In a recent paper two legal scholars explore the question, “How do judges judge?” There conclusion may not be surprising to all. They conclude that
“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 authors propose several steps to help judges avoid erroneous intuitions—checklists and more time to deliberate.
The full article: BLINKING ON THE BENCH, Blinking on the Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey Rachlinski, and Andrew J. Wistrich is available from the the ABA. The title appears to be an allusion to Blink by Malcolm Gladwell.
Apparently this talk is now only available to friends of MIT. Sadly most of us are not in this exclusive group. When I find some time I will post my summary of the talk.
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