Judicial Decisionmaking, Empathy, and the Limits of Perception
79 Pages Posted: 19 Oct 2012 Last revised: 26 Feb 2013
Date Written: October 19, 2012
This Article evaluates recent cognitive science scholarship and applies to judicial decisionmaking an understanding of how humans make decisions, connect with, and make sense of the world. Cognitive science has revealed that decisions that we believe to be based on careful, neutral, logical reasoning may actually be guided by implicit biases and unexamined frameworks of thinking. As recent studies have demonstrated, even the judgments of highly qualified judges are affected by cognitive illusions. Thus, an understanding of how humans comprehend the world — how we process new information and how our underlying values, beliefs, and past experiences translate new experiences — necessarily informs our understanding of how judges make decisions. This Article challenges the assumption and aspiration of neutrality in judging and proposes an approach in line with emerging research from cognitive science. Judicial empathy — the cognitive capacity to imagine the perspective of another person — is a tool that can mitigate the inevitable implicit biases each judge brings to the bench. By exploring the influence of implicit biases on decisions that demand a finding of “reasonableness,” such as in Fourth Amendment, discrimination, criminal, and Establishment Clause cases, this Article argues that judicial empathy is necessary to move judges away from their own biased vantage point.
Keywords: judicial decisionmaking, empathy, implicit bias
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