scholarly journals The Value of Behavioral Economics for EU Judicial Decision-Making

2020 ◽  
Vol 21 (2) ◽  
pp. 240-264
Author(s):  
Christoph K. Winter
Keyword(s):  
Decision Making ◽  
Behavioral Economics ◽  
Hindsight Bias ◽  
Judicial Decision ◽  
Behavioral Economic ◽  
Judicial Decision Making ◽  
Fundamental Freedoms ◽  
Cognitive Illusions ◽  
Proportionality Test ◽  
The Impact

AbstractThis Article analyzes the value of behavioral economics for EU judicial decision-making. The first part introduces the foundations of behavioral economics by focusing on cognitive illusions, prospect theory, and the underlying distinction between different processes of thought. The second part examines the influence of selected biases and heuristics, namely the anchoring effect, availability bias, zero-risk bias, and hindsight bias on diverse legal issues in EU law including, among others, the scope of the fundamental freedoms, the proportionality test as well as the roles of the Advocate General and Reporting Judge. The Article outlines how behavioral economic findings can be taken into account to improve judicial decision-making. Accordingly, the adaptation of judicial training concerning cognitive illusions, the establishment of a de minimis rule regarding the scope of the fundamental freedoms, and the use of economic models when determining the impact of certain measures on fundamental freedoms is suggested. Finally, an “unbiased jury” concentrating exclusively on specific factual issues such as causal connections within the proportionality test is necessary, if the hindsight bias is to be avoided. While it is of great importance to take behavioral economic findings into account, judicial decision-making is unlikely to become flawless based on natural intelligence. Despite bearing fundamental risks, artificial intelligence may provide means to achieve greater fairness, consistency, and legal certainty in the future.

Judicial Decision-Making

2018 ◽  
Author(s):  
Eyal Zamir ◽  
Doron Teichman
Keyword(s):  
Decision Making ◽  
Hindsight Bias ◽  
Moral Judgments ◽  
Contrast Effects ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Inadmissible Evidence ◽  
The Rich ◽  
Omission Bias ◽  
The Impact

This chapter discusses the rich behavioral research on judicial decision-making. It opens with general theories of the cognitive process of judicial decision-making, focusing on the story model and coherence-based reasoning. It examines how various heuristics and biases—such as the compromise and contrast effects, hindsight bias, omission bias, and anchoring—are reflected in judicial decision-making. Special attention is given to the limited ability of fact-finders to disregard inadmissible evidence, the interactions between race and judicial decision-making, the role of non-consequentialist moral judgments in judicial decision-making, and the impact of the choice between rules and standards on the predictability of judgments. Finally, the chapter discusses two fundamental questions in the behavioral analysis of judicial decision-making: group decision-making, and decision-making by judges (as opposed to laypersons).

Mimoprávní vlivy na rozhodování českého Ústavního soudu

2021 ◽  
Author(s):  
Hubert Smekal ◽  
Jaroslav Benák ◽  
Monika Hanych ◽  
Ladislav Vyhnánek ◽  
Štěpán Janků
Keyword(s):  
Decision Making ◽  
Public Opinion ◽  
Strategic Decision ◽  
Strategic Decision Making ◽  
Constitutional Court ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Media ◽  
Book Studies ◽  
The Impact

The book studies other than purely legal factors that influence the Czech Constitutional Court judges in their decision-making. The publication is inspired by foreign models of judicial decision-making and discusses their applicability in the Czech environment. More specifically, it focuses, for example, on the influence of the judge’s personality, collegiality, strategic decision-making or the impact of public opinion and the media. The book is based mainly on interviews with current constitutional judges.

scholarly journals Cognitive Bias Affecting Decision-Making in the Legal Process

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 806-830
Author(s):  
Adebola Olaborede ◽  
Lirieka Meintjes-van der Walt
Keyword(s):  
Decision Making ◽  
South African ◽  
Empirical Research ◽  
Cognitive Bias ◽  
Hindsight Bias ◽  
Judicial Decision ◽  
Legal Process ◽  
Judicial Decision Making ◽  
Egocentric Bias ◽  
Awareness Raising

Several empirical research studies have shown that cognitive bias can unconsciously distort inferences and interpretations made by judges either at the hearing, ruling or sentencing stage of a court trial and this may result in miscarriages of justice. This article examines how cognitive heuristics affects judicial decision-making with seven common manifestations of heuristics such as availability heuristics, confirmation bias, egocentric bias, anchoring, hindsight bias, framing and representativeness. This article contends that the different manifestations of heuristics pose a potentially serious risk to the quality and objectivity of any criminal case, despite the professional legal training and experience of judges and magistrates. Therefore, suggestions on how best to avoid and minimise the effects of cognitive heuristics, especially within South African courts are proffered. These include creating awareness raising, cross-examination and replacement.

Judicial Decision-Making and Deliberations

2021 ◽  
pp. 143-163
Author(s):  
Theodor Meron
Keyword(s):  
Decision Making ◽  
Decision Makers ◽  
Public Confidence ◽  
Judicial Decision ◽  
Criminal Courts ◽  
Judicial Decision Making ◽  
Administration Of Justice ◽  
Diverse Backgrounds ◽  
Court Proceedings ◽  
The Impact

This chapter assesses judicial decision-making and deliberations. The success of international criminal courts depends in no small part on the transparency of proceedings and reasoning of the judgements. Transparency is essential to building public confidence in the fair administration of justice. It also serves as an important safeguard against judicial arbitrariness and helps to ensure not only the fairness of the proceedings but the independence and impartiality of the Bench. This commitment to transparency in court proceedings is not absolute, however. It is limited by other factors, such as the importance of protecting witnesses and victims and the requirement that certain information be kept confidential. The chapter looks at the process of decision-making in the ICTY, ICTR, and the Mechanism. It draws attention to four specific issues: the uniqueness of the tribunals and the impact of their special status on decision-making; the diversity of decision-makers at the tribunals; the diverse backgrounds of the tribunals’ Judges and staff; and the process of decision-making.

Commitment and Cooperation on High Courts

2017 ◽  
Author(s):  
Benjamin Alarie ◽  
Andrew J. Green
Keyword(s):  
Decision Making ◽  
Empirical Studies ◽  
Empirical Work ◽  
The United States ◽  
Empirical Literature ◽  
Judicial Decision ◽  
Supreme Courts ◽  
Judicial Decision Making ◽  
Institutional Differences ◽  
The Impact

Judicial decision-making is ideally impartial. In reality, judges are influenced by many different factors, including institutional context, ideological commitment, fellow justices on a panel, and personal preferences. Empirical literature in this area increasingly analyzes this complex collection of factors in isolation, when a larger sample size of comparative institutional contexts can help assess the impact of the procedures, norms, and rules on key institutional decisions, such as how appeals are decided. This book explains how the answers to the following institutional questions largely determine the influence of political preferences of individual judges and the degree of cooperation among judges at a given point in time. Who decides how judicial appointments are made? How does an appeal reach the court; what processes occur? Who is before the court; how do the characteristics of the litigants and third parties affect judicial decision-making? How does the court decide the appeal; what institutional norms and strategic behaviors do the judges follow in obtaining their preferred outcome? The authors apply these four fundamental institutional questions to empirical work on the supreme courts of the United States, UK, Canada, India, and the High Court of Australia. The ultimate purpose of this book is to promote a deeper understanding of how institutional differences affect judicial decision-making, using empirical studies of supreme courts in countries with similar basic structures but with sufficient differences to enable meaningful comparison.

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