Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision‐Making
| Author | Kristy A. Martire,Gary Edmond |
| DOI | http://doi.org/10.1111/1468-2230.12424 |
| Published date | 01 July 2019 |
| Date | 01 July 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12424
Just Cognition: Scientific Research on Bias and Some
Implications for Legal Procedure and Decision-Making
Gary Edmond∗and Kristy A. Martire†
Common law judges have traditionally been concerned about bias and the appearance of bias.
Bias is believed to threaten the administration of justice and the legitimacy of legal decision-
making, particularly public confidence in the courts. This article contrasts legal approaches to
bias with a range of biases, particularly cognitive biases, familiar to scientists who study human
cognition and decision-making. Research revealsthat judges have narrowly conceived the biases
that threaten legal decision-making, insisting that some potential sources of bias are not open to
review and that theyare peculiarly resistant to bias through legal training and judicial experience.
This article explains how, notwithstanding express concern with bias, there has been limited
legal engagement with many risks known to actually bias decision-making. Through examples,
and drawing upon scientific research, it questions legal approachesand discusses the implications
of more empirically-based approaches to bias for decision making and institutional legitimacy.
INTRODUCTION
Judges in all legal traditions have concerned themselves with bias and par-
tiality.1Bias, or the appearance of factors considered by judges (and others)
as potentially biasing, is conceived as a threat to the legitimacy of both legal
proceedings and outcomes. Indeed, impartiality has been considered so funda-
mental to the administration of justice, and partiality (or bias) so disruptive, that
judges in common law systems developed rules and procedures to insulate le-
gal institutions and practice from bias and even perceptions of bias. Curiously,
alongside this sensitivity to bias and its institutionally destabilising potential,
common law judges developed the idea that they are peculiarly resistant to
bias. Through their legal training, experience, inclinations and efforts, judges,
we are told, have become exceptional. They are, according to prevalent judi-
cial perspectives, able to resist the kinds of biases, prejudices and predispositions
that frequently contaminate the decision-making (and cognition) of ordinary
citizens. This article questions traditional legal approaches to bias, particularly
judicial exceptionalism and the restrictive way judges have characterised bias
and its attendant dangers.
∗Professor, School of Law, UNSW and Professor (fractional), Law School, Northumbria University.
We thank Leighton McDonald, Ros Dixon, Mathew Groves, Mark Aronson, Adrian Zuckerman,
Keith Mason and two insightful refereesfor their feedback. Research was supported by the Australian
Research Council (LP160100008).
†Associate Professor, School of Psychology, UNSW.
1 See, for example, J. Tarrant, Disqualification for Bias (Sydney: Federation Press, 2012) 19-32. A
classical norm was captured in the phrase nemo judex in sua causa (nobody is to be judge in their
own cause).
C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited. (2019) 82(4) MLR 633–664
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Just Cognition
With these legal concerns and commitments foregrounded, this article aims
to introduce legal decision-makers to scientific insights on cognitive bias. We
aim to introduce the kinds of biases and heuristics that tend to influence all
human decision-making.2Drawing on scientific research, we contend that
judges are likely to be vulnerable to many, and perhaps all, of the biases that
influence ordinary human cognition.3From the outset it is important to note
that cognitive biases are more common and more expansive than traditional
legal conceptions of bias. Cognitive biases are not limited to having an interest
in or obtaining a benefit from a specific outcome (be it actual or apprehended).
Cognitive biases operate automatically and unconsciously and are not neces-
sarily overcome by training, experience or effort. They are, in consequence,
ubiquitous and insidious. This article explores the role and implications of
biases that are quick and effortless – that is, biases unconsciously shaping our
perceptions, problem solving and decision-making. Remarkably, given anxi-
eties about the corrosive potential of even the appearance of bias, few common
law judges have publicly engaged with research on cognitive bias and its impli-
cations for traditional legal models of adjudication, prevailing commitment to
special judicial abilities, or the effectiveness of legal procedures.
Cognitive biases would appear to influence perceptions and interpretations at
every stage of legal proceedings – fromthe identification of a cause of action, the
collection of evidence, the framing and presentation of the issues, to the analysis
of law and evidence. This article is, however, primarily focused on bias in
judicial decision-making. It begins with two examples of cognitive bias in non-
legal professional decision-making contexts, followed by a discussion of judicial
bias. We use cognitive science as a foil to explore these approaches, before
moving to consider biases and their implications with particular application to
legal decision-making. Ultimately, the article explains why cognitive biases are
important, and consequently, why we should study their impact on judicial
performance and, where appropriate, develop empirically-based responses (eg,
training and revised procedures) to protect decision-makers from actual biases
that threaten the fairness and accuracy of proceedings and public confidence in
our legal institutions.
TWO NON-LEGAL EXAMPLES
Because lawyers and judges have developed narrow conceptions of bias, and
seem to believe they possess special abilities (eg, heightened scepticism and
2 Heuristics are ‘rules of thumb’ that generally help us to make good decisions in fast and frugal
ways. See G. Gigerenzer and P. Todd, Simple heuristics that make us smart (New York, NY: OUP,
1999). See also D.Kahnemann, Thinking fast and slow (New York,NY: Farrar, Straus and Giroux,
2011).
3 See, for example, S. Redfield (ed), Enhancing Justice: Reducing Bias (Chicago, Ill: American Bar
Association, 2018); E. Cunliffe, ‘Judging Fast and Slow: Using Decision-Making Theory to
Explore Judicial Fact Determination’ (2014) 18 International Journal of Evidence & Proof 139 and,
more generally, R. Thaler and C. Sunstein, Nudge: Improving Decisions about Health, Wealth, and
Happiness (New Haven, CT: Yale University Press, 2008).
634 C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited.
(2019) 82(4) MLR 633–664
Gary Edmond and Kristy A. Martire
the ability to overcome potentially biasing influences), we beg in this article
with non-legal examples of cognitive bias in the hope that the experiences
of decision-makers in other domains might help to cast light on the potential
vulnerability of legal practices, commitments and rationales. Let’s begin with
the selection of musicians.4
Selecting the best musicians
Until relatively recently the New York Philharmonic Orchestra selected mu-
sicians on the basis of a competitive audition before a selection panel.5The
eminent panel was composed of experienced musicians, composers, conductors
and patrons. No one suggested that those involved in selection were anything
but well-suited to the task and firmly committed to both the excellence and
vitality of the orchestra. The majority of those involved in selection were
themselves experts or connoisseurs. The musicians recruited in this way were
disproportionately male. This over-representation continued over time, even as
the number of applicants who were women (or from minority groups) began
to more closely resemble broader societal demographics, and as the cultural
advantages once available to white males (eg, privileged access to formal train-
ing) slowly equilibrated. It may be that the over-representation of males was
because male musicians are (inherently) superior to female musicians.6The
alternative is that selectors were making decisions that were biased in favour of
male applicants.
Eventually, as the over-representation of males became sociologically con-
spicuous, the New York Philharmonic decided to exper iment with a different
method of selection. The new procedure was designed to eliminate or reduce
bias against women (and some minorities and music schools). The Philhar-
monic introduced ‘blind’ auditions.7That is, the gender (and race and school)
of the applicant was shielded from the panel through the use of a curtain or
pre-recording (or some other form of non-disclosure).8The selection panel
was forced to make an assessment on the only relevant criterion – the ability of
4 Another revealing example concerns the abilities of wine connoisseurs. See, for example, G.
Morrot, F. Brochet and D. Dubordieu, ‘The Color of Odors’ (2001) 79 Brain & Language 309;
D.Valentine et al, ‘What’s in a wine name? When and whydo wine exper ts perform better than
novices?’ (2000) 36 Abstracts of the Psychonomic Society 5.
5 This account is based on research by C. Goldin, and C. Rouse, ‘Orchestrating Impartiality: the
Impact of “Blind” Auditions on Female Musicians’ (2000) 90 American Economic Review 715-
741. See also, D. Neumark, R. Bank and K. Van Nort, ‘Sex discrimination in restaurant hiring:
an audit study’ (1996) 111 Quarterly Journal of Economics 915; M. Betrand and S. Mullainathan,
‘Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor
Market Discrimination’ (2004) 94 American Economic Review 991.
6 Historical over - and under-representation in certain roles (whether judges, slaves, or professors)
is usually easier to explain sociologically – for example, in terms of opportunity and support –
rather than biologically – ie invoking innate abilities.
7 The Boston Symphony Orchestra began experiments with blind auditions in 1952 and other
groups eventually followed. Such blinding is now embodied in popular media, such as The Voice.
The original program, The Voice of Holland, first aired in 2010.
8 It turned out that there was also a need for carpets as the sounds of shoes, as applicants walked
on the stage behind the screen, provided strong hints about gender.
C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited.
(2019) 82(4) MLR 633–664 635
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