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Wednesday, July 20, 2011

Legal Realism Revisited

I'd be interested in people's thoughts on the following study on the outcomes of parole hearings in Israel: "Extraneous factors in judicial decisions," by Shai Danziger, Jonathan Levav, and Liora Avnaim-Pessoa. The abstract:

Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.

Perhaps a rule mandating hourly snacks for judges, or even a constant stream of intravenously-administered fluid, would be in order. Seriously, the drop in favorable rulings as judges get hungry is rather alarming, isn't it?

Posted by Stuart Buck on July 20, 2011 at 10:09 AM | Permalink

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Comments

First, full disclosure, I'm completing my Ph.D. in Social Psychology, so you know where I stand on legal realism. That said, I like empirical rigor even more, and it looks like they did a pretty darn good job of ruling out intentional/conscious alternative explanations for the result as well as inadvertent systematic ordering by legitimate criterion, e.g., severity of offence, particularly for a non-experimental field study. Still, these types of findings should not surprise us. Judges are human. Why wouldn't the factors that influence human performance, perceptions, judgments, and decisions also affect them? [Obligatory nod to O.W. Holmes] "You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place."

Posted by: Erik | Jul 20, 2011 11:43:06 PM

Anonny 21,

Your question seems to be answered in this study appendix here: http://www.pnas.org/content/suppl/2011/03/30/1018033108.DCSupplemental/pnas.201018033SI.pdf

I am not enough of a stat-o-phile to determine if this answers your concern, but it shows that they at least considered the question.

Posted by: Sean M. | Jul 20, 2011 8:49:25 PM

Study is paywalled, so I can't look at this issue. Did the authors investigate whether the scheduling was random, or was perhaps pre-stacked from hard to easy cases?

I have often seen courts stack a string of longshot pro se cases at the end of a session, whether morning or afternoon. They address the "real cases" from 9-11, then whip through a stack of no-hope cases from 11-11:45, or so. Some are appeals submitted on the papers without argument, some are trial courts taking easier pleas with shorter allocutions, and so on.

If the longshots are set up that way, even in part, that would explain this.

But if it's randomly scheduled, it can't be this, of course. So I'd like to know.

Posted by: anonny 21 | Jul 20, 2011 12:35:53 PM

It is something to consider and evaluate. It seems proper and diligent work requires more from ourselves than we think. We aren't machines eventhough most of us think we are.

Posted by: Chrystina | Jul 20, 2011 11:46:01 AM

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