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HOW JUDGES JUDGE A judge’s role is to make decisions. This book is about how judges undertake this task. It is about forces on the judicial role and their consequences, about empirical research from a variety of academic disciplines that observes and verifies how factors can affect how judges judge. On the one hand, judges decide by interpreting and applying the law, but much more affects judicial decision-making: psychological effects, group dynamics, numerical reasoning, biases, court processes, influences from political and other institutions, and technological advancement. All can have a bearing on judicial outcomes. In How Judges Judge: Empirical Insights into Judicial Decision-Making, Brian M. Barry explores how these factors, beyond the law, affect judges in their role. Case examples, judicial rulings, judges’ own self-reflections on their role and accounts from legal history complement this analysis to contextualise the research, make it more accessible and enrich the reader’s understanding and appreciation of judicial decision-making. Offering research-based insights into how judges make the decisions that can impact daily life and societies around the globe, this book will be of interest to practising and training judges, litigation lawyers and those studying law and related disciplines. Brian M. Barry is a lecturer in law at TU Dublin, Ireland. He completed his doctorate in Trinity College Dublin’s School of Law in 2013 having graduated from there with an LLB in 2009. He has undertaken visiting scholarships in the University of Toronto and Columbia University and is qualified as a solicitor in Ireland. HOW JUDGES JUDGE EMPIRICAL INSIGHTS INTO JUDICIAL DECISION-MAKING BRIAN M. BARRY First published 2021 by Informa Law from Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business © 2021 Brian M. Barry The right of Brian M. Barry to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-08624-4 (hbk) ISBN: 978-0-429-02342-2 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC CONTENTS Acknowledgements xi Table of cases xiii Table of legislation xv CHAPTER 1 INTRODUCTION 1 CHAPTER 2 THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING 12 CHAPTER 3 JUDGES’ PROFESSIONAL MOTIVATIONS AND JUDICIAL DECISION-MAKING 91 CHAPTER 4 JUDGES’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING 111 CHAPTER 5 LITIGANTS’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING 164 CHAPTER 6 JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: IN-COURT INFLUENCES 186 CHAPTER 7 JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: BEYOND-COURT INFLUENCES 224 CHAPTER 8 THE FUTURE OF JUDGING 273 Index 291 v DETAILED CONTENTS Acknowledgements xi Table of cases xiii Table of legislation xv CHAPTER 1 INTRODUCTION 1 1.1 A brief introduction to the development of judicial decision-making research 3 1.2 Researching judicial decision-making: matters of terminology and methodology 5 1.3 A preview of this book 9 CHAPTER 2 THE PSYCHOLOGY OF JUDICIAL DECISION-MAKING 12 2.1 Heuristics, cognitive biases and judicial decision-making 13 2.1.1 Confirmation bias 15 2.1.2 Hindsight bias 18 2.1.3 Representativeness heuristic 22 2.1.4 Egocentric bias 24 2.1.5 Other heuristics and biases 25 2.1.6 Combatting heuristics and biases in judicial decision-making 28 2.2 Cognitive errors in judges’ numerical decision-making 32 2.2.1 Anchoring effect 37 2.2.2 Contrast effect 46 2.2.3 Framing effect 48 2.2.4 Gambler’s fallacy 52 2.2.5 Clustering 53 2.2.6 Combating cognitive errors in judges’ numerical decision-making 54 2.3 Motivated reasoning and judging 60 2.4 Judging and emotion 70 2.5 Group psychology effects on judicial panels’ decision-making 78 2.5.1 Positive effects of group decision-making 81 2.5.2 Negative effects of group decision-making 83 vii DETAILED CONTENTS CHAPTER 3 JUDGES’ PROFESSIONAL MOTIVATIONS AND JUDICIAL DECISION-MAKING 91 3.1 Work-life balance and judicial decision-making: workload, leisure, and retirement 93 3.2 Reputation, prestige and influence 99 3.3 Pay 103 3.4 Promotion 107 3.5 Conclusions on judges’ professional motivations and judicial decision-making 109 CHAPTER 4 JUDGES’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING 111 4.1 Judges’ gender 112 4.1.1 Gender and judicial decision-making on sentencing 115 4.1.2 Gender and judicial decision-making on gender-salient issues 116 4.2 Judges’ race and ethnicity 124 4.2.1 Conclusions on judges’ race and ethnicity 131 4.3 Judges’ age and experience 132 4.3.1 Judges’ age and conservative judging 132 4.3.2 Judges’ age and age discrimination claims 134 4.3.3 Judicial experience and the “freshman effect” 135 4.3.4 Interpreting judges’ age and experience on the bench meaningfully 137 4.4 Judges’ religion 139 4.4.1 Judges’ religion and liberal or conservative judicial decision-making 141 4.4.2 Judging on religious freedom cases 143 4.4.3 Understanding religious affiliation as a factor in judicial decision-making 144 4.5 Judges’ politics 145 4.5.1 Background and development of research on judges’ politics and their decision-making 149 4.5.2 The attitudinal model 150 4.5.3 The strategic model 152 4.5.4 Judges’ politics and decision-making: a global perspective 154 4.5.5 Experimental studies on judges’ political views and judging 159 4.5.6 Conclusions on judges’ politics and their decision-making 161 CHAPTER 5 LITIGANTS’ CHARACTERISTICS AND EFFECTS ON JUDICIAL DECISION-MAKING 164 5.1 Litigants’ gender 165 5.2 Litigants’ race and ethnicity 169 5.3 Litigants’ age 174 5.4 Litigants’ sexual orientation 177 5.5 Litigants’ other characteristics 180 viii DETAILED CONTENTS 5.6 Combinations and interactions of different litigants’ characteristics and judges’ characteristics 182 5.7 Combatting bias based on litigants’ characteristics 183 CHAPTER 6 JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: IN-COURT INFLUENCES 186 6.1 Actors in the courtroom and their influence on judicial decision-making 187 6.1.1 Lawyers’ influence 187 6.1.1.1 Lawyers’ written submissions 189 6.1.1.2 Oral argument 190 6.1.1.3 Lawyers’ characteristics 196 6.1.2 Judicial assistants’ influence 197 6.1.2.1 Judicial assistants as gatekeepers on courts with discretionary jurisdiction 198 6.1.2.2 Judicial assistants’ influence at trial 200 6.1.2.3 Writing judgments 202 6.1.3 Expert witnesses’ influence 204 6.1.4 Conclusions on the influence of courtroom actors 206 6.2 Courts’ operations and courtroom layout and design as in-court influences 207 6.2.1 Inquisitorial and adversarial trial modes and judicial decision-making 208 6.2.2 Judicial specialisation 211 6.2.3 Rules and procedures on panel courts 213 6.2.3.1 Discretionary jurisdiction and effects on judicial decision-making 213 6.2.3.2 Composing judicial panels for cases 216 6.2.3.3 Deliberation on panel courts 218 6.2.4 The physical courtroom environment: courtroom layout and design 221 6.2.5 Conclusions on courts’ operations, and layout and design 222 CHAPTER 7 JUDICIAL DECISION-MAKING IN AN INSTITUTIONAL CONTEXT: BEYOND-COURT INFLUENCES 224 7.1 Other courts in the judicial system: judicial decision-making in a hierarchy 225 7.2 Other branches of government 231 7.2.1 Judicial decision-making as dialogue with other branches of government 233 7.2.2 Governments’ powers over courts’ operations and the judiciary 239 7.2.2.1 How judges are selected and the consequences for judicial decision-making 240 7.2.2.2 Governments’ control over the terms and conditions of judges’ employment 254 7.3 Judges and their professional networks 257 ix