What the Judge Argues is Not What the Judge Thinks – Eye Tracking as a Window into Judicial Decision Making

Abstract

Legal cases are frequently inconclusive. One source of inconclusiveness is the necessity to balance conceptually incompatible normative considerations. Still the judiciary seems to do so reasonably well. How can it? In this study, we exploit eye tracking as a window into the mental process. A first study tests whether information processing reflects the degree of normative conflict, and whether it is influenced by the ultimate disposition of the case, which is induced by assigning participants an adversarial role. These expectations are not borne out by the data. But the number and the duration of fixations on the features of the case, as recorded with eye tracking, accurately predict the disposition. A second study builds on the psychological theory of parallel constraint satisfaction. The theory posits that ambiguous problems are made tractable by gradually transforming the inputs until a coherent representation emerges. The mental process can be inferred from the explicit reevaluation of the inputs after the decision has been made. The study combines this method with eye tracking. Both measures predict outcomes with almost the same accuracy, but are uncorrelated. Eye tracking shows that the process of finding the solution and the explicit representation of the outcome are distinct mental activities.

Keywords: legal decision-making, ambiguity, balancing, parallel constraint satisfaction, coherence shift, motivated reasoning, cognitive dissonance, eye tracking

JEL Classification: D01, D81, D91, K13, K40