Judicial decision making and the “Foxermeasaluppycat”

Last week I attended the “What’s Law Got To Do With It?” conference on judicial decision making, hosted by Indiana School of Law. I encourage you to check out the above hyperlinked website for the conference since it provides many of the papers that were presented. The conference was put together by Charlie Geyh and others at Indiana law  and Charlie also acted as the conference master of ceremonies. In providing some introductory comments for the conference Charlie suggested an aggregated judicial animal to represent the different schools of thought on the nature of judicial decision making. His animal is named the Foxermeasaluppycat.

I imagine some explanation is in order. I will only give a very brief explanation here, Charlie can chime in if he’d like. 

The Fox = the strategic judicial actor who seeks to get his or her preferred outcomes brought to fruition through sophisticated, forward thinking actions.

The Ermine = the judicial actor who seeks to follow the rule of law. The idea here is that in jolly old England a number of politicians wore robes, but only the judges had ermine trimmed robes – suggesting that they were different from other government actors and above politics – they faithfully followed the requirements of law and outcomes reflected their understanding of what the law demands.

The Weasel = the judicial actor whose decision making reflects their underlying world views or attitudes (aka the Attitudinal model). As we know, an ermine is just the fancier type of the lowly weasel. Whether this means that judges see facts and law through the colored lens of their world view (and decide accordingly) or simply seek to implement their policy preferences through their position of power (perhaps “low politics”?) is debatable, but the idea is that outcomes are correlated with judicial ideology.

The Puppy = This judicial actor cares very much about how he or she is perceived and regarded. Like the young dog, they want to know that others think well of them and are concerned with providing decisions that foster good will with the public and other political actors.

The Cat = This judicial actor cares about their specific self interest and personal advancement. This view is rooted in economic theories of judicial behavior and is distinguishable from the Fox. So, for instance, a judge might rule in a certain way so as to facilitate their advancement in the judicial ranks.

And there you have it … the Foxermeasaluppycat. Certainly, not everyone will agree with any given one or combination of these theories of how judges make decisions. Indeed, one of the high points of the conference was the opportunity to hear some esteemed judges thoughtfully respond to academics’ ideas of how judicial decisions are made. While, unfortunately, their remarks are not available on the webpage, I will assure you that they made some very, very good points and were also quite entertaining. In the end I hope that both judges and academics learned something valuable.

Update: I understand that the videotaped conference proceedings may be made available on the conference website in the near future and that the papers and judge remarks will be forthcoming in book form.