The Download of the Week is Building a Better Judiciary by Suzanna Sherry and Daniel A. Farber. Here is the abstract:
We have spent much of our academic careers arguing that judicial decision-making - even in constitutional cases - is a specialized craft, not merely an exercise in politics. We have suggested that good judging requires both expertise and a certain set of dispositional traits, and that it can be enhanced or hindered by both personal traits and situational characteristics. This essay is part of that continuing project.
In a forthcoming book, Judgment Calls: Principle and Politics in Constitutional Law, we describe and defend our vision of the process of constitutional adjudication. We also provide examples of good and bad judicial opinions, and identify existing and proposed structural supports conducive to good constitutional decision-making. In this essay, to be published in an edited volume on the psychology of judicial decision-making, we call on some of the ideas from our book to translate our theorizing into concrete suggestions for further research. In Part One, we describe what judges do when they decide constitutional questions, concluding that they are primarily exercising the same legal expertise that judges and lawyers utilize in all of their professional decisions. Part Two focuses briefly on the personal and contextual characteristics that have been shown to produce or interfere with expert decision-making in general. Finally, in Part Three we turn to our main focus: the legal structures that might enhance the positive characteristics and minimize the negative ones.
And a bit more:
The primary finding seems to be that foxes make better decisions than do hedgehogs. The more broadly a person is inclined to search, the better for both the reasoning process and the ultimate decision. (Tetlock 2005). This should be true for judges as well as for other decision-makers. Moreover, to the extent that “foxiness” incorporates specific characteristics such as integrative complexity and open belief systems, it is especially important that judges are foxes rather than hedgehogs. Recall that our standard for good judging requires a willingness to consider carefully all relevant information. For the reasons identified at the outset of this essay, we cannot measure directly whether a judge has done so (except to the extent that the opinion reflects the judge’s decision process) or whether a failure to do so has produced a worse decision. Instead, we must rely on a judge’s dispositional preference for multiple perspectives over dogmatism. Focusing on these individual characteristics is most helpful at the stage of judicial selection.
Turning to situational characteristics, two seem to make the most difference: collegial decision-making in a heterogeneous group (Sunstein 2000), and accountability—especially accountability to persons whose views are unknown. This insight can be of use both in selecting judges and in designing the structure of the legal regime generally and the judiciary in particular.
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