Bottom-Up versus Top-Down Lawmaking

Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process highlights and hides different aspects of a legal problem. The single-case perspective of adjudication can seem narrow, and hence inferior to the broad perspectives that legislatures can incorporate into their decisionmaking processes. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate the adoption of simple, elegant rules for decisionmaking. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts

Product-Related Risk and Cognitive Biases: The Shortcomings of Enterprise Liability

Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer\u27s negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any more than anecdotal evidence for their thesis; (2) failed to account for the mechanisms the law already has available to counter manufacturer manipulation of consumers; and (3) made no effort to address the well-known problems enterprise liability creates. Furthermore, even on its own terms, the new arguments for enterprise liability fail to consider the tendency of some manufacturers to exacerbate the risks that some products pose - a tendency that enterprise liability would exacerbate. In short, the insights gleaned from psychological research on human judgment do not support adopting a system of strict enterprise liability for products

Misunderstanding Ability, Misallocating Responsibility

In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the reasonable person. With few exceptions, so long as one\u27s conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the reasonable person is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this hypothetical reasonable person with what they believe are ordinary skills and abilities. Recent cognitive psychological research, however, indicates that intuitions about ordinary skills and abilities vastly overstate the cognitive skills people actually possess. Consequently, reliance on intuition and folk wisdom about ordinary abilities leads courts to overattribute accidents to negligent carelessness, rather than unavoidable misfortune

Bottom-Up versus Top-Down Lawmaking

Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process highlights and hides different aspects of a legal problem. The single-case perspective of adjudication can seem narrow, and hence inferior to the broad perspectives that legislatures can incorporate into their decisionmaking processes. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate the adoption of simple, elegant rules for decisionmaking. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts

Heuristics, Biases, and Philosophy

Commenting on Professor Cass Sunstein\u27s work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein\u27s papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, his work has made his mark on psychology, economics, and political science. But, surprisingly, one of his most subversive, and important, articles, Moral Heuristics, is directed primarily at philosophers. Sunstein\u27s Moral Heuristics approaches the gates of philosophical discourse like a Trojan Horse. The article\u27s title uses the well-known jargon of psychology. This is no surprise, as the piece is published in a psychological journal (albeit one known for sometimes engaging in philosophical inquiry). It thus seems that the piece will be another of his many valuable conversions of psychological research into legal concepts. Sunstein is well known for mining out nuggets of social and cognitive psychology that have been previously ignored by legal scholars and demonstrating that an understanding of these principles is actually critical for understanding some area of law. But Moral Heuristics is not such a piece. It brings some psychological research to bear on legal issues, but the piece is more ambitious than that. It provides a new way for both psychologists and legal scholars to think about the concept of heuristics. It then uses this new approach to challenge the basic epistemological assumptions of contemporary moral philosophy. The basic thesis of Moral Heuristics is that people rely on simple habits of the mind when thinking about moral issues. As in many areas of life, they do not adhere to principles of deductive logic. They resist relying on broad-based optimization strategies (such as cost-benefit analysis) as a means of addressing hard moral questions in favor of simple rules of thumb. For example, Sunstein argues that people avoid making decisions that they know will result in the death of another person. This is a good principle to follow, of course, but blind application of it can lead to paradox because some fatalities are more invisible than others. The principle can produce condemnation of those who account for less visible, indirect fatalities, as happens in cost-benefit analysis. Cost-benefit analysis makes indirect fatalities transparent, thereby making those who rely on it seem callous, even if they are trying to minimize the total fatality rate. But Sunstein\u27s admonition against using overly simple habits of mind to assess complex choices in modern society is not what is novel about this paper. Many of his papers engage in that kind of exposition. What sets this paper apart is how he uses the concept of heuristics. In this paper, Sunstein uses the idea of mental shortcuts in a highly contextual way. He seems, at times, to be inventing new heuristics. New to this paper are terms such as the \u27cold-heart heuristic\u27 and the \u27do not play God\u27 heuristic. And obviously the \u27Justice Antonin Scalia heuristic \u27 is not one psychologists would have heard before. Implicit in this move is that Sunstein must be arguing that the mental shortcuts that people are taking are highly specific. They are not global habits of mind that people use in all places to suit all purposes. Rather, people seize upon these heuristics to solve certain problems. That is a novel move and one that nicely embraces some of the criticisms levied against the concept of heuristics, both in psychology and in law, and shows them to be modifications, rather than criticisms. The second novel claim of the paper is its main target. In asserting that the psychological concept of heuristics speaks directly to the epistemology of moral philosophy, Sunstein attacks the foundations of contemporary moral philosophy. Sunstein argues that people reject deductive logic in their approach to statistical and probabilistic reasoning, preferring instead to rely on heuristics that are often inconsistent with logic. Consequently, creating a workable, internally coherent mathematics based on people\u27s intuitions about numbers would be a foolish undertaking. Sunstein argues that the same is true for moral philosophy. Intuitions about moral issues, he contends, are no more apt to be coherent than intuitions about probability theory. Therefore, founding a normative theory of moral philosophy upon intuition is just as misguided as founding mathematics on intuition. And yet, that is exactly what contemporary moral philosophers undertake. I flesh out these issues in this paper. First, I discuss how Sunstein\u27s approach to heuristics differs from what many psychologists adopt and how this new approach addresses some of the criticism levied at the heuristics and biases literature. Second, I review how this new approach undergirds Sunstein\u27s critique of moral philosophy

The Psychology of Global Climate Change

In its attempt to address the threat of global climate change, society has struggled to reach a consensus regarding the need for preventive measures. Professor Rachlinski describes the threat of global climate change as a unique commons dilemma and explains that various psychological phenomena of judgment render it unlikely that society will be able to respond effectively to the threat. After considering the effects of biased assimilation, loss aversion, and other psychological processes, the author explains that an innovative approach is necessary to properly address the dilemma of global climate change. Specifically, the author examines the prospect of governmental intervention through taxes or regulations as well as the development of collective norms against combustion of fossil fuels. Because the above-mentioned psychological phenomena hinder each of these potential remedies, the author ultimately concludes that the only remedy for the problem of global climate change is an elimination of the commons dilemma itself. The author suggests that by developing alternatives to fossil fuels, the problem of global climate change can be addressed in spite of social and cognitive limitations