In the first post about my reflection regarding the article Judicial Overstating, written by Dan Simon and Nicholas Scurich, I touched base on the psychological reasoning judges potentially go through in crafting judicial opinions. Without being long-winded on the subject, I wanted to acknowledge the other part of the article that caught my attention: a belief that uniform, one-sided explanation makes judicial opinions more persuasive.
This persuasive explanation was put to the test by the authors in an empirical analysis, which found that people are more inclined to find persuasive holdings in which they believe the judge correctly decided the dispute. The decisions in the study were accompanied by one of “four modes of judicial reasoning: (1) no reasoning at all (2) a single reason supporting the decision (3) three reasons all supporting the chosen decision and (4) three reasons supporting each side of the dispute, followed by a conclusion that, on balance, one decision was stronger than the other.” (See Dan Simon, Nicholas Scurich, Judicial Overstating, 88 Chi.-Kent L. Rev. 411, 414 (2013)). The article found that when a person did not agree with the judge’s holding in the study, participants preferred the 4th mode of judicial reasoning- the both sides approach.
I found that perhaps a mixture of the cognitive and persuasive approaches is why I believe judges routinely perform judicial overstatement in crafting any given holding. The judge is aware, even at the appellate level, that his decision affects the rights and liberties of real people, and that a case ruling also has systemic affects on the efficiency and administration of the courts, along with various other collateral effects. The following is how I envision a judge deciding a dispute: 1) the judge reads the facts of the case, and both the briefs; 2) sometime during reading of the briefs and initially while examining the case, the judge will have a hunch on how he is going to decide the case; 3) the judge will have his law clerk look up both sides of the law and prepare a memorandum, in advance of oral arguments. By the time oral arguments arrive, the judge will have conversed with his clerks, engaged them in conversation, and tested out their opinion of the case.