Motivation and Judicial Behavior: Expanding the Scope of Inquiry

Among political scientists who study the courts, explanation of judicial behavior is the issue that receives the most attention. That issue is also a major concern in legal scholarship. Of course, judicial behavior takes many forms and occurs in many settings. The aspect of judicial behavior on which scholars typically concentrate is the decisions that appellate courts (and especially the Supreme Court) reach on the merits of the cases they consider. In political science, those decisions are analyzed primarily in terms of the votes on case outcomes that individual judges cast, votes that are generally defined in ideological terms. For the most part, theory and research focus on appellate courts and their judges. 1 Scholars who seek to explain judicial behavior have adopted several models of that behavior. In the Appendix to this paper I present an overview of those models for readers who are unfamiliar with this body of scholarship. The most important characteristic of the leading models is their shared emphasis on judges' interest in making good legal policy-whether as good law, good policy, or a combination of the two. In the past decade there has been growing interest in strategic action by judges to advance their conceptions of good legal policy. That development has made strategic models the closest thing to a conventional wisdom in political science scholarship on judging. The study of judicial behavior in political science and legal scholarship has accomplished a great deal, and in some important respects the contributions of that scholarship are accelerating. However, the reach of that scholarship has been limited, 1 This is a significant limitation in the scope of judicial behavior research. Arguably, the contexts in which trial and appellate judges make their choices differ so much that the two types of courts should be analyzed separately. Rowland and Carp (1996, chs. 6-7) point out the differences in cognitive terms between the decisional tasks of trial and appellate judges. 1 and the dominant theoretical models do not address some fundamental questions about judicial behavior. Explicitly and implicitly, students of judicial behavior draw primarily from economic perspectives on human behavior. The emphasis on economics is reflected in the current popularity of models in which judges act strategically. Psychological perspectives have played a more limited role in judicial research, and within political science that role has declined over time. 2 Further, the field of behavioral economics, which incorporates psychological perspectives into …