Strategic Judicial Decision-making

Pablo T. Spiller and Rafael Gely

in The Oxford Handbook of Law and Politics

Published in print August 2008 | ISBN: 9780199208425
Published online September 2009 | | DOI:

Series: Oxford Handbooks of Political Science

 Strategic Judicial Decision-making

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In his incomparable style, Judge Richard Posner describes what is perhaps the issue of most interest to scholars in the strategic tradition to judicial decision-making: under which conditions do judges behave more like “legislators” or more like “judges?” Posner's description of the role of judges suggests that judges' behavior can be modeled in the same fashion in which we model other rational actors—politicians, activists, managers: driven by well-defined preferences, behaving in a purposive and forward-looking fashion. The strategic approach seeks to sort out the various competing interests faced by judges when making decisions. In essence, the strategic approach explores the role of politics in judicial decision making. This article reviews the strategic approach to judicial decision making in the United States and compares it with the attitudinal approach. It also discusses the so-called internal strategic approach, which focuses on the decision-making process within the U.S. Supreme Court.

Keywords: Supreme Court; judicial decision making; judges; strategic approach; attitudinal approach; internal strategic approach; politics; United States; Richard Posner

Article.  4898 words. 

Subjects: Politics ; Politics and Law

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