The Disruptive Neuroscience of Judicial Choice
9 U.C. Irvine Law Review 1 (2018)
52 Pages Posted: 17 Oct 2018 Last revised: 12 Nov 2018
Date Written: October 9, 2018
Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy — all central to human decision-making — are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, empathy and other aspects of our cognition can be implicit, thereby shaping our behavior in ways that we are unaware. This challenges the longstanding assumption that a judge can simply put feelings aside when making judicial decisions. Third, there is no basis in neuroscience to support the idea that judges are exempt from these aspects of human cognition. These findings disrupt widespread faith in the unassailable rationality and impartiality of judges, and demonstrate how such views are increasingly at odds with evidence about how our brains work. By offering an original descriptive account of judicial behavior that is rooted in neuroscience, this Article provides a novel exposition of why bias, emotion and empathy have the capacity to influence the choices judges make. Doing so asks us to view judges as the humans they are.
Keywords: Judicial Behavior, Judicial Choice, Law and Neuroscience, Neuroscience, Neurolaw, Decision Making, Judges, Courts, Tribunals, Cognition, Emotion, Bias, International Law
JEL Classification: K1, K2, K10, K3, K42
Suggested Citation: Suggested Citation