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February 19, 2008

A must-read for all would-be sentencing reformers

Though the paper does not mention sentencing once, this new work soon to be published in the Cornell Law Review is a must-read for any and all would-be sentencing reformers. The piece is titled, "Blinking on the Bench: How Judges Decide Cases," and here are excerpts:

In this Article, we argue and attempt to demonstrate that neither the formalists nor the realists accurately describe the way judges make decisions, but that key insights from each form the core of a more accurate model. We propose a blend of the two that we call the "intuitive-override" model of judging.  Supported by contemporary psychological research on the human mind and by our own empirical evidence, this model posits that judges generally make intuitive decisions but sometimes override their intuition with deliberation.  Less idealistic than the formalist model and less cynical than the realist model, our model is best described as "realistic formalism." The model is "realist" in the sense that it recognizes the important role of the judicial hunch and "formalist" in the sense that it recognizes the importance of deliberation in constraining the inevitable, but often undesirable, influence of intuition....

As we demonstrate below, judges are predominantly intuitive decision makers, and intuitive judgments are often flawed.  To be sure, intuition can lead to accurate decisions, as Malcolm Gladwell documents in his bestseller, Blink, while deliberation can lead to error, as any court observer knows.  But intuition is generally more likely than deliberation to lead judges astray.  We suspect this happens with some frequency, but even if it is uncommon, millions of litigants each year might be adversely affected by judicial overreliance on intuition.  Therefore, the justice system should take steps to limit the impact of what we call "blinking on the bench."

Eliminating all intuition from judicial decision making is both impossible and undesirable because it is an essential part of how the human brain functions. Intuition is dangerous not because people rely on it but because they rely on it when it is inappropriate to do so. We propose that, where feasible, judges should use deliberation to check their intuition.

I suspect that anyone who has ever done any serious sentencing work can identify fully with the concept of an "intuitive-override" model of judging and also can report instances in which their clients (whether a defendant or the government) were "adversely affected by judicial overreliance on intuition."  What's especially interesting is that this article's proposed "solution" to "blinking on the bench" sounds a lot like the post-Booker sentencing model that has emerged after the Supreme Court's follow-up decisions in Rita and Gall and Kimbrough.

February 19, 2008 at 03:56 PM | Permalink


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Guthrie, Rachlinski and Wistrich have done a bunch of interesting empirical studies on how judges decide cases... looking forward to reading this one.

Posted by: | Feb 19, 2008 4:35:38 PM

well, "a bunch" = 2 others, but they were interesting.

Posted by: | Feb 19, 2008 4:36:29 PM

For a look at how psychology plays into sentencing specifically, see Ruback, R. B., & Wroblewski, J. (2001). The Federal Sentencing Guidelines: Psychological and policy reasons for simplification. Psychology, Public Policy, and Law, 7, 739-775.

Posted by: | Feb 19, 2008 8:24:23 PM

A must read? I think a 1L could have read Gladwell's Blink and drawn most of the same conclusions.

Posted by: hater | Feb 19, 2008 9:15:14 PM

I have a question regarding Post Apprendi:
I do not see why Booker et al. do not apply to
PRE Apprendi convictions. Unconstitutional is....
UNCONSTITUTIONAL!!!!, yesterday, today, & tomorrow.

What is going on in regards to RETRO ACTIVITY for marijuanna conspiracy charges.

Thank you

Posted by: Sabina Fairfax | Feb 20, 2008 1:43:56 PM

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