Altering attention in adjudication

UCLA Law Review

Volumn 60, Issue 6, 2013, Pages 1586-1618

  Rachlinski, Jeffrey J ^a   Wistrich, Andrew J ^b   Guthrie, Chris ^c  

^a MIT Sloan School of Management   (United States)

^b US District Court for the Central District of California ^*  (United States)

^c VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84886566918     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (72)

1. Adam Green, A Pickpocket's Tale: The Spectacular Thefts of Apollo Rabbins, NEW YORKER, Jan. 7, 2013, at 38, 41 (quoting Apollo Robbins, theatrical pickpocket and magician).
2. Morton L. Janklow, You Can Be Persuasive, PARADE MAG., Dec. 29, 1985, at 8, 10.
3. LEE ROSS & RICHARD E. NISBETT, THE PERSON AND THE SITUATION: PERSPECTIVES OF SOCIAL PSYCHOLOGY 69 (1991) ("[P]eople's responses to an object are often less reflective of their long-held attitudes and values than of the way they happen to construe the 'object of judgment' on a given occasion. ").
4. Ross and Nisbett attribute this observation to Solomon Asch. SOLOMON E. ASCH, SOCIAL PSYCHOLOGY 424 (1952) ("[T]here has been no change of evaluation, but ramer a change in that which is being evaluated. The fundamental fact involves a change in the object of judgment, rather than in the judgment of the object." (internal quotation marks omitted)).
5. S. E. Asch, Effects of Group Pressure Upon the Modification and Distortion of Judgments, in READINGS IN SOCIAL PSYCHOLOGY 2, 3-6 (rev. ed. 1952) (describing the experiment and its results);
6. see also Jeffrey J. Rachlinski, The Limits of Social Norms, 74 CHI.-KENT L. REV. 1537, 1551-53 (2000) (discussing interpretations of Asch's study).
7. See Lee Ross et al., The Role of Attribution Processes in Conformity and Dissent: Revisiting the Asch Situation, 31 AM. PSYCHOLOGIST 148, 149-50 (1976) (describing the dilemma of subjects in the Asch experiment as a difficulty with explaining the behavior of their peers).
8. See Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 HARV. L. REV. 1420, 1432-33 (1999) (discussing the efforts of advertisers to misdirect the public).
9. We have successfully used this methodology for over a decade. See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 13-14 (2007) [hereinafter Guthrie et al., Blinking on the Bench];
10. Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777, 786-87 (2001);
11. Chris Guthrie et al., Judging by Heuristic: Cognitive Illusions in Judicial Decision Making, 86 JUDICATURE 44, 45-46 (2002);
12. Chris Guthrie et al., The "Hidden Judiciary": An Empirical Examination of Executive Branch Justice, 58 DUKE L. J. 1477, 1492-94 (2009);
13. Jeffrey J. Rachlinski et al., Contrition in the Courtroom: Do Apologies Affect Adjudication?, 98 CORNELL L. REV. 1189 (2013);
14. Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1205-06 (2009);
15. Jeffrey J. Rachlinski et al., Inside the Bankruptcy Judge's Mind, 86 B. U. L. REV. 1227, 1232 (2006);
16. Jeffrey J. Rachlinski et al., Probable Cause, Probability, and Hindsight, 8 J. EMPIRICAL LEGAL STUD. 72, 76-78 (2011) [hereinafter Rachlinski et al., Probable Cause];
17. Andrew J. Wistrich et al., Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. PA. L. REV. 1251, 1281-84 (2005);
18. Andrew J. Wistrich & Jeffrey J. Rachlinski, How Lawyers' Intuitions Prolong Litigation, 86 S. CAL. L. REV. 571 (2013).
19. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169, 170 (1968) (The optimal amount of enforcement is shown to depend on, among other things, the cost of catching and convicting offenders, the nature of punishments-for example, whether they are fines or prison terms-and the responses of offenders to changes in enforcement").
20. see also David S. Abrams, The Imprisoner's Dilemma: A Cost-Benefit Approach to Incarceration, 98 IOWA L. REV. 905, 946-52 (2013) (analyzing the direct and indirect costs of incarceration).
21. See Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 OHIO ST. J. CRIM. L. 37, 39 (2006) (discussing the factors that may appropriately be considered in imposing sentence);
22. Michael T. Cahill, Retributive Justice in the Real World, 85 WASH. U. L. REV. 815, 821 (2007) (discussing whether the criminal justice system should consider social consequences when determining a sentence).
23. See GEORGE P. FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW 32 (1998) ("[T]he notion that suffering of the offender can negate the suffering caused by the offense continues to resonate in our intuitions of justice.");
24. see also 18 U. S. C. § 3553 (a) (2006) (identifying factors used in federal sentencing).
25. Chad Flanders, Cost and Sentencing: Some Pragmatic and Institutional Doubts, 2A FED. SENT'G REP. 164, 165 (2012) [hereinafter Flanders, Institutional Doubts] ("The goal of saving money seems to be a different land of goal than the traditional penological ones of preventing, deterring, and justly punishing crime.");
26. See, e.g., United States v. Molina, 563 F.3d 676, 678 (8th Cir. 2009) ("[W]e doubt that sentencing courts have the authority to impose lesser sentences based on the cost of imprisonment.");
27. United States v. Tapia-Romero, 523 F.3d 1125, 1126 (9th Cir. 2008) ("Congress has not made the cost to society of a defendant's imprisonment a factor [that] a sentencing judge should consider under [18 U. S. C.] § 3553 (a) in determining the appropriate term of imprisonment under 18 U. S. C. § 3582 (a).");
28. United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997) ("The decision whether tax dollars should be used to pay for lengthy sentences is a congressional determination, not one to be made by federal courts.").
29. Conversely, others have encouraged judges to consider cost as a factor, at least some of the time. See Chad Flanders, Cost as a Sentencing Factor Missouri's Experiment, 77 MO. L. REV. 391, 395 (2012) [hereinafter Flanders, Missouri's Experiment] (Judges and attorneys may argue cost at sentencing hearings, and many of them do."). Notably, judges are provided with cost information in other criminal justice contexts. For example, federal judges are encouraged to consider-along with the usual factors such as risk of danger to the community and risk of nonappearance-the relative cost of pretrial detention, release on bond, and various forms of postrelease monitoring.
30. Monica Davey, Missouri Tells Judges Costs of Sentences, N. Y. TIMES, Sept. 18, 2010, http://www.nytimes.com/2010/09/19/us/19judges.html ("Long missing [in the criminal justice system] has been a sober realization that even if we get significant benefits from incarceration, that comes at a significant cost." (quoting Douglas A. Berman));
31. Heather Ratcliffe, Missouri Judges Get Penalty Cost Before Sentencing, ST. LOUIS POST-DlSPATCH (Sept. 14, 2010), http://www.stltoday.com/news/local/ crime-and-courts/missouri-judges-get-penalty-cost-before-sentencing/ article-924097a5-9f4d-54bb-80ca-4cc4160dde7c.html (reporting the view of Cathy Kelly of the Missouri Public Defender System that the "state is going bankrupt" and that judges need to know about "cost-effective options besides prison").
32. See Flanders, Missouri's Experiment, supra note 15, at 391-92.
33. Sentencing Information on www.mosac. mo.gov Now Includes Costs of Recommended Sentences and Risks of Reincarceration, SMART SENT'G, Aug. 17, 2010, http://ww.mosac.mo.gov/ffle.jsp?id=45502.
34. Flanders, Missouri's Experiment, supra note 15, at 393 ("The debate over the inclusion of cost figures in sentencing reports is part of the larger question of what factors are appropriate for a judge to consider when sentencing. Should a judge include considerations of the social cost of certain forms of punishment when deciding a sentence, or does that mean the sentence is no longer tailored to the individualized facts of the crime and the criminal? The question of including sentence cost also raises an issue central to modern retributivist theory, to what extent can the criminal justice system and the various parties in it consider societal consequences in determining a sentence? Should the right punishment be given to the offender, even if important social programs remain unfunded?" (footnotes omitted)).
35. Jeff Milyo, "Cost as a Sentencing Factor": A Response, 77 MO. L. REV. 411, 414 (2012) ("By including sentencing costs in SARs, MOSAC is trying to nudge judges to issue less punitive sentences than they would if cost information was issued in an annual report.");
36. See Flanders, Institutional Doubts, supra note 15, at 167 ("The Commission is right to highlight the problems facing the criminal justice system, and the increasing cost of punishment has a good claim to be problem number one. But it is an open question (in part, an open empirical question) whether letting judges use cost as a sentencing factor is the best way to go about trying to reduce the cost of criminal justice, and whether it will cause more harm than good.");
37. Flanders, Missouri's Experiment, supra note 15, at 396 ("Jail time is expensive, as the Missouri Sentencing Commission shows, and if judges take into account cost, then they might lower sentences because they cost too much. It is hard to imagine that a judge will increase a sentence in order to spend more money. Rather, a judge, knowing the cost of a longer sentence, would only be impelled to impose a longer sentence in spite of the greater cost of that sentence. So the intuition that cost is an irrelevant factor naturally suggests that it would be wrong for a judge to decrease someone's sentence or to give that person a different type of punishment than was appropriate because it would cost the state too much money." (footnote omitted)).
38. (citing CHRISTIAN HENRICHSEN & RUTH DELANEY, VERA INST, OF JUSTICE, THE PRICE OF PRISONS: WHAT INCARCERATION COSTS TAXPAYERS (2012) AND PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA (2008)).
39. see ROBERT M. LAWLESS ET AL., EMPIRICAL METHODS IN LAW 104 (2010).
40. William Ray Price Jr., Chief Justice, Supreme Court of Mo., State of the Judiciary Address (Feb. 3, 2010), available at http://www.courts.mo.gov/page. jsp?id=36875 ("Let me be clean violent offenders need to be separated from us so they cannot hurt innocent men, women or children, regardless of the cost. I am not talking about them. I am talking about nonviolent offenders.").
41. See Flanders, Institutional Doubts, supra note 15, at 166 (suggesting the possibility that a judge "may use cost only in minor cases, and ignore cost altogether when it comes to violent offenses or serious property crimes");
42. See Sentencing Information on www.mosacmo.gov Now Includes Costs of Recommended Sentences and Risks of Reincarceration, supra note 19, at 1.
43. Ugly Friend Definition (5), URB. DICTIONARY, http://www.urbandictionary. com/define.php?term= ugly+friend (last visited Jury 17, 2013).
44. See, e.g., Itamar Simonson & Amos Tversky, Choice in Context: Tradeoff Contrast and Extremeness Aversion, 29 J. MARKETING RES. 281, 281 (1992) ("Contrast effects are ubiquitous in perception and judgment.").
45. Mark Kelman et al., Context-Dependence in Legal Decision Making, 25 J. LEGAL STUD. 287, 287 (1996).
46. Tanya Latty & Madeleine Beekman, Irrational Decision-Making in an Amoeboid Organism: Transitivity and Context-Dependent Preferences, 278 PROC. ROYAL SOC'Y B 307, 308 (2010);
47. see also Amos Tversky, Elimination by Aspects: A Theory of Choice, 79 PSYCHOL. REV. 281, 292 (1972) (The constant-ratio rule is a strong version of the principle of independence of irrelevant alternatives.").
48. See Christopher K. Hsee, The Evaluability Hypothesis: An Explanation fir Preference Reversals Between Joint and Separate Evaluations of Alternatives, 67 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 247, 249-55 (1996) (describing a series of studies showing that people evaluate items based on their easy-to-evaluate traits unless they are able to make a comparison to a similar item on a harder-to-evaluate trait).
49. See Christopher K. Hsee, Less Is Better. When Low-Value Options Are Valued More Highly Than High-Value Options, 11 J. BEHAV. DECISION MAKING 107, 108, 118 (1998) (presenting "a series of studies where a normatively less valuable option is judged more favorably than its more valuable alternative-a phenomenon to be referred to as the 'less-is-better' effect" and concluding that an easy-to-evaluate attribute will have a disproportionate effect on choice).
50. Chris Guthrie, Panacea or Pandoras Box?: The Cost of Options in Negotiation, 88 IOWA L. REV. 601, 620-21 (2003).
51. Cass R. Sunstein et al., Predictably Incoherent Judgments, 54 STAN. L. REV. 1153, 1174-78 (2002).
52. Theodore Eisenberg et al., Reconciling Experimental Incoherence With Real-World Coherence in Punitive Damages, 54 STAN. L. REV. 1239, 1245-56 (2002).
53. The facts of the scenario, labeled "Settlement Problem", consisted of the following: You are presiding over a setdement conference in a lawsuit filed by a minor, Henry Johnson, against Ted Samuelson, a campus police officer employed by the State University. The suit includes a claim under 42 U. S. C. § 1983 and state law tort claims. The University will indemnify Samuelson and has assumed the defense of this action.
54. See ROBERT B. CLALDINI, INFLUENCE: SCIENCE AND PRACTICE 14 (4th ed. 2001).
55. Guthrie et al., Blinking on the Bench, supra note 9, at 6-9.
56. See MALCOLM GLADWELL, BLINK: THE POWER OF THINKING WITHOUT THINKING 12-13 (2005).
57. See DANIEL KAHNEMAN, THINKING, FAST AND SLOW 28 (2011) (describing deliberative reasoning as an effortful attempt to overcome mistakes that snap judgments can produce).
58. Guthrie et al., Blinking on the Bench, supra note 9.
59. See Paul Slovic et al., The Affect Heuristic, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 397, 413 (Thomas Gilovich et al. eds., 2002) ("We can characterize Epstein's subjects as following a mental strategy of 'imaging the numerator...."). Others have termed this phenomenon "denominator neglect"
60. See, e.g., Rocio Garcia-Retamero et al., Do Icon Arrays Help Reduce Denominator Neglect?, 30 MED. DECISION MAKING 672, 680 (2010) (explaining that people "often pay too much attention to numerators and insufficient attention to denominators").
61. Lee A. Kirkpatrick & Seymour Epstein, Cognitive-Experiential Self-Theory and Subjective Probability: Further Evidence for Two Conceptual Systems, 63 J. PERSONALITY & SOC. PSYCHOL. 534, 540-42 (1992).
62. Veronika Denes-Raj & Seymour Epstein, Conflict Between Intuitive and Rational Processing: When People Behave Against Their Better Judgment, 66 J. PERSONALITY & SOC. PSYCHOL. 819, 823 (1994).
63. John Monahan & Eric Silver, Judicial Decision Thresholds for Violence Risk Management, 2 INT'L J. FORENSIC MENTAL HEALTH 1, 4 (2003).
64. See Paul Slovic et al., Violence Risk Assessment and Risk Communication: The Effects of Using Actual Cases, Providing Instruction, and Employing Probability Versus Frequency Formats, 24 LAW & HUM. BEHAV. 271 (2000).
65. Jonathan J. Koehler, The Psychology of Numbers in the Courtroom: How to Make DNA-Match Statistics Seem Impressive or Insufficient, 74 S. CAL. L. REV. 1275, 1302-03 (2001).
66. See William C. Thompson & Edward L. Schumann, Interpretation of Statistical Evidence in Criminal Trials: The Prosecutors Fallacy and the Defense Attorney's Fallacy, 11 LAW & HUM. BEHAV. 167, 170-71 (1987).
67. See Leila Schneps & Coralie Colmez, Justice Flunks Math, N. Y. TIMES, Mar. 26, 2013, http://www.nytimes.com/2013/03/27/opinion/when-judges-cant-do- math-justice-suffers.html ("Miscalculation by judges and lawyers of probabilities, from the odds of DNA matches to the chance of accidental death, have sent innocent people to jail, and, perhaps, let murderers walk free.").
68. See Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1378 (1985) ("[T]he correlation between probability and acceptability is not exact").
69. We explored this result in exhaustive detail in Rachlinski et al., Probable Cause, supra note 9.
70. LOUIS D. BRANDEIS, LOUIS D. BRANDEIS'S MIT LECTURES ON LAW (1892-1894), at 247-48 (Robert F. Cochran, Jr. ed., 2012) ("[Q]uestions instead of being simple, so that it is clear who is in the right, are extremely complicated; it is often impossible to tell who is either legally or morally right, until the case is tried out in court, and the decision rendered by the proper tribunal").
71. Calvert Magruder, Mr. Justice Brandeis, 55 HARV. L. REV. 193, 194 (1941) ("The position of a judge has been likened to that of an oyster-anchored in one place, unable to take the initiative, unable to go out after things, restricted to working on and digesting what the fortuitous eddies and currents of litigation may wash his way.").
72. See generally Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374 (1982).