“Out of Bounds”: The Influence of Personal and Institutionalized Bounded Rationality on Judicial Decision Making

Herbert A. Simon would likely have disputed Aristotle’s famous claim that the law is free from passion, or at least, he would have pointed out that legal decision-making is free from rationality. Simon did not argue that the law, or legal actors, were somehow irrational, but that human rational decision making was a fallacy. Simon (1955) said that the “classical” concepts of rationality assumed that the decision maker can attach pay-offs to each alternative, predict what will happen without any unanticipated outcomes, and select the best outcome with certainty. However, decision makers cannot literally make calculations to come to non-mathematical decisions. Hagle (1990) agreed that the theoretical rational decision maker would have access to and examine all available information and alternatives, selecting the one that produced exacted anticipated outcomes (from the cost-benefit analysis) and would consider all possibilities and consequences associated with each possibility before deciding. According to Hagle (1990), an ideal rational decision maker using such an exhaustive and comprehensive model of rational decision-making faces common barriers: control, unintended results, missing or unavailable data, and goals. Decision makers cannot usually control all elements of the problem at hand; cannot predict unforeseen results that may occur for the people the decision affects; cannot have at her disposal all complete data necessary to make an accurate cost-benefit analysis of possible solutions to the given problem; and the decision maker’s goals may not be known or adequately identified. To cope with the constraints of the rational decision-making model, Simon explored the concept of bounded rationality.