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Articles 1 - 30 of 44
Full-Text Articles in Law
How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski
How Lawyers' Intuitions Prolong Litigation, Andrew J. Wistrich, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and …
Judging By Heuristic: Cognitive Illusions In Judicial Decision Making, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
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
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
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 …
Remedies And The Psychology Of Ownership, Jeffrey J. Rachlinski, Forest Jourden
Remedies And The Psychology Of Ownership, Jeffrey J. Rachlinski, Forest Jourden
Jeffrey J. Rachlinski
No abstract provided.
The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski
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 …
The "New" Law And Psychology: A Reply To Critics, Skeptics, And Cautious Supporters, Jeffrey J. Rachlinski
The "New" Law And Psychology: A Reply To Critics, Skeptics, And Cautious Supporters, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Why Heightened Pleading - Why Now?, Jeffrey J. Rachlinski
Why Heightened Pleading - Why Now?, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Implicit Bias, Election '08, And The Myth Of A Post-Racial America, Jeffrey J. Rachlinski, Gregory S. Parks
Implicit Bias, Election '08, And The Myth Of A Post-Racial America, Jeffrey J. Rachlinski, Gregory S. Parks
Jeffrey J. Rachlinski
The election of Barack Obama as the forty-fourth President of the United States signals that the traditional modes of thinking about race in America are outdated. Commentators and pundits have begun to suggest that the election of a black man to the nation's highest office means that the United States has entered a post-racial era in which civil rights laws are becoming unnecessary. Although President Obama's election means that explicit, open anti-black racism has largely faded, an analysis of the campaign's rhetoric and themes suggests that unconscious racism is alive and well. Rather than suggest a retreat from traditional civil …
Regulating In Foresight Versus Judging Liability In Hindsight: The Case Of Tobacco, Jeffrey J. Rachlinski
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 …
Reconciling Experimental Incoherence With Real-World Coherence In Punitive Damages, Theodore Eisenberg, Jeffrey J. Rachlinski, Martin T. Wells
Reconciling Experimental Incoherence With Real-World Coherence In Punitive Damages, Theodore Eisenberg, Jeffrey J. Rachlinski, Martin T. Wells
Jeffrey J. Rachlinski
Experimental evidence generated in controlled laboratory studies suggests that the legal system in general, and punitive damages awards in particular, should display an incoherent pattern. According to the prediction, inexperienced decisionmakers, such as juries, should fail to convert their qualitative judgments of defendants' conduct into consistent, meaningful dollar amounts. This Article tests this prediction and finds modest support for the thesis that experience across different types of cases will lead to greater consistency in awards. Despite this support, numerous studies of damage awards in real cases detect a generally sensible pattern of damage awards. This Article tries to reconcile the …
Is Evolutionary Analysis Of Law Science Or Storytelling?, Jeffrey J. Rachlinski
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 …
Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Jeffrey J. Rachlinski
In this paper, we extend our prior work on generalist judges to explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges. In one prior study of bankruptcy judges, Ted Eisenberg reported evidence suggesting that bankruptcy judges, like generalist judges, are susceptible to the "self-serving" or "egocentric" bias when making judgments. Here, we report evidence showing that bankruptcy judges are vulnerable to anchoring and framing effects, but appear largely unaffected by the omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality salience."' Because …
Product-Related Risk And Cognitive Biases: The Shortcomings Of Enterprise Liability, James A. Henderson Jr., Jeffrey J. Rachlinski
Product-Related Risk And Cognitive Biases: The Shortcomings Of Enterprise Liability, James A. Henderson Jr., Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer's negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any …
Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski
Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Participants in three conditions (foresight, hindsight, and a modified hindsight condition designed to ameliorate the hindsight effect) assessed whether a municipality should take, or have taken, precautions to protect a riparian property owner from flood damage. In the foresight condition, participants reviewed evidence in the context of an administrative hearing. Hindsight participants reviewed parallel materials in the context of a trial. Three quarters of the participants in foresight concluded that a flood was too unlikely to justify further precautions—a decision that a majority of the participants in hindsight found to be negligent. Participants in hindsight also gave higher estimates for …
Gains, Losses, And The Psychology Of Litigation, Jeffrey J. Rachlinski
Gains, Losses, And The Psychology Of Litigation, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Foreword: Post-Public Choice, Cynthia R. Farina, Jeffrey J. Rachlinski
Foreword: Post-Public Choice, Cynthia R. Farina, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski
Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski
Can Judges Ignore Inadmissible Information? The Difficulty Of Deliberately Disregarding, Andrew J. Wistrich, Chris Guthrie, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well-founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, …
Protecting Endangered Species Without Regulating Private Landowners: The Case Of Endangered Plants, Jeffrey J. Rachlinski
Protecting Endangered Species Without Regulating Private Landowners: The Case Of Endangered Plants, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Evidence-Based Law, Jeffrey J. Rachlinski
Inside The Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Inside The Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Jeffrey J. Rachlinski
No abstract provided.
Law Review Usage And Suggestions For Improvement: A Survey Of Attorneys, Professors, And Judges, Max Stier, Kelly M. Klaus, Dan L. Bagatell, Jeffrey J. Rachlinski
Law Review Usage And Suggestions For Improvement: A Survey Of Attorneys, Professors, And Judges, Max Stier, Kelly M. Klaus, Dan L. Bagatell, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
We do not need to worry about the consumers of law reviews because they really do not exist. A few professors who author texts must read some of the articles, but most volumes are purchased to decorate law school library shelves. The only purchasers of law reviews outside of academe are law firms which gladly pay for the volumes even though no one reads them.
Standard-Form Contracting In The Electronic Age, Robert A. Hillman, Jeffrey J. Rachlinski
Standard-Form Contracting In The Electronic Age, Robert A. Hillman, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
The development of the Internet as a medium for consumer transactions creates a new question for contract law. In this Article, Professors Robert Hillman and Jeffrey Rachlinski address whether the risks imposed on consumers by Internet boilerplate requires a new lens through which courts should view these types of contracts. Their analysis of boilerplate in paper and Internet contracts examines the social, cognitive, and rational factors that affect consumers' comprehension of boilerplate and compares business strategies in presenting it. The authors conclude that the influence of these factors in Internet transactions is similar to that in proper transactions. Although the …
In Praise Of Investor Irrationality, Gregory La Blanc, Jeffrey J. Rachlinski
In Praise Of Investor Irrationality, Gregory La Blanc, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
How should a market filled with investors who chronically make bad investments, but is nevertheless efficient, be regulated? A growing body of evidence suggests that this is the state of most securities markets; investors rely on cognitive processes that produce systematically bad choices, and yet the market remains largely efficient. In fact, cognitive errors might be essential to their efficient operation. Even investors who make systematic errors also often possess real and unique information that can contribute to accurate pricing of securities. If such investors became mindful of their limited ability to distinguish between real information and erroneous information, they …
Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski
Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers that have been shown to distort litigation decision making, appear to make decisions in a …
Heuristics And Biases In Bankruptcy Judges, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Heuristics And Biases In Bankruptcy Judges, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Jeffrey J. Rachlinski
Do specialized judges make better decisions than judges who are generalists? Specialized judges surely come to know their area of law well, but specialization might also allow judges to develop better, more reliable ways of assessing cases. We assessed this question by presenting a group of specialized judges with a set of hypothetical cases designed to elicit a reliance on common heuristics that can lead judges to make poor decisions. Although the judges resisted the influence of some of these heuristics, they also expressed a clear vulnerability to others. These results suggest that specialization does not produce better judgment.
Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski
Scientific Jury Selection And The Equal Protection Rights Of Venire Persons, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Jury trials have always been a source of anxiety for litigators. Despite years of preparation, the outcome of a case can turn on the whimsical biases of a group of people who may or may not understand the legal arguments involved. In recent years, attorneys have taken steps to reduce this uncertainty by hiring social scientists who study jury decision making. One of the most popular services which these consultants offer is assistance in the jury selection process. The use of sociological and psychological methods in identifying and excluding unfavorable jurors from service, known as Scientific Jury Selection ("SJS"), has …
The Effectiveness Of The Endangered Species Act: A Quantitative Analysis, Martin F.J. Taylor, Kieran F. Suckling, Jeffrey J. Rachlinski
The Effectiveness Of The Endangered Species Act: A Quantitative Analysis, Martin F.J. Taylor, Kieran F. Suckling, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Population trends for 1095 species listed as threatened and endangered under the Endangered Species Act were correlated with the length of time the species were listed and the presence or absence of critical habitat and recovery plans. Species with critical habitat for two or more years were more than twice as likely to have an improving population trend in the late 1990s, and less than half as likely to be declining in the early 1990s, as species without. Species with dedicated recovery plans for two or more years were significantly more likely to be improving and less likely to be …
A Positive Psychological Theory Of Judging In Hindsight, Jeffrey J. Rachlinski
A Positive Psychological Theory Of Judging In Hindsight, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.