judges believe that similar cases ought to be treated similarly, but determining to
which body of law an individual case belongs is no easy or mechanical task
(especially at the appellant level, where one side of the case has already prevailed
with the court below, and the other side of the case believes its argument suY-
ciently strong to risk the high cost of appeal). To the extent that judges are free to
pick which precedents they ‘‘follow,’’ then it is diYcult to assign much causal
inXuence to the prior court decisions. Moreover, many of the decisions of judges
are in areas where vast discretion is granted by law and precedent is of little
guidance or meaning (e.g. sentencing decisions).
In discussing the role of precedent in judicial decision-making, Epstein and
Knight ( 2004 , 186 ) assert: ‘‘judges have a preferred rule that they would like
to establish in the case before them, but they strategically modify their position
to take account of a normative constraint—a norm favoring precedent—in order
to produce a decision as close as is possible to their preferred outcome.’’ What
Epstein and Knight are acknowledging is that judges are subject to expectations
about how they ought to behave. Not all decisional options can be exercised by
judges without repercussions. Moreover, judges hold their own views about how
theyought tobehave. Many judges take, for instance, an oath to obey the law, and
obeying the law to many means following precedent whenever possible. And even if
judges do not themselves accept a particular model of good judging, they may be
subject to norms and expectations that constrain their behavior. Perhaps the most
important conclusion here is that judging is diVerent from other forms of decision-
making by public oYcials. Courts are not simply mini-legislatures. Because judg-
ing is diVerent, and speciWcally because impartiality is an expected behavior of all
judges, normative models of decision-making have uncommon inXuence. More-
over, the legitimacy of judicial decisions is to some degree inXuenced by the
procedures judges use in making decisions (Tyler and Mitchell 1994 ), and, import-
antly, judges know that.
Judges diVer in whether they believe their primary obligation is to justice or to
strict legality. Some judges value the orderliness and predictability of law more
highly than justice in individual cases. Other judges are more strongly committed
to achieving justice in their decisions than maintaining strict legal consistency.
These judges cite as part of the obligation of a judge in a Common Law System the
need to ensure that law keeps up with changing social values and norms, and they
attribute the legitimacy of courts to their ability to make decisions commonly
regarded as just.
Gibson ( 1978 ) has shown that judges’ perceptions of what they ought to do as
judges do in fact inXuence their decision-making behavior. This is not simply a
matter of ‘‘activist’’ judges making liberal decisions, and ‘‘restraintist’’ judges
expression cases change as a result of a new ‘‘jurisprudential regime’’ announced and implemented in
Chicago Police Departmentvs.MosleyandGraynedvs.Rockford.
judicial institutions 519