Context-Dependence in Legal Decision Making

Salience Theory of Judicial Decisions

“…Judicial evaluation of specific situations does not occur in a vacuum and may be shaped by the litigants' positions and the judge's own experience, over and above the informational content of these inputs. A recent experimental literature documents a variety of such contextual effects on legal decisions by jury-eligible persons as well as by judges (for example, Rachlinski 1996; Guthrie, Rachlinski, and Wistrich 2001;Viscusi 1999Viscusi , 2001Kelman, Rottenstreich, and Tversky 1996). In this section, we show that the salience model provides a unified account of these disparate pieces of experimental evidence.…”

“…This is illustrated by the following hypothetical legal counseling case proposed by Kelman, Rottenstreich, and Tversky (1996) to undergraduate students at Stanford University:…”

“…Jerome Frank in particular stressed the importance of psychology for fact-finding, claiming that judges and juries are often mistaken, biased, or inattentive (Frank 1949). The role of psychology in judicial decisions is again receiving some attention, especially in experimental research (Guthrie, Rachlinski, and Wistrich 2001;Kelman, Rottenstreich, and Tversky 1996;Viscusi 1999;Rachlinski, Wistrich, and Guthrie 2013). This research is based on the classic work of Kahneman and Tversky (1979;Tversky and Kahneman 1974), who identify a range of heuristics that decision makers use to make judgments and document biases that result from the use of such intuitive heuristics.…”

“…In particular, we consider anchoring mechanisms in the setting of damages, decoy effects affecting the choice among different legal remedies, and framing of payoffs in shaping the choice of settlement versus litigation. The key papers on which our analysis draws include Rachlinski (1996), Guthrie, Rachlinski, and Wistrich (2001), Kelman, Rottenstreich, and Tversky (1996), and Viscusi (1999Viscusi ( , 2001. We show that salience theory provides a unified account of arguably disparate bits of evidence on judicial decision making but also offers a new approach to positive analysis of damage awards in torts.…”

The Difficult Reception of Rigorous Descriptive Social Science in the Law

“…To the extent that this is the case, formal methodology helps detect them. For instance, lawyers have been demonstrated to fall prey to framing (KELMAN, ROTTENSTREICH et al 2000;MCCAFFERY, KAHNEMAN et al 2000;RACHLINSKI 2000:96-99;GUTHRIE, RACHLINSKI et al 2001:794-799), anchoring (HINSZ and INDAHL 1995;RACHLINSKI 2000:96-99;ENGLICH and MUSSWEILER 2001;GUTHRIE, RACHLINSKI et al 2001:787-794) and the fundamental attribution error (FEIGENSON 2000:15).…”