Thursday, February 07, 2008

New Paper on Judicial Bias

Two of the top scholars of law and psychology and a federal magistrate judge have written a paper on various ways in which judges make bad decisions, and ways to overcome those cognitive biases. It's a fascinating read. They did experiments in which they asked real federal judges to rule on hypothetical cases, and have found evidence of anchoring bias, the representativeness heuristic, and hindsight bias. Of course, this is all treading in the well-worn paths of Kahneman and Tversky, but it's very useful to have experimental confirmation of how these cognitive biases affect judicial decisionmaking.

Here's the abstract:
Blinking on the Bench: How Judges Decide Cases

Vanderbilt University - School of Law
Cornell Law School
Cornell Law Review, Forthcoming
Vanderbilt Public Law Research Paper No. 07-25
Vanderbilt Law and Economics Research Paper No. 07-32

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes.
And here's an interesting quote:
In another study, we tested whether a motion to dismiss would also affect judges‘ damage awards. We presented participating judges with a similar fact pattern and asked judges in the control group, "[H]ow much would you award the plaintiff in compensatory damages?" We gave the judges in the anchor group the same background information, but also told them that "[t]he defendant has moved for dismissal of the case, arguing that it does not meet the jurisdictional minimum for a diversity case of $75,000." We asked these judges to rule on the motion, and then asked them, "If you deny the motion, how much would you award the plaintiff in compensatory damages?" Because the plaintiff clearly had incurred damages greater than $75,000, we viewed the motion as meritless, as did all but two of the judges. Nonetheless, the $75,000 jurisdictional minimum served as an anchor and resulted in lower damage awards from those judges exposed to it. The judges who had not ruled on the motion awarded the plaintiff an average of $1,249,000 (and a median of $1 million), while those judges who ruled on the motion to dismiss awarded the plaintiff an average of $882,000 (and a median of $882,000). Thus, the $75,000 jurisdictional minimum anchored the judges‘ assessments, as they awarded roughly $350,000 (or nearly 30%) less on average.
This would clearly affect lawyers' incentives to file meritless motions to dismiss. (Note: There are other studies showing the effect of anchoring bias in judicial decisionmaking. See here and here.)


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