Academic

Joondeph on the Judicial Animal

By Lawrence Solum

Bradley Joondeph has posted Judging and Self-Presentation: Towards a More Realistic Conception of the Human (Judicial) Animal on SSRN. Here is the abstract:

The dominant models of judicial behavior generally assume that the exclusive goal of judges, and particularly Supreme Court justices, is to see their visions of sound law or policy adopted. Lawrence Baum's Judges and Their Audiences challenges this basic premise. Baum's thesis is that an important motive for judicial behavior is the desire to win the approval of various audiences, particularly audiences critical to judges' social identities. This desire for approbation and a sense of belonging is an inescapable aspect of our humanity, and judges are no different. Human beings are constantly engaged in a process of self-presentation, consciously and subconsciously managing the impressions they make on others. And the opinions of those with whom we strongly identify - our salient audiences - are critical to our self conceptions. Baum thus argues that a judge's interest in the regard of these audiences influences her behavior, including the content of her decisions.

The essence of Baum's argument seems unassailable, though he may overstate his case in places. Findings from social psychology suggest that the dominant models may not be quite as unrealistic as Baum presumes. Still, Judges and Their Audiences makes two very important contributions to the field of constitutional politics. First, Baum has identified another important mechanism by which the Supreme Court's decisions will tend to reflect the nation's currently ascendant political values, especially those of socioeconomic elites. Regardless of the ideological preferences the justices bring to the Court, or any strategic reasons they might have to mind the views of other power holders, the justices' desire to impress their salient audiences will nudge the Court in the direction of currently ascendant political values. Second, and more generally, Baum's book points us in the promising direction of bringing greater psychological realism to the study of American constitutional development. It expands our field of vision beyond judges' personal attitudes and preferences to the significant situational influences, both internal and external. Judges and Their Audiences should open a new research frontier in the field of public law, one devoted to examining the various aspects of the judicial situation. And this new agenda should lead us to a much more realistic, finely grained understanding of judicial behaviorAn

And here is a link to Baum's book.  Both the book & review are recommended.

Full post as published by Legal Theory Blog on January 16, 2008 (boomark / email).