While we WAIT, here is an interesting read on “How the Judges decide”…

It bodes well for our side as both the “intuitive” and the “deliberative” call for a ruling for DM based on their presentation at MH…

GLTA…

Gil…

"Blinking on the Bench: How Judges Decide Cases"

How do judges decide cases? The authors of a provocative new study provide some disturbing information.

Here is how the authors set out the issue.

We believe that most judges attempt to ― reach their decisions utilizing facts, evidence, and highly constrained legal criteria, while putting aside personal biases, attitudes, emotions, and other individuating factors. Despite their best efforts, however, judges, like everyone else, have two cognitive systems for making judgments — the intuitive and the deliberative — and the intuitive system appears to have a powerful effect on judges' decision making. The intuitive approach might work well in some cases, but it can lead to erroneous and unjust outcomes in others. The justice system should take what steps it can to increase the likelihood that judges will decide cases in a predominately deliberative, rather than a predominately intuitive, way.

The authors decided to test judges' decision-making processes by using the Shane Frederick's Cognitive Reflection Test (CRT), "a three-item test designed to distinguish intuitive from deliberative processing. More precisely, the CRT measures ― cognitive reflection." Cognitive reflection is "the ability or disposition to resist reporting the response that first comes to mind."

Here is the CRT:

(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? _____cents

(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? _____minutes

(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake? _____days

Here is how the authors describe the intuitive (and incorrect) answer and the correct answers:

Each of the three CRT items has a correct answer that is easy to discern upon reflection, yet each also has an intuitive — but incorrect — answer that almost immediately comes to mind. Consider the first question. For many people, the answer that immediately jumps to mind is ten cents. Though intuitive, this answer is wrong, as a bit of reflection shows. If the ball costs ten cents and the bat costs one dollar more, the bat must cost $1.10. Adding those two figures together, the total cost of the bat and ball would be $1.20, not $1.10. Therefore, the correct answer is five cents — the ball costs five cents, the bat costs $1.05, and together they cost $1.10.

For the second question, the answer that immediately jumps to mind is 100 minutes. Though intuitive, this answer is also wrong. If five machines make five widgets in five minutes, then each machine makes one widget in that five-minute time period. Thus, it would take only five minutes for 100 machines to produce 100 widgets, just as 200 machines would make 200 widgets during that same period.

The third question immediately invites an answer of twenty-four days, which is wrong. The correct answer — obvious upon reflection — is forty-seven days. If the patch of lily pads doubles each day and covers the entire lake on the forty-eighth day, it must cover half the lake the day before.

The CRT items are simple in that ― their solution is easily understood when explained, yet reaching the correct answer often requires the suppression of an erroneous answer that springs 'impulsively' to mind. Most people, it turns out, are unable or unwilling to suppress that impulsive response.

The authors administered a test including these three questions to judges at a conference with these results:

Nearly one-third of the judges (77 of 252 judges, or 30.6%) failed to answer a single question correctly;

A similar number (78 out of 252 judges, or 31.0%) answered one question correctly;

Less than one-quarter (60 out of 252 judges, or 23.8%) answered two questions correctly;

Roughly one seventh (37 out of 252 judges, or 14.7%) answered all three questions correctly.
That the judges produced results consistent with those of college students at highly selective universities suggests that the judges performed comparably to other well-educated adults.

The authors summarize their study:

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.

This study, coupled with what we know of flaws in human reasoning, tell us that we need to have mechanisms that help judges overcome predictable weaknesses in their reasoning. Indeed, the law already has a number of them.

The Rules of Evidence are more than a way to make law students miserable as they learn the rule against hearsay evidence. The Rules of Evidence are a tool to train lawyers and judges to examine certain types of information that is prone to lead to flawed reasoning. The evidence can be excluded or the decision maker can receive special instructions in weighing the evidence.

Jury deliberation is another way to counter tendencies to flawed reasoning. Although the public believes that juries make faulty and biased decisions, in fact, tests of juries have tended to show they are reliable.

We should rejoice that democratic processes - as opposed to totalitarian ones - lead to good decision making. That, of course, brings up an issue that is not directly related to the focus of this post. That issue is the McDonald's Coffee Case - in which people who know the facts of that case support the jury's decision - but most people do not know those facts and have come to have a negative view of juries based, in part, on those inaccuracies. You can find a discussion of that case here.

The article is Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases

• judges,
• law,
• decision-making

Posted by shirah at 09:52:33. Filed under: public policy

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Comments

3 comments

[1]
This is a fascinating study. My impression is that common legal wisdom holds that judges get decisions right, based on the facts and the law, more often than juries. Would you say that's erroneous, that juries are more likely to work their past obvious pitfalls toward a more reasoned decision?

Posted by smintheus at Saturday, February 23, 2008 17:14:09

[2]
Actually there was a study done several decades ago - The American Jury by Kalven and Zeisel. Here is a discussion of their book. http://www.ncsconline.org/D...

One of their findings that I found interesting was that judges and juries generally were in agreement on verdicts. One thing that makes this interesting is that the judge had access to all the information, including that which the judge had decided the jury could not see for various reasons having to do with the Rules of Evidence. I imagine that the judge was able to use legal training to overcome the problematic aspects of the evidence.

But in any case, judges and juries at least in the one study we have (and it was a huge huge study) see things alike most of the time.