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

Preface

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  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 experience as they think about case facts and legal authority. I employ the concept of motivated reasoning to explain how decision makers reach conclusions consistent with their preferences while they are using objective decision criteria embodied in accepted norms of legal reasoning. In developing my theory (and corralling evidence to support it), I draw from literature in three distinct fields: law, political science, and psychology. I have tried to keep concepts and language as accessible as possible, and it is my sincere hope that the book will appeal to students and researchers across disciplines. In fact, I hope that social scientists will pay special attention to chapters  and , which discuss legal socialization and doctrine, and that legal types will delve deeply into chapters , , , and , which describe the experimental logic, design, and results of my hypothesis testing. I realize this may move some readers out of their comfort zones, but I have tried to make the task as painless as possible , and I believe the payoff will be substantial in terms of encouraging creative research that takes into account the contributions and concerns of various perspectives relevant for understanding legal decision making. A Note about Terminology Even within disciplines, terminology can be confusing. Describing extralegal forces at work in legal decision making is no exception; so at the outset I’d like to make some simple distinctions. “Ideology,” “attitudes,” PREFACE xvi Preface and “preferences” are all words that have been used to describe personal views that judges have about cases they are called on to decide. The three terms are related and have, on occasion, been used interchangeably in the literature on judicial decision making. It is important to understand, however, that they refer to distinct concepts. I discuss each term here as it is used in the context of research on judicial behavior. In the judicial literature, the term “ideology” refers to political ideology , a coherent set of beliefs that individual judges hold about the proper role government in society. Ideology is usually operationalized in dichotomous terms; both judicial actors and case outcomes are categorized as liberal or conservative. Very generally, liberal judges favor more government regulation of the economy and less state interference in the lives of everyday citizens in civil liberties matters. Conservative judges have the opposite views. Because ideology involves a very general orientation toward the role of government, it covers a wide range of issues that judges may encounter in their decision making. “Attitudes” are more specific than ideology. They describe positive or negative feelings judges have toward a particular target (McGuire ). Attitudes may be influenced by ideology (for instance, conservatives like tax cuts), but the relationship is not perfect. Judges can have particular attitudes that are inconsistent with their ideology. Moreover, attitudes can be shaped by factors other than ideology such as personal experience with a particular issue or class of litigant. “Preferences” are outcomes that judges favor. Like attitudes, they are more specific then ideology; the term “preference” implies that judges are choosing from a set of alternatives in a particular choice domain (Velleman ). Individual judges may have preferences with regard to a given policy (such as when someone prefers tax cuts to tax hikes), or dispute (as when a judge prefers that the plaintiff prevail instead of the defendant). An underlying assumption in judicial research is that judges prefer outcomes consistent with their attitudes and/or ideology. Ideology is often used to approximate judges’ preferences in cases they are called on to decide. Sometimes researchers have more specific indicators of judges’ attitudinal preferences with regard to cases involving particular issues. In this study, I use responses to specific policy questions to measure decision makers’ attitudes about issues in cases they are considering. But judicial decision-making research is often done “at a distance,” making ideology our most appropriate proxy in many cases. Preface xvii Having clarified my use of these terms, I proceed to my inquiry of how political preferences can influence important aspects of legal reasoning . I hope readers who are interested in this...