“You’ll learn two key skills in the next three years,” our professor said on the first day of law school. “The first is how to use a law library. The second is how to think like a lawyer.” (More)

Activist Judges, Part I: “Think Like a Lawyer”

This week Morning Feature considers the murky question of ‘judicial activism.’ Today we begin with legal reasoning, the rigorous logic that law students are taught and that we assume judges apply in deciding cases. Tomorrow we’ll look at motivated reasoning, the thought process that people actually use. Saturday we’ll ask whether and how the institution of law can minimize human bias.

“You’ve got to help me!”

Donna and her friend Faye are coworkers, and one night they go out for drinks. They take Faye’s car and, despite being the designated driver, she has a glass of wine. Donna has three rum-and-cokes. They’re laughing about their boss on the way home when Faye sees blue lights flashing in the rearview mirror. She looks down at the speedometer, groans, pulls over, and looks at Donna.

“You’ve got to help me,” Faye pleads. “I already have a DUI and I had some wine. You have a clean driving record. Switch places with me.”

Donna agrees and they crawl over each other to switch seats. All of this is seen by Patrolman Pete, who has stopped behind them and is walking up to their car. Pete orders both out of the car and gives them field sobriety tests. Faye passes easily, but Donna fails. Pete gives Faye a ticket for speeding … and arrests Donna for DUI.

“Actual physical control”

“But wait,” you object. “Donna wasn’t driving! Faye was!”

Alas, Donna is in Florida and, under Florida law, she can be convicted of DUI if she is “driving or in actual physical control of a vehicle” while under the influence of alcohol. And Florida courts have interpreted “actual physical control” to include sitting in the driver’s seat of an operable vehicle, with access to the key. Indeed cases have held that applies even if the motor is turned off and the ‘driver’ is asleep.

Donna was sitting in the driver’s seat, and the key was in the ignition. The vehicle was clearly operable. So is Donna guilty of DUI?


To answer that question, you have to “think like a lawyer.” That’s a very specific kind of logic, and lawyers follow a series of steps described by the acronym IRAC: Issue, Rule, Analysis, Conclusion.

  • Issue – The legal question to be answered, e.g.: “Is Donna in ‘actual physical control of a vehicle’ if she switches places with a driver who has pulled over for a traffic stop, and has made no attempt to move the car?”
  • Rule – The legal rule that governs the issue, e.g.: Florida’s DUI law and the cases interpreting “actual physical control.”
  • Analysis – The facts of the case and a logical argument for how they fit under the rule.
  • Conclusion – The legal answer, applying the rule to the facts for that case.

The analysis will often include arguments by analogy, comparing this case to past cases, applying the principle of stare decisis and the idea that like cases should be treated alike. It may also include arguments of interpretation, proposing to expand (or narrow) a rule to include (or exclude) the facts of this case or – if more than one rule seems to fit the case – which rule the court should apply in this case.

“Justice is what the judge ate for breakfast”

Lawyers often joke about “the gastronomic theory of law,” based on a quote attributed to legal realist and judge Jerome Frank:

Justice is what the judge ate for breakfast.

And there’s scientific research to support that idea:

The graph above is almost the visual embodiment of Frank’s catchphrase. It’s the work of Shai Danziger from Ben Gurion University of the Negev, and summarises the results of 1,112 parole board hearings in Israeli prisons, over a ten month period. The vertical axis is the proportion of cases where the judges granted parole. The horizontal axis shows the order in which the cases were heard during the day. And the dotted lines, they represent the points where the judges went away for a morning snack and their lunch break.

The graph is dramatic. It shows that the odds that prisoners will be successfully paroled start off fairly high at around 65% and quickly plummet to nothing over a few hours (although, see footnote). After the judges have returned from their breaks, the odds abruptly climb back up to 65%, before resuming their downward slide. A prisoner’s fate could hinge upon the point in the day when their case is heard.

The authors of the study concluded:

We have presented evidence suggesting that when judges make repeated rulings, they show an increased tendency to rule in favor of the status quo. This tendency can be overcome by taking a break to eat a meal, consistent with previous research demonstrating the effects of a short rest, positive mood, and glucose on mental resource replenishment[.]

The study emphasizes that the judges were not entirely gastronomic in their rulings. The specific facts of cases did make a difference. Still, they were surprised to discover how much hunger and fatigue played into their decisions.

“Who was in actual physical control of the vehicle?”

Donna’s trial attorney presented a creative argument:

Your honor, the question here is: who was in actual physical control of the vehicle? Her friend had stopped the car when she saw Patrolman Pete’s lights. Patrolman Pete testified that he was already out of his vehicle and approaching theirs when he saw them switch seats. He testified that his first command was to order both my client and her friend to get out of their vehicle, and they did. He also testified that he would not have allowed my client to get back behind the wheel, and in fact he arrested her and transported her to jail.

Based on these facts, your honor, my client argues that Patrolman Pete was in actual physical control of the vehicle, from the moment my client and her friend began to change seats.

The judge agreed and dismissed Donna’s case. Were her attorney and the judge “thinking like lawyers?” Or was it simply that hers was the first case called that morning, and the judge had a good breakfast?

Tomorrow we’ll explore clearer examples of human bias – motivated reasoning – in the courtroom….


Happy Thursday!