
How food-breaks sway the decisions of judges - robg
http://blogs.discovermagazine.com/notrocketscience/2011/04/11/justice-is-served-but-more-so-after-lunch-how-food-breaks-sway-the-decisions-of-judges/
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jws
To repeat myself from the previous time this study was posted:

 _The work itself is behind a paywall, but you can read some of the supporting
material
at[http://www.pnas.org/content/suppl/2011/03/30/1018033108.DCSu...](http://www.pnas.org/content/suppl/2011/03/30/1018033108.DCSupplemental/pnas.201018033SI.pdf)
to get an idea.

I found the giant line graph problematic because of the hand waving they did
to normalize when the breaks occurred during the day. It also disturbs me to
see such large, high frequency variation in a line that is averaging a large
number of events without explanation._

The dataset certainly begs for a better analysis. For instance, from the
supporting material, is there really a judge (the 'X' marker) the _never_
granted parole to the last three people before his morning snack, but granted
70% for the first three of the day on average? All year, for a significant
number of cases? Did no one notice that the people before snack time were not
getting due process?

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shasta
"The graph is dramatic."

No, that graph is incredible. Literally unbelievable. 70% accepted in the
morning to down below 10% before snack? Either this data is BS or there's some
hidden variable here.

~~~
T-hawk
The comments on the original article do suggest another variable. The schedule
may not be randomly arranged. The judges or the court clerks could actively
arrange for easy cases earlier and more diffficult or complicated cases later.
IOW, the variables may not be independent.

Also it's worth pointing out that this was a study on Israeli judges. American
legal precedents and opinions and scheduling norms may not apply.

~~~
boredguy8
"It’s not possible that someone ordered the cases in a special way. The judges
know nothing about upcoming cases ahead of time, so they can’t decide to take
a break in the knowledge that an easy positive case is coming up. They also
have control over when they set their breaks, so prison staff cannot
predictably schedule the hearings in order of ease."

~~~
sliverstorm
_They also have control over when they set their breaks_

So... maybe they routinely take a break after a particularly emotionally
trying or complicated case? Then we only need demonstrate the messy cases are
more likely to produce an unfavorable decision.

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markstansbury
Legal realism is so fantastically obvious as this study easily shows.

The law is what judges do. So your lawyer had better know how to "manipulate"
the judge.

~~~
lionhearted
This is true and obvious to some extent, but there's some real downsides to
the legal realism movement. Legal realism starts off with a correct premise -
that judges are flawed and human like the rest of us - but some people go
further and come to the conclusion that, thus, no justice is possible and we
should just game the system as much as possible.

It's an absolute fact that the American legal code has become more _much_ more
bloated, and in my opinion, more haphazard, disorganized, and prone to severe
contradiction following legal realism becoming a popular philosophy.

It's immediately obviously true in its premise, but some of the conclusions
following from legal realism seem to make the justice system worse.

~~~
tghw
To be fair, most legal codes become much more bloated over time. You can
hardly blame the legal realism movement for this correlation.

~~~
lionhearted
This is true, but take a look at this:

[http://en.wikipedia.org/wiki/Legal_realism#Essential_beliefs...](http://en.wikipedia.org/wiki/Legal_realism#Essential_beliefs_of_legal_realism)

Specifically,

"Belief in the importance of interdisciplinary approaches to law. Many of the
realists were interested in sociological and anthropological approaches to the
study of law. Karl Llewellyn's book The Cheyenne Way is a famous example of
this tendency. ... Belief in legal instrumentalism, the view that the law
should be used as a tool to achieve social purposes and to balance competing
societal interests."

This contributes to the current culture, I think, of having 1000 page laws
that nobody except lobbyists have actually read. Legal realism says, "There's
a problem here, justice isn't perfect" - but then proposes a cure _much_ worse
than the disease.

Yes, legal codes do tend to get bloated. But I think legal realism has been a
foe, not a friend, of a straightforward and consistent legal code.

That's before even getting into things like fad psychology getting introduced
to the courtroom, where psychiatric evaluators use things like the Rorschach
test to evaluate people on trial. It's frigging _scary_ that fad social
science gets introduced without vetting into the court system, and it turns
the common law system from an asset into a liability. But anyways, this is a
long conversation - I just wanted to point out that despite legal realism's
premises being correct, that doesn't necessarily make all of the conclusions
lead to good places.

~~~
anigbrowl
You're way overloading the idea of legal realism to make your argument, and
ignoring things like the influence of critical theory (Marxist/Hegelian
dialectic, which is not the same thing as Marxism), public choice theory, the
pragmatic movement and so on. Yes, this stuff is very much inside baseball,
but I don't think you should rely on Wikipedia to form your opinions about
this complex subject.

FWIW I'm inclined towards liberal pragmatism, and biased with an admiration
for Richard Posner, probably because I already shared his admiration for JS
Mill. Posner's book 'overcoming law' is a good survey of judicial philosophies
from the most conservative kinds of formalism/originalism to the most left-
wing kinds of identity politics.

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flashingleds
Some vertical error bars would have been helpful on that plot, but having read
the original article (from behind the pay wall) I'm pretty satisfied that they
thought about all the obvious problems being discussed in these comments. I am
a practicing experimental scientist but with minimal knowledge of statistics,
so factor that into whatever I say here.

They point out that a negative ruling ("no" or "almost - come back next time")
is much easier to deliver. There is less thought involved, nobody will raise
eyebrows and the paperwork is much lighter. So the trend is more about mental
energy than grumpiness. They note the significance of the breaks, but do not
attempt to disentangle the role of mood improvement / a blood sugar boost /
rest.

They explicitly discuss the possibility of hidden variables: "A key aspect for
interpreting the association ... is whether an unobserved factor determines
case order in such a way that yields the pattern of results we obtain" The dip
and spike patterns in the rulings are quite pronounced, and similar graphs in
the article for parameters such as the gravity of the offense, presence of a
rehabilitation plan and the number of previous incarcerations do not show any
such trends. This addresses questions about case scheduling by the clerks.
Besides which - even if the clerks did organize easier cases for later in the
day, this would manifest as one long trend over the entire day, not the
spike/decay sequence shown.

So I didn't see any gaping holes, and more importantly it seems quite a
plausible conclusion to me. Surely you must have had a similar experience
going Christmas shopping - you start out thinking very carefully about getting
the perfect gift for every person, but after 3 hours trudging around in a mall
you'll just buy any old shit so you can go home. As you get tired you just
start taking the easiest options.

------
splat
I'm curious if the difference is due more to the food or to the break. Would
taking a break without eating have a similar effect?

~~~
a-priori
My theory is that it's more about the judge's blood sugar than about the
break. Here's a Science Daily post about one documented case of blood sugar
affecting decision-making:

[http://www.sciencedaily.com/releases/2010/01/100125173444.ht...](http://www.sciencedaily.com/releases/2010/01/100125173444.htm)

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DufusM
To combat these kind of issues, maybe the law should move to some kind of a
majority of three decisions, each hearing being random in all possible senses.

~~~
cpeterso
Or we could use tele-judge technology so all defendants can get a hearing with
an alert, well-fed judge from another timezone. (I'm only half joking.) This
could also be a solution for load-balancing courts among different regions
(though the laws may be regional differences).

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nooneelse
If you didn't like the judge assigned to your case, and could pull together
this kind data on their past decisions, would that be enough to argue for a
different judge?

Or perhaps mandate that they eat a snack bar every so often.

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jberryman
Nice article. I would love to see similar data for orchestral auditions. It's
common wisdom that it is best to play when the committee is fresh from a break
but I'll bet the data would show that that is _dramatically_ the case, since
as with parol hearings, rejecting an auditionee would be the default choice.

------
colanderman
The fact that the judges can pick their breaks makes me suspicious that there
might be a correlation/causation conflation going on here. A possible
explanation could be that the workload is trimodal, and judges tend to take
breaks after particularly depressing (parole denied) cases.

------
jpwagner
Is there no method to the ordering?

If the breaks are pretty regular, wouldn't you want to hear more simplified
(clear-cut?) cases immediately after a break and more complex ones when more
alert?

~~~
rprasad
The big flaw in this study is that while the judges may not know anything
about the cases coming up, _their clerks do_ and the clerks are the ones who
actually determine the schedule.

Afternoon cases are almost always easier cases because afternoons are largely
reserved for actual work: trial/pre-trial hearings, legal research, or
paperwork generated by the morning workload. Thus, the clerks always schedule
the easiest cases for the afternoon to minimize interference with the
important stuff.

~~~
davidtgoldblatt
The paper addresses this. To summarize

\- The judges don't know the order of upcoming cases, but do pick when they're
going to get food breaks. When they take these breaks shows considerable
variation.

\- Scheduling usually happens based on the ordering the attorneys arrive, and
the attorneys don't express any conscious choice to try to game their arrival
time.

\- The paper also looks at what is likely to make a prisoner get paroled (e.g.
type of crime, recidivism, etc.), and the cases that, without considering the
effects of the breaks, are likely to result in parole do not seem to be
clustered throughout the day.

The relevant passage:

A key aspect for interpreting the association between the ordinal position of
a case and parole decisions is whether an unobserved factor determines case
order in such a way that yields the pattern of results we obtain. For
instance, if prisoners without a rehabilitation program or recidivists were
somehow more likely to appear before a food break, we would naturally find a
greater proportion of rejections occurring before the food break as well. A
number of procedural factors preclude this possibility.

First and most critically, the judge both determines when the break will occur
during the course of the day’s proceedings and is unaware of the details of
the upcoming cases. Thus, the judge cannot decide when to take a break based
on information related to the nature of the upcoming cases. So, in the example
above, a judge cannot decide to take a break because he or she knows that
prisoners after the break will have no previous incarceration record.
Relatedly, the type of case (e.g., severity of the crime) that the judge had
just ruled on exerted no significant effect on the likelihood of taking a
break (Table S15). Furthermore, the large variability in break start times and
durations attests to the fact that their occurrence would be nearly impossible
to predict by any of the prison staff involved in the parole proceedings.

Second, the ordinal position of cases is, with rare exception, determined by
the arrival time of the prisoner’s attorney. The attorneys are sequestered in
a room where they are unable to view the proceedings of the board and,
therefore, are unaware of any of the rulings of the judge, how many prisoners
preceded their client’s case, or when and whether the food break occurred
(after the board’s deliberations, attorneys exit through a different door).
Thus, by design they cannot learn about the advantage of appearing after a
break. Indeed, a survey administered to a sample of these attorneys after the
primary data collection period indicated that they were unaware of the effect
of ordinal position on rulings (see SI Materials and Methods, S2 for details).
A similar survey administered to parole board members (judges, criminologists,
and social workers) revealed the same results (see SI Materials and Methods,
S3 for details).

Because of the factors discussed above, we did not expect significant
correlations between ordinal position within either the day or the session and
the control variables in our data (SI Materials and Methods, S4 and Table
S16). Consistent with our expectations, there does not appear to be a
deliberate ordering based on the characteristics of the prisoners (Fig. 3 A–D
and SI Materials and Methods, S4); certainly there appears to be no effect of
a food break on the type of prisoner appearing before the judge. Note that
although there was a slight but significant correlation between recidivism and
ordinal position in the day, this correlation was not significant within a
decision session, i.e., between breaks. Thus, it cannot explain the spikes in
favorable decisions after breaks.

