What Happened on Deliberation Day?

What are the effects of deliberation about political issues? This essay reports the results of a kind of Deliberation Day, involving sixty-three citizens in Colorado. Groups from Boulder, a predominantly liberal city, met and discussed global warming, affirmative action, and civil unions for same-sex couples; groups from Colorado Springs, a predominately conservative city, met to discuss the same issues. The major effect of deliberation was to make group members more extreme than they were when they started to talk. Liberals became more liberal on all three issues; conservatives became more conservative. As a result, the division between the citizens of Boulder and the citizens of Colorado Springs were significantly increased as a result of intragroup deliberation. Deliberation also increased consensus, and dampened diversity, within the groups. Hence Deliberation Day produced group polarization, in the distinctive form of ideological amplification. Implications are explored for the uses and structure of deliberation in general.

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.

Do People Want Optimal Deterrence?

This paper tests the question whether people favor optimal deterrence policies. More particularly, it asks whether people are willing to increase penalties when the probability of detection is low, or to decrease penalties when the probability of detection is high. Two experiments are reported, suggesting that people do not spontaneously think in terms of optimal deterrence, and that people would have objections to policies based on the goal of optimal deterrence. Institutional implications are briefly discussed

Assessing Punitive Damages...

This essay reports and discusses the implications of an experimental study involving punitive damage awards. The study finds that in products liability cases, people's normative judgments (about outrageousness and appropriate punishment) are relatively uniform, at least when measured on a bounded numerical scale (0 to 6). With the unbounded dollar scale, however, outcomes become extremely erratic and unpredictable. Various reform proposals, designed to overcome erratic awards, are discussed, including damage caps, compensatory judgment "multipliers," and conversion formulas based on jury judgments on a bounded numerical scale. Implications are also discussed for many other issues of law and economic valuation, including compensatory damages in such areas as pain and suffering, libel, sexual harassment and other civil rights violations, contingent valuation, and intentional infliction of emtional distress

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge’s votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge’s ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge’s ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored

Predictably Incoherent Judgments

When people make moral or legal judgments in isolation, they produce a pattern of outcomes that they would themselves reject, if only they could see that pattern as a whole. A major reason is that human thinking is category-bound. When people see a case in isolation, they spontaneously compare it to other cases that are mainly drawn from the same category of harms. When people are required to compare cases that involve different kinds of harms, judgments that appear sensible when the problems are considered separately often appear incoherent and arbitrary in the broader context. Another major source of incoherence is what we call the translation problem: The translation of moral judgments into the relevant metrics of dollars and years is not grounded in either principle or intuition, and produces large differences among people.. The incoherence produced by category-bound thinking is illustrated by an experimental study of punitive damages and contingent valuation. We also show how category-bound thinking and the translation problem combine to produce anomalies in administrative penalties. The underlying phenomena have large implications for many topics in law, including jury behavior, the valuation of public goods, punitive damages, criminal sentencing, and civil fines. We consider institutional reforms that might overcome the problem of predictably incoherent judgments. Connections are also drawn to several issues in legal theory, including valuation of life, incommensurability, and the aspiration to global coherence in adjudication