The Legal Process from a Behavioral Perspective

By Stuart S. Nagel | Go to book overview

SECTION III
Background and Attitude Characteristics

CHAPTER 16
Judicial Attitudes and Those of Legislators and Administrators

Since 1960, at least two articles and one book have been published with titles indicating that they deal with the attitudes of some segment of the American judiciary.1 Closer examination, however, reveals that those materials are concerned only with the on-the-bench attitudes of judges (as manifested in judicial decisions). As yet no published survey seems to have been made to ascertain, on the basis of a questionnaire, the degree of liberalism or other broad set of attitudinal characteristics present among members of the American judiciary, especially in comparison with legislators and administrators.2 It is the purpose of this chapter to describe some findings based on such a study, to discuss the causes and effects of the differences found, and to test some proposals for decreasing the role of personal attitudes in judicial decision making.3

____________________
1
Spaeth, "An Approach to the Study of Attitudinal Differences as an Aspect of Judicial Behavior", 5 MIDWEST J. POL. SCI.165-80 ( 1961); Tanenhaus, "Supreme Court Attitudes toward Federal Administrative Agencies", 22 J. POL.502-24 ( 1960); and PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887-1895 ( 1960).
2
"We know courts are, at least in this country a generally conservative social force, and more like a brake than a motor in the social mechanism, but we have no scientific factual comparison of judicial, legislative, and executive organs of government." Quoted from Cohen, "Transcendental Nonsense and the Functional Approach", 35 COLUM. L. REV.845 ( 1935), reprinted in his READINGS IN LEGAL PHILOSOPHY AND JURISPRUDENCE 481 ( 1951).
3
For further details concerning methodological and various other matters involved in this chapter, see in earlier version, Off-the-Bench Judicial Attitudes, which appears in JUDICIAL DECISION-MAKING 481 ( G. SCHUBERT ed. 1963). The earlier version, however, does not contain the judicial-legislative-executive comparisons presented here.

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