Ostensibly, we are all Legal Realists now. No longer do legal theorists maintain that judicial decision making fits the mechanical and formalist characterizations of yesteryear. Yet, the predominant style of American appellate court opinions seems to adhere to that improbable mode of adjudication: habitually, opinions provide excessively large sets of syllogistic reasons and portray the chosen decision as certain, singularly correct, and as determined inevitably by the legal materials. This article examines two possible explanations for this rhetorical style of Judicial Overstatement. First, we review the psychological research that suggests that judicial overstatement is a product of the cognitive processes by which judges arrive at their decisions. Research on the Coherence Effect suggests that during the decision making process, the cognitive system spreads apart the opposing decisions by inflating one set of arguments and deflating the other, with the effect of making one decision seem considerably stronger than its rival. This leads the judge to perceive the chosen decision as stronger than it is, and thus to overstate the opinion. It might also be possible that judges resort to overstatement because they believe that this form of reasoning promotes the legitimacy of the judiciary in the eyes of the public. We report on a recent experimental study that was conducted to test this possibility. We found that overstated and monolithic reasons did not promote the evaluations of the judges or of the decisions they rendered. Lay people gave more favorable evaluations when the judges provided nuanced opinions that admitted to the appeal of both sides of the dispute. In sum, judicial overstatement is best understood not as a persuasive device, but as an intra-personal, cognitive phenomenon. The certainty and singular correctness that are habitually reported in judicial opinions are not properties of the law, but artifacts of the judges’ constructed representations of it.
Dan Simon & Nicholas Scurich,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol88/iss2/8