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

64 Pages Posted: 23 Sep 2012 Last revised: 3 Sep 2013

Brian Sheppard

Seton Hall University School of Law

Andrew Moshirnia

Harvard Law School

Date Written: September 22, 2012


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 and how legal argument matters to the adjudication of a dispute. In this article, we discuss our design and implementation of a new behavioral experiment that allows us to observe some of the effects of legal argument in the simulated judicial resolution of a politically divisive case. Our subjects, recent law school graduates and law students, acted as judges in such a case.

The results from this experiment 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 choose the outcome that they personally preferred.

The results further 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 one of the key components of an environment in which the most persuasive legal justifications rise to the top, legal argument might serve as an instrument for judges to reach their desired results with less effort. In our simulation, legal argument appears to have provided such a shortcut, and one that our subjects used to further personal or ideological ends.

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

Suggested Citation

Sheppard, Brian and Moshirnia, Andrew, For the Sake of Argument: A Behavioral Analysis of Whether and How Legal Argument Matters in Decisionmaking (September 22, 2012). Florida State University Law Review, Vol. 40, 2013. Available at SSRN:

Brian Sheppard (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Andrew Moshirnia

Harvard Law School ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

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