Judicial decision-making and ‘outside’ extra-legal knowledge
Breaking down silos
Bibliographic Data
| ID | 14970869 |
|---|---|
| Authors | Kylie Burns (0000-0001-9303-2252, Griffith Law School, Griffith University, Brisbane, Australia, corresponding author), Rachel Dioso‐villa (0000-0002-9909-5091, Griffith University), Rachel Dioso-Villa, Zoe Rathus (0000-0002-7950-1734, Griffith University), Zoe Rathus AM (Griffith Law School, Griffith University, Brisbane, Australia) |
| Year | 2016 |
| Volume | 25 |
| Issue | 3 |
| Pages | 283-290 |
| Publication date | 2016-07-02 |
| Peer Reviewed | Yes |
| Open Access | No |
| Type | ARTICLE |
| Venue | Griffith Law Review (JOURNAL) |
| Journal identifiers | ISSN: 1038-3441 • E-ISSN: 1839-4205 |
| Publisher | Informa UK Limited (PUBLISHER • GB) |
| DOI | 10.1080/10383441.2016.1264100 |
| OpenAlex | W2568871016 |
| Language | EN |
| Citations received | 3 |
| References cited | 12 |
Judges apply law to facts. While this‘umpire’ description of judicial decision-making is rhetorically (and often politically and publicly) attractive, it is of course a very incomplete account of judicial decision-making.1 Judges frequently experience factual ‘gaps’ they need to fill in order to reach a decision. Judge Richard Posner has recently suggested this is a very significant problem facing judges in the twenty-first century as the technological complexity of cases before courts exponentially increases.2 The judiciary, the legal profession, and the academy have failed to respond to the challenges of filling ‘gaps’ in the factual record,\nthrough the use of extra-legal knowledge from disciplines outside the law.3 Adjudicative facts,4 presented by the parties and admitted in accordance with the rules of evidence, are sometimes (and perhaps often) simply not enough to enable a judge to reach a decision. Legal standards, for example, the ‘reasonable person’ or the ‘best interests of the child’, may incorporate broad judicial discretion which requires judges to apply wider understandings of the nature of the world and society and how human beings behave. Adjudicative fact evidence may not have meaning without the application of a ‘lens’ or framework of broader\nknowledge (through expert evidence or knowledge of other disciplines).5 Judges may be unable to evaluate the veracity of forensic expert evidence6 without an understanding of whether there is actually a scientific basis for the relevant forensic claims; what processes must be followed to ensure the reliability of forensic testing; and what cognitive impact the particular ways of presenting forensic evidence to judges and juries may have on ultimate decision-making.7 The advent of the internet and social media means knowledge can be rapidly and extensively disseminated and accessed across the world. Yet, paradoxically,\ndespite this the relationship between the law and knowledge from other disciplines, including science and social science, is at best uneasy and at worst counter-productive to just outcomes. We argue that the silos around law and other academic disciplines need to be broken down.8
Discretion · Judicial discretion · Judicial opinion · Judicial review · Jurisprudence · Legal profession · Political science · Sociology · Criminal Law and Evidence · Jury Decision Making Processes · Law · Legal Education and Practice Innovations · Psychology
| Unique citing works | 3 |
|---|---|
| Citations per year | 0,43 |
| Citation span | 2019 - 2022 (4) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 3 |