As background, cognitive psychology has given judicial intuition a bad reputation. Most recent studies conclude that judges allow their intuitions to mislead them when they make judgments about character, credibility, or the future. Judicial hunches are thought to rely on biases, flashes of insight to be blind to unconscious influences.
Applying a neglected branch of decision-making research, Professor Berger argues that judicial intuition has been misunderstood and its real value under-appreciated. Although intuition may lead our judgments astray, intuition is key to the very different process of problem solving: it unlocks doors and opens up pathways. In her article, Professor Berger reconciles claims from the heuristics and biases branch of cognitive psychology (intuition leads to mistakes and overconfidence) with findings from more naturalistic decision-making studies (intuition is the way that real-world experts identify options for testing).
According to Professor Berger, "When judges are solving problems - and they are doing so when they are finding, interpreting, applying, and making law - both the lawyers seeking to persuade them and the judges themselves should apply the lessons learned by psychologists who have studied expert decision making in the field. Like problem solving itself, persuasion is rooted in intuition: visual and verbal cues prompt decision makers to recognize parallel or alternative patterns and paths. Once begun, persuasion continues through visualization: information guides decision makers to imagine the outcome of fitting pieces into patterns and moving events along paths. Analogy, metaphor, and storytelling are the sources of power that generate both parts of this problem solving process: intuition and visualization."
Professor Berger joined the faculty in 2011, bringing expertise in Legal Writing, Law and Rhetoric, and First Amendment. Prior to joining UNLV, Professor Berger taught at Mercer University School of Law in Macon, GA; the University of San Diego; and Thomas Jefferson School of Law in San Diego.
