Institutional Design and the Psychology of the Trial Judge

Abstract

The psychological research of judicial behaviour and decision-making has evolved markedly over the last few decades. While we are still far from developing a full empirical account of what is happening ‘inside the judicial mind’ (Guthrie, Rachlinski & Wistrich, 2001), substantial progress has been made as studies have gradually expanded in scope and methodology. In particular, an increasing number of studies strive to better capture the unique conditions that are relevant to judicial behaviour. For instance, researchers have moved to conduct laboratory experiments with expert subject pools, including judges and legal professionals (for an overview see, e.g., Rachlinski & Wistrich, 2017), more realistic settings (Spamann & Klohn, 2016), and more sophisticated methods, looking not only at the final outcome reached but also at elements of the decision-making process, such as the order at which judges approach various documents and how much time they devote to reading them (Liu, Klohn & Spamann, 2019). Researchers have also deployed the random assignment of cases to judges in order to isolate causal psychological mechanisms in real-world judicial decisions—documenting how differences in case attributes can lead to context-dependent decisions in criminal (Leibovitch, 2016) and asylum cases (Chen, Moskowitz & Shue, 2016), and how judicial decisions may change in response to emotional shocks (Eren & Mocan, 2018). Alongside growing methodological sophistication, scholars have also started to make headway on the manifold ways in which the psychology of judicial decision-making may be intertwined with wider institutional design aspects (Leibovitch, 2016, 2017; Schaur & Spellman, 2017). This new paradigm highlights the ways in which cognitive biases and heuristics can lead not only to transient effects on decisions but can also affect judgements in more systematic and prolonged ways. At its roots is the understanding that the expertise and repeat experience that characterize judges can lead to the creation of schemas and baselines which judges employ when making decisions in individual cases. The institutional capacity of the courts and the applicable rules of procedure and evidence can foster different decision-making environments, thereby changing the schemas created and nudging judicial decisions in a particular direction. In ‘The Psychology of the Trial Judge’, Judge Hoffman emphasizes how judicial decision-making, like human decision-making in general, is susceptible to various cognitive biases. This commentary complements that discussion by extending from the individual trial judge to the characteristics of the court in which she operates, and reviews the connection between institutional design and the psychology of judging through three prominent examples. The first section discusses how because of context-dependent decision-making, the assignment of jurisdiction and types of cases across courts can change the substantive outcomes reached by the courts. The second section draws attention to the tension between the human tendency to retributivism and the rehabilitative goals set by problem-solving or treatment-oriented courts, and how this tendency may be responsible for some of the unintended consequences of specialized courts. The third section reviews the accumulating findings regarding the difficulty of disregarding irrelevant or inadmissible evidence, and discusses how these could inform the applicable rules of evidence governing trials. As this is a developing field of research, throughout the discussion I also highlight some of the limitations of existing evidence and offer new avenues for future research on these topics.