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Litigation often implicates multiple policy dimensions. In chapter , 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 about one issue can influence their legal reasoning with respect to another. Speci fically, I investigate whether “threshold” decisions are influenced by decision makers’ feelings about the “merits” of a dispute using intuitions from economics about separable and nonseparable preferences. Embracing Complexity in Studies of Legal Behavior Legal reasoning is complex reasoning. Although our judicial system requires that judges make a dichotomous choice between adverse litigants , this seemingly simple decision is often embedded in complex fact patterns where several issues are raised that each could serve as the basis for deciding a case one way or the other. Cases with multiple issues are common in our judicial system because litigation arises from complicated real-world situations and attorneys are trained to present all legal arguments favoring their client’s position. Attorneys routinely “argue in the alternative,” or emphasize different aspects of a case at different points in their argument, even if doing so seems inconsistent. The goal is to provide judges with as many legal grounds as possible to make a decision favorable to their client’s interests. Surprisingly, much of the social science research on decision making treats cases as if they were unidimensional. Scaling studies, for instance, assume that cases involve a single “dominant” issue and that outcomes can be explained or predicted by ordering the justices’ preferences along that dimension (Schubert ; Rohde and Spaeth ; Segal and FOUR REASONING ON THE THRESHOLD Testing the Separability of Preferences in Legal Decision Making Reasoning on the Threshold 113 Spaeth ). Critics of scaling techniques raise questions about studying judicial decision making in this manner. Tanenhaus () argues that, at best, scaling techniques lose information about alternative issues that judges may consider, and that, at worst, they can result in the mischaracterization of votes judges cast for other reasons. Mendelson () echoes this sentiment. Citing an instance where Justice Brandeis cast his vote on procedural rather than substantive grounds in a case that was included in Pritchett’s () analysis of First Amendment decisions, he wrote, “to count that vote as against free speech is to pretend that red is green” (). Treating cases as if they involve a single issue also ignores the possibility that there is a connection between issues in litigation. How decision makers view one legal issue may influence their reasoning with respect to another. This possibility is especially intriguing in the context of disputes involving “threshold” matters that often accompany substantive disputes between parties. A threshold issue is one the court must decide before it can consider a matter or invoke a particular mode of analysis. Some threshold issues, including jurisdiction and the family of issues relating to justiciability, concern the appropriateness of using judicial authority to resolve particular disputes. Other threshold questions involve preliminary matters that judges sometimes need to address to determine what rules will guide the analysis of substantive claims in litigation, as when a judge decides if a claim falls under a specific statutory scheme or requires a certain standard of review. Norms of decision making dictate that threshold issues must be decided first in litigation, before judges consider the “merits” or substance of a claim. Decisions on threshold issues are fundamentally important in determining outcomes. The preliminary decision about whether to apply a particular standard of review can substantially tip the scales in favor of one side or another. Moreover, decisions on threshold issues often determine whether litigants are entitled to the judicial resolution of disputes that they are seeking. If a court decides it does not have jurisdiction to hear a matter, the only thing for the court to do is dismiss the claim. Under such circumstances, the plaintiff will not get the relief she is seeking or even the opportunity to have her complaint heard in an adversarial forum. An assumption in traditional characterizations of judicial decision making is that judges’ reasoning across issues is independent. How a judge views a claim on the merits should not affect her reasoning on threshold issues involving jurisdiction or justiciability. Given the potential for decisions on threshold matters to shape outcomes, however, it is [3.136.18.48] Project MUSE (2024-04-26 12:02 GMT...

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