How Judges Judge

The article How Judges Judge ": Theories on Judicial Decision Making"
by Timothy J. Capurso examines various theories on judicial decision-
making, addressing the problems associated with each. The article
includes the opinions of local acting judges and practicing attorneys,
helping to shed a contemporary light on this jurisprudential issue. By
combining parts of different theories with the practical insight of
attorneys and local judges, a conclusion is reached based on both
theory and practice of how judges judge. The most pervasive and
accepted theory of how judges arrive at legal decisions is the American
Legal Realist view, which is associated with jurists like Oliver Wendell
Holmes, Joseph Bingham, Jerome Frank, Eugene Ehrlich, and Karl
Llewellyn. Realists stipulate that judges determine the outcome of a
lawsuit before deciding whether the conclusion is based on an
established legal principle. They reject the idea that a judge begins with
some rule or principle of law as their premise, applies this premise to
the facts, and thus arrives at their decision.
The art of judicial decision-making is the cornerstone of the American
justice system, with few other public officials having the power and
influence of a presiding judge. The process of how judges reach their
decisions has baffled legal scholars, lawyers, and litigants for centuries.
This article examines some theories regarding judicial decision-making
and addresses the problems associated with each. The opinions of local
acting judges and a local practicing attorney are included in the analysis,
helping to shed a contemporary light on this jurisprudential issue. By
combining parts of different theories with the practical insight of
attorneys and local judges, a conclusion is reached based on both
theory and practice of how judges judge. American Legal Realists, a
theory associated with jurists like Oliver Wendell Holmes, Joseph
Bingham, Jerome Frank, Eugene Ehrlich, and Karl Llewellyn, propose
that judges make judicial decisions based on their instinctive sense of
what is right or wrong in a particular case. This reactionary view of the
judicial process is based on flaws perceived by Realists in earlier
theories of judicial decision-making. Realists argue that judges
determine the outcome of a lawsuit before deciding whether the
conclusion is based on and established legal principle. They review the
facts presented and decide how they will rule without first analyzing
precedent and statutory law. Once they reach a conclusion, they look
for existing principles in case law or statutory regulations that support
the conclusion. Only in unique circumstances where such a premise
cannot be found will the judge change their conclusion to one that can
be justifiably maintained. Realist scholar Jerome Frank maintains that
the opinions written by the judiciary are an inaccurate depiction of
actual thought processes in a judge's mind. He claims that judges'
decisions are not based on a systematic analysis of fact and law but
rather on a perspicacious flash termed the "judicial hunch." The judicial
hunch forms the basis for a judicial conclusion by creating an emotional
impulse, leading a judge to decide which solution is "right" in their own
mind.

The author conducted two interviews with circuit court judge Judge A
and district court judge Judge B, who were chosen based on
recommendations from practicing attorneys. Judge A identified himself
as a Formalist, focusing on facts and law first, followed by applying the
necessary rule of law. He believed that some external factors may
influence a judge's decision, such as precedent, logic, legal experience,
and lawyer preparation.
Judge B admitted to being result-oriented periodically but also tried to
keep personal biases out of his decision-making process. He
acknowledged that it may be difficult for any judge to control such
prejudices. Judge A admitted that unconscious factors shape the judicial
process but insisted that the law acts as a safeguard, helping a judge
focus on the proper path.

Judge A admitted that some judges are concerned more with equity
than the law, but felt most of these judges were on the district court
level. He stated that even if these judges are "result-oriented" it would
not necessarily imply that the legal analysis utilized was flawed. Equity
often plays a major part in how the law is perceived by a particular
judge.

Minimal considerations that may sway a judge's decision include equity,

political ideology, and possible biases toward particular groups. Judge A
felt a great deal of animosity in cases involving employees stealing from
their employers, while Judge B was more careful to render a decision
based on the law. Both interviews supported both the Formalist and
Realist theories to some extent.

Neither theory addresses the possibility that some judges might make
decisions as hypothesized by the Realists, while others utilize the
formula set forth by the Formalists. Judges may consciously or
unconsciously employ different theories at different times and for
different reasons. For example, Judge B may decide a case in favor of
the tenant early in the docket to show those in attendance that the
bench is impartial. However, he may be result-oriented in a separate
case where a legal decision is not in accordance with public policy,
equity, or compassion.

HOW ATTORNEYS THINK JUDGES JUDGE

Attorney A, a local practitioner with over 20 years of experience, shares

a unique perspective on how judges make decisions. He believes that
judges base their decisions on the facts and law, allowing the chips to
fall where they may. However, Attorney A also notes that some judges
are result-oriented and do not base their decisions on applicable law.
He has experienced diverse judicial opinions in cases where the
presented fact patterns were essentially the same.

Attorney A also notes that sometimes he receives different results from

the same judge on the same set of facts. For example, he argued a case
in front of a judge regarding the interpretation of a contract and was
divided into three groups: constructionalist, result-oriented, and
equitable. The first group, similar to the Formalists, base their decisions
on facts and law, while the second group, closer in theory to the
Realists, is result-oriented and bases decisions on consideration of
equity, fairness, and compassion.

Attorney A believes that most judges follow the Formalist model and
are perceived by attorneys as fair and impartial. However, those judges
who are result-oriented and allow their decisions to be influenced by
mood, public opinion, internal prejudices, personal animosities,
compassion, or the desire to appear impartial are not fulfilling their
duty as a judicial member and are abusing their station as a member of
the bench.

The Realist viewpoint offers valuable insights into the judicial decision-
making process, portraying judges as human beings with emotions and
recognizing that facts and law are not fixed variables but subject to
layers of interpretation by individuals. They acknowledge that similar
cases often produce diverse results depending on the presiding judge.
However, they dismiss the notion that some judges may decide cases in
one fashion while others may do so in an entirely different manner.

Realists also minimize the role of the rule of law, which does not always
dictate the decisions of cases. They often dismiss cases where a rule
directly dictates the outcome without the intervention of judicial
discretion. They maintain that judges arrive at their decisions through a
judicial hunch and construct an argument to support their decision.

Theoretically, both Realists and Formalists provide significant

propositions that aid in determining how judges reach their decisions.
However, these theories are incomplete, as the actual experiences of
practicing attorneys cannot be ignored. Courtroom experience and
personal familiarity with individual jurists are the only effective means
to predict how and why judges decide certain cases. Predictability may
be achieved by learning, over time, the personality traits of a given
judge.
Practically speaking, such knowledge allows an attorney to make
beneficial decisions for their clients. Ignorance of this reality is
detrimental to both the attorney and their clientele. The fact that
judges utilize their discretion absolute is essential in understanding the
predispositions of the bench.

A practical approach to determining how judges reach decisions is a

combination of the strongest portions of primary theories on this issue,
combined with practical knowledge on this topic. This approach aims to
enhance what prevalent theories on judicial determinism gloss,
recognizing that judges, like the cases they decide, are unique.

The study by Rachel J. Cahill-O'Callaghan explores the role of personal

values in judicial decision-making. The research, published in the
Journal of Law and Society, focuses on non-legal factors such as political
ideology, activism, attitudes, and demographics. The study uses
psychological research theories and techniques to examine the
influence of personal values on judicial decisions. It reveals a different
pattern of values expressed in majority and minority opinions of a
Supreme Court case. The study provides a new framework for analyzing
judicial decision-making, division, and discretion, with implications for
judicial diversity. In 1972, Lord Reid stated that judges in the final courts
have significant discretion and may be influenced by individual personal
traits. This is acknowledged by members of the Supreme Court who
recognize that although the law and facts of the case are critical to the
outcome, in decisions that divide judicial opinion personal factors may
play a role. Lord Dyson identified these influences as being inevitable at
this level, with the nature of the cases being complicated and difficult.
Lady Hale noted that everyone comes to the task with a set of values
and perspectives that may lead to picking different bits of the materials
to reason towards an outcome. Both commentators and appellate
judiciary agree that judges in the Supreme Court have a degree of
discretion which is not determined by legal rules and only to a certain
extent by legal principles. In such cases, where judicial interpretation of
legitimate legal reasons results in two opposing decisions, judicial
personal factors may play a role. There are many factors that have been
argued to influence judicial decisions, including both external factors,
such as the norms of the prevailing culture and economy, and internal
factors including innate elements of the judge's psychology and
personality. This article argues that these internal factors are influenced
by personal values which act at a subconscious level in decision making.
The study of personal values in legal decisions will complement earlier
studies and provide a broader understanding of the innate influences
on judicial decision making.