Eileen Braman’s Law, Politics & Perception: How Policy Preferences Influence Legal Reasoning invokes the cognitive psychology theory of “motivated reasoning” to explain not only how judges might sincerely believe that their rulings are based on legal authorities even as they choose outcomes consistent with their attitudinal preferences but also how precedent can unconsciously constrain attitude-consistent behavior when judges are unable reasonably to reconcile the two. The book makes a substantial contribution to the literature by taking seriously widely shared and deeply held norms and operative assumptions of bench and bar. And Braman’s inventive and careful experimental studies offer partial support for her theory. But neither those studies nor her analysis of recent Supreme Court Commerce Clause opinions provide convincing support for her key claim that judges’ “perception” of precedent is unconsciously influenced by ideological preferences, as opposed to the attitudinalists’ and rational choice theorists’ assertion that judges consciously choose to characterize precedent to suit their preferred outcomes. The book’s limits, however, including its inability to refute the deliberate-manipulation view, do not negate its utility but instead point the way toward more focused study.
- motivated reasoning,
- judicial decisionmaking,
- cognitive psychology
Available at: http://works.bepress.com/donald_judges/1/