A Revised View of the Judicial Hunch
Linda L. Berger
University of Nevada, Las Vegas, William S. Boyd School of Law
January 3, 2013
Legal Communication & Rhetoric: J. ALWD, Forthcoming
Cognitive psychology has given judicial intuition a bad reputation. Most recent studies conclude that judges allow their intuitions to mislead them when they make judgments about character, credibility, or the future. Judicial hunches are thought to rely on biases or ideological predispositions, flashes of insight to be blind to unconscious influences.
This article takes a contrary view (or a broader perspective). Applying a neglected branch of decision-making research, I argue here that judicial intuition has been misunderstood and its real value under-appreciated. Although intuition may lead our judgments astray, intuition is key to the very different process of problem solving: it unlocks doors and opens up pathways. This argument reconciles claims from the heuristics and biases branch of cognitive psychology (intuition leads to mistakes and overconfidence) with findings from more naturalistic decision-making studies (intuition is the way that real-world experts identify options for testing).
When judges are solving problems — and they are doing so when they are finding, interpreting, applying, and making law — both the lawyers seeking to persuade them and the judges themselves should apply the lessons learned by psychologists who have studied expert decision making in the field.
Number of Pages in PDF File: 40
Keywords: judicial decision making, legal persuasion, intuition, heuristics, biases, cognitive psychology
Date posted: January 3, 2013 ; Last revised: September 10, 2013