Legal Techniques for Rationalizing Biased Judicial Decisions: Evidence from Experiments with Real Judges
Journal of Empirical Legal Studies, Forthcoming
44 Pages Posted: 24 Jul 2019
Date Written: July 23, 2019
Judges rarely reveal their real reasoning in their opinions when they are influenced by factors that they know they should not consider. The natural next question is how, when a judge is improperly influenced, he or she reasons to justify a biased decision. In a set of experiments on incumbent Chinese judges, we first replicated the findings of previous studies that showed judges can be influenced by extra-legal factors. More importantly, we showed that judges may employ a range of legal techniques to rationalize decision biases: they interpret legal standards and legal concepts strategically, finesse the applicability of law, infer or deny causation and foreseeability, and draw different conclusions from facts. Our findings provide a more realistic understanding of how judges behave, and cast doubt on reasoned elaboration as a guarantee of judicial transparency and trustworthiness.
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