The Hindsight Bias and the Law in Hindsight

2014 ◽  
pp. 353-374
Author(s):  
Doron Teichman
Keyword(s):  
Decision Making ◽  
Cognitive Biases ◽  
Hindsight Bias ◽  
Theoretical Studies ◽  
Legal Systems ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Law ◽  
Behavioral Perspective

The hindsight bias is one of the first cognitive biases to be documented by psychologists, and to be studied by legal scholars employing a behavioral perspective. This chapter presents a review of the main findings documenting the prevalence of the hindsight bias in judicial decision-making. Based on this review, it then analyzes the different ways in which legal systems as well as contracting parties deal with the bias, and highlights potential paths for future empirical and theoretical studies.

scholarly journals LEGAL FORMALISM AND LEGAL REALISM: WHAT IS THE ISSUE?

Legal Theory ◽  
2010 ◽  
Vol 16 (2) ◽  
pp. 111-133 ◽  
Author(s):  
Brian Leiter
Keyword(s):  
Decision Making ◽  
Political Philosophy ◽  
Judicial Decision ◽  
Legal Realism ◽  
Judicial Decision Making ◽  
Legal Formalism ◽  
The Law ◽  
Normative Considerations

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that (1) the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases (e.g., cases that reach the stage of appellate review); and (2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.

scholarly journals The Value of Behavioral Economics for EU Judicial Decision-Making

2020 ◽  
Vol 21 (2) ◽  
pp. 240-264
Author(s):  
Christoph K. Winter
Keyword(s):  
Decision Making ◽  
Behavioral Economics ◽  
Hindsight Bias ◽  
Judicial Decision ◽  
Behavioral Economic ◽  
Judicial Decision Making ◽  
Fundamental Freedoms ◽  
Cognitive Illusions ◽  
Proportionality Test ◽  
The Impact

AbstractThis Article analyzes the value of behavioral economics for EU judicial decision-making. The first part introduces the foundations of behavioral economics by focusing on cognitive illusions, prospect theory, and the underlying distinction between different processes of thought. The second part examines the influence of selected biases and heuristics, namely the anchoring effect, availability bias, zero-risk bias, and hindsight bias on diverse legal issues in EU law including, among others, the scope of the fundamental freedoms, the proportionality test as well as the roles of the Advocate General and Reporting Judge. The Article outlines how behavioral economic findings can be taken into account to improve judicial decision-making. Accordingly, the adaptation of judicial training concerning cognitive illusions, the establishment of a de minimis rule regarding the scope of the fundamental freedoms, and the use of economic models when determining the impact of certain measures on fundamental freedoms is suggested. Finally, an “unbiased jury” concentrating exclusively on specific factual issues such as causal connections within the proportionality test is necessary, if the hindsight bias is to be avoided. While it is of great importance to take behavioral economic findings into account, judicial decision-making is unlikely to become flawless based on natural intelligence. Despite bearing fundamental risks, artificial intelligence may provide means to achieve greater fairness, consistency, and legal certainty in the future.

scholarly journals How Judges Decide

2020 ◽  
pp. 91-112
Author(s):  
Robert J Sharpe
Keyword(s):  
Decision Making ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Legal Uncertainty ◽  
The Law

This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.

scholarly journals Klasikinio požiūrio į teisėją kaip teisės aiškintoją ir taikytoją alternatyvos

Teisė ◽  
2009 ◽  
Vol 71 ◽  
pp. 147-162
Author(s):  
Rūta Kazanavičiūtė
Keyword(s):  
Decision Making ◽  
Economic Approach ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Realistic Approach ◽  
The Law

Straipsnyje aptariami realistinis ir socioekonominis požiūris į teisėjo vaidmenį santykyje su teise, žvel­giant iš teisės atradimo / kūrimo perspektyvos. Šie požiūriai dar gali būti vadinami laisvo teisėjų sprendi­mų priėmimo ir racionalaus teisėjų sprendimų priėmimo modeliais. Nagrinėjami svarbiausi šių požiūrių bruožai, paskirų teisės mokslininkų pozicijos. The article deals with two groups of possible approaches to the role of the judge in interpreting and ap­plying the law. One of the analyzed approaches is so-called the realistic approach or the model of free judicial decision-making. The second approach is the so-called socio-economic approach or the model of rational judicial decision-making. The main features, examples and problems of these approaches are discussed in this article.

The “Law” and Economics of Judicial Decision-Making

2017 ◽  
Author(s):  
Emerson H. Tiller
Keyword(s):  
Decision Making ◽  
Political Institutions ◽  
Law And Economics ◽  
Policy Outcomes ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Game Theoretic ◽  
Executive Action ◽  
The Law ◽  
Context Specific

Over the last three decades, the economics of judicial behaviour has revealed itself most prominently in the field now known as Law and Positive Political Theory (Law and PPT). Instead of the traditional focus of ‘law and economics’ on the normative efficiency of legal rules, Law and PPT identifies the role of competition among legal and political institutions for policy outcomes, with these outcomes usually taking the form of legislative enactments, executive action, judicial opinions, or administrative agency pronouncements (regulations). This article illustrates the ‘law’ features of Law and PPT, while keeping the economics of judicial decision-making — especially the efficiency-driven, game-theoretic, utility maximization features — at the forefront of the analysis. It begins by summarizing basic elements of Law and PPT as relevant to judicial decision-making. It then discusses context-specific applications of Law and PPT where the craft of law is revealed as strategy.

Taking the Judges Seriously v. Grand Theories

2021 ◽  
pp. 1-34
Author(s):  
Jane Stapleton
Keyword(s):  
Decision Making ◽  
Fundamental Principle ◽  
Clear Understanding ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Judicial Lawmaking ◽  
The Common ◽  
The Law ◽  
Key Aspects

Chapter 1 describes the approach of reflexive tort scholarship and how it depends on a clear understanding of the environment of judicial decision-making. Part of that environment is the conception that judicial ‘lawmaking’ is ‘retrospective’, by which is usually meant that it is imposed retroactively. Yet retroactivity is in sharp tension with the fundamental principle that situations should be judged according to the law as it was at that time. To resolve this tension, the text offers a conception of the common law as ‘living’, that it evolves in line with changes in society. Later, litigation invites the ultimate court to articulate this evolution and how the law stood at the time that the parties interacted. The descriptive claims of Grand Theories are contrasted with reflexive tort scholarship, which accommodates key aspects of judicial decision-making, such as the heterogeneity of judicial reasons, in ways that those descriptive claims cannot.

Avoiding Adversariness? The Effects of Gender on Litigant Decision-Making

2017 ◽  
Vol 13 (04) ◽  
pp. 656-682
Author(s):  
Claire B. Wofford
Keyword(s):  
Decision Making ◽  
Gender Effect ◽  
Judicial System ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Gender Influence ◽  
The Law

How does gender influence the American judicial system? Scholars interested in this question have focused on several areas, including the substance of the law (Bender 1993; Olsen 1995; Rifkin 1981), the presence of women on a jury (Fowler 2005; Marder 1987; Taylor-Thompson 2000), and the sex of criminal defendants (Sarnikar, Sorenson, and Oaxaca 2007; Starr 2012). Among political scientists in particular, most work has examined judicial decision-making and whether the rulings of female judges differ from those of their male counterparts. Results of these studies have been mixed: some indicate that female judges vote differently, at least in certain types of cases (Boyd, Epstein, and Martin 2010; Peresie 2005; Songer and Crews-Meyer 2000), but others have found no, or only a minimal, gender effect (Segal 2002; Songer, Davis, and Haire 1994; Walker and Barrow 1985).

scholarly journals Cognitive Bias Affecting Decision-Making in the Legal Process

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 806-830
Author(s):  
Adebola Olaborede ◽  
Lirieka Meintjes-van der Walt
Keyword(s):  
Decision Making ◽  
South African ◽  
Empirical Research ◽  
Cognitive Bias ◽  
Hindsight Bias ◽  
Judicial Decision ◽  
Legal Process ◽  
Judicial Decision Making ◽  
Egocentric Bias ◽  
Awareness Raising

Several empirical research studies have shown that cognitive bias can unconsciously distort inferences and interpretations made by judges either at the hearing, ruling or sentencing stage of a court trial and this may result in miscarriages of justice. This article examines how cognitive heuristics affects judicial decision-making with seven common manifestations of heuristics such as availability heuristics, confirmation bias, egocentric bias, anchoring, hindsight bias, framing and representativeness. This article contends that the different manifestations of heuristics pose a potentially serious risk to the quality and objectivity of any criminal case, despite the professional legal training and experience of judges and magistrates. Therefore, suggestions on how best to avoid and minimise the effects of cognitive heuristics, especially within South African courts are proffered. These include creating awareness raising, cross-examination and replacement.

Affirmative Action in the Law of Tort: The Case of the Duty to Warn

1989 ◽  
Vol 48 (1) ◽  
pp. 115-134 ◽  
Author(s):  
James G. Logie
Keyword(s):  
Decision Making ◽  
Affirmative Action ◽  
Common Law ◽  
Economic Loss ◽  
Duty Of Care ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Duty To Warn ◽  
Nervous Shock ◽  
The Law

One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”

Comparative Reasoning in Legal Adjudication

2015 ◽  
Vol 28 (1) ◽  
pp. 5-27
Author(s):  
Damiano Canale
Keyword(s):  
Decision Making ◽  
Argumentation Theory ◽  
Point Of View ◽  
The Other ◽  
Legal Systems ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Foreign Law ◽  
The One ◽  
Cross Fertilization

This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.

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