Month: March 2013

Volume 86, Number 3 (March 2013)

Volume 86, Number 3 (March 2013)

How Lawyers’ Intuitions Prolong Litigation – Article by Andrew J. Wistrich & Jeffrey J. Rachlinski

From Volume 86, Number 3 (March 2013)
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Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and the sunk-cost fallacy—produce intuitions in lawyers that can induce them to postpone serious settlement negotiations or to reject settlement proposals that should be accepted. Lawyers’ tendency to rely excessively on intuition exacerbate the impact of those cognitive illusions. The experiments presented in this Article indicate that the vulnerability of experienced lawyers to these cognitive errors can prolong litigation.

 

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Concepts of Law – Article by Mathew D. McCubbins & Mark Turner

From Volume 86, Number 3 (March 2013)
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All of law depends on vast concepts that stretch across time, space, causation, and agency. Far-reaching concepts make law possible from legislation and interpretation to enforcement and adjudication; from weighing evidence to establishing motive and intent; and from imposing fines or sentences to awarding compensation. But all of human thought and memory is just here and now. The vast dependencies of time, space, causation, and agency must exist in individual brains. How we manage to use here-and-now mental processes to produce legal concepts that stretch very broadly over vast expanses of our lives, institutions, and worlds is the point of this Article. We will discuss how human beings transform vast dependencies that stretch across time, space, causation, and agency into tractable, much smaller, and more compact concepts that we can hold onto, manipulate, and develop. We will explain how these compact concepts are “blends” for thinking about much larger mental webs of ideas that are too large to hold in mind themselves. We will also suggest a research agenda that may allow us to better understand what sorts of blends work, and which ones we discard and when. Examples of blends are everywhere in law. A “decedent” in law, for example, is a kind of agent who exists (but does not live) in the present, who is imbued with some of the intentionality of a person who once existed, and for whom there are documentary records expressing this past intentionality.

 

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Cheap, Easy, or Connected: The Conditions for Creating Group Coordination – Article by Mathew D. McCubbins, Daniel Rodriguez & Nicholas Weller

From Volume 86, Number 3 (March 2013)
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In both legal and political settings there has been a push toward adopting institutions that encourage consensus. The key feature of these institutions is that they bring interested parties together to communicate with each other. Existing research about the success or failure of particular institutions is ambiguous. Therefore, we turn our attention to understanding the general conditions when consensus is achievable, and we test experimentally three crucial factors that affect a group’s ability to achieve consensus: (1) the difficulty of the problem, (2) the costs of communication, and (3) the structure of communication. Using multiple experimental approaches, we find that difficult problems impede consensus, costs make consensus less likely (even relatively very small costs), and the structure of communication has significant effects and interacts with both problem difficulty and costs. In particular, the structure of communication can reduce the negative effect of costs and facilitate consensus. Together these results imply that consensus is only likely to occur if problems are easy, costs to communicate are low, or the communication structure helps overcome the other two problems. These findings can provide insight about the institutional designs that can be utilized to promote consensual outcomes.

 

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Beyond Facts and Norms: How Psychological Transparency Threatens and Restores Deliberation’s Legitimating Potential – Article by Arthur Lupia, Yanna Krupnikov & Adam Seth Levine

From Volume 86, Number 3 (March 2013)
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In Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Jürgen Habermas describes a challenge to modern democracies and a procedure for adapting to this challenge. The challenge is that in the absence of natural law, or any other universally accepted moral or ethical code, no common framework informs people about what kinds of laws are, and are not, legitimate. Hence, if laws are to be accepted by, and hence binding on, the populations for whom they are intended to apply, an alternate legitimating mechanism is required.

Habermas describes communicative procedures that have the potential to provide legitimacy to collective decisions. In this ideal discourse (“ID”), as we describe it, all citizens have an equal right to speak and an obligation to listen. If deliberations culminate in agreement on the validity of socially relevant moral, ethical, or technical propositions, then the propositions serve as substantive foundations for subsequent legislative decisions and bureaucratic actions.

 

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Can Legal Actors Play Equilibrium Strategies? Two Dubious Assumptions in the Game-Theoretic Analysis of the Law – Article by Daniel Enemark

From Volume 86, Number 3 (March 2013)
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Strategic actors often require a great deal of informational and computational resources to calculate game-theoretic equilibria, and scholars need a precise accounting of incentives in order to model the decisions faced by these actors. Rarely are both of these conditions—player rationality and payoff quantifiability—met when scholars attempt to model the behavior of individual actors in the law (especially the behavior of lay people such as jurors, litigants, or criminals). Behavioral economists have proposed posthoc adjustments to account for the failure of player rationality, but these adjustments—if they are indeed correct—make the pursuit of equilibrium impossible for any actor with realistic informational and cognitive resources. This Article discusses the necessary conditions for the emergence of equilibrium strategies, and identifies examples of legal scholarship in which the use of equilibrium solution concepts is problematic because of the improbability that these conditions are met.

 

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The Neurobiology of Opinions: Can Judges and Juries Be Impartial? – Article by Isabelle Brocas & Juan D. Carrillo

From Volume 86, Number 3 (March 2013)
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In this Article we build on neuroscience evidence to model belief formation and study decisionmaking by judges and juries. We show that physiological constraints generate posterior beliefs with properties that are qualitatively different from traditional Bayesian theory. In particular, decisionmakers will tend to reinforce their prior beliefs and to hold posteriors influenced by their preferences. We study the implications of the theory for decisions rendered by judges and juries. We show that early cases in judges’ careers may affect their decisions later on, and that early evidence produced in a trial may matter more than late evidence. In the case of juries, we show that the well-known polarization effect is a direct consequence of physiological constraints. It is more likely to be observed when information is mixed, as behavioral evidence suggests, and when prior beliefs and preferences are initially more divergent across jurors.

 

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Farm Fishing Holes: Gaps in Federal Regulation of Offshore Aquaculture – Note by Kristen L. Johns

From Volume 86, Number 3 (March 2013)
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Fish might be considered “brain food,” but there is nothing smart about the way the United States currently manages its seafood production. Although the U.S. government has long promoted the health benefits of products from the sea—even urging Americans to double their seafood intake—it has fallen far behind in developing a domestic source for this seafood. Currently, the United States relies on an almost primitive method for domestic seafood production: taking animals found naturally in the wild. However, this approach is no longer sustainable: most federally managed capture fisheries are either stable or declining, with forty-eight currently overfished, and forty subject to overfishing in 2010. What seafood the United States does not take from its own fisheries it imports; in 2011 the United States imported as much as 91 percent of its seafood supply. Fortunately, there is a way for the United States not only to ease the pressure on traditional fisheries—allowing them to recover—but also to provide a significant domestic source of seafood products: through the development and promotion of its domestic offshore aquaculture industry. However, this industry should not be allowed to expand free from regulation, as offshore aquaculture may have serious consequences for both marine and human environments.

 

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