Law Commons^™

Precise Punishment: Why Precise Punitive Damage Requests Result In Higher Awards Than Round Requests, Michael Conklin

Michigan Business & Entrepreneurial Law Review

Imagine a setting where someone asks two people what the temperature is outside. The first person says it is 80 °F, while the second person says it is 78.7 °F. Research regarding precise versus round cognitive anchoring suggests that the second person is more likely to be believed. This is because it is human nature to assume that if someone gives a precise answer, he must have good reason for doing so. This principle remains constant in a variety of settings, including used car negotiations, eBay transactions, and estimating the field goal percentage of a basketball player.

This Article reports …

Saliency, Anchors & Frames: A Multicomponent Damages Experiment, Bernard Chao

Michigan Technology Law Review

Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages …

Reasoned Verdicts: Oversold?, Kayla A. Burd, Valerie P. Hans

Cornell International Law Journal

Jurors are lay fact-finders, untrained in the complexities of law and legal rules, and yet reasoned verdicts require that their reasons conform precisely to the law. This difficulty is the impetus for additional interaction with the court, as jurors must often call on legal assistance when drafting their verdicts. This necessity undermines the independence and power of jurors and opens the door for external pressures and biases to encroach on jurors’ decisions. When judges overturn jury verdicts that they consider insufficiently reasoned, judges substitute their judgments for those of the jurors. In addition, reasoned verdicts may lead to post hoc …

Utilizing Behavioral Insights (Without Romance): An Inquiry Into The Choice Architecture Of Public Decision-Making, Adam C. Smith

Missouri Law Review

Behavioral economics has been employed in a number of policy applications over the last decade. From energy requirements to tax compliance to consumer finance, policymakers are increasingly operating under the assumption that people consistently fail to make rational choices. While the benefit of this policy trend remains an open debate, behavioral economists have long neglected a complementary examination of public decision-makers themselves. Comparison of two public agencies influenced by behavioral economics, the U.S. Consumer Financial Protection Bureau and U.K. Behavioural Insights Team, demonstrates how different institutions create divergent policy outcomes across the two agencies in a way that cannot be …

The Zombie Lawyer Apocalypse, Peter H. Huang, Corie Rosen Felder

Pepperdine Law Review

This article uses a popular cultural framework to address the near-epidemic levels of depression, decision-making errors, and professional dissatisfaction that studies document are prevalent among many law students and lawyers today. Zombies present an apt metaphor for understanding and contextualizing the ills now common in the American legal and legal education systems. To explore that metaphor and its import, this article will first establish the contours of the zombie literature and will apply that literature to the existing state of legal education and legal practice — ultimately describing a state that we believe can only be termed “the Zombie Lawyer …

Regret Theory - Explanation, Evaluation And Implications For The Law, Grant B. Gelberg

University of Michigan Journal of Law Reform

This Note discusses regret theory, which offers an alternative explanation of rational behavior in risky or uncertain situations. Unlike traditional law and economics, which is based on expected utility theory, regret theory posits that individuals either rejoice or experience regret after making a decision, and that the anticipation of these feelings influences choices ex ante. In recent years, studies have shown the robustness of regret theory, particularly when individuals compare action to inaction, in disparate feedback environments, and when decisional agency is altered. These, and other factors, influence regret theory's impact on litigant behavior, as well as on the …

Psychological Barriers To Litigation Settlement: An Experimental Approach, Russell Korobkin, Chris Guthrie

Michigan Law Review

In this article, we seek to substantiate "psychological barriers," as illustrated by the constructs described above, as a third explanation for the failure of legal disputants to settle out of court. Although we are not the first to hypothesize that psychological processes can, in theory, affect legal dispute negotiations, we attempt to give more definition to the otherwise vague contours of the psychological barriers hypothesis by bringing empirical data to bear on the question. To achieve this end, we conducted a series of nine laboratory experiments - involving nearly 450 subjects - designed to isolate the effects of the three …

Way Beyond Candor, Gail Heriot

Michigan Law Review

Scott Altman's excellent article, Beyond Candor, causes me to pose this query: Does his theory contain not only the seeds of its own rejection, but perhaps also (if I am not careful) the seeds of the rejection of its rejection?

Altman tells us of the orthodox view that judges should be encouraged to be both honest with the public and honest with themselves about how they arrive at their decisions. Through this combination of public candor and critical introspection, judges will produce better judicial opinions and ultimately a better legal system, or so the argument runs.

Beyond Candor, Scott Altman

Michigan Law Review

In Part I, I consider whether judges might hold inaccurate beliefs that make them more candid and constrained. I suggest that even if theories of neutral decisionmaking are incomplete and inaccurate, a legal system in which judges hold these beliefs about their own behavior could have advantages. If many judges believe that they can, should, and do decide almost all cases by following the law, they might behave differently than they would if they held more accurate beliefs. They might behave so as to facilitate repression and denial, because their self-esteem depends on maintaining the belief that they decide as …

Legal Psychology: Eyewitness Testimony--Jury Behavior, Michigan Law Review

Michigan Law Review

A Review of Legal Psychology: Eyewitness Testimony--Jury Behavior by L. Craig Parker

Reconstructing Reality In The Courtroom: Justice And Judgement In American Culture, Michigan Law Review

Michigan Law Review

A Review of Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture by W. Lance Bennett and Martha S. Feldman

Business Decisions By The New Board: Behavioral Science And Corporate Law, Robert J. Haft

Michigan Law Review

This Article's thesis is that, by reason of its recently secured independence from management domination, the boards of directors of large American corporations are now in a unique position to make business decisions of the highest quality, and that corporate law should respond to this potential appropriately. On the basis of findings in the behavioral sciences, this Article urges a limited rethinking of the role of the chief executive and the board of directors before the model of directors as "monitors" of the chief executive's performance is frozen in place. Already armed with information supposedly received as monitors, the independent …

Judgment Non Obstantibus Datis, Reid Hastie

Michigan Law Review

A Review of Jury Trials by John Baldwin and Michael McConville

On Tapp (And Levine), Michael J. Saks

Michigan Law Review

A Review of Law, Justice, and the Individual in Society: Psychological and Legal Issues edited by June Louin Tapp and Felice J. Levine

Discovery And Presentation Of Evidence In Adversary And Nonadversary Proceedings, E. Allan Lind, John Thibaut, Laurens Walker

Michigan Law Review

In order to evaluate fully the advantage claimed for the adversary model we sought to add a third element that would test the hypothesis under a variety of conditions. The degree to which the evidence discovered in a case favors one party at the expense of another appeared to meet this criterion. This fact-distribution element is a pervasive condition of legal conflict resolution that, intuition suggests, may significantly influence information search and transmission. Further, this variable could be easily and accurately controlled by regulating the flow of favorable information acquired by the subjects during the experiment.

The remainder of this …

Account Of Some Psychological Experiments On The Subject Of Trade-Mark Infringement, Edward S. Rogers

Michigan Law Review

iew in June, 1910, entitled, "The Unwary Purchaser, A Study in the Psychology of Trademark Infringement".