Styles of Argumentation in Judicial Opinions (Legitimating Judicial Decisions)

Abstract

This article focuses on how judges present arguments in written opinions and whether the predominant style of argumentation promotes the legitimacy of the judiciary. Judicial opinions are habitually unequivocal, overstated, and lacking of any doubt that the singularly correct decision was reached. Studies examining the effect of argumentation in judicial opinions are limited but generally suggest that furnishing a monolith of reasons does not have persuasive power. In contrast, opinions that acknowledge the complexity and indeterminacy of the decision do have a salutary effect on legitimacy for those who disagree with the outcome of the decision. However, a much larger and more consistent finding is that legitimacy is determined by whether one agrees or disagrees with the outcome of the decision, not the reasons underlying the outcome. The study of public reactions to judicial opinions is important and in its infancy. Avenues for future empirical research are discussed.