Theory of Judicial Decisionmaking

3 Credit Hours

Judicial Decision-Making is a course designed to explore the process underlying the development and application of law generally. For law to be comprehensible, even predictable, requires not only looking at output - case decisions - but also at the process by which those decisions are reached. Understanding what shapes judges' decision-making process yields insights into all areas of law. In addition, that same inquiry is key to appreciating the role of judges and courts in the broader political system. For instance, if the extreme view that judging is just a product of what the judge had for breakfast is true, then law needs to be understood not as binding exogenous constraint, but simply as a rhetorical device for masking raw ideological preference, or even idiosyncrasy. Whereas if judges seriously consider legal factors- methodology, formalism, federalism and other such factors - then we need to ask how, when, and how much each of these factors play in, and can they be precisely and rigorously characterized, and their impact assessed. Once that most fundamental question is answered, there still remain many other potential factors in the judicial decision-making process. For instance, does public opinion affect judges - and if so, does it operate only at the limits of public acceptability, or as a more common influence? Similarly, how do separation of powers constraints limit judicial choice - do the other branches only affect the selection of judges, or do they influence the ongoing decision-making process, for example through aversion to congressional overrides? This course will take a cross-disciplinary approach to understanding judicial behavior and the judicial decision-making process. It will examine: classic and modern theories of the role of the judge in society; how judges are selected; how judicial preferences are measured; how much of judicial decision-making can be predicted by ideological preferences; whether and how judges set their own agendas; how the structure of the judicial system shapes judicial preferences, including multi-judge courts and the judicial hierarchy; and how external factors affect judicial decision-making, including public opinion and the political branches.