Misjudging

article published in law journalJudging is difficult. This is obviously so in cases where the law is unclear or the facts are uncertain. But even in those cases where the law is as clear as it can be, and where the relevant facts have been fully developed, judges might still have difficulty getting it right. Why do judges misjudge? Judges, I will argue, possess three sets of "blinders": informational blinders, cognitive blinders, and attitudinal blinders. These blinders make adjudication on the merits - by which I mean the accurate application of governing law to the facts of the case - difficult. This difficulty, in turn, has important implications for disputants and their lawyers for it bears directly on the choice of dispute-resolution forum. In Part I of this paper, I will develop the positive argument that judges sometimes misjudge due to these three sets of blinders. To do so, I will rely largely on experimental research from psychology and empirical research from political science. Having developed the positive argument in Part I, I will turn to the prescriptive argument in Part II. There, I will explore the forum-selection implications of misjudging - namely, I will argue that the risk of misjudging suggests that various alternative dispute resolution processes, for different reasons and in different ways, might serve disputants better than adjudication

Remaking the United States Supreme Court in the Courts’ of Appeals Image

We argue that Congress should remake the United States Supreme Court in the U.S. courts\u27 of appeals image by increasing the size of the Court\u27s membership, authorizing panel decisionmaking, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court\u27s capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court\u27s decisionmaking capacity but also improve the Court\u27s composition, competence, and functioning

Using Bargaining for Advantage in Law School Negotiation Courses

Review Essay: Bargaining for Advantage: Negotiation Strategies for Reasonable People. By G. Richard Shell. New York: Viking, 1999.Published in cooperation with the American Bar Association Section of Dispute Resolutio

Panacea or Pandora\u27s Box?: The Costs of Options in Negotiation

The prescriptive literature on negotiation advises negotiators to generate, evaluate, and select from multiple options at the bargaining table. At first glance, this option-generation prescription seems unassailable. After all, negotiators can include in their agreements only those options that they actually consider, so the more options they consider, the more likely it seems they will reach an agreement that maximizes their preferences. Upon closer inspection, however, the option-generation prescription begins to appear vulnerable, for it rests on a questionable premise about negotiator behavior. The option-generation prescription assumes that negotiators will make rational decisions when selecting from multiple options; regardless of the number of options available or the manner in which they are presented, it assumes that negotiators will independently assess the subjective value of each option, rank-order them, and then select the one that offers the most value. In fact, however, people can have great difficulty selecting the value-maximizing option when multiple options are on the table. The purpose of this article is to describe some of the predictable decision-making problems that can arise as a consequence of option generation in negotiation: namely, option devaluation, context dependence (contrast and compromise), non-compensatory decision making, and decision regret. Taken together, these option costs stand for the ironic proposition that negotiators who heed the option-generation prescription may be more likely than those who ignore it to enter into inferior agreements with which they may be less satisfied. Recognizing the benefits that option generation can provide, the article does not argue that negotiators should cease generating options. Its more modest goal is merely to cast some doubt on the wisdom of the prescriptive negotiation literature\u27s uncritical endorsement of option generation. The article also explores the implications for lawyer-negotiators. It argues that lawyer-negotiators, acting on behalf of their clients, are more likely than non-lawyer-negotiators, acting on their own behalf, to maximize the benefits and minimize the costs of option generation. Specifically, lawyer-negotiators are more likely to assess decision options rationally; because of this, they can help their clients make better decisions and can use decision options strategically to influence their counterparts. Thus, this article identifies another way in which lawyers can add value for their clients

Understanding Settlement in Damages (and Beyond)

For all of the ways in which the Sabia case is extraordinary, its outcome--settlement--is decidedly ordinary. In most civil litigation, as in the Sabias\u27 litigation against Dr. Maryellen Humes and Norwalk Hospital, [s]ettlement is where the action is. Roughly two-thirds of all cases settle (and most of the rest are resolved through motions). Why do most cases settle? Given the costs, delay, and unpleasantness of the litigation process, why do any cases go to trial? To address these questions--that is, to explain why most cases settle as well as why some cases fail to settle and result in trial--legal academics have developed several theoretical accounts of litigation behavior in ordinary, civil cases. These accounts fall into two basic categories: (1) rational actor accounts (which assume that litigants are outcome-maximizers), and (2) non-rational actor accounts (which assume that litigants want to maximize their outcomes but have difficulty doing so). The purpose of this article is to introduce these academic accounts of settlement and to consider whether they provide insight into the settlement of the Sabias\u27 litigation against Humes and Norwalk. I believe these accounts are largely complementary rather than competing, so my own view is that each sheds some light on litigation and settlement behavior in most civil cases (including the Sabia case)

Principles of Influence in Negotiation

Negotiation is often viewed as an alternative to adjudication. In fact, however, negotiation and adjudication may be more alike than different because each is a process of persuasion. Both in the courtroom and at the bargaining table, the lawyer\u27s primary task is to persuade someone other than her own client that her client\u27s positions, interests, and perspectives should be honored. Despite this apparent similarity, persuasion operates differently in adjudication and negotiation because the lawyer seeks to influence a different party in each process. In adjudication, the lawyer seeks primarily to persuade the judge or jury hearing the case. The judge or jury is empowered to resolve the dispute unilaterally by applying rules of law to the relevant facts of the case. In negotiation, the lawyer seeks to persuade not a judge or jury, but rather her counterpart at the bargaining table. One\u27s counterpart in negotiation is free to ignore the law and facts of the case but can only resolve the dispute through bilateral agreement. The import of these differences is that the lawyer must use different persuasive tactics in each process. In court, the lawyer can use various rhetorical and even dramatic devices to persuade the judge or jury to render a decision under the law that favors her client; in negotiation, the lawyer needs to use a more subtle set of devices to induce her counterpart to agree to enter into a favorable settlement. Psychologist Robert Cialdini has identified six persuasive devices or weapons of influence that a lawyer can use to induce her counterpart to settle on terms that are advantageous to her client. The purpose of this essay is to introduce Cialdini\u27s principles of influence, explore how they operate, and explain how the lawyer-negotiator may be able to use them at the bargaining table

The Lawyer\u27s Philosophical Map and the Disputant\u27s Perceptual Map: Impediments to Facilitative Mediation and Lawyering

Riskin\u27s categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin\u27s positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin\u27s pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love, and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process designed to capture the parties\u27 insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes. For the purists, evaluation has no place in mediation. I do not seek in this article to add my voice to the chorus debating the relative merits of the pluralist and purist approaches to mediation. Instead, despite my belief that the pluralists win this debate as both a positive and normative matter, I intend to imagine for purposes of this article that the purists actually prevail upon state legislatures, regulators, mediation trainers, and members of the mediation community at large to mandate a purely facilitative approach to mediation. Having successfully conjured up an image of this purely facilitative mediation world, I then seek to make the impertinent claim that mediation is highly unlikely to be a purely facilitative process as long as lawyers serve as mediators

Procedural Justice Research and the Paucity of Trials

Professor Deborah Hensler tells an important cautionary tale about mandatory mediation in her thoughtful and provocative contribution to this volume. In Suppose It\u27s Not True: Challenging Mediation Ideology, Hensler observes that courts are now requiring litigants to mediate civil cases on the grounds that litigants prefer [mediation] to traditional litigation, yet there is a long line of social psychological research on individuals\u27 evaluations of different dispute resolution procedures consistent with the idea that litigants might prefer adversarial litigation and adjudication to mediation.\u27 Hensler acknowledges that some experimental research has found that subjects prefer mediation, but she argues that the empirical work to date [does not] provide strong support for the notion that civil disputants prefer mediation to adversarial litigation and adjudication

Prospect Theory, Risk Preference, and the Law

To understand how people behave in an uncertain world - and to make viable recommendations about how the law should try to shape that behavior - legal scholars must employ a model or theory of decision making. Only with an understanding of how people are likely to respond to legal rules can legal scholars, judges, legislators, and regulators craft rules that are likely to encourage desirable behavior and discourage undesirable behavior. Rather than rely on rational choice theory, behavioral law and economics scholars (or legal decision theorists) have turned to Daniel Kahneman and Amos Tversky\u27s prospect theory to inform their analyses of law and legal behavior. Prospect theory contains several empirical propositions relevant to legal analysis, but this paper focuses primarily on prospect theory\u27s insight that people often make risk-averse choices when selecting between gains and risk-seeking choices when selecting between losses. The paper surveys efforts in the legal literature to use this insight to inform the way legal scholars think about law and behavior in several doctrinal areas. The paper acknowledges some limitations associated with this work (e.g., external validity, differences in individual decision making, differences in group vs. individual decision making), but it concludes that prospect theory is nonetheless a valuable tool for legal scholars and policy makers