Law Commons^™

Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Jeffrey J. Rachlinski

Many people rely on mental shortcuts, or heuristics, to make complex decisions, but this sometimes leads to inaccurate inferences, or cognitive illusions. A recent study suggests such cognitive illusions influence judicial decision making.

Heuristics, Biases, And Philosophy, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, …

Law, Environment, And The “Nondismal” Social Sciences, William Boyd, Douglas Kysar, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Over the past 30 years, the influence of economics over the study of environmental law and policy has expanded considerably, becoming in the process the predominant framework for analyzing regulations that address pollution, natural resource use, and other environmental issues. This review seeks to complement the expansion of economic reasoning and methodology within the field of environmental law and policy by identifying insights to be gleaned from various “nondismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the …

The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying …

Regulating In Foresight Versus Judging Liability In Hindsight: The Case Of Tobacco, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Potentially dangerous products, such as cigarettes, can be regulated through ex post liability or ex ante regulation. Both systems should reach the same result. In practice, however, cognitive biases that influence the liability system can produce incentives to take an excess of precautions. In particular, because people tend to see past events as more predictable than they really were, judges and juries will tend to find defendants who took reasonable care negligent or even reckless. As a consequence of these biases, a liability system can be more expensive than a regulatory system, both to potential defendants and to society. Cognitive …

Is Evolutionary Analysis Of Law Science Or Storytelling?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

In recent years, some legal scholars have argued that legal scholarship could benefit from a greater reliance on theories of human behavior that arise from biological evolution. These scholars contend that reliance on biological evolution would successfully combine the rigor of economics with the scientific aspects of psychology. Complex legal systems, however, are uniquely human. Law has always been the product of cognitive processes that are unique to humans and that developed as a response to an environment that no longer exists. Consequently, the evolutionary development of the cognitive mechanisms upon which law depends cannot be rigorously modeled or studied …

Barack Obama, Implicit Bias, And The 2008 Election, Jeffrey J. Rachlinski, Gregory S. Parks

Jeffrey J Rachlinski

The election of Barack Obama as the forty-fourth president of the United States suggests that the United States has made great strides with regard to race. The blogs and the pundits may laud Obama’s win as evidence that we now live in a “post-racial America.” But is it accurate to suggest that race no longer significantly influences how Americans evaluate each other? Does Obama’s victory suggest that affirmative action and antidiscrimination protections are no longer necessary? We think not. Ironically, rather than marking the dawn of a post-racial America, Obama’s candidacy reveals how deeply race affects judgment.

Gains, Losses, And The Psychology Of Litigation, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

A Positive Psychological Theory Of Judging In Hindsight, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Heuristics And Biases In The Court: Ignorance Or Adaptation?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Cognitive Errors, Individual Differences, And Paternalism, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Legal scholars commonly argue that the widespread presence of cognitive errors in judgment justifies legal intervention to save people from predictable mistakes. Such arguments often fail to account for individual variation in the commission of such errors even though individual variation is probably common. If predictable groups of people avoid making the errors that others commit, then law should account for such differences because those who avoid errors will not benefit from paternalistic interventions and indeed may be harmed by them. The research on individual variation suggests three parameters that might distinguish people who can avoid error: cognitive ability, experience …

The Uncertain Psychological Case For Paternalism, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

The Psychology Of Global Climate Change, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

In its attempt to address the threat of global climate change, society has struggled to reach a consensus regarding the need for preventive measures. Professor Rachlinski describes the threat of global climate change as a unique commons dilemma and explains that various psychological phenomena of judgment render it unlikely that society will be able to respond effectively to the threat. After considering the effects of biased assimilation, loss aversion, and other psychological processes, the author explains that an innovative approach is necessary to properly address the dilemma of global climate change. Specifically, the author examines the prospect of governmental intervention …

5. American Professional Society On The Abuse Of Children In Support Of Petitioner, Ohio V. Clark (Merits), Thomas D. Lyon

Thomas D. Lyon

No abstract provided.

40. Question Types, Responsiveness And Self-Contradictions When Prosecutors And Defense Attorneys Question Alleged Victims Of Child Sexual Abuse, Samantha J. Andrews, Michael E. Lamb, Thomas D. Lyon

Thomas D. Lyon

39. Young Children’S Difficulty With Indirect Speech Acts: Implications For Questioning Child Witnesses, Angela D. Evans, Stacia N. Stolzenberg, Kang Lee, Thomas D. Lyon

Thomas D. Lyon

38. Social And Cognitive Factors Associated With Children's Secret-Keeping For A Parent., Heidi M. Gordon, Thomas D. Lyon, Kang Lee

Thomas D. Lyon

Evidence Summarized In Attorney’S Closing Arguments Predicts Acquittals In Criminal Trials Of Child Sexual Abuse, Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

Evidence summarized in attorney’s closing arguments of criminal child sexual abuse cases (N = 189) was coded to predict acquittal rates. Ten variables were significant bivariate predictors; five variables significant at p < .01 were entered into a multivariate model. Cases were likely to result in an acquittal when the defendant was not charged with force, the child maintained contact with the defendant after the abuse occurred, the defense presented a hearsay witness regarding the victim’s statements, a witness regarding the victim’s character, or a witness regarding another witnesses’ character (usually the mother). The findings suggest that jurors might believe that …

37. Attorneys' Questions And Children's Productivity In Child Sexual Abuse Criminal Trials., J. Zoe Klemfuss, Jodi A. Quas, Thomas D. Lyon

Thomas D. Lyon

36. Evidence Summarized In Attorneys' Closing Arguments Predicts Acquittals In Criminal Trials Of Child Sexual Abuse., Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

35. Interviewing Children., Thomas D. Lyon

Thomas D. Lyon

Developmental Trends In The Process Of Constructing Own- And Other-Race Facial Composites, Narina Nunez

Narina Nunez

The current study examined developmental differences from the age of 5 to 18 in the creation process of own- and other-race facial composites. In addition, it considered how differences in the creation process affect similarity ratings. Participants created two composites (one own- and one other-race) from memory. The complexity of the composite creation process was recorded during Phase One. In Phase Two, a separate group of participants rated the composites for similarity to the corresponding target face. Results support the cross-race effect, developmental differences (based on composite creators) in similarity ratings, and the importance of the creation process for own- …

34. Disclosure Suspicion Bias And Abuse Disclosure: Comparisons Between Sexual And Physical Abuse., Elizabeth B. Rush, Thomas D. Lyon, Elizabeth C. Ahern, Jodi A. Quas

Thomas D. Lyon

9. Children's Memory For Conversations About Sexual Abuse: Legal And Psychological Implications., Thomas D. Lyon, Stacia N. Stolzenberg

Thomas D. Lyon

Book Review: Policing And The Poetics Of Everyday Life., Rodger E. Broome Phd

Rodger E. Broome

Policing and the poetics of everyday life. Chicago: University of Illinois Press, 2008. 256 pp. ISBN 978-0-252-03371-1 (cloth). $42.00. Policing and the Poetics of Everyday Life is a hermeneutical-aesthetic analysis within a human scientific approach of modern policing in the United States. It is an important study of police-citizen encounters informed by hermeneutic aesthetic thought and the author’s professional experience as a veteran with a Seattle area police department in Washington, USA.

33. Disclosing Adult Wrongdoing: Maltreated And Non-Maltreated Children’S Expectations And Preferences., Lindsay C. Malloy, Jodi A. Quas, Thomas D. Lyon, Elizabeth C. Ahern

Thomas D. Lyon

Witness Response Manipulation Through Strategic "Non-Leading" Questions (Or The Art Of Getting The Desired Answer By Asking The Right Question), Sydney Beckman

Sydney A. Beckman

No abstract provided.

Is Negligence A First Cousin To Intentionality? Lay Conceptions Of Negligence And Its Relationship To Intentionality, Narina Nunez

Narina Nunez

In three studies, we examined lay conceptions of negligence and how they are used when making judgments about actors’ intentions, negligence, and blame. Study 1 examined the extent to which participants agreed about what constitutes negligence and accidents. After finding a high level of agreement between participants, Study 2 explored the features that defined participants’ folk understanding of negligence. Additionally, we examined if definitions of negligence overlapped with key features of definitions of intentionality proposed in the literature. Study 2 suggested there were some key overlapping features and differences between negligence and intentionality. Finally, Study 3 examined how two key …

Negative Emotions Felt During Trial: The Effect Of Fear, Anger, And Sadness On Juror Decision Making, Narina Nunez

Narina Nunez

During trial, jurors may experience a variety of emotions, many of which are negative. The current study examined the effects the negative emotions anger, fear, and sadness had on jurors’ sentencing decisions and explored whether Cognitive Appraisal Theory or the Intuitive Prosecutor Model could explain these effects. Jurors viewed the sentencing phase of a capital murder trial and were asked to sentence the defendant. Results indicated that after viewing the trial, jurors reported increased anger and sadness, but not fear. However, only change in anger affected jurors’ sentences. Jurors who reported a greater change in anger were more likely to …

Children's Memory For Conversations About Sexual Abuse: Legal And Psychological Implications, Thomas D. Lyon, Stacia N. Stolzenberg

Thomas D. Lyon

No abstract provided.