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For most people, the face of civil justice is the face of a trial judge (or perhaps that of his/her lawyer). In continental legal systems, the trial judge manages any civil case filed; the judge conducts the investigation and ultimately decides the dispute. In common law countries parties themselves are responsible for investigation, but jury trials are increasingly rare events. And in both systems, most cases are settled out of court, often with some prodding or cajoling by the trial judge. Appeals in both systems are rare, meaning that the first adjudicator is usually the last one that parties will encounter. Understanding how trial judges think about litigation and dispute resolution is thus the key to understanding how a system of justice functions.
Until recently, the mind of the trial judge has been something of a mystery. Legal scholars theorize endlessly about the high court judges in any system, studying every line of every opinion for clues as to the ideological and juridical commitments that might underlie their choices. But while high court judges are constantly under the microscope, the decisions that dictate the outcome in most civil cases have not even been on the radar screen for most legal scholars (with the exception, maybe, of employment law). Some scholars have argued for years that trial judges have an enormous influence over case outcomes, even when cases are settled out of court. But these claims have lacked hard evidence, and even if true, we know little about how judges use this influence.
Fortunately, ignorance is beginning to turn into insight. The widespread availability of data on court decisions has enabled researchers to use massive data sets to detect trends in decision making. And other scholars have recruited judges to become research subjects themselves.
It is too early to tell what will come of a new focus on trial judges and their work. But fertile new ground has been found for novel empirical and theoretical insights into the role of the civil adjudicator. New studies on the role that cognitive biases, personality and demographic variables, motivational factors, and stereotypes play in judicial decision making are beginning to take advantage of these new methods. Everything from fMRI studies of actual judges to research on whether the timing of lunch breaks affects judicial decision making are being conducted on multiples continents. Soon enough, we may really know whether Jerome Frank’s maxim that “justice is what the judge had for breakfast” is really true.
For this colloquium we propose to bring together a highly esteemed set of speakers/authors from Europe and the USA on the empirical-legal dimensions concerning the cognitive processes in the judiciary and how the courts’ thinking and deciding is shaped and molded. Contributions would focus on the methodology of using empirical insights in our understanding of the judicial decision-making process as well as (on a more practical level) on what we know and do not know about cognitive processes in civil adjudicators, how potential pitfalls could be avoided and how procedural restraints may either mitigate or amplify biases and heuristics in the adjudication process.