Posted by Adam Benforado on November 7, 2010
This week I have been trying to catch up on some tasks that have been on my list since early in the semester. One has been to post some of my recent papers on SSRN. To this end, I have just put up Color Commentators of the Bench, which may be of interest to certain Situationist readers. The abstract appears below:
Featuring prominently in the last four sets of Supreme Court confirmation hearings, the judge-as-umpire analogy has become the dominant frame for understanding the role of the Justice and may also now act as a significant constraint on judicial behavior. Strong criticisms from legal academics and journalists attacking the realism of the analogy have had little destabilizing effect. This Essay argues that the best hope for shifting the public conception of the work of a Justice is to offer a counter analogy that draws from an equally intuitive and familiar context, while also capturing the core essence of Supreme Court adjudication—the particular process of creative interpretation and explanation. The metaphor of the Justice as color commentator in the press box not only meets these criteria, but also makes explicit that judges are not robotic, objective arbiters. Moreover, in exposing the myth of judicial rationality and neutrality bolstered by the umpire analogy, the commentator alternative provides the possibility of helping Justices to better control for their biases and reducing damaging episodes of cognitive illiberalism. As further evidence of the appropriateness and robustness of the commentator analogy, the Essay concludes by demonstrating how sports commentating can be critiqued employing the precise implements developed by legal scholars to analyze judicial decision making.
To download a copy of the entire paper, click here.
For a sample of related Situationist posts, see “I’m Objective, You’re Biased,”
Posted in Abstracts, Law, Situationist Contributors | Tagged: Cognitive Illiberalism, debiasing, Judge as Umpire, Judicial Analogies, Judicial Behavior, Judicial Bias, Justices, mind sciences, Project on Law and Mind Sciences, Sports Law, Supreme Court, Umpires | 1 Comment »
Posted by The Situationist Staff on November 1, 2008
Avishalom Tor has written an article, “The Methodology of the Behavioral Analysis of Law” (forthcoming 4 Haifa Law Review 237 (2008)) that will be of particular value for our readers interested in economic behavioralism. You can download the paper for free on SSRN. Here’s the abstract.
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This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that the behavioral approach is empirically driven, engaging in both the theoretical application of extant empirical findings to the law and the generation of new, legally relevant, experimental and observational evidence. As this Part shows, moreover, each of these behavioral genres possesses different methodological strengths and weaknesses, and they therefore both substitute for and complement one another, in different respects. Part IV explains that the behavioral approach encounters a series of “gaps” between the type of empirical evidence provided by behavioral decision researchers and the data required to resolve legal questions. Legal scholars should therefore be aware of these gaps, which may limit the usefulness of extant behavioral evidence for legal analysis. This Part also addresses what legal scholars may do to overcome these gaps and distinguish real gaps from imaginary ones. Part V completes the body of the Article, arguing that the behavioral analysis of law is simultaneously normatively neutral and normatively relevant. It is normatively neutral because the behavioral analysis of law is not committed to any specific legal goal or value system. This fundamental neutrality, in turn, makes the behavioral approach a versatile instrument, which can help generate important normative conclusions in the service of scholars evaluating the law based on any normative criteria – from justice to welfare and more. Part VI concludes.
Posted in Uncategorized | Tagged: behavioral, Choice, debiasing, decision making, experimental, judgment, law and economics, paternalism, rationality | Leave a Comment »