For a very long time academics tended to look at judicial decision making with a view that judges were exceptional human beings: rational scholars who apply legal principles to facts diligently and without bias.
Luckily, this ‘idealised’ image of the judiciary has fallen out of favour, and we are seeing the development of more ‘realist’ and cognitive-based scholarship amongst jurists.
Here are a few recent papers which apply insights from cognitive science and technology to judicial decisions:
- Professors Teichman and Zamir from the Hebrew University of Jerusalem provide a broad overview of the behavioural literature applying to judicial decision making in their article included in the upcoming Oxford Handbook of Behavioural Economics and the Law. They explore general theories of judicial decision making as well as the effect of cognitive biases on legal judgments.
- Professor Negowetti from Valparaiso University Law School, in her article hosted at SSRN, explores how an increased emphasis on ‘judicial empathy’ — the cognitive capacity to imagine the perspective of another person — may be a tool to mitigate the inevitable implicit biases each judge brings to the bench.
- Over at Social Neuroscience, a paper published by Professors Capestany and Harris look to explore the effect of disgust and biological descriptions on legal decision-making using functional magnetic resonance imaging (fMRI) to map brain responses. The study expands on previous research which indicates that crimes involving ‘disgusting’ details tend to get harsher punishments by judges. The neuroimaging study found that brain regions active during logical reasoning are less active if crimes involve disgust and biological descriptions.
- A light-hearted paper by John Campbell in the Brooklyn Law Review details ‘Why Cognitive Science Proves The Emperors Have No Robes’ – in other words, why studies in cognitive dissonance show that judge’s tend to skew their rationalisations to bring about desired outcomes.
- Finally, a paper by various authors in the journal Court Review explores how implicit biases, in particular racial biases, affect judicial decisions and what can be done to mitigate this phenomena.