Chris Guthrie Dean John WadeKent Syverud Professor of Law Vanderbilt Law School chrisguthrievanderbiltedu Project Collaboration involving Jeff Rachlinski Cornell Law School and Andrew ID: 268919
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Slide1
Do Judges Really Think That Way?
Chris Guthrie
Dean
John Wade-Kent Syverud Professor of Law
Vanderbilt Law School
chris.guthrie@vanderbilt.eduSlide2
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 ALJsSlide3
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
RealistSlide4
“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)Slide5
“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)Slide6
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 DisregardingSlide7
Cognitive Reflection TestSlide8
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 processesSlide9
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?Slide10
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 = $1.10Slide11
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?Slide12
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 minutesSlide13
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?Slide14
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 daysSlide15
CRT Results
Average 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 0.57Slide16
CRT Results
Judges
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 14.7Slide17
CRT Results
Judges
(cont’d)
If wrong,
Question
% right
% selecting intuitive
#1 28 97
#2 44 57
#3 50 70Slide18
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 1/7
th
of the judges) overcome their intuitive responses
Slide19
Judicial Decision Making StudiesSlide20
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 biasSlide21
Anchoring
Estimates tend to be biased toward the first number we encounterSlide22
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?Slide23
Anchoring Problem #1
Results
Mean
Award
Median
Award
Control
$808,000
$700,000
Anchor
$2,210,000
$1,000,000Slide24
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?Slide25
Anchoring Problem #2
Results
Mean
Award
Median
Award
Control
$35,000
$6,000
Anchor
$58,000
$50,000Slide26
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 gainSlide27
Profit and Pay
Kahneman
,
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% fairSlide28
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% fairSlide29
Hindsight Bias
People overestimate the predictability of events that have already occurred
a.k.a. “20/20 hindsight” or “Monday morning quarterbacking
”Slide30
Hindsight Bias/Juries
Kamin
&
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”)Slide31
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% yesSlide32
“Difficulty Disregarding”
Difficult to ignore relevant but inadmissible evidence
Many mock jury studies support thisSlide33
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 inadmissibleSlide34
Difficulty Disregarding Problem #2
Landsman &
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
?Slide35
Difficulty Disregarding Problem #2
Landsman &
Rakos
(1994)
Results
%age ruling for
P
Control (28)
0%
Experimental (28)
25%Slide36
Difficulty Disregarding Problem #3
Facts
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?Slide37
Difficulty Disregarding Problem #3
Results
%age convicting
Control
49%
Experimental (sexual history but excluded)
20%Slide38
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
Slide39
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 juriesSlide40
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