Ⅵ. Supplementary Reading.

How Courts Decide Cases

We have looked at the kinds of cases courts hear, the way they are handled, and the numbers that get filtered out along the way. What kinds of outcomes do the surviving cases produce? And how are they decided? What factors tilt verdicts and decisions one way or the other？

Lower courts take evidence, and hear arguments. Then the jury, if there is one, retires, talks things over, votes, and brings in a verdict. The jury deliberates in secret and never gives out reasons for what it does. （Individual members sometimes talk to reporters after the verdict is in, when the case is newsworthy. ）Generally speaking, the mind of the jury is a closed book. Research has lifted the curtain a little bit. We know, for example, that the thought processes of juries are not terribly different from those of judges（there is about 8 percent overlap）; that juries do pay attention to what the judge tells them; that they generally try to live up to their expected role. Historically, there have been many examples of jury“lawlessness”:refusals to convict bootleggers or drunken drivers or poachers or even rapists, and even when the defendants were clearly guilty. This happened because the jury reflected norms outside the official norms of the law. This sort of jury lawlessness still exists; but on a very modest scale.

What about the higher courts? Appeals courts do not run trials; but they hear oral arguments, receive“briefs, ”confer, decide, and write opinions. （A brief is a lawyer's formal argument, putting before the judge one side's version of the law and facts. Many of them are anything but brief. ）The opinions pour out of the presses every year, volume after volume. Inside these volumes are millions of words—all, in a way, telling the world how the court decided its cases.

The typical written opinion follows a fairly standard format. The opinion sets out the facts, states what the issues are, looks at past cases（if any）on the same object, looks at statutes（if any）which have a bearing, and discusses the relevance of these“authorities.”The court will announce certain legal principles, which it（or courts in earlier cases）squeezed out of precedents or statutes. It matches these principles with the facts of the case and comes up with an answer to whatever question or riddle is posed. This, then, is the decision. It either agrees with the results of the lower court （in which case the decision below is“affirmed”）, or it disagrees（in which case the decision below is“reversed”）.

Usually, the decision is unanimous—that is, all the judges agree with the outcome. Less often, one or more of the judges has a different view of the matter, and 32 there will be a“dissent. ”Courts almost always have an odd number of judges. The majority wins. If there is no majority, （if a judge is sick or absent or disqualifies himself and the rest split evenly）, the lower court decision will stand. Once in a while, a judge who agrees with the majority as far as its result is concerned will nevertheless quibble about the reasons. Such a judge can write a special opinion, called a“concurrence. ”

An immense effort has gone into the study of judicial decision-making, trying to smoke out the governing factors and paint a realistic picture of the process. It is not an easy job. Nobody can read minds; few papers, notes, or diaries of judges are available;and judges rarely tattle on themselves. They are shy creatures, who dislike public attention. They want obscurity, and they generally get it.

Much of the effort has gone into dissecting the work of the United States Supreme Court; much less has been done on the work of state courts or lower federal courts. The overall questions are the same:Can we find some factors which explain why judges decide the way they do? Does it matter whether a judge is a Republican or a Democrat?Whether his family was rich or poor? Whether he is Protestant or Catholic? How much can we learn by exploring judges' attitudes or values? How much would we learn if we could give the judges personality tests？

The results are not terribly exciting. On the whole the studies do not tell us much that is new or surprising or enlightening. The background or the personality of a judge apparently do not carry us very far in explaining why he votes the way he does. Perhaps judges honestly try to live up to what is expected of them. Perhaps they really try to play their part. Society has cast them in the role of judge, and they try to follow the script. In other words, the job description, the black robes, the tradition may be as important in explaining judicial behavior as are childhood background or training or social class. As far as appellate courts are concerned, there is also the doctrine of“precedent, ”that is, the idea that courts are supposed to follow past cases—indeed, they are“bound”by them.

There has been surprisingly little work on still another factor:the influence of outside social forces. One reason is that research tends to focus on differences among judges. The studies ask why Judge A seems to disagree with Judge B in his voting. This means concentrating on cases where at least one judge dissented. But it might be just as interesting and important to note the ways in which Judge A and Judge B think alike—to see how all judges change their tune in the course of time, under the pressure of social change.

For example, all judges（or almost all）today have attitudes about race relations, powers of government, civil liberties, and the like that are light years away from the attitudes of almost all the judges who worked and wrote a century ago. If you brought back to life a nineteenth-century judge, he would be dumbfounded to learn about the state of civil rights law today. He would be even amazed at what has happened in tort law—how far the courts have gone in making companies pay for damages caused by badly designed products, such as defective cold cream, soup, medicine, and automobiles. The wheels of doctrine have turned many times, in response to changes in the world outside the courtroom. True, some judges today stand on the right side of the political spectrum, while others stand on the left. But the point around which they revolve—the point from which they deviate, right or left—is determined by social forces; by the national agenda; in short, by the way things are today.

If we look at the long run—at major trends—the law seems like so much putty in the hands of the larger society. Probably there was not one judge in the nineteenth century who thought the death penalty was unconstitutional. Some were for it, some against it;nobody imagined that it violated the Eighth Amendment of the Constitution, or any other amendment, for that matter. Today, some judges think it does. The Supreme Court, as we will see, has gone around and around on this question. To be sure, most judges feel the death penalty should be upheld. But even they would agree that it poses a serious legal question. This was not true a hundred years ago. Similarly, most nineteenth century judges saw nothing wrong, legally speaking, with segregation of the races. Today, not a single federal judge thinks it acceptable（or is willing to admit he does）.

Social changes drag doctrines along. Judges live in society; and their ways of thinking shifts, unconsciously, as things happen in the world all around them. Often they are hardly aware of what is going on. If you ask judges what they do and how they decide cases, they are still likely to tell a rather old-fashioned tale. They will say that they search conscientiously for the law, and that they are guided by existing law. Most of them deny that they take social policy into account. Yes, they have values and beliefs; but they try to suppress them. There is variation among judges（and courts）;but on the whole, the typical judge is quite conservative in what he says about his job.

Judges do try to play the“legal”role, though probably not in every case. Some cases seem minor or unimportant; they are interesting only to lawyers, or not even to them. When a case of this kind comes up, the judge may have no strong feelings one way or the other. He（or a clerk）“looks up the law, ”figures out which way old cases point, and goes with the flow of past doctrine.

A small but important batch of cases falls into quite a different and distinctive group. They have massive importance, massive consequences. Here social currents swirl all about, filling the courtroom with their sound and motion; and these currents affect the judge whether he knows it or not. In other words, we can think of decision making 34 as a kind of two-stage process. The first stage is the judge's decision whether to play the law game or not. The second stage is the actual decision.

At both stages, attitudes, values, and social forces are crucial. After all, these are what determine whether the judge sees a question as boring or exciting, important or trivial, technical or non-technical, socially and politically sensitive or only“legal. ”The judge, though, may not be aware at all of this two-stage process. He feels that he is strictly bound by the law; and nine times out of ten he is quite sure that“looking for the law”is exactly what he is doing. But the two-stage process explains a mystery—how is it that social forces seem to have a powerful influence on the way the cases come out;yet at the same time judges say（and feel）that they simply“follow the law. ”（Lawrence M. Friedman:AMERICAN LAW）

Answer the following questions according to the passage you have just read.

1. How do the lower courts usually do in making decisions? And the higher courts？

2. Give some examples of jury“lawlessness”.

3. What format does the typical written opinion follow？

4. What do the words“unanimous”，“concurring”and“dissenting”mean？

5. What kinds of things are people interested in about the judges and their judicial behavior？

6. What do you think of the effect of law itself on the judicial decision？

7. Do you agree that the outside social forces influence the judicial decision？

8. What is the“rather old-fashioned tale”that the judges are likely to tell？

9. What is the two-stage process mentioned in the passage？

10. Can you compare the differences between the American judges and the Chinese judges？