Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning

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

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 scholars interested in legal decision making, the control afforded by such methods can be extremely useful for answering interesting and important questions about differential reasoning processes. In essence, analyzing judgments in this way may shed light on how legal decision makers “get to where they want to go” in terms of drawing legal conclusions consistent with their policy preferences. At the outset, I want to make it clear that this aspect of the analysis is exploratory and inductive. Rather than testing specific hypotheses, as I did in the previous two chapters, I explore several broad questions about participants’ reasoning processes in this relatively “closed system” where they were responding to identical legal authority. Very generally, the questions guiding the analysis of open-ended responses are as follows: . Did participants who reached alternative conclusions on the standing issue cite systematically different arguments in justifying their decisions? If so, what arguments did they cite from those available in the brief? . Were some legal arguments more (or less) persuasive under the different levels of constraint created by the circuit manipulation? If so, what were they? Under what conditions did particular arguments have more or less impact? . Did participants with different policy views cite systematically different arguments? If so, what arguments appealed to decision makers with alternative views? FIVE JUSTIFYING OUTCOMES? How Legal Decision Makers Explain Threshold Decisions 142 Testing the Mechanisms . Can the analysis of open-ended justifications shed light on the speci fic nature of influence for attitudinal variables observed to influence the standing judgments in chapter ? For instance, can they reveal whether the influence of free-speech attitudes was top-down or bottom-up? Can we tell from justifications whether participants were aware of the influence of abortion attitudes on their decisions? In attempting to answer these questions, I present the incidence of selected facts and arguments mentioned by law student participants as well as statistics indicating what arguments were more likely to be cited by participants holding for particular parties under alternative jurisdictional conditions. I also present correlations between characteristics of decision makers and the invocation of particular arguments, being careful to address methodological issues that students of decision making must consider in analyzing such data. The analyses yield some interesting results that I hope will generate further hypotheses about the specific nature of attitudinal influence in legal reasoning processes. Not all of the questions I ask above are definitively answered, but the analysis of openended responses does provide at least some leverage on most of them, contributing to my general argument that there is much to gain by including experimental methods in a pluralistic approach to understanding legal decision making. Because the basics of the experimental design were outlined in the previous chapter, I do not repeat them here. I do, however, go into a more detail in discussing the content of the legal arguments in the Mock Brief to clarify the coding scheme and make clear the alternative arguments from which participants had to draw in justifying their judgments. I also discuss aspects of the experiment that are particularly relevant to the analyses presented in this chapter. Content of the Mock Brief The facts and legal arguments in the Summary Brief were based on decisions from federal cases where the issue of spousal standing has been litigated. Since the defendants filed the motion, their arguments appeared first in the brief. Specifically, defendants relied on the specific language of the ordinance and the “weight of authority” in federal cases holding that injuries suffered by spousal plaintiffs were “too indirect” to confer standing. Defendants’ brief also included two policy arguments having to do with municipal governments’ interest in enacting restric- Justifying Outcomes? 143 tive ordinances like the one at issue and the potential of opening a door to much more litigation by recognizing the injury of spousal plaintiffs (often referred to as a “slippery slope” argument). The plaintiff’s main arguments as to the directness of the injury relied on the “chilling” of her...