Epistemological Dilemmas in the Assessment of Legal Decision Making

Law and Human Behavior -     

Free press and fair trial: The role of behavioral research

The growth of mass media has complicated the relatioship between the courts and the media. Free press and fair trial rights are kept in balance by the use of judicial restraints and remedies such asvoir dire, change of venue, and gag orders. This balance has shifted back and forth during the past two decades. Current case law and legal codes are inconsistent and provide insufficient guidance to judges in their use of restraints and remedies. Nor is there a body of empirical research on the impact of news coverage and juror behavior capable of informing the courts at this time. In this paper, we review and critically assess the empirical social science literature as it pertains to the legal issues involving free press and fair trial. We argue that carefully conducted empirical research could provide important information to the courts. We suggest research directions and methodological caveats to increase legal relevance and scientific validity.     

Abstract principles and concrete cases in intuitive lawmaking

Citizens awaiting jury service were asked a series of items, in Likert format, to determine their endorsement of various statements about principles to use in setting child support amounts. These twenty items were derived from extant child support systems, from past literature and from Ellman and Ellman's (2008) Theory of Child Support. The twenty items were found to coalesce into four factors (principles). There were pervasive gender differences in respondent's endorsement of the principles. More importantly, three of these four principles were systematically reflected, in very rational (if complex) ways, in the respondents' resolution of the individual child support cases they were asked to decide. Differences among respondents in their endorsement of these three principles accounted for differences in their patterns of child support judgments. It is suggested that the pattern of coherent arbitrariness (Ariely et al., Q J Econ 118(1):73-105, 2003) in those support judgments, noted in an earlier study (Ellman, Braver, & MacCoun, 2009) is thus partially explained, in that the seeming arbitrariness of respondents' initial support judgments reflect in part their differing views about the basic principles that should decide the cases.     

Estimating liability risks with the media as your guide: A content analysis of media coverage of tort litigation

A content analysis of 249 articles fromTime, Newsweek, Fortune, Forbes, andBusiness Week during 1980–1990 examined the representativeness of popular media coverage of tort litigation. Compared to objective data on tort cases, the magazine articles considerably overrepresented the relative frequency of controversial forms of litigation (product liability and medical malpractice), the proportion of disputes resolved by trial (rather than settlement), the plaintiff victory rate at trial, and the median and mean jury awards. Psychological mechanisms by which biases in media coverage could affect the decision making of potential litigants are discussed. The results highlight the need for more systematic monitoring and dissemination of reliable data on tort outcomes.     

Understanding gender differences in distributive and procedural justice

Gender differences in treatment and in judgments of distributive and procedural justice were examined. Three hundred nine litigants who had been involved in arbitrated auto negligence lawsuits responded to exit surveys. Two mechanisms by which gender might influence justice perceptions were explored. First, we examined whether a “chivalry bias” might be operating, in which the procedures systematically favor women over men. If such biases occur, women might feel they had been treated more fairly because of egocentric biases. Results provided only modest support for the chivalry bias. While women received slightly better awards and perceived somewhat more control than men, these differences had no effect on perceptions of distributive or procedural justice. Second, we examined whether men and women differ systematically in the factors they use as indicators of distributive and procedural justice. On the basis of group-value theory we predicted that women might place more emphasis on standing or on outcome favorability. The study revealed that men and women did differ in how they defined distributive justice, with women placing more emphasis on their perceived standing and on their perceptions of the favorability of their outcomes. There were no substantial gender differences in how procedural justice was defined. Results are interpreted in terms of how women might be responding to insecurity about facing a justice system historically dominated by men. An erratum to this article is available at .     

The negative impacts of starting middle school in sixth grade

Using administrative data on public school students in North Carolina, we find that sixth grade students attending middle schools are much more likely to be cited for discipline problems than those attending elementary school. That difference remains after adjusting for the socioeconomic and demographic characteristics of the students and their schools. Furthermore, the higher infraction rates recorded by sixth graders who are placed in middle school persist at least through ninth grade. An analysis of end‐of‐grade test scores provides complementary findings. A plausible explanation is that sixth graders are at an especially impressionable age; in middle school, the exposure to older peers and the relative freedom from supervision have deleterious consequences. These findings are relevant to the current debate over the best school configuration for incorporating the middle grades. Based on our results, we suggest that there is a strong argument for separating sixth graders from older adolescents. © 2008 by the Association for Public Policy Analysis and Management.     

Assessing alternative drug control regimes.

The debate over alternative regimes for currently illicit psychoactive substances focuses on polar alternatives: harsh prohibition and sweeping legalization. This study presents an array of alternatives that lies between these extremes. The current debate lacks an explicit and inclusive framework for making comparative judgments. In this study, we sketch out such a framework, as a reminder of possible policy levers and their costs and benefits that might otherwise be neglected or go unrecognized. The framework identifies a range of pharmacological and economic characteristics of substances, potential harms and their bearers, and the sources of those harms, including drug use, trafficking, law enforcement, and illegal status per se. The framework highlights the difficulty of making objective, rigorous comparisons among regimes, but we believe that it can serve a useful heuristic role in promoting more constructive debate and identifying fruitful questions for research.     

Moral Outrage and Opposition to Harm Reduction

Three public opinion studies examined public attitudes toward prevalence reduction (PR; reducing the number of people engaging in an activity) and harm reduction (HR; reducing the harm associated with an activity) across a wide variety of domains. Studies 1 and 2 were telephone surveys of California adults’ views on PR and HR strategies for a wide range of risk domains (heroin, alcoholism, tobacco, skateboarding, teen sex, illegal immigration, air pollution, and fast food). “Moral outrage” items (immoral, disgusting, irresponsible, dangerous) predicted preference for PR over HR, with disgust the most important predictor. In contrast, preferences were not predicted by whether the risk behavior was common, no one else’s business, or harmless. Study 3 explored whether there are domains where liberals might reject HR. A sample of liberal students preferred HR > PR for heroin, but PR > HR for ritual female circumcision; path analysis suggested that this reversal was explained by moral outrage rather than consequentialist judgments of harm to self and harm to others.