Law Commons^™

Queer Eyes Don't Sympathize: An Empirical Investigation Of Lgb Identity And Judicial Decision Making, Jared Ham, Chan Tov Mcnarrara

Cornell Law Review

Do Lesbian, gay, and bisexual judicial decision makers differ from their heterosexual counterparts? Over the past decade much has been said about queer judges, with many suggesting that they cannot be impartial in cases involving LGBTQ+ parties or religious interests. To investigate these questions, this Note presents the findings of the first empirical analysis of the decision making of lesbian, gay, and bisexual judges in the United States.

Examining employment-discrimination litigation, this Note finds no evidence that a judge's sexual orientation affects the outcome of the cases they decide on the merits. Specifically, looking to one year of data from …

Doctrinal Reasoning As A Disruptive Practice, Jessie Allen

Articles

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer

Laura Moyer

This article draws from critical mass studies of gender in other political institutions to inform an application to the US Courts of Appeals. The results demonstrate the utility of considering court-level aspects of diversity. As mixed-sex panels become more common within a circuit, both male and female judges increasingly support plaintiffs in civil rights claims, though the magnitude of the effect is larger for women. The presence of a female chief judge is also positively associated with pro-plaintiff decisions by men and women in sex discrimination cases.

What If?: Human Experience And Supreme Court Decision Making On Criminal Justice, Christopher E. Smith

Marquette Law Review

None

An Empirical Research Agenda For The Forensic Sciences, Jonathan J. Koehler, John B. Meixner Jr.

Scholarly Works

After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of fourteen empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we …

Constitutional Rhetoric, Jamal Greene

Faculty Scholarship

For close to a century, students of judicial behavior have suggested that what judges think is not altogether the same as what they say. Within the legal academy, this claim has long been associated with legal realists who have argued that the formal legal rules explicated in judicial opinions are at least partly epiphenomenal, masking the influence that the personal characteristics and dispositions of adjudicators exercise over legal outcomes. Political scientists have argued, variously, that such outcomes are determined by ideology, social background, or political, professional, or other institutional constraints.

The notion that at least some “extralegal” factors influence judicial …

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Andrew P. Morriss

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …

Can Judges Make Reliable Numeric Judgments? Distorted Damages And Skewed Sentences, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

In a series of studies involving over six hundred trial judges in three countries, we demonstrate that trial judges' civil damage awards and criminal sentences are subject to influences that make them erratic. We found that the presence of misleading numeric reference points (or "anchors") affected judges' decisions in a series of hypothetical cases. Specifically, judges imposed shorter sentences when assigning sentences in months rather than in years; awarded higher amounts of compensatory damages when informed of a cap on damage awards; imposed different sentences depending upon the sequence in which criminal cases were presented to them; and were influenced …

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory Sisk, Michael Heise, Andrew Morriss

Michael Heise

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Michael Heise

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Politics And The Judiciary: The Influence Of Judicial Background On Case Outcomes, Orley Ashenfelter, Theodore Eisenberg, Stewart J. Schwab

Stewart J Schwab

It is widely believed that the background and worldview of judges influence their decisions. This article uses the fact that judges are assigned their cases randomly to assess the effect of judicial background on the outcome of cases from the day-to-day docket in three federal trial courts. Unlike the political science findings of ideological influence in published opinions, we find little evidence that judges differ in their decisions with respect to the mass of case outcomes. Characteristics of the judges or the political party of the judge's appointing president are not significant predictors of judicial decisions.

Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel

W. Bradley Wendel

No abstract provided.

Empirical Doctrine, Jessie Allen

Articles

We can observe and measure how legal decision makers use formal legal authorities, but there is no way to empirically test the determinative capacity of legal doctrine itself. Yet, discussions of empirical studies of judicial behavior sometimes conflate judges’ attention to legal rules with legal rules determining outcomes. Doctrinal determinacy is not the same thing as legal predictability. The extent to which legal outcomes are predictable in given contexts is surely testable empirically. But the idea that doctrine’s capacity to produce or limit those outcomes can be measured empirically is fundamentally misguided. The problem is that to measure doctrinal determinacy, …

Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Jeffrey J. Rachlinski

In this paper, we extend our prior work on generalist judges to explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges. In one prior study of bankruptcy judges, Ted Eisenberg reported evidence suggesting that bankruptcy judges, like generalist judges, are susceptible to the "self-serving" or "egocentric" bias when making judgments. Here, we report evidence showing that bankruptcy judges are vulnerable to anchoring and framing effects, but appear largely unaffected by the omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality salience."' Because …

Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Jeffrey J. Rachlinski

Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to …

Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to …

Rethinking Critical Mass In The Federal Appellate Courts., Laura Moyer

Faculty Scholarship

This article draws from critical mass studies of gender in other political institutions to inform an application to the US Courts of Appeals. The results demonstrate the utility of considering court-level aspects of diversity. As mixed-sex panels become more common within a circuit, both male and female judges increasingly support plaintiffs in civil rights claims, though the magnitude of the effect is larger for women. The presence of a female chief judge is also positively associated with pro-plaintiff decisions by men and women in sex discrimination cases.

“Testing” Fuller’S Forms And Limits: A Brief Response To Oldfather, Bockhorst, & Dimmer, Scott R. Bauries

Law Faculty Scholarly Articles

In Triangulating Judicial Responsiveness, Chad Oldfather, Joseph Bockhorst, and Brian Dimmer give us a methodology by which we can empirically assess (among other things) the effects that argumentation has on judicial decision making. Unlike the vast majority of empirical legal scholarship of judging, the authors do not use this methodology in their current study to compare “legalist” explanations of judging with “realist” explanations of judging. Rather, the study operates almost entirely within the “legalist” frame. This is a welcome development for many reasons, one on which this Response focuses—the authors’ methodology illustrates a way of scientifically “testing” descriptive legal …

Judges' Gender And Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions, Pat K. Chew

Articles

This article surveys the emerging empirical research on the relationship between the judges' gender and the results in employment discrimination cases.

The Effects Of Different Forms Of Risk Communication On Judicial Decision Making, Richard E. Redding, John Dolores

Richard E. Redding

When mental health experts provide information to courts on the results of a risk assessment conducted on a defendant or patient, they engage in “risk communication.” We examined the effects of four different forms of risk communication (prediction, categorical, risk factors/risk management, or hybrid) on judges’ (n = 253) perceptions of risk assessment evidence introduced in a case where they must decide whether to release from the hospital an individual found not guilty by reason of insanity. Judges who received information in the risk factors/risk management form were more likely to release the patient than were those who received prediction …

Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Straddling The Fence Between Truth And Pretense: The Role Of Law And Preference In Judicial Decision Making And The Future Of Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …

Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

In this paper, we extend our prior work on generalist judges to explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges. In one prior study of bankruptcy judges, Ted Eisenberg reported evidence suggesting that bankruptcy judges, like generalist judges, are susceptible to the "self-serving" or "egocentric" bias when making judgments. Here, we report evidence showing that bankruptcy judges are vulnerable to anchoring and framing effects, but appear largely unaffected by the omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality salience."'

Because …

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Cornell Law Faculty Publications

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Reenchanting The Law: The Religious Dimension Of Judicial Decision Making, Mark C. Modak-Truran

Journal Articles

Without a religious justification in the law, judges cannot fully justify their decisions in hard cases from within the law. The law must be indeterminate because the Establishment Clause proscribes this full justification. This does not mean that the Establishment Clause prohibits judges from fully justifying their decisions during their deliberations about hard cases. It only prohibits judges from including that full justification in their written opinions. Deliberation and explanation are separate stages of judicial decision making that should be kept distinct. Given this distinction, my thesis is that judges should fully justify their decisions in hard cases by relying …

A Pragmatic Justification Of The Judicial Hunch, Mark C. Modak-Truran

Journal Articles

Judges currently face a daunting task. On the one hand, they are increasingly aware of the indeterminacy of the law, while on the other hand, they face an explosion of fact. Judges are floating on shaky legal timbers in a sea of documents, deposition transcripts, affidavits, oral courtroom testimony, and expert opinions. The explosion of fact alone presents monumental problems for deciding cases without unduly simplifying or reducing this factual complexity. For example, both federal and state judges are implementing case management systems to deal with their crushing case loads and the increasing complexity of their cases. In addition, there …

Corrective Justice And The Revival Of Judicial Virtue, Mark C. Modak-Truran

Journal Articles

Judges must be wise. Sound judicial reasoning requires moral virtue. These sentiments about judging have been lost. They apparently belong to a bygone era. While many advocate self-restraint or prudence as judicial virtues, moral virtue has been conspicuously absent from the list. Except for avoiding obvious vices such as bribery, favoritism, prejudice, sloth, and arbitrariness, conventional wisdom maintains that being a good judge does not require being a good person. Even theorists sympathetic to a relationship between law and morality balk at making moral virtue a prerequisite of judicial decision making. Rather, many contend that judicial decision making is a …

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Cornell Law Faculty Publications

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …

The Religious Dimension Of Judicial Decision Making And The Defacto Disestablishment, Mark C. Modak-Truran

Journal Articles

Despite the de facto disestablishment of religion, I will try to illustrate the centrality of religion as a resource for understanding judicial decision making. The central question for this inquiry is: What, if any, is the role of religious beliefs in judicial decision making?