PATH OF LAW
relegating logic to its true position as an instrument.
-Oliver Holmes Jr. rejected the idea that law could be studied as a science.
He also emphatically dismissed Langdell’s belief that legal systems obey
ruled of logic.
-The law is a prediction of what the courts would do in a particular situation.
He proposed a “bad man” theory of justice:
“that a bad man has as much reason as a good one for wishing to avoid an
encounter with the public force, and therefore you can see the practical
importance of the distinction between morality and law”. In other words, a
bad man will want to know only what the material consequences of his
conduct will be; he will not be motivated by morality or conscience.-
Lawyer’s job is to understand limits, point out and dispel a confusion
between morality and law, which sometimes rises to the height of conscious
theory, and more often and indeed constantly is making trouble in detail
without reaching the point of consciousness.
-Holme’s jurisprudence led to the conclusion that judges make decisions first
and then come up with reasons to explain them. His approach, which has been
characterized as cynical, touched a nerve with the succeeding generations of
legal scholars.
MECHANICAL JURISPRUDENCE
-argued that American common law or judge-made law had become sterile,
unable to adapt to changing social and economic conditions; it had become a
closed system of many archaic rules that judges and lawyers deducted from
general “conceptions” an applied mechanically to the actual situation before
them
-wants judges to reexamine whether the original reasons for a rule still exist,
and reformulate them when necessary to “respond” to the vital needs of
present-day life”—that is, they must make “rules fit cases instead of making
cases fit rules.” If it did not adapt, case law would be disregarded and
suspended by legislation.
-What is needed is pragmatic jurisprudence
-the sociological movement in jurisprudence is a movement for
pragmatism as a philosophy of law; for the adjustment of principles and
doctrines to the human conditions they are to govern rather than to assumed
first principles; for putting the human factor in the central place and
Scientific Law
-the demand for full justice, that is for solutions that go to the root of
controversies
-the demand for equal justice, that is a like adjustment under like conditions
-demand for exact justice, that is for a justice whose operations, within
reasonable limits, may be predicted in advance of action
-conformity to reason uniformity, and certainty
-its end is administration of justice
Two dangers have to be guarded against in a scientific legal system:
(1) in the direction of the effect of its scientific and artificial character upon
the public
-law must not be too scientific for the people to appreciate its
workings
-it has to adjust to everyday relations
-Ex: Common law of England
(2) in the direction of its effect upon the courts and the legal profession
-legal systems have their periods in which science degenerates, in
which system decays into technicality, in which a scientific
jurisprudence becomes a mechanical jurisprudence
-Ex: Roman law
*Mechanical Jurisprudence is scientific as what those who administer it
suggests. But it is actually not. We do not hold something as scientific just
because it is rigid.
-The liberalizing of English law through the law merchant was brought about
by substituting business practice for juridical conceptions. The development
of the common law in America was a period of growth because the doctrine
that the common law was received only so far as applicable led the courts, in
adapting English case-law to American conditions, to study the conditions of
application as well as the conceptions and their logical consequences.
Whenever such a period has come to an end, when its work has been done
and its legal theories have come to maturity, the jurisprudence of conceptions
tend to decay. Principles cease to have importance.
 -what sociologists rightly protest.
-the flaw in American legislation is that it presumes that it is enough for the
State to command; its legislation has not been a product of preliminary study
of the conditions to which it was to apply. It has not responded accurately to
social needs.
-The nadir or mechanical, jurisprudence is reached when conceptions are
used, not as premises from which to reason, but as ultimate solutions.
UNDERSTANDING JUDICIAL DECISION-MAKING: THE
IMPORTANCE OF CONSTRAINTS ON NON-RATIONAL
DELIBERATIONS
-In Social Science, Law and economics, there is the assumption that people
act rationally, in a logical unemotional fashion.
-there is a growing body of scholarship that exhibits willingness to modify
the rationality assumption by using cognitive science, behavioral psychology,
and experimental economics.
-The judge is a rational actor who reasons logically from facts, previous
decisions, statutes, and constitutions to reach a decision
The Problem of Discretion
-Importance of judicial discretion has been well-known since judges began
resolving disputes.
Roscoe Pound: the court would function as “a sort of judicial slot machine.
The necessary machinery had been provided in advance by legislation or by
received legal principles and one but to put in the facts above and take out the
decision below.
-but this is impossible
-The world is too complex and dynamic to enable even a comprehensive
statutory regime to provide answers for all the problems that are sure to arise.
Doctrinal v. Non-doctrinal
-Most people accept the rational “doctrinal” model of judicial decision-
making because this approach is considered more comforting due to the fact
that it shows law to be impersonal and based on rational action.
Ex: laws/statues; case law; methodology
-“Non-doctrinal factors” that make up discretion are invisible part of judicial
decision-making that cannot be explained with any precision given our
primitive understanding of how the mind works.
Ex: School; beliefs; religion; customs; tradition; upbringing; political views
-one branch of Legal Realism advocated more attention to psychological
factors.
Jerome Frank: asserted that judges should undergo Freudian
psychoanalysis to better understand their own prejudices and, as a
result, become better judges.
-Legal Realists made a valuable contribution to jurisprudence by
their emphasis on the importance of the hidden factors (which where
discretion belongs to) in judicial decision-making.
Importance of Judicial Belief Systems
-Individuals have different systems of beliefs that create different filters
through which they perceive the world and its problems and also create
different theories to explain the world and devise solutions for the problems.
And it is the differing belief system that make for judges with differing
judicial philosophies and for judges to be labeled either liberal or
conservative or either activist or restrained.
-Belief system is part of the hidden aspects of judging.
-Lack of understanding of belief system is part of the broader problem of our
inability to explain human decision making in general.
Theories of Human Decision-Making
Rational Choice Theory- most scholars who investigate how judges make
decisions stay true to the rational choice model, believing that deliberation
and decision-making are the central part of the process.
Simple Decision-Making Rule- our brains have developed this. Intuitions
based on only one good reason tend to be accurate when one has to predict
the future, when future is difficult to foresee, and when one has only limited
information. Moral judgments are based on this rule.
-The theories that posit simple decision rules and intuition are not based on
rational choice theory and seem more consistent with the connectionist theory
of the mind.
Constraints to Induce “Rational” Decision-Making
Formal constraints
 These kinds of constraints can channel an individual’s actions to -concepts that organize and interpret information and in which we group
make it appear that the person is acting rationally when she is not. The similar objects, events, ideas, and people
structure in which the individual is embedded channel conduct, rather than
her own cognitive processes driving her action. Heuristics
-Laws -mental shortcuts
-Norms
-Market forces Errors in forming judgements and making decisions result from:
1. Framing issues
2. Cognitive illusions
DECONSTRUCT AND SUPERSTRUCT: EXAMINING BIAS 3. Use and misuse of heuristics
ACROSS THE LEGAL SYSTEM (DEYTO) 4. Forms of Bias (Stereotyping and Prejudice)
5. Hindsight Bias
Bias 6. Unconscious Bias
-mental leaning or inclination; partiality; bent, to cause to have a bias in the
straightforward context of claims of employment or housing discrimination. Explicit attitudes
-Potential for bias reaches across every area of law through all of these human -Those that operates consciously
actors (judges, lawyers, witnesses, etc.) in legal proceedings
Implicit Attitudes
Unconscious Bias -operate unconsciously.
-a phenomenon to which all these categories of participants in legal
proceedings are susceptible. Implicit Association Test
-one of the best known psychological studies of unconscious bias
*In this article, the author examines how psychology informs the -taken on a computer, employs talent response or reaction time in pairings of
phenomenon of unconscious bias, and analyze the potential impact of images and target groups
unconscious bias upon the individuals who participate in legal proceedings -Participants respond more quickly when they perceive a strong correlation
I. Deconstruct: Psychology of Unconscious Bias between the target group and the attribute.
-consistently reflect that most people harbor unconscious biases in a variety
Psychology of areas including race, gender, and disability.
-includes principles concerning thinking and memory
*There is a difference between having unconscious bias versus acting on
Cognition those biases.
-psychological study of thinking -people can consciously override their biases
-includes how people from concepts, solve problems, make decisions, and
form judgements, as well as the biases that can create error. *Literature says that measures subjected to psychological study that reflect
promise in overriding unconscious bias cover an array of approaches:
*psychological study in these areas carries particular significance to legal 1. Mental imagery of counter-stereotypes
proceedings because legal proceedings attempt to solve problems through the 2. diversity in the environment
use of individuals who make findings of fact and conclusions of law 3. Diversity in educational programs
4. Educating individuals about unconscious bias
Schemas 5. Appealing to individuals beliefs in equality and fairness.
 1. Judicial programs promoting unconscious bias awareness
II. Superstruct: Implicit and Unconscious Bias in the Context of Legal 2. Educational Programs
Proceedings 3. Standardized Program that integrates three approaches:
a. Diversity Education
*The existence of unconscious bias carries a potentially powerful impact in b. Educating individuals about unconscious bias
legal proceedings, where the public has put its trust in the judicial system to c. Appealing to individuals beliefs in equality and fairness
achieve a fair result.

*If the judicial system is not operating fairly, public confidence in our system
is misplaced, at least some of the time.

Examples of potential impact of unconscious bias with respect to five major

categories of participants in legal proceedings:
1. Witnesses
-susceptible to memory gaps, the desire to be helpful, and
eyewitness misidentifications.
-eyewitnesses have difficulty in identifying individuals of a different
race.
-even if existing proposals for reducing eyewitness misidentification
are adopted, unless unconscious bias also is addressed, the potential
for continued misidentifications remains
2. Jurors
–individuals are often reluctant to admit to bias and court decisions
have recognized that unconscious bias has the potential to impact
jurors perceptions, assessments, and ultimately, their verdicts.
3. Lawyers
-although ethical rules prohibit lawyers from manifesting bias or
prejudice potential for unconscious bias exists in any number of
areas such as interactions with clients, plea negotiations, and
discretion in charging defendants
4. Judges
-unconscious bias has the potential to infect judicial rulings, orders,
and decisions
5. Court Personnel
-unconscious bias has the potential to implicate fairness concerns.
-court clerks may unconsciously respond differently to individuals
of different races, leading them to provide more help to some than
to others.

Several Methods to override these biases: