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Intuition, Deliberation & Decision Making

Intuition, Deliberation & Decision Making. Jeffrey J. Rachlinski Cornell Law School Toronto, ON, Canada November 2, 2017. Society of Ontario Adjudicators & Regulators 29 th Annual Conference. My Thesis. Judges’ intuitions can be accurate, but are a source of erroneous judgment

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Intuition, Deliberation & Decision Making

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  1. Intuition, Deliberation &Decision Making Jeffrey J. Rachlinski Cornell Law School Toronto, ON, Canada November 2, 2017 Society of Ontario Adjudicators & Regulators 29th Annual Conference

  2. My Thesis • Judges’ intuitions can be accurate, but are a source of erroneous judgment • Accurate judging requires engaging in a deliberative assessment of the cases before them

  3. Psychology of Judgment and Choice • System 1 -- intuitive, associative, affective, rapid, confident judgment • System 2 -- deliberative, rule-based, calculating, mathematical, deductive, slow, cautious judgment

  4. I’m with stupid

  5. Judging: Generally and in the Courtroom • In ordinary life, people must use both System 1 and System 2 • But System 1 is faster, and a bit less conscious • Knowing when to suppress intuition is essential to sound judgment

  6. Research on Judges • Over 5,000 trial judges & 400 lawyers • Participating in judicial education conferences • Hypothetical questions

  7. Expert Chess Players

  8. Cognitive Reflection Test

  9. Question #1 A bat and a ball together cost $1.10. The bat costs $1.00 more than the ball. How much does the ball cost? Intuition: 10 ¢ Answer: 5 ¢

  10. Answer: ball costs 0.10 • “bat costs $1.00 more than the ball” 1.10 • “A bat and a ball together cost” 1.20 • Answer ball costs 0.05 • “bat costs $1.00 more than the ball” 1.05 • “A bat and a ball together cost 1.10”

  11. HINT: The correct answer is 5 cents

  12. Question #2 If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? Intuition: 100 minutes Answer: 5 minutes

  13. Question #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? Intuition: 24 days Answer: 47 days

  14. CRT: Three Basic Findings 1. Even though the questions are not difficult, most people get most of them wrong. 2. The wrong answer most commonly chosen tends to be the intuitive one 3. Those who get a problem wrong tend to think it an easier problem than those who get it right

  15. CRT & Judges: Would they Perform Differently? • Maybe judges are, by nature, System 2 people • Such as engineering students • 300 trial judges in Florida

  16. CRT Results in Florida Judges • Judges got most of the questions wrong: -Average score 1.23 out of 3.00 • The most common wrong answers were the intuitive ones -chosen by 97%, 60% & 58% of the judges • Judges who chose the intuitive answer thought the problem was easier -e.g., 90% v 66% on question #1.

  17. Judges Versus Others on CRT MIT students 2.18 Canadian Trial Judges 1.69 Carnegie Mellon students 1.51 Harvard students 1.43 ALJs 1.33 Florida trial judges 1.23 Web-based participants 1.10 ---- State appellate judges 0.95 M----- State students 0.79

  18. It sort of makes you stop and think, doesn’t it

  19. Anchoring

  20. Anchoring is Useful

  21. Transparently Irrelevant Anchors Influence Judgment • Cotes du Rhone Jaboulet Parallele 1998 • 86 points from Wine Spectator • Medium bodied, medium intensity, nicely balanced wine with flavors of red berry, mocha, and dark chocolate

  22. Wine Auction • Write down the last two digits of your telephone number • Is your reservation price for the wine higher or lower than that two-digit number? • High bidders in the auction tended to be those who had an 8 or 9 as the second-last digit of their phone number

  23. Anchoring in Judges: Damages Cap • Plaintiff injured in automobile accident • Defendant is a package-delivery company • Defendant admits liability • Plaintiff suffers from severe headaches and numbness in left hand • How much would you award plaintiff for pain and suffering?

  24. The Anchor “An award of non-economic damages cannot exceed the cap imposed by the Canadian Supreme Court, which is currently $367,160.”

  25. Irrelevant Anchor #3: Personal Injury Suit (small)(Median Award, in $ thousand) 100 90 No Anchor 80 Anchor ($332k) 70 60 50 40 0

  26. Anchoring - Fine • Violation of municipal ordinance by Club adjacent to residential neighborhood • Numerous complaints of loud music on Club’s outside deck • What fine would you impose to reflect “degree of disruption” and “deter further offenses?”

  27. Noise Ordinance:Canadian Trial Judgesmedian fine Club 58 $ 2,500 Club 11,866 $ 3,750

  28. Emotion & Legal Decision Making “Judges can’t rely on what’s in their heart. It’s not the heart that compels conclusions in cases, it’s the law.” - Sonia Sotomayor (2009)

  29. - Robert H. Jackson (1944) on “mythical beings”

  30. Emotional Decision Making in Judges

  31. Medicinal Marijuana: Facts • Prosecution for marijuana possession • Defendant claims it is medicinal • Medical use allowed if “physician has stated in an affidavit” • What about a post-arrest affidavit? • Defendant moves to dismiss

  32. Medicinal Marijuana: Variation • 19 year old suffering from seizures • 55 year old suffering from bone cancer

  33. 100 90 80 70 60 50 40 30 20 10 0 19 year old55 year old Medical Marijuana: Results(Judges in Canada & NY)(% of judges dismissing case)

  34. Emotion & Photographs • Restaurant being fined for roaches • Photograph of roaches in kitchen • 2 versions

  35. Race & Emotion • 2 versions • Tuscan Garden • Hunan (Yucatan) Garden

  36. Restaurant: Previous Results(KS Judges: Average Fine)

  37. Restaurant: (Canadian Judges, Average Fine)

  38. Misleading Implicit Associations: Only one of them served time in a federal prison

  39. Does this person like baking? Does she like small children? Is she offended by nude scenes on television?

  40. Does this person like to read? Is he aggressive? Does he support affirmative action programs?

  41. Does this person like math? Is this person good at sports?

  42. Priming and Racial IdentificationAndrew R. Todd, Kelsey C. Thiem & Rebecca Neel, 2016

  43. Identify

  44. Errors by kid’s skin color & target

  45. Measuring Unconscious Bias:Implicit Association Test (IAT) • Measures the associations between different categories • Uses a standard computer task • Projectimplicit.org

  46. Gender and Unconscious Bias • Most adults more easily associate male with career and female with family • Does this influence judgment?

  47. Gender Associations & Judgment • Family law case concerning parental mobility • Custodial parent staying at home (2 young kids) • Gets job offer in distant city • 2 versions • Mother custodial parent • Father custodial parent • May the custodial parent move the child?

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