With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, I analyze the way in which judges craft their opinions so as to make them more palatable to a wide range of audience members: the litigants and attorneys involved in the case, higher appellate courts who might ultimately review the opinion, and, finally, the public in general.
To do this, I focus specifically on the use of foreshadowing in legal opinions. Foreshadowing, as explained in my article, is not simply a literary device, but is an extremely persuasive technique given the way in which it appeals to how human beings think and process information. Indeed, foreshadowing implicates a number of psychological theories (priming theory, schema theory, and inoculation theory), each of which has a strong impact on persuasion. Furthermore, when we look at the general psychology behind human cognition as well as the role that subtlety (a hallmark of foreshadowing) plays in persuasion, it becomes clear why judges frequently employ foreshadowing when crafting their opinions.
After discussing the above psychological theories, my article then talks specifically about judicial narrative, offering discrete examples of different kinds of foreshadowing that judges have employed in notable judicial opinions. From the way in which judges phrase rules, to how they describe precedent cases, to how they even prepare us for a departure from existing law, judicial opinions offer rich examples of the intersection between psychology, narrative and persuasion.