Judges, Expertise, and Analogy

Political scientists have shown that one can anticipate how a judge will decide a case more often than chance, or a reading of the facts, might allow by using various predictors such as party affiliation, gender, or the judge’s own decisions on earlier similar cases. The simplest explanation for such behavior is that judges first decide what they want the outcome of the case to be, then go back to find the precedents that justify their opinions. This chapter considers a more nuanced version of the process: judges may choose relevant case analogies as better or worse, applicable or inapplicable, not because of any particular desired outcome but because of their own pre-existing knowledge. The influence of such knowledge on the decision process may be entirely unconscious; therefore, judges may, in fact, be following the idealized decision-making process to the letter, and be unmotivated toward finding a particular result, yet may usually still reach the predicted result.