Subtly Selling the System: Where Psychological Influence Tactics Lurk in Judicial Writing

Anne E. Mullins*

 

“The opinion, as an expression of judgment, is an essay in persuasion. The value of the opinion is measured by its ability to induce the audience to accept the judgment.” 

As a nation, we are deeply committed to the rule of law. Particularly with the rise of law and economics, we think of the people served by the judicial system as rational actors. And, while many of us recognize that our courts are inherently political institutions, we still think of our judges persuading us with only solid legal analysis. But we are not always rational actors, and judges do not persuade us with only their analysis. Judges capitalize on psychological tactics that influence us to do what they tell us to do or to conclude that their decisions are, in fact, the correct ones. These are the same tactics that market participants of all stripes, from big businesses to fundraising charities to kids selling lemonade, use to get what they want.

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*Assistant Professor, University of North Dakota School of Law. J.D., University of Chicago School of Law; A.B., Dartmouth College. I would like to extend special thanks to David Bell, Xinmei Zhang and Yongge Dai Professor at the Wharton School of the University of Pennsylvania, for introducing me to psychological influence tactics in business marketing, and to Dr. Robert Cialdini’s exceptional work in the field. I thank Suzanne Rowe, Jen Reynolds, Anne Enquist, Michael Higdon, Lucy Jewel, Michael Sackey, Suparna Malempati, Cindy Archer, Emily Grant, and Tim Kelley for their thoughtful feedback. I also thank the Association of Legal Writing Directors for their Scholars’ Forum and Scholars’ Workshop; both were critical to the development of this article. Finally, I thank Meg Kirschnick, Chris MacMillan, Dawn Jagger, Anna Makowski, and Caitlin Kelly Engle for their outstanding research assistance and feedback.