This article reports on an effort to explore the differences between two approaches to intuition and expertise that are often viewed as conflicting: heuristics and biases (HB) and naturalistic decision making (NDM). Starting from the obvious fact that professional intuition is sometimes marvelous and sometimes flawed, the authors attempt to map the boundary conditions that separate true intuitive skill from overconfident and biased impressions. They conclude that evaluating the likely quality of an intuitive judgment requires an assessment of the predictability of the environment in which the judgment is made and of the individual's opportunity to learn the regularities of that environment. Subjective experience is not a reliable indicator of judgment accuracy.

https://fiddlemath.net/stuff/conditions-for-intuitive-expertise.pdf

Conditions for intuitive expertise: A failure to disagree.

Background.As patients become more involved in health care decisions, there may be greater opportunity for decision regret. The authors could not find a validated, reliable tool for measuring regret after health care decisions.Methods.A5- item scale was administered to 4 patient groups making different health care decisions. Convergent validity was deter- mined by examining the scale's correlation with satisfaction measures, decisional conflict, and health outcome measures.Results.The scale showed good internal consistency (Cronbach's = 0.81 to 0.92). It correlated strongly with decision satisfaction (r = -0.40 to -0.60), decisional conflict (r = 0.31 to 0.52), and overall rated quality of life (r = -0.25 to - 0.27). Groups differing on feelings about a decision also differed on rated regret: F(2, 190) = 31.1, P < 0.001. Regret was greater among those who changed their decisions than those who did not, t(175) = 16.11, P < 0.001.Conclusions.The scale is a useful indicator of health care decision regret at ...

Validation of a decision regret scale.

Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.

/pdf/extraneous-factors-in-judicial-decisions-3jqpg4mqch.pdf

Extraneous factors in judicial decisions

How does access to this work benefit you? Let us know! Follow this and additional works at: http://academicworks.cuny.edu/jj_pubs Part of the Courts Commons, Criminal Law Commons, Criminal Procedure Commons, Criminology Commons, Judges Commons, Law and Politics Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Legislation Commons, Politics and Social Change Commons, and the Race and Ethnicity Commons

/pdf/the-growth-of-incarceration-in-the-united-states-exploring-212x90j52g.pdf

The growth of incarceration in the United States: exploring causes and consequences

Behavioral economics increases the explanatory power of economics by providing it with
more realistic psychological foundations. This book consists of representative recent articles in
behavioral economics. This chapter is intended to provide an introduction to the approach and
methods of behavioral economics, and to some of its major findings, applications, and promising
new directions. It also seeks to fill some unavoidable gaps in the chapters’ coverage of topics.

/pdf/behavioral-economics-past-present-future-1pzzs0b3u7.pdf

Behavioral Economics: Past, Present, Future

The quality of the judicial system depends upon the quality of decisions that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public understandably expects judges to avoid systematic errors. This expectation, however, might be unrealistic. Psychologists who study human judgment and choice have learned that people frequently fall prey to cognitive illusions that produce systematic errors in judgment. Even though judges are experienced, well-trained, and highly motivated decision makers, they might be vulnerable to cognitive illusions. We report the results of an empirical study designed to determine whether five common cognitive illusions (anchoring, framing, hindsight bias, inverse fallacy, and egocentric biases) would influence the decision-making processes of a sample of 167 federal magistrate judges. Although the judges in our study appeared somewhat less susceptible to two of these illusions (framing effects and the inverse fallacy) than lay decision makers, we found that each of the five illusions we tested had a significant impact on judicial decision making. Judges, it seems, are human. Like the rest of us, their judgment is affected by cognitive illusions that can produce systematic errors in judgment.

Inside the Judicial Mind

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.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1026414_code219969.pdf?abstractid=1026414&mirid=1&type=2

Blinking on the Bench: How Judges Decide Cases

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results - which are both discouraging and encouraging - raise profound issues for courts and society. We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1374497_code43904.pdf?abstractid=1374497&type=2

Does Unconscious Racial Bias Affect Trial Judges

/pdf/inside-the-judicial-mind-1h93e2ap1a.pdf

Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the Implicit Association Test, have found that most white Americans harbor implicit bias toward black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results--which are both discouraging and encouraging--raise profound issues for courts and society. We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases. INTRODUCTION Justice is not blind. Researchers have found that black defendants fare worse in court than do their white counterparts. In a study of bail-setting in Connecticut, for example, Ian Ayres and Joel Waldfogel found that judges set bail at amounts that were twenty-five percent higher for black defendants than for similarly situated white defendants. (1) In an analysis of judicial decisionmaking under the Sentencing Reform Act of 1984, David Mustard found that federal judges imposed sentences on black Americans that were twelve percent longer than those imposed on comparable white defendants. (2) Finally, research on capital punishment shows that "killers of White victims are more likely to be sentenced to death than are killers of Black victims" and that "Black defendants are more likely than White defendants" to receive the death penalty. (3) Understanding why racial disparities like these and others persist in the criminal justice system is vital. Only if we understand why black defendants fare less well than similarly situated white defendants can we determine how to address this deeply troubling problem. Two potential sources of disparate treatment in court are explicit bias and implicit bias. (4) By explicit bias, we mean the kinds of bias that people knowingly--sometimes openly--embrace. Explicit bias exists and undoubtedly accounts for many of the racial disparities in the criminal justice system, but it is unlikely to be the sole culprit. Researchers have found a marked decline in explicit bias over time, even as disparities in outcomes persist. (5) Implicit bias--by which we mean stereotypical associations so subtle that people who hold them might not even be aware of them--also appears to be an important source of racial disparities in the criminal justice system. (6) Researchers have found that most people, even those who embrace nondiscrimination norms, hold implicit biases that might lead them to treat black Americans in discriminatory ways. (7) If implicit bias is as common among judges as it is among the rest of the population, it might even account for more of the racially disparate outcomes in the criminal justice system than explicit bias. In this Article, we report the results of the first study of implicit racial bias among judges. We set out to explore whether judges hold implicit biases to the same extent the general population and to determine whether those biases correlate with their decisionmaking in court. Our results are both alarming and heartening: (1) Judges hold implicit racial biases. (2) These biases can influence their judgment. (3) Judges can, at least in some instances, compensate for their implicit biases. Our Article proceeds as follows. We begin, in Part I, by introducing the research on implicit bias and its impact on behavior. In Part II, we briefly describe the methods of our study. We provide a much more detailed account in the Appendix. …

/pdf/does-unconscious-racial-bias-affect-trial-judges-466k7qqsp3.pdf

Chris Guthrie

Papers

Inside the Judicial Mind

Blinking on the Bench: How Judges Decide Cases

Does Unconscious Racial Bias Affect Trial Judges

Inside the Judicial Mind

Does Unconscious Racial Bias Affect Trial Judges