Searching for Constraint in Legal Decision Making
This essay is about constraint in legal decision making: how we should conceptualize it, how we should study it, and why psychological theory and methods provide such a promising avenue for doing so. I treat constraint as a “democratic good,” necessary to justify the distributional decisions of unelected judges and as an empirical question: Does meaningful constraint exist? If so, where are we likely to find it? What are the potential sources of constraint in legal decision making? Asking these questions should lead to what I hope will be the next generation of empirical research on legal reasoning involving a wealth of theoretically based questions of interest to scholars in numerous disciplines.
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