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Values and decisions: Division in the Supreme Court

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Phillipa Weeks Staff Library

ANU College of Law

5 Fellows Road

The Australian National University, Acton 2600

Australia

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Many facets of the judicial personality have been associated with decision making, including political ideology, activism, attitudes and demographics. Psychologists have demonstrated that personal values underpin each of these characteristics. This study translates psychological theory into legal practice, applying the theories and techniques developed in psychology to identify the role of personal values on judicial decision making in cases which divide the UK Supreme Court.

The model of values used in this paper is one developed by the psychologist Shalom Schwartz, and extensively used in studies of decision making. He has shown that all personal values can be encompassed within twelve overarching motivations. While an individual could embrace all of the values, in reaching a decision between opposing values the decision maker will support one value above another. It is this prioritisation of values that is significant in decision making.

This paper presents a novel method of empirically and systematically analysing judicial opinions, which reveals the underlying values contained within them. This technique has revealed an association between value expression and disagreement in the UK Supreme Court. In particular, it has demonstrated that in cases which divided the UK Supreme court, the judgments supporting the majority position exhibited a different prioritisation of values compared to those that supported the minority position. Conversely, values were also associated with agreement. Analysis of the value priorities of individual Justices revealed that Justices who espoused similar value priorities reached similar decisions in hard cases.

The value/decision paradigm thus provides a new framework to analyse judicial decision making, judicial division and the exercise of judicial discretion in Supreme Court. This study reveals that although the law frames and constrains decision making, in hard cases, cases which divide judicial opinion, personal values play a role. These findings have importance to the debates surrounding judicial decision making, judicial diversity and judicial selection.

Dr Rachel Cahill-O'Callaghanis from Cardiff University, and her interests lie in decision making and facets of personality that influence decision making. She collaorates with academics in the UK and US to examine decision making with law students in an international study examining the influence of values and other indicators of professionalism on ethical decision making.

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Phillipa Weeks Staff Library

ANU College of Law

5 Fellows Road

The Australian National University, Acton 2600

Australia

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