This book has explored the prospect of enhancing judicial cognition and posited a possible moral duty for judges to improve their cognitive capacities by various means. The impetus behind this inquiry stemmed from the realization, substantiated by a wealth of empirical evidence, that judges are susceptible to various implicit biases, which can subtly shape their perceptions, judgments, and decision-making processes throughout various stages of legal proceedings. Despite posing a threat to the impartiality and accuracy of judicial decisions, implicit bias remains largely unaddressed. Existing substantive and procedural rules designed to prevent arbitrary, partial, or inaccurate legal decisions primarily focus on the explicit manifestations of biases, neglecting to adequately address the negative eff ects of biases that operate beneath the level of consciousness, and which are not subject to direct introspection. To ameliorate this scenario, the enhancement of judicial cognition has been proposed in the literature. Considering the profound impact of judicial decision-making for litigants and society, and the potential for enhanced judges to mitigate the undue influence of implicit biases, the question of a possible moral duty for judges to enhance their cognition naturally emerged. Consequently, a rigorous analysis of the subject was warranted. In this concluding chapter, I summarize my findings for each of the previous chapters(1), provide some recommendations for addressing implicit bias in the courtroom that build on my analysis, and identify avenues for further research(2).

INTRODUCTION

In our attempts to understand the law, perhaps one of the most important questions one may ask is how judges decide cases, and which appropriate explanation can be used to guide or justify their decisions. This question and others fall under the scope of legal reasoning, and throughout the recent history of legal philosophy numerous and varied attempts to answer these issues have been made. Legal scholars have the intuition (or at least the hope) that there is something distinctive about the methods that judges employ to argue, reason and decide, that goes beyond the mere knowledge of legal rules that laypeople do not possess. They claim there are special modes of reasoning that are unique to the law, and attempts to describe precisely what distinguishes legal reasoning from reasoning in other spheres of human activity (e.g., scientifi c reasoning) have been manifold.

One possible way of defi ning legal reasoning describes it as the process of devising, reflecting on, or giving reasons for legal acts and decisions, or justifi cations for speculative opinions regarding the meaning of law and its relevance to action (MacCormick 2016). This defi nition highlights the two ways in which legal theorists understand what legal reasoning is. While, at first, it may seem like an easy question, simply consisting in reasoning about the law, or about how judges should decide cases, on closer inspection it becomes clear that both of these formulations are ambiguous, at least according to some theories of law.

Every day, judges are tasked with rendering decisions that carry profound consequences both for the individuals directly aff ected by them and for society as a whole. They can decide whether a person should be sent to prison and for how long, as well as whether they can await their trial in freedom or have an early release. Judges can determine child custody arrangements that profoundly influence family dynamics, and adjudicate civil disputes with far-reaching financial ramifi cations. They can decide whether an immigrant seeking asylum should receive it, or instead be sent back to their country of origin. At the highest levels, judges have the power to interpret constitutional principles and to determine important social disputes involving fundamental rights. These decisions not only aff ect present cases, but can also reverberate to the future through the doctrine of precedent. Overall, judges hold great power in our society, and in wielding this power, we expect them to act with objectivity and neutrality. We expect judges to reach and justify their decisions with resource to the authoritative legal sources, and to not be influenced by external factors that are irrelevant to the dispute.

However, as representatives of the Legal Realism movement noted already a century ago, the reality of judicial decision-making oft en fails to meet these expectations, with extraneous factors such as judges ‘ emotions, idiosyncrasies and preferences of various kinds having an impact on case outcomes. This book focuses on one specifi c extralegal factor that can influence judicial decisions, namely, implicit bias. Unlike overt prejudice and partiality, implicit biases are not subject to direct introspection, and people tend to not be aware of them.

INTRODUCTION

Consider the following scenario proposed by ethicist Thomas Douglas (2013), in which he describes a biased judge :

Douglas initially used this example to illustrate not only the possibility but also the moral acceptability – at least from a consequentialist point of view – of biomedical enhancement. But the example also raises a diff erent question: considering the availability of such a drug, does James have a duty to use it? In other words, is there an obligation for judges to cognitively enhance themselves? By which means? And on what basis? As discussed in Chapter 1 of this book, the psychological literature on decision-making has generally found that decision quality decreases as information load increases, and that people typically use heuristics to rapidly weed out possibilities as a mechanism to handle this load – a process that can introduce some biases. Besides the increase in the information load being processed, other environmental and personal conditions facilitating the occurrence of biases and leading to suboptimal decision-making were also presented in that chapter, including mental fatigue, stress, time constraints, and cognitive decline due to aging.

This book explores possible ethical justifi cations for a moral duty for judges to enhance their cognition and examines how this duty sits within the existing legal framework on judicial liability, professional duties, and human rights. The impetus behind this inquiry stems from the realization, substantiated by a wealth of empirical evidence, that judges are susceptible to various implicit biases, which can subtly shape their perceptions, judgments, and decisionmaking processes throughout various stages of legal proceedings. Despite posing a threat to the impartiality and accuracy of judicial decisions, implicit biases remain largely unaddressed within the judiciary. Existing substantive and procedural rules designed to prevent arbitrary, partial, or inaccurate legal decisions primarily focus on the explicit manifestations of biases, neglecting to adequately address the negative eff ects of biases that operate beneath the level of consciousness, and which are not subject to direct introspection. Considering the profound impact of judicial decision-making for litigants and society, the idea of improving judicial cognition by various methods and technologies to ameliorate this scenario naturally emerged. Over the past four years, I have investigated the question of a moral duty for judges to enhance their cognition as part of my doctoral studies at the University of Bologna (Italy) and KU Leuven (Belgium). This book, which is largely based on my doctoral thesis, presents the results of this research.

I start my inquiry by defi ning implicit bias and the subcategories of cognitive and social biases, discussing the manifold ways in which they aff ect judicial decision-making, as well as the environmental and personal conditions that are conducive to biased thinking.

INTRODUCTION

Thus far, I have mainly focused on the cognitive limitations aff ecting human thinking generally, and judicial reasoning and decision-making in particular. I have explored how, in light of time and information constraints, people oft en rely on a number of heuristics that allow for decisions to be made with minimal cognitive eff ort, which may lead to suboptimal decisions. I have also examined how implicit attitudes and stereotypes relating to certain social categories aff ect how we perceive and interact with others. Most importantly, I have shown how both of these phenomena consist in extralegal factors that influence judges ‘ decisions, and therefore threaten the fair administration of justice. In the previous chapter, I have presented the debiasing strategies commonly proposed for addressing cognitive and social biases, and evaluated their application in legal settings. These strategies aim at mitigating judgment errors owed to biases and other constraints such as stress and fatigue. Their goal is to address the negative eff ects of biases by improving either the decision-making process or some relevant characteristics of the decision-maker (Zenker 2021). To the point that debiasing strategies improve the decision-maker ‘ s overall cognitive performance, they can be seen as a means of enhancing cognition.

Broadly speaking, cognitive enhancement encompasses interventions that improve cognitive functioning and performance, targeting domains like attention, reasoning, learning and memory, with the goal of restoring function toward the norm or to improve function beyond it.

According to experimental psychologists Ulrike Hahn and Adam Harris (2014, 42), “ a reader venturing into the psychological literature about human biases soon realizes that the word ‘ bias ‘ means many things to many people “ . Indeed, there seems to be a lot of terminological confusion surrounding the topic, and its defi nition (as well as its evaluation as neutral or inherently negative) can vary according to the field of knowledge in which it is used. Thus, before exploring the ways in which biases can aff ect judicial reasoning and decisionmaking, it is necessary to lend some precision to terms frequently encountered in the literature and to clarify the meaning behind the terminology that will be employed throughout this work.

The first clarifi cation relates to the broader distinction, commonly found in the cognitive and social psychology literature, between implicit and explicit biases (here correspondingly equating to unconscious and conscious biases). The first type is deemed implicit because it is generally considered to be latent, meaning that subjects tend to be unaware of them. The opposite is true for explicit biases, meaning that they are consciously accessible through introspection and endorsed by the individual. This distinction is relevant because while there is a terminological conflation between the notion of explicit bias and prejudice, these fundamentally diff er from implicit or unconscious bias, and my focus throughout this book will be given to the latter.

INTRODUCTION

In Chapter 1 of this book, I have discussed how, given that the concept of error presupposes a normative standard dictating how agents should act, biases can be thought of as causes of suboptimal reasoning/decision-making relative to that normative standard. If actual behavior falls systematically short of normative ideals, the question of how to close this gap naturally emerges. The goal of the present chapter is to review several strategies that have been proposed and tested to address implicit biases, mainly in legal contexts, in order to assess their eff ectiveness. Debiasing measures aim to align actual reasoning/decisionmaking processes and outcomes with the normative standard, seeking to address the negative eff ects of biases by improving either the decision-making process or some relevant characteristics of the decision-maker (Zenker 2021). To the extent that some debiasing strategies improve the decision-maker ‘ s overall cognitive functioning and performance, they can be seen as a means of enhancing cognition.

I will begin my analysis by defi ning and presenting the main features of debiasing and the diff erent ways in which debiasing strategies can be classifi ed, explaining how some of these fall under the category of cognitive enhancement adopted in this work(2). I will then explore the necessary conditions for successful debiasing and the main challenges for doing so(3). Subsequently, I will present the concepts of debiasing law, which largely corresponds to insulating techniques adopted in legal contexts, and debiasing through law, which targets the bias itself(4).

It will be shown here that the regulation of market operations pursues the objective of the proper functioning of the market. This objective should not be too radically dissociated from that of investor protection: by protecting the functioning of the financial market, regulation indirectly protects the investors who use it. From an international perspective, this objective explains why the law to be applied should, in our view, be subject to the law of the financial market, and the supervision of transactions should be entrusted to the authority of the place of listing. The legal system of the issuer's registered office may, however, have cumulative jurisdiction, depending on the circumstances – in particular where the regulation in question is aimed at protecting the internal organisation of the listed company at least as much as that of the market. The application of the law on market transactions will be studied by distinguishing between transactions aimed at supervising the issuer and those that artificially modify the securities price. In the first case, market transactions are subject to the law on threshold crossings and takeover bids (Section 1); in the second case, they are subject to the regulations on the purchase by the issuer of its own shares and on short selling (Section 2).

Section 1. SUPERVISION OF THE ISSUER

Threshold crossing and takeover bid. Threshold crossing law is a separate body of rules from takeover regulation. The former has its source in the Transparency Directive, which was adopted on the basis of the unification of the internal market, while the latter is derived from the Takeover Directive. The latter, although adopted at the same time as the financial legislative package of the Prospectus/Transparency/Market Abuse Directives established on the basis of the internal market, is a company law directive,adopted on the basis of the freedom of establishment.

Particularities of the liability of the issuer of financial securities for defective information. The foregoing discussion has shown that the marketing of financial securities gives rise to various legal information obligations for the issuer. What they have in common is that they constitute the information on the basis of which an investor is likely to make a decision to acquire financial securities. If this information proves to be defective,the investor will try to engage the liability of the issuer. This liability has several particularities. The first is that there is a certain tension between the remedial function of civil liability, and the inherent randomness of investing in financial instruments. Civil liability cannot have as its effect the removal of the possibility of losing the outlay. This is why the hazard must not be remedied, at the risk of the issuer becoming the investor's insurer, and this is all the more true since the occasional existence of defective information is an element whose scope may be considerably reduced by the investor's diversification strategy. The existence of a hazard also means that the defective information issued is not necessarily the sole cause of the variations in value of the instrument. In these conditions, the establishment of proof of both a certain loss and a causal link between the event and the loss suffered appears fundamental. However, as Mr Prorok has shown, these two elements can be very difficult to prove, which is why any presumptions of harm or causality will often be decisive in resolving the dispute. It is precisely on these points that the laws diverge greatly, making the resolution of the conflict of laws extremely significant.