- Elgar original reference
Edited by Marta Sinclair
14 Legal intuition and expertise Andreas Glöckner and Irena D. Ebert When I became more familiar with the practices in admiralty and in equity, more especially when, a judge in such cases, I felt the restless, eager ranging of the mind to overcome the confusion and the perplexities of the evidence, or of constricting and outworn concepts, and so to find the hidden truth, I knew that not only was it the practice of good judges to ‘feel’ their way to a decision of a close and difficult case, but that in such cases any other practice was unsound. (Hutcheson, 1929: 277) Considering the extensive consequences caused by legal decisions, both practitioners and scholars have dealt with the question of the perfect route to valid legal decisions. That is, how should legal decisions be made? Hutcheson (1929), a chief federal judge of the US 5th Circuit, describes his radical change of mind concerning this question. While starting from the position that all legal reasoning has to be based on logic and deliberate information processes he later came to the conclusion that ‘hunches’ or ‘feelings’ play a crucial role and are even necessary for appropriate decision making in difficult legal cases. Guthrie et al. (2007) have shown that judges heavily rely on intuition. In a set of studies, they used deviations from rational behavior to trace intuition and to identify its downsides (cf. Kahneman et al., 1982). The authors revealed that judges tend to select intuitive (but wrong) answers in...
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