Deciding Novel and Routine Cases without Evidence

2018 ◽  
Vol 11 (2) ◽  
pp. 173-208
Author(s):  
Peter Applegarth
Keyword(s):  
Decision Making ◽  
Common Sense ◽  
Personal Experience ◽  
Cognitive Biases ◽  
Duty Of Care ◽  
The Law

AbstractIn novel cases, judges often weigh policy considerations based on common sense assumptions and personal experience about how certain individuals, groups and institutions behave. For example, in assessing the consequences of creating a new category of duty of care, a new immunity from suit or even a new tort, judges are invited to predict (or speculate about) how individuals, groups, professions and institutions would behave if the law was different. In routine cases, judges also rely on assumptions and experience in deciding questions of reasonableness and past hypothetical facts about causation. In deciding both novel and routine cases on the basis of assumptions and experience, judges are prone to cognitive biases that affect decision-making in general.

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.”

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.

Confirmation bias in decision making for fingerprints, DNA and eyewitness evidence cannot be explained by cognitive style or thinking dispositions.

2019 ◽  
Author(s):  
Daniel Edgcumbe
Keyword(s):  
Decision Making ◽  
Cognitive Style ◽  
Cognitive Biases ◽  
Confirmation Bias ◽  
Criminal Case ◽  
Court Cases ◽  
Legal Proceedings ◽  
Thinking Dispositions ◽  
Evaluation Of Evidence ◽  
Facial Composite

Pre-existing beliefs about the background or guilt of a suspect can bias the subsequent evaluation of evidence for forensic examiners and lay people alike. This biasing effect, called the confirmation bias, has influenced legal proceedings in prominent court cases such as that of Brandon Mayfield. Today many forensic providers attempt to train their examiners against these cognitive biases. Nine hundred and forty-two participants read a fictional criminal case and received either neutral, incriminating or exonerating evidence (fingerprint, eyewitness, or DNA) before providing an initial rating of guilt. Participants then viewed ambiguous evidence (alibi, facial composite, handwriting sample or informant statement) before providing a final rating of guilt. Final guilt ratings were higher for all evidence conditions (neutral, incriminating or exonerating) following exposure to the ambiguous evidence. This provides evidence that the confirmation bias influences the evaluation of evidence.

Parliamentarism and the Legislative Branch

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Decision Making ◽  
Political Parties ◽  
Legislative Branch ◽  
Effective Decision ◽  
The Law ◽  
Internal Operations ◽  
Effective Decision Making ◽  
The Relationship ◽  
Law Making

This chapter examines the relationship between parliamentarism and the legislative branch. It explores the evolution of the legislative branch, leading to disillusionment with the rationalized law-making factory, a venture run by political parties beyond the reach of constitutional rules. The rise of democratically bred party rule is positioned between the forces favouring free debate versus effective decision-making in the legislature. The chapter analyses the institutional make-up and internal operations of the legislature, the role of the opposition in the legislative assembly, and explores the benefits of bicameralism for boosting the powers of the legislative branch. Finally, it looks at the law-making process and its outsourcing via delegating legislative powers to the executive.

scholarly journals Cognitive biases, environmental, patient and personal factors associated with critical care decision making: A scoping review

2021 ◽  
Author(s):  
Iris E. Beldhuis ◽  
Ramesh S. Marapin ◽  
You Yuan Jiang ◽  
Nádia F. Simões de Souza ◽  
Artemis Georgiou ◽  
...  
Keyword(s):  
Decision Making ◽  
Critical Care ◽  
Scoping Review ◽  
Cognitive Biases ◽  
Personal Factors ◽  
Factors Associated ◽  
Care Decision

scholarly journals A tale of two citizens: The Brey-Dano proportionality gap in UK courts and tribunals

2021 ◽  
pp. 138826272110049
Author(s):  
Victoria E. Hooton
Keyword(s):  
Decision Making ◽  
National Level ◽  
Case Law ◽  
Eu Law ◽  
The Law

The role of proportionality and individual assessments in EU residency and welfare access cases has changed significantly over the course of the last decade. This article demonstrates how a search for certainty and efficiency in this area of EU law has created greater uncertainty, more legal hurdles for citizens, and less consistency in decision-making at the national level. UK case law illustrates the difficulty faced by national authorities when interpreting and applying the rules relating to welfare access and proportionality. Ultimately, the law lacks the consistency and transparency that recent CJEU case law seeks to obtain, raising the question of whether the shift from the Court's previous, more flexible, case-by-case approach was desirable after all.

Do we Always Act on Maxims?

2017 ◽  
Vol 22 (2) ◽  
pp. 233-255
Author(s):  
Sven Nyholm
Keyword(s):  
Decision Making ◽  
Common Sense ◽  
Human Agency ◽  
Basic Principles

AbstractIt is commonly thought that on Kant’s view of action, ‘everyone always acts on maxims’. Call this the ‘descriptive reading’. This reading faces two important problems. First, the idea that people always act on maxims offends against common sense: it clashes with our ordinary ideas about human agency. Second, there are various passages in which Kant says that it is ‘rare’ and ‘admirable’ to firmly adhere to a set of basic principles that we adopt for ourselves. This article offers an alternative: the ‘normative reading’. On this reading, it is a normative ideal to adopt and act on maxims: it is one of the things we would do if our reason were fully in control of our decision-making.

An Undergraduate Course in Psychology and the Law

1987 ◽  
Vol 14 (4) ◽  
pp. 238-239 ◽  
Author(s):  
Edith Greene ◽  
Edith Greene
Keyword(s):  
Decision Making ◽  
Dispute Resolution ◽  
Criminal Law ◽  
Alternative Dispute Resolution ◽  
Civil Law ◽  
Plea Bargaining ◽  
Jury Decision Making ◽  
Teaching Aids ◽  
The Law ◽  
Jury Decision

This article describes a course that bridged the disciplines of clinical and experimental psychology and the law. The course included discussion of issues in criminal law, such as the psychology of policing, the reliability of confessions, victimization, plea bargaining, jury decision making, and alternative dispute resolution, and in civil law, such as civil commitment, predicting dangerousness, and child custody. Course objectives, requirements, and teaching aids are outlined, and some thoughts on integrating these diverse topics are included.

scholarly journals Civil Disobedience in Times of Pandemic: Clarifying Rights and Duties

2021 ◽  
Author(s):  
Yoann Della Croce ◽  
Ophelia Nicole-Berva
Keyword(s):  
Working Conditions ◽  
Healthcare Professionals ◽  
Medical Profession ◽  
Civil Disobedience ◽  
Duty Of Care ◽  
Normative Evaluation ◽  
The Law ◽  
Descriptive Sense ◽  
Public Demonstration ◽  
Do So

AbstractThis paper seeks to investigate and assess a particular form of relationship between the State and its citizens in the context of the COVID-19 pandemic, namely that of obedience to the law and its related right of protest through civil disobedience. We do so by conducting an analysis and normative evaluation of two cases of disobedience to the law: (1) healthcare professionals refusing to attend work as a protest against unsafe working conditions, and (2) citizens who use public demonstration and deliberately ignore measures of social distancing as a way of protesting against lockdown. While different in many aspects, both are substantially similar with respect to one element: their respective protesters both rely on unlawful actions in order to bring change to a policy they consider unjust. We question the extent to which healthcare professionals may participate in civil disobedience with respect to the duty of care intrinsic to the medical profession, and the extent to which opponents of lockdown and confinement measures may reasonably engage in protests without endangering the lives and basic rights of non-dissenting citizens. Drawing on a contractualist normative framework, our analysis leads us to conclude that while both cases qualify as civil disobedience in the descriptive sense, only the case of healthcare professionals qualifies as morally justified civil disobedience.

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