Three realistic strategies for explaining and predicting judicial decisions

Diego Moreno-Cruz

pp. 93-124

in: Klaus Mathis (ed), Law and economics in Europe, Berlin, Springer, 2014

Abstract

This essay presents three strategies used to explain and predict judicial decisions. These include: (1) the economic approach, (2) the psychological approach, and (3) the naturalistic approach. The first two of these are teleological explanations or rationalizations while the third strategy is a mechanical explanation or natural causation approach. The mentioned strategies are then compared. The strategies differ in two aspects: (1) they are based on different assumptions and (2) they are based on different theories. They are, however, compatible in four different aspects which also characterize American Legal Realism. These are: (1) causal explanation, (2) ontological and epistemological beliefs, (3) predictive-theoretical objectives and products, and (4) the personality of the judge as the determinant of the judicial decision. According to Brian Leiter, one must choose between either the psychological approach and/or the naturalistic strategy but reject the economic approach. To make this choice, one must; (a) prefer the psychological approach to the economic approach, and (b) prefer the naturalistic approach to the economic approach. An epistemological pragmatic decision, to reject or prefer one approach over the other must be based on the evidence regarding the predictive failures and successes. Failing the availability of such evidence, it is acceptable to recognize all three approaches as realistic, complementary, different, available, and useful strategies.

Cited authors

Leiter Brian