by David Klein and Gregory Mitchell (eds.). New York and Oxford: Oxford University Press, 2010. 360pp. Hardback. $75.00/£45.00. ISBN: 9780195367584.
Reviewed by Justin Wedeking, Department of Political Science, University of Kentucky. Email: justin.wedeking [at] uky.edu.
If space is the final frontier for mankind, then understanding the psychology of judicial decision making is arguably the final frontier for judicial scholars. This edited book provides an overview of myriad ways scholars might think about studying how judges go about reasoning, exercising judgment, and making decisions – all important tasks that judges perform on a daily basis. The book is divided into three parts. The first part focuses on judges and human behavior generally, the second part examines judging as a specialized activity, and the last part concentrates on evaluating and improving judging. The list of contributing authors is long and distinguished, coming from a variety of perspectives in psychology, political science, and the legal academy. On many fronts, the book is a step in the right direction. Most of the authors are in agreement that more inquiry needs to be undertaken if we are to better understand what goes on inside the judicial mind. And rightly so, I think, because of the enormous legal and policy ramifications that judges’ decisions have on society and the law. In what follows, I provide a brief summary of the three sections of the book, highlighting what I believe are the especially provocative and important insights this collection of scholars brings to light, along with a few weaknesses. After that, I provide some general thoughts and critiques of the book as a whole and conclude by making some suggestions about how this book may be used in the classroom.
The book begins with a brief introduction (David Klein) that serves as a roadmap for the ensuing chapters. It serves a useful purpose, highlighting the origins of the book, the goals and themes of the corresponding sections and chapters, and a general disclaimer that the book was not intended to provide a complete framework for the study of psychology in judicial decision making (i.e., it does not cover emotion).
Part I, which examines judges in the context of human behavior, takes the starting point that humans act on a wide variety of motivations. The common theme is that these motivations need to be incorporated into our thinking of how to better analyze judges. The section begins with Chapter 1, where Lawrence Baum, who, after providing an overview of the decision making field, provides many useful points about the importance of incorporating cognition, motivation, and goals into a framework of decision making. Baum then proposes an existing framework in which we can think about judging, the heuristic-systematic model of information processing, which was developed by Shelly Chaiken and her colleagues. This “dual-process” model, which is but one of many versions in psychology, [*113] considers the motivational basis for goals, the two dimensions of motivation (directional and energizing), and motivational variation across individuals and situations. The chapter then closes by exploring a few implications that a psychological approach might have for our understanding of judicial decision making.
Chapter 2 (Jennifer K. Robbennolt, Robert J. MacCoun, and John M. Darley) gets started when it proposes a constraint satisfaction model that describes how judges have multiple choices and multiple goals, with compatible and incompatible links between them. This model works well in describing the pressures a judge faces, though it is unclear how it might be empirically tested and applied to a wide range of trial judge behaviors. Chapter 3 (Brandon L. Bartels) discusses the idea of motivational heterogeneity and how it can help us understand when and why justices’ ideology and values play a larger or smaller role in their decision calculus. This cognitive framework is well focused and ultimately seeks to understand different types of reasoning displayed by judges. In Chapter 4, Lawrence S. Wrightsman examines two factors that influence persuasion of Supreme Court judges: the type of case (ideological vs. nonideological) and the personality of the justice. There are many insightful nuggets of information in this chapter, though some of the summarized empirical tests seem preliminary.
Chapter 5 (Wendy L. Martinek) urges us to look to small group theories to enrich our understanding of judicial behavior. In a field generally focused on the individual, Martinek reminds us of the importance of group roles (e.g., group leader) and how group norms may enhance the importance of legal factors. Chapter 6 (Neal Devins and Will Federspiel) continues the group focus, arguing psychology has much to offer theories of coalition formation.
Part II sees the starting point as what makes judges unique or exceptional compared to regular people. The best example in how the book engages in a common discussion is shown in Chapters 7-9. Chapter 7 (Frederick Schauer) questions whether there is truly a study of the psychology of judging, and essentially argues we have psychology applied to judges who are assumed to be susceptible to many of the same sorts of errors, biases, and habits as regular individuals. Chapter 8 (Emily Sherwin) continues the discussion and elaborates further on first and second order reasoning, and how the legal reasoning we expect from judges is generally different. Chapter 9 (Dan Simon) is largely a response to many of Schauer’s concerns, which Simon argues specifically focus on claims of external validity. Simon offers many counterpoints to those in the previous two chapters. In the end, Simon argues for an approach to studying the psychology of judging he describes as “pedantic eclecticism,” though he agrees that the field has an underdeveloped body of research.
In Chapter 10 Barbara A. Spellman explores whether judges are experts at analogy. She makes a valuable claim, which I paraphrase here as people may choose analogies because of their own preexisting knowledge base, not because they desire a particular outcome, suggesting much of the decision process [*114] may be unconscious, where judges believe they are following an idealized process (i.e., unbiased) and are unmotivated to find a particular result, but still reach a conclusion as though it were motivated by the outcome (p.149). Chapter 11 (Len Dalgleish, James Shanteau, and April Park) emphasizes the importance of thresholds and argues decision makers answer two questions for any single decision: “How strong are the arguments in favor of taking the action? (2) How strong must the arguments be in order for me to take the action?” (p.165). This chapter departs from the norm in that the authors offer empirical data. They find that students exhibit a lot of variation in both their thresholds for action and the influences on those thresholds.
Chapter 12 (C.K. Rowland, Tina Traficanti, and Erin Vernon) examines trial judges with the goal to “focus on decisions that define what most trial judges do most of the time and… examine variation and the reasons for variation in these decisions in natural settings” (p.185). The first part of the chapter highlights the various ways that “every civil jury trial is a bench trial” (p.187) and the second part outlines a theoretical framework for focusing on trial judges, and advocates that judges have administrative goals that compete with directional and accuracy goals. This is a valuable insight, though more detail would be helpful on how administrative goals are not subsumed by the other two types of goals. In Chapter 13, Eileen Braman emphasizes the empirical search for constraint and argues there are two different types of constraint: normative constraint, which is “imposed by legal authority and application of appropriate rules of decision making,” and contextual constraint, which is “constraint that results from the institutional context in which judges make decisions”(p.206). Braman offers many fruitful ideas to test whether constraint manifests itself empirically, though some would benefit from more elaboration.
Part III departs from the first two in that it addresses a practical and normative topic, how to evaluate and improve judging. Like the previous sections, there are multiple perspectives. Chapter 14 (Gregory Mitchell) argues the basic point that trying to define “good judging” is extremely difficult and complex, and that many who have previously tried have done so in a limited or flawed manner. In the end, there are several excellent points made about studying decision making, though the essay’s start is fettered by focusing on the “descriptive-normative” gap without explicitly defining it. In Chapter 15, Andrew J. Wistrich continues the conversation from the previous chapter and essentially argues “trying to formulate a meaningful definition of good judging is like trying to find the end of the rainbow; for all our efforts, we never seem to get there” (p.250).
Wistrich is not, however, completely pessimistic, arguing that “good judging” can be defined in certain situations, and that we can improve judging without necessarily defining it. Unfortunately, this is ambiguous – individuals can improve at a lot of things in life, but that is not the same as saying they will be “good” at those things. Wistrich uses a clever analogy to support his claim – how surgeons, over time, gradually decreased death rates due to anesthesia – arguing that anesthesiologists did not [*115] begin by defining a good anesthesiologist. However, this analogy is problematic. For anesthesiologists the error is obvious and unambiguous – the patient dies. For judges, most situations and ensuing outcomes are ambiguous whether an error was made because there are mutual explanations for that outcome. For example, if a judge is said to have made an error, will that judge be overruled on appeal because it was an error or because the overruling judges simply had a different goal, motivation, or ideological persuasion?
Chapter 16 (James Shanteau and Len Dalgleish) argues that “expert performance is not best understood and assessed in terms of general characteristics applying across all domains. Rather, it should be analyzed in the context of the specific tasks that experts in a particular domain are called on to accomplish” (p.269). They make some provocative claims, though with little empirical support that actually pertains to judges. Chapter 17 (Gregory Mitchell and Philip E. Tetlock) is a short but very intriguing chapter that highlights the importance of a judge’s cognitive style. Future research in this area looks promising. The book concludes with Chapter 18, where Daniel A. Farber and Suzanna Sherry formulate concrete suggestions to improve judging based upon their larger book study. While many suggestions are provocative and worthy of more debate (e.g., having a retired panel of judges review opinions), for some suggestions it was uncertain how the strengths outweighed the weaknesses.
Overall, this was a difficult book to review. The variation was, on a number of factors, quite large. For example, there was variation on the type of judge examined (trial vs. appellate vs. Supreme Court), the goals, motivation and choices of judges, the disciplinary perspectives, the approach (empirical versus theoretical versus a summary of data and findings). Moreover, while the book was divided into three sections, the range of topics covered within each section was quite varied. Ironically, all of this is good news for scholars who favor an eclectic approach to understanding the psychology of judging, but bad news for those scholars who favor a focused, regimented approach. Perhaps my biggest complaint as a reader, researcher, and consumer of this field of work, is that many of the chapters that I found insightful and helpful were too short and too speculative to drive judicial decision making research in a new direction, like Converse (1964) did for studying political sophistication of citizens. The silver lining is that the book should spark considerable debate about what are the most fruitful avenues for future research.
On the positive side, the book is truly interdisciplinary, with many chapters covering two or three disciplines (law, psychology, and political science). Much of the work shows a solid understanding and appreciation for research in other disciplines. However, at various points there is some “slippage” in communication, where some chapters show only a “stylized” understanding of a discipline, at best. To provide just one example, see Chapter 2 where Martin and Quinn are given as examples of the attitudinal model (p.28), rather than Segal and Spaeth or any of the other examples listed in Baum’s Chapter 1 (p.5-6). [*116] Martin and Quinn only provide ideal point measures of the justices, but that does not make them “attitudinalists.”
These critiques should not dampen your enthusiasm for the book, or the great contribution it has made to understanding what goes on inside the minds of judges. If anything, these critiques should serve as commentary that will (hopefully) help refocus a new surge in research on the psychology of judicial decision making.
This would be a welcome text to any undergraduate class addressing judicial politics, political psychology, decision making, or one that specifically focuses on the role of judges. Additionally, several of the chapters are “must reads” for graduate level seminars that emphasize judicial decision making or elite decision making. Many of the chapters would also fit well with interdisciplinary classes that bridge political science and psychology, or law and psychology. Those looking for a potentially interesting undergraduate classroom exercise on thresholds in our legal system should consider adapting Chapter 11’s (Dalgleish, Shanteau, and Park) measure of Blackstone’s Ratio as an exercise for their class.
Converse, Philip E. 1964. “The Nature of Belief Systems in Mass Publics.” In IDEOLOGY AND DISCONTENT, ed. David E. Apter. New York: Free Press.
© Copyright 2011 by the author, Justin Wedeking.