New book explores influence of factors beyond the law on judicial decisions

Dr Brian Barry

How Judges Judge: Empirical Insights into Judicial Decision-Making, published by Informa Law from Routledge, reviews cutting-edge international research from many different academic perspectives in psychology, economics, court processes, politics, and technology to unlock answers to the key question of how judges judge.

“A judge’s role is to make decisions, and a good judge is expected to make them impartially, fairly and based on law. But so much more, other than the law, can affect judging,” Dr Barry said.

“This book presents, for the first time in one place, global research from multiple disciplines on how judges judge.”

He continued: “To give some examples: in 2012, six Italian scientists and one official were convicted of manslaughter for allegedly downplaying the likelihood of a major earthquake in L’Aquila, Northern Italy that occurred six days later.

“It wasn’t until 2016 that all convictions were overturned. Some argue that hindsight bias, the tendency to think that an outcome is more predictable after it has happened than it actually was at the time, played a part in the trial judge’s decision to convict. Studies prove that hindsight bias and other cognitive biases can sometimes affect judicial outcomes.

“Another concern is how to tackle excessively high compensation awards in some personal injuries’ cases. Studies show that, among other factors, unduly high awards can be caused by judges’ errors in numerical reasoning. For example, legislators sometimes propose caps in awards of damages, a reform currently being looked at in Ireland. In fact, some research demonstrates that caps can lead to higher awards on average, as judges are drawn towards the maximum amount available.”

Beyond civil law, Dr Barry said race and ethnicity issues are becoming increasingly significant in evaluating how our criminal justice system serves the community.

He said: “Research from other jurisdictions demonstrates how stereotyping can detrimentally affect courtroom decision-making. This research can be used to inform criminal justice policy in Ireland.

“At a more structural level, how judges are appointed and who gets to appoint them is a significant factor, as the controversy over Amy Coney Barrett’s appointment in the US highlighted. Appointments can have a trickle-down effect: politically-motivated, polarising appointments can affect judicial outcomes in sensitive areas of the law.

“The Irish government is currently considering reforms to how judges are appointed, and they should look to other jurisdictions’ experiences to guide them on the consequences of different appointments processes.”