Jeffrey J. Rachlinski

Ex Post ≠ Ex Ante: Determining Liability in Hindsight

Participants in three conditions (foresight, hindsight, and a modified hindsight condition designed to ameliorate the hindsight effect) assessed whether a municipality should take, or have taken, precautions to protect a riparian property owner from flood damage. In the foresight condition, participants reviewed evidence in the context of an administrative hearing. Hindsight participants reviewed parallel materials in the context of a trial. Three quarters of the participants in foresight concluded that a flood was too unlikely to justify further precautions-a decision that a majority of the participants in hindsight found to be negligent. Participants in hindsight also gave higher estimates for the probability of the disaster occurring. The debiasing procedure failed to produce any significant differences from the regular hindsight condition. The results suggest that absent an effective debiasing technique, risk assessments made in foresight will be judged harshly in hindsight.

Heuristics and Biases in Bankruptcy Judges

Do specialized judges make better decisions than judges who are generalists? Specialized judges surely come to know their area of law well, but specialization might also allow judges to develop better, more reliable ways of assessing cases. We assessed this question by presenting a group of specialized judges with a set of hypothetical cases designed to elicit a reliance on common heuristics that can lead judges to make poor decisions. Although the judges resisted the influence of some of these heuristics, they also expressed a clear vulnerability to others. These results suggest that specialization does not produce better judgment.

The Hidden 'Judiciary': An Empirical Examination of Executive Branch Justice

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

Barack Obama’s Candidacy and the Collateral Consequences of the “Politics of Fear”

Barack obama’s successful run for the presidency of the United states begs the question of what role race now plays in America. Some commentators and pundits contend that the election shows that American society has moved beyond race. Others argue that it proves nothing and that racism remains as much an entrenched part of American society as ever. In light of the 2008 election, however, others have begun to articulate a more nuanced analysis of race in America—that being the presence of racial bias is mostly subtle and unconscious.1 In this chapter, we address the role that the ugliest aspect of the 2008 presidential election plays in this debate—the threats to and attempts on President Obama’s life.

Are Arbitrators Human

Empirical research has confirmed the correctness of the legal realists’ assertion that “judges are human.” It demonstrates that judicial decisions are sometimes tainted by bias, ideology, or error. Presumably, arbitrators are “human” in that sense too, but that conclusion does not necessarily follow. Although arbitrators and judges both umpire disputes, they differ in a variety of ways. Therefore, it is possible that arbitrators’ awards are either better or worse than judges’ decisions. This article reports the results of research conducted on elite arbitrators specializing in resolving commercial disputes. Our goal was to determine whether, like judges, arbitrators are subject to three common cognitive illusions—specifically, the conjunction fallacy, the framing effect, and the confirmation bias. We also wanted to find out whether, like judges, arbitrators exhibit a tendency to rely excessively on intuition that may exacerbate the impact of cognitive illusions on their decision making. Our results reveal that “arbitrators are human,” and indicate that arbitrators perform about the same as judges in experiments designed to detect the presence of common cognitive errors and excessive reliance on intuition. This suggests that arbitrators lack an inherent advantage over judges when it comes to making high‐quality decisions. Whether the situation in which arbitrators make their awards is more conducive to sound decision making than the setting in which judges make their rulings, however, remains unclear.

Behavioral law and economics

In this comprehensive collection Jeffrey Rachlinski brings together the most important previously published articles in the emerging field of behavioral law and economics. His selection represents a novel blending of economics, psychology and law. The three volumes cover such constituent topics as suit and settlement, torts, civil rights and discrimination, criminal law, trial processes and paternalism and regulation.

Law Review Usage and Suggestions for Improvement: A Survey of Attorneys, Professors, and Judges

Its fashionable to criticize law reviews. In the literature on law reviews, author after author lambastes the journals for their content and their style, and only the rare, obstinate defender attempts to counter the view that the principal medium of legal scholarship does nothing right. The attacks on law reviews are often entertaining, with authors letting loose strings of invectives and snappy prose, elements of style that the critics readily point out are missing from most publications. While this complaint literature may be amusing, and occasionally does ring true, the criticisms inevitably are based on personal views supported solely by anecdotal evidence. No one has systematically asked law review consumers what they think. This survey project attempts to remedy the lack of empirical data. We asked randomly selected attorneys, judges, and law professors a series of