The Disruptive Neuroscience of Judicial Choice

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, empathy and other aspects of our cognition can be implicit, thereby shaping our behavior in ways that we are unaware. This challenges the longstanding assumption that a judge can simply put feelings aside when making judicial decisions. Third, there is no basis in neuroscience to support the idea that judges are exempt from these aspects of human cognition. These findings disrupt widespread faith in the unassailable rationality and impartiality of judges, and demonstrate how such views are increasingly at odds with evidence about how our brains work. By offering an original descriptive account of judicial behavior that is rooted in neuroscience, this Article provides a novel exposition of why bias, emotion and empathy have the capacity to influence the choices judges make. Doing so asks us to view judges as the humans they are

The Disruptive Neuroscience of Judicial Choice

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, empathy and other aspects of our cognition can be implicit, thereby shaping our behavior in ways that we are unaware. This challenges the longstanding assumption that a judge can simply put feelings aside when making judicial decisions. Third, there is no basis in neuroscience to support the idea that judges are exempt from these aspects of human cognition. These findings disrupt widespread faith in the unassailable rationality and impartiality of judges, and demonstrate how such views are increasingly at odds with evidence about how our brains work. By offering an original descriptive account of judicial behavior that is rooted in neuroscience, this Article provides a novel exposition of why bias, emotion and empathy have the capacity to influence the choices judges make. Doing so asks us to view judges as the humans they are

Cognitive Competence in Executive-Branch Decision Making

The decisions Presidents and those operating under their authority take determine the course of our nation and the trajectory of our lives. Consequently, understanding who has the power and authority to decide has captured both the attention of legal scholars across a variety of fields for many years and the immediate worry of the public since the 2016 Presidential election. Prevailing interventions look for ways that law can offer procedural and institutional reforms that aim to maintain separation of powers and avoid an authoritarian regime. Yet, these views commonly overlook a fundamental factor and a more human one: the individuals empowered to make choices on behalf of the nation. In governance, sometimes the problem is legal or institutional. But sometimes a person is the problem. Taking up this view, this Article investigates how legal scholarship can expand its understanding of executive-branch decision making by adapting insights from neuroscience about how human cognition works. Individuals matter because every instance of executive-branch overreach can be located in a particular decision taken by a specific person. Attending to cognitive functions associated with individual judgment and choice offers a new way of understanding governmental decision making by broadening understanding ofthe government\u27s decision makers. The key to promoting effective governance, this Article argues, requires renovating how the law understands individual choice and determines who should have the legal authority to make decisions that affect the nation. Adopting a neuroscientifically informed perspective on decision making both produces a more accurate, descriptive understanding of how executive-branch decisions are made and destabilizes existing presumptions that a person is qualified to make decisions of national importance solely because she or he is legally authorized (appointed or otherwise selected) to do so. Who decides matters because, in the end, the difference between good and bad governance often comes down to the choices made by the people who are in charge

The Disruptive Neuroscience of Judicial Choice

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, empathy and other aspects of our cognition can be implicit, thereby shaping our behavior in ways that we are unaware. This challenges the longstanding assumption that a judge can simply put feelings aside when making judicial decisions. Third, there is no basis in neuroscience to support the idea that judges are exempt from these aspects of human cognition. These findings disrupt widespread faith in the unassailable rationality and impartiality of judges, and demonstrate how such views are increasingly at odds with evidence about how our brains work. By offering an original descriptive account of judicial behavior that is rooted in neuroscience, this Article provides a novel exposition of why bias, emotion and empathy have the capacity to influence the choices judges make. Doing so asks us to view judges as the humans they are