Search Results

Organizing Ideas

Keith Hawkins

in Law as Last Resort: Prosecution Decision-Making in a Regulatory Agency

This chapter outlines the theoretical perspective informing the empirical analysis in the book. It covers the naturalistic character of the inquiry, the view taken of the nature of decision-making in ... More

This chapter outlines the theoretical perspective informing the empirical analysis in the book. It covers the naturalistic character of the inquiry, the view taken of the nature of decision-making in legal systems and legal bureaucracies, and ideas about enforcement practices in regulatory systems. It criticizes positivistic approaches to decision-making, particularly those influenced by ideas of rational choice, and outlines a holistic perspective. Perspectives on the enforcement of regulation preface a theory of legal decision-making around which the book is organized. The theory is based on a conception that legal decisions can only be understood by reference to their broad environment as well as their particular context: their ‘surround’, ‘fields’, and ‘frames’. Each of these ideas is analysed.Less

Legal Interpretation and Intuitions of Public Policy

Joshua Furgeson and Linda Babcock

in Ideology, Psychology, and Law

Studies of actual judicial decisions and recent experimental work simulating legal decision-making reveal a strong relationship between ideology and judicial decisions. There is also preliminary ... More

Studies of actual judicial decisions and recent experimental work simulating legal decision-making reveal a strong relationship between ideology and judicial decisions. There is also preliminary evidence linking ideology and constitutional interpretation preferences. This chapter proposes that legal decisions’ policy implications generate an automatic, affective response that biases subsequent information processing. The biased processing can involve: positive-testing or searching mostly for information supporting initial beliefs; counter-arguing or more critically scrutinizing information inconsistent with goals; overweighting information consistent with goals and discounting inconsistent information; and biases in storing and retrieving information. This motivated reasoning is more likely to influence decisions when the legal evidence is more ambiguous. As ideology operates through non-conscious cognitive processes, judges cannot identify ideology’s impact, making debiasing difficult.Less

Dicing with Justice

Neil Duxbury

in Random Justice: On Lotteries and Legal Decision-Making

This chapter explores the principal drawbacks which can attach to decision-making by lot. While the disadvantages of deciding by lot are numerous, they can be categorized in terms of four themes: ... More

This chapter explores the principal drawbacks which can attach to decision-making by lot. While the disadvantages of deciding by lot are numerous, they can be categorized in terms of four themes: lotteries are blind, are constructed, create uncertainty, and eschew reason. Although the principal disadvantages of randomization provide the framework for discussion, the lottery decision is not presented in a wholly, or even in a particularly, unfavourable light. Just as the advantages of randomized social decision-making tend to be subject to qualification, an examination of the disadvantages of such decision-making often enables us to appreciate more fully the favourable attributes of lotteries. The main argument is that the lottery may provide valuable insights into the nature of, and our assumptions concerning, legal decision-making precisely because we generally consider the notion of a randomized legal decision to be invidious. Non-weighted lottery decisions may offend against commonplace conceptions of justice and adversely affect people's incentives. This chapter also discusses the use of lotteries in child custody adjudication and procedural justice.Less

Lotteries within Legal Frameworks

Neil Duxbury

in Random Justice: On Lotteries and Legal Decision-Making

This chapter outlines a fairly modest and distinctly provisional case for greater reliance on lotteries within specific (primarily legal) contexts. It seems reasonable to ask why anybody should opt ... More

This chapter outlines a fairly modest and distinctly provisional case for greater reliance on lotteries within specific (primarily legal) contexts. It seems reasonable to ask why anybody should opt for normativity. This question might be prompted by two reservations, one general and one quite specific. The general reservation concerns the very point of normative legal theory. The use of randomization in legal contexts may have positive effects on people's incentives and might also, on occasions, turn out to be cost-efficient and just. One of the reasons we tend to be resistant to resorting to chance or sortition for social or legal decision-making is that we very often consider the lottery to be a device which is both pure and inflexible: we are prone to assuming, that is, that the lottery must only be capable of producing equiprobable outcomes and that, as a decision-making mechanism, it must operate in isolation. Neither assumption is warranted. Lotteries do not have to generate equiprobable outcomes. They may be usefully combined with other methods of allocation and adjudication.Less

Persuasion in the Decision Making of U.S. Supreme Court Justices

Lawrence S. Wrightsman

in The Psychology of Judicial Decision Making

This chapter proposes that persuasion is more effective in influencing votes in certain types of cases than others. A distinction is made between ideological (i.e., hot-button issue) cases and ... More

This chapter proposes that persuasion is more effective in influencing votes in certain types of cases than others. A distinction is made between ideological (i.e., hot-button issue) cases and non-ideological cases. Using data from several recent Supreme Court terms, the chapter shows that latency of the decision, frequency of unanimous votes, and behavior in oral arguments are affected by type of case. In oral arguments, justices' eventual votes can be predicted from the nature and frequency of their questions, to a greater degree in ideological cases than in non-ideological cases. Thus it is concluded that both the legal model and the attitudinal model of judicial decision making are applicable, depending on the type of case.Less

The Neural Correlates of Third-Party Punishment

Joshua W. Buckholtz, Christopher L. Asplund, Paul E. Dux, David H. Zald, John C. Gore, Owen D. Jones, and René Marois

in Law and Neuroscience: Current Legal Issues Volume 13

Legal decision-making in criminal contexts includes two essential functions performed by impartial ‘third parties’: assessing responsibility and determining an appropriate punishment. This chapter ... More

Legal decision-making in criminal contexts includes two essential functions performed by impartial ‘third parties’: assessing responsibility and determining an appropriate punishment. This chapter explores the neural underpinnings of these processes by scanning subjects with fMRI while they determined the appropriate punishment for crimes that varied in perpetrator responsibility and crime severity. Activity within regions linked to affective processing (amygdala, medial prefrontal, and posterior cingulate cortex) predicted punishment magnitude for a range of criminal scenarios. By contrast, activity in right dorsolateral prefrontal cortex distinguished between scenarios on the basis of criminal responsibility, suggesting that it plays a key role in third-party punishment. The same prefrontal region has previously been shown to be involved in punishing unfair economic behaviour in two-party interactions, raising the possibility that the cognitive processes supporting third-party legal decision-making and second-party economic norm enforcement may be supported by a common neural mechanism in human prefrontal cortex.Less

From Christian Civilization to Individual Civil Liberties: Framing Religion in the Legal Field, 1880–1949

David Sikkink

in The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life

This chapter traces the journey of religion in American law from the nineteenth to the twentieth century. Through most of the nineteenth century, many judges used common law to insert community and ... More

This chapter traces the journey of religion in American law from the nineteenth to the twentieth century. Through most of the nineteenth century, many judges used common law to insert community and religious notions of justice and fairness into legal decisions. In the late nineteenth century, the actions of the emerging legal elite expanded the influence of a science of law, which narrowed the role of religion in legal decision-making. Within the “classical” movement, law professors and Supreme Court judges limited the role of religion in legal decision-making. In the first half of the twentieth century, the dominant legal framework for religion shifted from a general religion that enhanced the social order to one in which religion figured as one expression of the legal doctrine of individual civil liberties. As a result, religion came to be viewed with suspicion, as something people and society often needed to be protected from by law.Less

The Spectre of Chance

Neil Duxbury

in Random Justice: On Lotteries and Legal Decision-Making

Chance offers no guarantee that one will get the outcome that one desires. Just as we can be its beneficiaries, so too we may be its victims. Luck rests at the foundation of our moral judgements: the ... More

Chance offers no guarantee that one will get the outcome that one desires. Just as we can be its beneficiaries, so too we may be its victims. Luck rests at the foundation of our moral judgements: the actions on which we are judged emerge from a world which we do not control. The notion of ‘moral luck’ is especially unnerving because there seems to be something in our conception of morality that arouses opposition to the idea that moral responsibility, or moral merit, or moral blame, should be subject to luck. Chance is an integral, ineradicable feature of law. Just as in other areas of life, being a beneficiary or a victim of the legal system will often be a matter of luck. This book articles the main problems associated with legal decision-making and shows that these problems may be overstated. This book considers what sort of case might be made for the use of lotteries in legal and social decision-making contexts.Less

Contextualizing the Lottery

Neil Duxbury

in Random Justice: On Lotteries and Legal Decision-Making

While the lottery has never been adopted as a general social decision-making tool, it has, in the past, been used to resolve a fairly wide variety of matters. Yet, today, to seriously entertain the ... More

While the lottery has never been adopted as a general social decision-making tool, it has, in the past, been used to resolve a fairly wide variety of matters. Yet, today, to seriously entertain the prospect of extensive social decision-making by resort to lot (and hence, chance) would probably strike most people as absurd. The outcome of casting lots was once regarded not as random but as the revelation of divine intent. While divination by lot can be traced back at least as far as the ninth century BC, it would be wrong to regard the practice as wholly archaic. For Saint Thomas Aquinas, lotteries were regarded in medieval times as a means of getting God to speak. It may sometimes be the case that refusal to entertain the possibility of political and legal decision-making by resort to randomization betrays not human rationality but quite the opposite. Reluctance to use lotteries for political purposes such as elections is understandable, but misplaced. There are many arguments which might be advanced in support of randomness in political selection.Less

Conclusion: The Fiction of Authority

Arne Höcker

in The Case of Literature: Forensic Narratives from Goethe to Kafka

This chapter explains that while literary texts in the nineteenth century continued the convention of referencing historical cases, they did so in order to question institutional authority and to ... More

This chapter explains that while literary texts in the nineteenth century continued the convention of referencing historical cases, they did so in order to question institutional authority and to criticize the epistemological foundations and the legitimacy of legal judgments informed by psychological narrative. A scene from Hoffmann's “The Story of Serapion” in The Serapion Brethren may exemplify this new status of literary fiction in the nineteenth century. Hoffmann's rigorous rejection of medical authority in the analysis of states of mind for the purpose of legal decision making shows his deep concern about the predictability of the law and the dangers of compromising legal authority with knowledge based on philosophical speculation. Literary fiction, according to Hoffmann's rendering of romantic authorship, develops in opposition to psychological rationality and its claim to objectivity: poetical talent is based on methodological madness. This model of authorship, on the one hand, assigns to literary authors a special ability to depict questionable states of mind, and on the other hand locates this ability in authors' own special psychological intuition.Less

The Interpretation of Rules

FREDERICK SCHAUER

in Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life

This chapter examines the roles of purpose and intention in the interpretation of rules from a rule-oriented perspective. It suggests that questions about the interpretation of rules are questions ... More

This chapter examines the roles of purpose and intention in the interpretation of rules from a rule-oriented perspective. It suggests that questions about the interpretation of rules are questions about how hard cases should be decided. It analyses the Hart-Fuller debate and makes claims about the interpretation made by philosopher Ronald Dworkin, and argues that legal interpretation and legal decision making leave open more of a role for a formal use of constraining rule than is commonly recognized.Less

Other Bases for Decision: Principles and Consequential Considerations

Kent Greenawalt

in Statutory and Common Law Interpretation

This chapter explores further what judges do in common law cases when they decide in the absence of a controlling precedent or ask themselves whether to overrule or avoid a precedent that does appear ... More

This chapter explores further what judges do in common law cases when they decide in the absence of a controlling precedent or ask themselves whether to overrule or avoid a precedent that does appear to apply. After looking at considerations that are relevant in common law adjudication, it provides a summary analysis of three accounts of the overall task of judges who are resolving common law issues. It then examines questions about how judges should regard precedents that apparently apply, and what it should take to distinguish them or undertake full or partial overruling. The chapter focuses on appellate courts; these are not bound by the legal rulings of the courts below them.Less

Legal Decision-Making in Fourteenth-Century Toledo: The Responsa of Rabbi Judah ben Asher

Marc Saperstein

in Leadership and Conflict: Tensions in Medieval and Early Modern Jewish History and Culture

This chapter is based on the responsa of Rabbi Judah ben Asher, a member of one of the leading rabbinic families in early fourteenth-century Castile. His responsa often diverges dramatically and ... More

This chapter is based on the responsa of Rabbi Judah ben Asher, a member of one of the leading rabbinic families in early fourteenth-century Castile. His responsa often diverges dramatically and explicitly from the principles of classical Jewish legal texts in addressing what the writer saw as the needs of his time. The chapter looks particularly at extra-halakhic aspects of his decision-making — the extent to which his adjudication is explicitly motivated, influenced, or guided by factors other than the interpretation of the classical sources of halakhah — and what this can say about Jewish life in fourteenth-century Castile. The question of takanot, communal legislation inconsistent with the traditional law, is relevant here. So are decisions manifestly said to be not in accordance with Torah law, whether because of urgent immediate needs or because changing historical circumstances seemed to make the talmudic principle no longer applicable.Less

Introduction: A System of Pleas

Vanessa A. Edkins and Allison D. Redlich (eds)

in A System of Pleas: Social Sciences Contributions to the Real Legal System

While a great deal of psycho-legal research has focused on the trial process—and the decision making of jurors and juries, in particular—trials are not reflective of the current system of justice in ... More

While a great deal of psycho-legal research has focused on the trial process—and the decision making of jurors and juries, in particular—trials are not reflective of the current system of justice in the United States. Instead, we find ourselves within a system of pleas (Lafler v. Cooper, 2012) with a scarcity of social science research available to guide us. With this volume, we hope to integrate the current plea bargaining research that informs the field, from charging and defendant decision making, to attorney influences, to the ramifications at the larger system and institutional levels. Spanning multiple disciplines, the research and theories related to plea bargaining have much to contribute to public policy and to changes that individual actors (e.g., defense attorneys, prosecutors, and judges) may decide to incorporate in their daily interactions within our system of pleas.Less

Deciding

in A History of Trust in Ancient Greece

This chapter examines legal decision making in ancient Greece. It considers how the active, judging role of the audience in Athenian courts and assemblies has been obscured by the reduction of ... More

This chapter examines legal decision making in ancient Greece. It considers how the active, judging role of the audience in Athenian courts and assemblies has been obscured by the reduction of rhetoric to persuasion and describes how elite and ordinary Athenians negotiated their class interests through ideology in rhetorical contexts. This chapter argues that a generalized trust in the system preceded and established trust in specific speakers and explains that rhetoric constituted relationships among citizens that were abstract, impersonal, and powerful.Less

The Lawyer and the Lightning Rod

in Science in the Age of Sensibility: The Sentimental Empiricists of the French Enlightenment

This chapter looks at the influence of moral authority of sentimental empiricism in the context of legal decision-making. The chapter tells the story of M. de Vissery de Bois-Valé of Saint-Omer, who, ... More

This chapter looks at the influence of moral authority of sentimental empiricism in the context of legal decision-making. The chapter tells the story of M. de Vissery de Bois-Valé of Saint-Omer, who, in the spring of 1780, put a lightning rod on his roof. His neighbors feared the rod, sued him to remove it, and won. The case was inherited on appeal by an unknown and junior member of the Arras bar, Maximilien Robespierre. To defend Vissery, Robespierre corresponded with jurisconsults and electricians. He then exploited the empiricist dogma shared by law and physics in 1780s France. According to this dogma, knowledge was founded in particular facts not because of their places in general theories, but, on the contrary, because of their irreducible particularity. A particular fact derived its importance precisely by resisting theory and tradition. Robespierre stated the facts of electrical behavior while denying that the theoretical explanations of those facts, demanded by Vissery's opponents, had any place in empirical science or in courts of law. If the courts would only set aside the theories of both physics and jurisprudence, Robespierre argued, the two sciences would meet in the truth.Less

Precautionary Principle

Paul Craig

in EU Administrative Law

Many of the principles of administrative law discussed previously will be familiar to scholars from their domestic jurisprudence. The precautionary principle differs in this respect. While it is ... More

Many of the principles of administrative law discussed previously will be familiar to scholars from their domestic jurisprudence. The precautionary principle differs in this respect. While it is found in some legal systems, such as Germany, it is nonetheless relatively novel as a precept of administrative law. It has, however, become of increased importance in EU law. Less