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Law, Politics, and Perception

How Policy Preferences Influence Legal Reasoning

Eileen Braman

Publication Year: 2009

Based on an innovative combination of psychological experimentation and studies of individual cases, the author advances a new theory about the ways in which policy preferences influence judicial decision-making. She demonstrates that "motivated reasoning" does indeed occur, but its scope is limited by rules of legal analysis.

Published by: University of Virginia Press

Series: Constitutionalism and Democracy


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Title Page

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Copyright Page

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Table of Contents

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pp. ix-x

List of Figures and Tables

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pp. xi-xiii

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pp. xv-xvii

In this book, I use theory and methods from psychology to explore legal decision making. I am far from the first researcher do this; indeed, chapter 1 details the strong influence of behavioral psychology in social science research on judicial decision making. What makes this book unique is its focus on cognition, or the mental processes that decision makers ...

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pp. xix-xxi

There are many people to whom I am indebted for their help and support in researching and writing this book. Particular thanks go to three academic mentors I have harassed and exploited over the years. I thank Tom Nelson, from whom I have learned much as a teacher and collaborator, for the lessons in psychology, research design, and early ...

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pp. 1-10

In the spring of 2004, citizens and legal scholars were watching the Supreme Court for a decision on whether the Pledge of Allegiance, including its phrase “one nation under God,” could be recited in the nation’s public schools. The case in which the issue arose, Elk Grove Unified School District v. Newdow,1 had all the stuff of great drama. A young ...

Part 1: The Case for Investigating Motivated Reasoning in Legal Decision Making

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Chapter One: Outlining a Theory of Motivated Cognition in Legal Decision Making

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pp. 13-40

Judges play a special role in our constitutional system. Federal judges, and many state judges, are not elected but appointed by other political actors. Judges do not have the same democratic authority as elected officials to act in accordance with their personal preferences. Neutrality is vital if judges’ decisions are to be accepted and their distributive ...

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Chapter Two: A Motivated Reasoning Approach to the Commerce Clause Interpretation of the Rehnquist Court

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pp. 41-79

One might ask what the practical utility of a motivated reasoning approach is for understanding case outcomes. There are instances like Newdow, the Pledge of Allegiance case mentioned in the introduction of this book, where an argument can be made that judicial attitudes and motives influence legal reasoning processes in concrete ways. In Newdow, the ...

Part 2: Testing the Mechanisms

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Chapter Three: Seeing What They Want? Analogical Perception in Discrimination Disputes

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pp. 108-136

The analysis of the decision making of justices on the Rehnquist Court certainly implies that differential perception of precedent by judges with different policy views could serve as an avenue of motivated reasoning in legal decision making. Theory and findings from cognitive psychology illuminate how analogical reasoning may enable attitudinal choices on the ...

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Chapter Four: Reasoning on the Threshold: Testing the Separability of Preferences in Legal Decision Making

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pp. 112-140

Litigation often implicates multiple policy dimensions. In chapter 2, we looked at Commerce Clause cases touching on federalism and other contested policy issues. But Commerce Clause cases are not the only ones that raise the possibility of interrelated preferences in legal decision making. In this chapter, I test the idea that how decision makers feel ...

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Chapter Five: Justifying Outcomes? How Legal Decision Makers Explain Threshold Decisions

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pp. 141-159

In this chapter, I analyze the open- ended responses that law student participants gave to justify their decisions in the experiment testing the separability of preferences. Part of my purpose is to further demonstrate the utility of using experimental methods for studying legal reasoning processes. Although it is not a method commonly used by behavioral ...

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Chapter Six: Motivated Reasoning as an Empirical Framework: Finding Our Way Back to Context

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pp. 160-170

In the part 1 of this book, I argued that existing models of attitudinal influence in legal decision making provide incomplete and unsatisfactory accounts of legal behavior that do not comport with the subjective experience of decision makers. In part 2, I tested two mechanisms of influence taken from intuitions about how legal experts consider evidence ...


A-1: Materials Related to Experiments on Analogical Perception

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pp. 173-180

A-2: Supplemental Regression Analyses for Experiments on Analogical Perception

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pp. 181-188

B: Materials Relating to Experiment Testing the Separability of Preferences

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pp. 189-201


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pp. 203-211


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pp. 213-221


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pp. 223-231

E-ISBN-13: 9780813928371
E-ISBN-10: 0813928370
Print-ISBN-13: 9780813928296
Print-ISBN-10: 081392829X

Page Count: 256
Illustrations: 9 figures, 25 tables
Publication Year: 2009

Series Title: Constitutionalism and Democracy
Series Editor Byline: Gregg Ivers and Kevin McGuire See more Books in this Series

OCLC Number: 753977975
MUSE Marc Record: Download for Law, Politics, and Perception

Research Areas


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Subject Headings

  • Political questions and judicial power -- United States.
  • Judicial process -- United States.
  • Law -- United States -- Methodology.
  • Law -- United States -- Psychological aspects.
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