What the Judge Argues is Not What the Judge Thinks - Eye Tracking Evidence about the Normative Weight of Conflicting Concerns in a Torts Case

Christoph Engel and Rima Maria Rahal ()
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Rima Maria Rahal: Max Planck Institute for Research on Collective Goods

No 2020_03, Discussion Paper Series of the Max Planck Institute for Research on Collective Goods from Max Planck Institute for Research on Collective Goods

Abstract: Judicial decision making is not a mechanical activity. It requires a voluntary act. In the abstract, the judge must strike a balance between incompatible normative goals, like backward looking compensation and forward looking deterrence. In the concrete, the decision-maker must weigh conflicting facets of the conflict of life. As a rule, judicial decisions come with explicit reasons. These reasons rationalize the decision. In this paper, we use eye tracking as a window into the – consciously not fully accessible – process of making the decision, testing laypersons on a run-of-the-mill torts case. We manipulate the degree of normative conflict, and either have participants decide as judges, or plead as attorneys. Against expectations, attention is not chiefly directed towards items that support the final outcome. Rather outcome is predicted by attention on potentially conflicting items. Explicit reasons and fixations on items are essentially uncorrelated. Decision-makers are not aware of the elements of the evidence that have been critical for their decision.

Keywords: legal decision making; context of discovery vs. context of representation; eye tracking; balancing; torts; compensation; deterrence (search for similar items in EconPapers)
JEL-codes: D01 D81 D91 K13 K40 (search for similar items in EconPapers)
Date: 2020-01, Revised 2021-03-01
New Economics Papers: this item is included in nep-big and nep-law
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