Judicial Decisionmaking : A Behavioral Perspective

This chapter, forthcoming in the Oxford Handbook of Behavioral Economics and the Law, critically reviews the behavioral literature on judicial decisionmaking. Among other things, it presents general theories of judicial decisionmaking, such as the story model and coherence-based reasoning. It also examines the susceptibility of judicial decisionmaking to various well-known cognitive biases, including the compromise and contrast effects, the hindsight bias, the omission bias, and anchoring. The chapter explores factfinders’ reluctance to impose liability based on certain types of evidence. It further surveys the contribution of behavioral studies to better understanding judicial prejudice. Special attention is given to judicial application of legal norms to facts and the effect of the choice between rules and standards on the predictability of judgments. Finally, the chapter provides an overview of two fundamental questions in the behavioral analysis of judicial decisionmaking: group decisionmaking and judges’ versus laypersons’ decisionmaking