How Judges Judge: Empirical Insights into Judicial Decision-Making, Brian M Barry, (Routledge 2021)

• Author: Saoirse Enright
• Position: LLB (UL), LLM (UL), PhD Candidate (UL)
• Pages: 106-113

IRISH JUDICIAL STUDIES JOURNAL

106

[2021] Irish Judicial Studies Journal Vol 5(1).

106

BOOK REVIEW

Brian M Barry, How Judges Judge: Empirical Insights into Ju-

dicial Decision-Making (Routledge 2021), ISBN 978-0-367-

08624-4, 295pp.

Author: Saoirse Enright, LLB (UL), LLM (UL), PhD Candidate (UL).

Legal philosophy has propounded a dichotomous notion of judicial decision-making that has

generated much debate in the literature with no natural endpoint in sight. On the one hand,

legal formalists have argued that the role of the judge in judicial decision-making is confined

to ‘mere marks on a printed page’

1

in order to enable justice to be administered in a fair and

‘detac hed manner’.

2

This is because the proponents of this historical and judicial theory

viewed legal rules as ‘the Alpha and Omega, the beginning and the ending of judicial decision-

making’.

3

However, at the turn of the twentieth century, the legal realist school of thought

argued that this is merely an ideal that can be reduced to a myth because ‘[d]eep below con-

sciousness are other forces, the likes and dislikes, the predilections and the prejudices, the

complex of i nstincts and emotions and habits and convictions, which make the … judge.’

4

The proponents of legal realism thus argued that various factors beyond the law influe nce

judicia l decision-making which, in turn, provoked a range of empirical studies in this respect.

5

Nevertheless, the vast breadth of academic literature that has endeavoured to analyse judicial

decision-making is generally limited to the confines of the law and how the judge interprets

and applies the law.

6

Brian Barry has, however, plugged this gap in legal scholarship with How Judges Judge: Empirical

Insights into Judicial Decision-Making. This is a cutting-edge and eloquent work that appraises

inter-disciplinary research from many different academic perspectives in the fields of law,

court processes, psychology, economics, politic s, and technology. Perhaps this is the begin-

ning of the end of a perpetual debate that permeates the literatu re on the judge’s role as one

of society’ s key decision-mak ers, as the a uthor demonstrates that there is some empirical

evidence to support the fact that ‘the great tides a nd currents which engulf the rest of men

do not turn aside in their course, and pass judges by’.

7

This is a point that was a lso recently

affirmed extra-judicially by Frank Clarke CJ when he contended that ‘judges are not immune

from the human condition’.

8

This utterance may be an indicator of Barry’s timeliness and

that perhaps the Irish jurisdiction is ready to embrace his objective in undertaking this work

which is twofold; to inform the reader’s knowledge of how judges decide cases and to im-

prove justice and how it is done. The author executes this task with great skill as he brings

the reader beyond the doctrinal aspect of the law wi th painstaking research. He provides a

1

St anfo rd Lev ins on , ‘W hat d o La wyer s Kn ow ( An d Wh at Do The y Do w ith The ir Kn ow ledg e?)

Co mm ent s on Schau er an d Mo ore ’ (1 985) 58 So ut hern Cal ifo rnia Law R evie w 441 , 448 .

2

Laura Cahillane, ‘Judicial Diversity in Ireland’ (2016) 6(1) Irish Journal of Legal Studies 1, 13.

3

Vitalius Tu monis, ‘Legal Realism and J udicial Decision-Making’ (2012) 19(4) Jurisprudence 1361, 1362.

4

Benjamin N Cardoz o, The Natur e of the Judicial Process (Yale University Press 1921) 167.

5

Brian Barry, How Judg es Judge: Empirical Insig hts into Judicial Decision -Making (Routledge 2021) 4.

6

From an Irish perspective, the b ody of academic literature centring on constitu tional law adjudication is a

prime example of this.

7

Margaret E Hall (ed), Selected Writing s of Benjamin Nathan Cardozo (Fallon Pub lications 1947) 178.

8

Una Mullally, ‘Ch ief Ju stice Frank Clarke: “J udges are not imm une from the human condition’” The Irish Times

(Dublin, 8 December 2020).