Title

Misjudging

Authors

Chris Guthrie

Document Type

Article

Publication Title

Nevada Law Journal

Publication Date

2007

Page Number

420

Keywords

judges, dispute resolution

Disciplines

Dispute Resolution and Arbitration | Law

Abstract

Judging is difficult. This is obviously so in cases where the law is unclear or the facts are uncertain. But even in those cases where the law is as clear as it can be, and where the relevant facts have been fully developed, judges might still have difficulty getting it right. Why do judges misjudge? Judges, I will argue, possess three sets of "blinders": informational blinders, cognitive blinders, and attitudinal blinders. These blinders make adjudication on the merits - by which I mean the accurate application of governing law to the facts of the case - difficult. This difficulty, in turn, has important implications for disputants and their lawyers for it bears directly on the choice of dispute-resolution forum. In Part I of this paper, I will develop the positive argument that judges sometimes misjudge due to these three sets of blinders. To do so, I will rely largely on experimental research from psychology and empirical research from political science. Having developed the positive argument in Part I, I will turn to the prescriptive argument in Part II. There, I will explore the forum-selection implications of misjudging - namely, I will argue that the risk of misjudging suggests that various alternative dispute resolution processes, for different reasons and in different ways, might serve disputants better than adjudication.

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