Sunday, April 22 , 2018, 7:08 pm | Fair 66º


Brian Burke: About Your Divorce (Column 150) — When LSU Loses, Judges Give Harsher Sentence

Oblique Strategy #44 — Jill can suffer when Jack is disappointed, and they hardly know each other.

Juvenile court judges imposed longer sentences during the week after an unexpected loss by the LSU football team.

Factors that increased the size of this effect included: LSU’s ranking in the top 10 at the time of the loss. High ranking predicted a higher sentence.

The fact that the sentencing judge had an undergraduate degree from LSU. The effect was not greater for graduates of the LSU law school but did not receive an undergraduate degree from LSU.

The ethnicity of the juvenile being sentenced.

These are dramatic findings for those with any involvement in the justice system and for everyone else in the country — and probably for everyone no matter where they live.

Two opposing schools of American jurisprudence are legal formalism and legal realism.

Formalism was originated at the Harvard Law School by Dean Erwin Griswold.

Griswold believed the “scientific” analysis of published appellate opinions could yield a set of judge-made rules that could be synthesized into a coherent body of law that lawyers and judges alike could apply to any given set of facts to reach the same predictable outcome.

His philosophy still underpins legal education and both lawyers and judges think in terms of “rules,” which are created by legislatures in the form of statutes and by judges in the form of published appellate opinions.

It turns out, however, that even when the applicable rules have been identified, the outcome is not as predictable as it should be.

This is the basis for a jurisprudential theory originating at the Yale Law School under the name “Legal Realism.” It is often explained with the question: “What did the judge have for breakfast?”

Our most prolific writer on all aspects of judicial philosophy is Judge Richard Posner who is on the Seventh Circuit of United States Court of Appeals (Chicago).

Posner averages a major book a year (always published by an imprint of the Harvard University Press), plus two or three law review articles and any number of book reviews and casual articles.

When Posner doesn’t like something, he lets the reader know. He loathes legal realism, even though Wikipedia lists him as one of its practicing adherents.

One of the leading Realists was Jerome Frank, another U.S. Court of Appeals judge. Frank, who died in 1957, was almost as prolific, and arguably more erudite, than Posner. Even though Posner was only 18 when Frank died, Frank has been an ongoing target of Posner’s scorn.

Whether living or dead, Frank is a formidable opponent because his criticism of virtually any legal system goes deep.

He claims that, regardless of the clarity of the applicable law, judicial decisions are inherently unpredictable because the judge’s inherent bias affects the selection of evidentiary material that’s used to create the “legal facts” to which the rule of law is applied.

Frank died before any of Daniel Kahneman’s work was published. Kahneman used inductive logic to infer the existence of the abstract notion of “implicit bias” from observation of experimental results.

Without the benefit of empirical data, Frank worked deductively from a variety of sources, such as the Bible, Shakespeare, standard histories and the works of Sigmund Freud.

Frank believed in psychoanalysis and suggested its use to expose deep bias. What frosts Posner is that Frank’s work can be understood to argue that all judges should be psychoanalyzed before taking the bench.

It’s not a stretch to suggest that, as the job title infers, judges tend to be judgmental and opinionated and confident that their view of the external world is “true.”

This is a psychological profile hostile — or at least indifferent — to the idea of spending years and thousands of dollars on the psychoanalytic couch in a quest to discover the origin of the thoughts and feelings the judge has used to create his or her unique version of reality.

In other words, Posner isn’t interested in psychoanalysis and resents the suggestion that it was something he should have done to be a good judge.

Nevertheless, Posner recognizes the existence of implicit bias in judicial decision-making. His objection to legal realism is its connection to psychoanalysis.

In a recent interview, he predicted the digitalization of appellate opinions will enable researchers to collect the facts and decisions made in every case decided by every judge on the bench — and that such collections of data will enable the same researchers to discover implicit biases.

Posner trusts that once the implicit is made explicit, judges will eliminate their biases, one after the other, by act of will. He might be over-optimistic or he might be correct.

No one argues that the Louisiana juvenile court judges deliberately punished the hapless objects of their judicial action to soothe their disappointment over a trivial sporting event.

It’s reasonable to expect that after this disclosure, every judge who has heard about it will be especially careful to make sure that their petty disappointments won’t affect their judicial performance.

Self-correction will be encouraged and promoted by the fact that the statistical analysis that discovered the bias in the first place can be used to detect its persistence.

The LSU Effect is a demonstration that judicial outcome can be influenced by factors both trivial and extrinsic to any individual case, so it’s another good reason to stay away from court.

There is a far more important implication. Any human-to-human encounter can be affected by factors both extrinsic and trivial. This is especially important for someone who is involved in continuing conflict to understand.

The origin of behavior by the “other,” that seems to invite or provoke your hostile response, may have nothing to do with you.

The statistical basis for the LSU Effect is a compelling reason why we should always give serious consideration to the possibility that “it’s not about me” before reacting to another person’s antagonistic act.

There is, at least potentially, a good reason to “not take IT personally,” regardless of what IT might be.

Next column: Oblique Strategy #45 — Procrastination gets a bad rap.

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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