Article Review: Judicial Overstating


While reading the article Judicial Overstating, written by Dan Simon and Nicholas Scurich, I enjoyed the psychological analysis of judges regarding judicial overstatement. In general, judicial overstatement is when judges “convey remarkably high levels of certainty in their decisions. Opinions persistently portray the chosen decision as singularly correct and as determined inevitably by the legal materials, leaving little room for judicial discretion.” (See  Dan Simon, Nicholas Scurich, Judicial Overstating, 88 Chi.-Kent L. Rev. 411, 414 (2013)). The authors analyze judicial overstatement by the amount of inferences judges make in support of what many times is a lopsided holding for one side or the other in a dispute.  I agree with the proposition that judges construe legal inferences and precedent in a one-sided fashion because they believe it is persuasive after they have already reached a decision regarding any given case.

The article goes on to explain the psychological “cognitive explanation” for judicial overstatement, which I found very interesting. According to the cognitive explanation, the form and style of judicial reasoning is related to the “mental processes by which judicial decisions are made: judges portray their decisions as singularly-correct because that is the way they actually perceive the legal dispute at the time they make their decision.” (See Id.)

I found the cognitive explanation for judicial overstatement very convincing. When a judge decides to hear a case, he knows that his role in that case is to impartially decide the issues based on the law. However, once the facts are heard and the issues are brought up, a judge usually at this point has a gut feeling about how he or she will decide the case. From a lawyer’s perspective, this is why it is beneficial to have a strong brief regarding how the law coherently backs up a legal proposition. If the brief lays out the points in a persuasive and concise form, it only makes the judge’s decision to go with his gut simpler. In contrast, if the brief is well written on the other side, it is possible to make the judge pause before making their decision; a court traditionally does not want a ruling that is contrary to a majority of similar cases that have been before them.

Even before oral arguments are even heard in this hypothetical case, the judge and his clerks have spent both considerable research time and work preparing a uniform, coherent view of the law in both written briefs and during chambers conversations. It is only natural that people at this point have not only begun to develop an opinion regarding the correct outcome of the case, but also coherent argumentative claims on why their position is the correct outcome. Going back to a common theme with my other reflections, judges can do their best to make the law as mechanical as possible in its administration, but that doesn’t change the fact that judges are human. This is why I find the cognitive explanation a compelling concept for why judges often have judicial overstatement when crafting an opinion. To view part two of this post, click here.


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