Research on Cognitive Shortcomings in Comparative Judicial Behaviour

Abstract

Abstract This chapter highlights comparative research that implicates the ability of judges to make decisions that are fair, accurate, and that adequately account for various influences in their reasoning processes. Studies detailing mechanisms of ideological influence in legal decision-making, including proportionality standards, analogical reasoning, and the separability of various considerations in legal reasoning, are discussed as well as research on in-group and implicit biases in judgments across national contexts. Experimental and observational findings demonstrate irrelevant considerations, like the content of expressive speech and the character of litigants, can impact the judgments of jurists in both criminal and civil litigation and these are explored. There is also evidence that heuristic strategies relating to hindsight, anchoring and adjustment, and the consideration of base rates can lead to systematic errors and/or bias in judges’ decision-making. Finally, there is research suggesting judges are often unaware of the various influences on their reasoning, and in some instances unwilling to memorialize the importance of certain considerations in their judgments, calling justifications they give for their opinions into question. The chapter concludes with a call for further research into the causes of specific cognitive shortcomings that have been discovered to help identify the debiasing mechanisms that are best suited to address deficiencies in judgment across various decision contexts.

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