In her recent book, Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning (2009), Eileen Braman examines how policy preferences and legal authority interact to influence judicial decision making. Here’s the book’s abstract.
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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 judgments. 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.
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To read a sample of related Situationist posts, see “The Situation of Judicial Activism,” “The Situation of Biased Perceptions,” “The Bias of the Bar?,” “Judicial Ideology – Abstract,” “The Situation of Judicial Methods – Abstract,” “The Situation of Constitutional Beliefs – Abstract,” “The Political Situation of Judicial Activism,” “Ideology is Back!,” “The Situation of Judges (1),” “The Situation of Judges (2),” “Blinking on the Bench,” “The Situation of Judging – Part I,” “The Situation of Judging – Part II,” and “Justice Thomas and the Conservative Hypocrisy.”