Post-Conference Review
Decision Making and the Biased Brain
by Kelly Tait

The effects of bias on decision-making were explored in a fascinating workshop at NASJE’s 2009 Annual Conference called “The Empirical Psychology of Decision Making: The Brain and the Unseen Components of Bias.” The session was taught by Dr. Jack Grinband, a neuroscientist at Columbia University, and Kimberly Papillon, Senior Education Specialist for California’s Center for Judicial Education and Research.

The workshop explored how deliberation and unconscious processing combine to drive decision-making, and how bias can subvert the deliberative process. In a series of vivid examples, Dr. Grinband illustrated the effects of processes such as contextual priming, where seemingly irrelevant contextual/environmental factors influence behavior. For instance, studies have documented the impact of the venue where voting takes place, with voters who are casting ballots in a school (or who have just been exposed to school-related images) more likely to vote in favor of educational initiatives. Even the temperature of a beverage people were given—another thing that logically should not have any impact on decision-making—affects how the subjects rate the person they are evaluating. (Volunteers with warm coffee [vs. iced coffee] rated people as 11% “warmer.”)

Dr. Grinband also discussed the Implicit Association Test (IAT), a psychophysical tool measuring associations between concepts such as gender and professions, weapons and ethnicity, etc. How are these associations made? “Cells that fire together, wire together” (Hebbian learning) – so, for instance, when media portray a particular group in a particular way (either positive or negative) over time, we begin to think of the group and the attribute together. Then these expectations affect decisions, as illustrated in studies such as “The Impact of Baby-Facedness and Attractiveness on Adjudications in Small Claims Court” in Law and Human Behavior (Zabrowitz and McDonald, 1991) which documented that as plaintiffs increased in attractiveness, they were more likely to win the case, and as defendants increased in “baby-facedness,” they were more likely to win cases involving negligent actions.

According to Dr. Grinband, “Our brains are basically coincidence detectors,” and “Associations can be made between things that are relevant or irrelevant” – the association is based on timing rather than necessarily on a more meaningful connection. Even really good decision-makers can never suppress irrelevant connections 100% - “Some people are better at it than others, but no matter how good you are, it’s really a matter of degree,” said Dr. Grinband. However, “With enough effort you can de-emphasize irrelevant connections” (dissociate ideas that have become connected through accidents of timing).

Dr. Grinband also discussed how increasing the cognitive load can affect decision-making. Internal or external (environmental) stressors can affect our ability to suppress irrelevant factors. “It’s how we’re wired,” he said. If we are aware of those stressors, we can more accurately evaluate our own behavior and how to improve our decisions. For instance, it can help for judges to understand that there tends to be a heavy cognitive load in some situations and that under those circumstances their decisions might be based more heavily on expectations and associations. An example of a heavy cognitive load could be when judges are dealing with lots of self represented litigants – working to make sense of what the litigants are saying, to judge competency, to explain processes, to move cases expeditiously, etc.

Dr. Grinband’s presentation was complemented by Kimberly Papillon’s contributions (via speakerphone). She had attendees participate in several activities that illustrated the influence of these mental processes on decision-making. She also discussed some revealing studies including one related to the impact of gender on evaluations of Curricula Vitae (Steinpreis et al, 1999). 895 professors of psychology (male and female) reviewed a CV for an applicant who had randomly been assigned the name “Jane Smith” or the name “John Smith.” Researchers found that the professors of psychology were significantly more likely to recommend hiring the applicant when the CV had “John Smith” as the name rather than “Jane Smith.” And the reviewers were four times more likely to write cautionary comments regarding hiring the “female” applicant than the “male”... with exact same set of qualifications!

Even with the progress our society has made in reducing overt expression of racist and sexist attitudes and stereotypes, bias is alive and well.

How this applies to us as judicial educators
Kimberly Papillon discussed how, as judicial branch educators, we need to have the conversation about science, to normalize the idea that we all have implicit biases in order to reduce the barrier to learning that defensiveness about them can create. The value of using research into social cognition to make fairness courses more effective was emphasized.

We also discussed other ways to change the automatic biases we have based on the way the brain works. One suggestion was to flash pictures (over and over) of people with positive personal associations to counter some of the culturally-ingrained stereotypes (for instance, show photos of people like Nelson Mandela to counteract negative stereotypes about Blacks). This led to the idea of a screensaver on judicial branch employees’ computers with images that would counter stereotypes, hopefully helping to reconfigure our thinking so that negative associations are replaced in order to get the highest quality of decision-making possible. The session was interesting, informative, and lively. It was moderated by Crystal Banks, Deputy Director for Judicial Training, D.C. Courts.

Copyright 1999-2012, National Association of State Judicial Educators
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