Judicial Policymaking Research Articles

Black robes, white coats: the puzzle of judicial policymaking and scientific evidence

Combining political analysis, scientific reasoning, and an indepth study of specific state supreme court cases, Black Robes, White Coats is an interdisciplinary examination of the tradition of 'gatekeeping,' the practice of deciding the admissibility of novel scientific evidence. Rebecca Harris systematically examines judicial policymaking in three areas - forensic DNA, polygraphs, and psychological syndrome evidence.

Review of: Black Robes, White Coats: The Puzzle of Judicial Policymaking and Scientific Evidence

Review of: <i>Black Robes, White Coats: The Puzzle of Judicial Policymaking and Scientific Evidence</i>

The Value of Vagueness: Delegation, Defiance, and Judicial Opinions

An established line of research demonstrates that vague judicial opinions are less likely to be implemented than clear opinions. Vague opinions thus present a puzzle. Why would judges craft opinions that risk noncompliance? We argue that the relationships between judges and other policy makers in separation‐of‐powers systems are central to understanding this puzzle. Opinion vagueness can reflect efforts to resolve core tradeoffs associated with judicial policymaking that bear some resemblance to standard accounts of political delegation. Vagueness offers judges the ability to manage their uncertainty over policy outcomes and to hide likely defiance from public view. At the same time, vagueness removes a central source of pressure for compliance that judges can place on other policy makers. Using a game‐theoretic model, we identify conditions under which judges use vagueness precisely as legislatures use statutory discretion. We also demonstrate conditions under which judges use vagueness in ways unanticipated by standard delegation accounts.

Reconsidering Judicial Supremacy: From the Counter-Majoritarian Difficulty to Constitutional Transformations

The counter-majoritarian difficulty has for many years framed constitutional scholarship for both law professors and political sci entists studying judicial review. Unfortunately, shared attention has not led to shared insights, as these scholars have remained isolated in their respective academies. Recently scholars have begun targeting this disciplinary barrier, and questioning whether developing norms of judicial supremacy have importantly raised the stakes of determining the legitimacy of courts setting policy in a democracy. This article proposes a new approach to the study of judicial review aimed at understanding systemic change rather than institutional legitimacy, using recent concerns over the drift from judicial review to judicial supremacy as a point of departure for study. I recommend, to both normative and positive scholars, a new and integrated focus on the relationship between judicial policymaking and wider transformations of the constitutional order that have previously been obscured by orienting constitutional scholarship around the counter-majoritarian difficulty. Academic discussion of judicial review has long been oriented around the counter-majoritarian diffi culty. The counter-majoritarian difficulty questions whether the unique properties of judicial decision-making, which include constitutionally prescribed insulation from public influence, are consistent with America's democratic commitments. Unfortunately this academic discussion has rarely crossed the disciplinary divide between students of constitutional theory and students of constitutional poli tics. Two separate and almost entirely independent tracks of scholarship have been established to meet the challenge of the counter-majoritarian difficulty, resulting in distinct normative and positive investigations of whether judicial review offers sufficient benefits to offset its democratic deficiencies, or whether in its practice it actually leads to undemocratic policy choices. In recent years, efforts have increased to infuse the study of law with politics and vice versa.1 At the same time, new urgency has been brought to the study of the counter majoritarian difficulty for many in the legal academy, who perceive an increase in judicial imperialism. The Supreme Court has lately ratcheted up the rhetoric of judicial supremacy and has widened the ambit of cases coming under its review. This article examines the intersection of this rising academic concern over judicial supremacy with the growing calls for interdisciplinary dialogue. Rather than treat recent concern over judicial imperialism as an amplification of the counter-majoritarian difficulty that simply raises the stakes of being lost in the thicket of

A Cross-Atlantic Dialog on Experimental Use and Research Tools

In Merck KGaA v. Integra LifeSciences I Ltd., the U.S. Supreme Court adopted a broad construction of the regulatory approval exception to patent law infringement, 35 U.S.C. § 271(e)(1), for experiments conducted at early stages of the pharmaceutical development process. But the Court refused to determine whether that exception applies to patented 'research tools,' and failed to address the relationship of that exception to the historic experimental use exception. The U.S. Court of Appeals for the Federal Circuit has narrowly construed the experimental use exception, but also refused in its recent decision on remand in Merck to resolve these questions, leaving in place substantial disagreements over the nature and scope of the exceptions that were reflected in its earlier decision (which the Supreme Court reversed). In contrast to the substantial uncertainties in American patent law, European experimental and regulatory approval exceptions may be subject to somewhat fewer interpretive uncertainties, particularly in light of decisions such as the U.K. Monsanto and German Klinische Versuche (Clinical Trials) cases. But the nature and scope of the European exceptions nevertheless may be subject to dispute and may vary significantly among jurisdictions based on national legislative decisions to limit or extend patent protection, such as the recent Belgian law adopting an experimental use exception that expressly applies to patented research tools. Determining the proper scope and application of experimental use and regulatory approval exceptions remains a pressing concern. These exceptions assure that patent laws intended to provide incentives for technological innovation do not unduly restrict scientific research, innovative medical product development and generic product competition. The social harms that can result from narrow exceptions have been emphasized by the Merck decision, by the recent (initial) invalidation of restrictively licensed stem-cell patents, and by empirical studies that suggest that valid patents may (in light of the narrow construction that has been given to the experimental use exception in the U.S.) increasingly delay or restrict scientific research. However, the scope of these exceptions remains highly controversial, particularly for biotechnological research tool inventions for which capital investments and market returns may depend upon the ability to prevent such unlicensed research uses.In this article, we provide a comparative analysis of the history and current state of the experimental use and regulatory approval exceptions under U.S. and European laws. We explore the application of these exceptions to research tools in academic and commercial sectors, distinguishing research on an invention from research with it, discussing potential differences of treatment among the exclusive patent rights, and noting the arguments for extending or restricting the exceptions. We also discuss relevant constitutional and international treaty-law considerations for legislative and judicial policymaking. We conclude with a dialog that seeks to provide guidance for lawmakers, by identifying relevant questions that will need to be answered in order to resolve the appropriate scope of experimental use and regulatory approval exemptions.

AALS Remedies Symposium, Justice and the Bottom Line: The Continued Vitality of Prophylactic Relief

The identification of a separate classification of prophylactic injunctions and the continued judicial use of the remedy in institutional reform cases has developed a line between legitimate and illegitimate relief. The doctrine and theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. For the dominant discourse rejects prophylactic relief as illegitimate. Critics have disclaimed prophylactic and other public law relief as judicial policymaking through which judges impose obligations beyond the contours of the legal right. Despite this harsh criticism, prophylaxis has continued to thrive as an effective and necessary part of the practical remediation of complex cases. The continued use of prophylactic remedies demands an alternative theory of justification, for the image of an activist, judicial policymaker does not accurately explain the remedial practice. This essay argues against the rejection of all broad injunctive relief, and instead, suggests that the legal construct of the prophylactic injunction provides an alternative language through which jurists and lawyers can navigate the real issues of crafting appropriate relief.

Sanctioning Infringement: How Disingenuous Copyright Law Protects Monopoly at the Expense of Consumer Expectations

The word sanction has two meanings. A sanction may be a punishment - a punitive or coercive measure that results from a failure to comply with a law, rule, or order. On the other hand, a sanction may be an official or authoritative approval. Thus this question is posed: can one be sanctioned, in the latter sense, in performing an act that is otherwise sanctionable, in the former sense? Those members of the Internet community who infringe copyright by downloading music in violation of license agreements inarguably break the law. They infringe copyright, and are subject to harsh civil penalties, and in some cases, criminal penalties. But perhaps the latter type of sanction, something more like implied consent or deferral, would be more suitable in the copyright arena, in the interests of perpetuating the traditional purposes of copyright. In the context of contemporary music copyright law, what sanction is appropriate against infringers? The policy against copyright infringement is generally desirable. However, current technology makes meaningful enforcement impracticable. Moreover, censuring the introduction of new technological modalities is harmful both to concepts of justice and to market development. Industry-specific laws may be important towards informing market actors of lawmakers' policy intentions. However, they should not carry monetary penalties. Instead, such penalties should be postponed until such time that the market and the public have responded to the new technology and delivery mechanisms. In this way, lawmakers may determine, based on real and objective market factors, what constitutes useful or harmful application of the technology. This would deter incumbents from investing capital in judicial enforcement and policy-making rather than developing and embracing the new technology.

Judicial Procedures as Instruments of Political Control: Congress's Strategic Use of Citizen Suits

Citizen suit provisions, which give proregulatory interests access to the federal courts, can be used by Congress to increase the courts' role in regulatory policy. I analyze 284 environmental regulation bills reported favorably out of committee and show that committee support for citizen suits is a function of the committee's policy goals and the political context in which the bills are generated. These findings indicate that Congress deliberately uses judicial procedures as instruments of political control and that scholars examining judicial policymaking must include legislative goals in the list of explanatory factors.

Beyond Gratz and Grutter: Prospects for Affirmative Action in the Aftermath of the Supreme Court's Michigan Decisions

AbstractThis article explores the meaning of the Supreme Court's Michigan decisions and their implications for higher education in the judicial, political, and social–cultural context. It concludes that the complex and dynamic interplay of judicial policymaking, politics and public opinion, and demographic changes could have important consequences, including unanticipated ones, in the years ahead.

I Respectfully Dissent: Consensus, Agendas, and Policymaking on the U.S. Supreme Court, 1888–1999

AbstractScholars have been intrigued by the abrupt change in the rate of nonconsensual opinions that the Supreme Court has published over time, which substantially increased beginning with the battles concerning the court's New Deal transition in the 1930s. Notwithstanding, none of the prior studies on this topic has made any link, whether theoretical or empirical, between the Supreme Court's issuance of these special opinions and the justices’ policy preferences. We utilize fractional cointegration to examine the relationship between consensus, agendas, and decisionmaking on the Supreme Court. We find that there is a systematic interrelation between the justices’ policy preferences and their issuance of nonconsensual opinions that is dependent upon the policy agenda before the court. In turn, this connection influences the court's policy outcomes, demonstrating that the justices’ behavior regarding nonconsensual opinion writing is a classic example of judicial policymaking.

Presidential Success Through Appointments to the United States District Courts

While many of the decisions of federal district court judges involve the routine application of settled legal rules, a significant minority of decisions present judges with the opportunity for judicial policymaking. A considerable body of literature suggests that when faced with policymaking opportunities, judges' policy preferences exert a significant impact on the nature of those decisions. The present study explores the extent to which the preferences of appointing presidents are manifested in the policy-relevant decisions of district court judges. In particular, we seek to determine the success of presidents in selecting district court judges compared to recent findings on the success of presidents in selecting justices for the Supreme Court.

Judicial Review and the Quest to Keep Copyright Pure

This paper is a discussion of the Supreme Court's decision in Eldred v. Ashcroft. In the paper, I argue that the ambiguity at issue in Eldred has little to do with the meaning of the words of the Copyright Clause, but rather raises questions of how aggressive the judiciary should be in policing Congress's exercise of the copyright power. After exploring the justifications offered for heightened judicial scrutiny in a variety of constitutional contexts, I conclude that exercise of the copyright power implicates none of them. Courts should correspondingly review intellectual property laws for consistency with the Copyright Clause using the most deferential standard of review conceivable, a standard that I distinguish in both form and context from the sort of heightened rational basis review we've grown accustomed to seeing in case like Lopez and Morrison. Among the most serious flaws in arguments for heightened judicial scrutiny of copyright laws is that they rest on the assertion that courts should impose upon congress a particular definition of progress as that term is used in the Copyright Clause. Such attempts are misguided for two reasons: First, they seek to replace political copyright policymaking with judicial policymaking. But such attempts are inconsistent with the Constitution's preference for representative policymaking, and the Supreme Court's decision to constitutionalize the exclusion of fact from copyrightable subject matter in Feist Publications, Inc. v. Rural Telephone Co. provides a more than adequate reminder that (in addition to its lack of democratic pedigree) the court's copyright policymaking is also substantively lacking. Second, they call upon eighteenth-century copyright policy as understood by the Framers to provide this frozen definition of progress. But the Framers never considered most of the copyright-related questions we face today, and even if they had, it's not clear that we would want to live with the policy choices they would have made. Political, not judicial, action is the solution for our copyright woes.

Constitutional Statutory Synthesis

Statutory evolutionists contend that statutes should be updated to reflect modern conditions. Originalists protest - asserting rule-of-law oriented soundbytes such as judges should interpret the law, make - and assume their role as guardians against subjective judicial policymaking and legal unpredictability. Evolutionists respond that laws inherently contain many ambiguities and that the myth of a judge as law-finder was dispensed with by Legal Realists such as Holmes. In the end, the two sides reach an impasse, rhetoric in tow, talking past each other more than anything else. It does have to be this way. A restrained theory of statutory evolution exists - one completely consistent with the predominant originalist premises of legitimacy in a democratic state: Called Constitutional Statutory Synthesis, it uses sufficiently accepted constitutional change as a medium for statutory evolution. The Article demonstrates that the canon of construction to avoid constitutional doubt is only the tip of the iceberg, as there are a number of situations where the Constitution is implicated but violated, and constitutional norms and principles should affect statutory interpretation even where a statute is undoubtedly constitutional. In doing so, the Article develops a framework of not unfaithful statutory interpretation in which the interpretation of a statute evolves only when, but necessarily when, there has been sufficiently accepted constitutional change after the statute's enactment. This synthetic approach sheds light on some of the most famous instances of statutory interpretation from antitrust - Alcoa and Sylvania - to civil rights - Weber and Bob Jones - and lends insight into the Rehnquist Court's use of federalism-inspired clear-statement rules.

Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch out of the Political Thicket

This essay explores in constitutional law - ways that the Supreme Court retreats from entanglement in an area of law in which it is already involved. It offers five examples. First, the Court can announce that the difficulty that prompted intervention has been solved, thereby removing the need for further adjudication, as the Court did when it reversed National League of Cities v. Usery in Garcia v. San Antonio Metropolitan Transit Authority. Second, the Court can announce a standard that devolves responsibility onto another actor. I trace here the move from Redrupping to the Miller standard for judging obscenity. Third, the Court can announce rules that have an aura of mechanical application, thereby avoiding the appearance, if not the reality, of judicial policymaking or entanglement, as it did in the one-person, one-vote cases. Fourth, the Court can relax substantive constraints to the point at which cases disappear, because litigants lack any real incentive to bring them. This may describe the commerce clause from 1942 to 1995 and economic due process after the New Deal. Finally, a Court wary of its ability to avoid deeper immersion can announce such factbound rules that it enables future courts to scramble back to the banks. This may describe the Court's opinions in Romer v. Evans and Bush v. Gore. In addition to cataloging and comparing exit strategies, this essay considers the possible utility of each exit strategy in enabling the Court to extricate itself from the mess it has created in one particularly tangled part of the political thicket: the racial redistricting cases. From among the techniques I examine, only two seem plausible. The Court could recast the form of review in highly deferential terms, and leave enforcement of the constitutional constraint to the political branches, as it did in the areas of economic due process and the commerce clause pre-Lopez. Or it could declare victory and go home, leaving the field to the political branches, as it did in the case of the Tenth Amendment. Focusing on exit strategies as a genre can be useful. Exit and entry can be quite asymmetric: sometimes it can take decades to put up an edifice and only minutes to demolish it; other times getting in can take but an instant while divorces can drag on forever. Exit poses distinct challenges. The techniques that Alexander Bickel celebrated in his discussion of the virtues may be useful in keeping a court out of trouble in the first place without providing much of a roadmap for retreat. For example, if the Supreme Court were to refuse to hear redistricting cases (practicing the passive virtue of declining the exercise of jurisdiction which is given) but were to leave in place the existing legal rules, this would exacerbate current problems. Except for rendering a previously litigable claim nonjusticiable, exit strategies are almost bound to require some revision of substantive legal standards.

The Supply and Demand Sides of Judicial Policy-Making (Or, Why Be so Positive about the Judicialization of Politics?)

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.... We may begin [any constitutional analysis] by distinguishing roughly the legal consequences of this factor of relativity. Justice Robert H. Jackson (1) Theoretically, Article I of the Constitution places the legislative power in Congress or, more accurately, jointly in Congress and in the Presidency, acting in accordance with the formalities of bicamerality and presentment. When this body--which we shall call the constitutional legislature--is capable of action, it will retain control of legislative authority.... Courts and agencies are capable of independent or autonomous action where the constitutional legislature is too fragmented to react. In such circumstances, lawmaking will tend to migrate to those bodies that are capable of decisive action. In these conditions we see the development of such familiar entities as the runaway bureaucracy and the activist courts. Professor John Ferejohn (2) I INTRODUCTION Explanations of judicial behavior that draw upon positive institutional theory have gained growing prominence within both the political science and the legal academies. (3) Within the latter, Professor John Ferejohn has been a leader in developing the neo-institutional approach to the study of the law and the courts. (4) His work has been particularly important in developing so-called models of judicial behavior. (5) These separation-of-powers models seek to explain judicial decisions by reference to exogenous constraints, such as the powers of Congress and the President to control federal courts, rather than by reference to endogenous constraints, such as the collegial nature of decision-making on certain appellate courts and the need to maintain a majority and avoid dissension. (6) Ferejohn's contribution to this symposium further develops this line of inquiry by outlining the possibility of a positive model of the judicialization of politics, and by suggesting institutional reforms that would reduce the level of the judicialization of politics in the United States. Although Professor Ferejohn's argument is still in its preliminary form, and some key features remain undeveloped, his argument nevertheless suggests important ways to think about both the relationship between law and politics in the United States and what should be done about the growing political role of the federal courts in U.S. democracy. This article begins by examining the central elements of Professor Ferejohn's argument. Part III specifically focuses on the relationship between the model of the judicialization of politics and Ferejohn's normative argument and proposals for reform. Part IV concludes by raising a few more general concerns about positivist models of judicial behavior. II FEREJOHN ON THE JUDICIALIZATION OF POLITICS Professor Ferejohn's essay draws together several complex and nuanced lines of analysis. Therefore, I begin by outlining the four key arguments that he makes. First, Professor Ferejohn recasts the debates about the relationship between law and politics in institutional terms. In doing so, Ferejohn presents the relationship between law and politics as a debate about the proper institutional location of the legislative function--the power to make binding, prospective norms and rules. (7) This approach draws from the constitutional theory of John Locke, who argued that, of the two analytically distinct functions of governments, legislating was the sovereign political power, while executing (including both ministerial and judicial functions) was a secondary, subordinate power: There can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate. …

The “Post-Attitudinal Moment”: Judicial Policymaking Through the Lens of New Institutionalism

Lee Epstein and Jack Knight, The Choices Justices Make. Washington, DC: Congressional Quarterly Press, 1998. Pp. xviii + 200. $24.95 paper. Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons. New York: Cambridge University Press, 1998. Pp. xv + 490. $74.95 cloth; $24.95 paper. In the last several decades, the view that American judges are policymakers has become all but axiomatic among political scientists. The dominance of this view stems from C. Herman Pritchett's publication of The Roosevelt Court (1948), in which he argued convincingly that Supreme Court Justices were motivated primarily by their own policy preferences. Many political scientists were further swayed by Segal and Spaeth's publication of The Supreme Court and the Attitudinal Model (1993), in which they offered powerful empirical support for Pritchett's contention that the legal rulings of the Supreme Court could be predicted on the basis of the Justices' personal policy preferences. Despite the dominance of this view among political scientists, the legal profession and the legal academy have never quite accepted this characterization of judicial behavior. Although the political scientists piled up more and more empirical support for their claim that judges are primarily policymakers, legal scholars continued to maintain that judicial decisionmaking should not and, in fact, did not consist primarily of judges acting to maximize their own policy preferences but was instead highly constrained by an adherence to legal precedent. For many of us (especially those of us in the social sciences), the difference of opinion between the two camps seemed reducible to a classic conflict between and ought, with the political scientists describing the is of empirical reality and the legal scholars philosophizing about how things ought to be. A few years ago, however, some political scientists began to call for public law scholarship that might go some way toward bridging the gap between the schools of thought. Among the most influential of these voices was Rogers Smith, who argued in 1988 for a new institutionalist turn in public law scholarship, by which he meant that political scientists should spend more energy understanding how factors-such as the limitations of judicial office and the constraints of precedent-might inhibit judicial policymaking. More recently, two prominent public law scholars operating from relatively opposite sides of the methodological spectrum wrote separately to announce and encourage a post-attitudinal turn in judicial behavior scholarship (Gillman 1996-97; Baum 1997).1 The Choices Justices Make (1998) by Lee Epstein and Jack Knight and Judicial Policy Making and the Modern State (1998) by Malcolm M. Feeley and Edward L. Rubin are two excellent examples of this post-attitudinal moment. Although grounded in very different methodological perspectives and focusing on the nature of judicial behavior in different settings, both books examine how institutional structures shape and constrain judicial policymaking. Moreover, in both books the message clear: If we want to understand judicial behavior-and especially the judiciary's role in shaping public policy-we need to look much further than judicial attitudes. In The Choices Justices Make, Epstein and Knight start with the observation that Justices on the Supreme Court change their minds or join opinions that do not reflect their personal policy preferences in more than half of all cases that they hear. As an example of this type of behavior, Epstein and Knight tell the story of Craig v. Boren (1976), in which the Supreme Court adopted the heightened scrutiny standard for sex discrimination. At the initial conference vote on Craig v. Boren, the Justices were deeply divided on issues of both standing and the appropriate constitutional standard to apply. …

Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Civil Litigation

Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Civil Litigation

Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Civil Ligaton

While recent research has improved dramatically our understanding of appellate judicial behavior in constitutional and criminal law, we know comparatively little about the majority of the decisions made by the federal judiciary: civil case decisions in federal district courts. Moreover, by relying upon published cases exclusively, this research may misrepresent those forces influencing the majority of judicial decisions. We address these shortcomings by outlining an integrated model of judicial policymaking and using this model to explain civil penalty severity in all environmental protection cases (published and unpublished) concluded in federal district courts from 1974-91. Additive and interactive heteroskedastic unit effect regression models demonstrate that penalty severity in environmental cases is affected by case and defendant characteristics, judicial policy preferences, the surrounding political context, and federal institutional actors. These models also demonstrate that political considerations are especially influential in published case decisions.

Judicial policy making and the modern state: how the courts reformed America's prisons

1. Introduction Part I. The Case of Judicial Prison Reform: 2. An overview of judicial prison reform 3. Two classic prison reform cases: Arkansas and Texas 4. Three variations on a theme: the Colorado penitentiary, the Santa Clara county jails and Marion penitentiary Part II. The Theory of Judicial Policy-Making: 5. Defining the problem, identifying the goal, and rejecting the principle of federalism 6. Creating doctrine, choosing solutions and transforming the rule of law 7. Implementing the solution, muddling through and ignoring the separation of powers principle 8. Conclusion 9. CODA: assessing the successes of judicial prison reform.

On Behalf of the Condemned? The Impact of the NAACP Legal Defense Fund on Capital Punishment Decision Making in the U.S. Courts of Appeals

There is a rich history of scholarship demonstrating that interest groups have influenced judicial policymaking, but there has not been a system atic test of whether a single group has contributed to case outcomes over an entire policy area while controlling for other elements of judicial deci sion making. Additionally, the degree to which extra-legal factors domi nate a group's ability to influence judicial policy has not been explored sufficiently Finally, there needs to be an empirical test of the extent to which elements of judicial decision making affect an interest group's choice to litigate. This study examines these questions by assessing the NAACP- Legal Defense and Education Fund's (LDF) contribution to the popula tion of 217 capital punishment cases decided in the U.S. Courts of Appeals. This article finds that when considered in light of the judicial decision making context, the LDF is not a significant factor influencing case out comes. Moreover, an interaction model suggests that the LDF's ability to affect case outcomes is controlled largely by extra-legal factors. Finally, there is no evidence that the LDF's decision to litigate follows a pattern based on this judicial decisionmaking context. These findings should prompt future scholars researching a group's litigation campaign to ex amine his/her subject in the framework of the judicial decision-making process instead of in isolation.