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Judging the Judiciary by the Numbers: Empirical Research on Judges

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Abstract

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extralegal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges' decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably toward litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.

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... Partindo frequentemente do marco teórico das "teorias do duplo processo" (Evans & Stanovich, 2013;Kahneman, 2012), que enfatizam o caráter automático e inconsciente da maioria das decisões que as pessoas tomam, estudos em Economia Comportamental e Psicologia Social recentes aplicam experimentos psicológicos a questões do contexto forense. Revisões sistemáticas recentes mostram que esse campo de pesquisa avançou a passos largos nos últimos anos (para revisões, vide Harris & Sen, 2019;Moraes & Tabak, 2018;Rachlinski & Wistrich, 2017;Braman, 2017;Nadler & Mueller, 2017;Teichman & Zamir, 2014). Além disso, como se verá adiante, os primeiros estudos brasileiros de Psicologia da decisão judicial baseados nessas metodologias começam a surgir, encarando desafios que já vinham sendo discutidos pela literatura norte-americana. ...
... Para tanto, iniciaremos expondo algumas questões metodológicas acerca desse gênero de pesquisa. Em seguida, faremos uma revisão de estudos empíricos emblemáticos, sem a pretensão de uma revisão exaustiva (para esse fim, remetemos a Harris & Sen, 2019;Rachlinski & Wistrich, 2017;Braman, 2017;Nadler & Mueller, 2017;Teichman & Zamir, 2014). Finalmente, discutiremos alguns desafios de pesquisadores que se propõem a pesquisar e a teorizar sobre esse campo. ...
... Vale destacar que as variáveis costumeiramente elencadas como extrajurídicas ou extradogmáticas pela Psicologia da decisão judicial são desde as preferências político--ideológicas, passando por influências de identidade pessoal do magistrado -raça, gênero, religião -até os efeitos de vieses cognitivos propriamente ditos, derivados do uso de heurísticas ou atalhos cognitivos para a solução de casos complexos (Harris & Sen, 2019;Rachlinski & Wistrich, 2017;Braman, 2017;Almeida & Cestari, 2016). Até o momento, todavia, não há um único modelo ou rol exaustivo dessas influências que auxilie a delimitar o campo, ou consenso em relação à terminologia para caracterizá-las. ...
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Estratégias de pesquisa consagradas nas áreas de Psicologia Experimental e Economia Comportamental vêm sendo empregados nos últimos vinte anos para investigar se variáveis extrajurídicas influenciam no processo de tomada de decisão judicial. Esses estudos mostram que questões pessoais, constrangimentos de tempo e de volume de trabalho, bem como vieses cognitivos e estereótipos inconscientes podem interferir no resultado de casos submetidos a magistrados, o que pode ser problemático à luz dos ideais normativos de justiça. Contudo, as pesquisas empíricas em Julgamento e Tomada de Decisão aplicadas a contextos judiciais ainda são pouco conhecidas pela comunidade jurídica brasileira. Nesta revisão, apresentamos um balanço das metodologias empregadas em trabalhos recentes, bem como discutimos suas limitações e desafios. Com esse levantamento crítico, busca-se estimular o emprego dessas estratégias de pesquisa na realidade institucional do Poder Judiciário brasileiro.
... Sentencing is ripe for the influence of heuristics as judges work under both time and information constraints. They do not have a generous amount of time to devote to any given case, they do not have access to all of the information about the defendant that could prove useful, and, like all of us, they do not have the cognitive ability to consider in an efficient manner the competing case complexities related to the offender, victim, circumstances of the crime, motivations, backgrounds, likely effects of interventions, and so forth (Dhami, 2013;Downs, 1967;Marder & Pina-Sánchez, 2018;Rachlinski & Wistrich, 2017). ...
... As Rachlinski and Wistrich (2017) review, studies find judges are strongly influenced by heuristics ranging from confirmation bias, numerical anchoring, race and gender influences, aversion to reversal, and election and retention pressures. A number of sentencing scholars have integrated these and similar heuristics into sentencing theory (see, e.g., Albonetti, 1991;Steffensmeier, Ulmer, & Kramer, 1998;Ulmer & Johnson, 2004). ...
... A number of sentencing scholars have integrated these and similar heuristics into sentencing theory (see, e.g., Albonetti, 1991;Steffensmeier, Ulmer, & Kramer, 1998;Ulmer & Johnson, 2004). Rachlinski and Wistrich (2017) stress that judges are no more susceptible to heuristics and external influences than any other decision-makers, but the greater point is that donning the black robe does not make them immune from these influences; judges, too, are intuitive thinkers. ...
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This article focuses on two aspects of actuarial risk at sentencing, the accuracy of the instrument and the outcome it predicts. For theoretical reasons rooted in the cognitive decision‐making and sentencing literature, there is a danger that judges and other practitioners might come to overly rely on a “high risk” label or designation without appreciating the accuracy of the prediction or the actual outcome being predicted. Using sentencing and recidivism data from Pennsylvania (n = 10,000), two simple risk instruments are constructed to illustrate the critical importance of understanding accuracy and outcome before relying on the risk tool information.
... The formalistic legal model of judicial decisionmaking posits that judges make decisions based on the applicable law (see Cross 2003). Yet decades of empirical research across various areas of law show that judicial decisions are often better predicted by personal attributes of judges such as their race, gender, ideology, and length of tenure (see e.g., Epstein et al. 2013;Rachlinski and Wistrich 2017;Harris and Sen 2019), and contextual factors such as the legal, political, and institutional environment in which the judges are making their decisions (see, e.g., George and Epstein 1992;Brace and Hall 1997;Engel and Weinshall 2020). This approach to studying judicial decisionmaking has been influential in shaping the more nascent body of research on judicial decisionmaking in immigration courts, which has been motivated by concerns over large disparities in grant/denial rates across IJs and immigration courts (see, e.g., Hausman 2016;Ryo 2016;Kim and Semet 2020). ...
... Marks 2011: 1787). Research suggests that the pressure of unmanageable caseloads may induce judges to rely more heavily on instincts, heuristics, and stereotypes rather than reasoned legal analysis and the facts of each case (see Marouf 2011;Gupta 2016;Rachlinski and Wistrich 2017). Under these circumstances, defense counsel's substantive and procedural expertise-or perhaps even just their mere presence in the courtroom that might provide a positive signal that bolsters the legitimacy of the case at hand-may operate as an important check against the activation of cognitive shortcuts and implicit biases among IJs. ...
Article
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Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens’ access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.
... However, this viewpoint seems at odds with the goal of equality before the law, which aims to eliminate individual variations arising from judges' personal characteristics and expects them to impartially apply predictable and replicable rules to lawsuits. Nevertheless, a plethora of empirical studies on how judges actually decide cases seems to support the observation that judges draw on beliefs and convictions lying so far below the surface of their characters that they are often unacknowledged (Rachlinski & Wistrich, 2017;Harris & Sen, 2019). Among those characteristics, ideology seems to have a strong link with judicial decision making at the highest level of courts, where politics often lie at the heart of a case (Tate, 1981;Ruger et al., 2004). ...
... Having insufficient information about an abusive relationship would hinder a judge's ability to make decisions that best protect the plaintiff from further abuse (Rachlinski & Wistrich, 2017). ...
Thesis
After women began entering the judiciary in appreciable numbers, scholars worldwide started asking whether their gender would influence their decision-making processes. Although empirical findings are mixed, the research literature reveals that judges’ gender is a predictive factor in gender-related cases—especially those involving employment discrimination, sexual harassment, and reproductive rights. These findings not only advance feminists’ aspirations that female judges can translate symbolic representation into substantive representation of women, but contribute to the long-standing observations about how judges of different backgrounds actually decide cases. This PhD dissertation follows this research tradition and examines the effect of gender in the process of judging within the context of Chinese criminal justice system. Chapters two and three, which used quantitative research methods, examine whether female judges decide cases differently from their male colleagues, and whether the presence of a female judge on a three-member panel causes male judges to vote in favour of plaintiffs in rape cases. In chapter two, I discuss my analysis of 11,006 court judgments from 2016 to 2018 across 11 crime types in Shanghai, Beijing, and Guangzhou. The results revealed negligible differences between the sorts of decisions made by male and female district court judges. Nevertheless, the similarities in the decision to incarcerate can be explained by a harmonious ‘Iron Triangle’ relationship among the police, the procuratorate, and the court. The Sentencing Guidelines and the Adjudication Committees of the courts are mechanisms that align judicial behaviours in the same direction. The initial findings in chapter three, based on 6,100 judgements of rape cases from 2010 to 2018 in Shanghai, Beijing, and Guangzhou, also suggested that there is no ‘panel effect’. However, when certain stimuli, such as the social network relationship between victims and offenders, are introduced, panels with different combinations of male and female judges exhibit different sentencing preferences: When a female judge decided the outcome of a case together with two male judges, the panel often issued a shorter sentence length, compared to the sentence length issued by an all-female panel. Chapters four and five, which used qualitative research methods, uncover the behavioural differences at work between male and female judges. In chapter four, it is shown that female judges are accustomed to employ mediation as a preferred dispute resolution method when facilitating reconciliation between two parties and are more likely to seek civil compensation for victims. This study reveals that in the Chinese criminal justice system, behavioural differences between male and female judges exist in the process, as well as in the outcomes of judgments. Chapter five explores male and female judges’ attitudes in criminal cases related to domestic violence. I found that senior male judges tended to minimise or excuse male offenders’ assaults on their female partners in domestic violence cases, arguably because those male offenders were brought up in a masculine culture at an early age, or because they often experience work and family pressures at the same time, and those are feelings that some junior male judges can relate to. Female judges, on the other hand, tended to blame female victims for the improper behaviours that they engaged in with their husbands, or for failing to cut ties with their husbands quickly and resolutely. These negative attitudes from female judges towards female victims demonstrate the impossibility that the latter could fit the image of ‘ideal victims’. This study demonstrates that both male and female judges, regardless of age differences, possess unconscious biases and prejudices during criminal trials for domestic violence cases. The findings in this PhD dissertation compel us to reflect on the benefits and drawbacks of pursuing ‘gender differences in judging’ put forward by feminist legal scholars.
... individuals-so empirical research tends to focus on judicial biographies (e.g., Irons 1999;Dalin 2017), judicial behavior and strategies (e.g., Murphy 1964;Epstein & Knight 1998;Rachlinski & Wistrich 2017), as well as attitudes (Schubert 1965;Segal & Spaeth 1993, 2002www.empiricalscotus.com) and opinion language (Feldman 2016(Feldman , 2017. ...
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Various reasons explain why Europe lags behind the United States in empirical legal studies. One of them is a scarcity of available data on judicial decision making, even at the highest levels of adjudication. By institutional design, civil‐law judges have lower personal profiles than their common‐law counterparts. Hence very few empirical data are available on how courts are composed and how that composition changes over time. The present project remedies that by easing access to such data and lowering the threshold for empirical studies on judicial behavior. This paper introduces the German Federal Courts Dataset (GFCD) as a resource for empirical legal scholars, with the objective of inspiring more European lawyers to engage with empirical aspects of civil‐law adjudication. To that end, several thousand pages of German court documentation were digitized, transcribed into machine‐readable tables (ready to be imported into statistics software), and published online (www.richter-im-internet.de). To simultaneously explore innovative ways of sharing public‐domain datasets, the data were modeled as linked open data and imported into the Wikidata repository for use in any computational application.
... Judicial judgments are rich in data, which could be used to analyze the operations of the legal system. The authors of [8,19] used empirical methods to understand and describe judicial decision-making. Other researchers extract information to empower legal decision-makers and legal practitioners [11,16,17,26]. ...
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Artificial Intelligence techniques are already popular and important in the legal domain. We extract legal indicators from judicial judgment to decrease the asymmetry of information of the legal system and the access-to-justice gap. We use NLP methods to extract interesting entities/data from judgments to construct networks of lawyers and judgments. We propose metrics to rank lawyers based on their experience, wins/loss ratio and their importance in the network of lawyers. We also perform community detection in the network of judgments and propose metrics to represent the difficulty of cases capitalising on communities features.
... Judges should know the law better than other criminal justice personnel and apply it with independence and impartiality, without influence from the executive. However, evidence from a range of studies suggests that several extra-legal factors influence judicial decision-making; that judges are influenced by their own backgrounds as well as the backgrounds of those they are sentencing; that they sometimes rely on intuition; and that they are not always disinterested (Rachlinksi and Wistrich 2017). ...
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India and Bangladesh share a common history, and each has developed somewhat similarly since partition. However, while both countries now have relatively low murder rates, India has seen a decline in the rate of executions, while Bangladesh continues to impose death sentences and carry out executions at a higher rate. There have been challenges to the death penalty in India, restricting its use to exceptional cases. The same has not occurred in Bangladesh. Yet in both countries, systemic flaws in the criminal process are evident. This article draws on two original empirical research projects that explored judges’ opinions on the retention and administration of capital punishment in India and Bangladesh. The data expose justice systems marred by corruption, incompetence, abuses of due process, and arbitrary and inconsistent treatment of defendants from arrest through to conviction and sentencing. It shows that those with the power to sentence to death have little faith in the integrity of the criminal process. Yet, a startling paradox emerges from these studies; despite personal knowledge of its flaws, judges have trust in the death penalty to deter crime and to realise other sentencing aims and feel retention benefits society. This is explained by reference to utilitarian values. Not only did our judges express strongly utilitarian justifications for sentencing people to death, in terms of their erroneous belief in its deterrent effect, but some also articulated utilitarian justifications for misconduct in pre-trial processes, suggesting that it was necessary to break the rules to secure convictions when the system was dysfunctional and ineffective.
... Judges recognize that they do not possess the expertise, experience, or time to fully grasp the issue at hand. To cope with the complexity and uncertainty of the adjudicative environment, judges resort to mental shortcuts (Rachlinski and Wistrich, 2017) such as numerical heuristics. Experimental evidence in psychology indicates that when people have a high cognitive load, their judgment tends to rely less on relevant background knowledge and rely more on numerical anchoring and priming (Blankenship et al., 2008). ...
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Like courts in democratic regimes, courts under authoritarianism play an important role in the regulation of complex economies. In particular, scholars suggest that authoritarian judiciaries are commonly encouraged to provide independent adjudication in the context of economic disputes between firms. Yet because regime insiders are often connected to firms, judges have strong incentives to consider the political implications of their decisions even in areas of the law where they are allegedly more independent. In this paper, I propose a new theory about the role of corporations' political background in commercial lawsuits. Using a dataset on the litigation outcomes of firms in China, I find that the composition of a firm's board membership is a significant predictor of its lawsuit outcomes. A higher percentage of corporate board members with political connections leads to a higher probability of lawsuit success. The results point to the limitations of the selective judicial independence theory.
... These results suggest that, as previously noted (2, 13,[16][17][18][19][20], judicial decisions are not free from the effects of irrelevant factors. The mere fact that a judge has already adjudicated an asylum case earlier in the day increases the likelihood that the judge will grant asylum for another independent case. ...
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Many legal decisions, such as whether to set bail or release on parole, are made as part of a sequence of similar but independent decisions. Does the serial position of a case within a sequence influence the decision? Previous research in non-legal domains mostly suggests that cases appearing later in the sequence are likely to be judged more favorably than cases appearing early in the sequence. To check for the effect of serial position on legal decisions, we take a dual approach. First, we analyzed a real-world dataset of refugee asylum court cases over a period of 33 years (N = 386,109). The results show that the higher the serial position of an asylum request in a given day, the more likely it is to be granted, in line with sequential decisions research in other domains. To complement these findings, we ran three controlled experiments (Ntotal = 1,872) in which laypeople faced sequences of legal cases and were asked to make hypothetical choices. The results of all three experiments show the same pattern: decisions become more favorable later in the sequence. Our dual analysis of real-world observational data and carefully designed controlled experiments thus suggests that, from the point of view of the affected individual, it is best to be last.
... I think it opportune, however, to preliminarily analyze the problem of bias in the judicial and forensic fields Bona 2010;Catellani 1992;Danziger et al. 2011;Dhami 1982;Pogliani 1989;Rachlinski 2000a;Rachlinski and Wistrich 2017;Forza et al. 2017;Callegari 2017). Jerome Frank (1949, pp. ...
Chapter
With the demise of nineteenth-century behavioral mechanicism came the need to chart a new course in the effort to work toward a modern theory of behavior, and so also of law-oriented behavior, and it was the whole set of mentalist and behaviorist conceptions that pointed the way forward. Ever since the Humean intuition that the passions dominate over rationality and propel the will, the idea emerged that pure subjectivity could explain much more than just its own capture of reason, but this idea couldn’t be fully developed until the analysis of mental functions found at its disposal the full arsenal of the contemporary neurosciences (Oliverio 2012) and cognitive science (Williams 2001). Neuroscience and the cognitive sciences (Anolli and Mantovani 2012, p. 84) changed the paradigm in the social sciences, too, because they showed how it was possible to bridge the gap between biology and culture, matter and mind (Pinker 2002, pp. 34, 51).
... It is therefore unsurprising that dominant social theories, which explain judicial work in terms of utility maximization, fail to account for what we deem the most notable intellectual quality of judges' work: their aptitude in finding consensus definitions of questions. from heuristics and cognitive biases, rather than intellectual or institutional features of law (see Kahneman 2011;Rachlinski and Wistrich 2017). ...
Article
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The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect the development of law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent.
... A factor as immaterial as the positioning of a legal case in a judge's docket should have no bearing on the outcomes of a case, but as we show here, it unfortunately does. These findings add to a growing body of literature suggesting that legal decisions, even by professional judges, are not free from effects of irrelevant factors (Abrams et al., 2012;Anwar et al., 2012;Arnold et al., 2018;Chen et al., 2016;Danziger et al., 2011;Englich et al., 2006;Eren & Mocan, 2018;Guthrie et al., 2000;Leibovitch, 2016a;Rachlinski et al., 2008;Rachlinski & Wistrich, 2017;Shayo & Zussman, 2011). Our findings in this domain stand in stark contrast with prominent findings showing increased harshness as a function of serial position of Israeli parole decisions (Danziger et al., 2011). ...
Preprint
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Experts and workers in many domains make multiple similar but independent decisions in sequence. Previous research has shown that the serial position of the case in the sequence, an irrelevant factor, often influences the decision. Yet, the conditions under which serial position effects emerge remain unclear. Explanations for these effects tend to focus on the role of decision makers’ fatigue, but these effects emerge also when fatigue is unlikely. Here, we highlight the importance of considering decision makers’ motivation to produce consistent sets of decisions. We focus on the legal domain in which many high-stakes decisions are made in sequence. We analyze two field datasets: 386,109 US immigration judges’ decisions on asylum requests and 20,796 jury decisions in 18th century London criminal court. We distinguish between five mechanisms that can drive serial position effects and examine their predictions for these settings. We find that consistent with motivation-based explanations of serial position effects, but inconsistent with fatigue-based explanations, in both settings decisions become more lenient as a function of serial position, an effect that persists over breaks and contrasts previous findings concerning sequential parole hearings. We further find the leniency effect is stronger among more experienced decision makers. To complement the analysis, we run controlled experiments with laypeople and find similar results. Theoretically, we suggest that decisions may become more favorable towards the side that is more likely to put a decision under scrutiny. In many contexts, including legal decisions, this process implies that it is often “best to be last”.
... Our results suggest that being a member of a professional group does not reduce the influence of potential heuristic cues, like complainant emotional demeanor, on credibility judgments of rape complainants. This is consistent with research which suggests that professional expertise or training does not prevent criminal justice professionals from being influenced by motivated cognition or heuristic cues in their judgments (e.g., Ask, Granhag, & Rebelius, 2011;Miller, 2018;Rachlinski & Wistrich, 2017). ...
Article
Rape cases have a disproportionately high attrition rate and low conviction rate compared with other criminal offenses. Evaluations of a rape complainant's credibility often determine whether a case progresses through the criminal justice system. Even though emotional demeanor is not related to witness honesty or accuracy, distressed rape complainants are perceived to be more credible than complainants who present with controlled affect. To understand the extent and robustness of the influence of emotional demeanor on credibility judgments of female adult rape complainants, we conducted a systematic review, meta-analysis, and p-curve analysis of the experimental simulated decision-making literature on the influence of complainant emotional demeanor on complainant credibility. The meta-analysis included 20 studies with participants who were criminal justice professionals (e.g., police officers and judges), community members, and mock jurors (N = 3128). Results suggest that distressed demeanor significantly increased perceptions of complainant credibility, with a small to moderate effect size estimate. Importantly, the results of p-curve analysis suggest that reporting bias is not a likely explanation for the effect of emotional demeanor on rape complainant credibility. Sample type (whether perceivers were criminal justice professionals or prospective jurors) and stimulus modality (whether perceivers read about or watched the complainant recount the alleged rape) were not found to moderate the effect size estimate. These results suggest that effective methods of reducing reliance on emotional demeanor to make credibility judgments about rape complainants should be investigated to make credibility assessments fairer and more accurate. (PsycINFO Database Record (c) 2019 APA, all rights reserved).
... Many studies use the Supreme Court Database, which contains manually collected and expertly-coded data on the US Supreme Court's behaviour of the last two hundred years (Katz et al. 2017). A large amount of these studies analyse the relationship between gender or political background of judges and their decision-making (see Epstein et al. 2013;Rachlinski and Wistrich 2017;Frankenreiter 2018). ...
Article
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When courts started publishing judgements, big data analysis (i.e. large-scale statistical analysis of case law and machine learning) within the legal domain became possible. By taking data from the European Court of Human Rights as an example, we investigate how natural language processing tools can be used to analyse texts of the court proceedings in order to automatically predict (future) judicial decisions. With an average accuracy of 75% in predicting the violation of 9 articles of the European Convention on Human Rights our (relatively simple) approach highlights the potential of machine learning approaches in the legal domain. We show, however , that predicting decisions for future cases based on the cases from the past negatively impacts performance (average accuracy range from 58 to 68%). Furthermore, we demonstrate that we can achieve a relatively high classification performance (average accuracy of 65%) when predicting outcomes based only on the surnames of the judges that try the case. https://rdcu.be/bHUA3
... A large literature exists on what make judges decide as they do (Baum, 1997;Hausegger et al., 2013;Markesinis, 1997;Maveety, 2003;Zorn and Bowrie, 2010). The proposed motivations include economic and socio-political factors as well as an individual judge's background, beliefs, ideologies, and allegiances; these have been found to be equally important in determining the ways in which a case is handled by judges (Ashenfelter, Eisenberg and Schwab, 1995;Nagel, 1962;Rachlinsku and Wistrich, 2017;Grossman, 1967). ...
Article
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Judicial interpretation of statute law in common-law countries means that the judiciary may mediate the social impact of legislation. In the case of the protection of labour rights in India, this article examines the extent to which the judiciary acts independently from the government of the day, and the extent to which court judgements are swayed by prevailing administrative policies. Specifically, to what extent have economic liberalisation and labour market flexibility policies influenced court decisions in cases challenging worker dismissals? Drawing on a review of 270 judgements delivered by the Supreme Court of India and the state High Courts between 1950 and 2010, a relationship is traced between a shifting pattern of Courts’ judgements and policy changes initiated by the Indian government in response to economic conditions. The objective of the study is to understand the effect of a structural shift in the economy on the cases of consented and contested decrees related to dismissal of workers under the relevant laws in India. It is found that the specific statute has not greatly changed through legal reforms, but the judiciary’s interpretations of it have changed over six decades based on dominant socio-political currents, in tune with government economic policies. This raises profound questions about judicial independence in defence of labour rights. JEL Code: K31
... K E Y W O R D S alternative sanction, judicial process, sentencing, sentencing guidelines 1 | INTRODUCTION For several decades, much of the psycholegal research on judicial decision-making concerned factors that influence the way in which judges sentence individuals convicted of crimes (Blumstein, Cohen, Martin, & Tonry, 1983;Gottsfredson, Wilkins, & Hoffman, 1978;Walker, 1969). In recent years, much of the psycholegal literature on factors that influence the ways in which judges sentence these individuals has focused on how judges assess the risk that they will recidivate (Frase, 2014;Harcourt, 2015;Rachlinski & Wistrich, 2017). This development in sentencing scholarship follows recent developments in sentencing practice. ...
Article
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Virginia's sentencing guidelines include alternative sanctions based on the use of a quantitative instrument called the Nonviolent Risk Assessment (NVRA) that identifies individuals convicted of drug and property crimes that are considered to be at lower risk of recidivism. Although nondispositive, the NVRA affords judges the discretion to grant alternative sentences to eligible low‐risk defendants. In this study, we explore how judges make use of the NVRA instrument when sentencing individuals convicted of low‐level drug and property crimes. Through semistructured interviews (N = 24) and inductive thematic analysis, the research team identified contextual factors that influence the use of the NVRA results, including: the availability of alternative programs in a community, the role of court actors, particularly prosecutors, in shaping the sentencing outcomes, as well as an individual judge's willingness to defer to or reject negotiated plea agreements offered by the prosecutor. Our research shows that while some judges are aware of and embrace the benefits of the instrument, others lack knowledge altogether of its function and empirical basis. We identified seven themes that account for variation in how actuarial risk is utilized in the sentencing process. Our findings provide insight into the practical challenges of using risk‐based assessment as a tool for the sentencing of low‐level convictions. As more states adopt risk‐based approaches to sentencing, studying Virginia, which has gone farther than other states in legislating this strategy, becomes increasingly important.
... Judicial behavior in sentencing still remains a mystery and has little ties to theory (Rachlinski and Wistrich 2017). Yet research suggests that certain offender characteristics impact sentencing decisions through how judges evaluate blameworthiness, community protection, and bureaucratic constraints, particularly relying on the first two criteria (Hartley et al. 2007). ...
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This research, utilizing qualitative methodology with grounded theory, develops a model that illuminates a process by which judicial stereotyping associated with genetic essentialist biases toward mental disorders may affect judges' views regarding the sentencing and punishment of offenders with mental disorder diagnoses presented or understood to be genetically influenced. Data, collected through interviews with a sample of 59 Pennsylvania State Court judges, suggest that judges exhibit stereotyping behavior by linking the relationships between three particular genetic essentialist biases (immutability, informativeness, uniformity) and three types of stigmatization (pessimism, dangerousness, family stigma) associated with each bias. When judges exhibited this stereotyping behavior without the effects of intervening conditions, they then expressed how knowledge of the genetic influences of an offender's mental disorder would negatively influence views on punishment, specifically related to more restrictive sentences and support for deterrence and incapacitation. Three intervening conditions associated with judges' personal characteristics (personal experiences involving genetics, strength of determinism vs. free will beliefs, having no personal experiences with mental disorders) influenced whether judges' sentencing views were negatively influenced by such knowledge on genetics. Implications related to therapeutic jurisprudence are discussed.
... Judicial behavior in sentencing still remains something of a mystery and still has little ties to theory (Rachlinski & Wistrich, 2017). Yet research, some but not all of which falls under the focal concerns perspective on sentencing, suggests that certain offender characteristics impact sentencing decisions through how judges evaluate blameworthiness, community protection, and bureaucratic constraints of the justice system, particularly relying on the first two criteria (Spohn, 2007). ...
Thesis
In recent years, there has been an increase in empirical literature regarding how and why neuroscience and genetics research on behavior may influence criminal punishment. This dissertation aims to add to this growing body of literature specifically on types of evidence and aspects of sentencing and punishment that have not yet been studied. This dissertation consists of three papers that examine how the presentation of biological evidence in court or knowledge of the biological influences to behavior may act as extra-legal and discretionary factors in sentencing. The first paper, utilizing a multi-factorial experiment with the death-qualified jury-eligible public, examines how biological risk factors for criminality might affect views on capital sentencing. Results suggest that the general presentation of evidence on biological risk factors may not impact views on death penalty support or cruel and unusual punishment, but it may significantly impact perceptions of moral responsibility and future dangerousness. The second paper, utilizing a multi-factorial experiment with a lay public sample, examines how psychiatric labels, and having diagnoses biologically “labelled,” affect sentencing beliefs. Results show that psychiatric labels can lead to significant non-punitive effects on sentencing, as mediated by reduced stigmatization regarding lack of treatability, social acceptance, and personal responsibility. Biological “labelling” may not significantly affect sentencing, apart from Pedophilic Disorder. The third paper, utilizing qualitative interviews with Pennsylvania state judges and grounded theory analysis, develops a model that illuminates a process by which judicial stereotyping associated with genetic essentialist biases toward mental disorders may negatively affect judges’ views regarding the sentencing of offenders with psychiatric diagnoses. Data suggest that judges exhibit stereotyping behavior by linking the relationships between genetic essentialist biases (immutability, informativeness, uniformity) and types of stigmatization (pessimism, dangerousness, family stigma), leading to judges’ negative views on the punishment of such offenders particularly with regard to incapacitation and deterrence. Together, the findings in this dissertation advance our understanding on if and how different types of biological research on behavior may practically and philosophically influence discretion in sentencing. Such understanding can help to anticipate the effects of neuroscience and genetics research as discretionary and extra-legal factors in sentencing moving forward.
... Judicial behavior in sentencing still remains something of a mystery and still has little ties to theory (Rachlinski & Wistrich, 2017). Yet research, some but not all of which falls under the focal concerns perspective on sentencing, suggests that certain offender characteristics impact sentencing decisions through how judges evaluate blameworthiness, community protection, and bureaucratic constraints of the justice system, particularly relying on the first two criteria (Spohn, 2007). ...
Thesis
In recent years, there has been an increase in empirical literature regarding how and why neuroscience and genetics research on behavior may influence criminal punishment. This dissertation aims to add to this growing body of literature specifically on types of evidence and aspects of sentencing and punishment that have not yet been studied. This dissertation consists of three papers that examine how the presentation of biological evidence in court or knowledge of the biological influences to behavior may act as extra-legal and discretionary factors in sentencing. The first paper, utilizing a multi-factorial experiment with the death-qualified jury-eligible public, examines how biological risk factors for criminality might affect views on capital sentencing. Results suggest that the general presentation of evidence on biological risk factors may not impact views on death penalty support or cruel and unusual punishment, but it may significantly impact perceptions of moral responsibility and future dangerousness. The second paper, utilizing a multi-factorial experiment with a lay public sample, examines how psychiatric labels, and having diagnoses biologically “labelled,” affect sentencing beliefs. Results show that psychiatric labels can lead to significant non-punitive effects on sentencing, as mediated by reduced stigmatization regarding lack of treatability, social acceptance, and personal responsibility. Biological “labelling” may not significantly affect sentencing, apart from Pedophilic Disorder. The third paper, utilizing qualitative interviews with Pennsylvania state judges and grounded theory analysis, develops a model that illuminates a process by which judicial stereotyping associated with genetic essentialist biases toward mental disorders may negatively affect judges’ views regarding the sentencing of offenders with psychiatric diagnoses. Data suggest that judges exhibit stereotyping behavior by linking the relationships between genetic essentialist biases (immutability, informativeness, uniformity) and types of stigmatization (pessimism, dangerousness, family stigma), leading to judges’ negative views on the punishment of such offenders particularly with regard to incapacitation and deterrence. Together, the findings in this dissertation advance our understanding on if and how different types of biological research on behavior may practically and philosophically influence discretion in sentencing. Such understanding can help to anticipate the effects of neuroscience and genetics research as discretionary and extra-legal factors in sentencing moving forward.
... Our results suggest that being a member of a professional group does not reduce the influence of potential heuristic cues, like complainant emotional demeanor, on credibility judgments of rape complainants. This is consistent with research which suggests that professional expertise or training does not prevent criminal justice professionals from being influenced by motivated cognition or heuristic cues in their judgments (e.g., Ask, Granhag, & Rebelius, 2011;Miller, 2018;Rachlinski & Wistrich, 2017). ...
Preprint
Rape cases have a disproportionately high attrition rate and low conviction rate compared to other criminal offenses. Evaluations of a rape complainant’s credibility often determine whether a case progresses through the criminal justice system. Even though emotional demeanor is not related to witness honesty or accuracy, distressed rape complainants are perceived to be more credible than complainants who present with controlled affect. To understand the extent and robustness of the influence of emotional demeanor on credibility judgments of female adult rape complainants, we conducted a systematic review, meta-analysis and p-curve analysis of the experimental simulated decision-making literature on the influence of complainant emotional demeanor on complainant credibility. The meta-analysis included 20 studies with participants who were criminal justice professionals (e.g., police officers and judges), community members, and mock jurors (N = 3128). Results suggest that distressed demeanor significantly increased perceptions of complainant credibility, with a small to moderate effect size estimate. Importantly, the results of p-curve analysis suggest that reporting bias is not a likely explanation for the effect of emotional demeanor on rape complainant credibility. Sample type (whether perceivers were criminal justice professionals or prospective jurors) and stimulus modality (whether perceivers read about or watched the complainant recount the alleged rape) were not found to moderate the effect size estimate. These results suggest that effective methods of reducing reliance on emotional demeanor to make credibility judgments about rape complainants should be investigated to make credibility assessments fairer and more accurate.
... To offer some brief examples, we will see how some judges may sentence criminals more harshly immediately after their favourite sports team loses. 24 In experimental research, judges appear influenced by all manner of completely irrelevant anchoring numbers when awarding damages and deciding sentence lengths; a number contained in the name of the litigant, 25 or the roll of a dice, for instance. 26 Judges, seeking promotion to a higher court, may be more inclined to support the death penalty to appear 'tough on crime.' 27 Judges seem to bow to pressure from authoritarian rulers in politically sensitive cases. ...
... The (increasing) importance of ML and NLP techniques is reflected in their application to a broad range of legal tasks. These tasks include computing judgment similarity (Mandal et al., 2021), predicting violations of the European Convention on Human Rights (Aletras et al., 2016;Medvedeva et al., 2020) and gauging the influence of demographics characteristics on judicial decision making (Rachlinski & Wistrich, 2017). The application of ML and NLP has even extended to the task underlying this research-legal text classification. ...
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Judgments concerning animals have arisen across a variety of established practice areas. There is, however, no publicly available repository of judgments concerning the emerging practice area of animal protection law. This has hindered the identification of individual animal protection law judgments and comprehension of the scale of animal protection law made by courts. Thus, we detail the creation of an initial animal protection law repository using natural language processing and machine learning techniques. This involved domain expert classification of 500 judgments according to whether or not they were concerned with animal protection law. 400 of these judgments were used to train various models, each of which was used to predict the classification of the remaining 100 judgments. The predictions of each model were superior to a baseline measure intended to mimic current searching practice, with the best performing model being a support vector machine (SVM) approach that classified judgments according to term frequency—inverse document frequency (TF-IDF) values. Investigation of this model consisted of considering its most influential features and conducting an error analysis of all incorrectly predicted judgments. This showed the features indicative of animal protection law judgments to include terms such as ‘welfare’, ‘hunt’ and ‘cull’, and that incorrectly predicted judgments were often deemed marginal decisions by the domain expert. The TF-IDF SVM was then used to classify non-labelled judgments, resulting in an initial animal protection law repository. Inspection of this repository suggested that there were 175 animal protection judgments between January 2000 and December 2020 from the Privy Council, House of Lords, Supreme Court and upper England and Wales courts.
... § Un tema de especial atención en años recientes es el papel que juegan los sesgos cognitivos en la toma de decisiones de líderes y servidores públicos en ámbitos clave como son la educación o el sistema de justicia. Diversos estudios apuntan a que los sesgos implícitos en jueces, maestros y diseñadores de políticas públicas pueden dar como resultado decisiones injustas que incrementan o perpetúan la desigualdad (Rachlinski, 2017). 5 Existen esfuerzos importantes por hacer cada vez más visibles y por crear conciencia sobre los sesgos sistémicos relacionados con el género, la adscripción étnica, la edad y la nacionalidad, entre otros. ...
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En este capítulo presento una serie de reflexiones sobre la enseñanza del español a la juventud latina a ambos lados de la frontera México-EEUU. Me uno a los esfuerzos de colegas que trabajan para dar visibilidad y voz a los niños, las niñas y los jóvenes bilingües y biculturales de México que, ante las normas monolingües y mono- culturales que informan nuestras nociones de identidad nacional, sociedad y de currícula escolar, viven situaciones de estigmatización y discriminación cotidiana. Presento acciones concretas, en el aquí y el ahora, que las profesoras y los profesores de español —y de todas las materias— podemos y debemos tomar para fortalecer el sentido de multilingüismo y multicompetencia de todas aquellas niñas, niños y jóvenes bilingües, principalmente de grupos minoritarios. Se trata de atender no solo una urgencia académica sino humana.
... Although judges have been demonstrated to be better decision makers than laypeople, even professionals rely heavily on intuitive reasoning in their decisions (Englich et al. 2006;Guthrie et al. 2007;Rachlinski and Wistrich 2017). Previous studies have consistently demonstrated that laypeople's intuitive reasoning is based on retributive justification (Carlsmith 2006;Carlsmith et al. 2002;Keller et al. 2010;Oswald et al. 2002;Rucker et al. 2004;Watamura et al. 2011;Weiner et al. 1997). ...
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Few experimental attempts have been reported comparing the sentencing decisions of professional judges and that of laypeople using the same criminal case. This study examined the sentencing justifications (retribution, incapacitation, general deterrence, and rehabilitation) and the resulting imprisonment sentencing differences between Japanese judges and laypeople. The online quasi-experiment comprised 48 judges and 199 laypeople. Participants read a fictional murder case, and they were asked to respond on two types of justification scales and enter the number of years of imprisonment for the offender. Both the judges and laypeople placed the highest importance on retribution in the numerical input scale, which failed to detect the difference. The Likert scale revealed that judges add less weight to rehabilitation, incapacitation, or general deterrence, than laypeople. As predicted, the number of imprisonment years chosen by judges was significantly shorter than that of laypeople. The differences in justification can cause disagreements between judges and laypeople. This study suggests that judges do not give much consideration to justifications and decide on sentencing based on different criteria than laypeople. Differences from previous studies related to the judges’ emphasis on justification and the disparity of sentences are also discussed.
... Given the overlap between moral and legal decision-making, one might expect that the effects of concreteness and identifiability emerge in judicial decision-making as well. After all, mounting evidence in empirical legal studies shows that professional lawyers and judges, whether in the lab or in the field, are prone to many of the same biases that pervade laypeople's reasoning (see [22,23]). ...
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Recent literature in experimental philosophy has postulated the existence of the abstract/concrete paradox (ACP): the tendency to activate inconsistent intuitions (and generate inconsistent judgment) depending on whether a problem to be analyzed is framed in abstract terms or is described as a concrete case. One recent study supports the thesis that this effect influences judicial decision-making, including decision-making by professional judges, in areas such as interpretation of constitutional principles and application of clear-cut rules. Here, following the existing literature in legal theory, we argue that the susceptibility to such an effect might depend on whether decision-makers operate in a legal system characterized by the formalist or particularist approach to legal interpretation, with formalist systems being less susceptible to the effect. To test this hypothesis, we compare the results of experimental studies on ACP run on samples from two countries differing in legal culture: Poland and Brazil. The lack of significant differences between those results (also for professional legal decision-makers) suggests that ACP is a robust effect in the legal context.
... In a narrative fashion, Peer and Gamliel (2013) reviewed how such biases could intervene during the hearing process (confirmation bias and hindsight bias), ruling (inability to ignore inadmissible evidence), and sentencing (anchoring effects). In fact, research suggests that judges, prosecutors, and other professionals in the legal field might rely on heuristics to produce their decisions, which leaves room for CB (e.g., Guthrie et al., 2007;Helm et al., 2016;Rachlinski and Wistrich, 2017). 2 Researchers investigating judges' decision-making have mainly relied upon archival studies (document analyses of court records) and experimental studies in which judges are asked to decide on hypothetical cases. ...
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The author reviewed the research on the impact of cognitive biases on professionals’ decision-making in four occupational areas (management, finance, medicine, and law). Two main findings emerged. First, the literature reviewed shows that a dozen of cognitive biases has an impact on professionals’ decisions in these four areas, overconfidence being the most recurrent bias. Second, the level of evidence supporting the claim that cognitive biases impact professional decision-making differs across the areas covered. Research in finance relied primarily upon secondary data while research in medicine and law relied mainly upon primary data from vignette studies (both levels of evidence are found in management). Two research gaps are highlighted. The first one is a potential lack of ecological validity of the findings from vignette studies, which are numerous. The second is the neglect of individual differences in cognitive biases, which might lead to the false idea that all professionals are susceptible to biases, to the same extent. To address that issue, we suggest that reliable, specific measures of cognitive biases need to be improved or developed.
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In our lab, 299 real judges from seven major jurisdictions (Argentina, Brazil, China, France, Germany, India, and USA) spend up to fifty-five minutes to judge an international criminal appeals case and determine the appropriate prison sentence. The lab computer (i) logs their use of the documents (briefs, statement of facts, trial judgment, statute, precedent) and (ii) randomly assigns each judge (a) a horizontal precedent disfavoring, favoring, or strongly favoring defendant, (b) a sympathetic or an unsympathetic defendant, and (c) a short, medium, or long sentence anchor. Document use and written reasons differ between countries but not between common and civil law. Precedent effect is barely detectable and estimated to be less, and bounded to be not much greater than, that of legally irrelevant defendant attributes and sentence anchors.
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Although judges may be well intended when taking an oath to be impartial when they reach the bench, psychological and legal literature suggests that their legal approaches, behavior, and decision-making processes are subconsciously impacted by biases stemming from and influenced by their attitudes, ideology, backgrounds, and previous experiences. Drawing from prior models of sources of bias in legal contexts and existing literature on judges, this paper discusses and models potential sources of pro-prosecution bias in judges with prosecutorial backgrounds. These include: 1) professional and self-selection into the judiciary; 2) prosecutorial socialization and attitudes that can shape a prosecutorial mindset; and 3) the effects of common unconscious biases, confirmation bias and role induced bias, that may shape judicial behavior through formed beliefs and approaches stemming from the prosecutorial mindset and selection into the judiciary. As the vast majority of judges are former prosecutors in the U.S. as well as in many other countries, this paper considers possible ways to deal with pro-prosecution bias and the potential importance of diversifying judges’ professional backgrounds.
Article
This study examines how a rapid change in social perceptions of a national‐origin group triggered by the COVID‐19 pandemic influenced immigration judges' decision‐making in US removal proceedings. Using originally compiled court data on removal proceedings decided between 2019 and 2020, we applied a difference‐in‐differences framework to produce three key findings. First, consistent with theory of event stigma, Chinese respondents experienced a significantly higher removal rate during the early pandemic period. Second, consistent with theory of associative stigma, East and Southeast (E/SE) Asian respondents also experienced a significantly higher removal rate during the early pandemic period. Third, the removal rate declined for both Chinese and E/SE respondents during the later pandemic period, but this decline was more gradual and lagged for E/SE Asian than for Chinese respondents. Finally, increases in the number of cases involving Chinese respondents increased the removal rate for E/SE Asian respondents during the early months of the pandemic. The last two findings suggest that associative or indirect stigmatization may be harder to combat than direct stigmatization owing to the implicit nature of bias underlying associative stigma. This study highlights the socially constructed nature of national origin groups, and the importance of both direct and indirect stigmatization in the production of social inequality.
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Understanding sources of judicial bias is essential for establishing due process. To date, theories of judicial decision making are rooted in ranked societies with majority–minority group cleavages, leaving unanswered which groups are more prone to express bias and whether it is motivated by in-group favoritism or out-group hostility. We examine judicial bias in Kenya, a diverse society that features a more complex ethnic landscape. While research in comparative and African politics emphasizes instrumental motivations underpinning ethnic identity, we examine the psychological, implicit biases driving judicial outcomes. Using data from Kenyan criminal appeals and the conditional random assignment of judges to cases, we show that judges are 3 to 5 percentage points more likely to grant coethnic appeals than non-coethnic appeals. To understand mechanisms, we use word embeddings to analyze the sentiment of written judgments. Judges use more trust-related terms writing for coethnics, suggesting that in-group favoritism motivates coethnic bias in this context.
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This study seeks to identify the underlying factors related to the sentencing process for juvenile justice cases in Chile. To this end, a factorial survey method or quasi-experimental vignette method was used. This method allows us to understand with greater clarity the complex cognitive process involved in judicial decision-making. The results confirm that legal factors carry the critical weight for judicial decisions, though extralegal factors also play a role. Among these, factors associated with the offender (such as drug use and school attendance) and characteristics of the judges themselves (such as judicial attitudes and their previous experience) all influenced the decision-making process. These findings allow us to provide evidence about decision-making in the Latin American contexts and add to existing evidence in order to understand the moderating effect of certain class and gender stereotypes.
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The economic analysis of law assumes that court decisions are key to incentivizing people and maximizing social welfare. This article reviews the behavioral literature on court decision making, and highlights numerous heuristics and biases that impact judges and jurors and cause them to make decisions that diverge from the social optimum. In light of this review, the article analyzes some of the institutional features of the court system that may help minimize the costs of biased decisions in the courts.
Chapter
The judiciary as an institution is, perhaps more than any other social institution, commonly defined and distinguished by its method. To understand contemporary judging, it is necessary to address the principles that underlie the methodology by which judges make decisions. In this Part, I examine this derivative judicial method by articulating its central elements and by showing how it flows from the articulated judicial function.
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The pairing of massive data sets with processes—or algorithms—written in computer code to sort through, organize, extract, or mine them has made inroads in almost every major social institution. This article proposes a reading of the scholarly literature concerned with the social implications of this transformation. First, we discuss the rise of a new occupational class, which we call the coding elite. This group has consolidated power through their technical control over the digital means of production and by extracting labor from a newly marginalized or unpaid workforce, the cybertariat. Second, we show that the implementation of techniques of mathematical optimization across domains as varied as education, medicine, credit and finance, and criminal justice has intensified the dominance of actuarial logics of decision-making, potentially transforming pathways to social reproduction and mobility but also generating a pushback by those so governed. Third, we explore how the same pervasive algorithmic intermediation in digital communication is transforming the way people interact, associate, and think. We conclude by cautioning against the wildest promises of artificial intelligence but acknowledging the increasingly tight coupling between algorithmic processes, social structures, and subjectivities. Expected final online publication date for the Annual Review of Sociology, Volume 47 is July 2021. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.
Chapter
Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice. Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex. The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them. The ultimate goal of Christopher Slobogin's insightful analysis is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk.
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The book studies other than purely legal factors that influence the Czech Constitutional Court judges in their decision-making. The publication is inspired by foreign models of judicial decision-making and discusses their applicability in the Czech environment. More specifically, it focuses, for example, on the influence of the judge’s personality, collegiality, strategic decision-making or the impact of public opinion and the media. The book is based mainly on interviews with current constitutional judges.
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A literatura jurídica brasileira tem começado a se questionar sobre a existência e os efeitos de vieses cognitivos na tomada de decisão juridicamente relevante. Trabalhos teóricos e empíricos recentes vêm recorrendo à literatura em Julgamento e Tomada de Decisão e Economia Comportamental para lançar um novo olhar sobre o fenômeno da decisão jurídica — sem, contudo, proceder a uma avaliação crítica do paradigma das heurísticas e vieses e das teorias do duplo processo. A partir de uma metodologia interdisciplinar, este ensaio busca suprir essa lacuna, apresentando ao público jurídico um levantamento analítico dos modelos comportamentais da literatura em tomada de decisão. Percorremos alguns dos problemas mais salientes no debate recente: a adequação da introspecção como metodologia para compreensão da tomada de decisão, o papel do processamento automático ou inconsciente na decisão, e, sobretudo, por que seria o caso de a racionalidade humana ser passível desses desvios em relação aos parâmetros normativos. Para tanto, duas vertentes explicativas para a existência de vieses são analisadas: a neurofisiológica e a evolucionista, com vistas a traçar um cenário mais realista de como a arquitetura cognitiva condiciona a racionalidade humana.
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The paper empirically assesses evidence of bias among bankruptcy judges and predictability of judicial decision making in Serbia. For this purpose, we devised three hypothetical cases that were distributed to judges that preside over bankruptcy cases in Serbia. While the results do not indicate a consistent bias towards either the debtor or the creditor, they show concerning unpredictability of judicial decision making, hence leading to a high level of legal insecurity. Based on responses we observed high heterogeneity among Serbian bankruptcy judges in their interpretation of the bankruptcy laws. This makes allocation of cases to the particular judge a significant determinant for how the debtors and creditors will be treated and how the law will be applied.
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Despite the abundance of studies exposing heuristic and biased thinking in judicial decision-making the influence of this empirical work in court is limited. In this commentary, we address this paradox and argue that the disconnect between empirical work and practice stems from the limited knowledge and consideration of procedural rules. These shortcomings increase the skepticism of legal scholars and practitioners of this research and give an excuse for dismissing the findings, deeming them inapplicable in court. We suggest that the only way forward is by diversifying our research methods and by building a culture of collaboration, fostering research partnerships between legal scholars and (legal) decision-making researchers. This approach aims to bridge the gap between legal and social sciences and to promote the impact of empirical studies of the legal system on current legal practice.
Chapter
Are the cognitive sciences relevant for law? How do they influence legal theory and practice? Should lawyers become part-time cognitive scientists? The recent advances in the cognitive sciences have reshaped our conceptions of human decision-making and behavior. Many claim, for instance, that we can no longer view ourselves as purely rational agents equipped with free will. This change is vitally important for lawyers, who are forced to rethink the foundations of their theories and the framework of legal practice. Featuring multidisciplinary scholars from around the world, this book offers a comprehensive overview of the emerging field of law and the cognitive sciences. It develops new theories and provides often provocative insights into the relationship between the cognitive sciences and various dimensions of the law including legal philosophy and methodology, doctrinal issues, and evidence.
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In a pre-registered 2 × 2 × 2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. Participating judges received realistic materials and a relatively long period of time (50 min) to decide an auto accident case. We find at best weak evidence that the law matters or that rules constrain more than standards, and no evidence of a sympathy effect. (JEL K00, K13, K40, K41)
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A hallmark feature of the common law tradition is reliance on past decisions, or precedent, to resolve legal ambiguity and ensure consistency across similar cases. Yet the intent of precedent—to safeguard equity—may be undermined by nonconscious psychological processes. The behavioral and brain sciences show that decision-making can be contaminated by a human proclivity (endemic among both judges and laypeople) to justify and legitimize extant societal arrangements. Examples from case law and empirical legal studies illustrate how precedent may impede social justice in ways that are predictable from psychological theory. Highlighted in particular are barriers to justice disproportionately encountered by members of historically disadvantaged groups. The article closes with a discussion of opportunities for institutional reform and a call for continued scholarship examining the prevalence and impact of status-quo-maintaining biases in the legal system.
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Heyes and Saberian (2019b) estimate from 2000–2004 data that outdoor temperature reduces US immigration judges’ propensity to grant asylum. This estimate is the result of coding and data errors and of sample selection. Correcting the errors reduces the point estimate by two-thirds, with a wide 95 percent confidence interval straddling zero. Enlarging the sample to 1990–2019 flips the point estimate’s sign and rules out the effect size reported by Heyes and Saberian with very high confidence. An analysis of all criminal sentencing decisions by US federal district judges from 1992 to 2003 yields no evidence of temperature or other weather effects either. (JEL K37, K41, Q54)
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Two related lines of research have gained traction in the social sciences during the past three decades. One examines the association between race and punishment, while a second investigates stratification and colorism, defined as discrimination based on skin tone. Yet rarely do scholars examine these issues together. The current study uses new data to investigate the association between offender’s skin tone, Afrocentric facial features, and criminal punishment. More than 850 booking photos of black and white male offenders in two Minnesota counties were coded and then matched to detailed sentencing records. Results indicate that darker skin tone and Afrocentric facial features are associated with harsher sanctions and that the latter effect is particularly salient for white defendants. The findings add to existing work on skin tone and stratification and suggest that future research should consider other aspects of appearance, such as facial features, in the study of punishment and inequality.
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We find consistent evidence of negative autocorrelation in decision-making that is unrelated to the merits of the cases considered in three separate high-stakes field settings: refugee asylum court decisions, loan application reviews, and major league baseball umpire pitch calls. The evidence is most consistent with the law of small numbers and the gambler’s fallacy – people underestimating the likelihood of sequential streaks occurring by chance – leading to negatively autocorrelated decisions that result in errors. The negative autocorrelation is stronger among more moderate and less experienced decision-makers, following longer streaks of decisions in one direction, when the current and previous cases share similar characteristics or occur close in time, and when decision-makers face weaker incentives for accuracy. Other explanations for negatively autocorrelated decisions such as quotas, learning, or preferences to treat all parties fairly, are less consistent with the evidence, though we cannot completely rule out sequential contrast effects as an alternative explanation.
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This study examines the influence of gender and history of trauma exposure on the length of time juvenile offenders served in post-adjudicatory placements. Data were drawn from a database that included information on all juvenile referrals from three large urban counties in Texas during a 2-year period. The study sample included all juveniles (N = 5,019) placed in local non-secure and county-operated secure facilities. Findings indicate that female juveniles served significantly longer periods of confinement in local facilities than boys, even when controlling for other influential variables such as offense severity, prior record, age at referral, and facility type. Findings also indicate that girls with histories of trauma served longer periods in confinement than boys for violating their court-ordered conditions of probation.
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In this study we compare the sentencing decisions of women and men judges to assess whether they impose similar sentences on criminal defendants and whether they use the same criteria and give the same weight to characteristics of a case when arriving at a decision. The data include detailed information on case and judge characteristics, cover a large number of cases, and involve a fairly sizable number of female and male judges. Besides their relevance for understanding judicial decision making and women in politics, the data are exceptionally well suited for addressing the recurrent social science inquiry into whether a policymaker's individual characteristics or organizational role has a greater influence on decision making as well as the current debate between “minimalist” and “maximalist” views of gender differences. Our results — based on additive and interactive models — indicate many similarities but some differences between women and men judges in their sentencing practices. Women judges are somewhat harsher (i.e., more likely to incarcerate and impose longer sentences), and they slant toward a more contextualized style in weighing the effects of defendant characteristics and prior record on sentencing outcomes. Notably, they are particularly harsh toward repeat black offenders.
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To date, few scholars have examined the role of the Pre-Sentence Investigation report in sentencing decisions. This research explores the relationship between PSI recommendations and sentencing decisions through a primarily qualitative approach. Qualitative data from one small California jurisdiction in 2008 are used to determine the degree to which judges follow PSI recommendations and whether recommendations are independent in nature or based on previously established “going rates” for crimes. Although there is very little research available on this topic, the data that are available do not delve into the relevance of the report and the degree to which recommendations are primarily ceremonial and essentially “predetermined” by other actors. Ultimately, this research is intended to shed further light on the sentencing process and provide clarity on the relative importance of PSI recommendations in sentencing decisions.
Article
Empirical research has confirmed the correctness of the legal realists’ assertion that “judges are human.” It demonstrates that judicial decisions are sometimes tainted by bias, ideology, or error. Presumably, arbitrators are “human” in that sense too, but that conclusion does not necessarily follow. Although arbitrators and judges both umpire disputes, they differ in a variety of ways. Therefore, it is possible that arbitrators’ awards are either better or worse than judges’ decisions. This article reports the results of research conducted on elite arbitrators specializing in resolving commercial disputes. Our goal was to determine whether, like judges, arbitrators are subject to three common cognitive illusions—specifically, the conjunction fallacy, the framing effect, and the confirmation bias. We also wanted to find out whether, like judges, arbitrators exhibit a tendency to rely excessively on intuition that may exacerbate the impact of cognitive illusions on their decision making. Our results reveal that “arbitrators are human,” and indicate that arbitrators perform about the same as judges in experiments designed to detect the presence of common cognitive errors and excessive reliance on intuition. This suggests that arbitrators lack an inherent advantage over judges when it comes to making high-quality decisions. Whether the situation in which arbitrators make their awards is more conducive to sound decision making than the setting in which judges make their rulings, however, remains unclear.
Article
Scholars have long sought to resolve whether and to what degree political actor diversity influences the outputs of political institutions like legislatures, administrative agencies, and courts. When it comes to the judiciary, diverse judges may greatly affect outcomes. Despite this potential, no consensus exists for whether judicial diversity affects behavior in trial courts—that is, the stage where the vast majority of litigants interact with the judicial branch. After addressing the research design limitations in previous trial court-diversity studies, the results here indicate that a trial judge’s sex and race have very large effects on his or her decision making. These results have important implications for how we view diversity throughout the judiciary and are particularly timely given the Obama Administration’s over 200 female and minority appointments to the federal trial courts.
Article
This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first-time offenders, both the race-only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally-relevant factors such as the type of crime. However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium- and dark-skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter-skinned blacks receive sentences that are not statistically significantly different from those of whites. After controlling for socioeconomic status in the race-only and race and skin color models the remaining difference between whites and dark- and medium-skinned blacks increases slightly, to 5.5 percent. These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.
Article
This paper quantitatively assesses media influence on civil case adjudication in U.S. state courts. It shows that media influence substantially mitigates disparity in damage awards across political orientation of districts. That is, in areas with frequent newspaper coverage of courts, there is little difference in damage awards between conservative and liberal districts. In contrast, in areas with little newspaper coverage, liberal districts tend to grant substantially larger damage awards than do conservative ones. This result suggests that the presence of active media coverage may enhance consistency in the civil justice system.
Article
The importance of women on the bench and the influence of gender on decision making has garnered much scholarly attention. Based in large part on the belief that women will act as “representatives” of their gender, much of the literature attempts to determine if women in fact do support the pro-women position in judicial cases. However, because the literature assumes women will act in a prescribed manner given the opportunity, the literature fails to question the willingness of women justices, given the political context of a case, to fulfill this responsibility. I propose that decision making by female justices on state supreme courts is dependent not only on the attitudinal predisposition women may have in support of the pro-women position in gender-sensitive judicial cases, but also upon the political and institutional context of any given case. Accordingly, I examine the voting behavior of state supreme court justices in sexual harassment cases decided between 1980 and 1998. I find that women justices do support the pro-women position in sexual harassment cases prior to 1992 and the Anita Hill–Clarence Thomas sexual harassment Senate hearings. However, after 1992, there is no significant difference in the voting behavior of male and female justices suggesting the increased salience of the sexual harassment issue influenced judicial votes.
Article
We present a positive political theory of criminal sentencing and test it using data from the U.S. Sentencing Commission. Under the U.S. Sentencing Guidelines, judges can use “offense-level adjustments” (fact-based decision making) to lengthen or shorten the Guidelines' presumptive sentences. Judges also can use “departures” from the Guidelines (law-based decision making) to lengthen or shorten sentences. In general, departures are reviewed more strictly than adjustments by circuit (appeals) courts. Our theory predicts that a sentencing judge politically aligned with the circuit court will be more likely to alter sentences through sentencing departures than a judge not so aligned with the circuit; by contrast, our theory predicts that judges can more freely use fact-oriented adjustments to alter sentences, regardless of the circuit court's sentencing policy preferences. Our analysis of federal sentencing data largely supports the theory's predictions regarding the use of adjustments and departures and the impact of political alignment between higher courts and sentencing judges.