Heart versus head: Do judges follow the law or follow their feelings?

Texas Law Review

Volumn 93, Issue 4, 2015, Pages 855-923

  Wistrich, Andrew J ^a   Rachlinski, Jeffrey J ^b   Guthrie, Chris ^c  

^a United States District Court Central District of California ^*  (United States)

^b MIT Sloan School of Management   (United States)

^c VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 84925433121     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (271)

1. Letter from John Wesley to Joseph Benson (Oct. 5, 1770), in SELECT LETTERS, CHIEFLY ON PERSONAL RELIGION: BY THE REV. JOHN WESLEY 192, 193 (New York, T. Mason & G. Lane 1839).
2. EDWIN H. SUTHERLAND & DONALD R. CRESSEY, PRINCIPLES OF CRIMINOLOGY 431 (8th ed. 1970).
3. Skidmore v. Balt. & Ohio R.R. Co., 167 F.2d 54, 62 (2d Cir. 1948) (quoting ALBERT S. OSBORN, THE PROBLEM OF PROOF 112 (photo. reprint 1975) (1926)); see also JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 130 (1949) ("Many juries in reaching their verdicts act on their emotional responses to lawyers and witnesses....").
4. See VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 148 (1986) ("We must conclude that sometimes Mr. Prejudice and Miss Sympathy are sitting in the jury box."); Graham C. Lilly, The Decline of the American Jury, 72 U. COLO. L. REV. 53, 57 (2001) ("Too often, to capture the jury's emotion is to win the case."); James Marshall, Evidence, Psychology, and the Trial: Some Challenges to Law, 63 COLUM. L. REV. 197, 221 (1963) ("If a juror feels more sympathy for one party, or takes a strong dislike to a witness, that emotional response will affect, if not wholly determine, the weight he gives to the evidence."). But see Francis C. Dane & Lawrence S. Wrightsman, Effects of Defendants' and Victims' Characteristics on Jurors' Verdicts, in THE PSYCHOLOGY OF THE COURTROOM 83, 109 (Norbert L. Kerr & Robert M. Bray eds., 1982) ("[I]t remains difficult to state that extralegal characteristics are of sufficient strength to override the legal evidence presented during a trial."). See generally DENNIS J. DEVINE, JURY DECISION MAKING: THE STATE OF THE SCIENCE 91-121 (2012) (reviewing empirical literature on trial participant characteristics, and recognizing that certain characteristics have been shown to influence juror verdicts).
5. See NEIL VIDMAR & VALERIE P. HANS, AMERICAN JURIES: THE VERDICT 340 (2007) (praising the "jury's distinctive approach of commonsense justice" even when a jury diverges from the decision a judge would render). Patrick Henry praised the use of the jury as subjecting defendants to the judgment of "peers" who "are well acquainted with his character and situation in life." Patrick Henry, Speech in the Debates in the Convention of the Commonwealth of Virginia on the Adoption of the Federal Constitution (June 23, 1788), in 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, in 1787, at 576, 579 (Jonathan Elliot ed., 2d ed. 1876); see also Ferguson v. Moore, 39 S.W. 341, 343 (1897) ("Tears have always been considered legitimate arguments before a jury....").
6. See People ex rel. Union Bag & Paper Corp. v. Gilbert, 256 N.Y.S. 442, 444 (Sup. Ct. 1932) ("Every litigant is entitled to nothing less than the cold neutrality of an impartial judge who must possess the disinterestedness of a total stranger to the interests of the parties involved in the litigation...."); Ranger v. Great W. Ry. Co., (1854) 10 Eng. Rep. 824 (H.L.) 831 (appeal taken from Eng.) ("[A] judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other."); MIRJAN R. DAMASKA, THE FACES OF JUSTICE AND STATE AUTHORITY 19 (1986) (describing how a judge often "acquires the capacity of anesthetizing his heart"); Terry A. Maroney, The Persistent Cultural Script of Judicial Dispassion, 99 CALIF. L. REV. 629, 630 (2011) ("Insistence on emotionless judging—that is, on judicial dispassion—is a cultural script of unusual longevity and potency.").
7. See, e.g., 28 U.S.C. § 453 (2012) ("I, _, do solemnly swear (or affirm) that I will administer justice without respect to persons....").
8. See HANS & VIDMAR, supra note 4, at 148 ("[I]t is clear that Mr. Prejudice and Miss Sympathy cannot account for most of the disagreement between judge and jury."). Valeria Hans and Neil Vidmar were referring to the research of Harry Kalven and Hans Zeisel, who concluded that in roughly 20% of the criminal cases in which judges and juries disagreed on verdicts, the source of the disagreement was the sympathies of the jury. HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 217 (1966).
9. President Barack Obama, Press Briefing on Justice Souter's Retirement (May 1, 2009), available at http://www.whitehouse.gov/the_press_office/Press-Briefing-By-Press-Secretary-Robert-Gibbs-5-1-09, archived at http://perma.cc/6W6M-673F; see also Robert Alt, Sotomayor's and Obama's Identity Politics Leave Blind Justice at Risk, U.S. NEWS & WORLD REP., May 27, 2009, http://www.usnews.com/opinion/articles/2009/05/27/sotomayors-and-obamas-identity-poli tics-leave-blind-justice-at-risk, available at http://perma.cc/AX85-W442 ("[W]e need somebody who's got the heart—the empathy—to recognize what it's like to be a young teenage mom[,]... to be poor or African American or gay or disabled or old—and that's the criteria by which I'll be selecting my judges.").
10. See Maroney, supra note 6, at 636^40 (describing the reaction to President Obama's statements about judicial empathy and recognizing that criticism of empathy as undisciplined and undemocratic came primarily from those who saw empathy as an emotional standard).
11. See, e.g., Stephen G. Calabresi, Op-Ed., Obama's "Redistribution" Constitution, WALL ST. J., Oct. 28, 2008, http://online.wsj.com/articles/SB122515067227674187, archivedat http://perma.cc/C24B-X82R ("To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with the most.").
12. Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 17 (2009) (statement of Sen. Charles Grassley, Member, S. Comm. on the Judiciary) [hereinafter Sotomayor Confirmation Hearing]; 155 CONG. REC. 20,706 (2009) (statement of Sen. Charles Grassley) ("Justice is blind. Empathy is not. Empathetic judges take off the blindfolds and look at the party instead of merely weighing the evidence in light of what the law is.").
13. Sotomayor Confirmation Hearing, supra note 12, at 120.
14. The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 103 (2010). Justice Kagan was alluding to the "turtles all the way down" anecdote. See generally Stephen Hawking, A Brief History of Time 1 (10th anniversary ed. 1998) (providing a well-known version of the turtle story wherein a woman asserts the world sits on the back of a turtle, which in turn sits on another turtle, and thus "it's turtles all the way down.").
15. Alisa Chang, Obama Judicial Nominee Gets a Hostile Reception from Democrats, NPR (May 13, 2014, 4:05 PM), http://www.npr.org/2014/05/13/312197619/obama-judicial-nominee-gets-a-hostile-reception-from-democrats, archived at http://perma.cc/W2ZN-8ZJR. The Senate never confirmed Judge Boggs. Peter Sullivan, Obama Drops Nominee Opposed by CBC, BRIEFING ROOM, HILL (Dec. 31, 2014, 9:50 AM), http://thehill.com/blogs/blog-briefing-room/228303-obama-drops-controversial-nominee-opposed-by-black-caucus, archived at http:// perma.cc/T5FG-63XV.
16. Denny Chin, Essay, Sentencing: A Role for Empathy, 160 U. PA. L. REV. 1561, 1563-64 (2012).
17. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 883-84 (2006) (expressing the concern that common law judges focus on the "this-ness" of each case, and if a case is not representative of the full array of events that a rule or principle will cover, the judge's ruling may lead to a distortion in lawmaking).
18. William J. Brennan, Jr., Reason, Passion, and "The Progress of the Law," 10 CARDOZO L. REV. 3 (1988).
19. Id. at 10.
20. 397 U.S. 254 (1970).
21. See Brennan, supra note 18, at 20 ("Goldberg can be seen as injecting passion into a system whose abstract rationality had led it astray.").
22. E.g., Owen M. Fiss, Reason in All Its Splendor, 56 BROOK. L. REV. 789, 796-97 (1991).
23. State v. Cutts, No. 2008CA000079, 2009 WL 2170687, at *36 (Ohio Ct. App. July 22, 2009) (Hoffman, J., concurring).
24. Commonwealth v. White, 910 A.2d 648, 658 (Pa. 2006) (internal quotation marks omitted).
25. Maroney, supra note 6, at 631.
26. Pub. Util. Comm'n v. Pollak, 343 U.S. 451, 466 (1952) (statement of Frankfurter, J.).
27. Id. ("But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware.").
28. United States v. Ballard, 322 U.S. 78, 94 (1944) (Jackson, J., dissenting).
29. ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES 32 (2008).
30. ROBERT SATTER, DOING JUSTICE: A TRIAL JUDGE AT WORK 78 (1990).
31. FRANK M. COFFIN, ON APPEAL: COURTS, LAWYERING, AND JUDGING 255 (1994).
32. RICHARD A. POSNER, HOW JUDGES THINK 119 (2008).
33. Id. at 106 ("[Emotion] is triggered by, and more often than not produces rational responses to, information.").
34. See United States v. Wexler, 79 F.2d 526, 529-30 (2d Cir. 1935) ("It is impossible to expect that a criminal trial shall be conducted without some show of feeling; the stakes are high, and the participants are inevitably charged with emotion.").
35. Sharyn Roach Anleu & Kathy Mack, Magistrates' Everyday Work and Emotional Labour, 32 J.L. & SOC'Y 590, 611 (2005).
36. Carrington v. United States, 503 F.3d 888, 899 (9th Cir. 2007) (Pregerson, J., concurring in part and dissenting in part) (quoting GERRY SPENCE, OF MURDER AND MADNESS 378 (1983)); see also Terry A. Maroney, Angry Judges, 65 VAND. L. REV. 1207, 1208 (2012) ("Judges get angry.").
37. See, e.g., Maroney, supra note 6, at 652-57 ("The realist take on judicial emotion, though thin, revolved around two core ideas: it exists, and it exerts greater influence over the processes and products of judging than previously had been acknowledged.").
38. See Jerome M. Frank, Are Judges Human? Part One: The Effect on Legal Thinking of the Assumption That Judges Behave Like Human Beings, 80 U. PA. L. REV. 17, 25 (1931) (noting the Holmesian argument that "'[t]he personal element is unavoidable in judicial decisions'"); Maroney, supra note 6, at 652-53 (describing the "emotional element" of legal realism).
39. Hessel E. Yntema, The Hornbook Method and the Conflict of Laws, 37 YALE L.J. 468, 480 (1928).
40. See LOUIS P. GOLDBERG & ELEANORE LEVENSON, LAWLESS JUDGES 7 (1935) ("It is puerile to imagine that by the assumption of the ermine a judge is transformed from an ordinary human being of flesh, blood, passions and learnings, to a cold, calculating and disinterested applier of the law."); Shirley A. Abrahamson, A View from the Other Side of the Bench, 69 MARQ. L. REV. 463, 491 (1986) ("Judges, like jurors, have personal predilections and values."); Maroney, supra note 6, at 640—42 (noting the "apparent futility of the script of judicial dispassion"); Soia Mentschikoff, The Significance of Arbitration—A Preliminary Inquiry, 17 LAW & CONTEMP. PROBS. 698, 701 (1952) ("The felt drive for the just result, even when hidden below the manipulation of prior cases and statutes, has always been present."); Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment, 74 CORNELL L. REV. 655, 665-66 (1989) (labeling the idea that judgment in criminal cases is dispassionate as a "myth").
41. See Brennan, supra note 18, at 4 (labeling as "almost unimaginable today" the early twentieth-century formalist conception of the judge as "a legal pharmacist, dispensing the correct rule prescribed for the legal problem presented").
42. See LEE EPSTEIN, WILLIAM M. LANDES & RICHARD A. POSNER, THE BEHAVIOR OF FEDERAL JUDGES: A THEORETICAL AND EMPIRICAL STUDY OF RATIONAL CHOICE 65-85 (2013) (reviewing the literature on political orientation and judicial decision making). See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 115-77 (2002) (summarizing how the political orientation of justices has influenced Supreme Court decisions through various periods of United States history); CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY (2006) (presenting a detailed study of the voting patterns of Democratic and Republican appointees on federal appellate courts).
43. See LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR 4 (2006) (arguing that judges may try to gain approbation of particular audiences through their decisions and policies).
44. ee Adam N. Glynn & Maya Sen, Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues?, 59 AM. J. POL. SCI. 37, 38 (2015) (demonstrating that "judges with at least one daughter vote in a more liberal fashion on gender issues than judges with sons").
45. See supra notes 29-33 and accompanying text.
46. See R.B. Zajonc, Feeling and Thinking: Preferences Need No Inferences, 35 AM. PSYCHOLOGIST 151, 153 (1980) ("There are probably very few perceptions and cognitions in everyday life that do not have a significant affective component....").
47. See id. (explaining that emotional reactions can precede deliberative thought processes).
48. See R.J. Dolan, Emotion, Cognition, and Behavior, 298 SCIENCE 1191, 1191-92 (2002) (describing how emotional stimuli influence perception separate from attentional mechanisms).
49. See Seymour Epstein, Integration of the Cognitive and the Psychodynamic Unconscious, 49 AM. PSYCHOLOGIST 709, 716 (1994) ("When a person responds to an emotionally significant event... [t]he experiential system automatically searches its memory banks for related events....").
50. See Dolan, supra note 48, at 1194 (suggesting that "emotion-related processes can advantageously bias judgment and reason").
51. See Joshua D. Greene, The Secret Joke of Kant's Soul, in 3 MORAL PSYCHOLOGY: THE NEUROSCIENCE OF MORALITY: EMOTION, BRAIN DISORDERS AND DEVELOPMENT 35, 36 (Walter Sinnott-Armstrong ed., 2008) ("[P]eople make choices for reasons unknown to them, and they make up reasonable-sounding justifications for their choices, all the while remaining unaware of their actual motives and subsequent rationalizations."); Piotr Winkielman & Kent C. Berridge, Unconscious Emotion, 13 CURRENT DIRECTIONS PSYCHOL. SCI. 120, 120 (2004) (suggesting that entirely unconscious emotional processes may drive a person's behavior and reactions).
52. See Ronald de Sousa, Here's How I Feel: Don't Trust Your Feelings!, in EMOTIONS AND RISKY TECHNOLOGIES 17, 22 (Sabine Roeser ed., 2010) ("Even in our attempts to reason rigorously, we are susceptible to the influence of emotions."); Zajonc, supra note 46, at 156 ("Unlike judgments of objective stimulus properties, affective reactions... cannot always be voluntarily controlled.").
53. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 6-9 (2007).
54. See supra note 31 and accompanying text.
55. See generally DUAL-PROCESS THEORIES IN SOCIAL PSYCHOLOGY (Shelly Chaiken & Yaacov Trope eds., 1999) (delineating the history of the dual-process model); DANIEL KAHNEMAN, THINKING, FAST AND SLOW 20-26 (2011) (explaining this dual-process model of thinking). The labels "System 1" and "System 2" were first used by psychologists Keith Stanovich and Richard West. Keith E. Stanovich & Richard F. West, Individual Differences in Reasoning: Implications for the Rationality Debate?, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 421, 436 (Thomas Gilovich eds., 2002).
56. Daniel Kahneman & Shane Frederick, Representativeness Revisited: Attribute Substitution in Intuitive Judgment, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT, supra note 55, at 49, 49; see also KAHNEMAN, supra note 55, at 24 ("System 1 continuously generates... impressions, intuitions, intentions, and feelings.").
57. Kahneman & Frederick, supra note 56, at 49.
58. See Daniel T. Gilbert, Inferential Correction, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT, supra note 55, at 167, 167 ("[O]ne of psychology's fundamental insights is that judgments are generally the product of nonconscious systems that operate quickly, on the basis of scant evidence, and in a routine manner, and then pass their hurried approximations to consciousness, which slowly and deliberately adjusts them.").
59. Guthrie, Rachlinski & Wistrich, supra note 53, at 13-19.
60. Id. at 27-28.
61. Amos Tversky & Daniel Kahneman, Extensional Versus Intuitive Reasoning: The Conjunction Fallacy in Probability Judgment, 90 PSYCHOL. REV. 293, 297 (1983).
62. See KAHNEMAN, supra note 55, at 158 (noting that the Linda problem "had pitted logic against representativeness, and representativeness had won"). As Daniel Kahneman noted, the Linda problem is "a magnet for critics," but it has nevertheless withstood numerous efforts to discredit the basic result that people use the intuitive social script rather than deductive logic to respond to the question. Id. at 164-65.
63. See STEPHEN JAY GOULD, BULLY FOR BRONTOSAURUS: REFLECTIONS IN NATURAL HISTORY 469 (1991) ("I know that the [combined] statement is least probable, yet a little homunculus in my head continues to jump up and down, shouting at me—'but she can't just be a bank teller; read the description.'").
64. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, The "Hidden Judiciary": An Empirical Examination of Executive Branch Justice, 58 DUKE L.J. 1477, 1510-12 (2009).
65. Id. at 1511.
66. Cf. Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242, 253-55 (1986) (arguing that jurors use stories to assess and organize complicated evidence, particularly in criminal trials).
67. See ROBIN M. HOGARTH, EDUCATING INTUITION 65 (2001) ("Emotions and affect are clearly part of our intuitive processes...."); DAVID G. MYERS, INTUITION: ITS POWERS AND PERILS 38 (2002) ("Some of our emotional reactions apparently involve no deliberate thinking."); Hayley Bennett & G.A. Broe, Judicial Decision-Making and Neurobiology: The Role of Emotion and the Ventromedial Cortex in Deliberation and Reasoning, 31 AUSTL. J. FORENSIC SCI. 11, 15¬16 (2010) (explaining that emotions will be accessed automatically by the ventromedial cortex as an aspect of System 1 processing). But see de Sousa, supra note 52, at 22 ("In relation to the mind's two tracks, emotions are intrinsically hybrid.... They belong to both the Intuitive and the Analytic Systems.").
68. See ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN 51 (1994) (concluding that the inability to experience feelings rendered an otherwise normal person incapable of making sound decisions).
69. See KAHNEMAN, supra note 55, at 103 (explaining that "[i]n the context of attitudes... System 2 is more of an apologist for the emotions of System 1 than a critic of those emotions—an endorser rather than an enforcer"). Essentially, System 2 searches for information in a way "consistent with existing beliefs," so an "active, coherence seeking System 1" can provide answers to an "undemanding System 2." Id. at 103-04. This proposition is consistent with Kahneman's assertion that "[a]s we navigate our lives, we normally allow ourselves to be guided by impressions and feelings, and the confidence we have in our intuitive beliefs and preferences is usually justified. But not always." Id. at 4.
70. See Sang Hee Park, Jack Glaser & Eric D. Knowles, Implicit Motivation to Control Prejudice Moderates the Effect of Cognitive Depletion on Unintended Discrimination, 26 SOC. COGNITION 401, 402 (2008) (noting that biases cannot always predict behavior because "[i]ndividuals who are both biased and high in egalitarian motivation deliberately prevent their biases from resulting in overt manifestations").
71. See Brennan, supra note 18, at 11-12.
72. See Eldar Shafir, Itamar Simonson & Amos Tversky, Reason-Based Choice, 49 COGNITION 11, 32 (1993) ("People's choices may occasionally stem from affective judgments that preclude a thorough evaluation of the options."). See generally Paul Slovic et al., The Affect Heuristic, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT, supra note 55, at 397, 400 ("In the process of making a judgment or decision, people consult or refer to an 'affect pool' containing all the positive and negative tags consciously or unconsciously associated with the representations.").
73. See Paul Slovic et al., Rational Actors or Rational Fools: Implications of the Affect Heuristic for Behavioral Economics, 31 J. SOCIO-ECON. 329, 329 (2002); see also WILLIAM WUNDT, OUTLINES OF PSYCHOLOGY 216 (Charles Hubbard Judd trans., 1897) (noting that "the clear apperception of ideas in acts of cognition and recognition is always preceded by special feelings"); William H. Ittelson, Environmental Perception and Contemporary Perceptual Theory, in ENVIRONMENT AND COGNITION 1, 16 (William H. Ittelson ed., 1973) ("The first level of response to the environment is affective.").
74. Slovic et al., supra note 75, at 329-30.
75. KAHNEMAN, supra note 55, at 139.
76. See Zajonc, supra note 46, at 155 (explaining that while "[w]e sometimes delude ourselves that we proceed in a rational manner and weigh all the pros and cons of the various alternatives," that is "seldom the actual case" because "often 'I decided in favor of X' is no more than 'I liked X'"). Zajonc believes that "[w]e buy the cars we 'like,' choose the jobs and houses we find 'attractive,' and then justify those choices by various reasons that might appear convincing to others...." Id.; see also JOHN A. FARRELL, CLARENCE DARROW: ATTORNEY FOR THE DAMNED 287 (2011) ("If a man wants to do something, and he is intelligent, he can give a reason for it… . You've got to get [the juror] to want to do it … That is how the mind acts.").
77. See Zajonc, supra note 46, at 170 (contending that before humans developed higher order language and cognitive capabilities, "it was the affective system alone upon which the organism relied for its adaptation").
78. See KAHNEMAN, supra note 55, at 139 ("The affect heuristic is an instance of substitution, in which the answer to an easy question (How do I feel about it?) serves as an answer to a much harder question (What do I think about it?).").
79. See DAMASIO, supra note 70, at 50-51 (illustrating this principle with a case study suggesting that individuals with certain brain abnormalities lack the ability to feel emotion, which impairs their ability to make decisions).
80. Slovic et al., supra note 75, at 339.
81. See supra note 9 and accompanying text.
82. See supra text accompanying notes 13-16.
83. Henri Tajfel & John C. Turner, The Social Identity Theory of Intergroup Behavior, in PSYCHOLOGY OF INTERGROUP RELATIONS 7, 13 (Stephen Worchel & William G. Austin eds., 2d ed. 1986).
84. See WILLIAM GRAHAM SUMNER, FOLKWAYS: A STUDY OF THE SOCIOLOGICAL IMPORTANCE OF USAGES, MANNERS, CUSTOMS, MORES, AND MORALS para. 15, at 13 (1906) ("[Ethnocentrism is the] view of things in which one's own group is the center of everything, and all others are scaled and rated with reference to it… . Each group nourishes its own pride and vanity, boasts itself superior, exalts its own divinities, and looks with contempt on outsiders.").
85. See Yan Chen & Sherry Xin Li, Group Identity and Social Preferences, 99 AM. ECON. REV. 431, 431 (2009) ("When we belong to a group, we are likely to derive our sense of identity, at least in part, from that group.").
86. ee ANNE S. TSUI & BARBARA A. GUTEK, DEMOGRAPHIC DIFFERENCES IN ORGANI¬ZATIONS: CURRENT RESEARCH AND FUTURE DIRECTIONS 51 (1999).
87. See Charles Stangor & John T. Jost, Commentary: Individual, Group and System Levels of Analysis and Their Relevance for Stereotyping and Intergroup Relations, in THE SOCIAL PSYCHOLOGY OF STEREOTYPING AND GROUP LIFE 336, 346 (Russell Spears et al. eds., 1997).
88. See Mark Van Vugt & Tatsuya Kameda, Evolution and Groups, in GROUP PROCESSES 297, 316 (John M. Levine ed., 2012).
89. Id. ("People also tend to be more forgiving of moral transgressions from outgroup members than ingroup members.").
90. See FRITZ HEIDER, THE PSYCHOLOGY OF INTERPERSONAL RELATIONS 204-05 (1958) (presenting statistical evidence in support of a theory of a "balance theory" whereby individuals exhibited a "significant tendency for harmonious situations" over "unbalanced ones"). See generally LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE (1957) (hypothesizing that the psychological stress of holding contradictory beliefs motivates individuals to strive toward internal consistency and to avoid situations that highlight or enhance their inconsistent beliefs).
91. Ziva Kunda, The Case For Motivated Reasoning, 108 PSYCHOL. BULL. 480, 493 (1990).
92. See Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski, "They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction, 64 STAN. L. REV. 851, 853 (2012) (discussing how emotional loyalty to a group influences perceptions of a rival group).
93. See Kunda, supra note 93, at 494 (describing how motivated beliefs "enhance the accessibility of those knowledge structures—memories, beliefs, and rules—that are consistent with desired conclusions").
94. See id. at 480 (hypothesizing that motivation may lead to reliance on biased cognitive processes).
95. Id. at 493.
96. See id. at 483 (explaining how people use memory and belief to construct support for their desired conclusions).
97. See id. at 495 ("People are more likely to arrive at those conclusions that they want to arrive at.").
98. See Brent L. Hughes & Jamil Zaki, The Neuroscience of Motivated Cognition, 19 TRENDS COGNITIVE SCI. 62, 62-63 (2015) (describing motivated cognition as the phenomenon "by which the goals and needs of individuals steer their thinking towards desired conclusions" and explaining that it affects a "wide array of judgments and perception").
99. JEROME FRANK, LAW AND THE MODERN MIND 112 (Anchor Books 1963) (1930).
100. PATRICK DEVLIN, THE JUDGE 91 (1979).
101. Kahan et al., supra note 94.
102. See supra note 42 and accompanying text.
103. See Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 537-38 (2004) (demonstrating that subjects were more likely to return a verdict in favor of a hypothetical defendant if they received positive information about him).
104. Keith J. Holyoak & Dan Simon, Bidirectional Reasoning in Decision Making by Constraint Satisfaction, 128 J. EXPERIMENTAL PSYCHOL.: GEN. 3, 5 (1999).
105. Id. at 11-12.
106. Id. at 13-14.
107. See id. at 14-16 ("Perhaps most remarkably, the experimental manipulation of Smith's character in the Quest case influenced the Q-score for Credit in the Infoscience case.").
108. See Rainer Greifeneder, Herbert Bless & Michel Tuan Pham, When Do People Rely on Affective and Cognitive Feelings in Judgment?: A Review, 15 PERSONALITY & SOC. PSYCHOL. REV. 107, 134 (2011) (concluding that people use feelings as information "much more frequent[ly] than is often assumed" and calling for "more faith in the evidentiary status of feelings").
109. See Peter H. Ditto, David A. Pizarro & David Tannenbaum, Motivated Moral Reasoning, in 50 THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL JUDGMENT AND DECISION MAKING 307, 310 (Daniel M. Bartels et al. eds., 2009) (explaining that "[p]eople make more charitable attributions for the behavior of people they like than for those they dislike").
110. See See id. at 316.
111. See id. at 317.
112. See id. at 316-17.
113. Kunda, supra note 93, at 482-83 (citations omitted).
114. See Ditto et al., supra note 111, at 314 ("People only bend data and the laws of logic to the point that normative considerations challenge their view of themselves as fair and objective judges, and motivated reasoning effects are most pronounced in situations where plausibility constraints are loose and ambiguous." (citations omitted)); Kunda, supra note 93, at 495 ("[M]otivation will cause bias, but cognitive factors such as the available beliefs and rules will determine the magnitude of the bias.").
115. See POSNER, supra note 32, at 106 ("A judge is likely to set some emotional reactions to one side, such as a personal liking for a litigant or his lawyer, because they are forbidden moves in the judicial game … .); Terry A. Maroney, Emotional Regulation and Judicial Behavior, 99 CALIF. L. REV. 1485, 1496 (2011) ("For judges, the ideal of judicial dispassion supplies the workplace norm; they are expected both to feel and project affective neutrality.").
116. See BAUM, supra note 43, at 158 ("[J]udging can be understood as self-presentation to a set of audiences. Judges seek the approval of other people, and their interest in approval affects their choices on the bench."); POSNER, supra note 32, at 61, 62 ("Most judges … derive considerable intrinsic satisfaction from their work and want to be able to regard themselves and be regarded by others as good judges." (footnote omitted)).
117. KARL N. LLEWELLYN, THE BRAMBLE BUSH: SOME LECTURES ON LAW AND ITS STUDY 73 (1930).
118. See supra notes 13-33 and accompanying text.
119. See Maroney, supra note 118, at 1494 (arguing that judges should embrace, rather than suppress, emotion in their decision making).
120. See supra note 42 and accompanying text.
121. Richard E. Redding & N. Dickon Reppucci, Effects of Lawyers' Socio-Political Attitudes on Their Judgments of Social Science in Legal Decision Making, 23 LAW & HUM. BEHAV. 31, 51 (1999).
122. Glynn & Sen, supra note 44, at 38.
123. See supra notes 103-09 and accompanying text.
124. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777, 7k84-87 (2001) (describing our methodology).
125. See generally ROBERT M. LAWLESS, JENNIFER K. ROBBENNOLT & THOMAS S. ULEN, EMPIRICAL METHODS IN LAW 104 (2010) (describing "between-subjects" experimental designs).
126. When we do not mention demographic effects in describing the results of an experiment it is because we did not observe any significant effects.
127. Typically only one or two judges in each session indicated that they would prefer that we do not use their surveys in our analysis, and we always honor such requests. We report the number of judges who failed to respond to a particular hypothetical in our description of the results of each experiment.
128. See Avani Mehta Sood & John M. Darley, The Plasticity of Harm in the Service of Criminalization Goals, 100 CALIF. L. REV. 1313, 1357 (2012) ("Judicial samples are difficult to come by, but further experimental research is needed to explore the extent to which judges may be subconsciously susceptible to the type of motivated cognition demonstrated in the present studies.").
129. Maroney, supra note 118, at 1496.
130. See Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. REV. 1049, 1065 (2006) (the "role of emotion and intuition … is concealed" in judicial opinions because such a basis for decision "would not provide helpful guidance to bench or bar").
131. See Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 302 (2007) (documenting wide disparities between judges in asylum cases).
132. See infra Appendix A.
133. N.Y. PENAL LAW § 221.15 (McKinney 2008).
134. U.S. SENTENCING COMM'N, GUIDELINES MANUAL § 2L2.1(b)(5)(B) (2013).
135. Among the judges who reviewed the version with the father, 10 did not respond; among those who reviewed the version with the killer, 7 did not respond.
136. Fisher's exact test,p = 0.0003.
137. F(1, 95) = 23.8, p < 0.001; F(1, 95) = 26.4, p < 0.001; F(1, 95) = 0.16, p > 0.5 (respectively for condition, ruling, and interaction).
138. z = 3.09, p = 0.003; z = 1.97, p = 0.05; z = 0.25, p = 0.81 (respectively for condition, experience, and interaction).
139. z = 2.17, p = 0.03; z = 2.68, p = 0.007; z = 1.98, p = 0.05 (for condition, gender, and interaction, respectively).
140. z = 0.71,p = 0.48; z = 0.44,p = 0.66 (for party and interaction, respectively).
141. DEVLIN, supra note 102, at 94.
142. See, e.g., 18 U.S.C. § 3553(a) (2012) (requiring judges to consider a number of factors separate from the elements of a given offense, such as "the nature and circumstances of the offense and the history and characteristics of the defendant," so as to impose a sentence that is "sufficient, but not greater than necessary").
143. See supra note 42 and accompanying text.
144. See infra Appendix B.
145. Among the judges who reviewed the case of the nineteen-year-old, three did not respond; among the judges who reviewed the case of the fifty-five-year-old, one did not respond.
146. Fisher's exact test,p = 0.0002.
147. This analysis was performed by running a logistic regression of the decision on the condition, years of experience, and an interaction term. Neither experience nor the interaction term was significant (z = 0.90, p = 37; z = 0.57, p = 57, respectively).
148. A logistic regression of the ruling was run on the condition—a dummy code for the Canadian criminal judges, a dummy code for the New York judges, and interaction terms for these dummy codes. In addition to the significant effect of condition (z = 12.6, p < 0.001), only the dummy code for the interaction term for the New York judges was significant in this model (z = 8.04, p = 0.001).
149. See KALVEN & ZEISEL, supra note 8, at 194 n.5 ("If the defendant has suffered certain misfortunes between crime and trial, the jury may take the view that life or providence has sufficiently punished him and that further legal punishment would serve no useful social purpose.").
150. See Ronald H. Aday & Jennifer J. Krabill, Aging Offenders in the Criminal Justice System, 7 MARQ. ELDER'S ADVISOR 237, 241-42 (2006) (stating that, although "[r]esearch is mixed regarding whether age plays a substantial role in sentencing," the weight of scholarly opinion tends toward leniency against elderly offenders); Darrell Steffensmeier & Mark Motivans, Older Men and Older Women in the Arms of Criminal Law: Offending Patterns and Sentencing Outcomes, 55 J. GERONTOLOGY, SERIES B: PSYCHOL. & SOC. SCI. S141, S149 & tbl.4 (2000) (concluding that older offenders of both genders were sentenced less harshly than younger offenders, except for drug-related offenses).
151. See infra Appendix C.
152. A so-called "facial challenge" to the constitutionality of a state, local rule, or policy alleges that the rule or policy is unconstitutional in every context in which it might be applied. See, e.g., United States v. Stevens, 559 U.S. 460, 472 (2010) ("To succeed in a typical facial attack [the plaintiff] would have to establish that no set of circumstances exist under which [the statute, rule, or policy] would be valid, or that the statute lacks any plainly legitimate sweep." (citations omitted) (internal quotations marks omitted)).
153. 441 U.S. 520 (1979).
154. Id at 545-58.
155. See Daphne Ha, Note, Blanket Policies for Strip Searching Pretrial Detainees: An Interdisciplinary Argument for Reasonableness, 79 FORDHAM L. REV. 2721, 2744-52 (2011).
156. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1518-20 (2012) (holding that even persons arrested for minor offenses or traffic violations may be strip searched before being introduced into the general population of a jail).
157. We have previously found that steering judges' attention toward one aspect of a case and away from another can influence their decisions. Jeffrey J. Rachlinski, Andrew J. Wistrich & Chris Guthrie, Altering Attention in Adjudication, 60 UCLA L. REV. 1586, 1589-90 (2013) (summarizing the results of four experiments examining the effects of drawing a judge's attention to a specific part of a case).
158. One judge in the female-individual condition, one judge in the female-class action condition, and two judges in the male-individual condition did not respond.
159. z = 0.08, p = 0.93; z = 3.60, p < 0.001; z = 1.80, p = 0.07 (for procedure, plaintiff, and interaction, respectively).
160. Logistic regression produced no significant main effects or interactions.
161. We also presented a different version of these materials to 60 Ohio appellate judges. We asked these judges to reverse or affirm a lower court ruling declaring the city's policy unconstitutional. We described the plaintiff either as an armed robber (who was nearly identical to the one in the problem above) or as a Catholic nun arrested in an antiwar protest. Among the 24 judges who read about the robber, 63% upheld the lower court ruling declaring the policy unconstitutional, but only 48% of the 29 judges who read about the nun did so. Although that trend is in the reverse direction of what we predicted, it was not significant. Fisher's exact test: p = 0.41. Concern that the politics of antiwar protests might also be influencing the judges and that we needed all four conditions to assess whether and to what extent the judges were being influenced by sympathy led us to conduct the study we report in full. Furthermore, unlike virtually all of our other studies, our initial study involved appellate review of a trial court decision.
162. See, e.g., Cassia Spohn, The Effects of the Offender's Race, Ethnicity, and Sex on Federal Sentencing Outcomes in the Guidelines Era, 76 LAW & CONTEMP. PROBS. 75, 96 (2013) ("Males also received longer sentences than females.").
163. See John Dwight Ingram, Prison Guards and Inmates of Opposite Genders: Equal Employment Opportunity Versus Right of Privacy, 7 DUKE J. GENDER L. & POL'Y 3, 14-15 (2000).
164. See Status of Bankruptcy Judgeships, U.S. COURTS (Sept. 30, 2013), http://www.uscourt s.gov/Statistics/JudicialBusiness/2013/status-bankruptcy-judgeships.aspx#t12, archived at http://p erma.cc/XQ7D-MWQU (listing 350 authorized bankruptcy judgeships in 2012).
165. See 11 U.S.C. § 523(a)(2)(A) (2012) (exempting from discharge a debt obtained by "false pretenses, a false representation, or actual fraud").
166. See infra Appendix D.
167. See 4 COLLIER ON BANKRUPTCY 1 523.08[1][e] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2009) (defining "actual fraud" as "any deceit, artifice, trick, or design involv[ing] direct and active operation of the mind, used to circumvent and cheat another"); 1 CONSUMER BANKRUPTCY LAW AND PRACTICE § 15.4.3.2.2.6 (Henry J. Sommer ed., 10th ed. 2012) (describing factors considered in determining whether a debtor intended to deceive).
168. See supra notes 165-66 and accompanying text.
169. Among the judges who reviewed the version involving the sick mother, three did not respond. All of the judges who reviewed the version involving the spring break responded.
170. Fischer's exact test,p = 0.0041.
171. Logistic regression of the decision on condition, gender of debtor, and an interaction revealed no significant effect of gender (z = 0.21, p = 0.83) or of the interaction (z = 0.45, p = 0.63), respectively.
172. Logistic regression of the decision on condition, gender, and an interaction revealed no significant effect of gender (z = 0.27, p = 0.79) or of the interaction (z = 0.35, p = 0.73), respectively.
173. This analysis was performed by running a logistic regression of the decision on the condition, years of experience, and an interaction term. Neither experience nor the interaction term were significant (z = 0.92, p = 0.36; z = 1.66, p = 0.098, respectively).
174. The political party differences were not significant. Logistic regression of the decision on condition, party, and an interaction revealed no significant effect of political party (z = 0.11, p = 0.91) or of the interaction (z = 0.18, p = 0.86), respectively. This result conflicts with a previous study in which we found that political party influenced bankruptcy judges' willingness to discharge debt. Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Inside the Bankruptcy Judge's Mind, 86 B.U. L. REV. 1227, 1247-48 (2006).
175. See Jeffrey Bellin, Crime-Severity Distinctions in the Fourth Amendment: Reassessing Reasonableness in a Changing World, 97 IOWA L. REV. 1, 4-5 (2011) (noting that "the legal standard for evaluating a search (or seizure) is the same whether a police officer suspects that a person jaywalked or is the Green River Killer"); William J. Stuntz, Commentary, O.J. Simpson, Bill Clinton, and The Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842, 869 (2001) ("Fourth Amendment law generally treats all crimes alike.").
176. Costs and benefits of suppressing evidence are weighed in some aspects of Fourth Amendment law but are not based on the severity of the offense. See Herring v. united States, 555 u.S. 135, 141 (2009) (holding that, when applying the exclusionary rule, "the benefits of deterrence must outweigh the costs"); United States v. Calandra, 414 U.S. 338, 348 (1974) (explaining that the application of the exclusionary rule "has been restricted to those areas where its remedial objectives are thought most efficaciously served").
177. See infra Appendix E. This scenario was inspired by Sood & Darley, supra note 131, at 1328.
178. 489 U.S. 602, 628 (1989).
179. Id. at 633-34.
180. Am. Fed'n of Gov't Emps., AFL-CIO v. Skinner, 885 F.2d 884, 886-87 & n.4 (D.C. Cir. 1989).
181. The high rate of nonresponses among the Connecticut judges is attributable to the format used at the Connecticut presentation. Judges responded to the questions using both audience response cards and by completing the questionnaire on paper. In Connecticut, 27 judges responded only with the response cards or responded occasionally; these judges are not included in the analysis (and were not counted, as we cannot be certain they read and responded to this scenario). Only the 145 judges who turned in paper surveys were included in the analysis.
182. Among the judges reviewing the marijuana version, 36 did not respond; among the judges reviewing the heroin version, 35 did not respond.
183. Fisher's exact test,p = 0.08.
184. Fisher's exact test,p = 0.04.
185. For each demographic parameter, we ran a logistic regression on the condition, the demographic parameter, and an interaction term. In all cases, z's < 1.5 and p's > 0.15.
186. See SATTER, supra note 30, at 148 ("When faced with motions to suppress, I disregard the incriminating nature of the evidence being challenged and rigorously concentrate on the constitutional question of whether or not the evidence was obtained legally.").
187. See Rachlinski, Wistrich & Guthrie, supra note 160, at 1613-15 (summarizing findings showing that judges were less able to disregard a confession obtained as a result of severe police misconduct when the crime was murder than when the crime was robbery).
188. Jeffrey A. Segal & Benjamin Woodson, Motivated Cognition on the Bench: Does Criminal Egregiousness Influence Judges' Beliefs About Police Wrongdoing? 23 (April 23, 2014) (unpublished manuscript), available at http://isps.yale.edu/sites/default/files/files/segal-woodson.p df, archived at http://perma.cc/5KNE-NXE5.
189. 28 U.S.C. § 1332 (2012).
190. Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78-79 (codified as amended at 28 U.S.C. § 1332).
191. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553-54 (2005); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 5.3.2 (6th ed. 2012); Scott R. Haiber, Removing the Bias Against Removal, 53 CATH. U. L. REV. 609, 614-15 (2004).
192. See Debra Lyn Bassett, The Hidden Bias in Diversity Jurisdiction, 81 WASH. U. L.Q. 119, 123 (2003) ("The historical purpose behind diversity jurisdiction is unclear, and its utility has long been controversial." (footnotes omitted)); Tammy A. Sarver, Resolution of Bias: Tort Diversity Cases in the United States Court of Appeals, 28 JUST. SYS. J. 183, 186 (2007) ("[J]ust as controversy and debate plagued the Framers in the establishment of such a powerful grant of federal jurisdiction, disagreement continues to characterize the discussions regarding the modern propriety of retaining diversity jurisdiction.").
193. CHEMERINSKY, supra note 194, § 5.3, at 313.
194. Id. § 5.3, at 311-12. Lawyers appear to disagree about whether state court bias against out-of-state litigants still exists. Compare Nima Mohebbi, Craig Reiser & Samuel Greenberg, A Dynamic Formula for the Amount in Controversy, 7 FED. CTS. L. REV. 95, 110 (2013) ("[T]he original justifications for diversity jurisdiction have eroded over time."), with Jerry Goldman & Kenneth S. Marks, Diversity Jurisdiction and Local Bias: A Preliminary Empirical Inquiry, 9 J. LEGAL STUD. 93, 98 & tbl.1 (1980) (reporting that 40% of attorneys sureyed cited "bias against an out-of-state resident" as a reason for choosing a federal forum), and Note, The Choice Between State and Federal Court in Diversity Cases in Virginia, 51 VA. L. REV. 178, 179 & tbl.1 (1965) (reporting that 60.3% of attorneys surveyed considered local prejudice against an out-of-state plaintiff as a reason for preferring a federal forum).
195. CHEMERINSKY, supra note 194, § 5.3, at 313.
196. Michael Rustad & Thomas Koenig, The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. REV. 91, 142 n.248 (1993) (quoting Joani Nelson-Horchler, Lobby the Courts, State Judge Says, but Critics Balk, IND. WK., Nov. 1988, at 36, 36.) (internal quotation marks omitted).
197. This might be an example of so-called "cause judging." See JAN PAULSSON, THE IDEA OF ARBITRATION 259 (2013) ("Judicial corruption or bias (such as local favoritism) involves pathologies that need to be studied as such."); Justin Hansford, Cause Judging, 27 GEO. J. LEGAL ETHICS 1, 10 (2014) ("[T]he cause judge rejects the core idea of non-accountability so important to the standard conception of the judge's role, … and instead takes moral responsibility for the impact of his or her rulings on the community.").
198. See Thomas v. Gillen, 491 F. Supp. 24, 26 n.1 (E.D. Va. 1980) ("This Court will not conceal its disaffection for the notion that federal jurisdiction over disputes between citizens of different States is necessary to protect out-of-State parties from local prejudice. State judges, no less than federal judges[,] are obligated to provide a neutral forum.").
199. See infra Appendix F.
200. The only other variation among the states was that we used the appropriate standard for punitive damages in that state. under Minnesota law, punitive damages are allowed where clear and convincing evidence shows that the defendant deliberately disregarded the rights or safety of others. MINN. STAT. ANN. § 549.20(1)(a) (West 2010). The law in New Jersey and Ohio is similar. Compare N.J. STAT. ANN. § 2A:15-5.12(a) (West 2000) (requiring a showing by clear and convincing evidence that acts or omissions were actuated by actual malice or wanton and willful disregard for an award of punitive damages), with OHIO REV. CODE ANN. § 2315.21(C) (West Supp. 2014) (mandating a demonstration of malice or aggravated or egregious fraud and requiring the trier of fact to return a verdict on compensatory damages before a plaintiff may recover punitive damages).
201. Some have argued that punitive damage awards are based on emotion rather than cognition. See, e.g., Slovic et al., supra note 75, at 415 ("[A] punitive damage award is a personal injury lawsuit seem[s] to be derived from attitudes based on emotion rather than on indicators of economic value.").
202. 17 judges did not respond: 8 in the in-state version and 9 in the out-of-state version.
203. The Mann-Whitney test (a non-parametric analysis based only on the rank order of the awards) was significant: z = 2.36, p < 0.05.
204. The transformation was a Box-Cox transformation: t(348) = 1.93,p = 0.06.
205. All F's > 0.90,p's < 0.35 for the main effect of demographics and interactions.
206. See Reid Hastie, David A. Schkade & John W. Payne, Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity on Punitive Damage Awards, 23 LAW & HUM. BEHAV. 445, 466 (1999) (finding that mock jurors awarded local plaintiffs significantly more in punitive damages than geographically remote plaintiffs).
207. They might have thought that the defendant believed it had legal significance or perhaps that crossing the border reflected a greater effort to cover up his crime.
208. One study suggests that federal appellate judges do not exhibit in-group bias in diversity cases. Sarver, supra note 195, at 195 ("[I]t seems that the citizenship of neither the litigant nor the federal judge was found to exert any influence on the outcome of a tort diversity case in the courts of appeals.").
209. See Mark Spottswood, Emotional Fact-Finding, 63 U. KAN. L. REV. 41, 101 (2014) ("Evidence at trial will inevitably induce emotional responses in factfinders, whether the cases are being tried to judges or juries.").
210. Many pretrial motions are decided on the papers. Even when a hearing is held, it is usually limited to oral arguments by counsel. The litigants themselves are seldom seen and almost never heard, except in criminal cases, of course. See generally Morton Denlow, Justice Should Emphasize People, Not Paper, 83 JUDICATURE 50 (1999) (arguing that the lack of face-to-face interaction among parties, judges, and lawyers is detrimental to the federal justice system).
211. See Robert P. Burns, The Rule of Law in the Trial Court, 56 DEPAUL L. REV. 307, 319¬20 (2007) (suggesting that legal rules may be applied more accurately in motions than in trials, in part because exposure to extraneous factors is less likely).
212. See generally PETER KARSTEN, HEART VERSUS HEAD: JUDGE-MADE LAW IN NINETEENTH CENTURY AMERICA 8-15 (1997) (noting that the nineteenth century saw the emergence of new or modified legal doctrines designed to preserve a sense of justice).
213. See Ronald J. Allen & Michael S. Pardo, Essay, The Myth of the Law-Fact Distinction, 97 NW. U. L. REV. 1769, 1770 (2003) (proposing that the distinction between fact and law is inherently flawed and instead questions of law are part of the larger category of questions of fact).
214. See FRANK, supra note 3, at 16 ("Accordingly, the court, from hearing the testimony, must guess at the actual, past facts. Judicially, the facts consist of the reaction of the judge or jury to the testimony.").
215. See Frederick Schauer, Legal Realism Untamed, 91 TEXAS L. REV. 749, 779-80 (2013) (distinguishing between "tame" and "untame" versions of legal realism).
216. See KALVEN & ZEISEL, supra note 8, at 217.
217. DEVLIN, supra note 102, at 92.
218. See Vicki L. Fishfader et al., Evidential and Extralegal Factors in Juror Decisions: Presentation Mode, Retention, and Level of Emotionality, 20 LAW & HUM. BEHAV. 565, 568-69 (1996) (finding that subjects who watched a video of portions of a trial experienced greater emotional reactions than those who read transcripts); Piotr Winkielman, Bob Zajonc and Unconscious Emotion, 2 EMOTION REV. 353, 359 (2010) ("[Affective pictures are more efficient than words in eliciting physiological reactions, which reflect changes in core affective systems.").
219. See Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCHOL. REV. 814, 819-20 (2001).
220. BENJAMIN N. CARDOZO, THE GROWTH OF THE LAW 60 (1924) ("Nine-tenths perhaps more, of the cases that come before a court are predetermined … by inevitable laws that follow them from birth to death. The range of free activity is relatively small… . None the less, those are the fields where the judicial function gains its largest opportunity and power.").
221. See Schauer, supra note 218, at 757-58 (arguing that "the field of litigated cases thus systematically under-represents the easy cases and over-represents the hard ones").
222. Cf. Frank B. Cross, Law as Courtesy?, 47 TULSA L. REV. 219, 223 (2011) ("An indeterminate law leaves more room for other influences on decisions.").
223. Acknowledging the role of the jury as legislator, Harry Kalven, Jr. and Hans Zeisel note: [T]he jury imports its values into the law not so much by open revolt in the teeth of the law and the facts, although in a minority of cases it does do this, as by what we termed the liberation hypothesis. The jury, in the guise of resolving doubts about the issues of fact, gives reign to its sense of values. It will not often be doing this consciously; as the equities of the case press, the jury may, as one judge put it, "hunt for doubts." Its war with the law is thus both modest and subtle. The upshot is that when the jury reaches a different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of facts, but because it gives recognition to values which fall outside the official rules. KALVEN & ZEISEL, supra note 8, at 495.
224. See Charles E. Clark, The Limits of Judicial Objectivity, 12 AM. U. L. REV. 1, 5 (1963) ("Turning now to the small area requiring creative effort in the treatment of the new cases, its importance of course far transcends its numbers. For these cases are what give tone and color to the entire judicial process.").
225. Moods are "less intense, more diffuse, relatively enduring, and tend[] to lack a readily identifiable source." Neal Feigenson & Jaihyun Park, Emotions and Attributions of Legal Responsibility and Blame: A Research Review, 30 LAW & HUM. BEHAV. 143, 144 (2006); see also Jeremy A. Blumenthal, Does Mood Influence Moral Judgment? An Empirical Test with Legal and Policy Implications, 29 LAW & PSYCHOL. REV. 1, 3 (2005) ("The distinction is important; emotion[s]—anger, fear—tend to be more stable, focused, and attributable to a particular source; moods—anxiety, elation, depression—tend to be more transient, diffuse, and less attributable to particular sources.").
226. See, e.g., ARISTOTLE, ON RHETORIC: A THEORY OF CIVIC DISCOURSE 120 (George A. Kennedy trans., 1991) ("[T]hings do not seem the same to those who are friendly and those who are hostile, nor … to the angry and the calm … ."); Feigenson & Park, supra note 228, at 147 ("Many studies … have shown that people in moderately positive moods tend to think more creatively and to be better at drawing associations and at inductive reasoning than people in a neutral mood, whereas people in moderately negative moods tend to be better at analytical and deductive reasoning.").
227. See FRANK, supra note 3, at 4 ("[T]rial-court fact-finding is the toughest part of the judicial function."); Clark, supra note 227, at 3-4 ("At the trial level the ratio of cases turning upon certain substantive principles is obviously yet higher [than on the appellate court], though the then open contest of facts—the actual events—may well make the outcome less predictable.").
228. See NAACP History: Charles Hamilton Houston, NAACP, http://www.naacp.org/pages/ naacp-history-charles-hamilton-houston, archived at http://perma.cc/ZVB6-SGYB (noting that Houston's litigation strategy to attack Jim Crow segregation included exploiting the inequality of "separate but equal" as applied to public education).
229. See James E. Fitzgerald & Sharon A. Fitzgerald, Settlements, in 3 LITIGATING TORT CASES § 33:4 (Roxanne Barton Conlin & Gregory S. Cusimano eds., 2003) (including client likeability in a list of factors to consider when valuing a case for the purposes of settlement).
230. See supra note 29 and accompanying text.
231. WORDS OF POWER: VOICES FROM INDIAN AMERICA 34 (Norbert S. Hill, Jr. ed., 1994) (quoting Vine Deloria, Jr., Standing Rock Sioux).
232. See KALVEN & ZEISEL, supra note 8, at 497-98 ("The judge very often perceives the stimulus that moves the jury, but does not yield to it… . The perennial amateur, layman jury cannot be so quickly domesticated to official role and tradition; it remains accessible to stimuli which the judge will exclude."); SCALIA & GARNER, supra note 29, at 32 (suggesting judges are impervious to and resentful of strong emotional arguments).
233. See Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Contrition in the Courtroom: Do Apologies Affect Adjudication?, 98 CORNELL L. REV. 1189, 1193 (2013) ("Because judges so frequently hear apologies, judges might become inured to their influence and might even react cynically or negatively to apologies.").
234. See FARRELL, supra note 78, at 287 (quoting Clarence Darrow, in part: "'You try to throw around the case a feeling of pity, of love, if possible, for the fellow who is on trial,' he said. If the jurors can be made to identify with the defendant and his 'pain and position' they will act 'to satisfy themselves.'").
235. See Burt Neubourne, Essay, Of Sausage Factories and Syllogism Machines: Formalism, Realism, and Exclusionary Selection Techniques, 67 N.Y.U. L. REV. 419, 421 (1992) ("Pure formalists view the legal system as if it were a giant syllogism machine, with a determinate, externally-mandated legal rule supplying the major premise, and objectively 'true' pre-existing facts providing the minor premise. The judges' job is to act as a highly skilled mechanic … ."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 520-23 (1988) (defining formalism (or legalism) as the view that judicial decisions are determined and bound by law, which is a clear set of rules contained in preexisting canonical legal materials such as statutes and case precedents).
236. See Paul H. Robinson, Sean E. Jackowitz & Daniel M. Bartels, Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment, 65 VAND. L. REV. 737, 811-13 (2012) (emphasizing that compliance with criminal law in "borderline cases" is accomplished through "deference" to the criminal system's "moral credibility," which is in part premised upon punishments conforming with a community's view on what is morally condemnable); cf. FRANK, supra note 101, at 188 (explaining that the public "turns to the jury for relief from … dehumanized justice," which relief is often accomplished by means of occasional hidden case-by-case bending or nullification of law); Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12, 18 (1910) ("Jury lawlessness is the great corrective of law in its actual administration."). That judges may also play a role in this process is not necessarily a bad thing. For example, it allows the law to flex "without tampering with the brittle rule-structure." Lawrence M. Friedman, Some Notes on the Civil Jury in Historical Perspective, 48 DEPAUL L. REV. 201, 209 (1998). Nevertheless, because there are fewer trials and more dispositions on pretrial motions, relying on jurors to perform this function may no longer be adequate.
237. See EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 5 (1949) (explaining that courts reason by example or analogy regardless of whether they are applying cases, statutes, or constitutions); POSNER, supra note 32, at 83 ("Ours is a case law system that includes but is not exhausted in common law. Not only constitutional law (obviously), but also to a considerable extent statutory law, is shaped by judicial decisions … .").
238. See Anthony D'Amato, Legal Uncertainty, 71 CALIF. L. REV. 1, 51-52 (1983) ("[T]he impact of judicial dispute-resolution looks forward; future potential litigants are affected by a case they did not participate in.").
239. See Ward v. James, [1966] 1 Q.B. 273 (C.A.) 293-94 (opinion of Denning, L.J.) ("It is an essential attribute of justice in a community that similar decisions should be given in similar cases … ."); RUPERT CROSS, PRECEDENT IN ENGLISH LAW 4 (3d ed. 1977) ("It is a basic principle of the administration of justice that like cases should be decided alike.").
240. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 127 (2006) ("[A] doctrine of precedent … produces a form of path-dependence: the content of law becomes highly sensitive to the order in which cases arise … ."); Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601, 605 (2001) (noting that courts' decisions are "path-dependent" in the sense that "courts' early resolutions of legal issues can become locked-in and resistant to change").
241. See LEVI, supra note 240, at 23 ("[A] court's interpretation of legislation is not dictum. The words it uses do more than to decide the case. They give broad direction to the statute.").
242. Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011).
243. See Charles Alan Wright, The Doubtful Omniscience of Appellate Courts, 41 MINN. L. REV. 751, 781 (1957) ("If trial judges are carefully selected, as in the federal system, it is hard to think of any reason why they are more likely to make errors of judgment than are appellate judges."). But see POSNER, supra note 32, at 74 ("[A] former trial judge promoted to the court of appeals may be more likely to focus more on the 'equities' of the individual case—the aspects of the case that tug at the heartstrings—and less on its precedential significance than would … colleagues who had never been trial judges.").
244. See Hastie et al., supra note 209, at 467 ("The conclusion of a substantial empirical literature is that deliberating groups exhibit no general advantage over individuals in the performance of judgment tasks.").
245. See POSNER, supra note 32, at 119 ("One value of a system of precedent is that it invites judges to think about the impact of their decisions on future litigants.").
246. See Kelly Kunsch, Standard of Review (State and Federal): A Primer, 18 SEATTLE U. L. REV. 11, 27 (1994) ("Judicial review of issues of law is straightforward. The standard is always de novo. There are no exceptions.").
247. See generally ROBERT B. CIALDINI, INFLUENCE: SCIENCE AND PRACTICE 95 (3d ed. 1993) ("We view a behavior as correct in a given situation to the degree that we see others performing it.").
248. See Chris Guthrie & Tracey E. George, The Futility of Appeal: Disciplinary Insights into the "Affirmance Effect" on the United States Courts of Appeals, 32 FLA. ST. U. L. REV. 357, 359 (2005) (stating that federal circuit courts affirm over 90% of the cases they review).
249. See Emily Balcatis & David Dunning, See What You Want to See: Motivational Influences on Visual Perception, 91 J. PERSONALITY & SOC. PSYCHOL. 612, 623 (2006) ("If they knew that they believed some pleasant thought merely because they wanted to believe it, they would also know, at least in part, how illegitimate that thought was.").
250. See Bennett & Broe, supra note 69, at 17 ("It is only by accepting, and expecting, that emotion may be playing a role in decision-making, that it can be actively evaluated, and rejected if inappropriate.").
251. Andrew J. Wistrich, Chris Guthrie & Jeffrey Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. PA. L. REV. 1251, 1325 (2005).
252. See Charles G. Lord, Elizabeth Preston & Mark R. Lepper, Considering the Opposite: A Corrective Strategy for Social Judgment, 47 J. PERSONALITY & SOC. PSYCHOL. 1231, 1239 (1984) (concluding that considering the opposite was more effective at correcting judgment biases than admonitions to be fair and unbiased).
253. See, e.g., People v. Carter, No. C053369, 2009 WL 626113, at *5 n.2 (Cal. Ct. App. Mar. 12, 2009) ("I'm not moved by emotion one way or the other. I'm just kind of like an iceberg … ."); Anleu & Mack, supra note 35, at 612 (describing how judges, in attempting to manage emotions, may "grow a skin … as thick as a rhino"). But see Spottswood, supra note 212, at 100 (arguing that "the current regime is clearly suboptimal because it treats judges as if they have a mystical superiority in terms of their levels of emotional control").
254. See Wistrich et al., supra note 254, at 1262-64 (describing how refraining from thinking a thought can actually result in an individual thinking that thought more often as the brain continuously monitors mental activity to verify that suppression is successful, thereby keeping the thought constantly available).
255. See Maroney, supra note 118, at 1511 (concluding that when an individual expends effort to regulate emotions, that expenditure consumes cognitive resources and leaves a person with fewer resources with which to perform other tasks).
256. See Maroney, supra note 36, at 1273-79 (delineating a similar approach to controlling and channeling judicial anger with three factors: preparing realistically for emotion, responding thoughtfully to emotion, and integrating lessons about emotion into judging).
257. See KARSTEN, supra note 215, at 4 (describing the concepts of the "Jurisprudence of the Head" and "the Heart" and emphasizing that Jurisprudence of the Head is driven by the existence of rules and precedent while Jurisprudence of the Heart is driven by conscience, principle, and "justice").
258. See ROBERT E. KEETON, JUDGING 54 (1990) ("The obligation sometimes to reach a result one considers unjust, by one's own standards of right and wrong, is inherent in the role of judging lawfully."); POSNER, supra note 32, at 119 (explaining that "setting aside one's natural sympathies is a big part of playing the judicial game").
259. See Sotomayor Confirmation Hearing, supra note 12, at 7 (statement of Sen. Jeff Sessions, Member, S. Comm. on the Judiciary) ("Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other. Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law."); Avani Mehta Sood, Motivated Cognition in Legal Judgments—An Analytic Review, 9 ANN. REV. L. & SOC. SCI. 307, 319 (2013) ("[T]he infiltration of motivated cognition into the judgments of [legal] decision makers can undermine the rule of law.").
260. See Maroney, supra note 118, at 1494 (noting that emotion plays an "inevitable" role in the judicial decision-making process).
261. See Hayley Bennett and GA (Tony) Broe, Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions?, 31 CRIM. L.J. 75, 90 (2007) ("Judges can only make decisions according to the rule of law, however, to the extent that their neurobiology allows.").
262. MORRIS ALBERT, Feelings, on OLDIES BUT GOODIES VOL. 3 (Original Sound Entertainment 1987).
263. OHIO REV. CODE ANN. § 2913.31(B)(1), (C)(2) (West 2006 & Supp. 2014). We gave this problem to three groups of federal magistrate judges from a variety of districts, to state judges from New York and Ohio, and to appellate judges from a variety of state and federal appellate courts. The New York and Ohio judges were mostly trial court judges. In each jurisdiction we varied the text of the problem in minor ways to refer to the applicable law in that jurisdiction. The version presented above was given to Ohio judges.
264. N.Y. PENAL LAW § 221.15 (McKinney 2008); id. § 70.15(1).
265. This is the version given to New York judges. The version given to Canadian judges varied only slightly.
266. See supra note 157 and accompanying text.
267. This is the version of the problem given to Minnesota. We varied the text of the problem in insubstantial ways when we gave it to judges in other jurisdictions.
268. 11 U.S.C. § 523(a)(2)(A) (2012).
269. In the male debtor version of the problem, we changed the debtor's name from "Janice" to "Jared," and switched the gender of the pronouns "she" and "her" to "he," "his," or "him," as appropriate.
270. Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 628 (1989).
271. See supra notes 182-83 and accompanying gtext.