Law Commons^™

Decision Making And The Law: Truth Barriers, Jonathan J. Koehler, John B. Meixner Jr.

Scholarly Works

Reaching an accurate outcome is a central goal of the American trial. But structural features of the legal system, in combination with the cognitive shortcomings of legal actors, hinder the search for truth. Regarding the legal system, various rules and policies restrict decision makers’ access to evidence, violate the laws of probability, and limit the evidentiary concerns that may be considered on appeal. Regarding legal actors, informational deficits (particularly regarding scientific and statistical evidence) and cognitive biases of police investigators, witnesses (lay and expert), attorneys, judges, and jurors pose serious obstacles. We conclude by suggesting that research in judgment and …

A Revised View Of The Judicial Hunch, Linda L. Berger

Scholarly Works

Judicial intuition is misunderstood. Labeled as cognitive bias, it is held responsible for stereotypes of character and credibility. Framed as mental shortcut, it is blamed for overconfident and mistaken predictions. Depicted as flashes of insight, it takes credit for unearned wisdom. The true value of judicial intuition falls somewhere in between. When judges are making judgments about people (he looks trustworthy) or the future (she will be the better parent), the critics are correct: intuition based on past experience may close minds. Once a judge recognizes a familiar pattern in a few details, she may fail to see the whole …

Judges As Rulemakers, Emily Sherwin

Cornell Law Faculty Publications

In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court's focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules.

Schauer's observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process …

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

The institutional legitmacy of the judiciary depends on the quality of the judgments that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public expects judges to avoid making systematic errors that favor particular parties or writing opinions that embed these mistakes into the substantive law. Psychological research on human judgment, however, suggests that this expectation might be unrealistic.