Explaining legal inconsistency

2021 ◽  
pp. 095162982110611
Author(s):  
JBrandon Duck-Mayr
Keyword(s):  
Decision Making ◽  
Empirical Research ◽  
Policy Making ◽  
Judicial Politics ◽  
Predictor Variables ◽  
Preference Aggregation ◽  
Judicial Decision ◽  
Standard Case ◽  
Judicial Decision Making ◽  
Do So

Judges, scholars, and commentators decry inconsistent areas of judicially created policy. This could hurt courts’ policy making efficacy, so why do judges allow it to happen? I show judicially-created policy can become inconsistent when judges explain rules in more abstract terms than they decide cases. To do so, I expand standard case-space models of judicial decision making to account for relationships between specific facts and broader doctrinal dimensions. This model of judicial decision making as a process of multi-step reasoning reveals that preference aggregation in such a context can lead to inconsistent collegial rules. I also outline a class of preference configurations on collegial courts (i.e., multi-member courts) in which this problem cannot arise. These results have implications for several areas of inquiry in judicial politics such as models of principal-agent relationships in judicial hierarchies and empirical research utilizing case facts as predictor variables.

scholarly journals Cognitive Bias Affecting Decision-Making in the Legal Process

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 806-830
Author(s):  
Adebola Olaborede ◽  
Lirieka Meintjes-van der Walt
Keyword(s):  
Decision Making ◽  
South African ◽  
Empirical Research ◽  
Cognitive Bias ◽  
Hindsight Bias ◽  
Judicial Decision ◽  
Legal Process ◽  
Judicial Decision Making ◽  
Egocentric Bias ◽  
Awareness Raising

Several empirical research studies have shown that cognitive bias can unconsciously distort inferences and interpretations made by judges either at the hearing, ruling or sentencing stage of a court trial and this may result in miscarriages of justice. This article examines how cognitive heuristics affects judicial decision-making with seven common manifestations of heuristics such as availability heuristics, confirmation bias, egocentric bias, anchoring, hindsight bias, framing and representativeness. This article contends that the different manifestations of heuristics pose a potentially serious risk to the quality and objectivity of any criminal case, despite the professional legal training and experience of judges and magistrates. Therefore, suggestions on how best to avoid and minimise the effects of cognitive heuristics, especially within South African courts are proffered. These include creating awareness raising, cross-examination and replacement.

Unifying the field of comparative judicial politics: towards a general theory of judicial behaviour

2010 ◽  
Vol 2 (2) ◽  
pp. 297-327 ◽  
Author(s):  
Arthur Dyevre
Keyword(s):  
Decision Making ◽  
Comparative Politics ◽  
Large Body ◽  
Judicial Politics ◽  
The United States ◽  
Considerable Change ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Wide Range ◽  
Convergence Trend

The field of judicial politics had long been neglected by political scientists outside the United States. But the past 20 years have witnessed considerable change. There is now a large body of scholarship on European courts and judges. In addition, judicial politics is on its way to become a sub-field of comparative politics in its own right. Examining the models used in the literature, this article suggests that this geographical convergence is also bringing about theoretical convergence. One manifestation of theoretical convergence is that models of judicial decision-making once deemed inapplicable in Europe are now used in studies of European courts too. But the convergence trend goes further. What we already know about judges and the contexts in which they operate suggests a way of reconciling the various attitudinal and institutionalist approaches used by scholars on both sides of the Atlantic within a general, unifying theory of judicial behaviour. The emerging theory provides a framework to assess the weight and interactions of a wide range of determinants of judicial decision-making across countries and legal systems.

Context Effects in Judicial Decision Making

2009 ◽  
Author(s):  
Jeffrey J. Rachlinski ◽  
Chris Guthrie ◽  
Andrew J. Wistrich
Keyword(s):  
Decision Making ◽  
Context Effects ◽  
Judicial Decision ◽  
Judicial Decision Making

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

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