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How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes.
From the article:
In this Article, we argue and attempt to demonstrate that neither the formalists nor the realists accurately describe the way judges make decisions, but that key insights from each form the core of a more accurate model.9 We propose a blend of the two that we call the ―intuitive-override‖ model of judging. Supported by contemporary psychological research on the human mind and by our own empirical evidence, this model posits that judges generally make intuitive decisions but sometimes override their intuition with deliberation. Less idealistic than the formalist model and less cynical than the realist model, our model is best described as ―realistic formalism.‖ The model is ―realist‖ in the sense that it recognizes the important role of the judicial hunch and ―formalist‖ in the sense that it recognizes the importance of deliberation in constraining the inevitable, but often undesirable, influence of intuition.10
Our model departs significantly from recent research on judicial decision making in two ways. First, most judicial scholars have studied appellate judges, particularly Supreme Court justices,11 and their political ―attitudes‖ or ideology.12 In contrast, our model arises from the study of trial judges. This is an important distinction because trial judges play a more prominent role in dispute resolution than do appellate judges.13 Trial courts handle approximately 98% of the thirty-five million cases that the federal14 and state15 courts resolve each year. Moreover, trial court decisions are generally final because appeals are only available on limited bases,16 occur infrequently,17 and seldom lead to reversal.18