Experimental Economics on Jurisdiction - Dictionary of Arguments
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Jurisdiction/Experimental economics/Sullivan/Holt: Because the myriad cognitive biases that affect human perception and reasoning (see e.g. Kahneman, Slovic, and Tversky 1982(1); Kahneman 2011(2)) are also apparent in members of the judiciary (see Guthrie, Rachlinski, and Wistrich, 2001(3); Rachlinski, Guthrie, and Wistrich, 2006(4)), study of conclusions made in adjudicative postures may provide insight into the strengths and limitations of trial judges.
Anchoring effects: Experimental study of anchoring effects in adjudication provides an intuitive example. The basic question is whether judges may tend to anchor ultimate determinations of guilt and innocence on the implications of early evidence (Thompson and Schumann, 1987)(5). A recent experiment by Sonnemans and van Dijk (2011)(6) provides some evidence to this effect in the context of studying judicial effort—for example, the amount of time or energy a judge expends in weighing evidence at trial.
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Results: Collected data show experimental judges abandoning their search efforts inefficiently early, with subjects evidently overweighing the value of their initial assessments and thus inefficiently abbreviating evidentiary hearings.
Juries: The introduction of group dynamics may not seem like a big difference, but experimental economics is replete with examples of substantial differences in behavior when individuals and groups engage in otherwise identical decision-making tasks. For example, in a detailed survey of the literature comparing individual and group decision-making, Charness and Sutter (2012)(7) observe that groups appear generally less exposed to cognitive biases than individuals, and also appear less susceptible to emotional influences when making decisions. This observation has obvious implications for understanding the relative strengths of juries compared to judges.
Group dynamic: The rules of group interaction are also uniquely important when considering how juries perform adjudicative functions (cf. Bosman, Hennig-Schmidt, and Winden, 2006)(8). Take, for example, the common intuition that “false convictions” will be less likely if a unanimous jury vote is required. In contrast, the game-theoretic prediction is that unanimity requirements may actually increase the probability of false convictions as a result of strategic juror voting (Feddersen and Pesendorfer, 1998)(9).
Unanimity: To understand the possible effects of strategic voting under unanimity, note that a vote to acquit only matters if everyone else votes to convict, which might cause jurors to be reluctant to vote to acquit even if they personally believe the defendant is innocent. Guarnaschelli, McKelvey, and Palfrey (2000)(10) test this surprising prediction using a series of experiments in which subjects were incentivized to make careful voting decisions in an environment analogous to jury deliberation in a criminal case.
Results: The authors find strong experimental evidence that some jurors do vote strategically under a unanimity rule, but that the effect of such strategic voting is not strong enough to cause the rate of false convictions under unanimity to be higher than under a simple majority requirement.
Strategic voting: Moreover, Goeree and Yariv (2011)(11) find evidence that strategic voting in a similar experimental setting may be substantially mitigated by opportunities for jury deliberation.* The implication of experimental results to date is that it could be a serious mistake to base policy recommendations on sharp theoretical predictions that have not been evaluated in the laboratory, especially when these predictions run counter to basic intuition.
*Baddeley and Parkinson (2012)(12) use experiments to explore some of the individual and group dynamics that may influence jury deliberation, and also provide a thorough review of the relevant literatures.
1. Kahneman, D., P. Slovic, and A. Tversky (1982). Judgment under Uncertainty: Heuristics and Biases. Cambridge: Cambridge University Press.
2. Kahneman, D. (2011). Thinking, Fast and Slow. New York: Farrar, Straus and Giroux.
3. Guthrie, C., J. J. Rachlinski, and A. J. Wistrich (2001). “Inside the judicial mind.” Cornell Law Review 86: 777–830.
4. Rachlinski, J. J., C. Guthrie, and A. J. Wistrich (2006). “Inside the Bankruptcy Judge’s Mind.” Boston University Law Review 86: 1227–1265.
5, Thompson, W. C. and E. L. Schumann (1987). “Interpretation of Statistical Evidence in Criminal Trials: The Prosecutor’s Fallacy and the Defense Attorney’s Fallacy.” Law and Human Behavior 11(3): 167–187.
6. Sonnemans, J. and F. van Dijk (2011). “Errors in Judicial Decisions: Experimental Results.” Journal of Law, Economics, and Organization 28(4): 687–716.
7. Charness, G. and M. Sutter (2012). “Groups Make Better Self-Interested Decisions.” Journal of Economic Perspectives 26(3): 157–176.
8. Bosman, R., H. Hennig-Schmidt, and F. Winden (2006). “Exploring Group Decision Making in a Power-to-Take experiment.” Experimental Economics 9(1): 35–51.
9. Feddersen, T. and W. Pesendorfer (1998). “Convicting the innocent: The inferiority of unanimous jury verdicts under strategic voting.” American Political Science Review 92(1): 23–35.
10. Guarnaschelli, S., R. D. McKelvey, and T. R. Palfrey (2000). “An experimental study of jury decision rules.” American Political Science Review 94(2): 407–423.
11. Goeree, J. K. and L. Yariv (2011). “An Experimental Study of Collective Deliberation.” Econometrica 79(3): 893–921.
12. Baddeley, M. and S. Parkinson (2012). “Group Decision-Making: An Economic Analysis of Social Influence and Individual Difference in Experimental Juries.” Journal of Socio-Economics 41(5): 558–573.
Sullivan, Sean P. and Charles A. Holt. „Experimental Economics and the Law“ In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Francesco Parisi (Ed)
The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017