Decision Making

Kevin Drum was surprised by this excerpt from Richard Posner, who is often thought of as a conservative judge, “The way I approach a case as a judge — maybe you think it heresy — is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.”

What surprises me here is Kevin’s surprise. When I’ve worked in labor relations, whether as an advocate or in dispute resolution, I’ve found myself employing a similar approach. When you read a grievance you first react according to what sounds right to you, then look to the law or contract to see what is technically correct, then see how you can make things fit. I imagine something like this is how most decisions get made.

About 10 years ago I took the Myers Briggs test and was shocked to find that, according to the test, I made decisions intuitively. I’d always thought of myself as a rational person. When I examined that, though, I found that what I typically do is make a decision intuitively and then try to come up with a rational justification for it. Sometimes that fails and I’m forced to either change my initial decision or abandon trying to rationalize it. I thought at the time that this decision making “process” was probably unique to my type of personality. Reading Malcolm Gladwell’s “Blink,” however, it seems that it is in fact very common. We make decisions and judgments immediately, based on our store of knowledge and experience, and then, if necessary, sort through that knowledge and experience to try to explain the decisions.

So I guess what’s surprising about what Posner wrote isn’t so much that that’s how he approaches cases, but that he would admit to it.