A. Justifying Doctrine as a Substantive Guide: The Integrationist Approach

The view that legal reasoning combines, and should combine, both doctrinal reasoning and subjective policy evaluation seems to be the default position of the legal academy these days (Tamanaha Reference Tamanaha2006, 132; Posner Reference Posner2008, 4, 9, 80, 376; Geyh Reference Geyh2011). This integrationist model acknowledges that in many cases doctrine alone cannot identify correct legal outcomes but insists that doctrinal reasoning is still a significant causal factor in legal decision-making. Exactly how doctrine and other kinds of reasoning combine, however, is rarely fleshed out, and when the combination is described, accounts vary.

Integrationists sometimes assert that only some cases require policy analysis, while many legal questions can be answered by doctrine alone. Schauer (Reference Schauer2009, 137) observes that adjudicated controversies tend to be “cases in which both sides think that they have a colorable enough legal argument that is worth spending time and money to go to court.” He argues, however, that legal rules still play an important social role by resolving everyday questions (do I really have to stop at that red light?) and only leave open the conflicts that make it to formal adjudication. In other versions of the integrationist narrative, however, doctrine seems to work to a limited extent in all or most adjudicated cases. In this view, even in complex, controversial cases, doctrine narrows the field of available results or focuses decision makers on certain objectively relevant aspects of conflicts while still leaving room for policy choices (Marshall Reference Marshall2011). So, for instance, Kozinski (Reference Kozinski1993, 993–94) writes, “Under our law judges do in fact have considerable discretion in certain of their decisions: making findings of fact, interpreting language in the Constitution, statutes, and regulations… . The larger reality, however, is that judges exercise their powers subject to very significant constraints.”

Integrationist accounts sometimes seem at odds with their authors’ overarching legal theories. Thus, Schauer (Reference Schauer2009), probably the foremost proponent today of legal reasoning as a rule-bound system, seems comfortable with the view that few, if any, adjudicated cases are actually decided by officially recognized rules. Meanwhile, Posner, an avowed legal pragmatist who maintains that judges should make policy outcomes the linchpin of decision-making, asserts that “legalism,” that is, doctrinal reasoning, “drives most judicial decisions, though generally they are the less important ones for the development of legal doctrine or the impact on society” (Reference Posner2008, 8). Note, however, that despite the dramatic (and counterintuitive) differences in their accounts of doctrine’s role, both Schauer and Posner present doctrinal reasoning as in some way central to legal reasoning. Posner maintains that doctrine plays a routine role in most adjudication, while Schauer (2009, 137) declares that, although doctrine decides few if any adjudicated cases, outside the courtroom “law abounds with … straightforward applications.” To be sure, Schauer (Reference Schauer2013) has pointed out that in some unknown domain of legal controversies, nondoctrinal factors may in fact be outcome determinative. So, for instance, certain parties may be likely to win a particular type of case in a particular jurisdiction for reasons that have nothing to do with doctrine. What is more, he acknowledges that such “dislocated determinacy” could be quite extensive (769). But Schauer never questions that doctrine could determine results for many or most common legal questions, absent such distorting forces.

This confidence that in some field doctrinal reasoning routinely produces, or is at least capable of producing, substantively determinant answers is important, because it creates a presumption of normality. If doctrine is the normal way to resolve legal questions, it seems less curious that judges continue to reason doctrinally and to write decisions in doctrinal terms even in cases in which doctrine fails to determine outcomes. So, in these accounts, doctrinal reasoning retains its paradigmatic role, even if (according to Schauer) it is not how judges decide most cases or (according to Posner) it is not how most important cases should be resolved. But neither Schauer nor Posner really justifies the practice of doctrinal reasoning when the available legal doctrine is not substantively determinate.

Posner is the rare judge willing to declare outright that a legal outcome is based purely on judicial policy choices rather than on the interpretation of preexisting law. For instance, in an en banc concurrence shortly before his retirement, Posner advocated straightforwardly asserting that the court was “imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted” (Hively v. Ivy Tech Community College, 853 F. 3d 339, 357 [7th Cir. 2017]; en banc, J. Posner concurring). Nevertheless, over the past decade, Posner has given considerable attention to describing how judges go about deciding cases using both doctrine and policy. Those descriptions are not always consistent.

Sometimes Posner suggests that policy is considered only when doctrinal reasoning offers no direction, when doctrinal indeterminacy “create[s] an open area in which judges have decisional discretion—a blank slate on which to inscribe their decisions” (Reference Posner2008, 9). That account avoids the incommensurability of policy and doctrine as decision-making methods but raises the gaping original questions about what role, if any, indeterminate doctrine continues to play and what makes a nondoctrinal decision authoritatively legal. Perhaps for that reason, Posner sometimes suggests that doctrine and policy can combine in legal decision-making. He writes of policy being used to “close the deal,” and he contends that while some judges consider policy only after they have tried and failed to decide the case with doctrine, most “blend the two inquiries, the legalist and the legislative, rather than addressing them in sequence” (28, 84). The problem here is that an indeterminate doctrinal result is not unfinished in a way that can be rounded out or revised with policy considerations—at least not in winner-take-all adjudications. Say that a judge using doctrinal reasoning arrives at a decision she views as underdetermined. If the judge then goes on to consider policy, only one of two things can happen: either the policy considerations confirm the original underdetermined doctrinal outcome, or they change it. Of course, the rationale can be revised and supplemented, but the ruling itself—judgment for plaintiff or defendant—either stands or falls.

Schauer’s integrationist account avoids the problematic first-doctrine-then-policy model by reversing it. He accepts the realist view that judges initially choose legal outcomes based on social policy preferences and then turn to doctrine to justify those choices (Reference Schauer2009, 131). As Schauer points out, doctrine could still provide significant substantive guidance after policy analysis, if doctrinal reasoning could confirm or reject the legal correctness of the initial policy-driven result. But of course this constraining role requires doctrine to ratify one policy-driven outcome over another, and this capacity to objectively identify a doctrinally correct legal result is precisely what observers, including Schauer, concede is absent in many if not most adjudicated cases.

B. Nonsubstantive Accounts of Doctrine’s Role

Two other less common approaches suggest roles for judges’ doctrinal reasoning not necessarily rooted in a capacity to identify objectively correct outcomes. The trouble is that after abandoning substantive determinacy as the doctrinal raison d’être, they fail to explain what indeterminate doctrinal reasoning actually contributes to adjudicated outcomes.

A. Doctrinal Reasoning as Character Work

The shift in emphasis toward embodied effects is a universal aspect of performance theory, for performance itself is always conceived as a production of bodies in time and space (Gedicks Reference Gedicks2017). With the model of a performer in mind, we could see judges’ turn away from their usual outlooks as meaningful because it alters judges’ ordinary viewpoints, even if that turn is not toward an objectively correct conclusion. To see this, though, we have to shift our attention away from substantive results and focus instead on doctrinal reasoning as an activity, a practice with effects on the practitioner that might influence the result in ways other than by identifying a substantively correct outcome. Because reasoning doctrinally forces practitioners to go through certain prescribed motions—reading, writing, speaking, and thinking in formal doctrinal terms—it might cause changes in their way of seeing the world and reacting to it.

In performance, it is taken for granted that methods can be developed and practiced to alter the practitioner’s ordinary subjective outlook. For actors playing characters onstage, reshaping the ordinary self is central. As the acting teacher Michael Chekhov (Reference Chekhov1991, 99) puts it, “The desire and the ability to transform oneself are the very heart of the actor’s nature.” By comparing judicial reasoning to actors’ character work, I do not mean simply that judges play defined professional roles when they assume the bench. To be sure, individuals adopt roles at work that are distinct from their everyday or at-home selves (Goffman Reference Goffman1959). These professional roles are constituted and reflected in some sense as performance, including formal elements such as gestures, costumes, sets, and props—the doctor’s white coat, the teacher’s pointer, the soldier’s posture, the CEO’s corner office, the psychiatrist’s standard queries and scripted silences. This observation applies to judges. As Rubin and Feeley (Reference Rubin1996, 2012) observe, “Individuals reconstruct themselves, and more particularly their thought process, as members of the institution to which they belong.” From this perspective, doctrinal reasoning is just one of many professional practices and structures that construct the judge’s role: robes, wigs, gavels, benches, courtrooms, oaths, the litany of “all rise” and “so ordered” (Allen Reference Allen2008).

There is certainly room to explore more generally the way role play and the various elements of a judge’s performance of her judicial role might affect her decisions. I am after something more specific here, however, about the potential for psychological effects of the particular practice of speaking, reading, writing, and thinking in doctrinal terms. It is relatively easy to see judicial robes and courtroom ritual as performance. Doctrinal reasoning is far more central than robes to most lawyers’ and judges’ sense of what constitutes the judicial role, but doctrinal reasoning is usually figured as a disembodied, conceptual matter. Here, I mean to focus specifically on a comparison of the embodied practice of reading, writing, talking, and thinking in formal doctrinal terms and the actor’s adoption of uncharacteristic postures, gestures, and accents.

Looking at doctrinal reasoning as an embodied behavior highlights the similarity between judges’ adoption of the peculiar forms of legal doctrinal language and the physical and vocal changes actors adopt to temporarily disrupt their usual ways of thinking and behaving. It is practically impossible to calculate how a fully imagined character will act and react at every second of a theatrical or ritual performance. Instead, performers need to find some way to change their habitual behavior to produce uncharacteristic actions and reactions. One technique for accomplishing this change is to make a few deliberate, often very subtle changes in posture, movement, or speech. For instance, an actor might adopt a different way of sitting in a chair, take on an alien vocal accent, or change the way she holds her head or jaw. It turns out that such shifts have ripple effects that alter the way one perceives and responds to outside stimuli. So, adopting these alterations changes a performer’s characteristic way of acting and reacting. The actor finds herself hearing and seeing things differently and thus behaving differently.

Like judges, character actors are typically viewed as working toward results externally determined by text and tradition. But actors’ characters emerge not only from trying to imitate prescribed aspects of their dramatic personae but by changing their own usual habits in some way and then seeing what happens. Subtle, sometimes arbitrary, physical and vocal changes, when rigorously practiced, can produce a cascade of psychophysical effects that alter a performer’s way of seeing and interacting with the world. Like actors building characters, judges, without choosing a goal, commit themselves to leaving their own ordinary perspectives behind and going where doctrinal practice takes them. I am suggesting that the practice of working with formal legal doctrine could work in a way similar to actors’ physical and vocal shifts to produce changes in the way judges react to the world.

A key similarity between performers’ character-building technique and the way I am suggesting doctrinal reasoning may work is indirection. Actors make deliberate controlled efforts to alter their usual way of going about things, but they experience the results as not entirely within their control. As Emigh (Reference Emigh1996, 26) describes it, when a performer “is at the height of his powers and most ‘in control’ as an actor, he experiences his feelings and actions as though they are happening to someone else.” Like the performers Emigh describes, a judge engaged in finding a doctrinal solution to a legal problem is “‘beyond himself’—not actively guiding the situation … , but, rather, caught up and even ‘surprised’” by the results of his doctrinal practice (26). Usually we think of this as a matter of judges searching doctrine for substantive instructions. But I am suggesting that, like actors, judges who consciously abandon their ordinary modes of thought, speech, and writing and adopt rigorously formal modes of doctrinal reasoning may produce changes in the way they see things as a result of the shift to doctrinal forms.

One might object that actors’ altered postures, gestures, and vocal choices are physical changes, and it is far from obvious that doctrinal reasoning involves any similarly embodied behavior. Indeed, we tend to think of legal reasoning as the opposite of physical action—reading, writing, and thinking instead of doing. We might wonder, then, whether the “mental” activity of reasoning could generate the type of psychological results produced by performers’ embodied actions.

One response to this worry would be to note that the most common contemporary image of the rule of law employs an embodied alteration: the familiar icon of blind justice. But that is a metaphor, and the idea that I am introducing here of how doctrinal reasoning might affect judges is not a metaphor. I want to think about the real embodied practice of doctrinal reasoning and consider whether that process might have psychological effects. To do this, we have to consider what judges actually do when they reason doctrinally, which does not typically involve tying blindfolds over their eyes. There are, however, real, albeit subtle, physical and perceptual changes that result from the forms of language the judges read, write, and speak when reasoning doctrinally.

The comparison with actors’ work depends on seeing doctrinal reasoning as an embodied practice. As Gedicks points (Reference Gedicks2017, 12) out, “The bodily activity that constitutes performance can only take place at a particular time and in a particular space.” In contrast, the prevailing conceptual approach abstracts doctrinal reasoning out of its embodied context. Some recent empirical research focuses on nondoctrinal physical and situational factors that influence judicial decision makers. The finding in one such study that judges were less likely to grant parole to petitioners who had the bad luck to appear shortly before lunch has been seen as a particularly amusing—or dispiriting—proof of the way judges’ bodies interfere with the rule of law (Danziger, Levav, and Avnaim-Pesso Reference Danziger2011). But why should we assume that only nondoctrinal aspects of embodied decision-making, such as how long it has been since judges have eaten, produce psychological effects that influence outcomes? Perhaps the characteristic forms of traditional doctrinal practice also exert their influence on the bodies and minds of legal decision makers and through those effects influence outcomes.

Reading and writing have long been understood as embodied activities that elicit significant cognitive effects, which may vary with formal differences. As Ong (Reference Ong1986, 34) puts it, “All writing systems do not have the same psychic or even neuro-physiological structure or effects.” The anatomical structure of the human brain is thought to be the same now as it was when cuneiform writing was invented in the fourth millennium BCE (Wolf Reference Wolf2008). But as different forms of writing have appeared and disappeared in various places and historical periods, those changing forms have influenced how people in different cultures see the world and their capacities for certain kinds of thought. Wolf (Reference Wolf2008, 58) observes that while written language has not altered inherited human physiognomy, there are “significant effects of culture on the development of presumably innate cognitive processes.” So, for example, the capacity of Greeks in the 8th century BCE to memorize extremely long passages of oral epic poetry is likely linked both to the absence of writing and to the formal qualities of the epics (Wolf Reference Wolf2008).

Like all performance techniques, doctrinal reasoning is not “free and easy” (Schechner Reference Schechner1986). Working with doctrinal legal forms requires a rigorous perceptual choreography that is physically challenging, even if the moves are subtle and unconsciously regulated. Reading doctrinal materials requires efforts of focus, at an optical as well as a cognitive level. How many law students have found themselves needing to adjust their eyeglasses prescription at the end of the first year? Indeed, the effort required to read dense texts is central to our cultural concept of legal practice, so much so that, for instance, an episode of the television comedy Arrested Development hinges on the running joke that an accused criminal’s family and lawyer cannot advise him to accept or reject a plea deal because the document describing it is so long and turgid that no one can bear to read it.

B. Reading and Self-Disruption

A recent series of experiments on the psychological effects of reading different forms of literature provides support for the idea that reading and writing formal doctrinal text might elicit changes in the way judges see things. Much of this experimental work arises from a search for evidence that reading fiction increases readers’ ability to understand and empathize with others. My point in bringing up these studies is not that reasoning doctrinally makes judges more empathic. What interests me is the observation that under some conditions, reading a particular form of text can induce predictable changes in the way a person views the world—not because of the content of the text but through the psychophysical effects of the reader’s engagement with the textual form.

Reader studies have observed variable psychological effects correlated with different forms of text. In one series of experiments, after reading samples of literary fiction rather than popular fiction or serious nonfiction, participants performed better on standard tests of “theory of mind,” demonstrating an increased ability to detect and understand other people’s thoughts and feelings (Kidd and Castano Reference Kidd2013). Another study found that when readers are “transported,” that is, when “all mental systems and capacities become focused on events occurring in the narrative,” literary and journalistic texts with similar informational content had different psychological effects (Bal and Veltkamp Reference Bal2013, 3). Highly transported fiction readers were more likely to report greater empathy, but when readers of newspaper articles were transported, their empathic skills tended to decrease.

Crucially, the psychological changes observed in readers are not understood to be the result of absorbing substantive information conveyed by the texts. As one article observes, “A striking feature of self-change through literature is that the effects are not direct, as occurs with persuasion” (Djikic and Oatley Reference Djikic2014, 498). For instance, the fiction readers whose scores on theory-of-mind tests improved read only a few paragraphs from works that varied widely in subject matter, so it was “unlikely that people learned much more about others by reading any of the short texts” (Kidd and Castano Reference Kidd2013, 379). Instead, the researchers attributed the psychological changes they observed to the form of the texts with which readers engaged. Literary fiction’s “style” and “figurative expressions” can “involve the reader” in a way that “can temporarily destabilize the personality system” (Djikic and Oatley Reference Djikic2014, 500).

Reader studies help to bridge the gap between actors’ obviously embodied behaviors and judges’ cognitive engagement with legal doctrine, much of which entails reading. The fact that under some conditions reading different forms of text elicited observable psychological changes makes it easier to imagine that working with conventional doctrinal texts in the form of case law, statutes, and constitutional provisions could have comparable effects. The embodied practices of reading, thinking, talking, and writing in legal doctrinal forms might disrupt judges’ ordinary subjective viewpoints, just as literary fiction is observed to “destabilize” readers’ outlooks and actors’ physical choices disrupt their habitual emotional responses.

C. Disruption, Fidelity, and Legal Art

Although this disruptive account of doctrinal reasoning is in some ways quite unlike our usual understanding of how doctrine works, it can be related to more familiar fidelity and legal art theories of legal decision-making. Like the fidelity approach, the disruptive account focuses on the attitudes and subjective experiences of judges as they put themselves to the practice of reasoning doctrinally. And both fidelity and disruptive approaches assume a deliberate, disciplined effort on the part of judges to engage with doctrinal materials. The difference is that the fidelity account takes the initial attitude with which a decision maker approaches doctrine as definitive of her doctrinal practice. The disruptive account focuses instead on the effects that ongoing practice might have on the reasoner. And while the fidelity approach conceives the defining judicial attitude as entirely a matter of conscious choice and willful effort, the disruptive account sees the effects of doctrinal practice as both conscious and unconscious, more like altered perception than being persuaded, a matter of cultivated openness to a transporting practice rather than of dutifully following directions.

The disruptive account also shares aspects of the legal art approach to doctrinal reasoning. In fact, one could see the ideas I have been developing here as an extension of the legal art account. Like Llewellyn’s theory of situation sense, the disruptive account understands doctrinal reasoning’s effects as a not entirely conscious response to doctrinal patterns (Kahan et al. Reference Kahan2016). And both accounts suggest that the effects of doctrinal reasoning may be experienced more as perceptual shifts than as deliberation. One difference, however, is the disruptive account’s focus on immediate and temporary psychological effects.

Most important, legal art theories generally posit accumulated objective knowledge and skills, acquired from education and repeated engagement in legal practice, comparable to mastery in, for example, drawing or sculpting. Sometimes, as in Posner’s (Reference Posner1999) comparison of doctrinal reasoning and drafting, the idea seems to be that like artists, judges prove their professional skill with certain signature techniques. Alternatively, legal art accounts sometimes stress a kind of intuitively accessed expert insight into objectively present aspects of the world (Llewellyn Reference Llewellyn1960; Posner Reference Posner1999; Kahan et al. Reference Kahan2016). So, Llewellyn contends that just as a sculptor sees the patterns in the wood he carves at a level of acuity inaccessible to the untrained eye, a judge deploys expert intuitive knowledge of the nature of his doctrinal medium. These accounts, then, ultimately fall back on an assumed ability of doctrine to point to objectively preferable legal outcomes or at least to identify features of a given situation that are objectively legally relevant (Llewellyn Reference Llewellyn1960; Kahan et al. Reference Kahan2016).

The disruptive approach is different because it focuses on judges’ interaction with the form of doctrine. The idea is that the practice of doctrinal reasoning itself may produce immediate, transformative—but perhaps temporary—psychological effects that are not correlated with any discernable objective content. It might be that, like accomplished actors or sculptors, experienced legal professionals develop a greater ability to access these effects through practice. But any such increased self-disruptive capacity would not be based on accumulated objective knowledge of doctrinal content or any increased ability to discern objective features of situations involved in legal conflicts that somehow correspond with doctrinal terms or categories. So, the disruptive account is compatible with indeterminate legal doctrine.