82 Pages Posted: 6 Jul 2022
Date Written: June 1, 2002
Like all human beings, judges are influenced by personal routines and behaviors that have become second nature to them or have somehow dropped below the radar of their conscious control. Professor Ellen Langer and others have labeled this general state "mindlessness." They have distinguished "mindful" thinking as a process that all people can employ to gain awareness of subconscious influences, and thus increase the validity of their decisions. In this Article, I establish a theory of "judicial mindfulness" that would guard against two types of "cold" bias when interpreting legal materials. The first harmful bias involves traumatic past events that might unknowingly influence judges when they decide cases that are reminiscent of the trauma. The second harmful bias involves the elimination of valid legal theories or the interpretation of ambiguous phrases to mean only one thing, thus motivating premature decision-making. Judicial mindfulness is attainable when judges implement two psychological techniques that fit within psychologists Wilson and Brekke's general framework for correcting instances of mental contamination: (1) negative practice and (2) transitional or dialectical thought. These systems alert judges to their biases by allowing them to understand how they arrive at decisions, and then offer a framework that analyzes the processes they employ to achieve legitimate legal conclusions.
Keywords: Jurisprudence, Elimination of Bias, Mindfulness, Legal Methods
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