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29 U. Balt. L.F. 5 (1999)
How Judges Judge: Theories on Judicial Decision Making

handle is hein.journals/ublfo29 and id is 7 raw text is: Articles How JUDGES JUDGE: THEORIES ON JUDICIAL DECISION MAKING by Timothy J. Capurso The great tides and currents which engulf the rest of men do not turn aside in their course, and pass judges by. Benjamin N. Cardozo The Nature of the Judicial Process, 1921 Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them. Bishop Benjamin Hoadly, 1759 I. INTRODUCTION The art of judicial decision-making is the cornerstone of the American justice system -- few other public officials have the power and influence of a presiding judge. Nevertheless, the process of how judges reach their decisions has baffled and intrigued legal scholars, lawyers, and litigants for centuries. The following article examines some of the theories regarding judicial decision-making and addresses the problems associated with each. The opinions of local acting judges, as well as a local practicing attorney, are included in this analysis, helping to shed a contemporary light on this jurisprudential issue. By combining parts of different theories with the practical insight of attorneys and local judges, a conclusion is reached based in both theory and practice of how judges judge. II. AMERICAN LEGAL REALISM Perhaps the most pervasive and accepted theory of how judges arrive at legal decisions is that enunciated by the Realists. The Realist view of the judicial process is associated with such important jurists as Oliver Wendell Holmes, Joseph Bingham, Jerome Frank, Eugene Ehrlich, and Karl Llewellyn. This theory is distinctively reactionary; it is largely based on the flaws perceived by Realists in earlier theories of judicial decision-making. Realists stipulate that judges determine the outcome of a lawsuit before deciding whether the conclusion is, in fact, based on an established legal principle.' In other words, a judge reviews the facts presented and decides how he or she will rule without first analyzing precedent and statutory law. Once the judge has reached a conclusion, he or she will then look for existing principles in case law or statutory regulations that support the conclusion. Only in unique circumstances where such a premise cannot be found will the judge change his or her conclusion to one which can be justifiably maintained.' Realists flatly reject the idea that a judge begins with some rule or principle of law as his premise, applies this premise to the facts, and thus arrives at his decision.3 The Realists present that a judge pursues a suitable foundation for a written opinion in law and fact only after an agreeable conclusion has been reached. The fact that a judge is supposed to be impartial is not sufficient to stifle a jurist's tendencies to follow his or 'See Jerome Frank, The Law and the Modern Mind, George C. Christie & Patrick H. Martin, JURISPRUDENCE: TEXT AND READING ON THE PHILOSOPHY OF LAW 844, 845 (West Publishing Co. 1995). 2 See id. 3Id. 29.1 U. Bait. L. F. 5

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