(Un)Conscious Judging

100 Pages Posted: 2 Apr 2019 Last revised: 13 Jan 2020

See all articles by Elizabeth G. Thornburg

Elizabeth G. Thornburg

Southern Methodist University - Dedman School of Law

Date Written: 2019

Abstract

Fact inferences made by the trial judge during the pretrial period are the lynchpin of civil litigation. If inferences were a matter of universally held logical deductions, this would not be troubling. Inferences, however, are deeply contestable conclusions that vary from judge to judge. Subconscious psychological phenomena can lead to flawed reasoning, implicit bias, and culturally influenced perceptions. Inferences differ significantly, and they matter. Given the homogeneous makeup of the judiciary, this is a significant concern.

This article will demonstrate the ubiquity, importance, and variability of inferences by examining actual cases in which trial and appellate (or majority and dissenting) judges draw quite different inferences from the same record. It will then review the psychological literature to show ways in which judges are affected by subconscious forces. It concludes by suggesting reforms to judicial education, use of decision mechanisms that promote conscious deliberation, and civil procedure rule changes designed to increase information and decrease the impact of individual judges’ inferences.

Keywords: judges, courts, inference, pre-trial procedure, discovery, cognitive psychology, implicit bias, cultural cognition, judicial education, civil procedure

JEL Classification: K41

Suggested Citation

Thornburg, Elizabeth G., (Un)Conscious Judging (2019). 76 Washington & Lee Law Review 1567 (2019), SMU Dedman School of Law Legal Studies Research Paper No. 417, Available at SSRN: https://ssrn.com/abstract=3350037 or http://dx.doi.org/10.2139/ssrn.3350037

Elizabeth G. Thornburg (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 0116
Dallas, TX 75275
United States
214-768-2613 (Phone)
214-768-3142 (Fax)

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