Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision‐Making

Gary Edmond, Kristy A. Martire
2019 Modern law review  
Judges are expected to be impartial. Traditionally, common law judges have been concerned about bias and even 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. What this research reveals is how narrowly
more » ... judges have conceived the biases that threaten legal decision-making. Judges have insisted that some potential sources of bias are not open to review and maintained the idea that they are 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 approaches and discusses the implications of more empirically-based approaches to bias for decision making and institutional legitimacy.
doi:10.1111/1468-2230.12424 fatcat:yirkvttiffcbjivi6dm4b6vwcu