Paying Attention to What Judges Say: New Directions in the Study of Judicial Decision Making

Abstract

Judges and scholars often speak about the very same subject in very different terms. Judges regularly provide written explanations of their rulings, and scholars regularly argue that the true determinants of judicial decision making lie beyond the words of the judicial opinion. This review engages lines of research that take the fact of competing judicial and scholarly accounts of judicial decision making as the subject of study. In particular, this review surveys three different bodies of work that explain the enduring divide between judges and scholars in terms of motivated reasoning, judicial crisis, and the contradictory demands placed on the judicial process. These three literatures provide ways of thinking about the rule of law in the United States without dismissing the perspectives of either judges or scholars.