What the judge argues is not what the judge thinks: Eye tracking evidence about the normative weight of conflicting concerns in a Torts case

Judicial decision making is not a mechanical activity. It requires a voluntary act. In the abstract, the judge must strike a balance between incompatible normative goals, like backward looking compensation and forward looking deterrence. In the concrete, the decision-maker must weigh conflicting facets of the conflict of life. As a rule, judicial decisions come with explicit reasons. These reasons rationalize the decision. In this paper, we use eye tracking as a window into the – consciously not fully accessible – process of making the decision, testing laypersons on a run-of-the-mill torts case. We manipulate the degree of normative conflict, and either have participants decide as judges, or plead as attorneys. Against expectations, attention is not chiefly directed towards items that support the final outcome. Rather outcome is predicted by attention on potentially conflicting items. Explicit reasons and fixations on items are essentially uncorrelated. Decision-makers are not aware of the elements of the evidence that have been critical for their decision.