Facts, Preferences, and Doctrine: An Empirical Analysis of Proportionality Judgment

Abstract

Legal proportionality is one of the most important principles for adjudicating among conflicting values. However, rather little is known about the factors that play a role in the formation of proportionality judgments. This research presents the first empirical analysis in this regard, relying on a sample of 331 legal experts (lawyers and legal academics). The policy domain addressed by the experiment is the antiterrorist military practice of targeted killings, which has been the subject of a legal debate. Our experimental findings suggest that proportionality judgments are receptive to normatively relevant facts. We also find strong correlational evidence for the effect of ideological preferences on such judgments. These results are consistent for two proportionality doctrines. We suggest that proportionality judgment is anchored jointly in the experts' policy preferences and the facts of the case. We outline the implications of the findings for the psychological and legal literature.

The slippery slope of rights-restricting temporary measures: an experimental analysis

“…First, the participants in this study were laypeople, not professional decision-makers or legislators. Professional decision-makers have previously been found, in multiple studies, to be equally affected by psychological biases as laypersons (e.g., Landsman & Rakos, 1994;Wissler et al, 1999;Sulitzeanu-Kenan et al, 2016;Statman et al, forthcoming). Nevertheless, future research should examine the effects of making temporary policy among professional policymakers as well.…”

Ideological bias in constitutional judgments: Experimental analysis and potential solutions

“…Likewise, Cope and Crabtree (2020) found that attitudes toward the implementation of international human rights were driven by the political‐party affiliation. Sulitzeanu‐Kenan et al (2016) show that ideological preferences strongly influence legal expert's judgments regarding the proportionality of hypothetical scenarios describing targeted killings of terrorists (Sulitzeanu‐Kenan et al, 2016).…”

“…Empirical evidence supports these claims. For example, Sulitzeanu‐Kenan, Kremnitzer, and Alon find that legal proportionality judgments are strongly influenced by adjudicators' ideological preferences (Sulitzeanu‐Kenan et al, 2016). Kahan et al (2012) show that political affiliation affects people's perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Their findings demonstrate the high impact of “cultural cognition,” which they define as the unconscious influence of individuals' ideological group on their perceptions of legally consequential facts.…”

“…Empirical evidence supports these claims. For example, Sulitzeanu-Kenan, Kremnitzer, and Alon find that legal proportionality judgments are strongly influenced by adjudicators' ideological preferences (Sulitzeanu-Kenan et al, 2016). Kahan et al (2012) show that political affiliation affects people's perceptions of facts relevant to distinguishing constitutionally protected "speech" from unprotected "conduct."…”

The Cognitive Psychology of Rules of Interpretation in International Law

“…Proportionality analysis, pervasive in international law, is a mode of reasoning, a methodological tool used for balancing competing rights or principles, 29 be it in human rights law, trade law, or international humanitarian law. Hitherto, it has rarely been tested experimentally, 30 but it is highly likely that its decision-architecture and how the ingredients of proportionality analysis are presented may produce biases (or counter them). 31 Different steps of proportionality analysis, namely analyzing suitability and necessity depend on an assessment of probabilities.…”