For the Sake of Argument: A Behavioral Analysis of Whether and How Legal Argument Matters in Decisionmaking

Abstract:     
The belief that legal argument makes a difference to the resolution of legal disputes is one of the most fundamental tenets of the American legal system. Despite its importance, few have empirically examined whether legal argument matters to the adjudication of a dispute, let alone whether its influence is good or bad. In this article, we discuss our design and implementation of a new behavioral experiment that allows us to observe the effect of legal argument in the judicial resolution of a politically divisive case.

Our results provide support for the notion that legal argument matters but not in the ways that its proponents expect. Firstly, legal argument had an effect on our subjects only when the applicable law was a bright-line, constraining rule. Secondly, within those parameters, it appears that the presence of legal argument made our subjects less likely to resolve their cases in accordance with the straightforward interpretation of that rule and more likely to vote for the outcome that they personally preferred.

These results support a new understanding of the function of argumentation in the context of legal decisionmaking, one that does not fit the charitable account advanced in our law and by our law schools. Rather than serving as a key component of an environment in which the most persuasive legal justifications rise to the top, legal argument — when it matters at all — is more likely to serve as an instrument that allows decisionmakers to reach their desired results with less effort. It is a shortcut, and one that is often followed for personal or ideological ends.

Number of Pages in PDF File: 72

Keywords: legal argument, argumentation, judges, behavioral, experimental, rules vs. standards, legal constraint, attitudinalism, legalism, Martinek, Collins, McAtee, Corley, judicial activism, judicial ideology

Accepted Paper Series