Who Do I Trust to Make Decisions about My Freedom? The Answer: A Rational Judge (Part 1)

The author, in her innovative treatment of the judiciary, offers a new model on how a human makes their decision and reaches their conclusion. The additional model of brain economics has been created to enhance traditional models of legalism and realism. Here, a human being is understood as an actor who creates their decision as an outcome of the individual thought processes in their brain. This model combines the models of game theory and the study of individual thought-creation (brain economy). In this particular approach, the judge, like every other human being, is a participant in brain economics.

Previous study has shown that neurons in the brain are wired and organized like a social network. [1] A new study suggests that it relies on two separate networks when making a decision: one that determines the overall value — the risk versus reward — of individual choices and another that guides how one ultimately behaves. It has been argued that human cognitive control network maintains an overall rational goal despite lots of distractions. Following the above, the author provides the conceptual underpinnings of the use of dynamic one-off game model in judge’s brain neurons analysis and their interplay on both legal/real and personal level. There is much that is appealing in this model, and it is an improvement upon the traditional models of legalism and realism.

Posner, in his article ‘How Judges Maximize? (The Same Thing Everybody Else Does)’ puts forward a view that judges should be recognized as ‘ordinary people responding rationally to ordinary incentives’ and, thus, their conduct should be subject to explanation by economic analysis.[2] He asks, how do judges really decide cases. He suggests that the effect of the “realistic factors” on a given judge depends on the relative weight the judge personally gives to leisure, power, and collegiality. Posner's analysis, however, is not supported by any empirical and psychological tests that could prove his arguments. While Posner uses game theory to suggests that judges are ‘careerist/opportunist‘ this study aims at arguing just the opposite. When proceeding with her line of reasoning the author employes the dynamic one-off game theory and economic of the human brain. Before setting off, she aims to focus on the standards by which game theory will be employed. For the purposes of this analysis, the point of game theory is to help the reader understand and predict what will happen in the contexts of brain economic of a judge that aims at making a particular decision.

An essential feature of all dynamic games within the frames of brain economy would be that a judge condition their optimal actions on what other judges have decided in the past (legalism and realism interplay). This greatly enhances the strategies available to a judge, in that these are no longer equivalent to their possible actions. Arguably, this also increases the rationality of their choices. To illustrate this the author examines the following two period dynamic entry game. There are two potential conclusions that are considering by the judge whether or not to arrive with. For the reasons of this analysis let us call them New & Past. The legal systems within the United States are based on 'one case – one decision' -made law. If two contradictory decisions enter the stage then they will both make a loss of - 1. If only one decision enters the stage, that decision brings an outcome of +2, and other unspoken considered decision will just break even. To make this game dynamic we assume that the judge understood as a human being working on the basis of the economics of their brain at least considers the past decisions, statutes and precedents before they decide what to do next. (TBC)

Figure 1. The Dynamic Entry Game

References:

(Oscola style of referencing)

1. L Cossell and others, 'Functional organization of excitatory synaptic strength in primary visual cortex' (2015) 518 Nature 399–403.

2. RA Posner, ‘What do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (1993) 3 Sup Ct Econ Rev 1, 1.

Image: Design Toscano Themis Blind Lady of Justice Statue Lawyer Gift, 13 Inch, Bonded Marble Polyresin, White www.amazon.com/Design-Toscano-Themis-Justice-Polyresin/dp/B001TM05VM