Blinking on the Bench: How Judges Decide Cases

Two law professors and a federal magistrate judge take a look at judicial decision-making. Chris Guthrie, Jeffrey Rachlinski, Andrew Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. (forthcoming), available at SSRN: http://ssrn.com/abstract=1026414.

Here's their abstract:

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.

They report some interesting empirical studies. For instance, one study looked at "anchoring" -- the way that a number presented as an outside range can influence te eventual result reached. Judges were given the facts of a personal injury case and asked to come up with an amount for an award (assuming liability). Judges in different groups were told an amount the plaintiff demanded $10 million in settlement or simply that the plaintiff demanded "a significant monetary payment." The awards from the first group averaged much higher than those from the second group. Another part of the study showed anchoring at the low end: some judges were told that the defendant had moved to dismiss the case because the damages were below $75,000, the minimum for jurisdiction. This time, the judges who had been given the low anchor gave significantly lower award than the other judges.

The reference to "blinking" in the article's title comes from the Malcolm Gladwell's bestseller, Blink, "a book about rapid cognition, about the kind of thinking that happens in a blink of an eye."