Copyright (c) 2003 The Trustees of The University of Pennsylvania
University of Pennsylvania Law Review
ARTICLE: THE EFFECTS OF COLLEGIALITY ON JUDICIAL DECISION MAKING
151 U. Pa. L. Rev. 1639
Harry T. Edwards+
In The Nature of the Judicial Process, Justice Benjamin Cardozo tried to explain how appellate judges overcome their individual predilections in decision making. 1 His thesis was that the different perspectives of the members of an appellate bench "balance one another." 2 He argued that "out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements." 3 Attrition, of course, literally means the gradual wearing down through sustained attack or pressure, or the wearing away by friction. 4 It is interesting that Justice Cardozo chose this word to explain how "diverse minds" come together to produce "truth and order" 5 in decision making. I think that he was wrong in his explanation. Collegiality, not attrition, is the process by which judges achieve the "greater value" of which he wrote.
In recent years, I have written several articles and given a number of speeches in which I have reflected on collegiality as it informs the judicial function. 6 I have contended that some academics who have analyzed judicial decision making, especially on the basis of limited empirical data, have paid insufficient attention to collegiality. 7 In particular, I have rejected the neo-realist arguments of scholars who claim that the personal ideologies and political leanings of the judges on the D.C. Circuit are crucial determinants in the court's decision-making process. 8 These scholars invariably ignore the many ways in which collegiality mitigates judges' ...
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.