followed suit, tending to decide cases more liberally soon afterwards. As the public’s support for liberalism waned around 1980, again the US Supreme Court’s decision-making followed suit.264 The researchers noted that fluctuations in both the public’s and the judges’ attitudes closely matched, and observed that because the Court’s shift in attitude came slightly after the public’s shift in attitude, this suggested that the Court responded to the public mood.265 In a later study, Mishler and Sheehan showed that the effect of public mood on their decision-making varied between individual judges on the Court.266 A later study by McGuire and Stimson concluded that US Supreme Court judges were “highly responsive” to public opinion.267 The researchers argued that this was to be expected: if judges wanted to see their personal preferences expressed in public policy, they would

Journal of Politics 293; Roy B Flemming and B Dan Wood, ‘The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods’ (1997) 41 American Journal of Political Science 468; William Mishler and Reginald S Sheehan, ‘Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective’ (1996) 58 The Journal of Politics 169; James A Stimson, Michael B MacKuen and Robert S Erikson, ‘Dynamic Representation’ (1995) 89 American Political Science Review 543; Michael W Link, ‘Tracking Public Mood in the Supreme Court: Cross-Time Analyses of Criminal Procedure and Civil Rights Cases’ (1995) 48 Political Research Quarterly 61; Helmut Norpoth and others, ‘Popular Influence on Supreme Court Decisions’ (1994) 88 American Political Science Review 711; William Mishler and Reginald S Sheehan, ‘The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions’ (1993) 87 American Political Science Review 87. Epstein and Martin provide a useful summary of these studies up to 2010, as well as an influential study of their own, in Lee Epstein and Andrew D Martin, ‘Does Public Opinion Influence the Supreme Court? - Possibly Yes (But We’re Not Sure Why)’ (2010) 13 University of Pennsylvania Journal of Constitutional Law 263, 265–267. 261 Charles H Sheldon, ‘Public Opinion and High Courts: Communist Party Cases in Four Constitutional Systems’ (1967) 20 The Western Political Quarterly 341, 341. 262 See section 4.5 Judges’ politics and judicial decision-making. 263 Giles, Blackstone and Vining Jr. (n 260) 293. 264 Mishler and Sheehan, ‘The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions’ (n 260) 90. 265 Ibid. 266 Mishler and Sheehan, ‘Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective’ (n 260). 267 Kevin T McGuire and James A Stimson, ‘The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences’ (2004) 66 The Journal of Politics 1018. The researchers measured the Court’s liberalism over 1953 to 1996 and cross-referenced this to the prevailing public mood over the same period.

262

DECISION-MAKING AND BEYOND-COURT INFLUENCES

understand that their preferences must be acceptable to the public.268 To maintain institutional legitimacy, a judge on the Court had a “substantial incentive to trim his sails and follow popular sentiment in the present,” they observed.269 Another study by Clark reported that the Court responded to public opinion using a different indicator. As public support for the Supreme Court declined, its decision-making became more restrained, tending to strike down fewer laws.270 Judges perhaps felt less emboldened as public support for them waned. Results of other studies on the influence of public opinion on the US Supreme Court’s decision-making are far less emphatic, however.271 For example, Giles and his colleagues noted that only five out of the 26 judges they analysed appeared to be responsive to the public mood.272 They concluded, therefore, that the tide of public opinion as an influencer on the Court’s decision-making may, in fact, be better described as a trickle.273 More recently, Epstein and Martin offered a fresh perspective on this issue.274 Rather than focusing on the percentage of ‘liberally’ decided cases over entire court terms, they analysed individual US Supreme Court judges’ decisions on a case-by-case basis. They contended that this was a more accurate way to examine the influence of public opinion. Noting that evidence from previous studies of the influence of public opinion to date was mixed at best, their more granular analysis of decisions in 5,675 cases from 1958 to 2008 indicated that the public’s mood was indeed a significant, non-trivial predictor of outcomes.275 They emphasised caution, however, in interpreting this association as definitive proof that judges responded to public opinion through their decision-making.276 An alternative explanation may have been that the judges were simply susceptible to the winds of social change just like everyone else was and were influenced by the same things that influence the public’s opinion.277 Empirical research on courts other than the US Supreme Court is less common. Where research addresses the public opinion’s influence on lower courts in the US judicial system, this has tended to concentrate on the effect of judicial elections, as described earlier in this chapter.278 Beyond the US, in an early study from 1967, Sheldon reported how a handful of decisions from the Canadian Supreme Court and the German Federal Constitutional Court about the legality of communist parties correlated with public sentiment towards communism.279 Sheldon did not find a similar correlation on the High Court of Australia, a feature he attributed to a tradition of legal positivism on that court.280 268 Ibid. 1019. 269 Ibid. 1022. 270 Tom S Clark, ‘The Separation of Powers, Court Curbing, and Judicial Legitimacy’ (2009) 53 American Journal of Political Science 971. 271 Flemming and Wood, and Stimson and his colleagues, both concluded, for instance, that trends towards liberal voting can be accounted for mainly by the composition of the Court, rather than by the influence of public opinion. Flemming and Wood (n 260); Stimson, MacKuen and Erikson (n 260). 272 Giles, Blackstone and Vining Jr. (n 260) 303. 273 Ibid. 274 Epstein and Martin (n 260). 275 Ibid. 263 and 279. 276 Ibid. 280. 277 Epstein and Knight referred to the winds of social change “emanating from American culture, media and politics,” as Flemming and Wood put it. Flemming and Wood (n 260) 471. Epstein and Martin (n 260) 281. 278 See section 7.2.2.1 How judges are selected and the consequences for judicial decision-making. 279 Sheldon (n 261). 280 Ibid. 365.

263

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Researchers on some European courts have also investigated the effect of public opinion on decision-making. Some have reported correlations between the success rates of opposition parties taking governments to court and popular support for those opposition parties at that time. For example, Sternberg and his colleagues analysed decision-making on the German Federal Constitutional Court from 1974 to 2010.281 Analysing cases that pitted the parties in government against the opposition faction in the German parliament, they found that the Court was more likely to rule in favour of the opposition faction in the German parliament when the public supported the opposition’s position on the case issue.282 Bricker and Wondreys presented further evidence of this dynamic by analysing trends from the constitutional courts in Germany, Poland,283 Slovenia and the Czech Republic.284 They found strong evidence that these constitutional courts responded to shifts in the public’s support away from government parties and towards opposition parties. When public support for opposition parties increased, this correlated with an increased likelihood that the courts would decide cases taken by opposition parties in their favour.285 The researchers concluded that their findings indicated that public preferences matter to court outcomes.286 Turning to supranational courts, Blauberger and his colleagues presented a recent case study of an apparent reaction by the Court of Justice of the European Union (CJEU) to public opinion in one area of law.287 Noting that the CJEU had recently shifted to a more restrictive interpretation of EU citizens’ rights, the researchers argued that the Court was acting in a way that was responsive to substantial shifts in the broader political and public mood.288 The researchers analysed newspaper articles from five EU jurisdictions over a 13-year period that concerned free movement of persons in the EU and EU citizens’ access to welfare. These articles were used as a proxy for the public’s mood on the issue. Negative coverage on this matter became particularly prevalent between 2012 and 2015. The researchers found that the shift in the CJEU’s case-law restricting access to benefits for migrant EU citizens occurred just at the time when negative publicity on the issue peaked.289 Blauberger and his colleagues concluded that the CJEU was responsive to its environment and that public sentiment may have played a part in its decision-making.290 Of course, this study was narrowly confined to one area of law, and the evidence the researchers presented is not indicative of a general trend on that court. Nevertheless, the correlation is telling. The methodology could be used as a model to investigate similar patterns on other issues. 281 Sternberg and others (n 250). Specifically, the researchers analysed the Court’s decision-making in federal state disputes and judicial review cases. 282 Ibid. 572. 283 Further evidence of public opinion correlating to decision-making on the Polish Constitutional Tribunal can be found in Benjamin Bricker, Visions of Judicial Review: A Comparative Examination of Courts and Policy in Democracies (ECPR Press 2016). 284 Benjamin Bricker and Jakub Wondreys, ‘Public Opinion and Opposition Party Success: Evidence from the European Constitutional Courts’ (2018) 39 Justice System Journal 123. 285 Ibid. 124. 286 Ibid. 134. 287 Michael Blauberger and others, ‘ECJ Judges Read the Morning Papers. Explaining the Turnaround of European Citizenship Jurisprudence’ (2018) 25 Journal of European Public Policy 1422. 288 Ibid. 1430. 289 Ibid. 1434. 290 Ibid. 1438.

264

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Courts “are not weathervanes, always changing direction in the wind,”291 and judicial decision-making is not “merely a Gallup poll dressed up in legal garb.”292 Nevertheless, many of the archival studies described here indicate that courts, particularly apex courts and the individual judges on them, decide cases in ways that dynamically respond to public sentiment. Researchers are rightly reluctant to describe anything other than an association between prevailing public opinion and judicial decision-making trends. This is because demonstrating that public opinion is the cause of changes in judges’ decision-making is challenging – other factors may well be at play.293 Nevertheless, judicial pronouncements and extrajudicial writing complement archival findings, often acknowledging that the public is an audience that judges bear in mind when deciding on sensitive issues. It seems, therefore, that public opinion holds at least some sway over how judges decide cases, particularly at the upper tiers of judicial systems. Inevitably, as researchers undertake more studies, particularly on lower courts, a clearer, and hopefully more global picture on the true impact of public opinion on judicial decision-making will begin to emerge.294 We now turn to the final beyond-court influence – the overlapping issue of how media coverage interacts with judicial decision-making. 7.5 Media coverage and judicial decision-making After the UK Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union,295 a popular UK tabloid newspaper, the Daily Mail, ran a story with the now-infamous headline and sub-headline: Enemies of the people: Fury over “out of touch” judges who have “declared war on democracy” by defying 17.4m Brexit voters and who could trigger a constitutional crisis.296

The headline sparked considerable debate about media coverage of judicial decisions, although it was certainly not a one-off. Commentators in the media often take aim at the judiciary, either as a whole, or at individual judges. To take two other examples from the UK, David Blunkett, then Home Secretary, opined “[I]t’s time for judges to learn their place” in a News of the World column in 2003.297 Opinion columnist Melanie Phillips of the Daily Mail directed criticism to one judge, Brenda Hale, describing her as “the marriage wrecker,” for her views on gay partnership, heterosexual cohabitation and divorce.298

291 Flemming and Wood (n 263) 494. 292 Sheldon (n 261) 341. 293 Epstein and Martin (n 260) 280–281. 294 On the matter of public opinion influencing judges on lower courts, Nelson’s study of Colorado trial judges’ responsiveness to a discrete, jurisdiction-specific issue is a model worth considering for future studies. Nelson found that Colorado judges responded through their decision-making to a clear signal of public opinion on a specific issue: a failed initiative to legalise marijuana in 2006 (just 41% of voters voted in favour of the proposal). He reported that judges responded to the Colorado electorate’s rejection of the legalisation of marijuana by exhibiting a statistically significant change in sentencing behaviour toward harsher sentences after the initiative failed. Michael J Nelson, ‘Responsive Justice? Retention Elections, Prosecutors, and Public Opinion’ (2014) 2 Journal of Law and Courts 117, 137. 295 [2017] UKSC 5. 296 Daily Mail, 4 November 2016. 297 David Blunkett, ‘It’s Time for Judges to Learn Their Place’ News of the World (23 February 2003). 298 Melanie Phillips, ‘The Marriage Wrecker’ Daily Mail (13 November 2003).

265

DECISION-MAKING AND BEYOND-COURT INFLUENCES

For some, criticism of individual judges or courts may be considered a healthy manifestation of a well-functioning democracy, reflecting proper protection for the freedom of expression and the right and proper role of media outlets. For others, however, media criticism in the vein articulated above raises concerns for judiciaries’ independence and their latitude to decide cases impartially, particularly if that criticism is irrational, outrageous or unjustified in some other way. UK Supreme Court judges, for instance, expressed misgivings about the tenor of the “enemies of the people” headline and article. As he stood down as President of the UK Supreme Court, David Neuberger commented, “[S]ome of what was said was undermining the rule of law . . . if without good reason the media or anyone else undermines our judiciary that risks undermining society.”299 Does media coverage influence judicial decision-making, either in terms of judicial outcomes or in the content of judgments? Suffice to say, judges, of course, consume media coverage as much as anyone else does.300 Furthermore, as we have seen earlier, some judges acknowledge they do not ignore the tide of public opinion when deciding cases.301 Given media coverage can act as a conduit for general public opinion, parsing out the influence of the media from that of the public’s opinion on judges’ work can be difficult, although as UK judge Mark Potter observed, judges are “astute not to equate the opinion of the public at large with opinions expressed by newspaper editors or television commentators on particular issues.”302 Researchers have examined the interaction between media coverage and judicial decision-making in different ways. Some researchers investigate whether judicial decision-making trends correlate to media coverage, while others lift the veil on judicial deliberations, reporting how some judges consider press coverage when making decisions. To start with studies that investigate correlations between media coverage and judicial decision-making trends, Lim and her colleagues analysed the influence of newspaper coverage on sentencing decisions in around 1.5 million US state court criminal trials.303 They reported that newspaper coverage was indeed a substantial influence on sentencing decisions, but, crucially, only where judges were elected by voters in non-partisan elections. The researchers, mindful that newspaper coverage was most likely endogenous to sentencing harshness because severe crimes attract more media attention, introduced a measure to combat this which they called congruence – a measure of the intensity and concentration of newspaper coverage of local courts. The more localised the readership of the paper, the more likely the paper was to cover sentencing in that locality. While this study did demonstrate evidence of an apparent influence of media coverage in limited instances, the more significant finding was that media coverage did not appear to affect judges’ decision-making on sentencing where they were not elected, which of course is

299 ‘BBC Radio 4–Today’ (16 February 2017). 300 Mark Potter, Courts and the Making of Public Policy: Do the Media Influence the Judiciary? (The Foundation for Law, Justice and Society 2011) 2. 301 See section 7.4 Judges, their public and decision-making. 302 Potter (n 300) 3. 303 Claire SH Lim, James M Snyder Jr. and David Strömberg, ‘The Judge, the Politician, and the Press: Newspaper Coverage and Criminal Sentencing across Electoral Systems’ (2015) 7 American Economic Journal: Applied Economics 103.

266

DECISION-MAKING AND BEYOND-COURT INFLUENCES

more common across the globe.304 These judges appeared unperturbed by media coverage and did not adjust their sentencing behaviour. On the Ecuadorian Constitutional Court, Castro-Montero and van Dijck found a correlation between media coverage and results in constitutional law cases. Cases reported by newspapers were “approximately six times more likely to be declared unconstitutional than cases that were not reported.”305 Again, however, the correlation does not necessarily imply that the media coverage in fact influenced judicial decision-making. The effect may well have been down to editorial decisions to run stories on publicly salient cases that highlighted particular injustices, and these cases were more likely to result in declarations of unconstitutionality in any event. Nevertheless, the strength of the correlation between media attention and successful case outcomes suggests the possibility – but nothing more – that judges may have sometimes factored in media attention when deciding cases. Epstein and Knight’s empirical study of the US Supreme Court, The Choices Justices Make, also considered the effect of media coverage on judicial decision-making by examining the personal files of Justices Thurgood Marshall, William Brennan and Lewis Powell. The researchers came across many clippings of newspaper stories and editorials about specific upcoming cases or cases already decided by the Court and noticed that the judges occasionally circulated clippings to their colleagues. Epstein and Knight suggested that “justices pay attention to how the press reports on issues on their docket and on their activities.”306 Researchers have also observed, although not systematically investigated, how judges sometimes anticipate media coverage in their judgments. Aware of possible confusion, misrepresentation or misunderstanding by media commentary in cases likely to arouse the media’s interest, judges may preface their judgments with clear statements of what the case is about, on their reasoning, and on the extent of their jurisdiction. In a report about the media’s influence on the UK judiciary, Potter identified one such instance of a judge prefacing a decision in this way.307 When ruling in a high-profile case about the alleged liability of healthcare services after the tragic death of a one-year-old boy, UK High Court judge David Foskett prefaced his judgment with preliminary observations on the nature of the case and the judicial process.308 He emphasised that he could only deal with the issues and arguments on the basis of the evidence put before him.309 He admitted, however, to having a “lurking sense of unease” in making the judgment.310 The judge appeared to pre-emptively engage with the media and, perhaps, the public, to provide context and clarity for the judgment to follow while acknowledging the difficulties that the case presented. Recently, Chief Justice of the Irish Supreme Court Frank Clarke 304 See further on the use of judicial elections, section 7.2.2.1 How judges are selected and the consequences for judicial decision-making. 305 José Luis Castro-Montero and Gijs van Dijck, ‘Judicial Politics in Unconsolidated Democracies: An Empirical Analysis of the Ecuadorian Constitutional Court (2008–2016)’ (2017) 38 Justice System Journal 380, 392. 306 Epstein and Knight (n 1) 145–146. 307 Potter (n 300) 4. 308 “Given the intense media and public interest that there is in Peter’s case, particularly in connection with the Claimant’s position in relation to it, there are a few matters I should make plain at the outset.” Sharon Shoesmith v OFSTED and others [2010] EWHC 852, para. 46. 309 [2010] EWHC 852, para. 49. 310 [2010] EWHC 852, para. 540.

267

DECISION-MAKING AND BEYOND-COURT INFLUENCES

referred to misinformed and inaccurate public commentary on an important High Court judgment that detailed the standard of care in medical negligence claims.311 On other occasions, judges have explicitly disavowed suggestions that they are influenced by the media in their judgments. Just before the House of Lords was due to give a sentencing ruling in the high-profile case of Robert Thompson and Jon Venables for the murder of Jamie Bulger, The Sun tabloid newspaper ran a campaign agitating for a life sentence for the perpetrators. The UK Home Office received over 20,000 “coupons” in support of a life sentence printed in the newspaper and sent in by readers. In his decision for the House of Lords, Lord Steyn addressed the issue of media influence directly: “[P]lainly a sentencing judge must ignore a newspaper campaign designed to encourage him to increase a particular sentence. It would be an abdication of the rule of law for a judge to take into account such matters.”312 Again, this is an instance, albeit in extraordinary circumstances, of a judge acknowledging media coverage but firmly distancing himself from its influence on his decision. Aside from judicial pronouncements acknowledging the media yet dispelling its influence, are judges capable of ignoring prejudicial material or pressure from the media? Some jurisdictions have moved to trial by judge alone, rather than by a jury, in cases that are the subject of potentially prejudicial publicity.313 The assumption here appears to be that judges can fend off the influence of prejudicial publicity better than jurors. Experimental mock jury studies have generally shown that mock jurors’ decision-making is affected by prejudicial pre-trial publicity.314 However, there are no experimental studies on judges directly testing for the influence of prejudicial media coverage, although there are studies on the related and more general question of judges’ susceptibility to the influence of inadmissible information.315 Results from these studies, while not entirely unequivocal, generally show that judges can indeed be swayed by inadmissible evidence.316 It is reasonable, therefore, to at least hypothesise from these studies that media coverage

311 Morrissey v Health Service Executive and others [2020] IESC 6, 7 and 37. 312 R v Secretary of State for the Home Department, ex p Venables [1997] 3 WLR 23, 74 313 Rebecca McEwen, John Eldridge and David Caruso, ‘Differential or Deferential to Media? The Effect of Prejudicial Publicity on Judge or Jury’ (2018) 22 The International Journal of Evidence & Proof 124. 314 Much has been written on the related issue of whether, and if so, how media coverage and social media influences jurors in their decision-making. See, for example, Nancy Mehrkens Steblay and others, ‘The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review’ (1999) 23 Law and Human Behavior 219; Edith Greene, ‘Media Effects on Jurors’ (1990) 14 Law and Human Behavior 439; Simon A Cole and Rachel Dioso-Villa, ‘CSI and Its Effects: Media, Juries, and the Burden of Proof’ (2006) 41 New England Law Review 435; Christine L Ruva and Christina C Guenther, ‘From the Shadows into the Light: How Pretrial Publicity and Deliberation Affect Mock Jurors’ Decisions, Impressions, and Memory’ (2015) 39 Law and Human Behavior 294; Thaddeus Hoffmeister and Ann Charles Watts, ‘Social Media, the Internet, and Trial by Jury’ (2018) 14 Annual Review of Law and Social Science 259; Kerstin Braun, ‘Yesterday Is History, Tomorrow Is a Mystery-the Fate of the Australian Jury System in the Age of Social Media Dependency’ (2017) 40 University of New South Wales Law Journal 1634. 315 One study, described above in the context of the anchoring effect on judicial decision-making, came fairly close. A study by Englich, Mussweiler and Strack used a journalist’s question to judges as to what an appropriate sentence should be in a particular case as a variable to test for the anchoring effect. Birte Englich, Thomas Mussweiler and Fritz Strack, ‘Playing Dice with Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making’ (2006) 32 Personality and Social Psychology Bulletin 188, 191. See above, section 2.2.1 Anchoring effect. 316 For a recent literature review, see McEwen, Eldridge and Caruso (n 313) 136–140. See also Jennifer K Robbennolt, ‘Evaluating Juries by Comparison to Judges: A Benchmark for Judging Jury Decisionmaking’ (2004) 32 Florida State University Law Review 469.

268

DECISION-MAKING AND BEYOND-COURT INFLUENCES

may sometimes influence judicial decision-making, particularly when making findings of fact.317 Further research specifically on the point of media influence is merited. 7.5.1 Lights. Camera. Law!318 The presence of media in the courtroom One final factor of the media’s influence over the judicial process is the use of television cameras in the courtroom.319 Reflecting on the OJ Simpson murder trial, a famous instance of televised court proceedings, film director Sidney Lumet observed, “I don’t think cameras . . . left anyone’s consciousness for one second. This includes Judge Ito.”320 Lumet was not the only one to have reservations about televising the OJ Simpson trial, which precipitated a slew of criticism and debate about live coverage of court proceedings. Judges expressed concern that cameras trivialised proceedings and turned them into a media circus or a spectacle.321 Some judges have argued that cameras in the courtroom affect how judges perform and behave.322 Justice Anthony Kennedy of the US Supreme Court suggested that cameras on that Court could encourage justices to engage in sound-bites rather than legal arguments.323 Whatever the case, televised and live-streamed court proceedings have become increasingly common in recent times. For example, live streams are now available of proceedings at the UK Supreme Court, the Supreme Court of Canada and the Brazilian Supreme Court (on the latter, intriguingly, even the final deliberation and voting process is televised live from the judges’ conference room).324 Audiovisual recordings of Australian High Court proceedings heard in Canberra are also available online after the hearing. All 50 US states allow cameras to access courts in one form or another.325 While individuals in courtrooms may be conscious that the cameras are rolling, does this affect the judicial process, and maybe even have a bearing on case outcomes? Some empirical studies have explored if, and how, cameras in the courtroom affect judges’ behaviour and their decision-making. Much of this research, however, is confined to surveys of judges’ feedback on pilot programmes allowing cameras into the courtroom. 317 McEwen, Eldridge and Caruso (n 313) 140. 318 The pithy title for this section is not one the author can claim credit for: ‘Lights. Camera. Law’ Legal Times (1 May 1995) 54. 319 On cameras in the courtroom, see generally, Nancy S Marder, ‘The Conundrum of Cameras in the Courtroom’ (2012) 44 Arizona State Law Journal 1489. 320 ‘Lights. Camera. Law’ (n 318). 321 Marder (n 319) 1515–1516. Ninety-one percent of New York state judges believed the coverage of the OJ Simpson trial damaged the public’s perception of the US judicial system: Deborah Lorber, ‘Cameras in Court After OJ.: The Debate Continues’ New York Law Journal (16 November 1995). Although, for alternative perspectives on cameras and the OJ Simpson trial, see Alex Kozinski and Robert Johnson, ‘Of Cameras and Courtrooms’ (2009) 20 Fordham Intellectual Property, Media & Entertainment Law Journal 1107, 1116–1119. Kozinski and Johnson also refer to certain judges’ “antics” when the camera is rolling: Ibid. 1110–1111. 322 For example, a US Disctrict Court judge, Sandra Beckwith, suggested cameras “affect peoples’ [including judges’] performance and manner of behaving.” Justice Sandra Beckwith, US District Court judge for the Southern District of Ohio, quoted in Dan Horn, ‘U.S. Judges Camera-Shy in Courtroom’ Cincinnati Enquirer (26 January 2006). 323 As quoted in Tony Mauro, ‘Roll the Cameras (or Soutersaurus Rex)’ Legal Times (8 April 1996) 9. 324 The judges read out their votes in turn in reverse seniority order, complete with judges interrupting each other while they are voting, asking questions and raising issues. Felipe Lopes, ‘Television and Judicial Behavior: Lessons from the Brazilian Supreme Court’ (2018) 9 Economic Analysis of Law Review 41, 49. 325 Kozinski and Johnson (n 321) 1114.

269

DECISION-MAKING AND BEYOND-COURT INFLUENCES

Judges who participate in these programmes and follow-up surveys are often self-selecting, and survey results detail perceptions rather than measurable effects. One study undertaken by the US Federal Judicial Centerin the 1990s evaluated a pilot programme introducing television cameras into civil proceedings in six US district courts and two courts of appeals.326 Judges had discretion to permit or deny television cameras into the courtroom. During the study, judges allowed cameras into their courtrooms in 72% of cases. Judges were surveyed before and after their participation in the programme. The study found that they were generally more positively disposed to televised proceedings after the programme than they were beforehand. A more recent study evaluated a pilot project on court-operated video cameras to record civil proceedings in 14 US federal district courts.327 Again, judges who participated in the pilot project were positively disposed to cameras in the courtroom, perhaps unsurprising given they had self-selected into the programme.328 They reported that the presence of video recording affected participants to a relatively low extent.329 Tellingly, however, a small but not entirely insignificant percentage of judges (16%) said that cameras in the courtroom caused “judges to avoid unpopular decisions or positions” to differing extents.330 Thirty-five percent of judges suggested that cameras caused “judges to be more theatrical in conducting the proceeding.”331 Interestingly, lawyers who also participated in the evaluation of the pilot programme, answering the same two questions, thought that judges were less affected by cameras than the judges reported.332 Another evaluation study of a separate pilot programme introducing cameras to New York state courts in the late 1980s surveyed judges’ beliefs on whether their introduction had had any effect on decision-making.333 Again, a significant minority of judges reported that courtroom cameras may have had an effect on judicial decision-making: more than one-third of the judges surveyed said that the introduction of television cameras caused them to issue rulings that they would not otherwise have issued, while just over half said that it had not had such an effect.334 Away from the US, a study of judges on the Brazilian Supreme Court, where live television coverage has been the norm since 2002, revealed further interesting divergences in judges’ opinions and attitudes towards cameras in the courtroom. Some judges suggested that judges on the Court changed their behaviour when the cameras rolled. Fifteen judges from that court, active and retired, were interviewed for the study. Five judges were negatively disposed to cameras, suggesting they caused strong changes in

326 Molly Treadway Johnson and Carol Krafka, ‘Electronic Media Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals’ (Federal Judicial Center 1994). 327 Molly Johnson, Carol Krafka and Donna Stienstra, ‘Video Recording Courtroom Proceedings in United States District Courts: Report on a Pilot Project’ (Federal Judicial Center 2016). 328 Ibid. 36. 329 Ibid. 25. 330 Ten percent suggested to a small extent, 4% to a moderate extent and 2% said to a large extent. Ibid. 27. 331 Ibid. These percentages were higher when judges who expressed no opinions on such matters were removed from the calculations. 332 Ibid. 39. 333 New York State Committee to Review Audio-Visual Coverage of Court Proceedings, An Open Courtroom: Cameras in New York Courts (Fordham University Press 1997). 334 Ibid. 79.

270

DECISION-MAKING AND BEYOND-COURT INFLUENCES

behaviour, and that they precipitated grandstanding or showing off.335 Others were more positive, suggesting that live coverage increased transparency and public awareness of the Court’s work. Significantly, one judge argued that cameras hindered the deliberation process because it became more unlikely that judges would adjust their positions and compromise with their colleagues to reach a consensus.336 Importantly, attitudinal surveys present merely testimonial evidence of judges’ direct experience.337 Nevertheless, across the board, a significant minority of judges strongly suggest that live televised coverage in the courtroom is an added dynamic during judicial hearings that may affect decision-making processes and may even induce entirely different case outcomes some of the time. Aside from attitudinal survey studies, is there evidence from archival studies that cameras can affect the judicial process and decision-making? Lopes compared constitutional review cases conducted before and after the introduction of live television coverage on the Brazilian Supreme Court.338 He hypothesised that judges would become more politician-like after the introduction of cameras.339 Specifically, he suggested that judges would seek the limelight by writing longer decisions and engaging in more discussion with their colleagues in a bid to maximise their exposure to the cameras. His findings supported these hypotheses, but only on cases that challenged federal law, as distinct from cases on individual state law – federal law cases being of broader interest to the public than individual state law cases. In federal law cases, decision lengths more than doubled in size and the amount of discussion jumped by over 1000% after cameras were introduced.340 Judges seemed to prioritise cases they believed would attract larger audiences.341 Lopes also hypothesised that live television coverage might affect dissent rates: with cameras rolling, judges would dissent more as another way of showing off and of signalling independence of thought.342 Ultimately, although there were generally higher dissent rates after the introduction of television cameras, further analysis and checks 335 Lopes (n 324) 50. Reporting a summary of the judges’ responses from an interview study, Fernando de Castro Fontainha, Rafael Mafei Rabelo Queiroz and Leonardo Seiichi Sasada Sato, História Oral Do Supremo [1988–2013]-Rafael Mayer (Escola de Direito do Rio de Janeiro da Fundação Getulio Vargas 2015). 336 Fernando de Castro Fontainha and Rafael Mafei Rabelo Queiroz, História Oral Do Supremo [1988–2013]-Francisco Rezek (Escola de Direito do Rio de Janeiro da Fundação Getulio Vargas 2015) 123. Quoted in Lopes (n 324) 51. 337 On the topic of methodological issues on evaluating the impact of cameras in the courtroom, specifically survey analysis, see Dan Slater and Valerie P Hans, ‘Methodological Issues in the Evaluation of “Experiments” with Cameras in the Courts’ (1982) 30 Communication Quarterly 376. Also, the New York Civil Liberties Union argues that there is a dearth of scientifically sound empirical research regarding the effects and consequences of permitting the audiovisual recording and broadcasting of court proceedings . . . it seems ill advised to pass this legislation without a date of termination and without a mandated study by independent experts regarding the impact of cameras upon judicial proceedings.

New York Civil Liberties Union, ‘Legislative Memo: Cameras in the Courtroom’ New York Civil Liberties Union (2 January 2008) accessed 17 July 2020

338 Lopes (n 324). 339 Lopes was inspired by research assessing changes in US politicians’ behaviour after the introduction of CSPAN, a public service network televising federal government proceedings in the US. Ibid. 42. 340 Ibid. 57. 341 Ibid. 60. 342 Ibid. 54.

271

DECISION-MAKING AND BEYOND-COURT INFLUENCES

for statistical robustness led Lopes to conclude that it was not possible to directly link the higher dissent rate to the introduction of television cameras. Other factors may have been at play. Overall, research on the measurable effects of live televised coverage on judicial decision-making is at an embryonic stage. However, a minority of judges assert that rolling cameras can indeed shift the dynamic in the courtroom. This alone should precipitate further analysis, through both archival and experimental modes. Controlled experiments could isolate how cameras in the courtroom, and indeed other types of media coverage, affect judicial decision-making and the judicial process more broadly. This chapter, alongside chapter 6, reflects on the panoply of external institutional influences within and beyond courtroom that can affect the work of judges. The final chapter looks to the future of judging, and how research can and should play an important role in the greater project of improving how justice is done.

272

CHAPTER 8

The future of judging

In Hangzhou, the capital of Zhejiang Province in East China, a litigant with a product liability claim pleads their case before a judge wearing a black robe sitting under China’s national emblem. This judge, however, is an on-screen avatar composed of pixels rather than flesh and blood. The Hangzhou Internet Court, and others in Beijing and Guangzhou, have between them accepted 118,764 cases, concluding 88,401 since their introduction in 2017 and December 2019.1 Importantly, human judges are still the decision-makers in these virtual Chinese courts. That said, recent technological advances have not only changed the court environment like in these examples from China but they have also begun to infiltrate the judicial decision-making process itself. Most radically, perhaps, judges increasingly rely on artificial intelligence (AI) technologies to assist them in their decision-making in many jurisdictions.2 In a handful of courts, AI judges have supplanted human judges altogether. This final chapter looks to the future and considers how technology will shape how judges will judge in the years to come. As judicial systems gradually embrace technologies such as data analytics and online dispute resolution – not to mention the prospect that AI judges may supplant some human judges altogether – what will this mean for parties looking to resolve legal disputes? What are the advantages of technological advances in the courtroom and, equally, what are the dangers and pitfalls? Can technology help to mitigate or even eliminate some of the problems described in other chapters of this book? Or will it, in some instances, only serve to magnify the errors in judicial decision-making that empirical researchers have already identified? The emphasis in this chapter is not on empirical research on what has gone before, but rather on what the future might look like and what the consequences may be for judicial decision-making. Finally, this chapter will offer some reflections on where empirical research fits in this ever-developing story. Judicial scholarship may come under increasing threat in years to come. In one jurisdiction, France, scholarship on individual judges has already effectively been banned altogether.3 Yet now more than ever, empirical research on judicial decision-making must play a central role in the future of judging. Moreover, ties of collaboration and communication between academic researchers and judges must strengthen in order to build towards better judicial systems. 1 The Supreme People’s Court of the People’s Republic of China, ‘Chinese Courts, Internet Judiciary in Data’ (2019); Anonymous, ‘In Brave New World of China’s Digital Courts, Judges Are AI and Verdicts Come via Chat App’ Japan Times (7 December 2019). 2 The Supreme People’s Court of the People’s Republic of China (n 1). 3 See section 8.3 Conclusion.

273

THE FUTURE OF JUDGING

8.1 The rise of courtroom technologies Law’s technological revolution is undoubtedly upon us.4 Litigation, the legal professions, and the business of judging have all been radically transformed by increasingly sophisticated technologies in just a few decades. A tangible mark of this is the near-ubiquitous use of online legal databases by lawyers, judges and law students alike, to access materials and commentary on the law. Not only do these groups have instant access to up-to-date and accurate information but they now also benefit from highly sophisticated software that can analyse statistical trends in judges’ decisions, sometimes to the point of being able to predict likely outcomes in future cases. Aside from the availability and analysis of legal information, technological advances have dramatically affected how justice is administered in many jurisdictions. Recently, the COVID19 pandemic has served as a remarkable catalyst for change in how courts operate. Courts have necessarily had to embrace new ways to make the litigation process more streamlined, accessible and efficient through online and in-court technologies.5 In many jurisdictions, however, these efforts have been outpaced by a considerable rise in the demand for litigation.6 Online dispute resolution services that facilitate the resolution of disputes by the parties themselves are becoming more prevalent. Where parties cannot settle disputes themselves, in some jurisdictions, online courts are available. Judges host proceedings remotely and sometimes asynchronously online, without the need for a hearing in a physical courtroom.7 Some examples established before the COVID-19 pandemic include a private, but publicly subsidised platform for creating custom divorce agreements in the Netherlands,8 an online dispute resolution initiative to resolve debt cases in New Mexico,9 an online dispute system for resolving small claims in Utah10 and an online dispute resolution platform called the Civil Resolution Tribunal for resolving small claims disputes, motor accident disputes and certain private property disputes in British Columbia, Canada.11 An English and Welsh 4 See generally, Bruce H Kobayashi and Larry E Ribstein, ‘Law’s Information Revolution’ (2011) 53 Arizona Law Review 1169; Richard Susskind, Online Courts and the Future of Justice (Oxford University Press 2019). 5 Susskind advocated that, in light of the COVID-19 pandemic in 2020, moving towards online courts solutions is more urgent than ever: “It’s time to come together, globally, to accelerate the introduction of virtual and online courts. We have no choice. Physical courts are closing. There is little merit in lamenting the lack of past investment nor in predicting that the technology will fail. Let’s make it happen.” Richard Susskind Twitter.com (20 March 2020) accessed 17 July 2020. 6 Susskind notes, for instance, the staggering backlogs of 100 million cases in Brazil and 30 million cases in India as of 2019, Susskind (n 4) 27. 7 See generally, Orna Rabinovich-Einy and Ethan Katsh, ‘The New Courts’ (2017) 67 American University Law Review 165; Joint Technology Committee of the National Center for State Courts, ‘JTC Resource Bulletin– Case Studies in ODR for Courts’ (2020). See also, on the transition of courts to online environments in the context of the COVID-19 pandemic, an online resource established by Richard Susskind, Remote Courts Worldwide accessed 17 July 2020. Although online courts promise more efficient and more accessible justice, they are controversial. Susskind (n 4) pt III. Of course, in tandem, private dispute resolution service providers have also developed online dispute resolution technologies to facilitate the resolution of disputes remotely and as an alternative to going to court. 8 Uitelkaar.nl. For further information, see Joint Technology Committee of the National Center for State Courts (n 7) 6. 9 Ibid. 8–9. 10 Ibid. 2–3. 11 See generally the website of the British Colombia Civil Resolution Tribunal accessed 17 July 2020. For analysis, see Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice/Recueil annuel de Windsor d’accès à la justice 112.

274

THE FUTURE OF JUDGING

equivalent, provisionally named the Online Solutions Court, was scheduled to launch in 2020 although this initiative has been outpaced by other tiers in the UK judiciary temporarily moving to online platforms as the COVID-19 pandemic emerged in the same year.12 A few dozen US state courts in Michigan, Ohio and Arkansas also employed online platforms before the emergence of COVID-19, using Matterhorn, an online service that allows parties to communicate online with judges, mainly in cases involving outstanding warrants and traffic violations but also in small claims and family disputes.13 Of course, swathes of courts around the globe rapidly moved to online platforms as a temporary measure in 2020 in response to the COVID-19 pandemic, and it largely remains to be seen whether, and to what extent they will revert in whole or in part to physical courtrooms. In what appears to be the first empirical study comparing judicial decision-making of judges working in courtrooms against judges using online platforms, Rabinovich-Einy and Mentovich compared the outcomes of cases heard and decided in physical courtrooms against those who employed Matterhorn.14 They found that black and young litigants fared better in proceedings channelled through Matterhorn than in in-court proceedings.15 These online dispute resolution platforms and online courts have developed at an extraordinary pace, particularly throughout 2020, and are likely to become increasingly immersive experiences as technology develops, perhaps mimicking real-life courtrooms. Legal technology scholar, Richard Susskind describes emerging technologies in this context, such as virtual reality courtrooms (simulated court environments), telepresence (essentially, immersive video conferencing) and the use of augmented reality (whereby humans’ perception is supplemented and annotated by machine-generated information).16 Ultimately, however, these online systems are simply platforms for conducting proceedings and assisting the resolution of legal disputes. Decision-making remains either in the hands of the parties themselves through settlement or in the hands of human judges issuing judgments. This shifting technological landscape has profound consequences for the delivery of justice in many ways – access to justice, the future of lawyering and the provision of alternative, non-judicial modes for resolving disputes, for instance. However, the focus here is on how technological innovation affects judicial decision-making. Technologies, particularly AI systems, have shaped the business of judging in two main ways. First, there are assisting technologies, those that aid and support judges as they go about deciding cases. AI systems generate information and statistics based on past case data, offering suggestions for the judge as they rule in cases. More controversially, judges in US courtrooms habitually rely on AI systems to predict recidivism of criminal suspects seeking bail. Judges have also begun to rely on AI systems to resolve juvenile court cases and in sentencing decisions. Second, far less commonly, there are supplanting technologies: AI systems that play the role of judge, deciding cases or parts of them in their own right, removing the need for human judges altogether – described here as ‘AI judges’. The development of AI judges 12 Lord Justice Briggs, ‘Civil Courts Structure Review: Final Report’ (2016) London: Judiciary of England and Wales 36–64. 13 Rabinovich-Einy and Katsh (n 7) 197. 14 Avital Mentovich and Orna Rabinovich-Einy, ‘Is Bias in Court Outcomes Inevitable? Empirical Insights from Online Courts,’ Paper presented at the 2019 International ODR Forum, Williamsburg, Virginia, on 29 October 2019. 15 Roni Dori, ’75% of Lawsuits Will Be Handled Online Within a Decade, Says Law Professor’ (2019) CTECH accessed 17 July 2020. 16 Susskind (n 4) chs 5 and 25.

275

THE FUTURE OF JUDGING

to supplant human judges is at an early stage, but the rise of this technology should not be ignored. Before analysing the use of AI technologies in courtrooms, and how it has infiltrated the judicial decision-making process, it is worth briefly introducing some key concepts of AI and how it works. 8.2  Artificial    intelligence Artificial intelligence (AI) is a notoriously amorphous concept.17 In its simplest terms, AI refers to computers doing the sorts of things that minds can do.18 AI machines are aimed at approximating some aspect of human cognition19 – to behave in ways that would be called intelligent if a human were to behave in the same way.20 Many AI researchers argue that the goal is to develop intelligence that improves upon and betters the capacity of the human brain.21 Technologists speak of different waves of AI: first-wave and second-wave AI systems. First-wave AI refers to rule-based systems that are preprogrammed by humans with complex decision trees or flow charts to undertake specific tasks. First-wave AI systems are dictated by human input towards a finite number of appropriate outcomes. Secondwave AI refers to systems that learn from vast swathes of data, and develop and improve upon their decision-making capabilities accordingly.22 While first-wave AI systems rely entirely on a finite set of rules that humans programme them with, second-wave AI systems have the capacity to use and analyse data in their own right. That said, they do not reason or process information in the same way humans do. Instead, they rely on machine learning. There are three main types of machine learning: supervised, unsupervised and reinforcement learning.23 Supervised machine learning occurs where an AI system is trained up through human input.24 First, the programmer trains the AI system by providing it with a set of labelled data. Take, for instance, an AI system tasked with identifying whether a picture is of a dog or a cat. The human programmer gives the system a set of correct examples: ‘this is a picture of a dog,’ ‘this is a picture of a cat,’ and so forth. From there, the system uses this information to develop algorithms that can accurately predict by itself whether subsequent pictures are of a dog or a cat. 17 Ashley Deeks, ‘The Judicial Demand for Explainable Artificial Intelligence’ (2019) 119 Columbia Law Review 1829, 1832. Some prefer the term “algorithmic intelligence.” See David Harel, Computers Ltd: What They Really Can’t Do (Oxford University Press 2004) 194; Stephen Mason, ‘Artificial Intelligence: Oh Really? And Why Judges and Lawyers Are Central to the Way We Live Now–but They Don’t Know It’ (2017) 23 Computer and Telecommunications Law Review 213, 213. 18 Margaret A Boden, Artificial Intelligence: A Very Short Introduction (Oxford University Press 2018) 7. 19 Ryan Calo, ‘Artificial Intelligence Policy: A Primer and Roadmap’ (2017) 51 UC Davis Law Review 399, 404. 20 John McCarthy and others, ‘A Proposal for the Dartmouth Summer Research Project on Artificial Intelligence’ in Jerry Keplar (ed), Artificial Intelligence: What Everyone Needs to Know (Oxford University Press 2016). 21 Famous examples include IBM’s Deep Blue chess-playing computer that beat chess Grandmaster Garry Kasparov in 1996 and AlphaGo, an AI system that beat professionals at the board game Go in 2015. 22 Susskind (n 4) 264–272. 23 Boden (n 18) 49–51; Elisa Alfaia Sampaio, João J Seixas and Paulo Jorge Gomes, ‘Artificial Intelligence and the Judicial Ruling,’ Paper presented at the THEMIS competition hosted by the European Judicial Training Network, Sofia, Bulgaria, on 2–4 July 2019 8. 24 See generally, Stuart Russell and Peter Norvig, Artificial Intelligence: A Modern Approach (3rd edn., Pearson 2016) 695.

276

THE FUTURE OF JUDGING

Unsupervised learning occurs where an AI system studies unlabelled data; for instance, it is given pictures of dogs and cats, but it is not told which is which. Rather, the AI system detects patterns within the data provided to it and makes sense of it of its own accord. Using algorithms, it learns by making associations, telling itself “if the patterns of pixels resemble x, then normally it seems that this is a picture of a cat.” This is analogous to heuristical reasoning by humans.25 Such systems detect increasingly nuanced patterns in the data, incrementally developing their capabilities over time. Finally, reinforcement learning is based on reward and punishment. The system gets inbuilt feedback messages describing whether what it did was good or bad.26 The system constructs its own knowledge base directly from raw data. In effect, this is learning by trial and error, analogous to a child learning to walk. To briefly introduce one of the main ways that second-wave AI systems work, they often rely on what are called neural networks. Inspired by the structure of the human brain, neural networks depend on layers of neurons – essentially mathematical functions. An input layer of neurons initially absorbs data, then passes this information on to further hidden layers of neurons. This juncture is the engine room of the AI system, where the neural network recognises patterns and performs a series of computations. Finally, an output layer of neurons predicts what a particular outcome should be. Many argue that what happens between the input and output stages lacks transparency because the computations that the AI system performs are so complex that many of us cannot understand them, or that we do not have the language to describe them.27 Indeed, the perceived lack of transparency is a disadvantage regularly charged against second-wave AI systems. The difficulty many have in understanding how AI systems arrive at their conclusions is often described as the ‘black box’ problem. Given that transparency is a virtue that justice systems espouse, the lack of transparency in how AI systems reason poses problems for their application in making judicial decisions. The next section describes emerging AI-based assisting technologies and supplanting technologies that judicial systems have introduced in recent years. 8.2.1 AI in the courtroom The question of whether computers could or should replace human judges has been asked for many decades.28 However, it is only in the last ten years or so that this prospect has become a genuine possibility, and sometimes a reality. Before we examine these developments, it is worth noting that it is not just judges that increasingly rely on AI systems. Lawyers too employ AI systems that analyse data on past cases to analyse and predict likely outcomes in upcoming cases.29 This technology has developed hugely in recent 25 See section 2.1 Heuristics, cognitive biases and judicial decision-making. 26 Boden (n 18) 51. 27 Andrew D Selbst and Solon Barocas, ‘The Intuitive Appeal of Explainable Machines’ (2018) 87 Fordham Law Review 1085, 1094. 28 See, for example, from the 1970s, Anthony D’Amato, ‘Can/Should Computers Replace Judges’ (1977) 11 Georgia Law Review 1277. More generally on early explorations of artificial intelligence and legal reasoning, see Bruce G Buchanan and Thomas E Headrick, ‘Some Speculation about Artificial Intelligence and Legal Reasoning’ (1970) 23 Stanford Law Review 40. 29 Daniel Martin Katz, ‘Quantitative Legal Prediction-or-How I Learned to Stop Worrying and Start Preparing for the Data-Driven Future of the Legal Services Industry’ (2012) 62 Emory Law Journal 909. This technology

277

THE FUTURE OF JUDGING

years. Its rise has been prolific, with leading litigation lawyers suggesting that it may even be considered malpractice not to use this technology in the not-too-distant future.30 To return to the judicial function, AI systems are increasingly common in courtrooms, and its reach is truly global. Thus far, most systems are designed to assist, rather than replace human judges, serving different functions in different contexts. For instance, some AI systems collate and present information about parties and some calculate and suggest sentences for convicted criminals based on the information about a case. Other systems act in a supervisory role, flagging to human judges when their proposed judgments are unusual or out of line with trends from past case data. To take some examples, in February 2020 a Malaysian court used an AI system for the first time which recommended sentencing decisions in two drug possession cases by analysing trends in judgments from similar cases decided between 2014 and 2019.31 Judges retained discretion to use the AI system’s recommendation or not. The Malaysian judiciary now uses the system to recommend sentencing decisions for drug possession and rape cases, and it is envisaged that it will soon be rolled out for awarding damages in road traffic accident personal injuries cases. In 2017, Ohio judges started to employ a bespoke AI system to collate information for resolving juvenile court cases.32 The system provides a summary of a child’s situation, information about their educational situation, their living arrangements and their medical and drug use histories. It is envisaged that over time, as this AI system learns about more cases and case outcomes, it will be able to suggest decisions in later cases. AI systems designed to assist judges have been integrated into many Chinese courts in the last few years.33 For example, in a bid to improve the consistency of decision-making, judges are now assisted by AI systems that give judges an “abnormal judgment warning” if their decisions go against the grain of other similar decisions in the database.34 In Mexico, the ‘Expertius’ system advises judges and clerks on whether a plaintiff is eligible or not for a pension.35

had been predicted as far back as 1963. See Reed C Lawlor, ‘What Computers Can Do: Analysis and Prediction of Judicial Decisions’ (1963) 49 American Bar Association Journal 337. Kobayashi and Ribstein (n 4). 30 Neil Sahota, ‘Will A.I. Put Lawyers out of Business?’ Forbes (9 February 2019) accessed 17 July 2020. See also ‘Herbert Smith Rolls Out UK Litigation Prediction System Solomonic’ Artificial Lawyer (18 February 2019) accessed 17 July 2020. 31 Olivia Miwil, ‘Malaysian Judiciary Makes History, Uses AI in Sentencing’ New Straits Times (19 February 2020); Bernama, ‘Sabah, Sarawak to Use AI Tools in Judicial Decision-Making Process’ New Straits Times (17 January 2020). 32 Chris Stewart, ‘Hey Watson: Local Judge First to Use IBM’s Artificial Intelligence on Juvenile Cases’ Dayton Daily News (3 August 2017) accessed 17 July 2020. 33 Peng Shen, ‘Adoption of AI in Chinese Courts Paves the Way for Greater Efficiencies and Judicial Consistency’ Baker McKenzie (28 February 2018) accessed 17 July 2020. 34 ‘Exploring the “Case-like Judgment” Mechanism’ People’s Court (26 January 2018) accessed 17 July 2020; Meng Yu and Guodong Du, ‘Why Are Chinese Courts Turning to AI?’ The Diplomat (19 January 2019) accessed 17 July 2020. 35 Davide Carneiro and others, ‘Online Dispute Resolution: An Artificial Intelligence Perspective’ (2014) 41 Artificial Intelligence Review 211; Enrique Cáceres, ‘EXPERTIUS: A Mexican Judicial Decision-Support System in the Field of Family Law’ in Enrico Francesconi, Giovanni Sartor, Daniela Tiscornia (eds), Legal Knowledge and Information Systems (IOS Press Ebooks 2008)78.

278

THE FUTURE OF JUDGING

Academic researchers have also played their own part in this burgeoning field. Researchers at the intersection of law and computer science have designed AI systems that can predict actual case outcomes on specific courts to a reasonably high degree of accuracy by analysing the text of extracts of judgments without knowledge of the result.36 In 2016, Aletras and his colleagues developed an AI system that was able to predict outcomes at the European Court of Human Rights by analysing the sections of judgments that described the facts of the case and the various legal arguments made by the parties.37 The parts of the judgments that described the Court’s reasoning were excluded.38 Through machine learning and natural language processing of these extracts, the AI system predicted the correct outcome an average of 79% of the time, with the formal facts of the cases being the most predictive factor of decisions.39 There were some limitations to this study, not least that the content analysed by the AI system was created by the judges themselves who may have sought to emphasise particular facts or legal arguments over others in support of their ultimate decision. Moreover, while 79% is an impressive score, that leaves the AI system getting decisions ‘wrong’, insofar as they are at odds with the human judge, 21% of the time.40 In a similar project, Katz and his colleagues developed predictive algorithms to forecast judicial decision-making on the US Supreme Court.41 Rather than analyse the language of decisions, they isolated and labelled different characteristics of cases such as the identity of the parties, the issues at stake, the timing of the decision, what court the case originated from and whether other lower courts were in agreement or disagreement on the issue at stake. Based on different combinations of these characteristics, the AI system predicted the actual decisions of individual judges on the Supreme Court with 71.9% accuracy and the Court’s overall ruling in cases with 70.2% accuracy.42 AI systems designed to predict case outcomes will undoubtedly become more sophisticated over time. For the time being, however, these two studies suggest that predicting how human judges will decide cases with anything near approaching certainty is still some way off. Aside from AI systems designed to assist judges or to predict how human judges may decide cases, in recent years, some AI systems have started to play the actual role of judge. The era of AI judges is already upon us. In Estonia, the Ministry of Justice commissioned 36 For a brief overview of the history of developments in this regard, see Susskind (n 4) 281–290. 37 Nikolaos Aletras and others, ‘Predicting Judicial Decisions of the European Court of Human Rights: A Natural Language Processing Perspective’ (2016) 2 Peer J Computer Science e93. 38 In a subsequent article that discusses and critiques aspects of this study, Scherer cast doubt on the predictive powers of the AI system, noting that it is unclear whether aspects of the Court’s reasoning were included in the data input. Maxi Scherer, ‘Artificial Intelligence and Legal Decision-Making: The Wide Open?’ (2019) 36 Journal of International Arbitration 539. 39 The dataset comprised 584 cases under either Article 3, prohibition of torture and inhuman and degrading treatment, Article 6 protecting the right to a fair trial or Article 8, providing a right to respect for one’s private and family life, his home and his correspondence. Aletras and others (n 37) 8. 40 Guido Noto La Diega, ‘Against the Dehumanisation of Decision-Making’ (2018) 9 Journal of Intellectual Property, Information Technology and Electronic Commerce Law 3, 7. That said, the same argument could be made that trial judges get it ‘wrong’ every time an appellate judge overturns their ruling either in full or in part, which of course is a common and accepted feature of judicial systems. 41 Daniel Martin Katz, Michael J Bommarito II and Josh Blackman, ‘A General Approach for Predicting the Behavior of the Supreme Court of the United States’ (2017) 12 PloS one e0174698. 42 Ibid. 8–9.

279

THE FUTURE OF JUDGING

a project to design an AI system to adjudicate small claims disputes of less than €7,000 in 2019. A pilot project focusing on contract disputes is mooted, whereby parties upload documents and other relevant information, and the AI judge will issue a decision that can be appealed to a human judge.43 In the Netherlands, e-Court, a private online court, was established in 2010.44 e-Court relies on AI judges to generate rulings in debt collection proceedings.45 This ruling is then issued to a public court. A court clerk manually recalculates and confirms the awarded amounts, and then a judgment is formally endorsed and executed by the court. Recently, following criticisms by the Chairman for the Council of the Netherlands Judiciary suggesting a lack of impartiality and transparency in the e-Court process, courts will now only execute e-Court rulings subject to the approval of the Netherlands Supreme Court.46 Finally, in some Chinese provinces, programmes auto-generate simple judgments for simple cases – for example, judgments in drink-driving cases.47 Thus far, these systems operate within narrowly defined legal parameters, handling non-complex legal disputes. As of yet, no jurisdiction has introduced AI judges that, for instance, consider finer points of legal argument, interpret different statutory provisions or weigh up which precedent cases or laws are more significant than others are. These more sophisticated exercises in legal interpretation often drift into the realm of judicial discretion which, so far, remains the prerogative of the human judge. 8.2.2 The case for and against AI judges Should AI judges replace human judges? Ultimately, for AI judging platforms to flourish, they must deliver justice rationally, accurately, and at a sufficiently high technical standard such that they garner the public’s trust and acceptance. In his seminal paper Computing Machinery and Intelligence Alan Turing proposed an acid test for AI systems: their ability to interact intelligibly to a level equivalent to or indistinguishable from humans.48 Something similar could be said to be the true test of AI judges. Volokh proposes, for instance, that if an AI judge can generate persuasive judgments, capable of regularly beating human judges at their own game, then they may well achieve public acceptance.49 The emphasis here is on the quality of the judgment, the end product of justice systems. However, justice is not just a product, it is also a process. Many litigants crave the sense that they have been listened to, that they have had their day in court 43 Eric Niiler, ‘Can AI Be a Fair Judge in Court? Estonia Thinks So’ wired.com (25 March 2019) accessed 17 July 2020. 44 Henriëtte Nakad-Weststrate and others, ‘Digitally Produced Judgements in Modern Court Proceedings’ (2015) 6 International Journal of Digital Society 1102. 45 Ibid. 1103. The AI judge assesses the claim amount, notes the due date of the claim amount, confirms the necessary correspondence seeking payment of the debt, calculates the interest over the claim amount, calculates the costs of the proceedings and then issues a judgment. 46 Willemien Netjes and Arno Lodder, ‘E-Court–Dutch Alternative Online Resolution of Debt Collection Claims: A Violation of the Law or Blessing in Disguise’ (2019) 6 International Journal of Online Dispute Resolution 96. 47 ‘One-Click Generation of Summary Judgment in Suzhou Court Case’ People’s Court of Wujiang District, Shangzhou City (7 April 2018) accessed 17 July 2020; Yu and Du (n 34). 48 Alan Turing, ‘Computing Machinery and Intelligence’ (1950) 59 Mind 433. 49 Eugene Volokh, ‘Chief Justice Robots’ (2018) 68 Duke Law Journal 1135.

280

THE FUTURE OF JUDGING

and that they have participated in a civic exercise under the watchful eye of the public. Whether entering information into an AI system that instantaneously generates a written ruling by an algorithm is enough ‘justice’ is undoubtedly a matter for debate. On the other hand, the ever-increasing demand for litigation, not to mention crippling inefficiency and delays in many justice systems, make the prospect of AI judging ever-more attractive,50 even – some have argued – necessary.51 Proponents of AI judging suggest, therefore, that justice will be made more efficient and more accessible by its introduction. The majority of cases in a justice system are not complex,52 yet factual determinations take up a lot of court time and cost,53 as do matters of procedure, jurisdiction and choice-of-law. AI may be well placed to decide on such matters.54 Indeed, this may prove an irresistible proposition when, in principle, a single AI judging platform could clear a jurisdiction’s entire caseload as quickly as cases could be fed into it.55 Aside from efficiencies, others contend that AI judging would be more accurate, less prone to error than humans are and more objective. For instance, transient emotional instability that affects human judicial decision-making cannot affect AI judges’ decision-making.56 Nakad-Weststrate and her colleagues describe how the e-Court in the Netherlands rules without favouring parties based on relationships, misplaced empathy, admiration or other subjective influences that might plague human judges’ decision-making.57 Furthermore, given the software performs calculations on debts owed, this removes human error when determining these amounts.58 Nakad-Weststrate and her colleagues describe e-Court as having the “most objective judges of the Netherlands.”59 On one level this is an intuitively appealing contention. On another level, it is important to remember that an AI judge’s success – both in terms of its accuracy and objectivity – depends entirely on the quantity and quality of data made available to it. The more data available to it, the more accurately it will perform.60 As of yet, AI systems have their foibles. For instance, we have already seen how AI systems designed to predict human judges’ decisions on real courts still get it wrong a substantial minority of the time. As for claims that AI judges are objective, AI judging may seem a panacea to the pernicious extralegal effects, biases and prejudices that can sometimes affect human judges. After all, unlike their human counterparts, AI judges do not feel a reciprocal obligation to their appointing political actors, they are not inherently sexist or racist, they remain unperturbed by what is best for their careers, they will not bow to the pressure of public

50 Richard M Re and Alicia Solow-Niederman, ‘Developing Artificially Intelligent Justice’ (2019) 22 Stanford Technology Law Review 242, 246. 51 Nakad-Weststrate and others (n 44) 1108. 52 Susskind (n 4) 148. 53 D’Amato (n 28) 1288. 54 Ibid. 1289. 55 Re and Solow-Niederman (n 50) 256. 56 Harry Surden, ‘Machine Learning and Law’ (2014) 89 Washington Law Review 87, 88–89. 57 Nakad-Weststrate and others (n 44) 1108. 58 Ibid. 59 Ibid. 60 Scherer (n 38).

281

THE FUTURE OF JUDGING

opinion or the media nor will they side with a friendly lawyer. AI judges will not feel the frustrations of an unexpected loss of their favourite football team.61 However, to re-emphasise, an AI judging platform is only as good as the programming and data that goes into it. AI judges make decisions based on learning from datasets of past cases which themselves are the product of social structures that may be contaminated with bias. Therefore, AI judges’ decisions may recreate or even exacerbate pre-existing biases.62 Take, for example, an AI judge that learns from a dataset of past cases where, all else being equal, defendants from a minoritised racial group are convicted twice as often as defendants of the majority race in a jurisdiction are.63 AI judges may produce substantively unfair outcomes against that minoritised racial group because of bias in the original data.64 Scholars have variously described this dynamic as “inequality in, inequality out,”65 or “bias in, bias out.”66 Solving bias in AI judging may be easier said than done.67 Unlike humans who can consciously attend to redressing apparent biases in their decision-making, AI systems do not have this capacity. Several proposals have been made to reduce bias in AI systems’ decision-making. AI systems inherit biases from the humans that create them.68 So experts recommend that there ought to be diversity among AI system designers, to address failings in training machine learning algorithms.69 Others suggest either regulating or entirely excluding biasing data from AI judging platforms – for instance, removing references to parties’ race or proxies for race such as postcode (neighbourhoods may predominantly comprise people from one particular minoritised racial group).70 Another suggestion is to adjust the output of the AI system to redress any imbalances or biases it might display, a sort of “algorithmic affirmative action.”71 Volokh also proposes that AI judges’ impartiality could be improved through testing.72 AI judges could be given hypothetical cases where 61 Ozkan Eren and Naci Mocan, ‘Emotional Judges and Unlucky Juveniles’ (2018) 10 American Economic Journal: Applied Economics 171. 62 Dorothy E Roberts, ‘Book Review, Digitizing the Carceral State’ (2019) 132 Harvard Law Review 1695, 268; Susskind (n 4) 288. 63 Surden notes that “in the legal prediction context, the past case data upon which a machine learning algorithm is trained may be systematically biased in a way that leads to inaccurate results in future legal cases,” Surden (n 56) 106. See also Aziz Z Huq, ‘Racial Equity in Algorithmic Criminal Justice’ (2018) 68 Duke Law Journal 1043, 1077 and 1080. 64 Sampaio and her colleagues note “algorithms are not able to create neutral or non-discriminatory and independent predictions about future events since they are contingent from its previous design.” Alfaia Sampaio, Seixas and Gomes (n 23) 8. Surden also notes the potential for systematic bias in AI systems predicting future judicial outcomes on the basis of data from past cases. Surden (n 56) 106. Sourdin flags an instance where AI technology demonstrates racist tendencies in its decision-making. Tania Sourdin, ‘Judge v. Robot: Artificial Intelligence and Judicial Decision-Making’ (2018) 41 University of New South Wales Law Journal 1114, 1129. Sourdin referred to Sam Levin, ‘A Beauty Contest Was Judged by AI and the Robots Didn’t Like Dark Skin’ The Guardian (9 September 2016). See also Megan Garcia, ‘Racist in the Machine: The Disturbing Implications of Algorithmic Bias’ (2016) 33 World Policy Journal 111. 65 Roberts (n 62) 1708. 66 On the efficacy of reducing bias in AI legal decision-making generally, see Sandra G Mayson, ‘Bias in, Bias Out’ (2018) 128 Yale Law Journal 2218. 67 Ibid. 68 Aylin Caliskan, Joanna J Bryson and Arvind Narayanan, ‘Semantics Derived Automatically from Language Corpora Contain Human-like Biases’ (2017) 356 Science 183. 69 Kate Crawford, ‘Artificial Intelligence’s White Guy Problem’ New York Times (26 June 2016). 70 See, for example, Volokh (n 49) 1168. For critical analysis of this approach, see Mayson (n 66) 2263–2267. 71 Mayson (n 66) 2267–2277. 72 Volokh (n 49) 1169.

282

THE FUTURE OF JUDGING

the facts are the same, but the litigants’ attributes are changed. Algorithms could then be tweaked to subsequently eliminate any apparent differences in approach based on these irrelevant considerations. However, tweaking AI systems either at the data input or output stages may not solve the problem of bias.73 Given that AI systems are based on looking to the past to predict the future, there is a deeper problem at play: the nature of prediction itself. Mayson argues that any method of prediction will hold a mirror up to the past and project its inequalities into the future – for example, historical data from cases where a particular minoritised racial group has been treated more harshly than others have been will appear and will need to be addressed.74 It is not just the “bias in, bias out” problem that emerges in AI judging platforms. While they may lack human prejudices, AI systems may develop prejudices of their own over time. AI judges, like other AI software, tend to have “emergent properties,” unexpected patterns of behaviour.75 It remains to be seen how glitches along these lines may infiltrate AI judges’ decisions. Aside from the issue of bias, the transparency of AI judging platforms will be a significant factor in earning public trust. The issue of transparency, or lack of it – one scholar described the “sweet mystery of machine learning” – pervades all AI technologies, not just AI judging.76 Ultimately, the public’s acceptance of AI judging platforms may well depend on whether they understand how AI judges decide cases. In an ordinary courtroom, one can eye up a judge, see them frown or nod in agreement or take note as they pursue a particular line of questioning. All of these subtle human interactions may give some sense to the parties – however flawed their interpretation may ultimately be – of how the judge may decide their case. However, the nature of AI technology means that the internal machinations of the decision-making process may be entirely inscrutable. Moreover, the complex algorithms that drive the decision-making process may be incomprehensible to a non-technical audience. Some suggest that this may foster alienation from the public and the legal profession.77 Given ordinarily understood legal principles that apply to human judges in ordinary courtrooms – natural justice and fair procedures, and of justice being administered in public and so forth – how, asks Susskind, “can we countenance systems that are so patently lacking in transparency?”78 As alluded to briefly earlier, it may be best to simply consider the AI judge’s output (judgments), not the method (what goes on under the AI judge’s “hood”).79 If an AI judge is at least as good as or better than the average of a human judge at churning out judgments, a perceived lack of transparency may be a price worth paying if it means better and fairer case outcomes.80 Whether or not an AI judge actually follows and appreciates legal rules at a deep level is less relevant if parties and 73 Mayson (n 66). 74 Ibid. However, Mayson does not discredit the use of AI technologies altogether. To reject them in favour of subjective prediction of human judges would be to discard a clear mirror for a cloudy one, she reasons. Ibid. 2297. 75 Volokh (n 49) 1167. 76 Frank Pasquale, ‘Bittersweet Mysteries of Machine Learning (A Provocation)’ Media Policy Blog (5 February 2016) accessed 17 July 2020. 77 Re and Solow-Niederman (n 50) 246–247. 78 Susskind (n 4) 288. 79 Volokh (n 49) 1137–1138. 80 Ibid. 1160.

283

THE FUTURE OF JUDGING

observers are persuaded that their rulings are consistent with law.81 Put simply, the end may justify the means. A further crucial issue related to this is the question of who is to provide AI judging platforms. If a for-profit business creates the algorithms that drive the AI judge, and retains the intellectual property rights to them, might this potentially compromise the public administration of justice? Tight regulation of AI judging platforms would be necessary to prevent the possibility that market forces could infiltrate the application of the law.82 Cybersecurity and managing the risk that AI judging platforms may be hacked is also another obvious concern. Beyond issues of transparency, regulation and security, replacing human judges with AI judges raises a number of deeper issues – societal and jurisprudential – that permeate the very fabric of what a judicial system is and what it ought to achieve.83 Courts are institutions that are deeply embedded in societies. At an institutional level, what would AI judging mean for the role of courts as we know them? Lord Devlin once remarked that the “social service which the judge renders to the community is the removal of a sense of injustice.”84 Yet courts would become a less public, social environment as human judges become less relied upon.85 Would AI judges be capable of serving this social service, or might the judicial system lose something of its authority and clout within societies? The rise of AI judges could also conceivably lead to an imbalance in the separation of powers in some jurisdictions. Judiciaries are often seen as a bulwark of sorts, protecting citizens’ rights and interests from the sometimes dangerous whims of other branches of government. Scholars have flagged that AI judges may play a shrinking role in the separation of powers relative to their human counterparts.86 Some governments may view AI judges as less of a threat to their interests than human judges, particularly where they have control over their operations. In a jurisprudential sense, the introduction of AI judging may also have profound consequences. For a judicial decision to be fair, it must first and foremost apply the law correctly. But – and no doubt many jurisprudence scholars would argue – there is often more to it than that. Judges in the Nazi regime applied the law, yet almost all would consider those decisions morally abhorrent and illegitimate.87 If judges ought to display some sense of moral authority in a community, can entirely algorithm-driven AI judges ever truly serve this function? Re and Solow-Niederman observe that human judges are often seen as deliverers of equitable justice, capable of discretion, mercy and reasoned application of values set in place by a legal system.88 On the other hand, AI judges deal in codified justice, the 81 Ibid. 1161. Volokh continues, “It doesn’t matter whether, under the hood, the AI is ‘really’ following the rules, or ‘really’ exercising sound judicial discretion. All that matters is that the AI is designed well enough that its output persuades.” Ibid. 1163. 82 Re and Solow-Niederman (n 50) 285–287. 83 On the ethics of using AI in judicial systems, see European Commission for the Efficiency of Justice (CEPEJ), ‘European Ethical Charter on the Use of Artificial Intelligence in Judicial Systems and Their Environment’ (2018) accessed 17 July 2020. 84 Patrick Devlin, The Judge (Oxford University Press 1979) 3. 85 Ibid. 276. 86 Re and Solow-Niederman (n 50) 274. 87 Susskind (n 4) 74. 88 Re and Solow-Niederman (n 50) 253–254.

284

THE FUTURE OF JUDGING

routine application of standard procedures to sets of facts, with reduced discretion. Re and Solow-Niederman suggest, therefore, that increased reliance on AI judges may lead to a shift in values underpinning justice systems, away from equitable justice – essentially, discretionary moral judgment – to codified justice that favours standardisation above discretion. AI technology is logic-driven. While human judges exercise their discretion, subjective considerations may be somewhat more difficult to weave into AI judges’ algorithms.89 That said, the more sophisticated algorithms for AI judges become, the more individualised decisions will become. In sentencing decisions, for instance, algorithms could, in principle, deal in an unlimited number of mitigating factors to give highly individualised decisions.90 Related to the issues of judicial discretion and individualised justice is whether AI judging would stifle the development of law, particularly in common law jurisdictions. Were AI judges to generate increasingly refined decisions based on past data, repeatedly deciding specific types of cases in specific ways, the law may become fossilised and judicial creativity as we know it may diminish.91 “Might a Donoghue v Stevenson pass unnoticed through the online court, oblivious to deep issues of principle?” asks Susskind.92 After all, human judges often update their reasoning and approach to judging through exposure to new information and experiences, both on and off the bench.93 Human judges also move on; the bench is in a constant state of flux. Some form of updating of AI judging platforms would, therefore, seem to be necessary to ensure the law develops and adapts to the needs of the society it serves.94 Some suggest that AI judges should have some measure of equitable justice integrated and coded into their programming, aligned with existing societal values in order to garner the public’s trust.95 No doubt such a suggestion opens a Pandora’s Box as to what those societal values ought to be. One proposal is that panels of experts could periodically evaluate different AI judging platforms to ensure the law does not stagnate.96 The devil in these suggestions is undoubtedly in the detail. How to code for equitable justice? Who ought to sit on panels that evaluate AI judging platforms? Aside from jurisprudential concerns, on a more basic human level, might the public become disillusioned simply because of AI judges’ inherent lack of humanity? Human judges, for instance, often acknowledge the arguments of losing parties in their judgments, in a bid to come across as even-handed and to garner their respect. If an AI judge were to work a similar narrative into its judgment, would the losing party still feel acknowledged in the same way?97 Equally, if an AI judge decided a case where 89 Sourdin notes that “many judgments within the legal system involve an element of discretion. Computer programs operate based on logic, where input information is processed via programmed algorithms to arrive at a predetermined outcome. Such rigidity is arguably incompatible with discretionary decisions. Discretionary decisions may need to take into account community values, the subjective features of parties, and any other surrounding circumstances that may be relevant.” Sourdin (n 64) 1128. 90 Re and Solow-Niederman (n 50) 259. 91 Ibid. 268–269. 92 Susskind (n 4) 149. 93 Re and Solow-Niederman (n 50) 268–269. 94 Ibid. 269. 95 Ibid. 280. 96 Volokh (n 49) 1188. 97 Re and Solow-Niederman (n 50) 265. On the question of whether judges need to be human, see Tania Sourdin and Richard Cornes, ‘Do Judges Need to Be Human? Implications of Technology for Responsive Judging’ in Tania Sourdin and Archie Zariski (eds), The Responsive Judge: International Perspectives (Springer 2018), 87.

285

THE FUTURE OF JUDGING

a human judge might otherwise have been available, might a losing litigant question the credibility of the AI judge if they disagreed with their ruling?98 Would they be left with the lingering sense that a human judge may have decided in their favour, rather than against them?99 All of the above is not to discount the remarkable potential and benefits that AI technologies may bring to judicial systems. There is undoubtedly much to be gained. That said, the prospect of AI judging gives rise to deep societal, technical and jurisprudential questions. It is important, therefore, to foresee risks and glitches in AI judging platforms and to reflect deeply on the ramifications for justice systems in a broad sense. For the time being, the sheer complexity of legal interpretation and judicial decision-making means that it is currently impossible to develop an AI judge to the standard that human judges can perform at in most legal contexts.100 Law is, of course, a language-based discipline and with language comes ambiguity. Whether a person behaved “reasonably” or “negligently,” for instance, depends on one’s perspective.101 Technically speaking, some argue, AI systems may not yet be capable of proficiently dealing with the complexities and open texture of natural language in a legal context.102 That said, the gradual and cautious introduction of AI judging platforms to resolve some very basic legal disputes, with rigorous human oversight and supervision, is merited.103 To perhaps state the obvious, embracing AI judging should not be wholesale and sweeping. Justice systems must exercise a considerable amount of caution. Susskind once warned that AI had become a verb, as in “we can AI that.”104 He remarked that this was often said by people “who would struggle to distinguish between a neural network & a custard cream.” Of course, AI systems should not be blindly accepted as a panacea, employed simply because they are available. Rather, AI systems ought only to be used where they are proven to improve justice for litigants. AI judging platforms must be rigorously tested both before and during their implementation in actual courts.105 In light of this, human judges ought to have ultimate discretion if and when the need arises as this technology develops. It may be sooner than we think that AI judges will become so sophisticated that they seem entirely plausible to human audiences, capable of engaging in rational legal discourse, and of issuing judgments that are – at least literally, if not philosophically – acceptable. In time, AI judges may issue decisions that are better and more sophisticated than their human counterparts may be capable of. Ultimately then, it is up to AI judges, and the

98 Of course, the reverse may also be true: if a losing litigant disagrees with a human judge, and think an AI judge would have decided their cases differently, they may also feel hard done by. 99 Re and Solow-Niederman (n 50) 272–273. 100 La Diega (n 40) 5–6. 101 D’Amato (n 28) 1280. 102 Alfaia Sampaio, Seixas and Gomes (n 23) 5. 103 Re and Solow-Niederman suggest that a blended approach apportioning the task of judging to humans and AI may be necessary. Re and Solow-Niederman (n 50) 283. Surden notes that given the current state of the art, and its limitations, AI systems are best placed to tackle certain subsets of legal tasks, but certainly not all of them. Surden (n 56) 88–89. 104 Richard Susskind, Twitter.com (23 March 2017) accessed 17 July 2020. 105 It is awkward to experiment with AI judging where human liberties are at stake. Re and Solow-Niederman (n 50) 279.

286

THE FUTURE OF JUDGING

humans that build them, to win the public’s trust and acceptance by demonstrating how they can deliver better, fairer and more efficient justice. 8.3 Conclusion This book concludes with a warning, and a defence of global empirical scholarship on judges and judicial decision-making – past, present and future. In 2016, French tax lawyer and machine-learning expert Michaël Benesty published data on his website reporting individual French judges’ rates of rejecting claims of asylum by asylum seekers.106 The data highlighted wide discrepancies in the judges’ decision-making. Some judges rejected asylum seekers’ claims nearly 100% of the time while others, even colleagues on the same courts, had very low rejection rates.107 Benesty’s research caused some consternation among the French judiciary when it was published.108 Judges emailed Benesty directly to challenge his interpretation of the data, while others expressed concern that judicial independence had been compromised by naming individual judges.109 When the French government became aware of the controversy, they decided to examine how data about the French judiciary ought to be treated and used. Initially, government initiatives seemed geared towards making case law more easily accessible to the public in a bid to improve transparency within the French justice system.110 In 2019, however, the government appeared to change tack. Perhaps wary of the proliferation of potentially damaging research findings, coupled with lawyers’ increasing reliance on litigation prediction and analytics tools, the French parliament introduced a remarkably sweeping law, Article 33 of the Justice Reform Act. Article 33 makes it a criminal offence to evaluate, analyse, compare or predict the behaviour of individual judges, the first such ban in the world. The maximum sentence for this offence is a quite extraordinary five years in prison. The law is not only one of the harshest examples of legal technology regulation in the world, it effectively prohibits scholarship on the French judiciary altogether, insofar as individual judges and their decisions must not be identified or analysed.111 The wording of the ban not only covers statistical analyses of trends in judicial decision-making but also appears to cover all

106 Michaël Benesty, ‘The Judge Statistical Data Ban–My Story–Michaël Benesty’ Artificial Lawyer (7 June 2019) accessed 17 July 2020. 107 The data was published on a website, Supralegem.fr which has since been closed down. Some of the data from this analysis remains available online Supra Legem, ‘The Impartiality of Some French Judges Undermined by Machine Learning’ (19 December 2016) accessed 17 July 2020. 108 Although Benesty reported that he made efforts to contact court officials about his research in advance. Benesty (n 106). 109 Ibid. 110 ‘France Bans Judge Analytics, 5 Years In Prison For Rule Breakers’ Artificial Lawyer (4 June 2019)

accessed 17 July 2020. 111 Article 33 of the Justice Reform Act. For analysis of this measure, see Malcolm Langford and Mikael Rask Madsen, ‘France Criminalises Research on Judges’ Verfassungsblog (22 June 2019) accessed 17 July 2020; Jena McGill and Amy Salyzyn, ‘Judging by Numbers: How Will Judicial Analytics Impact the Judicial System and Its Stakeholders’ (2021) 44 Dalhousie Law Journal (forthcoming).

287

THE FUTURE OF JUDGING

empirical research on individual French judges and possibly even doctrinal analysis of individual judgments. Criticism of the law was swift, with commentators describing it as a “complete shame for our democracy,”112 “akin to using a sledgehammer to crack a nut”113 and warning that it potentially violates freedom of expression under Article 10 of the European Convention on Human Rights.114 Moreover, at the heart of the French law is a fundamental contradiction: information about individual judgments is publicly available, but citizens may not analyse it. One expert likened it to giving someone access to a public library but banning them from reading certain books sitting on the shelf for all to see.115 The French law presents a troubling vista. While some limited rules on the use of litigation analytics and prediction tools within the legal profession may well be necessary, such regulation must run with the irreversible tide of technology, rather than try to build a dam to stop it entirely. The law, as it stands, erases the prospect of any future scrutiny of French judges. It is a regressive, overbroad and wholly disproportionate step, effectively casting judicial scholars as potential criminals. Closing off academic scrutiny of judiciaries in this way is unwarranted and a disservice to the ideals of transparent, better-quality justice. The law also sets a dangerous precedent. If other jurisdictions follow France’s lead, this will have profound consequences for the role and function of judicial scholarship. Langford and Rask Madsen, reflecting on the present context of the French ban in an era of fake news and growing authoritarianism, pointed out the irony that “the land which helped birth the rule of law, l’État de droit, is now sending a poor signal to other states and courts that wish to avoid public scrutiny.”116 It may not have been a coincidence that a study that employed machine learning techniques was what catalysed French legislators to ban the analysis of individual French judges. The law may have been driven partly by a fear of an unknown future, where AI systems threaten the edifice of justice by highlighting judges’ foibles and the errors that they sometimes make. Perhaps the French ban – and its apparent origins in a controversy over the results of a damning AI-driven study – reflects and reveals something of a disconnect between judicial scholars and their subjects, the judges themselves. Collaboration and communication between researchers and judges and other stakeholders in judicial systems are vitally important for the development of judicial scholarship, and maybe even – the French ban could suggest – its very survival as a discipline, at least in some jurisdictions. Empirical judicial research is at a crossroads. Inevitably, researchers will increasingly use ever-more sophisticated technology to help understand the judicial function. That is their prerogative, and it is good research practice. Their findings are not something to be 112 Louis Larret-Chahine, the general manager and co-founder of Prédictice, a French legal analytics company, quoted in Jason Tashea, ‘France Bans Publishing of Judicial Analytics and Prompts Criminal Penalty’ ABA Journal (7 June 2019) accessed 17 July 2020. 113 Langford and Madsen (n 111). 114 Ibid. 115 ‘France Bans Judge Analytics, 5 Years In Prison For Rule Breakers’ (n 110). 116 Langford and Rask Madsen (n 111).

288

THE FUTURE OF JUDGING

feared by judges, but harnessed. That said, with the proliferation of ever more advanced and rigorous scrutiny of judges, researchers, now more than ever, have a responsibility to link in, as appropriate, with stakeholders in judiciaries – judges, courts services officials and policymakers alike. This responsibility includes explaining their work to judges, their research methods and – just as importantly – communicating how their results can help to improve practice and decision-making. Indeed, researchers may sometimes be encouraged, perhaps even surprised, by judges’ genuine interest in their work and their acknowledgement of how useful it is to them. As earlier chapters in this book attest, the bulk of empirical judicial scholarship has taken an archival approach, sifting through publicly available records of decided cases. Archival studies do not require researchers to link in with the judges they examine directly. Nevertheless, researchers ought to establish clearer channels of communication with judiciaries, while maintaining a suitable academic distance and degree of independence. Without fostering this dialogue, a great deal of research may be left to languish in academic journals, without actually getting into the hands of those who stand to benefit the most from it – the judges whom they analyse. It is important, therefore, that researchers develop working relationships based on mutual trust and collaboration with judges and stakeholders in judicial systems wherever possible. Of course, it is naïve to assume that all efforts to foster such relationships will blossom. Indeed, in some jurisdictions, it may not be possible to develop them in the first place. Nevertheless, collaboration ought to be pursued where it is feasible and appropriate. Already, the fruits of this collaboration are apparent. In several jurisdictions, judges have become directly involved in the greater project of judicial scholarship by agreeing to participate in experimental studies. It should be acknowledged that this does not come without some risk to them. In a profession where consistently high standards are expected, it takes a degree of courage and trust for judges to expose themselves to experimental scrutiny. Where results point to the error of their ways, this may come at a collective professional price to them. But it is one worth paying. Empirically driven research has become ever more sophisticated, particularly since the beginning of the 21st century. Although proportionately speaking the literature remains stubbornly concentrated on the work of US judges, research has gradually become more global in perspective, reaching far beyond US shores. This work ought to be the lifeblood of improving how judges judge, alongside, of course, doctrinal scholarship on the law. Readers are once again reminded that judging is, and remains primarily a legal discipline. Recent, more nuanced research that examines different elements of the judicial decision-making process, as distinct from relying on correlations between specific variables and binary judicial outcomes, are particularly exciting. Observing how judges behave in courtrooms using audiovisual data from hearings, or by undertaking increasingly sophisticated analyses of the text of judgments using natural language processing and machine learning techniques are just some modes of analysis that also appear promising. Moreover, experimental studies using judges as participants affords a direct line of communication and collaboration with the research community. These exercises, often hosted during judicial training programmes and conferences, are ideal ‘sandbox’ opportunities for judges to harness the power of empirical research, to put themselves to 289

THE FUTURE OF JUDGING

the test, and maybe even try out new ways to improve their own decision-making practices.117 Experimental research also paves the way for empirical triangulation, whereby experimental results can be compared to trends from archival data to investigate their effects in real-world judging. One final observation on the future of empirical judicial research: it ought to emphasise solutions and interventions to improve how judges perform their function, as much as it continues to identify judges’ occasional flaws and errors in decision-making. Judicial researchers do not set out to admonish judges, nor is their work borne out of an inherent mistrust in their ability or a bid to dismantle their integrity or independence. Instead, the overriding aim of empirical judicial scholarship is to improve how justice is done. Ultimately, research findings allow judges to hold a mirror up to themselves. The future of judicial research will undoubtedly continue to sharpen the image they see. This will improve the lot of judges, and, by extension, the lot of the litigants who appear before them. The work detailed in this book, and the work that will follow will help to inform how judges perform, but it should do more than this. The arc of the overall judicial research project should bend towards collaboration, working towards improving decision-making and decision-making processes. This will undoubtedly lead to better, fairer justice.

117 Particularly impressive are recent experimental studies where judges are asked to give reasons for their decisions in hypothetical cases. See, for example, Holger Spamann and Lars Klöhn, ‘Justice Is Less Blind, and Less Legalistic, than We Thought: Evidence from an Experiment with Real Judges’ (2016) 45 The Journal of Legal Studies 255.

290

INDEX

AI judges 277–287; bias 282–283; case for and against 280–287; development of law, and 285; efficiency 281; objectivity 281–282; potential benefits 286; programming 282; separation of powers, and 284; subjective considerations 285; transparency 283; who is to provide platforms 284 actors in courtroom 187–207 admissibility of evidence: motivated reasoning, and 66–70 adversarial trial modes 208–210 age and experience 132–139; age discrimination claims 134–135; conservative judging, and 132–134; freshman effect 135–137; consequences for older litigants 138; sentencing 133 anchoring effect 37–45; curbing 56–57; damages caps 41–42; influence of 38; influence of irrelevant numerical value 38–39; lawyers’ fees 43; order in which cases decided 42; potentially irrelevant anchors 39; prosecutors’ demands 40; recommendations by other court actors 43–45; sentencing decisions 39–45; specific rules and processes 40–43; theoretical accounts 37; units of value 41 appointments see selection of judges archival studies 5–6; limitations 6 artificial intelligence 276–287; academic research 279; case for and against AI judges 280–287; Chinese courts 278; courtroom, in 277–280; first-wave 276; judges 279–280; machine learning 276–277; Malaysia 278; Mexico, Expertius system 278; Netherlands, e-Court 280; neural networks 277; Ohio 278; reinforcement learning 277; secondwave 276; supervised machine learning 276; unsupervised learning 277 attitudinal model 150–152 attractiveness bias 180–181 availability heuristic 25–26

Baum, Lawrence 101 biases, differentiating between different types of 13–14; combatting 28–32; heuristics, and 13–14 beyond-court influences 224–272 cameras in courtrooms 269–272 Cardozo, Benjamin 3, 71, 78–79, 261 choice architecture 55 Christianity 139 clustering 53–54; sentencing decisions 53–54; specific numerical values, and 54 cognitive biases 13–32 cognitive errors in numerical decision-making 32–60; mechanisms to prevent 33–34; research studies 36–37; scenarios 35–36; sentencing guidelines 34–35 cognitive reflection test 14–15 combatting cognitive errors in judges’ numerical decision-making 54–60; changing order in which information taken 58–59; changing unit of value 58; choice architecture 55; damages cap 56–57; multiple anchoring points 57–58; pooling data 55–56; prohibiting litigants from mentioning general damages figures 59; specific interventions 54–55, 56 combatting heuristics and biases 28–32; consider-the-opposite technique 29–30; increased awareness 28; reasonable foreseeability 28; reasonable person 28; Swedish criminal procedure 30; training 29; trial bifurcation 30–31; workload, and 31 combinations of litigants’ and judges’ characteristics 182–183 confirmation bias 15–18; direct tests 16–17; effect 16; position-hardening behaviour 17–18 conformity voting 86 contrast effect 46–48; credibility of expert witnesses 47; mock jurors 47–48

291

INDEX

court budgets: government control over 256court packing 243–245 courtroom actors: influence of 206–207 courtroom layout and design 207–223 courtroom technologies 274–276; advances 274–276; legal information, and 274; online courts 274–275 courts’ operations 207–223 decision-making in a hierarchy 225–231 deliberation on panel courts 218–221 dialogue between higher and lower courts 227 discretionary jurisdiction 213–216 dissent aversion 86 economic theory 92 Edwards, Harry 81, 85 egocentric bias 24–25; overestimation of abilities and prospects 24; susceptibility to 25 elections see judicial elections emotion 13, 70–78; anger 70; defining of 73; disapproval of 71; sympathy 70 empathy 72–73; complexities of defining 73–74; judge-lawyer dialogue 76; methodological approaches 77–78; personal relationships, and 75; sources 74; vocal pitch, and 76 empirical research 2 Epstein, Lee 152–153 errors in numerical decision-making 12 experience of judges 135–139 experiential studies 6–7; limitations 7 expert witnesses 204–206; influence 204–206; physical injuries in tort cases 205; qualitycontrol standards 206; reliance on 204–205 external forces 1 external institutions 224–272 fame-seeking behaviour 99–100 framing effect 48–52; bankruptcy judges 50; fairness, perceptions of 50–51; gains or losses 51; medical evidence 49–50; numerical information 52; scale used to present statistical information 51–52 France: Article 33, Justice Reform Act 287–288; ban on analyses of decision-making 287–288 Frederick, Shane: cognitive reflection test 14–15 freshman effect 135–137 future of judging 273–290 Galton, Francis 3; clustering, on 53; wisdom of crowds, on 81 gambler’s fallacy 52–53

gay rights claims 177–180 gender 112–124; cases with gender dimensions 114–115; differences in reasoning 121–122; different voice theory 113–114; employment discrimination cases 118; essentialism 113; gender-related and gender-specific persecution 122; gender-salient issues 116–124; judges with daughters 123–124; presence of woman judge on panel 118–119; sentencing, and 115–116; sex discrimination cases 117, 120; treatment of women offenders by women judges 115–116; views of judges on gender-based differences 123; ‘women’s issue’ cases 119–120 government influence 231–256; agendasetting 234; Argentinian Supreme Court 237; back-and-forth dialogues 238; case decided against government 233–234; Colombian constitutional court 235–236; Constitutional Court of Mexico 235; dialogue with government 232, 233–239; European Court of Justice 236; jurisdictions transitioning to democracy 238; macroevents 238; modification of decisions 234–235; powers over courts’ operations and judiciary 239–256; separation of powers, and 233; strategic defection 234; substantially vague decisions 237; top-down 232; US Congress 236; US Supreme Court 235; weak democracies 237; writing style in judgments 236 government’s powers over courts’ operations and judiciary 239–256; appointments to bench 239–240; constitutional law theory 239; reprisals 240 group decision-making 13, 78–90; adverse effects 80; amplifying individual members’ errors 84–85; cascade and conformity effects 85; conformity voting 86; dissent aversion 86; false consensus effect 82; group polarisation 86–87; groupthink 83; information exchange 81; in–group bias 89–90; Köhler effect 83; negative effects 83–90; positive effects 81–83; separating truth from lies 82; social loafing 88–89; use and sharing of information 88 group polarisation 86–87 group psychology effects 78–90; absence of experiential work 80; adverse effects of group decision-making 80; groupthink 83 Guthrie, Chris 13 Hale, Matthew: self-help guide 16 Hangzhou Internet Court 273

292

INDEX

heuristics 12, 13–32; biases, and 13–14; combatting 28–32 hindsight bias 18–22; admissibility of police evidence 20–21; effects 19–20; foreseeability, and 21; judicial statements 19; nature and extremity of harm 22; negligence liability 21–22; probable cause cases 21; relevance 19; representative heuristic, and 24 Implicit Association Test 173–174, 184 in-court influences 9–10 in-group bias 89–90 independence see judicial independence inquisitorial trial modes 208–210 institutional context 9–10, 186–223; actors in courtroom see actors in courtroom; beyondcourt influences 224–272; in-court influences 186–223 judges as professionals 9 judges as self-interested professionals 4, 91–110 judgment on appeal 226–227; fact-bound 230; fear of reversal 228–229; law-bound 230; lower courts pushing back against decisions of higher courts 230 judicial appointments see selection of judges judicial assistants 197–204; characteristics 197; Dutch district courts 202; gatekeepers on courts with discretionary jurisdiction 198–200; influence 197–204; influence at trial 200–202; political ideology 201; relationships with judges 200–201; UK Supreme Court 201; writing judgments 202–204 judicial behaviour: definition 149 judicial bias 2 judicial clerks see judicial assistants judicial decision-making research 3–8; development 3–5; future 287–290; methodology 5–8; terminology 5–8 judicial elections 245–254; abortion cases, and 249; appropriate, whether 245–246; Bolivia 253 business contributions 252; campaign funding 250–251; contributions from political parties 252; death penalty, and 247–248; decision-making, and 246–247; ‘hot-button’ issues 249; sentencing fluctuation, and 248–249; Switzerland 252–253; tough on crime stance 247; United States 245–246 judicial independence 239 judicial panels see panel courts judicial specialisation 211–213; administrative law 212; Brazilian constitutional review cases 212; patent courts 213; safeguard, as 211

Kahneman, Daniel: Thinking, Fast and Slow 12–14 Knight, Jack: The Choices Justices Make 152–153 Köhler effect 83 Kunda, Ziva 60 L’Aquila earthquake 18 Law and Economics 92 lawyers’ characteristics 196–197 lawyers’ influence 187–197; oral argument 190–196; written submissions 189–190 legal representation 188 legal model 149–150 Legal Realism 3, 27, 149–150 leisure: effect on judicial performance 95–96 leisure-seeking behaviour 93–94 LGBTQ litigants 177–180 litigants’ age 174–177; civil law 176, 177; lenient treatment of older adults 177; sentencing disparities 175–176 litigants’ characteristics 164–185; combatting bias based on 183–185; sentencing disparities 164 litigants’ gender 165–169; archival approach 166; family law cases 167; individual attitudes 165; judges as participants in studies 168; sentencing decisions 166; stereotyping 167; transgender litigants 169; women litigants in child custody disputes 169 litigants’ mental health 182 litigants’ physical appearance 180–181 litigants’ race and ethnicity 169–174; appellate judges in criminal law proceedings 172; bail decisions 171–172; Implicit Association Test 173–174; indigenous populations 172; mock jurors 173; non-criminal law contexts 172–173; sentencing disparities 170–171; workplace racial harassment cases 173 litigants’ sexual orientation 177–180 litigant’s socio-economic status 181–182 Maroney, Terry 71 media coverage 265–272; anticipation of 267; criticism of individual judges or courts 266; Ecuadorian Constitutional Court 267; influence 265–272; potentially prejudicial 268; US Supreme Court media presence in courtroom 269–272; Brazilian Supreme Court 270–272; effect on decision-making 269–272 Miranda doctrine: motivated reasoning, and 68 mock juries: contrast effect 47–48; motivated reasoning, and 63; group-decision making 80 motivated cognition 61

293

INDEX

motivated reasoning 13, 60–70; admissibility of evidence 66–70; cognitive processes, and 61; consistency between emotions and judgment 64; defendants’ legally irrelevant traits 65; factors 60; factors within specific cases 62; irrelevant information 63–64; judges’ characteristics 62, 63; Miranda doctrine 68; mitigation of harmful consequences 68; mock jury studies 63; written decisions 65 networking see professional networks numerical decision-making 32–60; cognitive errors 32–60 Obama, Barack: emotion, on 72 omission bias 26–27 online courts 275 oral argument 190–196; court processes, and 195; effects 192–193; language used 194; prediction of case outcomes 195; significance 191; transparency 191–192; UK Supreme Court 193; use by judges 194–195 other courts in the same judicial system: influence of 225–231 panel courts 213–221; collaborative processes 218–220; composition of panels 216–218; deliberation on 218–221; discretionary jurisdiction 213–216; group dynamics 220; internal wrangling 217; Israeli Supreme Court 214; justification for 79; procedures 213–221; rules 213–221; South African Supreme Court 217–218; Taiwanese Supreme Court 215; US state supreme courts 214–215; US Supreme Court 215–216 Paterson, Alan: role analysis, on 7–8 pay 103–107; composition of judiciary, and 105–106; performance, and 104–105; performance-based raises 106–107 pension benefits 106 personal characteristics 9, 111–163; acquired 111; causation 112; innate 111 physical courtroom environment 221–222 politics 145–163; archival researchers 161–162; attitudinal model see attitudinal model; background and development of research 149–150; bankruptcy judges 160; Canadian Supreme Court 156; cases with inherently political dimension 145–146; civil law cases 160; civil law jurisdiction 158; death penalty cases 161; Epstein, Lee 152–153; European Court of Human Rights 159; experiential studies 159–161; global perspective 154–159; hypothetical criminal law cases 160; institutional factors 162; Irish Supreme

Court 157–158; judges’ own beliefs 146; jurisdiction-specific studies 148; Knight, Jack 152–153; meaning 147–148; measurement 147–148; Philippines 159; Segal, Jeffrey 150–151; Spaeth, Harold 150–151; strategic model see strategic model; UK 157 Posner, Richard 4; economic theory of judicial behaviour 92 precedent cases: application of 229 prestige 99–103; reference by name 101 principal-agent relationship of courts 225–226 Pritchett, Charles Herman 3–4, 149 probability matching 81–82 professional motivations 91–110; effect 109–110 professional networks 257–260; changes in decision-making, and 258; global judicial dialogue 258–259; international judicial dialogue 259 promotion 107–109, 255–256; auditioners 108; government control 255–256; tough on crime stance 109 psychology of judicial decision-making 12–90 psychology, research from 9 public controversy 260–261 public opinion 260–265; European courts 264; judicial decision-making, and 261–262; political influences, and 262; significance 261; supranational courts 264; US Supreme Court, and 262–263 race and ethnicity 124–131; affirmative action programmes 128–129; appellate courts, and 130–131; beneficial effects 125; ‘black issues’ 129–130; correlation with judicial decision-making 125–131; employment discrimination cases 129; judicial activism by judges from a minoritised racial group 126; race-related breaches of voting rights 128; race relations in US 125; sentencing decisions 127; sexual harassment cases 128 Rachlinski, Jeffrey 13 religion 139–145; death penalty cases 142; effect on decision-making 139–145; gay rights 142–143; government’s position in criminal cases 143; liberal or conservative judicial decision-making 141–143; minority religion judges 141; obscenity cases 142; political ideology, and 140; religious freedom cases 143–144; understanding affiliation as factor in decision-making 144–145 remuneration 254–255; government control 254–255 representativeness heuristic 22–24; assessment of credibility 23; hindsight bias, and 24; nature of 22; susceptibility to 23

294

INDEX

reputation 99–103; audience-based perspective 101; favouring interests of legal professionals 101–102; review and reversal, prospect of 102–103 retirement 98–99; judges’ politics, and 98; leverage to shift ideologies 98 reversal aversion 228–229 role analysis studies 7–8 Segal, Jeffrey 150–151 selection of judges 240–254; authoritarian regimes 245; court packing 243; governments, and 240–254; loyalty to political actors 242–243; political views 241–242; processes 241; Turkey 244 self-interest 91 sentencing guidelines 34–35 social loafing 88–89 Spaeth, Harold 150–151

specialisation see judicial specialisation stare decisis 230 status quo bias 26 strategic decision-making 231 strategic defection 234 strategic model 152–153 technology see courtroom technologies terms and conditions of judges’ employment 254–256 trial bifurcation 30–31 Tversky, Amos 13–14 US judges: domination of research studies 8 Wistrich, Andrew 13 work-life balance 93–99 workload 93–99

295