do judges really think that way? chris guthrie dean john wade-kent syverud professor of law...
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Do Judges Really Think That Way?
Chris Guthrie
Dean
John Wade-Kent Syverud Professor of Law
Vanderbilt Law School
Project
Collaboration involving: Jeff Rachlinski, Cornell Law School; and Andrew Wistrich, Central District of California
Goal: To explore how trial judges judge
Method: Experimental – mostly “between-group” studies
Data: responses to hypotheticals from thousands of federal
and state trial judges, bankruptcy judges, and ALJs
Judges and Judging
Ordinary courts in U.S. resolve 35 million cases a year 98% by trial courts
Judges (30,000+) are the key actors Judges preside Many more bench trials than jury trials Many more decisions on motion than trials Judges play a role in many settlements
Dominant academic accounts of judging: Formalist Realist
“Pure” Formalist Model
“Pure formalists view the judicial system as if it were a giant syllogism machine with a determinate, externally-mandated legal rule supplying the major premise, and objectively ‘true’ pre-existing facts providing the minor premise. The judge’s job is to act as a highly skilled mechanic….”
- Burt Neuborne (1992)
“Pure” Realist Model
“[T]he judge really decides by feeling, and not by judgment; by ‘hunching’ and not by [reason] . . . [T]he astute judge, having so decided, enlists his every faculty and belabors his laggard mind, not only to justify that intuition to himself, but to make it pass muster . . .”
- Joseph Hutcheson (1929)
The Intuitive-Override Model
Dual Process Model Intuitive & Deliberative
Trial judges rely heavily on intuition but can, and sometimes do, override with deliberation Stimulus Intuitive Response Override?
Evidence: Cognitive Reflection Test Judicial Decision Making studies
“Heuristics & Biases” Deliberately Disregarding
Cognitive Reflection Test
Three items Each has intuitive, but inaccurate, answer Correct answer is easy, if respondent uses
deliberative, rational process Thus, CRT designed to compare “intuitive” and
“deliberative” thought processes
CRT Item #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?
Item #1 Answer
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? Wrong, but intuitive, answer = 10 cents
But if the ball costs 10 cents, this means the bat costs $1.10, and the total cost would equal $1.20, not $1.10 as specified
Correct answer = 5 cents i.e., Ball = 5 cents i.e., Bat = $1.05 Total = $1.10
CRT Item #2
If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?
Item #2 Answer
If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? Wrong, but intuitive, answer = 100 minutes
But if there are 20 times as many machines (i.e., 100), they should produce 20 times as many widgets (i.e., 100) in the same period of time (i.e., 1 per every five minutes)
Correct answer = 5 minutes
CRT Item #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?
Item #3 Answer
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? Wrong, but intuitive, answer = 24 days
But if the lake is half covered in 24 days, and then doubles, it will be fully covered in 25 (rather than 48) days.
Correct answer = 47 days
CRT ResultsAverage Scores
MIT students 2.18
Harvard students 1.43
ALJs 1.33
Florida state judges 1.23
Michigan students 1.13
Web-based participants 1.10
Michigan State students 0.79
Toledo students 0.57
CRT ResultsJudges
Sample size 252
Average score 1.23
%age 0 correct 30.6
%age 1 correct 31.1
%age 2 correct 23.8
%age 3 correct 14.7
CRT Results Judges (cont’d)
If wrong,
Question % right % selecting intuitive
#1 28 97
#2 44 57
#3 50 70
CRT:Basic Findings
Even though the questions are easy, most judges get most of them wrong
The wrong answer most commonly chosen tends to be the intuitive one
Those who get a problem wrong tend to think it is an easier problem than those who get it right
But some people (including 1/7th of the judges) overcome their intuitive responses
Heuristics & Biases
Cognitive shortcuts or intuitive “rules of thumb” Operate quickly and unconsciously Often produce good outcomes, but can lead to
systematic and predictable errors (“cognitive illusions”)
e.g., anchoring, framing, hindsight bias
Anchoring Problem #1 Facts
P is a 31-year-old teacher and father D is a package-delivery company P loses his arm and breaks three ribs in auto accident –
pain, work problems, recreational limitations D concedes liability and economic damages, but
contests pain and suffering damages Unsuccessful settlement conference Experimental group judges only:
Plaintiff’s lawyer demands $10 million to settle Question – What pain and suffering damages will you
award?
Anchoring Problem #1Results
MeanAward
MedianAward
Control $808,000 $700,000
Anchor $2,210,000 $1,000,000
Anchoring Problem #2 Facts
Employment discrimination case P was subjected to racially/ethnically offensive conduct;
complained; and was fired P provides credible evidence of “anxiety, sleeplessness,
and bad dreams” D concedes liability but contests compensatory damages
for “mental anguish” Control Group – P saw a Court TV program where
victim received award Anchor Group – P saw a Court TV program where
victim received $215,000 award Question – What mental anguish damages will you
award?
Framing/Loss Aversion
We tend to perceive numeric options as “gains” or “losses”
Losses are more unattractive than gains are attractive
The same outcome seems much more unfair if it appears to be a loss rather than a gain
Profit and PayKahneman, Knetsch & Thaler (1986)
Facts & Results
A company is making a small profit during a recession and period of high unemployment. “Gain” version – The company increases wages 5% in
a 12% inflation environment “Loss” version – Company decreases wages 7% in a
no-inflation environment Is this fair?
“Gain” version – 78% fair “Loss” version – 38% fair
Landlord-Tenant Case (ALJs)Facts & Results
Landlord files claim against tenant for failure to pay rent “Gain”/Discount – $2100 rent and $50 discount for
tenant if he pays cash (from $2100 to $2050) “Loss”/Surcharge – $2000 rent and $50 surcharge for
tenant if he pays credit card (from $2000 to $2050) Is this fair?
“Gain”/Discount version – 95% fair “Loss”/Surcharge version – 52% fair
Hindsight Bias
People overestimate the predictability of events that have already occurred a.k.a. “20/20 hindsight” or “Monday morning
quarterbacking”
Hindsight Bias/JuriesKamin & Rachlinski (1995)
Subjects receive identical information about the likelihood of a flood causing damage Foresight group (i.e., pre-accident) – Should D take
a precaution? (24% said “yes”) Hindsight group (i.e., post-accident) – Was D
negligent for not taking the precaution? (57% said “yes”)
Hindsight Bias & Judging Problem (ALJs)
Facts & Results
Five kids making trouble in a toy store Guard tracks one African-American kid and thinks he
sees him shoplift Guard arrests the kid, perhaps using racial slurs Two versions:
Innocent version – No shoplifting Guilty version – Shoplifting
Was the arrest racially motivated? Innocent version – 68% yes Guilty version – 29% yes
“Difficulty Disregarding”
Difficult to ignore relevant but inadmissible evidence Many mock jury studies support this
Difficulty Disregarding Problem #1 Anchoring Problem #1 from Above
Pain and suffering award influenced by $10 million demand made during settlement conference Under FRE 408, this is inadmissible
Difficulty Disregarding Problem #2Landsman & Rakos (1994)
Facts
While attempting to burn leaves, P is burned due to “flashback” from gasoline container.
P sues D manufacturer, claiming that the container was defective because it did not have a “flame arrester”
D claims that “flame arrester” would not have prevented injury
Experimental group judges only: P seeks to introduce evidence of a “subsequent remedial
measure” taken by D – a warning and recall letter re: the possibility of fire flashback. The prior judge who heard the motion suppressed the evidence under Rule 407.
Question – Will you rule for P or D?
Difficulty Disregarding Problem #2Landsman & Rakos (1994)
Results
%age ruling for P
Control (28) 0%
Experimental (28) 25%
Difficulty Disregarding Problem #3Facts
Criminal prosecution of date rape at fraternity party; jury trial waived
Only issue is whether victim consented Defendant testified she did, but victim denied it Evidence corroborating lack of consent
(bruising, rapid reporting, emotional distress) Experimental group only – Defendant seeks to
introduce testimony about victim’s sexual promiscuity. Will you admit evidence?
Question – Will you convict?
Difficulty Disregarding Problem #3Results
%age convicting
Control 49%
Experimental (sexual history but excluded)
20%
Judicial Decision Making Problems: Basic Findings
Most judges are influenced by heuristics that induce intuitive responses and are unable to disregard relevant but inadmissible evidence
Litigators?
If you want intuitive thinking, seek rapid decisions; if you want deliberative thinking, seek the opposite
Use anchors To make desired options more appealing, frame Think carefully about managing settlement
negotiations in front of a decision-making judge Try to introduce probative but potentially
inadmissible evidence Consider potential advantages of juries
Reforms?
Accuracy critical, but benefits of enhanced accuracy must be balanced against costs
Time? e.g., Docket reductions e.g., motions in limine versus at trial
Training/feedback? More frequent opinion writing? Divided decision making?
e.g., “managerial” judge vs. “trial” judge Group decision making?
e.g., juries vs. judges; panels vs. individuals