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Abstract

This Article explores the effects of a judge’s prior assumptions, values, and experiences on judicial decisionmaking. In Part II, this Article will explore the cognitive science research regarding decisionmaking and implicit bias to reveal how each of us develops values, intuitions, and expectations below the level of our consciousness that powerfully affect both our perceptions and our judgments. Although there are many types of cognitive biases and heuristics involved in decisionmaking, for purposes of this Article, I focus on implicit biases towards various social groups. “[E]xplicit” biases are attitudes and stereotypes that are consciously accessible through introspection and endorsed as appropriate. By contrast, “implicit” biases are attitudes and stereotypes that are not consciously accessible through introspection and are more likely to emerge during stressful situations or when someone is forced to make a decision in a short amount of time. Many of these biases are pervasive and not in line with our beliefs. If we find out that we have them, we may indeed reject them as inappropriate. Part III will summarize recent studies regarding judges, cognitive illusions, and implicit bias to demonstrate that a judge’s past experiences, prior assumptions, and resulting cognitive schemas, or cognitive shortcuts, do influence her decisionmaking, whether or not she is aware of it. In light of the cognitive science research, Part IV proposes the tool of judicial empathy to mitigate the inevitable implicit biases each judge brings to the bench. Part V discusses judicial empathy in the context of Fourth Amendment, discrimination, criminal, and Establishment Clause cases in which courts apply reasonableness standards. The cases discussed in Part V illustrate that a judge’s work requires a capacity to understand the challenges faced by a wide range of potential litigants from across the spectrum of our society.

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