Judges intuit case outcomes first and justify them in written opinions afterward.
Evidence
According to the legal perspective, judicial decision making involves two phases: discovery and justification. Discovery involves the judge’s initial determination of how a case should be resolved; justification involves the elaboration of the legal bases for the decision in a written opinion. These two phases are interrelated. In the discovery phase, the judge may be said to “intuit” the proper resolution of the case; that is, to arrive at the resolution without proceeding through a step-by-step reasoning process. This judicial intuition differs from the intuitive judgment of the average citizen, because the judge’s intuition is a professional judgment, informed by his or her legal training and experience on the bench. Thus, one may say that the legal bases for resolving the case play a role in the discovery phase, as well as in the justification phase of judicial decision making. … Because judges do not reach their decisions by a process of formal reasoning, the opinions that judges write do not describe the thinking processes by which they arrive at their decisions. Nevertheless, the requirement that judges publicly justify their rulings is crucial to judicial decision making. The requirement forces judges to examine whether there are persuasive legal bases supporting the decision they have intuited. If there are, they explain those bases in the written opinion. If there are not, they must modify their initial position to bring it in line with the weight of legal authority. — G. Alan Tarr, Judicial Process and Judicial…, 1217
Categorization
- XREF: Connects to the crafted description of discovery/justification as a two-phase model of judicial reasoning — a framework that parallels the intuition-then-justification process described for judges elsewhere and complements legal realism debates. — connects to: Court composition, public opinion, and justice attitudes explain the Bowers-to-Lawrence reversal. — G. Alan Tarr, Judicial Process and Judicial…, 1210; Legal analysts evaluate deductive reasoning by starting from the conclusion. — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 361; Judicial opinions mask value judgments behind a surface of logical form. — G. Alan Tarr, Judicial Process and Judicial…, 1290
- SEED: This ‘intuition first, justification second’ model of judicial decision making is a strong essay angle for the course: contrasting the myth of formal legal reasoning with the actual psychology of judging.
- recurring: this claim recurs 2 times within its source
Broader Connections
- Judicial opinions mask value judgments behind a surface of logical form.
#corroborates(0.95) — G. Alan Tarr, Judicial Process and Judicial…, 1290 - Legal analysts evaluate deductive reasoning by starting from the conclusion.
#expands(0.85) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 361