Do Not Ignore the Elephant... Exploring the Role of Intuition and Experience in Judicial Decision-Making

2021 ◽  
Author(s):  
Linda Tvrdíková
Keyword(s):  
Decision Making ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Normative Theory ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Deliberative System ◽  
Experiential System ◽  
Analytical System

If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.

Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making

2018 ◽  
Vol 10 (2) ◽  
pp. 227-234 ◽  
Author(s):  
Andrea L. Miller
Keyword(s):  
Decision Making ◽  
Gender Ideology ◽  
Controlled Experiments ◽  
Judicial Decision ◽  
Trial Court ◽  
Judicial Decision Making ◽  
Legal Decision Making ◽  
Subject Matter Expertise ◽  
Relative Differences

Although the influence of gender ideology on lay decision-making has been established, it is not known to what extent expertise may mitigate gendered biases and improve decision-making quality. In a set of controlled experiments, trial court judges and laypeople evaluated a hypothetical child custody case and a hypothetical employment discrimination case. The role of expertise was tested in two ways: by comparing judges’ and laypeople’s decision-making and by examining relative differences in expertise among judges. Judges were no less influenced by litigant gender and by their own gender ideology than the lay sample. Judges with greater subject-matter expertise were also no less influenced by gender ideology than other judges. In some cases, expertise was associated with greater, not less, bias. The results of this study suggest that expertise does not attenuate gendered biases in legal decision-making.

Traumatic Experiences and Juvenile Amenability: The Role of Trauma in Forensic Evaluations and Judicial Decision Making

2010 ◽  
Vol 40 (5) ◽  
pp. 363-380 ◽  
Author(s):  
Christina L. Riggs Romaine ◽  
Naomi E. Sevin Goldstein ◽  
Elizabeth Hunt ◽  
David DeMatteo
Keyword(s):  
Decision Making ◽  
Traumatic Experiences ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Forensic Evaluations

Law in Judicial Decision-Making

2017 ◽  
Author(s):  
David Klein
Keyword(s):  
Decision Making ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Theoretical Inquiry ◽  
New Strategy

Years of effort by many talented and creative scholars to gauge the influence of law on judicial decision-making have produced payoffs, but the payoffs do not seem commensurate with the work that has gone into producing them. After reviewing some of the most important approaches and findings, this chapter identifies key obstacles to progress and suggests a new strategy for making more headway against them. The strategy begins by recognizing that ultimately the questions driving empirical and theoretical inquiry into law’s influence are often less about law itself than about the propriety of judicial decision-making. The chapter concludes with suggestions for empirical questions to complement more familiar ones about the role of law in judges’ decisions.

scholarly journals A NEW LEGAL SOLUTION ON RECIDIVISM IN SERBIАN CRIMINAL LEGISLATION

2021 ◽  
Vol 25 (3) ◽  
Author(s):  
Ivana Bodrožić ◽  
Đorđe Đorđević
Keyword(s):  
Decision Making ◽  
Criminal Law ◽  
Legal Status ◽  
General Trend ◽  
Criminal Code ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Criminal Legislation ◽  
Persistent Offending

From the adoption of the Criminal Code in 2006 until the latest amendments of 2019, the Serbian criminal legislation treated recidivism as an optional aggravating circumstance, which had its specific legal status in comparison with other mitigating and aggravating circumstances. According to the new legal solution, instead of being optional, recidivism has become a mandatory aggravating circumstance, which together with clearly specified conditions for harsher penalties narrows down the possibility of free judicial decision-making when meting out punishment. The paper answers several questions: whether harsher penalties for recidivists are only the result of continuous tightening of repression at a normative level, whether and to what extent the criminal-law framework has been improved, and whether returning to some solutions, which were not normally applied in court practice, can be marked as approriate to achieve the desired degree of crime prevention. Final critical conculusion is that the new legal solution on recidivism appears regressive, given that the court is strictly bound by the law through oblitatory conditions regarding prior and persistent offending, which is in compliance with the general trend of tightening repression at the normative level and reducing the role of the court to the level of administrative application of the norm.

scholarly journals Klasikinio požiūrio į teisėją kaip teisės aiškintoją ir taikytoją alternatyvos

Teisė ◽  
2009 ◽  
Vol 71 ◽  
pp. 147-162
Author(s):  
Rūta Kazanavičiūtė
Keyword(s):  
Decision Making ◽  
Economic Approach ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Realistic Approach ◽  
The Law

Straipsnyje aptariami realistinis ir socioekonominis požiūris į teisėjo vaidmenį santykyje su teise, žvel­giant iš teisės atradimo / kūrimo perspektyvos. Šie požiūriai dar gali būti vadinami laisvo teisėjų sprendi­mų priėmimo ir racionalaus teisėjų sprendimų priėmimo modeliais. Nagrinėjami svarbiausi šių požiūrių bruožai, paskirų teisės mokslininkų pozicijos. The article deals with two groups of possible approaches to the role of the judge in interpreting and ap­plying the law. One of the analyzed approaches is so-called the realistic approach or the model of free judicial decision-making. The second approach is the so-called socio-economic approach or the model of rational judicial decision-making. The main features, examples and problems of these approaches are discussed in this article.

Precedents: Lawmaking Through International Adjudication

2011 ◽  
Vol 12 (5) ◽  
pp. 1005-1032 ◽  
Author(s):  
Marc Jacob
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Progressive Development ◽  
Judicial Decisions ◽  
Judicial Lawmaking ◽  
International Adjudication ◽  
Restraining Force

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.

scholarly journals Nudge the judge? Theorizing the interaction between heuristics, sentencing guidelines and sentence clustering

2018 ◽  
Vol 20 (4) ◽  
pp. 399-415 ◽  
Author(s):  
Ian D. Marder ◽  
Jose Pina-Sánchez
Keyword(s):  
Decision Making ◽  
Research Evidence ◽  
Significant Proportion ◽  
Sentencing Guidelines ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Decision Sciences ◽  
Sentencing Decisions ◽  
Sentence Clustering

Although it has long been acknowledged that heuristics influence judicial decision making, researchers have yet to explore how sentencing guidelines might interact with heuristics to shape sentencing decisions. This article contributes to addressing this gap in the literature in three ways: first, by considering how heuristics might help produce the phenomenon of sentence clustering, in which a significant proportion of sentences are concentrated around a small number of outcomes; second, by reflecting on the role of sentencing guidelines as a feature of the environment within which sentencing decisions are made; and third, by analysing the guidelines from Minnesota and from England and Wales, theorizing how their content might interact with heuristics to make clustering more or less likely. Ultimately, we argue that sentencing guidelines likely affect the role played by heuristics in shaping sentencing decisions and, consequently, that their design should be informed by research evidence from the decision sciences.

Sign in / Sign up

Export Citation Format

Share Document