Judging Judges Judging Cases

I don’t generally pass on pointers to academic articles in the Social Science Research Network database, because there are plenty of others on the web who are doing that. But a recent paper (Guthrie, Chris, Rachlinski , Jeffrey J. and Wistrich, Andrew J., “Blinking on the Bench: How Judges Decide Cases” . Cornell Law Review, Forthcoming Available at SSRN [PDF here]) caught my eye and so I’m mentioning it here.

The authors tested a sample of U.S. trial judges, seeking to find out whether the judges used their intuition (making mistakes) or deliberated (getting things right) when solving problems. Unsurprisingly, perhaps, they found that neither the formalists nor the realists got it right with respect to judicial decision-making, the truth lying somewhere between intuition and deliberation; and they propose a way of helping judges move away from intuition where it leads to error.

I’d probably want to argue with the authors about the ways in which they divide up the world and the ways in which they position their subjects in one or another region, and, too, about the significance of their findings — these are the typical responses of one academic to another. What interested me, and what might catch your attention in the piece, are the the various thinking fallacies that judges, and we, are caught in unless we’re very very careful. (I’ve posted before about these cognitive biases. Not sure I’d class them as intuitions.) There’s useful stuff here for trial lawyers, I’d guess — stuff that they might intuitively know already, but that they’d enjoy learning deliberately perhaps.


  1. Another interesting paper dealing with aspects of the US judicial decision-making process – why US federal court trial judges produce formal, written, opinions when they’re not obliged to – is also on SSRN, is

    Hoffman, David A., Izenman, Alan and Lidicker, Jeffrey, “Docketology, District Courts, and Doctrine” . Washington University Law Review, Vol. 85, 2008

    The SSRN is here

    I suspect it’ll help reading the two papers together, and Canadian lawyers should keep in mind that US federal court trial judges, generally, do not have the obligation to write opinions adequately explaining every decision they make, even if adequate is only two lines.