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« New Web Salvos in Tort War | Main | Lessig for Congress? »

Study: Judges Misled by their Intuition

Two legal scholars and a federal magistrate-judge have conducted an in-depth study of how trial judges decide cases and reached an intriguing conclusion: Their frequent reliance on intuition results in regular mistakes in their decisions. The three -- Chris Guthrie of Vanderbilt University School of Law, Jeffrey J. Rachlinski of Cornell Law School and U.S. Magistrate-Judge Andrew J. Wistrich of the Central District of California -- have just published their findings in an article to be published in the Cornell Law Review, Blinking on the Bench: How Judges Decide Cases.

The authors set out to explore the question, "How do judges judge?" Do they follow the formalist model and mechanically apply the law to the facts? Or do they follow the realist approach, applying hunches and gut feelings to reach conclusions that they then rationalize with deliberative reasoning? To find out, they went straight to the source, administering a "cognitive reflection test" to more than half the circuit court judges in Florida. Based on these results and other information, the authors conclude that trial judges "are predominantly intuitive decision makers, and intuitive judgments are often flawed." They go on to say: [M]illions of litigants each year might be adversely affected by judicial overreliance on intuition."

They call this "blinking on the bench." Drawing on psychological research, the authors propose ways that the judicial system can help judges "override" their intuitive tendencies. These include giving them more time to deliberate on their rulings, encouraging them to engage in the "discipline" of opinion writing, enhancing their training and feedback, and providing them with scripts and checklists. Even as they propose these changes, they acknowledge that "each of these reforms tends to make decision making more costly or time consuming." Given that, my intuition tells me not to hold my breath while awaiting their implementation.

[Hat tip: The Buck Stops Here.]

Posted by Robert J. Ambrogi on February 15, 2008 at 11:52 AM | Permalink | Comments (1)