June 22, 2010 — Gregory Mitchell, the Daniel Caplin Professor of Law at the University of Virginia, recently co-edited a book with U.Va. politics professor David Klein, "The Psychology of Judicial Decision-Making."

Mitchell, who holds both a J.D. and Ph.D. in psychology from the University of California, Berkeley, teaches courses in civil litigation and law and psychology, and his scholarship focuses on legal judgment and decision-making, the psychology of justice and the application of social science to legal theory and policy.

The Law School's Mary Wood recently sat down with Mitchell to talk about his new book.

Q. What makes this an interesting area of research right now?

A. There has been a resurgence of interest in empirical research within the legal academy over the last decade, but empirical studies of judging by legal scholars have tended to adopt the paradigms and measures most commonly used by political scientists who study judging. This book, which I conceived and edited with David Klein of the University of Virginia's Woodrow Wilson Department of Politics, tries to convince legal scholars and social scientists who are interested in judging that they would benefit from taking into account existing psychological research and methods, especially with respect to the study of judgment, decision-making and expertise. We were fortunate to receive funding from the National Science Foundation for a conference bringing together leading scholars from law, psychology and political science to discuss what psychology has to offer judicial studies, and the book is the ultimate product of that conference.

With respect specifically to the University of Virginia, this line of work is particularly exciting because we now have one of the strongest groups of judicial behavior scholars assembled at any American law school. With Ted White, Barry Cushman, Fred Schauer, Bobbie Spellman, Charles Barzun, Josh Fischman and Michael Gilbert all doing work on judicial behavior from historical, jurisprudential and empirical perspectives, we have one of the strongest and most varied group of scholars studying judicial behavior from more interdisciplinary perspectives.

Q. What has past research/scholarship shown about judicial decision-making? What does the scholarship in your book reveal that's different?

A. Despite the long-standing debate about the relative importance of the law versus individual characteristics of the judge, there has been surprisingly little progress made in understanding the motives and cognition of judges and the constraining power of the law on judicial decisions. We see this stagnation as due to an over-emphasis on the Supreme Court and simplistic models of judicial ideology and the law that are dominant within political science studies of judging and to an over-emphasis on juries within psychological studies of legal issues.

Our hope is that this book will bring greater psychological sophistication to studies of appellate and trial judges and will encourage psychologists in particular to pay greater attention to judges rather than juries given the much greater role of judges in our legal system. We also devote much more time than you see in most positive studies of judges to determining baseline standards for evaluation and considering the implications of judicial behavior studies. Our hope is that focusing on these foundational questions will help judicial behavior scholars frame their questions more clearly and helpfully.

Q. How is judicial decision-making different from the decisions people who aren't judges make?

A. This question is one of the central questions raised in the book and debated in chapters by Fred Schauer, Bobbie Spellman, Dan Simon, and Jim Shanteau and Len Dalgleish. While I tend to agree with the perspective that judges are more akin to experts than non-experts, as argued by Schauer and others, there are clearly areas where judges' legal expertise will not give them advantages over lay persons and where the law may need to give greater assistance to structure judicial tasks. Unfortunately, we are just starting to learn where judges are likely to perform better due to their expertise. Much more work remains to be done on this topic.

Q. Why do you think it's important to apply a social scientist's approach to a topic like judging?

A. There is considerable skepticism among many judges and legal scholars about the value of empirical research on judicial behavior, but much of this skepticism relates to the ability of empiricists to formulate meaningful tests of alternative normative positions and conduct causal tests of hypotheses. I share some of that skepticism, but any empirical approach proceeds on the assumption that reaching reliable descriptions about behavior, even if limited in their scope, should produce better assumptions for normative arguments. Further, empirical research can inform prescriptive approaches to judging, which aim to provide judges with legal tools that will help them better perform their jobs.

Q. How does this book fit into your broader research goals?

A. Much of my research examines the impact of different methodological choices and background assumptions on empirical findings and the generalizability of those findings, and this book is very much in that line of work. The authors question existing assumptions about and methods for studying judicial behavior and ask how a more explicit psychological perspective may lead to new insights.

Q. What do you hope to explore in your next book?

A. Philip Tetlock, a psychologist at the University of California, and I are currently working on a book that discusses leading narratives in the long-running debate over the causes of discrimination and group-based inequalities in American politics and law and the role of academic research – and the hard-core assumptions underneath this academic research – in sustaining this debate.