A judge’s role is to make decisions. This book is about how judges undertake this task. It is about forces on the judicial role and their consequences, about empirical research from a variety of academic disciplines that observes and verifies how factors can affect how judges judge.
On the one hand, judges decide by interpreting and applying the law, but much more affects judicial decision-making: psychological effects, group dynamics, numerical reasoning, biases, court processes, influences from political and other institutions, and technological advancement. All can have a bearing on judicial outcomes. In How Judges Judge: Empirical Insights into Judicial Decision-Making, Brian M. Barry explores how these factors, beyond the law, affect judges in their role. Case examples, judicial rulings, judges’ own self-reflections on their role and accounts from legal history complement this analysis to contextualise the research, make it more accessible and enrich the reader’s understanding and appreciation of judicial decision-making.
Offering research-based insights into how judges make the decisions that can impact daily life and societies around the globe, this book will be of interest to practising and training judges, litigation lawyers and those studying law and related disciplines.
Author(s): Brian M. Barry
Publisher: Informa Law / Routledge
Year: 2020
Cover
Half Title
Title Page
Copyright Page
Contents
Detailed Contents
Acknowledgements
Table of cases
Table of legislation
Chapter 1 Introduction
1.1 A brief introduction to the development of judicial decision-making research
1.2 Researching judicial decision-making: matters of terminology and methodology
1.3 A preview of this book
Chapter 2 The Psychology of Judicial Decision-Making
2.1 Heuristics, cognitive biases and judicial decision-making
2.1.1 Confirmation bias
2.1.2 Hindsight bias
2.1.3 Representativeness heuristic
2.1.4 Egocentric bias
2.1.5 Other heuristics and biases
2.1.6 Combatting heuristics and biases in judicial decision-making
2.2 Cognitive errors in judges’ numerical decision-making
2.2.1 Anchoring effect
2.2.2 Contrast effect
2.2.3 Framing effect
2.2.4 Gambler’s fallacy
2.2.5 Clustering
2.2.6 Combating cognitive errors in judges’ numerical decision-making
2.3 Motivated reasoning and judging
2.4 Judging and emotion
2.5 Group psychology effects on judicial panels’ decision-making
2.5.1 Positive effects of group decision-making
2.5.2 Negative effects of group decision-making
Chapter 3 Judges' Professional Motivations and Judicial Decision-Making
3.1 Work-life balance and judicial decision-making: workload, leisure, and retirement
3.2 Reputation, prestige and influence
3.3 Pay
3.4 Promotion
3.5 Conclusions on judges’ professional motivations and judicial decision-making
Chapter 4 Judges' Characteristics and Effects on Judicial Decision-Making
4.1 Judges’ gender
4.1.1 Gender and judicial decision-making on sentencing
4.1.2 Gender and judicial decision-making on gender-salient issues
4.2 Judges’ race and ethnicity
4.2.1 Conclusions on judges’ race and ethnicity
4.3 Judges’ age and experience
4.3.1 Judges’ age and conservative judging
4.3.2 Judges’ age and age discrimination claims
4.3.3 Judicial experience and the “freshman effect”
4.3.4 Interpreting judges’ age and experience on the bench meaningfully
4.4 Judges’ religion
4.4.1 Judges’ religion and liberal or conservative judicial decision-making
4.4.2 Judging on religious freedom cases
4.4.3 Understanding religious affiliation as a factor in judicial decision-making
4.5 Judges’ politics
4.5.1 Background and development of research on judges’ politics and their decision-making
4.5.2 The attitudinal model
4.5.3 The strategic model
4.5.4 Judges’ politics and decision-making: a global perspective
4.5.5 Experimental studies on judges’ political views and judging
4.5.6 Conclusions on judges’ politics and their decision-making
Chapter 5 Litigants' Characteristics and Effects on Judicial Decision-Making
5.1 Litigants’ gender
5.2 Litigants’ race and ethnicity
5.3 Litigants’ age
5.4 Litigants’ sexual orientation
5.5 Litigants’ other characteristics
5.6 Combinations and interactions of different litigants’ characteristics and judges’ characteristics
5.7 Combatting bias based on litigants’ characteristics
Chapter 6 Judicial Decision-Making in an Institutional Context: In-Court Influences
6.1 Actors in the courtroom and their influence on judicial decision-making
6.1.1 Lawyers’ influence
6.1.1.1 Lawyers’ written submissions
6.1.1.2 Oral argument
6.1.1.3 Lawyers’ characteristics
6.1.2 Judicial assistants’ influence
6.1.2.1 Judicial assistants as gatekeepers on courts with discretionary jurisdiction
6.1.2.2 Judicial assistants’ influence at trial
6.1.2.3 Writing judgments
6.1.3 Expert witnesses’ influence
6.1.4 Conclusions on the influence of courtroom actors
6.2 Courts’ operations and courtroom layout and design as in-court influences
6.2.1 Inquisitorial and adversarial trial modes and judicial decision-making
6.2.2 Judicial specialisation
6.2.3 Rules and procedures on panel courts
6.2.3.1 Discretionary jurisdiction and effects on judicial decision-making
6.2.3.2 Composing judicial panels for cases
6.2.3.3 Deliberation on panel courts
6.2.4 The physical courtroom environment: courtroom layout and design
6.2.5 Conclusions on courts’ operations, and layout and design
Chapter 7 Judicial Decision-Making in an Institutional Context: Beyond-Court Influences
7.1 Other courts in the judicial system: judicial decision-making in a hierarchy
7.2 Other branches of government
7.2.1 Judicial decision-making as dialogue with other branches of government
7.2.2 Governments’ powers over courts’ operations and the judiciary
7.2.2.1 How judges are selected and the consequences for judicial decision-making
7.2.2.2 Governments’ control over the terms and conditions of judges’ employment
7.3 Judges and their professional networks
7.4 Judges, their public and decision-making
7.5 Media coverage and judicial decision-making
7.5.1 Lights. Camera. Law! The presence of media in the courtroom
Chapter 8 The Future of Judging
8.1 The rise of courtroom technologies
8.2 Artificial intelligence
8.2.1 AI in the courtroom
8.2.2 The case for and against AI judges
8.3 Conclusion
Index
