What Is Wrong with Hungry Judges? A Case Study of Legal Implications of Cognitive Science

Abstract

Legal studies are at an interesting empirical, and more specifically, psychological turn. Cognitive science reveals more of the psychology behind moral and legal decision making, with sometimes unexpected and sometimes commonsensical results. Some speak about a “New Legal Realism”. This paper explores one of the normative questions posed by these developments: Do findings about psychological processes underlying legal decisions afford to infer anything about its correctness? Should they provide grounds to challenge (review, appeal) decisions? These questions are addressed through a case study on judgments by the proverbial hungry judge. That “justice is what the judge ate for breakfast” was a trope of Legal Realism. And, evidently undercomplex, it was not infrequently turned against it: how ridiculous the Realist ideas! However, a recent study by Shai Danziger and colleagues found precisely that: Decisions of an Israeli parole board, staffed by professional judges with a mean expertise of more than twenty years of judging, varied significantly in relation to the time of the last meal break. Chances of a positive outcome for applicants were less than half as high in the three last decisions after a meal break than in the first three decisions. Thus, provided that cases were distributed randomly and no other confounding factors were at work, the time of the meal seems to have causally affected judgments in these cases. This makes one wonder about the normative implications of such a finding: How do such influences relate to the correctness of decisions – do they falsify it, should they give grounds for review, or could decisions, in the terminology of contemporary debates in philosophy, be “debunked”?