Procrastination, Deadlines, and Statutes of Limitation

Statutes of limitation are deadlines. Although psychologists have discovered a great deal about how people respond to deadlines during the past thirty years, the basic structure of statutes of limitation has not changed since at least 1623. This Article explores the question of whether the received model of statutes of limitation remains optimal in light of what we now know about procrastination, the planning fallacy, loss aversion, intertemporal discounting, the student syndrome, and other features of human cognition. It concludes by suggesting a more modern approach to statutes of limitation that is based on a better understanding of how people actually behave. Specifically, the archaic all-or-nothing approach should be abandoned in favor of a more modern, incremental approach that gradually decreases the value of untimely claims as the duration of the plaintiff\u27s delay in filing increases

Gains, Losses, and Judges: Framing and the Judiciary

Losses hurt more than foregone gains-an asymmetry that psychologists call loss aversion. Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people\u27s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive that legal scholars have assumed that they influence the development of law. Although numerous studies reveal that framing influences how ordinary people think about their rights, a clear demonstration that judges decide cases differently when the underlying facts present gains as opposed to losses does not exist. This Article fills that gap. We present eight studies with over one thousand judges as research participants that demonstrate that all four of these anomalous features of framing influence how sitting judges evaluate legal cases

How Lawyers\u27 Intuitions Prolong Litigation

Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse steps that is based upon empirical research concerning judgment and choice. Several cognitive illusions—the framing effect, the confirmation bias, nonconsequentialist reasoning, and the sunk-cost fallacy—produce intuitions in lawyers that can induce them to postpone serious settlement negotiations or to reject settlement proposals that should be accepted. Lawyers’ tendencies to rely excessively on intuition exacerbate the impact of those cognitive illusions. The experiments presented in this Article indicate that the vulnerability of experienced lawyers to these cognitive errors can prolong litigation

Benevolent Sexism in Judges

Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We test for benevolent sexism among hundreds of sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation from a mother than from an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings

Gains, Losses, and Judges: Framing and the Judiciary

Losses hurt more than foregone gains-an asymmetry that psychologists call loss aversion. Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people\u27s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive that legal scholars have assumed that they influence the development of law. Although numerous studies reveal that framing influences how ordinary people think about their rights, a clear demonstration that judges decide cases differently when the underlying facts present gains as opposed to losses does not exist. This Article fills that gap. We present eight studies with over one thousand judges as research participants that demonstrate that all four of these anomalous features of framing influence how sitting judges evaluate legal cases

Blinking on the Bench: How Judges Decide Cases

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes

Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding

Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This Article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, conversation protected by the attorney-client privilege, prior sexual history of an alleged rape victim, prior criminal convictions of a plaintiff, and information the government had promised not to rely upon at sentencing. This information influenced judges\u27 decisions even when they were reminded, or themselves had ruled, that the information was inadmissible. In contrast, the judges were able to ignore inadmissible information obtained in violation of a criminal defendant\u27s right to counsel and the outcome of a search when determining whether probable cause existed. We conclude that judges are generally unable to avoid being influenced by relevant but inadmissible information of which they are aware. Nevertheless, judges displayed a surprising ability to do so in some situations

Blinking on the Bench: How Judges Decide Cases

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which can also lead to erroneous decisions. Equipped with a better understanding of judging, we then propose several reforms that should lead to more just and accurate outcomes