The Influence of Personal Values on Legal Judgments Rachel Cahill-O
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The Influence of Personal Values on Legal Judgments Rachel Cahill-O’Callaghan PhD Thesis Cardiff University 2015 1 DECLARATION This work has not been submitted in substance for any other degree or award at this or any other university or place of learning, nor is being submitted concurrently in candidature for any degree or other award. Signed …Rachel Cahill-O’Callaghan Date 11/5/16 STATEMENT 1 This thesis is being submitted in partial fulfilment of the requirements for the degree of PhD. Signed Rachel Cahill-O’Callaghan Date 11/5/16 STATEMENT 2 This thesis is the result of my own independent work/investigation, except where otherwise stated. Other sources are acknowledged by explicit references. The views expressed are my own. Signed Rachel Cahill-O’Callaghan Date 11/5/16 STATEMENT 3 I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loan, and for the title and summary to be made available to outside organisations. Signed …Rachel Cahill-O’Callaghan Date 11/5/16 STATEMENT 4: PREVIOUSLY APPROVED BAR ON ACCESS I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loans after expiry of a bar on access previously approved by the Academic Standards & Quality Committee. Signed ……Rachel Cahill-O’Callaghan Date 11/5/16 2 SUMMARY The law, as laid down in a code, or in a statute or in a thousand eloquently reasoned opinions, is no more than capable of providing all the answers than a piano is capable of providing music. The piano needs the pianist, and any two pianists, even with the same score, may produce very different music.1 Cases that reach the Supreme Court are ‘hard cases’ where the result is not clearly dictated by statute or precedent. To reach a decision in these cases, a judge must exercise discretion and the non-legal factors that influence discretion have been the subject of extensive debate. Theoretical and empirical studies examining the influences on judicial discretion have focused on demographic characteristics and facets of the judicial personality including political ideology and attitudes. Personal values are related to these factors and have been demonstrated to play a role in decision making. This thesis demonstrates a relationship between personal values and judicial decision making in the Supreme Court. This thesis translates theories and techniques used in psychological research to examine the role of personal values in judicial decision making. A novel method of assessment of value expression in judgments was developed. This method revealed a different pattern of values expressed in the majority and minority judgments of cases that divided the Supreme Court, demonstrating a relationship between values and judicial decisions (value: decision paradigm). This was confirmed by an empirical study of legal academics. Drawing on this novel method, a series of Supreme Court cases were analysed to develop a theory of 1 Lord McCluskey, Law, Justice and Democracy. The Reith Lectures 1986 (Sweet and Maxwell Ltd 1987) 3 discretion, division, uncertainty, and values, suggesting that the influence of values is mediated through largely subconscious instinctive responses in cases where the outcome is perceived as uncertain. The role of values has significant implications in the debates surrounding judicial diversity, which have centred on overt characteristics, how the judiciary are seen. The study of judicial values has revealed tacit diversity in the Supreme Court which is associated with judicial decision making. The value: decision paradigm provides a new framework to analyse judicial decision making, judicial division, and the exercise of judicial discretion and the subconscious influences on these processes. 4 ACKNOWLEDGEMENTS I am very grateful to Cardiff University for affording me this opportunity and to Cardiff Law School for the scholarship that launched this work. I would like to thank those who have contributed to the supervision of this PhD; Prof. Richard Moorhead (UCL), Prof. Jiri Přibáň and Annette Morris. I would like to thank my colleagues and friends in Cardiff School of Law and Politics who offered encouragement, support and guidance and the PhD student community, past and present, for their companionship, particularly my office partners who started with me on this journey, Eric Hou and Rohit Roy. I would also like to thank those in the wider legal community who have offered information, advice, encouragement, support and guidance including members of the judiciary both in the Court of Appeal and the Supreme Court and the academy of the SLS and SLSA. I would like to Prof. Shalom Schwartz (The Hebrew University of Jerusalem) who developed the model on which my research is based, answered every e-mail and provided the tools for my analysis and Prof. Gregory Maio (Department of Psychology, Cardiff University) who directed me to Prof. Schwartz. I would also like to thank Ben Wilson, Head of Communications at the Supreme Court, who answered my questions as did Cordelia Jervis a friend and a psychologist who provided guidance when requested over coffee. Most of all I would like to thank my family who have survived the experience, Jennifer and Faye who have grown up with the book and especially Peter who had been through it all before yet encouraged me to do another. This is the last one. *** The law and analysis is stated as of October 2014. 5 PUBLICATIONS Cahill‐O'Callaghan, Rachel J. ‘Reframing the judicial diversity debate: personal values and tacit diversity’ Legal Studies 35.1 (2015): 1-29 won the SLS Best Paper Prize (2014). Cahill‐O'Callaghan, Rachel J. ‘The Influence of Personal Values on Legal Judgments’ Journal of Law and Society 40.4 (2013): 596-623. One of three papers short listed for the SLSA Best Paper Prize (2015). Components were also published as posters: ‘Do Personal Values Tip the Scales of Justice?’ awarded the SLS Poster Prize 2013 ‘Personal Values: An Important Element in the Diversity Debate.’ awarded the SLSA Poster Prize 2013 6 CONTENTS Acknowledgements .................................................................................................................... 5 Publications from this thesis ...................................................................................................... 6 Table of cases ........................................................................................................................... 13 Table of legislation .................................................................................................................. 16 Definitions ............................................................................................................................... 17 Preface ..................................................................................................................................... 20 Chapter 1 Judicial Decision Making 1.1 Judicial discretion ...................................................................................................... 26 1.2 Hard cases and close calls ......................................................................................... 28 1.3 Discretion and division.............................................................................................. 29 1.1 Factors which influence judicial discretion. .............................................................. 31 1.1.1 Role orientation and judicial activism ............................................................... 32 1.1.2 Attitudes and ideology........................................................................................ 35 1.1.3 Morals ................................................................................................................ 38 1.1.4 Demographics .................................................................................................... 39 1.2 Judicial discretion and subconscious influences. ...................................................... 41 1.3 The psychology of decision making.......................................................................... 43 1.3.1 System 1 - Heuristics and subconscious or implicit bias ................................... 47 1.4 How do psychological models of decision making relate to judicial decision making? ……………………………………………………………………………………...49 1.4.1 Instinct-override and judicial values ................................................................. 53 1.5 Values and judicial decisions .................................................................................... 54 1.5.1 What are personal values?................................................................................. 56 1.5.2 The influence of values on decision making ...................................................... 57 7 1.6 Values and the exercise of judicial discretion. .......................................................... 60 1.7 Hypothesis ................................................................................................................. 64 Chapter 2 Content Analysis: A Method for the Empirical Study of Values in Legal Judgments 2.1 Psychological models of personal values .................................................................. 68 2.1.1 Defining values .................................................................................................. 68 2.1.2 The psychological models of values. Why Schwartz? ....................................... 70 2.2 Schwartz model of values ........................................................................................