Abstract. The rule of law requires that judges apply the law and do not ‘indulge their personal preferences’ and that the discretion must be constrained so as to avoid potential arbitrariness. (T. H. Bingham, The Rule of Law (London: Allen Lane, 2010) 51,54.)
Judges in English housing possession cases have to make decisions quickly. Studies of ‘judgecraft’ explore how judges manage lists under time pressure but little is known about the cognitive processes used in making decisions in individual cases. Sometimes the decision whether or not to order possession is especially difficult because of the problems of incommensurability and the high stakes involved. Where decision makers are called upon to make hard choices under time pressure in non-judicial contexts psychologists have shown that they are likely to use short cuts or heuristics. This paper argues that:
1. The ‘fast’ nature of decision-making in possession cases, together what is known about judgecraft in this context, suggest that ‘cues’ (or heuristics) are probably used in possession cases.
2. This may be a useful time management tool but leads to the risk of inconsistency in decision making and judges failing to consider all potentially relevant information, raising issues of whether decision making is in accordance with the rule of law.