Friday, July 22, 2011

Opinion styles and public perception of judicial legitimacy

Here’s a link to an interesting psychological research paper on people’s perceptions of the legitimacy of judicial decisionmaking. It has two basic conclusions. First, and not surprisingly, people tend to view decisions resulting in outcomes they agree with as more legitimate. And they don’t care as much about the reasoning when they agree with the outcome.

But the second finding has significant implications for how judicial decisions are written. The study assessed people’s views of the legitimacy of 4 kinds of written decisions: (1) a simple “party X wins” decision; (2) a decision giving one short reason why party X wins; (3) a decision listing several reasons favoring the victor, party X; and (4) a decision fairly setting forth each side’s arguments, acknowledging the difficulty of the issues presented, and then choosing party X as the victor because its arguments were, on balance, more persuasive.

In my 20 years of practice, I’ve seen several type (1) and type (3) decisions. I’ve seen fewer type (2) decisions, and fewer still examples of the most “legitimate” type (4) decisions. In fact, in the most significant (to me) appellate decision rendered in one of my cases, I very unsatisfactorily lost in a type (3) decision.

But this study – which concludes that further research is needed – certainly indicates that the judiciary could enhance its governmental legitimacy in the public’s eyes by issuing opinions that acknowledge both sides of an argument (where appropriate).

(HT to How Appealing for noticing the article)

UPDATE (8/5/2011):  Recently received a district court order denying a complicated 12(b)(1) motion I wrote concerning whether a DJ action actually raised a justiciable case or controversy.  It raised very subtle arguments.  The court basically ignored the complexities presented, significantly oversimplified our arguments, and wrote the opinion as if it were an easy decision (kind of like the appellate decision I referenced above -- a variation on the type (3) decision).  Nothing is more frustrating.  Rule against me?  Fine, I have no problem with that.  But at least accurately characterize my arguments and explain why you disagree.  Really, lawyers can handle an honest loss.       

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