Write my article for me?

David Cruz dcruz at LAW.USC.EDU
Tue Jan 22 11:23:37 PST 2002

On Tue, 22 Jan 2002, Bradley P Jacob wrote:

> Perhaps I am naive -- or perhaps it's because I'm a lawyer, not a political
> scientist -- but when judges say something close to, "We are deciding this
> case in this way because of stare decisis," I tend to take them at their
> word.  Isn't that why judges write opinions?  Why is our speculation about
> their personal ideological preferences "better evidence" than the judges'
> own stated rationale?

I don't think it's at all clear to me that most judges write opinions to
reflect their thought processes in reaching a decision in a given case.
I suspect that most judges write opinions with the aim of persuading the
reader of the correctness of the judgment reached.  To the extent that my
view is accurate, stare decisis (or any other doctrine) might then be
invoked if the judge thinks it will like persuade the reader, whether or
not it persuaded the judge her- or himself.

Of course, this distinction might not be so clearcut in practice.  As
cognitive psychology research (including work by my colleague Dan Simon)
has suggested, a judge's views about subsidiary issues such as whether
stare decisis supports her or his decision can actually be affected by the
judge's view about the bottom-line judgment issue, in which case the
belief causation would run the opposite way one might have expected;
cognitive processing tends to blend various aspects of the case, resulting
in a judge's sense that in reaching the decision he or she did not
transgress the the judicial role.

-David B. Cruz, USC Law (Cal.)

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