doctrine as a disruptive practice

Doctrine as a Disruptive Practice – July 2016

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Doctrine as a Disruptive Practice

Jessie Allen1

Abstract

This article proposes a different way to think about legal reasoning that focuses on its psychological effects rather than its ability to identify legal outcomes. Legal doctrine, such as statutes and case law, is generally thought to contribute to legal decision making only to the extent that it determines legal outcomes, or at least narrows the range of justifiable outcomes. Yet in many cases that come to court, the available authorities are acknowledged to be indeterminate. Over the course of decades, various theories and methods have been proposed to justify judges’ continued reliance on doctrine. Most of this literature focuses on doctrine’s capacity to direct substantive outcomes and ignores other benefits that doctrinal reasoning might provide. Recently, however, some empirical studies have begun to consider the potential cognitive effects of judges’ engagement with doctrine. This article offers another model for how doctrine might influence judges’ perceptions. Drawing on performance theory and recent psychological studies of readers, I argue that judges’ disciplined engagement with formal legal doctrine might have self-disrupting effects akin to those performers experience when they deliberately alter their physical and vocal habits. Investigating doctrine’s disruptive potential might help explain why judges continue to reason doctrinally despite doctrinal indeterminacy. The model of self-disruptive doctrine cannot explain how judges ultimately resolve, or should resolve, legal questions. But disruptive doctrinal effects would be valuable in and of themselves as a way for legal decision makers to set aside their usual subjective biases.

1 Associate Professor, University of Pittsburgh School of Law. Thanks to these readers

for comments on earlier drafts: Peter Gerhart, Haider Ala Hamoudi, Jules Lobel, Matiangai Sirleaf, Maxwell Stearns, Sheila Velez-Martinez, and Patricia Williams.


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Doctrine as a Disruptive Practice

[T]he characteristic modes of legal reasoning are . . . odd, and odd in a special way. And this special oddness is that every one of the dominant characteristics of legal reasoning and legal argument can be seen as a route toward reaching a decision other than the best all-things-considered decision for the matter at hand.

—Frederick Schauer2

Introduction

It is generally assumed that legal doctrine matters only to the extent that it

provides answers to legal questions, or at least narrows the range of legal results.

But the idea that preexisting rules and decisions can objectively limit legal outcomes

runs headlong into the equally well-‐accepted understanding that legal reasoning is

an interpretive practice, in which doctrinal authorities can be used to ground

contradictory conclusions. Indeed, the ability to use available legal texts to produce

as many different valid outcomes as there are clients willing to pay has long been

recognized as the paradigmatic legal skill. As a character in George Eliot’s

nineteenth-‐century novel Middlemarch observes, “It’s well known there’s always

two sides, if no more; else who’d go to law, I should like to know?”3 Yet judges

continue to issue decisions couched primarily in doctrinal terms, even in cases

openly acknowledged to require policy choices.

2 FREDERICK SCHAUER, THINKING LIKE A LAWYER 7 (2009).

3 GEORGE ELIOT, MIDDLEMARCH 689 (Zodiac Press 1950) (1872).


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The standard accounts frame doctrinal reasoning as a turn toward some

external, recognized legal authority that identifies the correct result or at least points

judges in the right direction. As Joseph Raz puts it, “law is source based.”4 The trouble is

that exactly what sources should be considered, and how a judge should consider them,

are frequently contested. Judicial decisions are frequently predictable, but not because we

can say for sure that the law judges apply requires the predicted result. On reflection,

authorities that seemed to easily resolve a case in one direction may appear to dictate a

different outcome. There is disagreement over the extent and meaning of doctrinal

indeterminacy. But virtually everyone acknowledges that at least some of the time

in at least some legal decisions regarded as important, formal doctrinal reasoning

cannot provide substantive answers.5 Yet in most of these decisions, judges

continue to reason doctrinally, or at least to act and write, as if formal doctrinal

reasoning were a significant part of their decision making process.6

I want to see if I can imagine the work of doctrine in a different way. Rather

than a source of substantive answers, I will consider doctrinal reasoning as a formal

cultural practice that might affect the minds of its practitioners. With the help of

4 JOSEPH RAZ, THE AUTHORITY OF LAW (1979).

5 See Mark Tushnet, Critical Legal Theory (without modifiers) in the United States, 13 J. POL. PHIL. 99, 108 (2005) (asserting that “nearly every serious legal scholar in the United States” believes that “many results were underdetermined,” or “results in many interesting cases were” or “enough results were underdetermined to matter”). See also Edmond Cahn, Jurisprudence, 1952 ANNUAL SURVEY AM. L. 765, 769 (1952) (“Most writers in the Anglo-American tradition would now agree that the judicial process is, at least in part, legislative”).

6 See Jessie Allen, The Persistence of Proximate Cause, 90 DENVER U. L. REV. 77, 95 (2012) (giving examples of judicial decisions that engage in doctrinal proximate cause analysis while acknowledging that proximate cause cannot determine the outcome).


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performance theory and some recent psychological research, I offer an account of

how engaging in formal doctrinal reasoning might produce temporary psychological

changes in legal decision makers without directing their decisions. In this account,

legal decision makers might reach results that are not objectively limited by

doctrinal authorities, but those results might still be said to meet the basic rule-‐of-‐

law criterion that they were produced by looking outside the decision maker’s own

subjective will.7 My hypothesis is that, without dictating substance, doctrinal reasoning

might have some useful work to do as a practice with psychological effects that tend to

shift judges away from their usual subjective outlooks. Perhaps we reason doctrinally –

and should keep reasoning doctrinally – not, or not only, because doctrine points to

answers, but because doctrinal analysis is a practical technique that disrupts decision

makers’ ordinary subjective perspectives and thus contributes to a kind of relative

impartiality.

There is an urgent reason for considering what the practice of doctrinal

reasoning contributes to legal decision making. While we remain ostensibly

committed to the idea that legal doctrine plays an important role in generating legal

outcomes, more and more often those outcomes are reached through informal

procedures. The declining proportion of trials is a well-‐documented trend.8

7 As Keith Bybee puts it, “The rule of law, in its essence is a matter of requiring people to ‘look outside their own will for criteria of judgment.’” Keith J. Bybee, The Rule of Law Is Dead! Long Live the Rule of Law!, in WHAT’S LAW GOT TO DO WITH IT? 306, 306 (Charles Gardner Geyh ed., 2011) (quoting LIEF H. CARTER & THOMAS F. BURKE, REASON IN LAW 147 (7TH ED. 2007)).

8 See Judith Resnik, Courts: In and Out of Sight, Site, and Cite, 53 Vill. L. Rev. 771 (2008) (“Of one hundred civil cases filed, trials start in fewer than two.”); Marc Galanter, A World Without Trials?, 2006 J. Disp. Resol. 7 (2006) (“[T]here is an abundance of data that shows that trials . . . are declining precipitously.”).


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Increasingly, legal claims are resolved through managerial judging, settlement

negotiation, mediation, and plea bargaining with little or no doctrinal reasoning

involved.9 Such informal methods are sometimes said to preserve legality because

preexisting legal rules continue to cast a substantive “shadow” over the decision

making processes and so influence their outcome in rational ways.10 But to the

extent that doctrinal reasoning generates legality through immediate psychological

effects on practitioners, those effects are lost when decisions are not reached

through the actual process of formal doctrinal reasoning.

My exploration of doctrinal reasoning’s practical effects proceeds in three

parts. Part I shows how mainstream accounts of legal reasoning fail to explain why

judges continue to reason doctrinally. A variety of narratives have been mobilized,

implicitly and explicitly, to rationalize judges’ continued doctrinal practice. Here I

identify three different versions that I call the “integrationist,” “fidelity,” and “legal art”

accounts, and explain why each fails to justify doctrinal reasoning in the face of doctrinal

indeterminacy. The integrationist account views legal reasoning as a combination of

doctrinal and policy-based reasoning, but fails to explain how doctrine can effectively

9 Moreover, even when cases produce formally adjudicated decisions, the judges who sign these decision sometimes have had little to do with the actual process of doctrinal reasoning that leads to the reported outcome. Judges often rely on law clerks and court attorneys to produce drafts of the doctrinally reasoned opinions that judges sometimes edit with little actual engagement with the relevant legal texts. See Stephen L. Wasby, The World of Law Clerks, 98 MARQUETTE L. REV. 111, 120-21 (2014). 10 See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case

of Divorce, 88 Yale L.J. 950 (1979) (discussing how divorcing parents negotiating the division of money and custody are influenced by what would happen if the case went to trial); Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463 (2004) (explaining that when parties plea bargain, they rely on expected trial outcomes).


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limit results once evaluative policy analysis is in play. The fidelity account focuses on

judges’ conscious efforts to follow legal rules, but cannot explain how those efforts

matter if the rules are indeterminate. The legal art account is a promising but

underdeveloped approach that compares judges’ use of doctrine to the aesthetic

techniques of artists and craftsmen.

In Part II of the article, I discuss two experimental studies that suggest that

doctrinal reasoning may have psychological effects on its practitioners. For a long time,

empirical studies focused on the influence of non-doctrinal factors, and empirical

scholars have repeatedly shown that judges’ subjective perspectives, from political

ideology to how long it has been since they ate breakfast, are correlated with decision

making patterns.11 Lately, however, a number of researchers have changed tack. They

have set about examining whether and how “the law,” including doctrinal authorities,

“matters” in legal decision making.12 The results of these experiments further emphasize

11 Classic studies of the influence of judges’ political ideologies include Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of the U.S. Supreme Court Justices, 83 AM. POLIT. SCI. REV. 557 (1989); JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993); JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002). Jerome Frank, one of the best known Realists, darkly asserted that judicial outcomes were so little determined by legal principle that they depended on “what the judge ate for breakfast” on the morning of the decision. JEROME FRANK, LAW AND THE MODERN MIND (1930). A study of parole board rulings suggests that Frank’s critique may be less hyperbolic and more accurate than even he realized. Shai Danziger, Jonathan Levav, & Liora Avnaim-Pesso, Extraneous Factors in Judicial Decisions 108 PNAS 6889 (2011). Danziger et al. found that favorable parole rulings correlated with proximity to the judges’ two daily food breaks. Id. at 6890.

12 See, e.g., Lee Epstein & Jack Knight, Reconsidering Judicial Preferences, 16 ANN. REV. POLIT. SCI. 11 (2013); Michael D. Gilbert, Does Law Matter? Theory and Evidence from Single-Subject Adjudicaiton, 40 J. LEGAL STUD. 333 (2011).


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the need for a theory of how doctrinal reasoning might affect legal decision makers’

points of view without dictating substantive results.

In Part III, I propose another way to understand the practice of doctrinal

reasoning. My account focuses on an aspect of doctrinal practice that is often taken

for granted: doctrine’s claimed capacity to turn decision makers away from their

usual perspectives. This is such an obvious aspect of doctrinal work, that it is generally

left unexamined. After all, we may disagree about what counts as authoritative law and

how to go about applying it to a given issue, but surely we can all agree that if I am a

judge ruling in a legal case, I am being asked to do something other than just decide what

Jessie Allen thinks is the right result. Nevertheless, as obvious as that point might seem, I

propose that exploring the way doctrinal reasoning distances its practitioners from their

ordinary viewpoints might help us see something new about the way doctrine works.

Picking up on the legal art accounts discussed in Part I, which consider

doctrinal reasoning as a kind aesthetic practice, my analysis compares doctrinal

reasoners’ abandonment of their usual subjective perspectives to performers’

techniques for playing characters. By invoking theater, I do not mean to denigrate

doctrinal reasoning as a kind of false judicial showmanship. In my view, there is a

similarity worth exploring in the deliberate moves both judges and actors make

away from their ordinary ways of seeing and reacting to the world. Performance

theory is useful for my account because it considers directly both the significance


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and the mechanics of the shift away from the ordinary self that is an avowed goal of

both performance and legal decision making.13

I. The Problem of Doctrine

Judges’ continued reliance on formal doctrinal reasoning is a conundrum. It is

widely acknowledged that available doctrinal authority cannot identify a uniquely correct

legal outcome in all, or perhaps in most, of the cases that come to court.14 Nevertheless

most judicial opinions continue to be produced in doctrinal terms, and we continue to act

as if doctrinal analysis dictates objectively correct legal outcomes.

The indeterminacy of legal doctrine is not news to lawyers and judges, or to the

public at large. Nearly a hundred years ago the Legal Realists criticized doctrinal

reasoning as an illusory cover for political and cultural values that drove judicial

decisions.15 The Realists argued persuasively that much of what passed for doctrinal

analysis was circular reasoning, or dependent on metaphors and concepts that were open

to interpretation and thus incapable of determining outcomes. Since the Realist critique it

is rare for any lawyer or legal scholar to deny that subjective factors play some part in

13 See, e.g., RICHARD SCHECHNER, BETWEEN THEATER & ANTHROPOLOGY 35-41 (1986); Berthold Brecht, Alienation Effects in Chinese Acting, in BRECHT ON THEATRE 91-99 (ed. & tr. John Willett 1964).

14 Tushnet, supra note 10; Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465 (1988) (asserting that all mainstream jurisprudential theories accept some degree of doctrinal indeterminacy). See also Jessie Allen, The Persistence of Proximate Cause: How Legal Doctrine Thrives on Skepticism, 90 DENVER L. REV. 77 (2012).

15 See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935); Leon Green, The Duty Problem in Negligence 28 COLUM. L. REV. 1014, (1928) and JEROME FRANK, LAW AND THE MODERN MIND 12 (2D ED. 1931) [1930].


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legal outcomes. For that matter, Brian Tamanaha has pointed out that skeptical views of

doctrinal determinacy can be found long before the Realists critique, in writings by

lawyers and judges from the eighteenth and nineteenth century.16 Nor are legal

professionals the only ones to recognize that doctrine does not decide all cases. The

American public apparently shares the understanding that judges’ decisions are

influenced by politics, at least at the highest levels.17

If we have openly acknowledged that doctrine cannot produce substantive legal

answers in all the cases that employ doctrinal reasoning, but that tension has not

disrupted our legal system, why worry? The problem is that the legitimacy of legal

enforcement rests at least partly on a claim that legal decisions are based on something

other than the decision makers’ own subjective judgment. The basic concept of a “rule of

law, not a rule of men” is, as Ronald Dworkin put it, that judicial decisions “deploying

the state’s monopoly of coercive power should be taken only as required by true

propositions of law.”18 In more rule-based terms, Andrew Taslitz explained, “judges are

not legislators; . . . and . . . they should not rely on their personal set of policy goals

rather than the dictates of law.”19 If preexisting legal authorities do not determine, or at

16 BRIAN Z. TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING (2010) 27-43.

17 James L. Gibson & Gregory A. Caldeira, Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court? 45 LAW & SOC. REV. 195, 206-08 (2011) (reporting finding that 65% of those surveyed agreed that “Supreme Court judges have a great deal of leeway in their decisions, even when they claim to be ‘interpreting’ the Constitution,” and 57% agree that “judges are really basing their decisions on their own personal beliefs”).

18 RONALD DWORKIN, JUSTICE IN ROBES 18 (2006).

19 Taslitz supra note at


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least contribute significantly to judges’ decisions, then it is hard to see why those

decisions justify coercive enforcement. This is a problem of basic legality. In addition,

there are problems of integrity and transparency. If judges’ decisions are not really driven

by doctrinal analysis, but judges articulate their decisions in doctrinal terms, those

doctrinal explanations raise concerns about deception, including self-deception.

As a policy matter, it is important to understand all the ways doctrine contributes

to adjudication in order to decide whether and how to preserve doctrinal reasoning as part

of legal process. This is not a purely academic question. Perhaps in part because after

the Realist critique it was unclear how doctrine contributes to the legitimacy of

adjudicated outcomes, formal doctrine’s role in legal decision making seems to be

diminishing. The well documented decline of both civil and criminal trials and the rise of

alternative dispute resolution and plea bargaining means that more and more legal

outcomes are produced without much if any formal doctrinal reasoning.20 As Judith

Resnik has pointed out repeatedly, the decline of formal public adjudication is not just a

matter of individual parties opting for more private and efficient conflict resolution. The

trend has serious implications for the meaning of rights in democratic society.21 In order

to understand fully what is lost when informal processes replace adjudication, we need to

understand whether and how the central practice of doctrinal reasoning contributes to

legal process and to the legitimacy of adjudicated results.

20 See Marc Galanter, The Vanishing Trial.

21 See, e.g., Judith Resnik, Courts in and out of Cite, Site and Sight; Bring Back Bentham, Whither Adjudication.


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In mainstream discussions of legal decision making today, one can observe

several different approaches to managing the clash between our ideal of legal outcomes

generated by objective doctrine and our understanding that doctrine is actually

indeterminate. The most common approach, which I call “integrationist,” attempts to

rescue doctrinal efficacy by suggesting that doctrinal reasoning works in conjunction

with reasoned policy evaluation to somehow narrow or direct the results of ordinary

evaluative decision making. A second “fidelity approach” emphasizes the subjective

attitudes and good faith of judicial decision makers. This perspective shifts the focus

from the capacity of doctrine to objectively shape legal outcomes to the willingness of

judges to consciously subjugate their own will to the dictates of legal forms. Finally, a

third, less common, model that I call the “legal art” approach analogizes doctrinal

reasoning to techniques of artists or craftsmen, suggesting that the role of doctrine may

be primarily to shape the decision maker, rather than the decision. The basic problem

with all three of these approaches, as they have so far been articulated, is that they either

remain explicitly wedded to the idea that doctrinal reasoning must somehow work to

direct substantive legal results, or simply fail to offer any alternative explanation for how

working with doctrine legitimates legal decision making.

A. Explaining Doctrine’s Continued Role in Legal Reasoning – the Integrationist Approach

The most common way of defusing the contradiction between doctrinal

indeterminacy and continued doctrinal practice treats legal reasoning as a

combination of doctrinal reasoning with evaluative policy choices. This model

acknowledges that doctrine alone cannot identify correct legal outcomes, but insists


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that doctrinal reasoning can and should still be a significant causal factor in the

decisions judges reach. The idea is that doctrinal reasoning is partly responsible for

legal outcomes, and that other forms of reasoning – often evaluative policy choices –

round off the legal decision making process. I call this approach “integrationist,”

because as I understand it, the claim is that doctrinal analysis and policy evaluation

merge in an integral process that preserves doctrine’s contribution across a body of

judicial decisions, if not within every single legal analysis.22 Exactly how doctrine

and other kinds of reasoning combine, however, is rarely fleshed out, and when the

combination is described, accounts vary widely and sometimes defy logic.

The view that legal reasoning combines, and should combine, both doctrinal

reasoning and subjective policy evaluation seems to be the default position of the

legal academy these days.23 Students learn doctrinal techniques that match the

rationales judges give in their decisions, and at the same time law professors stress

that various policy considerations and value judgments are at work that help

explain and justify courts’ decisions.24 Indeed the idea that formal doctrinal reasoning

22 Other meaning of integrationist: a theory of communication that rejects rule-based models of language and emphasizes the importance of context. https://en.wikipedia.org/wiki/Integrationism

23 See BRIAN TAMANAHA, LAW AS A MEANS TO AN END 132 (2006) (Noting that most legal academics do not identify as either realists or formalists but that most view law instrumentally, i.e., as means to achieving policy ends, as the realists advocated); RICHARD POSNER, HOW JUDGES THINK 4, 9, 80, 376 (e.g., “judges perforce have occasional – indeed rather frequent – recourse to . . . their own political opinions or policy judgments.” Id. at 9) 24See JOSEPH WILLIAM SINGER, BETHANY R. BERGER, NESTOR M. DAVIDSON, EDUARDO MOISES PENALVER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES 393 (2014) (Asserting that “the fact that it is almost always possible to generate plausible, conventional legal arguments on both sides of a case in which both parties have intuitively attractive claims” means that judges must decide “the relative strength of competing claims in particular social contexts” using policy arguments.”); see also, FREDERICK SCHAUER, THINKING LIKE A LAWYER 144-45 (Noting that,


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and policy analysis fit together in legal decision often seems to be regarded as too

commonplace to require explanation.

For instance, a recent speaker at my law school described courts’ efforts to

articulate a doctrinal test to distinguish patentable creations from unpatentable products

of nature.25 After some criticism of doctrinal ambiguity and confusion, he suggested that

despite judges’ sincere attempts to develop and apply doctrine, the outcomes in these

patent cases were actually driven less by doctrinal categories than by two policy goals –

avoiding overbroad monopolies that would chill future research and preventing

infringement on existing patent rights. But then, in the next breath, he was back to a

discussion of doctrine; narrating the courts’ doctrinal struggles as if the outcomes of these

cases depended on judges’ doctrinal analysis rather than the policy considerations he had

just identified. When I asked him about the relationship of doctrine and policy in the

analysis he was describing, he replied simply that judges use a combination of doctrinal

precedent and policy analysis. He offered no explanation of what work doctrine could be

doing once a judge was engaged in evaluating how to best shape the outcome to serve

policy goals. Nor is it easy to produce such an explanation.

Any account of how doctrine combines with policy analysis faces the

fundamental problem that doctrinal reasoning is generally conceived as an

although “]b]eliefs in the total determinacy of legal doctrine may have withered,” the typical torts casebook still relies “heavily on the traditional legal categories of tort doctrine.”)

25 See Association of Molecular Pathology v. Myriad Genetics, Inc., U.S. (2013); Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. (2012); Diamond v. Chakrabarty, 447 U.S. 303 (1980). See also D’Arcy v. Myriad Genetics, Inc. High Ct. Australia (2015).


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alternative to policy evaluation.26 The point of applying preexisting legal doctrine is

to adopt a decision making method through which judges avoid applying their own

views about good social policy.27 It is therefore hard to see how a judge can

combine her own policy preferences with doctrinal analysis when doctrine is

supposed to be the mechanism through which judges defer to policy goals

established externally28

Integrationist accounts sometimes assert that only some cases require policy

analysis while many legal questions can be answered by doctrine alone. There is

little consensus, however, on how to tell which cases require policy evaluation.

Sometimes the line between doctrinally resolvable cases and those that require

policy is said to be a question of complexity. In other accounts, doctrine is sufficient

in run of the mine disputes, but incapable of deciding cases involving new situations

or political or cultural controversies. As Andrew Taslitz explained, “any lawyer

26 Frederick Schauer, Precedent.

27 See Sir William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, vol. I, introduction sec. III (Philadelphia: J.B. Lippincott Co., 1893) (“For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one”); Duncan Kennedy, Legal Formality, 2 J. LEG. STUD. 351, 358 (1973) (Formal doctrinal analysis is an attempt to achieve substantively rational results by using rules “rather than directly through substantively rational decision processes.”)

28 see James Wilson, THE WORKS OF JAMES WILSON 502 (McCloskey ed. 1967) (“every prudent and cautious judge ... will remember, that his duty and his business is, not to make the law, but to interpret and apply it”); James Kent, COMMENTARIES ON AMERICAN LAW 472-73 (Little, Brown and Co. 1896) (“ the common law, under the correction of the Constitution and statute law of the United States, would seem to be a necessary and a safe guide, in all cases, civil and criminal, arising under the exercise of that jurisdiction, and not specially provided for by statute. Without such a guide, the courts would be left to a dangerous discretion, and to roam at large in the trackless field of their own imaginations”).


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worth his or her salt knows, and any citizen should know, that law’s meaning or its

application to new or divisive circumstances is frequently ambiguous.”29 Sometimes

the line between doctrinally determinate and indeterminate cases is said to mirror

institutional levels of judicial review. Various commentators assert, for instance,

that doctrine can resolve most cases that end at the trial court level, or that are

resolved pre-‐trial, or that never make it to court.30 Frederick Schauer observes that

controversies that come to court tend to be the “cases in which both sides think that

they have a colorable enough legal argument that is worth spending time and to go

to court.”31 He points out that doctrine would still be playing an important social

role if it resolves everyday questions (do I really have to stop at that red light?) and

only leaves open the conflicts that make it to formal adjudication. Of course the

cases that come to court are the ones whose outcomes judges justify with formal

doctrinal explanation, so even if doctrine is somehow resolving out of court

disputes, we still need an explanation of its work in adjudicated decisions.

In a different version of the integrationist narrative, doctrine is said to work

to a limited extent in all or virtually all cases. In this view, even in complex,

29http://www.concurringopinions.com/archives/2009/05/sonia-sotomayor-at-last-a-bronx-candidate.html#more-16545

30 See Frederick Schauer, Legal Realism Untamed, describing the “widespread view” shared by HLA Hart and Karl Llewellyn, “that law has a relatively straightforward operation in most non-litigated instances of legal application, but that in litigated cases, and especially in appellate cases, legal determinacy often disappears,” but noting that “Hart and Llewellyn plainly disagreed about the size of this domain of indeterminacy, especially in comparison with the size of the domain of determinacy. Id. at 6 citing H.LA. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607-08 (1958).

31 FREDERICK SCHAUER, THINKING LIKE A LAWYER 137 (2009).


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controversial cases doctrine narrows the field of available results or focuses

decision makers on certain objectively relevant aspects of conflicts, while still

leaving some room for policy choices.32 So, for instance, Judge Alex Kozinski writes,

“Under our law judges do in fact have considerable discretion in certain of their

decisions: making findings of fact, interpreting language in the Constitution,

statutes, and regulations . . . . The larger reality, however, is that judges exercise

their powers subject to very significant constraints.”33 According to Tazlitz, “That

doesn’t mean that the law can mean anything a judge wants it to mean, but it does

mean that the law can bear a range of reasonable meanings.”34 Such assertions of

widespread but somehow limited doctrinal indeterminacy are quite common, but

explanations of exactly when and how doctrinal analysis combines with other forms

of reasoning and how doctrine provides the asserted limits are less common.35

Moreover, integrationist accounts do not match the thoroughly doctrinal analysis

described in most courts’ reported decisions. As Richard Posner observes, “most

32 See, e.g., William P. Marshall, Judicial Takings, Judicial Speech, and Doctrinal Acceptance of the Model of the Judge as Political Actor, 6 DUKE J. CON. L. & PUB. POL. 1,2 (2011) (“Most lawyers like to believe that legal rules, legal doctrine and legal reasoning matter even in close cases.”)

33 Alex Kozinski, What I Ate for Breakfast, 26 LOYOLA L.A. L. REV. 993 (1993).

34http://www.concurringopinions.com/archives/2009/05/sonia-sotomayor-at-last-a-bronx-candidate.html#more-16545

35 Judicial decisions remain relentlessly doctrinal in their expression, even when they express doubts about the determinacy of the doctrines they ostensibly apply. Although most judicial decisions continue to be framed in doctrinal terms, one often finds judges asserting that doctrine is indeterminate, sometimes in the same opinions in which the doctrines are being applied. See e.g., Derdiarian v. Felix Contracting Corp., 414 N.E. 2d 666 (N.Y. 1980) (acknowledging that the doctrine of proximate cause is “elusive” but nevertheless proceeding through a full fledged doctrinal analysis).


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judges are hybrids,” that is, they combine doctrinal reasoning and policy analysis,

formalism and realism. 36 Nevertheless, “you wouldn’t gather this from judicial

opinions because most opinions, even in cases that can be adequately explained only

in realist terms, are formalist in style.” 37

The extent of indeterminacy posited sometimes seems at odds with the

analyst’s overarching legal theory. Thus, Posner, an avowed legal pragmatist who

maintains that judges should make policy outcomes the linchpin of their decision

making, nevertheless believes that “[l]egalism,” i.e., doctrinal reasoning, “drives

most judicial decisions, though generally they are the less important ones for the

development of legal doctrine or the impact on society.”38 Meanwhile, Schauer,

probably the foremost proponent today of legal reasoning as a rule bound system,

seems comfortable with the view that few, if any, cases that judges decide are

doctrinally determined.39

Given Posner’s endorsement of consequential policy analysis as a legitimate

judicial approach, it is striking that he maintains that most adjudicated cases are

36 RICHARD A. POSNER, REFLECTIONS ON JUDGING 267 (2013).

37 Id. As Frederick Schauer says, “it is the rare judge who does not think it important to justify on traditional legal grounds a decision reached for other reasons.” Schauer, Thinking Like at 144

38 RICHARD A. POSNER, HOW JUDGES THINK 8 (2008).

39 According to Schauer, “Law abounds with such straightforward applications,” but “the set of cases that winds up in court, and even more the smaller set that winds up in an appellate court, consists pretty much only of those cases in which both sides think that they have a colorable enough legal argument that it is worth spending time and money to go to court.” FREDERICK SCHAUER, THINKING LIKE A LAWYER 137 (2009). Compare Posner’s view that “most appeals to federal courts of appeals can be decided satisfactorily by straightforward application of known an definite law to the facts of the case.” Posner, supra at 107.


18

decided doctrinally, although most important cases are not.40 This confidence in

routine doctrinal determinacy is important. Although it does not explain doctrinal

reasoning’s role in cases that doctrine cannot decide, it has a normalizing effect on

otherwise unexplained uses of doctrine. It tends to portray doctrine as the central,

usual mode of legal reasoning. That perceived centrality makes it seem less curious

that judges continue to reason doctrinally and to write decisions in doctrinal terms

in cases where doctrine fails to determine outcomes. Nevertheless, Posner

acknowledges that some significant number of “important” judicial decisions

require more than doctrine, and he gives considerable attention to the question how

judges go about deciding cases using both doctrine and policy, though his

descriptions of that process are not always consistent.41

Sometimes Posner suggests that policy should be considered only when

doctrine is altogether out of the decision making process. For instance, he asserts

that doctrinal indeterminacy “create[s] an open area in which judges have

decisional discretion – a blank slate on which to inscribe their decisions.”42

Of course if policy comes in only after doctrinal reasoning is abandoned as

indeterminate, there is no problem with the incommensurability of these two

40 RICHARD A. POSNER, HOW JUDGES THINK (2008) (“Legalism,” i.e., traditional legal

materials and methods, including doctrinal reasoning, “drives most judicial decisions, though generally they are the less important ones for the development of legal doctrine or the impact on society.” Id. at 8.)

41 Id. at 9. Moreover, Posner suggests that often a judge “is unconscious of a sharp break between his legalistic and his legislative activity on the bench,” and this “produced leakage between his consideration of routine and of nonroutine cases.” Id. at 85.

42 Id. at 9.


19

decision-‐making methods. The substitution of policy for doctrine, however, raises

the gaping original question about what role doctrine continues to play and if the

answer is “none,” what makes the resulting non-‐doctrinal decision authoritatively

legal and a legitimate basis for government enforcement.

Perhaps for that reason, Posner sometimes seems to be suggesting that

doctrine and policy do combine in individual legal cases. He writes of policy being

used to “close the deal” after doctrine “leads nowhere.”43 The picture of policy

taking over to “close the deal” seems to suggest that policy can come in at the end of

an analysis to finish a job begun – and still constrained, limited or at least influenced

-‐-‐ by doctrine.44 But it is not as though an indeterminate doctrinal result is

somehow unfinished and can then be rounded out or revised slightly with policy

considerations – at least not in winner take all adjudicative situations in which only

one party can prevail. Assuming that doctrine does not leave the result completely

open, a judge using doctrinal reasoning will arrive at an under-‐determined decision

of where liability lies; defendant or plaintiff wins. If the judge goes on to consider

policy, only one of two things can happen – either the policy considerations confirm

the original doctrinal outcome, or they change it. Of course the rationale can be

revised and supplemented, but the ruling itself – judgment for plaintiff or defendant

-‐-‐ either stands or falls. Adjudication is relentlessly binary: She loves me, she loves

me not . . . . Once subjective policy considerations come back in after an initial, or

43 Id. at 28.

44 See, for example,


20

partial, doctrinal analysis, it seems the decision maker is free to either confirm or

reverse the provisional doctrinal result. If judges start with doctrine and later

resort to policy after finding doctrine indeterminate, it is hard to see what

substantive work the doctrine can still be doing. According to Posner, while some

judges consider policy only after they have tried and failed to decide the case with

doctrine, most “blend the two inquiries, the legalist and the legislative, rather than

addressing them in sequence.”45 If that is the case, then we still need a theory of how

that combination is possible.

Schauer’s integrationist account avoids the problematic first-‐doctrine-‐then-‐

policy model by accepting the Realist view that judges initially choose legal

outcomes based on social policy preferences and then turn to doctrine to justify

those choices.46 Schauer rightly points out that doctrine could still provide

significant substantive guidance, if judges subjected their initial policy conclusions

to doctrinal analysis and that doctrinal analysis could confirm or reject the legal

correctness of the judge’s initial policy-‐driven result.47 But of course this

constraining role for doctrine requires doctrine to actually prescribe one policy-‐

driven outcome over another. The problem with Schauer’s explanation, then, is that

everything still depends on doctrine’s ability to direct or constrain legal outcomes.

45 Id. at 84

46 You might think that this Realist approach would conflict with Schauer’s over arching rule-based account of legal reasoning, but he apparently regards it as entirely uncontroversial. Indeed, he characterizes this integrationist approach as “an account of judging with which few sitting judges . . . would disagree.” Schauer supra note at 131.

47 Id. at 128.


21

Once again this doctrinal capacity to limit results is precisely what observers,

including Schauer, concede is absent from many if not most adjudicated cases.

The bottom line is that to argue that doctrine can combine with policy to

produce a recognizably legal outcome, you must believe that doctrinal reasoning

does something other than simply allow the decision maker to choose results

according to her own best all-‐things-‐considered analysis. Integrationist accounts

have failed to articulate how doctrine might shape legal results other than by

directing substantive results, and substantive doctrinal determinacy is precisely

what most observers acknowledge is missing in at least a significant number of

cases that undergo judicial decision making and are resolved in doctrinal terms.48

B. Non-‐Substantive Accounts of the Continued Role for Doctrinal Reasoning

Two other approaches to justifying doctrinal reasoning appear in legal

literature, although much less frequently than integrationist accounts. Both offer

ways to ground doctrinal reasoning that are not rooted in doctrine’s capacity to

identify objectively correct legal outcomes. So these explanations, which I call the

“fidelity” and “legal art” accounts, avoid a confrontation with doctrinal

indeterminacy. The trouble is that, having abandoned substantive determinacy as

the doctrinal raison d’etre, they fail to explain how indeterminate doctrinal

reasoning actually could contribute to the legitimacy of adjudicated outcomes.

1. The Judicial Fidelity Approach

48 “Nowadays it would be hard to find very many dissenters from the view that when

judges change the law, they base their decisions on a mix of policy and principle that can hardly be thought of as a deductive or logical exercise.” Id. at 125.


22

Some accounts of judicial decision making focus on judges’ faithful efforts to

reason doctrinally, rather than doctrine’s capacity to identify or narrow down

substantively correct legal outcomes. This fidelity approach implicitly equates the

legitimacy of doctrinal results with the sincerity with which legal decision makers

attempt to apply doctrine. The core concern is a judge’s conscious willingness to stick to

an appropriate judicial role. Instead of asking how and when preexisting legal rules

direct legal outcomes, the question becomes one of judges’ good faith efforts to apply the

rules. The fidelity approach focuses on the difference between strategic, willful judging

that pursues personal policy goals and sincere attempts by judges to find the correct legal

outcome. Are judges faithfully attempting to follow the law and avoiding willfully

subjective judging? If so, then under a fidelity approach, there is no conflict with the rule

of law. The trouble is that it is unclear how a judge’s sincere application of indeterminate

doctrine can produce legality.

Brian Tamanaha is a leading proponent of the fidelity approach. For Tamanaha,

“being consciously rule-bound is the essence of a system of the rule of law.” He

acknowledges that “judges’ background views subconsciously influence their

interpretation of the law.” Nevertheless, according to Tamanaha, judges who engage in

doctrinal reasoning are not “deluded, naieve, or lying when they claim that their decisions

are determined by the law.” He reasons that, because “[j]udging is a human practice,” it

is necessarily susceptible to human fallibility, including the inevitable part that our

personal subjective views play in our understanding of problems we face. Given that

judges are human, Tamanaha contends that “[t]o the extent that a judge is consciously


23

rule-bound when engaged in judging, the judge is correct in claiming to be rule-bound in

the only sense that this phrase can be humanly achieved.”49

The core value in this fidelity approach to legal reasoning is conscious

commitment: “Judging is rule bound only if judges are committed to abide by the

rules.”50 Of course this cannot ensure mechanical determinacy, when doctrine is

indeterminate, as Tamanaha acknowledges. Nevertheless, from the fidelity perspective,

conscious commitment can carve out a recognizable domain for law: “As long as

individual justices are genuinely oriented in their decision making to produce the correct

legal answer, as long as their decisions must be justified in terms of conventionally

acceptable legal reasoning and authority, this is legal decision making with political

influences more so than political decision making with legal influences.”51

The problem with the fidelity approach is that so long as the role of doctrine is

limited to providing substantive answers, following indeterminate doctrine cannot

produce legitimate results. While avoiding claims of substantive determinacy,

proponents of the fidelity approach offer no alternative reason to think that doctrine can

contribute to the legitimacy of judicial decisions. There is a gap, then, between a good

faith judicial choice to follow doctrine and the promise that following doctrine could

produce limited, and therefore legitimate, results. As Desmond Manderson observes, “the

49 BRIAN TAMANAHA, LAW AS A MEANS TO AN END 242 (2006).

50BRIAN TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING 199 (2010)

51 Id. at 198.


24

inability of rules to entirely constrain the decision of the judges is not a choice.”52 If

legality means being substantively constrained by preexisting rules, but preexisting legal

rules are incapable of real substantive constraint, then no amount of good-faith judicial

effort will do the trick. Without a theory of how indeterminate doctrine could help a legal

decision maker look outside herself for her decision, the fidelity approach fails to explain

how sincere efforts to reason doctrinally can produce legality.

2. Practicing Legal Art

A second alternative to the integrationist model treats doctrinal analysis as a

technique that defines judicial practice, comparable to certain aesthetic or technical

practices. In this view, a judge needs to know how to do doctrinal analysis and do it

well because following doctrinal rules is categorically part of how we understand

the cultural practice of legal reasoning. The difficulty, of course, is explaining why a

technique is necessarily a defining aspect of a given cultural practice, when it does

not contribute directly to many of the products of that practice, whether artistic or

legal.53

The background for this approach is a view of judging as a craft subject to

critical scrutiny by fellow artisans with a shared history, culture and values. As Felix

Cohen put it, “judges are craftsmen, with aesthetic ideals, concerned with the

aesthetic judgments that the bar and the law schools will pass upon their awkward

52 Manderson supra at 481.

53 POSNER, HOW JUDGES THINK at 12.


25

or skillful, harmonious or unharmonious, anomalous or satisfying actions and

theories.”54 Crucially, in the legal art approach, the value of a judicial decision lies

not entirely in its substantive result but also in the way in which that result was

reached and is presented. According to (Judge) Frank Coffin, “While we take pride

in whatever contribution we may be favored to make” to substantive law, “we take

equal pride in the way in which the contribution is crafted.”55

The problem with the Legal Art approach is that it offers no persuasive

reason why a judge’s practice of doctrinal craft should matter in judicial decisions in

which that craft is not responsible for identifying the correct, or more correct, legal

outcome. Legal Art accounts either fail to explain why practicing indeterminate

doctrinal reasoning contributes to legitimacy, or harken back eventually to

substantive determinacy as the underlying rationale for doctrinal craft.

In 1960, Karl Llewellyn argued that good appellate decision making was a

matter of acquired legal cultural taste or knowledge, a “situation sense” with which

experienced judges gauged the legal relevance of different aspects of the real life

conflicts that they were adjudicating and a sense of “fitness and flavor” about how to

apply “formally available” doctrinal authorities and techniques to those situations.56

These are distinctly acquired abilities. For Llewellyn the consistency of judges’

decision making comes not from their application of “common knowledge” but

54 Felix Cohen, Transcendental Nonsense, 35 COL. L. REV. 809, 845 (1935).

55 FRANK M. COFFIN, THE WAYS OF A JUDGE 196 (1980).

56 Id. at 23 and 222-223.


26

rather from their deployment of “that most uncommon knowledge which I call horse

sense, the balanced shrewdness of the expert in art.”57 At a more detailed

metaphorical level, Llewellyn compares judges’ expert decision making technique to

an artist’s feel for the medium in which he works. Extends the analogy between

judges’ work with doctrine and artists’ work with materials, he contrasts the skill of

the Russian sculptor Konekov, “whose chisel woke in wood the beauty asleep in it,”

with his benighted contemporary Mestrovic, “who wielded his will upon a block of

wood as if it had been grainless granite.”58 Most good judicial craftsmen, Llewellyn

says, like good sculptors, “desire to move in accordance with the material as well as

within it, to carve with the grain like Konekov, to reveal the latent rather than to

impose new form.”59 Certainly the analogy gets across the traditional idea that

judges are normatively bound to work with, not against, the relevant precedents.

But comparing doctrinal reasoning to sculptors’ approaches to wood carving does

little to explain why working with indeterminate precedential authorities could

confer legitimacy on judicial results.

Defending the institutional legitimacy of appellate courts, Llewellyn points to

the “reckonability,” or, predictability, of judicial decisions, 60 and he includes “Legal

Doctrine” and “Known Doctrinal Techniques” among the “steadying factors” that

57 Id. at 121.

58 Id. at 222.

59 Llewellyn does allow for some exceptions – great (or at least famous) judges who worked against the grain – notably Mansfield and Coke.

60 Id. at 19.


27

contribute to making legal outcomes predictable.61 Sometimes he seems to suggest

that predictability in and of itself could ground the legitimacy of judicial outcomes,

but that cannot be right. If judges’ decisions are predictable because they tend to

choose the outcomes that advance the prestige of the judiciary or because they

reflect some shared political ideology or cultural prejudice, that hardly makes those

predictable decisions legitimate. If, on the other hand, judicial decisions were

predictable because they were determined or limited by the application of

preexisting legal doctrine, that would convey legitimacy in the classic doctrinal

sense.

Perhaps, then, as others have suggested, Llewellyn actually intended to

endorse a version of the integrationist view that doctrine by itself decides some

significant percentage of legal cases and/or contributes substantively to all the cases

in which it is used.62 But of course here we are back to the basic problem that there

is no reason to believe that doctrine is in fact determinative in many cases whose

reported decisions are doctrinally explained. Llewellyn himself acknowledges that

“the authorities taken alone” will leave the outcome open “in any case at all decently

handled below and also worth appealing.”63 Nevertheless, Llewellyn suggests,

tantalizingly, that somehow the “known and felt techniques for use of the

61 KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 16-18 (1960).

62 See Brian Leiter, Realism . . . .; Schauer.

63 Id. at 21


28

authoritative materials,” can produce significant limits on the results, if not absolute

determinacy.64 But how those limits can be established remains mysterious.

More recently, Richard Posner, has used a comparison with artistic practice

to propose that doctrinal reasoning could somehow makes judges better at

producing legal decisions even in cases not substantively guided by doctrine.

Specifically, Posner proposed that doctrinal reasoning may be to judging as life

drawing is to abstract art. “Just as some people think an artist must prove he is a

competent draftsman before he can be taken seriously as an abstract artist,” he

observes, “a judge must prove – anew in every case – that he is a competent legal

reasoner before he can be taken seriously as a pragmatic judge.”65

The problem with comparing doctrinal reasoning to drafting is that drafting’s

place in visual art is every bit as contested as doctrine’s place in legal decision

making. It is far from universally accepted that a good visual artist needs to be a

good draftsman, or a draftsman at all. To be sure, there is a longstanding view to

that effect, but it is controversial. In the nineteenth century, the aesthetician John

Ruskin declared that to draw is to “learn how to see,” and some twenty-‐first century

scholars agree that drawing is a fundamental ingredient of mastery in visual art. For

64 Id. at 22-23.

65 POSNER, HOW JUDGES THINK at 16.


29

instance, one writer asserts that drawing develops “visual thinking” and another

“the ability to communicate ideas visually.”66

Others, however, see this approach as misguided essentialism. “Drawing

actually teaches us how we saw rather than how we see,” says arts education

scholar Aileen Wilson. “Without the act of drawing we would not understand the

conventions and beliefs we have about seeing itself.”67 In this view, there is no core

knowledge or technique that definitively constitutes visual art or the boundary

between art and other activities, and drawing does not impart any special

imprimatur of artistic competence. In short, the question whether and how being a

good draftsman might be important for making good abstract art (when making

abstract art does not apparently require drafting) would seem to be as complex and

contested as the question why judges should continue to use doctrine when it does

not determine legal results.

So far, then, legal art accounts have failed to provide much beyond the basic

observation that judicial decision making has something in common with certain

aesthetic practices with shared histories, traditional techniques and cultural

debates. Nevertheless the comparison of doctrinal reasoning and aesthetic

techniques seems pregnant with possibility. Most important, comparing the role of

doctrinal reasoning to artists’ methods shifts the focus away from judicial outcomes

and offers another plausible locus of doctrinal effect: judges themselves. Comparing 66 Fava at 131.

67 Email on file with the author.


30

doctrinal reasoning to artists’ techniques suggests the possibility that doctrinal

reasoning could affect its practitioners in ways that benefit their decision making

without contributing substantively to any given decision they produce. And it

suggests that one way to explore that role might be to consider similarities between

doctrinal reasoning and specific aesthetic practices.

In Part III of this essay, I offer one such exploration, comparing doctrinal

reasoning and the techniques performers use to disrupt their ordinary subjective

responses in order to play characters. That disruptive account could be seen as an

extension of the legal art accounts I have sketched here. Before proceeding with

that account, however, I want to highlight some recent empirical research suggests

that working with doctrine may have psychological effects on legal decision makers.

II. Empirical Models of Doctrine’s Role

Despite doctrine’s central role in mainstream conceptions of legal reasoning,

empirical studies of judicial decision making long relegated doctrinal reasoning to the

margins. As Lawrence Baum puts it, up until the 1990s, most empirical studies of judicial

behavior assumed that the primary basis for judges’ decisions was their conscious

“personal policy preferences,” and ascribed “little or no impact to legal considerations.”68

Following the Legal Realists, empirical researchers set out to study the extent to which

non-doctrinal factors, particularly ideology and cultural bias, influenced judicial decision

68 Lawrence Baum, Motivation and Judicial Behavior: Expanding the Scope of Inquiry,

in THE PSYCHOLOGY OF JUDICIAL DECISION MAKING 4-5, DAVID KLEIN & GREGORY MITCHELL ED. (2010).


31

making. Over the past 50 years or so, these studies have produced a “mountain of

evidence” that judges’ political and cultural views do affect their decisions and precious

little information about the role of doctrine. 69

To be sure, judicial behavior researchers never claimed to have shown that legal

doctrine was insignificant. Indeed, while testing ideological influences, many of these

studies appear to take for granted some doctrinal effect. But until recently, the stories of

legal decision making that emerged from empirical studies rarely if ever featured doctrine

in a central role. And even if doctrine was presumed to play some part in judges’

reasoning, there was little interest in investigating how legal doctrines affected the

decision makers who avowedly applied them.

More recently, however, two trends have combined to produce research aimed at

understanding whether and how “law matters” in judicial outcomes.70 First, empirical

69 David Klein, Law in Judicial Decision Making (2015). See, e.g., Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of U.S. Supreme Court Justices, 83 Am. Pol. Sci. Rev. 557 (1989); Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (1993); Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002); Donald R. Songer & Sue Davis, The Impact of Party and Region on Voting Decisions in the United States Courts of Appeals, 1955-1986, 43 W. Pol. Q. 317 (1990) (discussing “significant differences in the voting patterns of Democratic and Republican judges on a wide spectrum of issues”); Cass Sunstein et al., Are Judges Political? An Empirical Analysis of the Federal Judiciary 147 (2006) (“Republican appointees differ from Democratic appointees. . . . [W]e see significant differences in such areas as campaign finance legislation, affirmative action, . . . labor law, and much more.”); Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 Ohio St. L.J. 1635, 1640 (1998) (Under this theory, we can predict circuit court judicial behavior in en banc cases based on the judges’ policy preferences . . . and/or their compulsion to win . . . .”).

70 Michael D. Gilbert, Does Law Matter? Theory and Evidence from Single-Subject Adjudication, 40 J. LEGAL STUD. 333 (2011). See also, Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 429 (2007) (“Some [lower courts] may be more likely to see their decisions as bound by higher court precedent, while others will read those decisions narrowly, leaving them substantial discretion to decide the issue before them.”); Sara C. Benesh & Malia Reddick, Overruled: An Event History Analysis of Lower Court Reaction to Supreme Court Alteration of Precedent, 64 J. POL.


32

legal scholars have shifted away from a framework that conceives of judicial decision

making entirely as a matter of conscious strategy. Following decades of psychological

research, judicial behavior studies have begun to consider the importance of unconscious

cognitive processes in legal decision making. 71 Some recent studies test models of legal

reasoning that include the influence of “implicit” or unconscious biases or “motivated

thinking” that have repeatedly been shown to be prevalent in all sorts of decision

making.72 Second, a number of empirical legal researchers have apparently realized that

persistently treating judges’ use of doctrine as either a false explanation or a background

condition has only served to further mystify doctrine’s role. The result is a new body of

research that incorporates a more complex psychological view of legal decision makers

and attempts to observe how decision makers engage with legal authorities. Some recent

experimental studies focus on decision makers’ use of legal authorities to resolve

71 Outside the political science study of judicial behavior, there have long been models of

judicial decision making that reach outside conscious reasoning, notably Joseph Hutcheson’s “hunch” theory. Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, 14 CORNELL L. REV. 274 (1929). See KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960). See also, Chad M. Oldfather, Of Judges, Law and the River: Tacit Knowledge and the Judicial Role, 2015 J. DISPUTE RESOL. 155 (2015) (discussing Hutcheson, Llewellyn, and Paul Carrington’s essay comparing legal reasoning with the navigation knowledge of river pilots, as described by Mark Twain: Paul D. Carrington, Of Law and the River, 34 J. LEGAL EDUC. 222 (1984)).

72 See, EILEEN BRAMAN, LAW, POLITICS, & PERCEPTION 30 (2009); Dan M. Kahan, David Hoffman, Danieli Evans, Eugene Lucci, and Katherine Cheng, ‘Ideology’ or ‘Situation Sense’? An Experimental Investigation of Motivated Reasoning and Professional Judgment, 164 PENN. L. REV. 349 (2016); Ward Farnsworth, Dustin Guzior and Anup Malani, Policy Preferences and Legal Interpretation, J. Law and Courts (2013); Ward Farnsworth, Dustin Guzior and Anup Malani, Implicit Bias in Legal Interpretation (2011); Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich, & Chris Guthrie, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195 (2009); Eileen Braman & Thomas E. Nelson, Mechanism of Motivated Reasoning? Analogical Perception in Discrimination Disputes, 51 AM. J. POLI. SCI. 940 (2007); Chris Guthrie, Jeffrey Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 101 (2007). See also, Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124 (2012).


33

hypothetical legal cases designed to trigger participants’ subjective biases.73 These

experiments provide evidence that in some circumstances the ways decision makers

engage with legal authorities may influence how their subjective biases are implicated in

their decisions.

At first glance it might seem that applying the insights of cognitive psychology to

judging would further deemphasize the role of doctrinal authorities. After all,

considering the ways legal reasoners might be subject to the sorts of unconscious biases

that plague decision making in other contexts takes us even farther from the ideal of the

judge who applies the law objectively as given, unmoved by her own preferences. In

fact, though, adopting a more complex psychological approach to judicial behavior seems

to have had the opposite effect. Studies aimed at testing the influence of unconscious

biases have tended to draw more attention to judges’ engagement with legal authorities.

On reflection, that is not surprising. So long as empirical models were polarized between

judges who deliberately pursued their own ideologically preferred outcomes while

pretending to follow the law (the “attitudinal” and “strategic” models) and judges who

sincerely applied the law (the “legalist” model), there was no reason to imagine how the

process of doctrinal reasoning affected outcomes. In these models, a judge either

followed the law or didn’t. But once empirical legal models embraced unconscious

motivation, it became obvious that a judge might both be committed to following the law

73 See e.g., Gilbert supra note .


34

and influenced by cultural and political biases.74 Cognitive psychological theories of

unconscious bias could explain how judicial results could track judges’ subjective

preferences even if judges were diligently attempting to follow legal doctrine. That raised

the question of how judges’ engagement with legal authorities might interact with their

subjective preferences.

Several of the studies in this new wave of empirical legal research have turned up

results that the researchers interpret as evidence that engaging in formal legal decision

making may contribute to depressing the effects of cognitive biases. This interpretation

is something other than a return to pre-Realist beliefs in the power of doctrinal arguments

to convince decision makers that a particular result is uniquely correct. All of these

researchers embrace the idea that people are rarely rationally persuaded to move away

from consciously held views with which they strongly identify. As a matter of cognitive

psychology, there is more and more evidence that people are unlikely to be convinced to

change their minds by substantive argument.75 Moreover, it is not as though we share the

same view of positive reality and disagree only on normative questions about ideology,

morality and policy. Instead, it seems our normative beliefs shape our understanding of

reality, and thus lead us to see the same real-world phenomena quite differently. Insome

74 EILEEN BRAMAN, LAW, POLITICS AND PERCEPTION 29 (2009). As Laurence Baum

points out, “the concept of motivated reasoning provides a way to understand how judges’ policy preferences could influence their choices in a less than fully conscious way.”

75 See Dan M. Kahan, Ellen Peters, Maggie Wittlin, Paul Slovic, Lisa Larrimore Ouellette, Donald Braman and Gregory Mandel, The Polarizing Impact of Science Literacy and Numeracy on Perceived Climate Change Risks, 2 NATURE CLIMATE CHANGE 732 (2012); D. J. O'Keefe, Social Judgment Theory. In PERSUASION: THEORY AND RESEARCH, 29-44 (1990); Daniel Kahneman & Amos Tversky, Choices, Values & Frames, 39 AMER. PSYCHOLOGIST 341 (1984).


35

Some recent empirical research has focused on this conflation of positive and normative

judgment in a legal decision making context. 76 Much of this work confirms that decision

makers’ attitudes affect their perceptions and interpretations of legal authorities. As

Eileen Braman and Thomas E. Nelson put it, “participants with diverging opinions saw

the very same cases in systematically different ways.”77 Nevertheless, some of this

research also suggests that legal decision makers can sometimes avoid understanding

legal authority only in ways that confirm preexisting views. I want to highlight in

particular two studies that suggest that doctrine may contribute to legal reasoning in ways

not entirely dependent on conscious substantive direction.

A. Two Recent Studies of Doctrinal Effects

In a 2007 article, Guthrie, Rachlinski and Wistrich proposed an alternative to the

attitudinal-strategic v. legalist models undergirding most empirical research on judicial

behavior.78 Rather than concentrating on judges’ deliberate attempts to either impose

their own policy preferences or obediently follow legal doctrine, they focused on

cognitive processes involved in legal decision making. Their hypothesis was a variation

of the “dual process” theories from cognitive psychology, that distinguish between

intuitive, or, “system 1,” processes and deliberative, or, “system 2,” processes (also

76 Ward Farnsworth, Dustin Guzior, & Anup Malani, Policy Preferences and Legal

Interpretation, 1 J. L. & COURTS 115, 128 (2013).

77 Braman & Nelson supra note at .

78 Chris Guthrie, Jeffrey Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 101 (2007).


36

sometimes called “fast” and “slow” thinking).79 In their own words, “this model posits

that judges generally make intuitive decisions but sometimes override their intuition with

deliberation.”80 Using this model, Guthrie et al conducted two experiments designed to

see whether trial judges were subject to so-called “hindsight bias,” i.e., the “well-

documented tendency to overestimate the predictability of past events,” which has been

shown to influence decision makers at an unconscious level.81

In one experiment, the researchers gave a group of sitting trial judges a short

description of a prisoner’s pro se complaint alleging a violation of Section 1983, told

them the outcome of the case in the trial court and on appeal, and then asked the judges to

predict, “in light of the facts of the case,” which of three appellate outcomes was most

likely. The results indicated judges’ predictions were affected by what they had been told

was the actual outcome on appeal, indicating hindsight bias was at work. For instance, of

judges told that the court had affirmed, 81.5% said they would have predicted affirmance,

compared with only 27.8% of judges told the court had vacated. Conversely, 51.9% of

those told the court had vacated said they would have predicted that result, compared

with only 11.1% of judges told the court had affirmed.82 As Guthrie et al conclude,

79 Id. at 106-12. See DANIEL KAHNEMAN, THINKING FAST AND SLOW (2011); Daniel Kahneman & Shane Frederick, Representativesness Revistied: Attribute Substitution in Intuitive Judgment, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 49 (Thomas Gillovich, Dale Griffin & Daniel Kahneman eds., 2002). See generally, DUAL-PROCESS THEORIES IN SOCIAL PSYCHOLOGY (Shelly Chaiken & Yaacov Trope eds., 1999).

80 Guthrie et al supra note at 103.

81 Id. at 123.

82 Id. at 125 table 7.


37

“[l]earning an outcome clearly influenced the judges’ ex post assessments of the ex ante

likelihood of various possible outcomes.”83 In other words, hindsight bias prevailed.

In a second study involving an issue of probable cause, however, hindsight had no

apparent impact, leading the researchers to conclude “that judges are sometimes capable

of resisting hindsight bias.”84 In that study, one group of judges was asked to determine

whether they would issue a telephone search warrant based on a hypothetical set of facts,

while a second group was asked to rule on a suppression motion for drug evidence found

in a warrantless car search based on the same factual circumstances.85 The hypothesis

was that judges ruling on the suppression motion would exhibit hindsight bias because of

the damning evidence the search had uncovered. But no such hindsight bias appeared.

Instead, judges asked to rule on the suppression motion found there had been probable

cause to conduct the search at a rate “statistically indistinguishable” from that of the

warrant issuing judges, who knew only the facts leading up to the search.

Why would judges asked to predict appellate outcomes in a Section 1983/Rule 11

context exhibit hindsight bias while judges asked to rule on probable cause were

unaffected? The researchers propose that asking judges for a legal ruling rather than a

simple outcome prediction may have triggered a different reasoning method. They note

that under any conventional legal approach, a probable cause ruling would entail the

judges’ consideration of a familiar body of case law. So directing judges to make a legal

83 Id. at 125.

84 Id. at 125.

85 Id.


38

ruling on probable cause in effect prompted them to consider a complex body of legal

doctrine. Using their dual-system model of judicial reasoning, the researchers suggest

that doctrinal consideration triggered the kind of slower deliberative reasoning that has

been shown in other contexts to reduce the effects of cognitive biases. In contrast, the

judges asked to predict appellate outcomes on the dismissal and Rule 11 sanctions may

have done so intuitively, using the kind of “fast thinking” notoriously subject to hindsight

bias.86 The idea is that something about judges’ engagement with a “web of complex

rules” in ways necessary to make a formal legal ruling freed them from the hindsight bias

that influenced the judges’ outcome predictions.87

In a 2016 article, Dan M. Kahan and colleagues report the results of a series of

experiments designed to compare the susceptibility to subjective biases of legal

professionals, law students and lay people, and to test whether lawyers and judges are

less driven by their subjective biases when they engage in legal decision making than

they are in non-legal settings. 88 The researchers hypothesized that when judges and

lawyers engage in legal reasoning, “professional judgment can be expected to

counteract ‘identity-‐protective cognition’ – the species of motivated reasoning

86 Id. at 126-28.

87 Id. at 127.

88 Dan M. Kahan, David Hoffman, Danieli Evans, Eugene Lucci, and Katherine Cheng ‘Ideology’ or ‘Situation Sense’? An Experimental Investigation of Motivated Reasoning and Professional Judgment, , http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2590054, forthcoming 164 U. Penn. L. Rev.


39

known to generate political polarization over risks and myriad policy and legally

consequential facts.”89

Kahan et al. created alternate versions of background facts for each of two

simulated lawsuits designed to trigger different cultural/political biases. The first

case involved a person charged under a statute that prohibits “littering, disposing,

or depositing any form of garbage, refuse, junk, or other debris” on a national

wildlife preserve.90 In one version of the littering case, defendants were

immigration-‐aid workers who left large plastic jugs full of water “along a 50-‐mile

stretch known to be traversed by undocumented migrant farm workers . . . . who

face a high risk of death by dehydration during attempts to cross the border.”91 In

the alternate version, the jugs were left by construction workers, hired to build a

border fence, who “anticipated drinking the water as they completed their work

over a three-‐month period.”92 In both versions of the case defendants argued that

they did not permanently discard anything and only temporarily placed the jugs in

the desert expecting them to be used and reused, and so their conduct did not fall

within the statute’s prohibitions. In opposition, the government argued that the

statute’s terms “depositing,” “junk” and “other debris” were broad enough to

89 Id. at 4.

90 Id. at 21.

91 Id. at 58.

92 Id.


40

encompass the defendants’ actions.93 The second hypothetical case involved an

appeal of a police officer’s conviction for violating a statute prohibiting government

employees from disclosing confidential information. In one version, the officer tells

his sister who works at a non-‐profit family planning center that a recent job

applicant belongs to an anti-‐abortion group. In the other version, the officer’s sister

works at a religious family planning center that counsels on abortion alternatives,

and the job applicant belongs to an abortion rights group.94

Research subjects included judges, lawyers, law students and members of the

general public with no formal legal training. All were asked to imagine they were

trial judges adjudicating a motion to dismiss, which entails interpreting the relevant

statute. Members of the public asked to decide the cases showed evidence of

motivated thinking in line with their previously tested political beliefs.95 The case

decisions of judges and lawyers, however, showed significant consensus across

ideological lines.96 Unlike members of the general public or law students, clear

majorities of judges and lawyers favored the same results in both versions of the

cases. 97

93 Id.

94 Id. at 22-23.

95 Id. at 28, 30-31.

96 Id. There were some small variations along cultural-political identity lines (established with an attitudinal test taken by the subjects after they responded to the cases).

97 In adjudicating the littering case, over 75% of judges and lawyers found no violation, regardless of which version they were given and what cultural/political orientation they were found to have. The other case produced somewhat less consensus, but there were still clear


41

The differences between lawyers and judges and the other experimental

subjects, however, did not hold when they were asked to make decisions outside the

formal legal context.98 In a separate part of the experiment, Kahan et al asked their

subjects to evaluate the salience of different threats to society, in particular, risks of

social deviancy and environmental damage.99 For all the participants, lawyers and

judges as well as members of the public and law students, responses to this part of

the experiment showed patterns associated with identity-‐protecting motivated

thinking correlated with the participants’ observed ideological outlooks.100

Whatever produced judicial consensus across ideological lines in the resolution of

the hypothetical legal cases did not unify the judges’ responses to social problems

presented outside the context of legal decision making.

Kahan et al. explain their results using a theory of “professional judgment,”

developed in the work of psychologist Howard Margolis and suggest that

Llewellyn’s concept of judges’ “situation sense” (discussed supra as a Legal Art

approach to doctrinal reasoning) is a version of the same phenomenon.101

Following Margolis’s account, they theorize that “when judges decide cases, they are

majorities of judges and lawyers who agreed on the correct outcome, regardless of politics. Id. at 31. Law students were somewhere in between.

98 Id. at 40-41.

99 Id. at 23-24.

100 Id. at 41.

101 Id. at 15-16, 25, 45-46. See HOWARD MARGOLIS, DEALING WITH RISK: WHY THE PUBLIC AND THE EXPERTS DISAGREE ON ENVIRONMENTAL ISSUES 35 (1996) and HOWARD MARGOLIS, PATTERNS, THINKING AND COGNITION: A THEORY OF JUDGMENT (1985).


42

not merely engaging in conscious, effortful information processing: they are

exercising professional judgment.” Margolis characterizes this acquired professional

ability as “habits of mind”102 linked to pattern recognition. In this model, decision

makers’ approach is “conscious and effortful to some degree, but just as much tacit

and perceptive.” 103 Such professional judgment is said to be “distinctively fitted to

reasoning tasks the nature of which falls outside ordinary experience” and thus

operates only when professionals engage in their distinctive professional activities.

Kahan et al., hypothesize that judges’ acquired professional habits of mind or

situation sense enable them to be “resistant to identity-‐protective cognition when

performing the types of reasoning tasks characteristic of their profession – but not

otherwise.”104

As Kahan et al. explain, the theory of professional judgment adapted from

Margolis is based primarily on “pattern recognition.”105 Margolis describes the

mental process as “rapid un-‐ or pre-‐conscious matching of phenomena with

mentally inventoried prototypes.”106 So, for example, chess masters win, “not by

anticipating and consciously simulating longer sequences of potential moves but by

more reliably perceiving the relative value of different board positions based on

102 Kahan et al. supra note at 14.

103 Id.

104 Id. at 42.

105 Id.

106 Id.


43

their prototypical affinity to ones that thousands of hours of experience have

revealed confer an advantage to one player or another.”107 Applying this theory to

legal decision making, the Kahan group reason that judges likewise acquire

“specialized prototypes” that enable them to “converge on the recognition of

phenomena of consequence to their special decision making responsibilities.” 108 In

their view, these “shared prototypes” acquired through legal education and practice

allow judges to “reliably attend only to the legally pertinent aspects of controversies

and disregard the unimportant ones.”109 Thus, in formal legal contexts, judges

“converge on consensus results despite a divergence of political outlooks.”110

B. Doctrinal Effects and Doctrinal Determinacy

Both the Guthrie and Kahan studies break away from the narrow

understanding of legal authorities as affecting practitioners only by directing them

to consciously adopt particular substantive results. The researchers offer two

different psychological models to explain how engaging with legal doctrine might

help legal reasoners avoid biases that influence their decisions in informal contexts.

Neither of these models depends on the kind of logical reasoning or analogical

comparison that are the usual paradigms of doctrinal analysis. Both sets of

researchers attribute judges’ observed ability to avoid bias in formal legal rulings to

107 Id.

108 Id.

109 Id. at 46.

110 Id. at 45.


44

something other than their being consciously persuaded by the substance of legal

doctrinal rules.

Guthrie et al point to the difference in the way the participants in their two

experiments were prompted to interact with legal authorities. They suggest that

being asked to predict how others would rule in the Section 1983 case did not

require judges to engage with doctrine in the formal conventional mode necessary

to make and explain a legal ruling. In contrast, the probable cause judges were

asked to make their own legal rulings, so they presumably approached the legal

authorities as if they were themselves adjudicating the case. In their view, formal

doctrinal reasoning requires a kind of “system 2,” or, “slow” thinking, which is

widely thought to override or correct heuristic biases that are deployed in “system

1,” intuitive cognition.

The Guthrie group’s explanation is consistent with doctrinal indeterminacy,

because it does not depend on the substance of doctrine. Rather, these researchers

hypothesize that it is the “complexity,” of the relevant body of legal authority that

produced the observed shift away from cognitive bias. They propose that trafficking

with the complex web of doctrinal authorities induced a decision making approach

that triggered the kind of slow thinking thought to help avoid cognitive bias.

At first glance, the Kahan group’s theory of how the judges in their study

avoided biased thinking when engaged in formal legal reasoning seems similarly

non-‐substantive. Certainly their model of judges’ “pattern recognition” does not

involve the kind of deliberate, conscious application of doctrinal content to specific


45

facts that is typical of most descriptions of legal reasoning. Indeed, the Kahan

group’s model seems even farther removed from classical depictions of legal

reasoning than the Guthrie group’s model because it focuses on pre-‐conscious

perception of patterns rather than logical deduction or analogical comparison with

precedent. One might therefore assume that the Kahan theory is likewise

compatible with doctrinal indeterminacy. But the Kahan group’s model of

professional judgment can only work if something in fact identifies one outcome as

objectively preferable to legal professionals.

Kahan et al hypothesize that through training and experience judges have

internalized “specialized prototypes” that allow them to recognize legally

“pertinent” patterns and disregard legally irrelevant aspects of a scenario that could

trigger personal biases. As they explain, following Margolis’s theory, the deployment

of this expert judgment takes place at a not entirely conscious level, more as a kind

of perception than reasoning. In the process, legal decision makers’ ability to

recognize salient legal patterns immunizes them from “the distorting influence that

identity protective cognition exerts” by fixing “their attention on pertinent elements

of case ‘situation types.’” 111 The focus on perceiving patterns and prototypes rather

than analyzing substantive rules at first seems to avoid the need for doctrinal

determinacy. But on reflection, it is unclear how legal professionals could identify

legally relevant aspects of a situation without the shared knowledge that the

available doctrine provides determinate rules that distinguish those aspects of the

111 Kahan et al. supra note at 16.


46

situation at hand. At least the “professional judgment” account offers no

explanation for how shared legal “prototypes” could move legal decision makers

away from their subjective views other than by substantive direction of legally

correct results. But once again, this conflicts with the consensus among legal

professionals that in many if not most cases that are adjudicated, the available

doctrinal authorities do not make one outcome objectively more correct.

Moreover, it is possible to use the available doctrinal authority the Kahan

group provided to plausibly ground alternative outcomes in at least one of their

scenarios. Indeed, the actual adjudication of a case with facts very similar to one of

the Kahan group’s hypotheticals demonstrates this result in practice. United States

v. Millis involved the application of a federal statute forbidding littering on federal

land.112 The defendant was an aid worker who left plastic bottles in the Arizona

desert for use by undocumented migrants.113 He was convicted by a district judge,

but a divided Ninth Circuit panel reversed his conviction. The two Democratic

appointees on the panel found that the statutory term “garbage” was “sufficiently

ambiguous” in context to trigger the rule of lenity that requires narrow construction

of criminal statutes.114 They therefore held that the defendant’s conduct could not

ground a conviction under the statute. The Republican appointee on the panel

112 621 F.3d 914 (9th Cir. 2010).

113 Id. at 915.

114 Id. at 918. Judge Sidney R. Thomas (who authored the opinion) was appointed to the Ninth Circuit by President Bill Clinton in 1996; Judge M. Margaret McKeown was appointed to the Ninth Circuit by Clinton in 1998.


47

dissented.115 In his view, “the rule of lenity does not apply here because leaving

plastic bottles in a wildlife refuge is littering under any ordinary common meaning

of the word.”116 He therefore would have upheld the conviction. Thus two federal

judges – the trial judge and the dissenting appellate judge interpreted the relevant

authority to produce a conviction while two other judges, the appellate majority,

read the doctrine to require acquittal. Of course, one might conclude that one of

these pairs is an outlier, made up of unusually ideologically motivated legal decision

makers who, consciously or not, continue to be guided by ideological or partisan

preferences. Nevertheless, the doctrinally crafted majority and dissenting Ninth

Circuit opinions show that it is entirely possible to justify alternative results in

respectable doctrinal terms.

Going back to the example of chess players’ knowledge of board moves may

help explain why Margolis’s theory of pattern recognition cannot entirely explain

the legal consensus Kahan et al. observed. Margolis observes that experienced chess

players recognize board configurations as advantageous or problematic to their

game.117 By analogy, Kahan et al. posit that, like chess players, judges come to

recognize features of factual scenarios that confer distinctive legal advantages or

difficulties. But there is a crucial difference. Chess players can identify objectively

advantageous or problematic board positions because they all agree about how the

115 Judge Jay Bybee was appointed to the Ninth Circuit by George W. Bush in 2003.

116 Id. at 919 (Bybee, J., dissenting).

117 MARGOLIS, PATTERNS 104-05.


48

game pieces can be moved, and on the limited outcomes that count as winning the

game. Players have discretion to choose the overall strategies and select the moves

they believe will win. But they cannot change the basic ways the pieces move – a

bishop always moves diagonally, and checkmate is an identifiable board pattern that

cannot be contested. Unlike chess players, however, judges can use doctrines in

unorthodox and creative ways in order to produce a desired result that might not be

predictable, but that, once produced, will be recognized by all as legally valid and

well crafted. Faced with the legal cases Kahan et al. designed, judges and lawyers

might well disagree about the best application of available legal doctrine, and be

able to use that doctrine to ground opposing results, as did the Ninth Circuit

judges.118

The conflict with doctrinal indeterminacy should not obscure the importance

of the Kahan group’s experimental results, which offer remarkable evidence that

there is something judges do when undertaking formal legal reasoning that tends to

make them shed the subjective biases that inform their decision making in informal

contexts. If anything, the move away from those biases is even more impressive if it

is not the result of a confrontation with clear authority that points in only one

direction. What could account for judges’ application of doctrinal frameworks to

produce decisions out of line with their ordinary individual ideological outlooks

when they could credibly deploy the same doctrines to reach outcomes consistent

118 Indeed in the real life case that appears to be the prototype of one version of the

hypothetical littering case in the experiment, the real panel of three judges produced a split decision. United States v. Millis, 621 F.3d 914 (2010).


49

with their subjective preferences? Where doctrines do not identify uniquely correct,

or better, outcomes, we need some other account of the mechanism through which

working with doctrinal legal authority induces judges to give up their motivated

thinking.

One possibility would seem to be the dual-‐process theory advanced by

Guthrie et al. But as Dan Kahan has pointed out, the “system 2” slow thinking to

which Guthrie et al attribute the defeat of hindsight bias in their experiment has

elsewhere been shown repeatedly to increase not decrease identity-‐protective

motivated thinking. So where doctrine is indeterminate, there is still a theoretical

gap in understanding whether and how working with legal authority might lead

judges to shift away from their ordinary subjective political and cultural

perspectives.

III. Character Work: Doctrinal Reasoning for Self Disruption

What is the talent of the actor? It is the art of counterfeiting himself, or putting on another character than his own, of appearing different than he is, of becoming passionate in cold blood, of saying what he does not think as naturally as if he really did think it, and finally, of forgetting his own place by dint of taking another’s.

Jean-Jacques Rousseau119

I want to suggest a model that harks back to the legal art theories of judicial

decision making that I discussed in Section I. In particular, I will consider doctrinal

reasoning as a kind of performance practice, analogous to techniques actors use to change

119 Jean-Jacques Rousseau, Letter to d’Alembert, THE COLLECTED WRITINGS OF ROUSSEAU, VOL. 10 at 309 (ed. & trans. Allan Bloom, Charles Butterworth & Christopher Kelly) (2004).


50

their ordinary responses to stimuli, in order to play characters. Performers know that by

making formal choices to adopt different vocal and physical patterns they can temporarily

disrupt their habitual ways of engaging with the world around them, and so develop the

ability to behave, and feel, different from their ordinary selves.120 As the performance

artist Martha Wilson puts it, “you have to consciously put yourself in that body position

in order to get into the mental state you want to be in.”121 I propose that the practice of

doctrinal reasoning might have a similarly disruptive effect in judges’ ordinary outlook.

Because doctrinal reasoning requires legal decision makers to adopt distinctive formal

ways of reading, thinking, talking and writing that are unlike the decision makers’

habitual modes of these activities, doctrinal reasoning might function something like the

estranging physical choices performers make in order to play characters.

At first, judges’ doctrinal reasoning might not seem to involve anything like

the embodied choices actors use to build characters. On reflection, however,

doctrinal reasoning does entail engaging with unusual formal verbal patterns that

would seem to require something extraordinary on a sensory, perceptual,

behavioral level. Moreover, recent psychological studies have produced evidence

that a paradigmatic embodied activity of legal decision making today – reading –

elicits significant psychological changes attributed to differential formal aspects of

120 See Jessie Allen, Blind Faith and Reasonable Doubts: Investigating Belief in the Rule

of Law,” 24 SEATTLE L. REV. 691, 706 (2001). See also, Jessie Allen, Theory of Adjudication: Law as Magic, 41 SUFFOLK U. L. REV. 773, 821-25 (2008).

121 Angeli Sion, Wearing Personalities, Expanding Emotional Territories – In Conversation with Martha Wilson, INCIDENT MAGAZINE, APRIL 2016.


51

text.122 If reading produces cognitive and affective changes attributable to different

literary forms, that suggests that reading, writing and thinking in the distinctive

legal doctrinal forms may have equally significant psychological effects, unrelated to

doctrine’s ability to determine substantive legal outcomes.

I recognize that doctrinal analysis is generally conceived as antithetical to the

sort of work required of actors. To the extent an actor’s outlook changes in the

process of characterization, it moves toward another particular subjective point of

view. In contrast, legal reasoning is classically regarded as moving away from

subjectivity toward an objective mode of thinking that proceeds from general rules

and abstractions and eschews flesh and blood perspectives. As one of my colleagues

commented, “one is innately personalized and the other assumes the absence of

actual people.”123 This sort of rule based objectivity, however, is exactly what a

wealth of critical and empirical analysis has taught us is not in fact achievable by

human decision makers – in law or anywhere else.

With the model of a performer in mind, we could see judges’ turn away from their

usual outlooks as meaningful, even if doctrine ultimately fails to direct decision makers’

substantive conclusions. To see this, however, we have to shift our attention away from

the substantive results of doctrinal analysis and focus instead on doctrinal reasoning as a

122 See, e.g., David Comer Kidd & Emanuele Castano, Reading Literary Fiction Improves Theory

of Mind, 342 SCIENCE 377, 377 (2013) (describing a series of experiments to see whether reading different types of material correlated with the ability to perform certain cognitive tasks). See also P. Matthijs Bal & Martijn Veltkamp, How Does Fiction Reading Influence Empathy? An Experimental Investigation on the Role of Emotional Transportation, 8 Pub. Libr. Sci. ONE 1 (2013) (finding that reading fiction can affect the reader’s empathy levels).

123 Haider Hamoudi, personal communication with the author.


52

formal practice. In this view, the prescribed legal-professional techniques of interacting

with authoritative sources in their distinctive forms, using approved methods, such as

analogizing and distinguishing precedents and reading statutory and constitutional text in

prescribed ways, might help judges’ step outside of their ordinary viewpoints. Formal

doctrinal reasoning forces its practitioners to go through certain prescribed perceptual and

behavioral steps that are different from their informal non-legal decision making process.

Likewise performers are required to adopt certain particular behavioral changes in order

to play a character, or for that matter, to “perform” at all. Indeed, all performance

requires something like what Frederick Schauer describes as “a route toward reaching a

decision other than,” the way performers or legal decision makers would choose to act “if

left to our own devices.”124

A. Performance as Estrangement from the Ordinary Self

The doctrinal disruption of legal reasoners’ usual subjective outlook reminds me

of the techniques performers use to elicit psychological shifts that facilitate portrayals of

characters. Setting aside one’s usual way of going about things is central to all

performance. As the performance theorist and director Richard Schechner points out,

“Performance behavior isn’t free and easy.”125 Thus, the performed role never “wholly

124 Schauer at 7. Schauer has long stressed the peculiarity of the aspect of legal reasoning

that seems designed to lead decision makers “away for their own best judgment,”124 to interfere with conclusions judges would ordinarily adopt—even, perhaps especially, conclusions they are very sure are right.124 The very oddity of this experience, Schauer argues, can help constitute a separate institutional domain of legal reasoning.

125 RICHARD SCHECHNER, BETWEEN THEATER AND ANTHROPOLOGY 118 (1985).


53

‘belongs to’ the performer.”126 For actors playing characters onstage, this distancing or

reshaping of the ordinary self is central. As the acting teacher Michael Chekhov puts it,

“The desire and the ability to transform oneself are the very heart of the actor’s

nature.”127

In theory, an actor might survey all the scenes in which his character appears and

plot out each moment of his performance, consciously selecting every move, gesture, and

inflection to build a continuous portrayal of a character different from the actor’s

ordinary self. This deliberate approach would be unlikely to succeed, however, because

it is practically impossible to calculate in advance how a fully imagined character will act

and react at every second of a lengthy performance. Instead, actors need to find a way to

change their own characteristic behavior that will allow them to respond to events and

interactions in ways that are different from their ordinary behavior.

One technique for accomplishing this change is to adopt a few deliberate, often

very subtle, physical and vocal changes. For instance, an actor might take on an accent,

or change the way she holds her head. Sometimes wearing unfamiliar clothes or shoes

helps. It turns out that such shifts have ripple effects that alter the way one perceives and

responds to outside stimuli, and so can change a performer’s ordinary ways of acting and

reacting. For that matter, it is not only actors who experience the psychologically

transformative effects of formal external choices. As one guide to acting notes, “You feel

-- and act – like a different person” in different types of clothing, and when “children

126 Id.

127 MICHAEL CHEKHOV, ON THE TECHNIQUE OF ACTING 99 (ED. MEL GORDON, 1991)


54

dress up in their parents’ clothes,” they transform.128 An actor learns to nurture and

develop these reactions. The goal is to produce a combination of conscious and

unconscious responses to the original formal change, to “allow the intuitive feelings

which these things inspire within him to take hold and to fashion, almost without his will,

mental and physical adjustments.”129 Those secondary psychophysical effects constitute a

shift away from the performer’s habitual mode of acting and reacting in the world. Thus a

change in subjective identification develops in rehearsal and performance out of the

deliberate formal changes to vocal and physical behavior.

B. Doctrinal Reasoning as Performed Character Change

An actor’s conscious decision to adopt a different stance, gesture, or vocal style

resonates with a judge’s submission to the formal practice of doctrinal reasoning. Just as

the actor makes a choice to change some outward form of moving or speaking in order to

trigger a more general shift away from her characteristic mode of behavior, a legal

reasoner consciously adopts a particular formal mode of reading, writing and thinking in

order to shift away from her ordinary subjective perspective and decision making

behavior. To be sure, there are reasons to be skeptical about the similarity of actors’

character development and doctrinal reasoning. On the surface, doctrinal reasoning

seems to have little in common with theatrical performance. It is relatively easy to see

the theatrical aspect of the public work judges do in court, but much of judges’ doctrinal

reasoning takes place alone and unobserved. Moreover, actors’ techniques involve active

128 JEROME ROCKWOOD, THE CRAFTSMEN OF DIONYSUS: AN APPROACH TO ACTING 92 (2D ED. APPLAUSE 1992).

129 Id.


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physical choices that seem different from the mostly sedentary activity involved in

reading, writing and thinking along doctrinal lines. Nevertheless, performance and

doctrinal reasoning have some structural commonalities.

1. Legal Decision Making as Performance

One way to understand the performance nature of doctrinal reasoning is

through the concept of restored behavior. The term, “restored behavior,” was

coined by the director and theorist Richard Schechner to describe the common

basis of all performance as a sequence of words, gestures and/or actions that has

been identified and fixed in some objective form so that it can be “rearranged and

reconstructed” in contexts apart from its origin.130 Restored behavior would

include the traditional elements of a wedding ceremony (the bride coming down

the aisle on her father’s arm, the exchange of rings, the obligatory questions “do

you, …., take this . . .”), or the sequence of actions in an initiation ritual whose

origins may be attributed to spiritual ancestors from a timeless prehistory, as well

as the scripted lines an actor says that have been spoken by other actors playing

the same part in other productions. Restored behavior of one kind or another is

central to all performance; indeed “restored behavior is the main characteristic of

performance.”131

Restored behavior has the quality of doing something that has been done,

seen, practiced, spoken, written or thought before, and that quality is part of what

131 Id. at 35.


56

separates performance from everyday life: “Performance means: never for the

first time. It means: for the second to the nth time. Performance is ‘twice

behaved behavior’.132 Note, however, that a sequence of restored behavior need

not be exactly the same each time it is repeated. A comedian or musician

improvising or a couple who writes their own marriage vows are still engaging in

restored behavior. They are drawing from a store of conventionally recognized

forms, putting together variations on known sequences of actions and verbal

patterns -- telling jokes, playing riffs, taking vows – that constitute a performance

separated from ordinary life by its formal qualities. 133

The ability to identify and reproduce restored behavior is crucial for the

performer’s estrangement from her usual subjective self. “Restored behavior is ‘out

there’, ‘distant from me’,” says Schechner. The performer becomes the one who acts like,

talks like, thinks like the words and behavior she adopts. “[R]estored behavior is ‘me

behaving as if I am someone else’ or ‘as if I am ‘beside myself’.”134

Without a doubt, doctrinal reasoning involves restored behavior on several

levels. Legal reasoning and legal outcomes gain authority by repetition and

variation of known previous decisions. First, judicial decisions classically follow

132 Id. at 36.

133 RICHARD SCHECHNER, BETWEEN THEATER AND ANTHROPOLOGY 35-37 (1985)

134 Id. at 37. One might object that this just shows that performers who act out pre-existing scripts or ritual sequences are doing something that is, in a very broad conceptual sense, like following preexisting rules. But, on reflection, the rule following construct simply returns us to where we started, facing the indeterminacy of legal rules, and, indeed, of all rules at the point that we stop to inquire whether we understand what the rule directs. Wittgenstein, Empirical Doctrine.


57

a recognizable form – some version of the law student’s IRAC. Moreover, judges

draw on preexisting language in statutes, constitutional provisions, and previous

court rulings in constructing new decisions. Judicial opinions develop persuasive

power and conventional authority through the deployment of these language strips

that have been used before in the context of judicial decision making. On a more

institutional level, the retrospective focus and formal limits on the use of legal

authority are central to the production of decisions that have the authority of law.

Only when a judge speaks or writes in conventionally recognized contexts in the

formal context of a judicial decision does she produce legally authoritative

decisions. Doctrinal forms are part of that context. Without such “twice behaved

behavior” a judge’s decision would lack that authority – she would be ‘just

talking’ or writing down her thoughts, not generating legal outcomes.

2. Doctrinal Reasoning as an Embodied Practice

Actors’ character techniques entail physical and vocal changes, and it is far from

obvious that doctrinal reasoning involves any similarly embodied behavior. Indeed, we

tend to think of legal reasoning as the opposite of physical action -- reading, writing and

thinking instead of doing. We might wonder, then, whether the ‘mental’ activity of

reasoning could generate the type of psychological results produced by performers’

embodied actions.135

135 Of course, reading certain doctrinal content might change the reader’s ideas about

issues related to that content. But that is not the effect I am pressing here. Indeed that kind of content-based effect is precisely the kind of substantive effect that I deny doctrine has in the context of our legal system for all the structural reasons I elaborate in Part I of this article.


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Interestingly, in mainstream legal theory, the work of doctrine and the limits of

doctrinal reasoning are often described through metaphors of physical space and physical

restraint. The trope of “binding” precedent is perhaps the most common expression of

the effect of legal doctrine on legal decision makers. Descriptions of doctrine

“narrowing” available options and of judges legislating “in the gaps” left by ambiguous

statutes are further examples. The idea of legal reasoning as a change and a limit in the

way an embodied reasoner sees things, is expressed metaphorically in the familiar icon of

blind justice. Brian Tamanaha offers a variation of the optical trope, assimilating the

common legal-cultural perspective generated by legal education and immersion in a

professional culture to a set of prescription lenses. Tamanaha’s metaphorical glasses

have varied tints and magnifications that correspond to the different cognitive frames

belonging to individual judges, but “the lenses worn by all American judges share

significant commonalities: that obtained from shared indoctrination into the legal

tradition and shared indoctrination into the broader community.” 136 Like justice’s

blindfold, the glasses are a metaphor, not a claim about the effects of the visual-

perceptual aspects of legal decision making. Nevertheless the image of legal techniques

and culture as a common form of optical prescription lenses put on by judges is

suggestive of the literal effect I am considering here.

These metaphors may signal a shared intuition that the material, embodied aspect

of doctrinal reasoning is significant for legal judgment. Beyond metaphorical

comparisons, I want to think about the actual spatio-temporal practice of doctrinal

136 TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE at 188.


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reasoning and consider whether that process might have psychophysical effects on its

practitioners. Like the performance techniques Schechner and others describe, doctrinal

reasoning is not “free and easy.” It requires intense efforts of focus, at an optical as well

as cognitive level. Reading, writing and even thinking in doctrinal forms requires

rigorous physical activity of some sort, even if the moves are subtle and unconsciously

regulated. Moreover, the physical particulars of reading and writing are understood to

elicit significant cognitive effects that vary with formal differences. As Walter Ong puts

it, “All writing systems do not have the same psychic or even neuro-physiological

structure or effects.”137 The formal structures of doctrinal analysis surely entail a

particularly taxing perceptual choreography. How many law students have found

themselves needing to adjust their eyeglasses prescription at the end of the first year?

I am reminded of the vision therapy exercises my daughter used to have to do

after we discovered that left to her own devices she saw all printed text doubled on the

page. These exercises involve looking at a set of marks on a surface and visually pulling

them together or apart using the muscles in your eyes. If you have ever tried these

extremely subtle but strenuous exercises, you will not doubt that reading is a physical

practice, and that reading and writing the dense unusual patterns of legal texts might

entail a physical adjustment that could lead to perceptual, cognitive and behavioral

effects.

137 Walter J. Ong, Writing Is a Technology that Restructures Thought, in THE WRITTEN

WORD: LITERACY IN TRANSLATION, GREG BAUMANN ED. 34 (1986).


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I am proposing that the exacting formal process of doctrinal analysis may have a

cognitive and/or perceptual effect that could change the way judges understand and

therefore resolve the situations they adjudicate, not because the rules objectively require a

resolution contrary to their usual preference, but because something about doctrinal

practice disrupts the subjective perspectives judges would ordinarily employ. The

cognitive, perceptual, physical aspects of the strangely formal practice of doctrinal

reasoning might act on judges in ways that alter their subjective outlooks, just as the

estranging physical choices actors make help them to disengage from their habitual

modes of behavior to perform characters that are both “not me and not, not me.”138 In

effect, I suggest that engagement with formal legal doctrine in conventionally

regimented styles is the different pair of shoes the legal reasoner puts on to change

the way she approaches the world, and, arguably to shift to a different legal

character with a different mode of decision making. But that is, again, a

metaphorical comparison. Is there any evidence that the actual activities that

doctrinal reasoners engage in could trigger the sort of changes in subjective outlook

that actors experience with physical, vocal and costume changes?

C. Reading and “Self-Change”

One important property has come to the fore: literature can facilitate self-change.

Maja Djikic & Keith Oatley139

138 Schechner.

139 Maja Djikic & Keith Oatley, The Art in Fiction: From Indirect Communication to Changes of the Self, 8 PSYCHOL. AESTHETICS, CREATIVITY & ARTS 498, 498 (2014)


61

A recent series of experiments on the psychological effects of reading different

forms of literature supports the idea that doctrinal practice might alter a judge’s

characteristic outlook. Much of this research springs from attempts to prove that reading

literature has a measurable value. There is a particular focus on the idea that reading

literary fiction increases readers’ ability to understand and empathize with others.140I

want to look at this psychological research from a different, wider angle. What interests

me is the evidence that reading different forms of text can induce changes in the way a

person views the world, not because of substantive information the text conveys, but

through the reader’s interaction with the textual form.

Summarizing the experimental results they surveyed, Maya Djikic and Keith

Oatley suggest that literary fiction’s “style,” and “figurative expressions” can “involve

the reader” in the narrative, in a way that “can temporarily destabilize the personality

system.”141 Here is a link between the sorts of obviously embodied behaviors actors use

to develop a character and judges’ doctrinal methods. If reading different forms of fiction

and non-fiction texts elicited predictable psychological changes in readers, it is possible

imagine that reading and writing the peculiar forms of doctrinal legal texts could have

outlook-altering effects on legal decision makers.

In the reader studies, we have evidence that the most characteristic activity of

modern doctrinal reasoning, reading and writing distinctive forms of text, can have

140 See Maja Djikic & Keith Oatley, The Art in Fiction: From Indirect Communication to Changes of the Self, 8 PSYCHOL. AESTHETICS, CREATIVITY & ARTS 498 (2014) (surveying recent studies and proposing three psychological aspects of literature that make “self change” possible).

141 Id. at 500.


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disruptive character effects – not because of legal texts’ substantive content, but because

of their formal properties. As Djikic and Oatley note, “A striking feature” of the

phenomenon dubbed “self-change through literature” is that “the effects are not direct, as

occurs with persuasion.”142 It is rather the form, the “art,” of the text that elicits

psychological changes in readers.

In one set of experiments, subjects read short passages from one of three different

literary forms, literary fiction, popular fiction, or non-fiction.143 Afterwards, readers of

literary fiction scored better on “theory of mind” tests – which measure ability to

understand what others are thinking and feeling. The researchers, David Kidd and

Emanuele Castano, point out that “existing explanations focused on the content of fiction

cannot account for these results.”144 Their experimental subjects read a few paragraphs

from different works of literary fiction that varied widely in subject matter, so it was

“unlikely that people learned much more about others by reading any of the short

texts.”145 Participants who scored higher on theory of mind tests after reading literary

fiction than they did before had not read texts explaining how to better understand and

empathize with others. Nor did these texts offer arguments in favor of sensitivity to

142 Djikic & Oatley, supra note at 498.

143 David Comer Kidd & Emanuele Castano, Reading Literary Fiction Improves Theory of Mind, 342 SCIENCE 377 (2013)

144 Id.

145 Id.


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others. Instead, the researchers theorize that the effects they observed are due to the way

literary fiction engages its readers in a kind of “writerly role.”146

Readers must use formal textual cues to “form representations of characters’

subjective states.”147 Kidd and Castano hypothesize that doing this kind of work

increased readers’ “capacity to identify and understand others’ subjective states.”148 They

conclude that their subjects’ better scores on theory of mind tests after reading literary

fiction resulted not from exposure to any substantive content of the literature, but rather

from readers’ engagement with the forms these texts employ, their “systematic use of

phonological, grammatical, and semantic stylistic devices,” which enlisted readers in the

project of creatively developing fictional characters.149

We would not expect, of course, that the type of psychological effects elicited by

legal doctrine would be the same as the effects of reading literary fiction. Indeed, what

the experiments with readers appear to demonstrate is that different genres of texts have

different effects exactly because of their formal differences. In a pair of experiments, Bal

and Veltkamp found that readers “transported” by different types of texts experienced

very different psychological effects.150 Bal and Veltkamp define “transportation” as “a

146 Id. at

147 Id. at

148 Id.

149 Id.

150 P. Matthijs Bal & Marijn Veltkamp, How Does Fiction Reading Influence Empathy? An Experimental Investigation on the Role of Emotional Transportation, 8 PLOS ONE, Issue 1 (2013).


64

convergent process, where all mental systems and capacities become focused on events

occurring in the narrative.”151 As they describe it, transportation is akin to what may be

colloquially described as getting lost in a book: “People lose track of time and fail to

observe events going on around them; a loss of self-awareness may take place.”152 With

this experience in mind, they set out to test the hypothesis that reading fiction “will

change an individual’s empathy skills only when the reader is emotionally transported in

a story.”153 Their results supported their hypothesis: being emotionally transported by

fiction correlated with increased empathy skills. They also produced a surprising

unlooked for result: transportation by non-fiction correlated with the opposite effect.

While highly transported fiction readers were more likely to report greater empathy,

empathic skills tended to decrease in readers of newspaper articles who were transported

by those texts. 154

To summarize, what these investigations show, then, is that reading even small

amounts of text with distinctive forms (e.g., a single short story or a few news articles)

correlates with observable changes in readers’ outlooks, and that this type of “self

change” through reading is apparently not attributable to substantive information 151 Id. at 3.

152 Id. at 3

153 Id. at 1.

154 As Djikic & Oatley point out in their survey of this research, most studies test only fiction and nonfiction prose, but many other forms of writing could be tested. Functional MRI studies found that reading poetry (Keats) activated brain areas associated with introspection and memory, suggesting that significant cognitive effects are not necessarily tied to narrative form but rather more generally to formal aspects texts like rhythm and rhyme. Djikic & Oatley supra note at 500. Indeed, according to the MRI study’s authors, the activation of these areas is also triggered by music. Id. at 502.


65

conveyed by the text. The effects observed appear to be related to the formal aspects of

text and to readers’ different subjective experiences in engaging with the text.155 Simply

put, engaging in different ways with different literary forms correlates with predictable

psychological changes in readers that are not ascribable to what we usually think of as

learning from the message conveyed by a text’s content, or being persuaded by the

information a text provides. Instead, engaging with a text’s formal properties apparently

precipitates shifts in readers’ psychology-- at least temporarily. The reader studies

suggest, then, that a paradigmatic activity of legal decision making – reading particular

distinctive forms of text -- can produce the sorts of temporary changes in personality that

performers deliberately elicit through other sorts of formal physical choices.156

D. The Art of Doctrinal Disruption

Given the distinctive formalities of doctrinal text and thought, it is possible

that judges may experience temporary distancing from their usual subjective

outlooks through doctrinal reasoning. Conceivably, the embodied practices of

reading, thinking, talking and writing in characteristic legal-‐doctrinal forms could

destabilize practitioners’ ordinary subjective outlooks in ways similar to the effects

observed in readers of literature and character actors. This speculative account of

doctrinal reasoning as a self-disruptive practice seems related to two types of theories of

doctrinal reasoning described in Part I -- the fidelity and legal art approaches. It might 155 Another study found a significant increase in “cognitive empathy” only for one subgroup of fiction readers – those who scored low on a psychological test of “openness” prior to reading. Maja Djikic, Keith Oatley & Mihnea C. Moldoveanu, Reading Other Minds: Effects of Literature on Empathy, 3 SCI. STUDY OF LIT. 28, 41-42 (2013).

156 Djikic and Oatley, supra note at 500.


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also contribute to explaining the results observed in the Kahan and Guthrie experiments

when judges were asked to make formal legal rulings as opposed to deciding issues

informally.

In common with the fidelity approach, the disruptive account focuses on the

attitudes and subjective experience of legal practitioners in the course of doctrinal

reasoning. The difference is that the fidelity account, as it has been articulated to date,

makes the initial attitude with which a decision maker approaches doctrine definitive of

her doctrinal practice. The disruptive account focuses instead on the effects that ongoing

practice has on the reasoner. And where the fidelity approach conceives the defining

attitudinal approach as a conscious choice, the disruptive account conceives the effects of

doctrinal practice as both conscious and unconscious, closer to the realm of perception

than persuasion or deliberate choice.

The disruptive account connects most clearly with the Legal Art approach to

doctrinal reasoning, and could be seen as a further development of that account. Rather

than relying on metaphors, the disruptive account makes concrete comparisons between

the techniques used by judges and performers and relates them to the empirical studies of

readers. At a more conceptual level, a difference lies in the disruptive account’s focus on

immediate and temporary psychological effects. The Legal Art theories and the

professional judgment model discussed above posit a kind of accumulated intuitive

knowledge or skill, from the repeated practice of a technique, whether drawing, sculpting,

chess playing or doctrinal reasoning. The judge’s “situation sense” is a kind of

intuitively accessed knowledge that develops through the practice of her craft, in the way


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that a sculptor’s ability to work with wood grain or painter’s ability ‘to see’ develops

from training and practice. But in the disruptive account, the idea is that the practice

produces immediate, transformative – but perhaps temporary – psychological effects, as

opposed to some kind of intuitive knowledge.

The disruptive account also connects with the explanations empirical legal

researchers advance to explain experimental results. Like Guthrie et al’s view that

working with a complex set of rules somehow frees judges from hindsight bias, the

disruptive account focuses on interaction with the form of doctrine, rather than

absorbtion of content. Like the Kahan group’s theory of professional judgment, the

disruptive account understands doctrinal reasoning’s effects as not entirely

conscious or deliberately chosen by the practitioner. And both accounts suggest

that the effects of doctrinal reasoning may be experienced more as perceptual shifts

than as conscious deliberation. Still, there are important differences. Crucially, on

my account, the changes to a reasoner’s outlook are not the secondary result of

acquired substantive knowledge or the ability to recognize objectively relevant legal

structures. Instead, I conceive the perceptual shift elicited by doctrinal practice as a

temporary effect produced by actual engagement in the formal practice of doctrinal

reasoning, comparable to actors’ subject-‐disrupting methods for playing characters.

As I understand it, the Kahan group’s theory, following Margolis, imagines

professional judgment as a form of acquired objective knowledge. They emphasize

that the gateway to and experience of this knowledge is perceptual and intuitive, a

matter of “pattern recognition” that is not entirely conscious. But the prototypical


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patterns that are recognized by legal professionals are still understood to

correspond to features of the situations being adjudicated that are objectively

recognizable as more or less legally relevant. Whether or not something is relevant

can only be determined by applicable legal norms. That means that when doctrine

is indeterminate (assuming that doctrine is understood here to incorporate all the

applicable sources of legal guidance) those prototypes must come from some other

source.

In contrast, the disruptive account proposes that going through the motions

of doctrinal legal analysis could trigger psychological effects that temporarily

disrupt judges’ characteristic biases, whether or not doctrine is substantively

determinate. The proposed mechanism is similar to the disruption observed in the

readers’ studies or deliberately engineered by the physical choices actors make

when playing roles. It might be that, like experienced actors, experienced legal

professionals have greater access to these effects through practice. But the basis of

that capacity would not involve accumulated objective knowledge, conscious or

unconscious.

In the disruptive account of legal decision making, it is not necessary to

believe that relevant legal rules dictate legally correct outcomes to produce results

that run contrary to judges’ ordinary political convictions. Rather than leading

decision makers to substantive outcomes, doctrinal reasoning may work at a

cognitive level to disengage decision makers’ ordinary outlooks. The resistance to

identity protective motivated thinking the Kahan group observed in judges and


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lawyers could be partly explained, then, by doctrinal reasoning’s tendency to

disengage its practitioners from their ordinary subjective identities through their

engagement with doctrinal forms, not (or not only) from their acquired ability to

recognize objectively relevant legal patterns.

C. Testing the Disruptive Account

So far the hypothesis that judges use of formal doctrinal methods might disrupt

their ordinary subjective biases is just that, an untested hypothesis. Given how little

attention has been paid to the possibility that doctrinal reasoning could have effects other

than directing substantive outcomes, imagining it as a mechanism for psychological

effects seems worthwhile in itself. Still, an obvious next step would seem to be

empirically testing the disruptive theory. This seems possible using experimental

methods like those of Guthrie and Kahan et al. Participants, ideally judges, would be

asked to resolve hypothetical conflicts using more or less doctrinal methods. The

experimenters would look to see whether working with doctrine affected the decisional

outcomes’ correlation with the participants’ previously tested subjective biases.

Of course it is important to acknowledge that even if the disruptive account

turns out to be empirically supportable, it could not account for the ultimate

outcomes judges choose. In this way it is a less ambitious theory than the other

legal art theories or the professional judgment approach urged by the Kahan group.

The disruptive account proposes that doctrinal reasoning might move legal decision

makers away from their usual subjective outlooks, but it does not attempt to explain

where they end up after that initial disruption. So even if experiments support the


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notion that formal doctrinal reasoning can disrupt decision makers’ usual subjective

outlooks, that will not explain how judges go about – or should go about – selecting

case outcomes. The disruptive account could offer a way that even indeterminate

doctrines could help decision makers perform the crucial legal requirement of

turning away from their own personal judgment. But it could not explain how

judges decide outcomes. As a colleague put it, in the disruptive theory “doctrinal

reasoning clears the stage, so to speak, but it does not tell us what belongs on the

stage.”157 Note that this limitation seems to be a necessary result of the account’s

consistency with doctrinal indeterminacy. The whole idea behind the disruptive

approach is to imagine a way in which doctrine might contribute to legal reasoning

even if it does not provide substantive outcomes.

D. So What?

Why should this matter? What difference does it make if doctrine works to alter

decision makers’ perspectives through the psychological effects of formal doctrinal

practice rather than by dictating substantive results or producing stored knowledge of

objectively pertinent legal patterns? Two reasons. First, because the formal-practice

account of doctrinal reasoning can coexist with our realistic understanding of doctrine’s

indeterminacy. It is widely agreed that legal authority is indeterminate in at least some

important legal controversies. A theory of effective but non-substantive doctrinal

practice, then, could reconcile judges’ continued resort to doctrinal reasoning with our

157 Peter Gerhart, email communication.


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recognition that doctrines do not decide cases, and can do so more plausibly than the

integrationist, fidelity, and legal art explanations advanced to date.

The other reason it is important to know how much the work of legal doctrine

depends on actual doctrinal practice, is that doctrinal practice is disappearing.158 The

percentage of cases brought to federal courts that actually proceed through full-fledged

trial and appellate proceedings has declined to about 1 in 100 overall.159 In state court as

well as federal court, the percentage of cases tried has declined precipitously. Most civil

cases settle out of court, and most criminal charges are resolved through plea bargains,

bypassing judicial analysis of most or all of the legal questions at stake. There has been a

commensurate increase in the use of “alternative dispute resolution.” In mediation, a

mediator helps the parties resolve the conflict, sometimes without engaging in any formal

doctrinal reasoning. Even cases involving politically charged issues, like race and gender

discrimination, are more likely to go to arbitration and mediation and to be resolved with

much less formal legal analysis. In the case of binding arbitration, at least in commercial

cases, there is generally still some doctrinal practice. The arbitrator may produce a

written opinion that deals with precedents and interprets relevant legal authorities. But

the formality is certainly reduced.

Worries that such non-doctrinal forms of legal decision making will erode legal

principles are sometimes explained away with the suggestion that informal resolutions

158 Marc Galanter, A World Without Trials?, 2006 J. Disp. Resol. 7 (2006).

159 Galanter & Frozena, Civil Trials in the Federal Courts.


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take place “in the shadow of the law.”160 The idea is that the parties, or their legal

representatives or facilitators are guided by predictions of how the available doctrinal

rules would substantively determine the outcome of the dispute, were it to go through a

formal doctrinal analysis. That approach assumes that doctrine’s contribution to legal

decision making is primarily substantive, providing a repository of knowledge about legal

norms that would still inform informal decision making. But what if what doctrine

contributes is something to do with the actual practice of doctrinal reasoning. To the

extent that doctrine works through psychological effects generated by the practice of

formal doctrinal reasoning, foregoing that practice means foregoing legality.

Conclusion

Usually, we understand the work of doctrine and its ability to lead us away from

our own best judgment as a matter of substantive direction. In the substantive model, we

understand the specialness of legal reasoning as a move toward objectivity and

abstraction that brings with it the necessary but secondary abandonment of one’s usual

personal outlook. But there is another way to understand the “special oddness” of the

doctrinal reasoner’s estrangement from her ordinary subjective perspective.161 We can

think of doctrinal analysis, not, or not only, as a move toward abstraction and publicly

available reasons, or the acquisition of a special ability to pick out legally pertinent

aspects of a conflict. In the model of doctrinal practice I am proposing, the work of

doctrine has less to do with acquiring substantive legal knowledge or recognizing special

160 Mnookin & Kornhauser supra note .

161 Schauer, supra note at 7.


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legal patterns and more to do with disrupting a legal decision maker’s ordinary ways of

thinking. This account suggests that engaging in the formal practice of doctrinal

reasoning precipitates a rupture with ordinary subjectivity that is not necessarily

occasioned by acquiring a more objective outlook. In other words, “following the rules”

may not be only, or even mainly, a matter of being directed to preferable outcomes by the

rules’ substance. Instead, the account I am suggesting imagines doctrinal reasoning as a

practice of allowing oneself to be led away from one’s ordinary habits of mind by

engaging with complex formal legal texts in prescribed manners. Rather than following

the rules’ substance to an objectively directed outcome, the disruptive account proposes

that engaging with the rules’ forms may lead decision makers away from their habitual

subjective biases.

doctrine as a disruptive practice

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