Judges, ‘common sense’ and judicial cognition

ABSTRACT

Judges are like other human beings. They use their ‘common sense’, their common understanding, their contemporary knowledge of society and the expectations of the community, as part of judicial decision-making. Judicial common sense understandings about the world and human behaviour may also form a silent lens through which judges interpret the meaning of matters such as reasonableness and normality of human behaviour, and assess the meaning of visual phenomenon such as signs, pictures and video. However, judges may be unconsciously impacted by cognitive limitations. Judge’s factual assumptions may be influenced by their own cultural worldviews. Judicial use of common sense can be the vehicle through which error and discrimination enter the law. Part 2 of this article examines how judges use common sense in their judicial reasoning. Part 3 suggests that judicial construction of common sense is a cognitive process with the consequent impact of bounded rationality, heuristics, biases, emotion and cognitive illusions. Part 4 discusses whether judges can overcome the limitations of common sense reasoning. The article argues that while common sense and common understandings will always be an inevitable part of judicial decision-making more attention is required to address the limitations of common sense judging.

KEYWORDS:

• Judges
• judicial cognition
• common sense
• judicial notice

Acknowledgements

I thank the anonymous reviewers for their very useful comments and suggestions which assisted in the revision and finalisation of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

ORCID

Kylie Burns http://orcid.org/0000-0001-9303-2252

Notes

1 Frank (1931); Guthrie (2007), p 420; Gageler (2014), p 198.

2 Hon Justice Peter McClellan (2015) ‘Legislative Facts and s 144-A Contemporary Problem?’, Supreme Court of New South Wales Annual Conference 2015, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/supreme-court-of-new-south-wales-annual-conference; See also Posner (2008), p 107; Posner (2013), p 353.

3 Neuberger (2012), Judges and Professors-Ships Passing in the Night? Max Planck Institute, Hamburg https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/mr-speech-hamburg-lecture-09072012.pdf.

4 Burns (2013), pp 83–85, 90–91.

5 Lindsay v The Queen (2015) 219 ALR 207.

6 NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490; [2014] HCA 11.

7 For example see Civil Liability Act 2003 (QLD) ss13–19.

8 Posner (2013).

9 Danzigera et al (2011), p 6892; Guthrie et al (2007); Kahan et al (2012); Neuberger, (2015)‘Judge Not, That ye be not Judged: Judging Judicial Decision-making’ P A Mann Lecture, https://www.supremecourt.uk/docs/speech-150129.pdf .

10 Danzigera et al (2011). This study examined judges presiding over parole hearings. Parolees were far more likely to get a favourable ruling at the start of the day or after a food break than at other times. The probability of getting a favourable decision immediately before a meal break was virtually zero.

11 Kahan et al (2009), p 841.

12 Burns (2013), pp 85–86; Graycar (1995).

13 Justice McClellan is currently the Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse.

14 Hon Justice Peter McClellan (2015) ‘Professional Knowledge and Judicial Understanding’, Keynote Address: 14th Australasian Conference on Child Abuse and Neglect, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/professional-knowledge-and-judicial-understanding; Hon Justice Peter McLellan (2015) ‘Legislative Facts and s 144-A Contemporary Problem?’, Supreme Court of New South Wales Annual Conference 2015, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/supreme-court-of-new-south-wales-annual-conference.

15 Hon Justice Peter McClellan (2015) ‘Legislative Facts and s 144-A Contemporary Problem?’, Supreme Court of New South Wales Annual Conference 2015, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/supreme-court-of-new-south-wales-annual-conference. See also Burns (2004, 2012, 2013); Rathus (2012, 2013); Hamer and Edmond (2016).

16 See above n 1. See also Mullane (1998); Burns (2012); Heydon (2013), para [3200].

17 The concept of ‘fact’ is itself a slippery one in relation to judicial decision-making. For example, there may be slippage between what constitutes facts and law. See Gageler (2015). The philosophical concept of ‘fact’ and whether it must correspond with objective truth is beyond the ambit of this article.

18 Mullane (1998); Burns (2012).

19 Mullane (1998). There were 302 cases identified and the study examined a random sample of 151 cases.

20 Mullane defined ‘social facts’ in his study as ‘facts concerning human behaviour. They are the facts revealed by the disciplines of history, psychology, sociology, anthropology, political science and related fields’. Mullane (1998), p 434.

21 Mullane (1998), p 453. There were social fact statements identified in 30% of judgments.

22 Mullane (1998), p 453. The study found that 60% of statements had no source was specified, 32% of statements referred to expert evidence, 1% of statements referred to some research nominated by the judge and 5% percent referred generally to research but did not nominate the source.

23 Mullane (1998), p 453. Since the Mullane study, the issue of judicial reference to social science in the Family Court has become increasingly controversial. See Rathus (2012, 2013); McGregor v McGregor (2012) 47 Fam LR 498; Jackson v Macek [2015] FamCAFC 114.

24 Mullane (1998), pp 453–454.

25 Burns (2012). In my study social facts were defined as general statements about the nature and behaviour of people, institutions and the nature of the world and society.

26 Burns (2012), p 329.

27 Burns (2012), pp 333–337. See also Serpell (2006); Serpell (2011).

28 Tran (2012).

29 Heydon (2013), [3156]; Gageler (2009), pp 10–16; Thomas v Mowbray (2007) 233 CLR 307 at [639]–[647].

30 Heydon (2011).

31 Graycar (1994, 1995, 1998, 2008); Douglas et al (2014), pp 24–27.

32 Hon Justice Peter McClellan (2015) ‘Professional Knowledge and Judicial Understanding’, Keynote Address: 14th Australasian Conference on Child Abuse and Neglect, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/professional-knowledge-and-judicial-understanding; Hon Justice Peter McLellan (2015) ‘Legislative Facts and s 144-A Contemporary Problem?’, Supreme Court of New South Wales Annual Conference 2015, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/supreme-court-of-new-south-wales-annual-conference .

33 This binary distinction appears to have been adopted in Australia. For example see Aytugrul v R (2012) 247 CLR 170, [71] (Heydon J); Thomas v Mowbray (2007) 233 CLR 307, Maloney v R (2013) 252 CLR 168. See also Heydon (2013), [3005]; Gaegler (2009), pp 17–21.

34 Davis (1942, 1955, 1986).

35 Aytugrul v R (2012) 247 CLR 170 at [70] (Heydon J).

36 Aytugrul v R (2012) 247 CLR 170 at [71] (Heydon J).

37 See the discussion in Heydon (2013), paras [3210]–[3290] for examples of the many ways legislative facts may be used in judicial decision-making. See also Larsen (2012) for a discussion of the use of legislative facts in the United States Supreme Court.

38 Aytugrul v R (2012) 247 CLR 170.

39 Aytugrul v R (2010) [2010] NSWCCA 272 at [89]-[95]. The possible impact is the subconscious rounding up of the percentage to 100% which is likely to potentially lead jurors to over-estimate the likely guilt of the accused.

40 Aytugrul v R (2012) 247 CLR 170 at [21]-[22] (French CJ, Hayne, Crennan and Bell JJ).

41 Section 144 of the Evidence Act 1995 (NSW) is a statutory judicial notice provision which provides proof is not required of knowledge ‘not reasonably open to question’ and which is ‘common knowledge’ or capable of verification by reference to a document the authority of which cannot ‘reasonably be questioned’. Equivalent s 144 provisions are found in Evidence Act 1995 (CTH); Evidence Act 2001 (TAS); Evidence Act 2008 (VIC); Evidence Act 2011 (ACT); Evidence Act (National Uniform Legislation) 2011 (NT). In Western Australian and Queensland the common law doctrine of judicial notice applies.

42 Aytugrul v R (2012) 247 CLR 170 at [73]-[74].

43 Aytugrul v R (2012) 247 CLR 170 at [74].

44 Aytugrul v R (2012) 247 CLR 170 at [75]. This particular legislative fact assumption in relation to the knowledge base of jurors and the group dynamics of jury decision-making may be controversial. See Gordon (2015). Gordon notes there is an extensive literature on the complexity of group dynamics in jury decision-making. For example higher status jurors may be more influential during deliberations, male jurors may speak more than female jurors, and individual jurors may tend to conform to the norm and tailor their views to the majority, rather than act in a way that conflicts with other jurors.

45 Walker and Monahan (1987). See also Schauer (2013), pp 59–60.

46 Aytugrul v R (2012) 247 CLR 170 at [70].

47 Aytugrul v R (2012) 247 CLR 170 at [69] f/n 87.

48 Aytugrul v R (2012) 247 CLR 170 at [69] f/n 91.

49 Aytugrul v R (2012) 247 CLR 170 at [69] f/n 90.

50 Burns (2013), p 80.

51 De Sales v Ingrilli (2002) 212 CLR 338. See discussion in Burns (2013), pp 88–90.

52 NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490 at [1]. The High Court stated in the first sentence of the judgment that ‘not all human beings can be classified by sex as either male or female’. The court appeared to treat this statement as a matter of common sense or common understanding and referred to no empirical evidence in relation to gender identity. Various academic publications and social science evidence had been referred to in the NSWCA (Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145) and in an amicus curiae brief submitted to the High Court by A Gender Agenda Inc. None of this material was referenced by the High Court. The issue of the permissibility of reference to empirical material and academic publications had been raised in the appeal submissions in the High Court, however the High Court did not consider the matter.

53 Kahan et al (2009).

54 Scott v. Harris 550 U.S 372 (2007).

55 Kahan et al (2009), p 839.

56 Roberts CJ, Kennedy, Souter, Thomas, Ginsburg, Breyer and Alito JJ joined; Ginsburg J and Breyer J filed concurring opinions.

57 Scott v Harris, 550 U.S 372 (2007), at 380. There was a dissent by Justice Stevens, who viewed the tape as affirming the lower court’s finding of facts which had supported Mr Harris’ case. Kahan et al (2009), pp 840–841 discuss the various comments made by judges of the Supreme Court during oral arguments (Scott, 127 S. Ct. 1769 (No. 05-1631) referring to the speed of the chase, the weaving and swerving of the vehicle and their view there was a great risk to other motorists during the chase. They note Justice Alito referred to the chase as ‘the scariest chase I ever saw since “The French Connection”’, and Justice Breyer commented that ‘I see with my eyes that is what happened, what am I supposed to do?’.

58 Scott v Harris, 550 US 372 (2007), at 380.

59 Kahan et al (2009), p 84.

60 A link to the video is available at http://www.supremecourt.gov/media/media.aspx. The US Supreme Court has also made available video evidence from two other cases. In Brumfield v Cain 576 135 S Ct 2269 at 2284 f/n 1(Justice Thomas dissenting, with Roberts C.J and Scalia and Alito JJ joining) a link is included to the videotaped confession of Mr Brumfield who had been sentenced to death for killing a police officer. Mr Brumfield argued successfully in the Supreme Court that he should be permitted an evidentiary hearing in relation to intellectual disability, in order to avoid the death penalty. Justice Thomas (in dissent) also made vivid and extended references (at 2286–2287) to the life story of the son of the murdered police officer who grew up to become a NFL football star and philanthropist. This life story was contrasted with that of Mr Brumfield and his attempts to challenge his conviction and sentence. Justice Thomas includes a photograph of the female police officer in the appendix of the judgment (at 2298). Justice Alito and Chief Justice Roberts (at 2298) note the son’s story as ‘inspiring’ and ‘beneficial’ but ‘not essential to the legal analysis’. Kelly v California, 555 US 1020 (2008), involved appeals in two individual cases, which concerned the admissibility of victim impact evidence during the death penalty phases of a case. In both cases, the prosecution played emotive and ‘moving’ video montages of photos and videos of murder victims to the jury. The Supreme Court declined to hear the appeals (four votes were required and only Justices Souter, Stevens and Breyer were in favour). A video of the victim impact statements was posted on the court’s website and referred to in a statement issued by Justice Stevens who voted in favour of hearing the appeal (f/n 1). For a discussion of the emotional impact of videos see Holland (2012).

61 Scott v Harris 550 U.S. 372 (2007) at 378 f/n 5.

62 Kahan et al (2009), p 854.

63 Kahan et al (2009), p 841.

64 Kahan et al (2009), p 841.

65 Kahan et al (2009), p 841.

66 State of Queensland v Kelly [2015] 1 Qd R 577.

67 State of Queensland v Kelly [2015] 1 Qd R 577, at [11].

68 Section 13 (1) Civil Liability Act 2003 (QLD) provides that ‘an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person’ (italics added). Where an obvious risk exists, there is no proactive duty to warn (s 15 Civil Liability Act 2003 (QLD)), a person is taken to be aware of the risk for the purposes of the defence of voluntary assumptions of risk (s 14 Civil Liability Act 2003 (QLD)) and there is no liability for the materialisation of an obvious risk of a dangerous recreational activity’ (s 18 Civil Liability Act 2003 (QLD)).

69 State of Queensland v Kelly [2015] 1 Qd R 577 at [11] (Fraser JA).

70 State of Queensland v Kelly [2015] 1 Qd R 577 at [46]-[48] (Fraser JA).

71 State of Queensland v Kelly [2015] 1 Qd R 577 at [62].

72 There was some discussion at both trial and in Queensland Court of Appeal of a 2002 risk assessment report which had been carried out in relation to the risks of Lake Wabby following earlier injuries. See for example Kelly v State of Queensland [2013] QSC 106 at [44]–[46]. At trial, McMeekin J noted that he had received no submission from either party in relation to what circumstances ought to be taken into account in relation to what factors were important in determining what would be an ‘obvious risk’ to a reasonable man in the position of the plaintiff. See Kelly v State of Queensland [2013] QSC 106 at [67]–[68].

73 Lesch et al (2016), pp 43–44. See Weiler et al (2015).

74 Lesch et al (2016), pp 43–44.

75 Welier et al (2015), p 19.

76 Welier et al (2015); Lesch et al (2016).

77 For example see Water safety signs and beach safety flags - Specifications for water safety signs used in workplaces and public areas (ISO 20712-1:2008, MOD).

78 Weiler et al (2015), p 6.

79 These would be normally the subject of the doctrine of judicial notice. See Heydon (2013), paras [3010]–[3070]; Holland v Jones (1917) 23 CLR 149. In jurisdictions subject to the Evidence Acts see s 144.

80 Burns (2013), pp 83–85, 90–91

81 Burns (2013), pp 86–90. See also McClellan (2006); Gorod (2011), pp 55–56.

82 Burns (2013), pp 85–86; Graycar (1995).

83 There may be multiple reasons this may occur including unclear and incoherent legislative frameworks for the admission of empirical material, judicial suspicion of empirical material, failure of advocates and lawyers to present good quality empirical material to a court and lack of institutional support to access quality empirical material.

84 Guthrie et al (2007), p 1.

85 For example Guthrie et al (2001, 2007); Kahan (2009). The use of the term ‘unconscious’ in this empirical cognitive psychology research and in cultural cognition research is to be distinguished from the use of the term ‘unconscious’ in psychoanalytic theory which has a somewhat different meaning. In psychoanalytic theory (which stems from the work of Sigmund Freud) the influence of the ‘unconscious’ typically refers to the effects of ‘hidden’ and unpleasant thoughts and feelings on conscious human action and human personality. See Bernet (2002).

86 Korobkin and Ulen (2000), p 1085 suggest that decision-making heuristics may simplify decision-making tasks reducing costs of information processing and making it ‘possible to operate in an increasingly complex world’. System 1 thinking describes this quick intuitive process as opposed to System 2 thinking which involves more reasoned and conscious deliberation.

87 Korobkin and Ulen (2000), p 1085.

88 For example see Wistrich et al (2004–5); Guthrie et al (2007, 2008–2009); Rachlinski et al (2009); Wistrich (2004–2005).

89 Guthrie et al (2007), pp 2–3.

90 The term originally coined by Simon (1955).

91 Jolls et al (1998), p 1477.

92 Korobkin and Ulen (2000), p 1076.

93 Korobkin and Ulen (2000), pp 1075–1076.

94 Korobkin and Ulen (2000), p 1076. The modern work on the impact of heuristics and biases on human cognition stems from the ground breaking research of Tversky and Kahneman (1974).

95 Korobkin and Ulen (2000), p 1077.

96 Korobkin and Ulen (2000), p 1077.

97 Korobkin and Ulen (2000), p 1078.

98 For example Burns (2012) found that High Court judges relied on more social facts (without source) in more complex cases.

99 Gageler (2014b), p 159 has commented that overload of information before courts due to the technological revolution may cause the system to ‘collapse under its own weight’. See also Posner (2013) pp 54–104 on the impact of complexity on judging.

100 For a discussion of the increase in complexity and quantity of materials as a result of increasing technology see Gageler (2014b)

101 Agnew-Brune et al (2015).

102 Agnew-Brune et al (2015), p 14.

103 Agnew-Brune et al (2015), p 14.

104 See above n 15.

105 Gorod (2011).

106 Burns and Hutchinson (2009).

107 Williams (2000).

108 There is significant research on group and panel effects on judges however that is beyond the scope of this article. See discussion in Gageler (2014); Martinek (2010).

109 Kahan (2010), p 732.

110 Kahan (2010), p 732. An individual’s psychological need to process information in ways that affirm rather than disconfirm an individuals’ own belief.

111 Kahan (2010), p 732.

112 Kahan (2010), p 733.

113 Wistrich et al (2015), p 868.

114 Hon Justice Robert French (2007) Speaking in Tongues-Courts and Cultures: 25th Australian Institute of Judicial Administration Annual Conference Cultures and the Law, http://www.austlii.edu.au/au/journals/FedJSchol/2007/18.html. See also Gageler (2014).

115 See Sullivan et al (2007); Schauer (2010).

116 For example see discussion in Graycar (2008); Thornton (1996); and Lamb and Litrich (2007), who suggest that for ‘most of the 20^th century, the legal profession throughout Australia’ was predominantly ‘white, male, middleclass and Anglo-Saxon’. This was also the case in the legal profession in the UK, see Sherr (2008).

117 Lady Hale (2013) Should Judges be Socio-Legal Scholars, Socio-Legal Studies Association 2013 Conference , https://www.supremecourt.uk/docs/speech-130326.pdf.

118 Although see the empirical work of Roach Anleu and Mack on the Australian judiciary including the impact of emotional load on judges. See for example Mack and Roach Anleu (2008); Roach Anleu and Mack (2010); Roach Anleu and Mack (2013).

119 Hon Chief Justice Robert French (2009) Conference on Judicial Reasoning: Art or Science? Opening Address, http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj7feb09.pdf, p 5. French CJ suggests that the judicial system already contains safeguards to mitigate their effects. This is debatable. For other Australian recognition of the likely effect of cognitive factors on judicial reasoning, see Mason (2001, 2011); Sharp (1995); Pagone (2009); McClellan (2006); Hon Justice Peter McClellan (2015) ‘Professional Knowledge and Judicial Understanding’, Keynote Address: 14th Australasian Conference on Child Abuse and Neglect, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/professional-knowledge-and-judicial-understanding.

120 See Tversky and Kahneman (1974).

121 See the discussion of the many heuristics, biases and cognitive effects that may impact on judicial reasoning and decision-making in Robbennolt and Hans (2016); Klein and Mitchell (2010).

122 Sunstein (1997), p 1188.

123 Hastie and Dawes (2010), p 89.

124 Hastie and Dawes (2010), p 89.

125 Hastie and Dawes (2010), pp 91–98.

126 See Larsen (2012) pp 1287–1288 for analysis of how judges in the United States Supreme Court refer to legislative fact sources which are most available such as traditional legal sources and newspapers and magazines.

127 Herald (2007), p 9.

128 Guthrie et al (2007), p 22.

129 Herald (2007), p 9.

130 Guthrie et al (2007), p 22.

131 Guthrie et al (2008–2009), p 1509.

132 Guthrie et al (2007), pp 23–24. They note, however, that their empirical study showed judges performed better than other people on similar tests including doctors. Even though most judges answered the relevant experimental question wrongly, others showed the ability to use deliberative judging to overcome the effect of the representative bias. See also Guthrie et al (2008–2009), pp 1511–1512.

133 Cunliffe (2014), pp 150–157.

134 Agnew-Brune et al (2015).

135 Cunliffe (2014).

136 Cunliffe (2014), p 147.

137 Cunliffe (2014), pp 153–156. Cunliffe argues that stereotyping of the welfare-dependent, aboriginal or immigrant, and single parent or blended families, may have been inappropriately used in expert evidence and accepted by judges in child homicide cases in Canada with resulting wrongful convictions. The use of these stereotypes about families was compounded by stereotypes about the authority and reliability of experts.

138 Sunstein (1997). See the discussion of the effect of hindsight bias on judges in Guthrie et al (2007), pp 24–27.

139 Guthrie et al (2007), p 24.

140 Guthrie et al (2001), p 799.

141 Guthrie et al (2001), p 800.

142 Guthrie et al (2001), p 800.

143 For example in their 2006 study of Florida Circuit Court judges conducted at a judicial education event, they found that judges who were given a hypothetical medical negligence appeal problem were subject to intuitive decision-making and were impacted by the hindsight bias. See Guthrie et al (2007), pp 24–26. However, they found in another study that judges were able to better resist the impact of the hindsight bias when they were faced with a highly intricate and ‘rule-bound’ problem which likely induced more deliberative reasoning.

144 Sunstein (1997), p 1182. For a discussion of the psychological mechanism for the ‘bias blindspot’ see Pronin (2008).

145 Sunstein (1997), p 1183.

146 Korobkin and Ulen (2000), p 1092.

147 Guthrie et al (2001), p 811.

148 Guthrie et al (2001), p 811–2.

149 Guthrie et al (2001), pp 811–812. Guthrie, Rachlinski and Wistrich give the example that safe driving means different things to different people such that we can all think that we are better than average ‘safe’ drivers.

150 Guthrie et al (2001), pp 814–815.

151 Guthrie et al (2001), p 815.

152 Sunstein (1997), pp 1180–1181. This is also linked to the endowment effect where people value a possession or status they currently possess more than one they do not. The crux of this effect is reflected in the old saying a bird in the hand is worth two in the bush. See Herald (2007) p 7.

153 Herald (2007), p 8.

154 Herald (2007), p 8.

155 Burns (2012).

156 Wistrich et al (2015), pp 856–857.

157 Wistrich et al (2015), pp 856–857.

158 Maroney (2011a); Maroney (2011b), 2012, 2015).

159 Maroney (2015), p 317.

160 Wistrich et al (2015), p 866.

161 Wistrich et al (2015), p 863.

162 Maroney (2015), p 323 notes that the affect heuristic is only one ‘player in the universe of emotion’ and a much broader range of emotional states may also impact judges.

163 Maroney (2015), p323.

164 Wistrich et al (2015), pp 866–867.

165 State of Queensland v Kelly [2015] 1 Qd R 577.

166 Kahan et al (2012). See also Wistrich et al (2015), p 870.

167 Wistrich et al (2015), p 870.

168 Wistrich et al (2015), p 870.

169 Wistrich et al (2015), p 869.

170 Wistrich et al (2015), p 869. See also Kahan et al (2012), pp 859–860.

171 Wistrich et al (2015), p 869.

172 Wistrich et al (2015), p 869. See also Kahan et al (2012), pp 859–860; Kunda (1990).

173 Wistrich et al (2015), p 862. See however the Australian qualitative work of Roach Anleu and Mack (2010), for example, Roach Anleu and Mack (2013).

174 Glynn and Sen (2015).

175 Wistrich et al (2015). The study involved 1800 state and federal judges from the United States and Canada who participated during judicial education programs.

176 Wistrich et al (2015), 881.

177 Wistrich et al (2015), p 881.

178 Both defendants were arrested at a routine traffic stop with the maximum amount of marihuana permitted by the legislation. Both lacked an appropriate ‘registration card’ for the possession of the medical marihuana at the time of arrest and both had obtained an affidavit from a physician following arrest. The relevant legal issue was whether a certificate obtained after arrest satisfied a particular requirement in the relevant statute. Wistrich et al (2015), p 881.

179 Wistrich et al (2015), p 882. Interestingly, male and female judges did not differ much in relation to their reactions, and years of experience on the bench also did not appear to affect the results.

180 Wistrich et al (2015), p 898.

181 Wistrich et al (2015), p 899.

182 Wistrich et al (2015), p 899.

183 Wistrich et al (2015), p 899.

184 Wistrich et al (2015), p 899.

185 Wistrich et al (2015), p 899.

186 Wistrich et al (2015), p 899.

187 Wistrich et al (2015), pp 900, 904.

188 For examples see Heydon (2003, 2006); Gava (2001, 2003, 2007).

189 For examples of research in relation to Australian courts see Blackshield (1972, 1978); Schubert (1968, 1969); Pierce (2006, 2008); Smyth (2005); Sheehan et al (2012); Turner (2015); Weiden (2011); Booth and Freyens (2014).

190 Weiden (2011); Booth and Freyens (2014); Smyth (2005). Smyth (2007), p 402 notes that the attitudinal model, which seeks to explain judicial decision-making in terms of personal background and ideology, is controversial in the Australian context. The Australian evidence that judge’s characteristics impact judicial dissent is ‘at best mixed’.

191 The Cultural Cognition Project at Yale Law School, http://www.culturalcognition.net/.

192 Kahan et al (2009), pp 842, 842.

193 Kahan and Braman (2006), p 155.

194 Kahan and Braman (2006), p 155. See also Secunda (2010); Secunda (2012).

195 Kahan et al (2012), p 859.

196 For example emotion and group identity

197 They particularly draw on the work of Douglas and Wildavsky. See Douglas (1966); Douglas and Wildavsky (1982).

198 Kahan and Braman (2006), pp 151–152.

199 Kahan and Braman (2006), pp 151–152.

200 Kahan and Braman (2006), p 153. This relates to the human tendency to evaluate information on the basis that it confirms existing beliefs and identity.

201 Kahan and Braman (2006), p 153. This refers to the role of emotions in the human evaluation of phenomena.

202 Kahan and Braman (2006), p 153. The tendency to conform to the beliefs of those whom you trust.

203 Kahan and Braman (2006), p 151.

204 Kahan and Braman (2006), p 151.

205 Kahan and Braman (2006), p 151.

206 Kahan and Braman (2006), p 151.

207 Kahan and Braman (2006), p 156. Kahan and Braman’s empirical research confirmed the impact of cultural worldviews on risk assessment and individual beliefs and factual perception.

208 Kahan and Braman (2006), p 156.

209 Kahan et al (2009), pp 860–864, 870. See also Kahan et al (2007).

210 Kahan et al (2007), p 466. Note however, Kahan, Braman, Gastil, Slovic and Mertz argue at p 466–467 that it is not gender, racial or demographic differences as such that cause differing risk or fact perceptions, but rather the cultural worldviews adopted by an individual which themselves ‘feature race or gender differentiation’.

211 Kahan (2009), p 418.

212 Kahan and Braman (2008).

213 Kahan (2010).

214 Kahan (2009), p 418.

215 See Kahan et al (2009).

216 Kahan (2009), p 418.

217 Kahan et al (2009), p 895.

218 Kahan et al (2009), p 895.

219 Kahan et al (2016). Factual features were built into the legal problems which were not legally relevant but which were likely to trigger identity protective responses from those of particular cultural worldviews. The environmental and social deviance risks included issues such as global warming, nuclear power, air and water pollution, legalisation of marihuana, teenage pregnancy, domestic terrorism and drug trafficking.

220 Kahan et al (2016), p 411.

221 Kahan et al (2016), p 411.

222 Kahan et al (2016), p 411.

223 Kahan et al (2016), p 411

224 Kahan et al (2016), p 412.

225 Burns (2012); Burns (2013).

226 Kahan et al (2012), p 853.

227 Kahan et al (2012), p 854. Kahan et al refers to this as ‘cognitive illiberalism’.

228 Rachlinski (2011); Justice Mark Weinberg (2013) Evidence- Based Law: Its Place in the Criminal Justice System, Judicial College of Victoria Workshop, http://www.austlii.edu.au/au/journals/VicJSchol/2013/7.pdf. Rachlinski notes the failure of law to embrace evidence based decision-making in the same manner as disciplines such as medicine and business.

229 Posner (2013); Miles and Sunstein (2008).

230 Posner (2013) discusses this problem in the American context. See also Gorod (2011).

231 Hon Justice Peter McClellan (2015) ‘Legislative Facts and s 144-A Contemporary Problem?’, Supreme Court of New South Wales Annual Conference 2015, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/supreme-court-of-new-south-wales-annual-conference; Hon Justice Peter McClellan (2015) ‘Professional Knowledge and Judicial Understanding’, Keynote Address: 14th Australasian Conference on Child Abuse and Neglect, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/professional-knowledge-and-judicial-understanding.

232 Rachlinski (2011), p 917.

233 Rachlinski (2011), p 918.

234 Rachlinski (2011), p 919.

235 A wicked problem by its nature is ‘complex, open-ended and intractable’. See Head (2008).

236 Hamer and Edmond (2016); Edmond, Cunliffe, Hamer (2016).

237 Hamer and Edmond (2016).

238 See n 15.

239 Aytugrul v R (2012) 247 CLR 170.

240 Burns (2012), pp 319–320.

241 McGregor v McGregor (2012) 47 Fam LR 498.

242 For example see Aytugrul v R (2012) 247 CLR 170, [75] (Heydon J) in relation to composition of jurors and power of a single member of a jury to explain evidence to other members of a jury.

243 For example see Maloney v R (2013) 252 CLR 168.

244 Hamer and Edmond (2016). This is the position in the United States see Federal Rules of Evidence Rule 201.

245 One obvious way to introduce social framework evidence is via the expanded use of oral or written expert evidence. See Walker and Monahan (1987). However, it may also possible to introduce social framework evidence in other ways, including those discussed below.

246 Orr-Larsen (2012), pp 1291–1305. See also Gorod (2011), p 9.

247 Orr-Larsen (2012) refers to this as a ‘maximalist’ approach. See also Gorod (2011).

248 Burns (2013), p 98.

249 Burns (2013), pp 98–99.

250 Burns (2013), p 99.

251 Edmond et al (2016). See also Burns (2013), p 99.

252 For example see Judicial Commission of NSW (2015) Equality Before the Law Bench Book: Update 9 http://www.judcom.nsw.gov.au/publications/benchbks/equality.

253 Judicial Commission of NSW (2015) Equality Before the Law Bench Book: Update 9 http://www.judcom.nsw.gov.au/publications/benchbks/equality, pp iii–vii.

254 Burns (2013), p 99. It should be noted however that increased use of amicus brings its own issues such as the potential for increased provision of unreliable information to judges which is not based on research but rather is simply the ‘common sense’ of the amicus authors. Increased use of amicus brief s in Australia may need to come with its own safeguards. See Larsen (2014).

255 Burns (2013), pp 99–100. See also Thornburg (2008).

256 Burns (2013), p 99.

257 Secunda (2012), pp 406–414. Secunda notes (at p 408) the downside of specialist courts may be increased cultural bias and ‘capture’ by the viewpoints of interest groups. See also Rathus (2013).

258 Burns and Hutchinson (2009).

259 Burns and Hutchinson (2009).

260 For example see the debate between McHugh J and Callinan J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 in relation to the relevance of ‘legislative fact’ empirical information referred to by McHugh J.

261 Rachlinski (2011), p 922. Kahan and Braman (2006).

262 Rachlinski (2011), p 922.

263 Kahan et al (2012), pp 894–895.

264 Caution does have to be exercised to the extent that it is assumed that simply appointing a more ‘diverse’ group of people to Courts will necessarily result in a broader range of ‘common sense’ before courts. For example, the argument that more women on the court would necessarily result in major changes to how courts made decisions has not always been borne out in empirical work. See for example discussion in Dixon (2010); Hunter (2008); Douglas et al (2014), p 5.

265 Mason (2001), p 686.

266 Benforado (2011).

267 See Cane (2000), p 41 who suggests that, in relation to consequence based arguments, where evidence is not available or not used by a judge, judges should acknowledge a consequence argument does not rest in actual knowledge. See also Monahan and Walker (1991).

268 This clearly again raises the need for discussion of the impact of these factors in legal and judicial education.

269 Maroney (2011a, 2011b);

270 Guthrie et al (2007), p 5.

271 Guthrie et al (2007), pp 6–10. Intuitive cognitive processes are also referred to as ‘System 1’ processes and deliberative processes are also referred to as ‘System 2’ processes. See also discussion in Guthrie et al (2008–9).

272 Guthrie et al (2007), p 33.

273 Guthrie et al (2007), p 33. Guthrie et al (at pp 32–42) also suggest responding to other factors which might create judicial bounded rationality. This includes expanding time to make decisions, writing opinions (although of course this is already a feature of many cases) and using scripts and multi-factor tests. See also Irwin and Real (2010).

274 Guthrie et al (2007), p 38. This could also include the provision of feedback via peer review.

275 There is some coverage of the effects of cognitive factors in judicial education programmes conducted by the Judicial College of Australia, Australian Institute of Judicial Administration and other Australian judicial education bodies such as the Judicial Commission of NSW. See for example National Judicial Orientation Program 2015 https://njca.com.au/wp-content/uploads/2014/07/NJOP-June-2015.pdf. However, of course this only likely impacts on judges who actually attend these programmes. 

276 Guthrie et al (2007) pp 42–43. Guthrie et al note that their reforms are likely to increase the time and cost of judicial decisions but suggest that improvements in judicial accuracy may be worth the costs of reform. Maroney has also suggested reforms which would specifically respond to the impact of ‘affect’ (or emotion) on judicial reasoning. See Maroney (2011a, 2011b); Maroney (2015).

277 Kahan et al (2012), p 898.

278 Kahan et al (2012), p 898. See also the discussion in Secunda (2010); Secunda (2012) of other de-biasing strategies which might also be effective including specialist courts and ‘expressive-overdetermination’ (crafting reasons which acknowledge and respond to multiple cultural worldviews); and ‘trimming’ a method outlined by Sunstein (2009) which encourages judges to steer between polar positions to try and show respect for and preserve the essence of competing worldviews.

279 Hon Chief Justice Robert French (2009) Conference on Judicial Reasoning: Art or Science? Opening Address, http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj7feb09.pdf;

280 Posner (2010), p 1184. See also Kahan et al (2012), pp 896–897 much might depend on the group composition and the degree of deliberation that occurs.

281 S Hon Justice Peter McClellan (2015) ‘Legislative Facts and s 144-A Contemporary Problem?’, Supreme Court of New South Wales Annual Conference 2015, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/supreme-court-of-new-south-wales-annual-conference.ept 2015 speech.

282 Hon Justice Peter McClellan (2015) ‘Legislative Facts and s 144-A Contemporary Problem?’, Supreme Court of New South Wales Annual Conference 2015, https://www.childabuseroyalcommission.gov.au/media-centre/speeches/supreme-court-of-new-south-wales-annual-conference.

283 Maroney (2015), p 318.

284 Maroney (2015), pp 318–319.