Do Formalist Judges Abide By Their Abstract Principles? A Two-Country Study in Adjudication

AbstractRecent literature in experimental philosophy has postulated the existence of the abstract/concrete paradox (ACP): the tendency to activate inconsistent intuitions (and generate inconsistent judgment) depending on whether a problem to be analyzed is framed in abstract terms or is described as a concrete case. One recent study supports the thesis that this effect influences judicial decision-making, including decision-making by professional judges, in areas such as interpretation of constitutional principles and application of clear-cut rules. Here, following the existing literature in legal theory, we argue that the susceptibility to such an effect might depend on whether decision-makers operate in a legal system characterized by the formalist or particularist approach to legal interpretation, with formalist systems being less susceptible to the effect. To test this hypothesis, we compare the results of experimental studies on ACP run on samples from two countries differing in legal culture: Poland and Brazil. The lack of significant differences between those results (also for professional legal decision-makers) suggests that ACP is a robust effect in the legal context.

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Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-Making

10.5817/cz.muni.p210-9972-2021-2 ◽

2021 ◽

Author(s):

Linda Tvrdíková

Keyword(s):

Decision Making ◽

Legal Theory ◽

Legal Reasoning ◽

Normative Theory ◽

Judicial Decision ◽

Judicial Decision Making ◽

Deliberative System ◽

Experiential System ◽

Analytical System

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

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Judging the Judiciary by the Numbers: Empirical Research on Judges

10.31228/osf.io/cr3vz ◽

2017 ◽

Cited By ~ 1

Author(s):

Jeffrey J. Rachlinski ◽

Andrew J. Wistrich

Keyword(s):

Decision Making ◽

Field Studies ◽

Demographic Characteristics ◽

Decision Makers ◽

Annual Review ◽

Judicial Decision ◽

Intuitive Reasoning ◽

Judicial Decision Making ◽

Wide Range ◽

The Ideal

13 Annual Review of Law and Social Science (2017)Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.

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Substance and Style

10.5771/9783845299426 ◽

2021 ◽

Author(s):

Christiane Gerstetter

Keyword(s):

Decision Making ◽

Dispute Settlement ◽

Legal Theory ◽

Empirical Studies ◽

World Trade Organisation ◽

Two Dimensions ◽

Judicial Decision ◽

Judicial Decision Making ◽

Wto Dispute Settlement ◽

Sources Of Authority

This book analyses two dimensions of judicial decision-making at the World Trade Organisation (WTO): the substantive outcome produced and the judicial style embraced, in cases concerning national measures taken for non-trade objectives. Drawing on legal theory, empirical studies of judicial decision-making and an analysis of all the major non-trade cases of the WTO, the book concludes that the dispute settlement decisions can be understood in light of the fact that the WTO dispute settlement bodies, like other courts, need to legitimise their decisions. Both the substance and style of WTO judicial decision-making contribute in this regard. On the substantive side, there is a relatively mixed outcome of cases, in terms of the interpretations chosen. The WTO Appellate Body’s interpretations neither consistently favour trade interests nor do they systematically enhance the regulatory space of WTO Members. The dispute settlement bodies also have a distinct judicial style that relies on discursive (rather than institutional) sources of authority and is predominantly formalist.

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Judicial Decision-Making and Deliberations

Standing Up for Justice ◽

10.1093/oso/9780198863434.003.0007 ◽

2021 ◽

pp. 143-163

Author(s):

Theodor Meron

Keyword(s):

Decision Making ◽

Decision Makers ◽

Public Confidence ◽

Judicial Decision ◽

Criminal Courts ◽

Judicial Decision Making ◽

Administration Of Justice ◽

Diverse Backgrounds ◽

Court Proceedings ◽

The Impact

This chapter assesses judicial decision-making and deliberations. The success of international criminal courts depends in no small part on the transparency of proceedings and reasoning of the judgements. Transparency is essential to building public confidence in the fair administration of justice. It also serves as an important safeguard against judicial arbitrariness and helps to ensure not only the fairness of the proceedings but the independence and impartiality of the Bench. This commitment to transparency in court proceedings is not absolute, however. It is limited by other factors, such as the importance of protecting witnesses and victims and the requirement that certain information be kept confidential. The chapter looks at the process of decision-making in the ICTY, ICTR, and the Mechanism. It draws attention to four specific issues: the uniqueness of the tribunals and the impact of their special status on decision-making; the diversity of decision-makers at the tribunals; the diverse backgrounds of the tribunals’ Judges and staff; and the process of decision-making.

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Modeling a satisficing judge

Rationality and Society ◽

10.1177/1043463118767406 ◽

2018 ◽

Vol 30 (2) ◽

pp. 220-246

Author(s):

Christoph Engel ◽

Werner Gueth

Keyword(s):

Decision Making ◽

Rational Choice Theory ◽

Choice Theory ◽

False Negative ◽

Decision Makers ◽

Judicial Decision ◽

Judicial Decision Making ◽

Knowing That ◽

Course Of Action ◽

Graphic Illustration

Decision-makers often mean to react to the behavior of others, knowing that they only imperfectly observe them. Rational choice theory posits that they should weigh false positive versus false negative choices, and assess possible outcomes and their probabilities, if necessary, attaching subjective values to them. We argue that this recommendation is not only utterly unrealistic but highly error prone. We contrast it with an approach inspired by satisficing, where the decision-maker contents herself with gauging her confidence in not making too big a mistake by adopting one course of action. We model the competing approaches, using judicial decision-making as a graphic illustration.

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