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Judges and Judiciary,

Jul. 10, 2020

Summer reading for our times

This is a good time to re-read — or for some to pick up for the first time — materials on implicit bias, and in particular how bias works in the context of ordinary mental states. Many years ago I started assembling materials on the subject to teach judges, and lawyers who were training to be judges pro tem. I list some below.

Karnow curtis2 web

Civic Center Courthouse

Curtis E.A. Karnow

Judge, San Francisco County Superior Court

Civil Trials

Judge Karnow is current co-author of Weil & Brown et al., "California Practice Guide: Civil Procedure Before Trial" (Rutter 2017) and most recently, "Litigation in Practice" (2017).

This is a good time to re-read -- or for some to pick up for the first time -- materials on implicit bias, and in particular how bias works in the context of ordinary mental states. Many years ago I started assembling materials on the subject to teach judges, and lawyers who were training to be judges pro tem. I list some below.

Trial judges make a lot of decisions on limited information, under stress, and in very short time periods. That's fertile ground for bias and predisposition. Trial lawyers operate under similar conditions, especially, for example, when picking a jury. Heuristics, or "rules of thumb," can play a big part in decision-making. It's not always wrong: experience allows us to avoid repeated, laborious analysis. To understand racial bias, or other biases such as those which discriminate on the basis of apparent ethnicity, gender, or sexual orientation, one approach is to look at predisposition and snap judgments more generally. This approach shows the mechanisms of implicit bias are deep, and common; even if the specific biases we have are shallow, in the sense that they are learned.

The most important book on the list is probably Daniel Kahneman's "Thinking, Fast and Slow" (2011). As a metaphor, he suggests two aspects of the mind: System 1 and System 2. System 1 is automatic, very fast, instinctive, one might say. It can pick out the face of a spouse in the crowd, drives the car while we're dreaming of holidays, knows an angry face when it sees it, and knows the direction of a sound. It makes us duck when a shadow suddenly covers us. System 2 requires a lot of attention and energy: it's used to do tax returns, and find the number of times a letter appears on a page; and I suppose for most of us when doing legal research. System 1 is a system of heuristics, and it falls in a lot of traps; it is not logical; and it can't deal with statistics. System 2 is painstaking, but takes so much energy that we can't keep it up for long; and when we're tired, angry, or under stress, System 1 is happy to take over. You can guess the results.

A lot of researchers have followed in the footsteps of Kahneman and his erstwhile comrade, Amos Tversky. Their experiments have confirmed the impact of a variety of cognitive fallacies -- the result of bias, if you will -- which many readers will have heard of, such as hindsight bias, anchoring, false memory, and so on. Some of the research provides evolutionary explanations for our mental systems, and the benefits of seemingly instinctive reactions to perceived threats. "Seemingly," I say, because most specific rapid reactions are not, of course, instinctive at all: They are learned. System 1 learns to ride a bike, play the bagpipes, recognize Dad's face, or play a fast game of chess. We learn habits; we learn discrimination. The how, and why, of it is of course beyond the scope of this short note. But it is well within the scope of the articles books, and some videos, that follow here. I don't mean to suggest invidious bias, such as racial or gender discrimination, is the same as other system 1 operations; it's obviously not. But giving more thought to how the brain works generally may help address pervasive invidious bias.

This is all good reading. Some of it is actually fun, and all of it can help us better understand the quick, fast, unthinking and irrational reactions we all have. That includes judges and lawyers, the direct subjects of about half the list below.

-- D. Kahneman, "Thinking, Fast and Slow" (2011)

-- Kahneman's TED talk The riddle of experience vs. memory

-- Duncan Watts, "Everything Is Obvious Once You Know the Answer" (2011) (the fallacy of thinking 'common sense' provides any guidance in even the most moderately complex systems, such as explaining human behavior. Watts integrates work on hindsight, cherry picking, and survivorship, and narrative fallacy biases. He convincingly attacks the notion that "common sense" can be used to decide complex issues. He argues that intuition or 'common sense' is unable to account for unintended consequences in large organizations, policy determinations, and other situations where there are many interacting agents and causes)

-- Video lectures: here, here and here

-- "Thinking" (ed. Brockman) (lightly edited transcriptions of oral summaries of current research by some of the authors on this list (and many others), a quick introduction to sundry issues involved in cognition - not just cognitive fallacies)

-- S. Vedantam, "The Hidden Brain" (some long-winded stories to set up the point, but has an excellent series of discussions on hidden bias and race, and the language proxies we use to allude to and manifest those biases)

-- M. Gladwell, "Blink" (popular anecdotal collection, a fun read)

--C. Tavris, et al., "Mistakes Were Made (But Not By Me)" (like Blink an informal discussion of some cognitive fallacies, especially cognitive dissonance and how we resolve data to favor our biases)

-- L. Mlodinow, "The Drunkard's Walk" (randomness and the false meanings we impose, nice introduction to probability, some statistics, and associated fallacies)

-- N.N. Taleb, "Fooled By Randomness" (emphasizes economic behavior, and how we invent patterns which do not exist. Taleb is uneven, pithy, sardonic, but often enjoyable)

-- N.N. Taleb, "The Black Swan"

-- C. Chabris et al., "The Invisible Gorilla" (self deception, false memory, misleading intuitions)

-- R. Dobelli, "The Art of Thinking Clearly" (based on the work of Kahneman, Ariely, Taleb and others, about 100 very short chapters on the common cognitive fallacies and variants, including problems in thinking about probability. A fast read, good overview and summary)

-- D. Ariely, "The Upside of Irrationality" (Ariely's experiments are rough and focus on small portions of society, but his writing is entertaining and his focus on social/economic dynamics is interesting)

-- D. Ariely, "Predictably Irrational"

-- Ariely's TED talk

-- Ariely on self-rationalization and the distancing between effect and our actions, effect of anchoring and reminders on morality.

-- J. Lehrer, "How We Decide" (focus on brain activity, neurotransmitters, etc.)

-- Antonio Damasio, "Descartes' Error" (technical emphasis on brain structure and its interactions; critical role of emotions in rational decision making)

-- D. Eagleman, "Incognito: The Secret Lives Of The Brain" (impact of unconscious mind)

-- Eagleman Interview here

-- Jan Lauwereyns, "The Anatomy of Bias: How Neural Circuits Weigh the Options" (depending on your mood, a charming or irritating interdisciplinary account of how neurons select and discriminate. This is based substantially on neuroscience; but also cities poetry, philosophy, psychology, and so on)

-- Radio Lab podcasts at e.g., here

-- Laurence Gonzales, "Deep Survival: Who Lives, Who Dies, and Why" (an enjoyable read generally; first few chapters provide a good review of the science and practical impact of cognitive failure)

-- Salley Satel et al., "Brainwashed" (a short cautionary report on the inappropriate use of neuroscience, sometimes as used in the other works on this list, to explain behavior and bias)

On judges, lawyers, decision making, cognitive fallacies and bias in the law

-- Richard Posner, "How Judges Think" (2008)

-- Richard Posner, "Divergent Paths" (2016)

-- Richard Posner, "Reflections on Judging" (2013)

-- Garner & Scalia, "Making Your Case: The Art of Persuading Judges" (2008)

-- C. Guthrie, et al., "Inside the Judicial Mind," 86 Cornell Law Rev. 777 (May 2001)

-- C. Guthrie et al., "Judging By Heuristic: Cognitive Illusions In Judicial Decision Making," 86 Judicature 44 (July-August 2002) (anchoring, framing, hindsight bias, inverse fallacy (base rate fallacy), and egocentric bias (self-serving bias) all influence judges' decision making)

-- Erin Harley, "Hindsight Bias In Legal Decision Making," 25 Social Cognition 48 (2007) (juror hindsight bias, its relationship with (positive correlation to) severity of outcome, visual hindsight bias, and re: experts; means to reduce bias)

-- Robert J. MacCoun, "Media Reporting Of Jury Verdicts: Is The Tail (Of The Distribution) Wagging The Dog?," 55 DePaul L.Rev. 539 (2006) ("If one were to use the media as a basis for estimating the expected value of a jury verdict, one would grossly overestimate the likelihood that the case would go to trial, the plaintiff's probability of victory, and the magnitude of the award. Moreover, one would form the mistaken impression that tort litigation mostly involves medical malpractice and product liability rather than automobile negligence cases.")

-- Jeffrey J. Rachlinski, et al. "Heuristics and Biases in Bankruptcy Judges," 163 Journal of Institutional and Theoretical Economics 167 (2007) (specialization does not necessarily produce better judging; experts (and specialized judges) make same errors as others; anchoring, loss aversion, self-serving bias, base-rate fallacy)

-- Cory S. Clements, "Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of Words," 2013 BYU L. Rev. 319 (2013)

-- Israeli Judges' Study: S. Danziger, et al., "Extraneous Factors In Judicial Decisions"; reports on the study here and here

-- C. Guthrie, et al., "Blinking On The Bench: How Judges Decide Cases," 93 Cornell.L.Rev. 1 (2007) (refers to Israeli judges' study)

-- Andrew J. Wistrich, et al., "How Lawyers' Intuitions Prolong Litigation," 86 Southern California Law Review 101, 142 et seq. (2013).

-- Russell Korobkin & Chris Guthrie, "Psychological Barriers to Litigation Settlement: An Experimental Approach," 93 Mich. L. Rev. 107 (1994)

-- D. Kahneman, "Hawkish Bias"

-- Ian Weinstein, "Don't Believe Everything You Think: Cognitive Bias in Legal Decision Making," 9 Clinical Law Review 783 (2003) (reasoning by lawyers and clients)

-- "Insightful Or Wishful: Lawyers' Ability to Predict Case Outcomes," 16 Psych. Pub. Pol. and L. 133 (May, 2010)

-- Samuel H. Solomon, "How Jurors Make Decisions: A Practical and Systematic Approach to Understanding Jury Behavior" (2002)

-- Zev J. Eigen, et al., "Do Lawyers Really Believe Their Own Hype and Should They?: A Natural Experiment," Yale Law & Economics Research Paper No. 412 (July 14, 2010)

-- C. Karnow, "The Temptation of Common Sense," The Daily Journal (April 7, 2014)

-- C. Karnow, "Recognizing Confirmation Bias," The Daily Journal (Oct. 10, 2014)

-- C. Karnow, "Deciding," The Bench (2015) -- Review of cognitive fallacies judges may encounter, such as expectation fallacies, cognitive dissonance, narrative fallacies and generally problems with associative reasoning

-- C. Karnow, "The Adversarial System, Three Lemons, and Cocaine: The Role of Confirmation Bias," The Daily Journal (2014) -- A short note on confirmation bias and cognitive dissonance as it affects decision making by lawyers and judges

-- J.J. Prescot et al., "Improving Criminal Jury Decision Making After the Blakely Revolution," Law & Economics Working Papers Archive: 2003-2009 (U.Mich.L.School 2006) (impact on juries of cognitive overload, complex structures, distortions due to the framing of nonbinary questions, and deliberation-related biases). 


Ben Armistead

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