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Law, Politics, and Perception

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

Eileen Braman
Copyright Date: 2009
Pages: 256
https://www.jstor.org/stable/j.ctt6wrn6c
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  • Book Info
    Law, Politics, and Perception
    Book Description:

    Are judges' decisions more likely to be based on personal inclinations or legal authority? The answer, Eileen Braman argues, is both. Law, Politics, and Perception brings cognitive psychology to bear on the question of the relative importance of norms of legal reasoning versus decision markers' policy preferences in legal decision-making. While Braman acknowledges that decision makers' attitudes-or, more precisely, their preference for policy outcomes-can play a significant role in judicial decisions, she also believes that decision-makers' belief that they must abide by accepted rules of legal analysis significantly limits the role of preferences in their judgements. To reconcile these competing factors, Braman posits that judges engage in "motivated reasoning," a biased process in which decision-makers are unconsciously predisposed to find legal authority that is consistent with their own preferences more convincing than those that go against them. But Braman also provides evidence that the scope of motivated reasoning is limited. Objective case facts and accepted norms of legal reasoning can often inhibit decision makers' ability to reach conclusions consistent with their preferences.

    eISBN: 978-0-8139-2837-1
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. List of Figures and Tables
    (pp. xi-xiv)
  4. PREFACE
    (pp. xv-xviii)
  5. ACKNOWLEDGMENTS
    (pp. xix-xxiv)
  6. INTRODUCTION
    (pp. 1-10)

    In the spring of 2014, citizens and legal scholars were watching the Supreme Court for a decision on whether the Pledge of Allegiance, including its phrase “one nation under God,” could be recited in the nation’s public schools. The case in which the issue arose,Elk Grove Unified School District v. Newdow,¹ had all the stuff of great drama. A young girl was caught in the middle of an acrimonious divorce between her Atheist father and Christian mother, with each parent claiming to have the child’s “best interest” in mind.

    The father, “ordained . . . in a ministry that...

  7. PART 1 The Case for Investigating Motivated Reasoning in Legal Decision Making

    • ONE OUTLINING A THEORY OF MOTIVATED COGNITION IN LEGAL DECISION MAKING
      (pp. 13-40)

      Judges play a special role in our constitutional system. Federal judges, and many state judges, are not elected but appointed by other political actors. Judges do not have the same democratic authority as elected officials to act in accordance with their personal preferences. Neutrality is vital if judges’ decisions are to be accepted and their distributive allocations are to be enforced with the authority of the state. This raises a critical dilemma because judges are, after all, human (Frank 1931a, 1931b). They are bound to have personal preferences, shaped by their ideology, attitudes, and experience, with respect to cases they...

    • TWO A MOTIVATED REASONING APPROACH TO THE COMMERCE CLAUSE INTERPRETATION OF THE REHNQUIST COURT
      (pp. 41-80)

      One might ask what the practical utility of a motivated reasoning approach is for understanding case outcomes. There are instances likeNewdow,the Pledge of Allegiance case mentioned in the introduction of this book, where an argument can be made that judicial attitudes and motives influence legal reasoning processes in concrete ways. InNewdow,the justices’ preferences concerning the separation of church and state, coupled with their desire to issue a public decision on the constitutionality of the Pledge, seem likely to have shaded one or more of the justices’ interpretation of the standing doctrine deemed determinative by the Court....

  8. PART 2 Testing the Mechanisms

    • THREE SEEING WHAT THEY WANT? Analogical Perception in Discrimination Disputes
      (pp. 83-111)
      Thomas E. Nelson

      The analysis of the decision making of justices on the Rehnquist Court certainly implies that differential perception of precedent by judges with different policy views could serve as an avenue of motivated reasoning in legal decision making. Theory and findings from cognitive psychology illuminate how analogical reasoning may enable attitudinal choices on the part of legal experts and inform a concrete strategy to test the boundaries of motivated perceptions in legal reasoning processes.

      Analogy is the logic of relations. Empirical studies demonstrate that humans have the ability to create mental maps of structural relationships from a very early age and...

    • FOUR REASONING ON THE THRESHOLD: Testing the Separability of Preferences in Legal Decision Making
      (pp. 112-140)

      Litigation often implicates multiple policy dimensions. In chapter 2, we looked at Commerce Clause cases touching on federalism and other contested policy issues. But Commerce Clause cases are not the only ones that raise the possibility of interrelated preferences in legal decision making. In this chapter, I test the idea that how decision makers feel about one issue can influence their legal reasoning with respect to another. Specifically, I investigate whether “threshold” decisions are influenced by decision makers’ feelings about the “merits” of a dispute using intuitions from economics about separable and nonseparable preferences.

      Legal reasoning is complex reasoning. Although...

    • FIVE JUSTIFYING OUTCOMES? How Legal Decision Makers Explain Threshold Decisions
      (pp. 141-159)

      In this chapter, I analyze the open-ended responses that law student participants gave to justify their decisions in the experiment testing the separability of preferences. Part of my purpose is to further demonstrate the utility of using experimental methods for studying legal reasoning processes. Although it is not a method commonly used by behavioral scholars interested in legal decision making, the control afforded by such methods can be extremely useful for answering interesting and important questions about differential reasoning processes. In essence, analyzing judgments in this way may shed light on how legal decision makers “get to where they want...

    • SIX MOTIVATED REASONING AS AN EMPIRICAL FRAMEWORK: Finding Our Way Back to Context
      (pp. 160-170)

      In the part 1 of this book, I argued that existing models of attitudinal influence in legal decision making provide incomplete and unsatisfactory accounts of legal behavior that do not comport with the subjective experience of decision makers. In part 2, I tested two mechanisms of influence taken from intuitions about how legal experts consider evidence and arguments in real-world cases using highly stylized decision norms. I also explored thelimitsof such influence by looking for evidence of constraint in studies testing each of the hypothesized mechanisms of influence. I hope I have convinced readers that motivated reasoning accounts...

  9. APPENDIXES

    • APPENDIX A-1 MATERIALS RELATED TO EXPERIMENTS ON ANALOGICAL PERCEPTION
      (pp. 173-180)
    • APPENDIX A-2 SUPPLEMENTAL REGRESSION ANALYSES FOR EXPERIMENTS ON ANALOGICAL PERCEPTION
      (pp. 181-188)
    • APPENDIX B MATERIALS RELATING TO EXPERIMENT TESTING THE SEPARABILITY OF PREFERENCES
      (pp. 189-202)
  10. NOTES
    (pp. 203-212)
  11. REFERENCES
    (pp. 213-222)
  12. INDEX
    (pp. 223-231)
  13. Back Matter
    (pp. 232-232)