Law, Justice and Reason‐Giving

Abstract

Reason‐giving is a hallmark of judicial decision‐making. However, many judicial decisions are not accompanied by detailed reasons—or any reasons at all. Judicial reason‐giving serves various goals, including constraining judges' discretion. The very engagement in writing and the enhanced accountability that comes with the provision of written reasons are expected to foster more deliberative thinking and stricter adherence to legal norms. Several prior studies have investigated the influence of judicial reason‐giving on judges' vulnerability to cognitive and other biases. But none have examined the effect of reason‐giving on the inclination to deviate from formal legal rules in cases where there is a notable tension between the legal rules and the equities of the case in question (“hard cases”). This article reports on four novel, pre‐registered experiments designed to test this important issue. The experiments also explored (1) the extent to which a precedent where the court deviated from the formal rule in a hard case affects the ruling in a subsequent “easy case” (one that lacks such tension)—and how reason‐giving influences this effect, and (2) the extent to which a precedent where the court followed the formal rule in an easy case affects the ruling in a subsequent hard case—and how reason‐giving influences this effect. The article discusses the policy implications of the findings and avenues for future research.