Understanding Judicial Decision-Making - The Importance of Constra
Understanding Judicial Decision-Making - The Importance of Constra
Understanding Judicial Decision-Making - The Importance of Constra
2008
Douglass C. North
Recommended Citation
John N. Drobak and Douglass C. North, Understanding Judicial Decision-Making: The Importance of Constraints on Non-Rational
Deliberations, 26 Wash. U. J. L. & Poly 131 (2008),
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Understanding Judicial Decision-Making:
The Importance of Constraints on Non-Rational
Deliberations
John N. Drobak
Douglass C. North
131
2. See, e.g., AMERICAN LEGAL REALISM (William W. Fisher III, Morton J. Horowitz &
Thomas A. Reed eds., 1993); JOSEPH WILLIAM SINGER, LEGAL REALISM NOW 465 (1988)
(reviewing LAURA KALMAN, LEGAL REALISM AT YALE 19271960 (1986).
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7. See, e.g., LEE EPSTEIN & JACK KNIGHT, CHOICES JUDGES MADE (1998); JEFFREY A.
SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993);
Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 38485 (2007).
8. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 46566 (1897).
9. SINGER, supra note 2, at 470; Roscoe Pound, The Call for a Realist Jurisprudence, 44
HARV. L. REV. 697, 707 (1931). Legal realism was not only a jurisprudential response to the
classical legal theory of the late 19th century, which provided the underpinnings of the Lochner
era. SINGER supra note 2, at 47475. It was also a political response to the Lochner-era
holdings and a justification for the change in judicial response to economic regulation. Id. at
495. Many prominent legal realists served in the federal government during the New Deal and
helped shape important reforms. AMERICAN LEGAL REALISM, supra note 2, at xiv. As an
intellectual movement, legal realism laid the foundation for much of modern legal theory,
including empirical analysis, law and economics and critical legal studies. Id. at xiv; SINGER,
supra note 2, at 50305. Finally, from the content of casebooks, to the discussions of policy and
to the use of the social sciences, modern legal education bears the imprint of the legal realists.
AMERICAN LEGAL REALISM, supra note 2, at 27073; SINGER, supra note 2, at 47375.
10. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 9 (1921); Joseph C.
Hutcheson, Jr., The Judgment Intuitive: The Function of the Hunch in Judicial Decision, 14
CORNELL L.Q. 274, 279 (1929); John Dewey, Logical Method and Law, 10 CORNELL L.Q. 17,
24 (1924).
11. See RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY 3 (2001) (Legal realism had
failed to deliver on its promises, and by the end of World War II had petered out.); Roscoe
Pound, The Call for a Realist Jurisprudence, 44 HARV. L. REV. 697, 699 (1931) (cannot build a
science of law . . . merely on the basis of such criticism).
12. JEROME FRANK, COURTS ON TRIAL 248 (1949); JEROME FRANK, LAW AND THE
MODERN MIND 147 (1930).
13. RONALD DWORKIN, LAWS EMPIRE 36 (1986); SINGER, supra note 2, at 46970;
AMERICAN LEGAL REALISM, supra note 2, at xiv.
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14. F.A. HAYEK, THE SENSORY ORDER: AN INQUIRY INTO THE FOUNDATIONS OF
THEORETICAL PSYCHOLOGY (1952).
15. Id. at 143.
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The brain is composed of many simple processing units (neurons) linked in parallel by
a large mass of wiring and junctions (axions and synapses). The individual units
(neurons) are generally sensitive only to local informationeach listens to what its
neighbors are telling it. Yet, out of this mass of parallel connections, simple processors
and local interactions there emerges the amazing computational and problem-solving
powers of the human brain.
Id. at 54.
30. Id. at 6061.
31. Id. at 4547, 6063, 17992.
32. Satz & Ferejohn, supra note 27.
33. Arthur Denzau & Douglass C. North, Shared Mental Models: Ideologies and
Institutions, 47 KYKLOS 3 (1994).
34. Recent legal scholarship about judges decision-making processes has modified
rational choice theory models with behavioral assumptions. See, e.g., Chris Guthrie, Jeffrey L.
Rachlinski & Andrew Wistrich, Blinking on the Bench: How Judges Decide Cases, working
paper; Simon, supra note 1. Just as the behavioral literature that relies on heuristics and biases
uses a rational choice-based model, so does this recent scholarship on judicial decision-making.
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To a cognitive scientist like Andy Clark who views connectionism as the key to understanding
the mind, any type of model based on rational choice theory, even one modified by
experimental results, is inconsistent with what we know scientifically.
35. See, e.g., GERD GIGERENZER, GUT FEELINGS: THE INTELLIGENCE OF THE
UNCONSCIOUS (2007); MALCOLM GLADWELL, BLINK: THE POWER OF THINKING WITHOUT
THINKING (2005). In his book, Gerd Gigerenzer begins with a lesson about the use of a rational
cost-benefit analysis to choose a spouse. He quotes a letter Benjamin Franklin wrote to his
nephew giving advice about how to choose between two women:
If you doubt, set down all the Reasons, pro and con, in opposite Columns on a Sheet of
Paper, and when you have considered them two or three Days, perform an Operation
similar to that in some questions of Algebra; observe what Reasons or Motives in each
Column are equal in weight, one to one, one to two, two to three, or the like, and when
you have struck out from both Sides all the Equalities, you will see in which column
remains the Balance. . . . This kind of Moral Algebra I have often practiced in
important and dubious Concerns, and tho it cannot be mathematically exact, I have
found it extremely useful. By the way, if you do not learn it, I apprehend you will
never be married.
GIGERENZER, supra, at 5. Of course, few use a rational calculus in choosing a partner; many
arent even sure how they make that choice. See Bruno Frey & R. Eichenberger, Marriage
Paradoxes, in 8 RATIONALITY AND SOCIETY 187 (1996).
The tools that people employ when asked to make judgments about causality are
analogues to the representativeness heuristic described by Tversky and Kahneman
[citation omitted]. These writers have proposed that when making judgments about the
probability that an individual is, say, a librarian, one does so by comparing his
information about the individual with the contents of his stereotype concerning
librarians. If the information is representative of the contents of the stereotype
concerning librarians, then it is deemed probably that the individual is a librarian . . .
We are proposing that a similar sort of representativeness heuristic is employed in
assessing cause and effect relations in self-perception. Thus a particular stimulus will
be deemed a representative cause if the stimulus and response are linked via a rule, an
implicit theory, a presumed empirical convariation, or overlapping connotative
networks. . . .
When subjects were asked about their cognitive processes, therefore, they did
something that may have felt like introspection but which in fact may have been only a
simple judgment of the extent to which input was a representative or plausible cause of
output. It seems likely, in fact, that the subjects in the present studies, and ordinary
people in their daily lives, do not even attempt to interrogate the memories about their
cognitive processes when they are asked questions about them. Rather, they may resort
in the first instance to a pool of culturally supplied explanations for behavior of the
sort in question or, failing in that, begin a search through a network of connotative
relations until they find an explanation that may be adduced as psychologically
implying the behavior. Thus if we ask another person why he enjoyed a particular
party and he responds with I liked the people at the party, we may be extremely
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dubious as to whether he has reached this conclusion as a result of anything that might
be called introspection. We are justified in suspecting that he has instead asked himself
Why do people enjoy parties? and has come up with the altogether plausible
hypothesis that in general people will like parties if they like the people at the parties.
Id. at 24950.
39. Posner, supra note 1, at 856. It would not be surprising if intuition and simple decision
rules operated in the judicial environment described by Posner:
The judges essential activity is the making of a large number of decisions in rapid
succession, with very little feedback concerning the correctness or consequences of the
decision. . . . He does not have the luxury of withholding decision until persuaded by
objectively convincing arguments that the decision will be correct, and he no more
wants to wallow in uncertainty and regrets than a law student wants to retake an exam
in his mind after having taken it in the examination room.
Id. at 873. Plus, the politics of the selection process [guarantees] that many judges will be
intellectually mediocre. Id. at 874.
For recognition of intuitive factors, see Lochner v. New York, 198 U.S. 45, 76 (1905)
(Holmes, J., dissenting); AMERICAN LEGAL REALISM, supra note 2, at 165 (1993); Frederick
Schauer, Prediction and Particularity, 78 B.U.L. REV. 773, 786 (1998); Simon, supra note 5, at
412, 21; Singer, supra note 2, at 47172, 54243 (1988); Joseph C. Hutcheson, Jr., The
Judgment Intuitive: The Function of the Hunch in Judicial Decisions, 14 CORNELL L.Q. 274
Posner has also called it naive to believe we can infer the nature
of the judicial process from the rhetoric of legal opinions.40
Even though we lack the knowledge to explain accurately how
judges make decisions, we do know that judicial systems do their job
in scores of countries around the world.41 Judges reach decisions that
uphold rights, create predictability and certainty, and support the
workings of successful social and economic systems. While we wait
for neuro- and cognitive scientists to give us better tools to
understand the judicial process, we can continue to follow a
prescription Roscoe Pound made in 1931 in response to the Legal
Realists. Pound said that legal scholars should recognize
. . . the existence of an alogical, unrational, subjective element
in judicial action, and attempt by study of concrete instances of
its operation to reach valid general conclusions as to the kinds
of cases in which it operates most frequently, and where it
(1929); Oliver Wendell Holmes, The Path of the Law, 10 HARV. 457, [167] (1897); Dewey,
supra note 10, at 2122 (1924).
40. Posner, supra note 1, at 865. For a concern about legal opinions not describing the
decision-making process, see AMERICAN LEGAL REALISM, supra note 2; Schauer, supra note
39, at 78384; Simon, supra note 5, at 3438; Singer, supra note 2, at 47172; and Dewey,
supra note 10, at 24.
41. Proposals to change the manner in which judges deliberate are premature, given the
primitive understanding of human decision-making. To give two examples of this type of
scholarship, Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich believe that deliberation
will lead to better decisions than intuition and that intuition can be over-ridden by increased
deliberation. To achieve this, they propose that dockets be lightened to allow more time for
deliberation, that judges be required to write opinions in more instances, and that lawsuits be
bifurcated as a way to limit judges exposure to stimuli that are likely to trigger intuitive
thinking. Chris Guthrie, Jeffrey L. Rachlinski, & Andrew Wistrich, Blinking on the Bench:
How Judges Decide Cases, 93 CORNELL L. REV. 1, 3537 (2007). If simple rules are the innate
basis for decision-making, more time for deliberation and avoiding stimuli may have no effect
at all. Similarly, if opinions are just after-the-fact rationalizations for the decisions, making
better opinions will not make better decisions. Dan Simon applies a Gestalt-based
psychological theory that posits that people seek coherence in their cognitive processes. He
suggests that judges be encouraged to resist the automatic process of coming to conclusions for
the sake of consistency and to be more open to ambiguity and complexity. Simon, supra note 5,
at 13941 (1998). See also Simon, supra note 1. Even if the model accurately depicts decision-
making, which is far from certain, it might be impossible to achieve anything like this because
it requires a judge to willingly change mental processes that are unknown to the judge. There is
also a danger that extreme proposals discredit the enterprise of studying judicial decision-
making. Jerome Franks call for the Freudian analysis of all judges must have been laughable to
many, to the discredit of the entire Legal Realism movement.
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42. Roscoe Pound, The Call for a Realistic Jurisprudence, 44 HARV. L. REV. 697, 710
(1931).
43. DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC
PERFORMANCE 3 (1990).
44. Satz & Ferejohn, supra note 27, at 72.
45. Andy Clark, Economic Reason: The Interplay of Individual Learning and External
Structure, in FRONTIERS OF THE NEW INSTITUTIONAL ECONOMICS 269, 272 (John N. Drobak &
John V.C. Nye eds., 1997).
46. See, e.g., JEAN TIROLE, THE THEORY OF INDUSTRIAL ORGANIZATION 46 (1990).
47. Clark, supra note 45, at 27275. Denzau and North provide a vivid example of the
effect of constraints in a comparison of trading by constrained zero intelligence traders
(computer modeled agents who could not theorize, recall events or try to maximize returns)
with human traders. Unconstrained traders did very poorly in a double auction game until
constrained by a decision rule that allowed bids only when they would not yield an immediate
loss. This decision rule increased the traders efficiency by 75%. When the computer traders
were replaced by humans, efficiency increased only 1% more. Denzau & North, supra note 33,
at 5. See Clark, supra note 45, at 27375.
48. See AMERICAN LEGAL REALISM, supra note 2, at xiv; Richard Danzig, A Comment on
the Jurisprudence of the Uniform Commercial Code, 27 STAN. L. REV. 621 (1975); SINGER,
supra note 2, at 471; Zipporah Batshaw Wiseman, The Limits of Vision: Karl Llewellyn and the
Merchant Rules, 100 HARV. L. REV. 465 (1987).
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49. See John Ferejohn & Larry Kramer, Judicial Independence in a Democracy:
Institutionalizing Judicial Restraint, in NORMS AND THE LAW 161, 16778 (John N. Drobak
ed., 2006).
50. For example, after the Ninth Circuit Court of Appeals held that the Pledge of
Allegiance unconstitutionally violated the first amendment because it contains the words under
God, successive Congresses attempted to prevent the federal courts from hearing challenges to
the Pledge of Allegiance by requiring those lawsuits to be heard in state courts.
51. Harry T. Edwards, Judicial Norms: A Judges Perspective, in NORMS AND THE LAW
230, 23738 (John N. Drobak ed., 2006). Harry T. Edwards, The Effects of Collegiality on
Judicial Decision Making, 151 U. PA. L. REV. 1639 (2003).
52. Lawrence Friedman, Judging the Judges, in NORMS AND THE LAW, supra note 49, at
139, 14955.
53. Andy Clark told one of the authors that law professors are much more efficient and
quicker at reading court opinions than law students because professors have been reinforcing a
particular brain function for years, often decades. This is similar to the muscle memory that is
so important to the training of athletes and musicians.
54. EDWIN HUTCHINS, COGNITION IN THE WILD xiii (1995). See DOUGLASS C. NORTH,
UNDERSTANDING THE PROCESS OF ECONOMIC CHANGE 3334 (2005).
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V. CONCLUSION
and for probably a long time to come, it is sensible for lawyers and
judges to disregard the unknown and to continue to participate in
what appears to be a rational, doctrinal legal process.
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