Law Commons^™

Metaresearch, Psychology, And Law: A Case Study On Implicit Bias, Jason Chin, Alexander Holcombe, Kathryn Zeiler, Patrick Forscher, Ann Guo

Faculty Scholarship

When can scientific findings from experimental psychology be confidently applied to legal issues? And when applications have clear limits, do legal commentators readily acknowledge them? To address these questions, we survey recent findings from an emerging field of research on research (i.e., metaresearch). We find that many aspects of experimental psychology’s research and reporting practices threaten the validity and generalizability of legally relevant research findings, including those relied on by courts and policy-setting bodies. As a case study, we appraise the empirical claims relied on by commentators claiming that implicit bias deeply affects legal proceedings and practices, and that training …

Moving Toward A Competency Based Model For Fostering Law Students’ Relational Skills, Susan L. Brooks, Marjorie A. Silver, Sarah Fishel, Kellie Wiltsie

Scholarly Works

Legal education has long been criticized for failing to provide adequate professional training to prepare graduates for legal practice realities. Many sources have lamented the lack of sufficient attention to the range of competencies necessary for law graduates to be effective practitioners and develop a positive professional identity, including those that are intra-personal, such as self-awareness, critical self-reflection, and self-directedness; those that are interpersonal, such as deep and reflective listening, empathy, compassion, cross-cultural communication, and dialogue; and those that engage with the social/systemic dimension of lawyering, such as appreciating the role of multiple identities, implicit bias, privilege and power, and …

Replicability In Empirical Legal Research, Jason Chin, Kathryn Zeiler

Faculty Scholarship

As part of a broader methodological reform movement, scientists are increasingly interested in improving the replicability of their research. Replicability allows others to perform replications to explore potential errors and statistical issues that might call the original results into question. Little attention, however, has been paid to the state of replicability in the field of empirical legal research (ELR). Quality is especially important in this field because empirical legal researchers produce work that is regularly relied upon by courts and other legal bodies. In this review article, we summarize the current state of ELR relative to the broader movement towards …

Decoding Guilty Minds: How Jurors Attribute Knowledge And Guilt, Owen D. Jones, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Kenneth W. Simons

Vanderbilt Law School Faculty Publications

A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of …

Law And Psychology Grows Up, Goes Online, And Replicates, Krin Irvine, David A. Hoffman, Tess Wilkinson-Ryan

All Faculty Scholarship

Over the last thirty years, legal scholars have increasingly deployed experimental studies, particularly hypothetical scenarios, to test intuitions about legal reasoning and behavior. That movement has accelerated in the last decade, facilitated in large part by cheap and convenient Internet participant recruiting platforms like Amazon Mechanical Turk. The widespread use of MTurk subjects, a practice that dramatically lowers the barriers to entry for experimental research, has been controversial. At the same time, law and psychology’s home discipline is experiencing a public crisis of confidence widely discussed in terms of the “replication crisis.” At present, law and psychology research is arguably …

Behavioral Ethics, Behavioral Compliance, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The design of an effective legal compliance system for an organization fearing prosecution for white-collar crime or regulatory violations requires skill at predicting human behavior. It is entirely plausible to use the economist’s simplifying assumptions of rational choice and pecuniary self-interest in making these predictions. But the realism of these assumptions has been under attack for decades now, suggesting that we should at least consider more nuanced behavioral possibilities when designing and implementing compliance programs. The label “behavioral compliance” can be attached to the design and management of compliance that draws from this wider range of behavioral predictions about individual …

Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla

Articles by Maurer Faculty

Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face …

All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara Gordon

Scholarly Works

We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to various …

What Jurors Want To Know: Motivating Juror Cognition To Increase Legal Knowledge & Improve Decisionmaking, Sara Gordon

Scholarly Works

What do jurors want to know? Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision. But like all people, jurors who are asked to analyze information in a trial—even jurors who consciously want to reach a fair and accurate verdict—are unconsciously influenced by their internal goals and motivations. Some of these motives are specific to individual jurors; for instance, a potential juror with a financial interest in a case would be excluded from the jury pool. But other motivations, like the motive to understand the law …

The Client Who Did Too Much, Nancy B. Rapoport

Scholarly Works

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Behavioral Legal Ethics, Jean R. Sternlight, Jennifer K. Robbennolt

Scholarly Works

Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. It is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical …

Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander Radus

All Faculty Scholarship

Gathering pattern contract jury instructions from every State, we examine jurisdictions' treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee's noneconomic damages than the hornbooks would have us believe. We substantiate this claim with an online survey experiment asking respondents about a common contract case, and instructing them using the differing pattern forms. We found that subjects routinely awarded more …

Economics, Behavioral Biology, And Law, Owen D. Jones, Erin O'Hara O'Connor, Jeffrey Evans Stake

Vanderbilt Law School Faculty Publications

The article first compares economics and behavioral biology, examining the assumptions, core concepts, methodological tenets, and emphases of the two fields. Building on this, the article then compares the applied interdisciplinary fields of law and economics, on one hand, with law and behavioral biology, on the other - highlighting not only the most important similarities, but also the most important differences.

The article subsequently explores ways that biological perspectives on human behavior may prove useful, by improving economic models and the behavioral insights they generate. The article concludes that although there are important differences between the two fields, the overlaps …

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Vanderbilt Law School Faculty Publications

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

Articles

The jury's competence, unlike that of the judge, rests partly on its ability to reflect the perspectives, experiences, and values of the ordinary people in the community - not just the most common or typical community perspective, but the whole range of viewpoints.

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

Articles

Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,' with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community …

Historical Truth, Narrative Truth, And Expert Testimony, Marianne Wesson

Publications

No abstract provided.