Thursday, January 17, 2013
Professor Linda Berger deals with the contemporary version of this question in A Revised View of the Judicial Hunch.
Abstract: Judicial intuition is misunderstood. Labeled as cognitive bias, it is held responsible for stereotypes of character and credibility. Framed as mental shortcut, it is blamed for overconfident and mistaken predictions. Depicted as flashes of insight, it takes credit for unearned wisdom.
The true value of judicial intuition falls somewhere in between. When judges are making judgments about people (he looks trustworthy) or the future (she will be the better parent), the critics are correct: intuition based on past experience may close minds. Once a judge recognizes a familiar pattern in a few details, she may fail to see the whole fabric’s color and design. When judges are solving problems, the critics are, however, incorrect: it is in this process that judicial intuition has the power to open minds. Visual and verbal cues point to similarities, triggering an intuition or recognition of potential parallels, unlocking patterns and unblocking paths. When judges are solving problems — and they are doing so when they are finding, interpreting, applying, and making law — both the lawyers seeking to persuade them and the judges themselves may effectively apply lessons suggested by studies of intuitive problem solving.
To support the argument that lawyers and judges should learn from both, this article seeks to reconcile claims from the heuristics and biases branch of cognitive psychology (the branch that demonstrated that intuitive mental shortcuts, or heuristics, often lead to mistakes and cognitive biases) with findings from studies of intuitive problem solving (the branch that studies intuition as the primary method used by real-world experts to identify options for testing). The latter researchers define intuition as “nothing more and nothing less than recognition” of a pattern or path stored in the decision maker’s memory. In this sense, intuition can pull up an instant snapshot of a perception or experience already present in our minds, and so it is easy to see why intuition may lead our judgments astray. But in exactly the same sense, intuition can provide the wide-angle or telephoto lens essential for the very different process of problem solving, a process in which these lenses can be used to reveal unusual angles and unseen corners.