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.

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.

Explaining legal inconsistency

2021 ◽  
pp. 095162982110611
Author(s):  
JBrandon Duck-Mayr
Keyword(s):  
Decision Making ◽  
Empirical Research ◽  
Policy Making ◽  
Judicial Politics ◽  
Predictor Variables ◽  
Preference Aggregation ◽  
Judicial Decision ◽  
Standard Case ◽  
Judicial Decision Making ◽  
Do So

Judges, scholars, and commentators decry inconsistent areas of judicially created policy. This could hurt courts’ policy making efficacy, so why do judges allow it to happen? I show judicially-created policy can become inconsistent when judges explain rules in more abstract terms than they decide cases. To do so, I expand standard case-space models of judicial decision making to account for relationships between specific facts and broader doctrinal dimensions. This model of judicial decision making as a process of multi-step reasoning reveals that preference aggregation in such a context can lead to inconsistent collegial rules. I also outline a class of preference configurations on collegial courts (i.e., multi-member courts) in which this problem cannot arise. These results have implications for several areas of inquiry in judicial politics such as models of principal-agent relationships in judicial hierarchies and empirical research utilizing case facts as predictor variables.

scholarly journals WHY MUST I CRY? JUSTIFICATION, SACRIFICE, LONELINESS, MADNESS AND LAUGHTER IN POSTAPARTHEID JUDICIAL DECISION-MAKING

2007 ◽  
Author(s):  
Michael Bishop
Keyword(s):  
South Africa ◽  
Decision Making ◽  
South African ◽  
Social Economic ◽  
The Other ◽  
Judicial Decision ◽  
Heavy Load ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
Critical Theories

Peter Tosh’s plaintive – ‘Why must I cry?’ – is normally interpreted to be about a lost lover. It probably is. But I am going to propose a different reading. I am going to pretend that Peter Tosh is a conscientious South African judge with postmodernist and critical legal tendencies. This judge is concerned with the massive responsibility she feels as a judge in post-apartheid South Africa. Not only must she walk the lonely, lonely, lonely road of ordinary judicial office, she must bear the big heavy load of the specific social, economic and political circumstances that place added pressure on her to transform, both society and herself. At the same time, she is confronted with critical theories that seek to impose an even greater burden on her in the form of unanswerable calls to justice and unfulfillable duties to the other. These theories are, on the whole, framed in a way that is both critical of judges and largely pessimistic about the possibility of success. Many of the theories specifically require the judge to mourn her inability to do the impossible. For many reasons then, our hypothetical judge asks: ‘Why must I cry?’ My answer in brief is: She need not cry. She must not cry. I will argue that the best means to address the various responsibilities imposed on judicial officers is through laughter, not tears. I begin by detailing the ‘culture of justification’ that dominates both judicial and academic thinking (I will look specifically at Mureinik, Klare and Botha) and examine exactly what burdens this philosophy imposes on judges. Next I acknowledge that the burdens of justification, onerous as they may be, are not enough. I adopt Van der Walt’s ideal of ‘law as sacrifice’ to argue that all judges have the additional duty to acknowledge the sacrifices that are an inescapable part their profession. I conclude by looking at humour and the law. Humour in judicial decisions has played an often unnoticed role (more in America than South Africa!).

Judicial Decision-Making

2014 ◽  
pp. 663-702 ◽  
Author(s):  
Doron Teichman ◽  
Eyal Zamir
Keyword(s):  
Decision Making ◽  
Hindsight Bias ◽  
Contrast Effects ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Legal Norms ◽  
Story Model ◽  
Behavioral Studies ◽  
Omission Bias

This chapter critically reviews the behavioral literature on judicial decision-making. Among other things, it presents general theories of judicial decision-making, such as the story model and coherence-based reasoning. It also describes the reflection of a series of well-known cognitive phenomena in judicial decision-making, including the compromise and contrast effects, the effect of legally irrelevant information, the hindsight bias, the omission bias, and the role of anchoring in converting qualitative into quantitative judgments. The chapter examines fact-finders’ reluctance to impose liability based on certain types of evidence. It further reviews the contribution of behavioral studies to better understanding judicial prejudice. Special attention is given to judicial application of legal norms to facts and the effect of the choice between rules and standards on the predictability of judgments. Finally, the chapter provides an overview of two fundamental questions in the behavioral analysis of judicial decision-making: group decision-making and judges’ versus laypersons’ decision-making.

The Hindsight Bias and the Law in Hindsight

2014 ◽  
pp. 353-374
Author(s):  
Doron Teichman
Keyword(s):  
Decision Making ◽  
Cognitive Biases ◽  
Hindsight Bias ◽  
Theoretical Studies ◽  
Legal Systems ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Law ◽  
Behavioral Perspective

The hindsight bias is one of the first cognitive biases to be documented by psychologists, and to be studied by legal scholars employing a behavioral perspective. This chapter presents a review of the main findings documenting the prevalence of the hindsight bias in judicial decision-making. Based on this review, it then analyzes the different ways in which legal systems as well as contracting parties deal with the bias, and highlights potential paths for future empirical and theoretical studies.

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).

Context Effects in Judicial Decision Making

2009 ◽  
Author(s):  
Jeffrey J. Rachlinski ◽  
Chris Guthrie ◽  
Andrew J. Wistrich
Keyword(s):  
Decision Making ◽  
Context Effects ◽  
Judicial Decision ◽  
Judicial Decision Making
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