they agree or disagree with the statement that ‘‘it is just as legitimate to make a
decision and thenWnd the precedent as it is toWnd the precedent and then make
the decision,’’ then substantial dissensus emerges. Now if a judge can choose
which precedents to follow, or if a decision legitimately precedes the precedent,
what sort of logic compels us to understand the precedent as havingcausedthe
decision? Finally, the empirical question of how these beliefs about proper
behavior inXuence actual decision-making can only be resolved through careful
empirical analysis, based mainly on positivist methods.
Many debates exist among scholars of judicial behavior in part because judges
and others are often disingenuous in describing how they go about making
decisions, and in part due to concerns about judicial legitimacy. This then raises
the more general issue of whether strategic factors play a role in judicial
processes.
4 Strategic Considerations
.........................................................................................................................................................................................
Epstein and Knight ( 2000 , 625 ) have documented well the rise of rational choice
approaches to judicial decision-making, and in particular models of strategic
choices by judges. They deWne the strategic model as: ‘‘( 1 ) social actors make
choices in order to achieve certain goals; ( 2 ) social actors act strategically in the
sense that their choices depend on their expectations about the choices of other
actors; and ( 3 ) these choices are structured by the institutional setting in which they
are made’’ ( 2000 , 626 ). Of course, at this level of abstraction, no one could disagree
with the application of this model to judicial decision-making. Judges have policy
preferences they try to implement, but they cannot act as entirely free agents.
Instead, they must take into account the preferences of their constituents (broadly
deWned), as well as formal and informal institutional rules, prescriptions, and
proscriptions.
Theories of constrained choice often fall within the Separation of Powers (SoP)
approach (e.g. Segal 1999 ). This is a body of research examining the degree to which
judges factor into their decision-making their beliefs and perceptions about the
reactions of the other branches of government to their policies. As such, it has
much in common with theories of legitimacy (see below) that argue that judicial
institutions are dependent upon others for the successful implementation of their
decisions.
Assuming that judges are single-minded, with policy goals entirely dominant,
few would argue with the view that no institution can be eVective without acting
judicial institutions 521