Building a Better Judiciary

Abstract:     
We have spent much of our academic careers arguing that judicial decision-making - even in constitutional cases - is a specialized craft, not merely an exercise in politics. We have suggested that good judging requires both expertise and a certain set of dispositional traits, and that it can be enhanced or hindered by both personal traits and situational characteristics. This essay is part of that continuing project.

In a forthcoming book, Judgment Calls: Principle and Politics in Constitutional Law, we describe and defend our vision of the process of constitutional adjudication. We also provide examples of good and bad judicial opinions, and identify existing and proposed structural supports conducive to good constitutional decision-making. In this essay, to be published in an edited volume on the psychology of judicial decision-making, we call on some of the ideas from our book to translate our theorizing into concrete suggestions for further research. In Part One, we describe what judges do when they decide constitutional questions, concluding that they are primarily exercising the same legal expertise that judges and lawyers utilize in all of their professional decisions. Part Two focuses briefly on the personal and contextual characteristics that have been shown to produce or interfere with expert decision-making in general. Finally, in Part Three we turn to our main focus: the legal structures that might enhance the positive characteristics and minimize the negative ones.

Number of Pages in PDF File: 11

Keywords: judges, judicial decision-making, judicial review

Accepted Paper Series