Law and everyday decision making: Rational, descriptive, and normative models

Abstract

This chapter, and indeed the entire book, focuses on some old topics, namely legal consciousness, legal decision making, and the interaction between the two. One can date the issue back at least to the ideas and writings of the famous (or infamous) psychologist Hugo Münsterberg (1908), who argued, perhaps somewhat unconvincingly at the time, that behavioral science, especially psychology, is relevant to law and legal analysis. Munsterberg was optimistic, and perhaps even prophetic, in his view that behavioral science and especially psychology would one day inform the courts on a number of critical issues. In the years following Munsterberg's attempt to infuse behavioral science into the law, there have been numerous scholarly efforts to study judicial decisions, legislative policy, jury decisions, decisions to litigate, outcomes of mediation, eyewitness judgments, and many other behaviors that are the outcome of decision-making processes in the service of the law. The current chapter and the specific theme of this book stem directly from a more recent scholarly debate. In 1985, the Nebraska Symposium on Motivation under the editorial directorship of Professor Gary Melton, at the time the director of the Law and Psychology program at UNL, took seriously the task of examining the intersection of everyday decision making and the law (c.f. Melton & Saks, 1985). Melton and Saks (1985) broke from tradition to argue that the most important contribution that psychology could make to the law was not to be found in its contribution to civil or criminal litigation. Instead, they saw the greatest potential for the social sciences in investigating how the law influences, and is influenced by, everyday behavior of people in the environments (outside of court) in which they live, work, and play. In other words, Melton and Sacks argued that psychology can make its mark in the contexts in which law influences our everyday behavior, namely in the homes, schools, universities, businesses, and communities where people interact under the guidance (or perhaps misguidance) of the rules of law as they understand them to be. The law in everyday life approach to psycholegal scholarship (Melton, 1988, 1990; Melton & Saks, 1985; Wiener, 1990, 1993; Wiener & Hurt, 1997, 1999, 2000) acknowledges the successes of psychologists in studying and sometimes even influencing the processes and procedures of the law. For example, psychologists have devoted considerable effort toward understanding how the police are able (or not able) to help witnesses identify guilty defendants at crime scenes. Indeed, they have been very successful at developing a viable theory of eyewitness identification from the encoding of information at the scene of the crime through selecting individuals from mug shots and lineups that the police construct on the scene or at the local police station. Indeed, in 1998 a lead journal in the field of psychology and law (Law and Human Behavior) published a "white paper" that made some helpful and very specific suggestions about how police should construct lineups to avoid biased results, especially type I errors (i.e., identifying innocent suspects as the perpetrators of criminal acts) (Wells et al., 1998). These recommendations flowed directly from years of empirical research carefully describing and explaining eyewitness behavior (Wells et al., 1998). It is a tribute to the success of experimental psychology that this "white paper" became the basis for a set of guidelines that the United States Department of Justice adopted in 1999 (Technical Working Group, 1999). The success of eyewitness researchers depended, and continues to depend heavily, on the use of simulation experiments to study the cognitive parameters of people as they encode, store, recognize, and recall the events to which they were exposed at simulated scenes of criminal or civil investigations. Experimental psychologists have devoted an equal amount of effort to the study of how jurors and juries reach decisions of culpability and liability in criminal and civil trials. Early research focused on juror verdicts in criminal cases, emphasizing theoretical models of social and cognitive psychology (Devine, Clayton, Dunford, Seying, & Pryce, 2001). These methodologies sometimes paid little attention to the ecological structure of juries or jury trials. Instead, they focused on the decisions and judgment processes of individuals as they evaluated evidence of criminal charges (for the most part) and then reached attributions of responsibility and sometimes guilt. More recent investigators (c.f. Devine et al., 2001) have turned their attention to the processes and procedures of determining liability in civil cases (Bornstein, 2004; Bornstein, Rung, & Miller, 2002; Diamond, Saks, & Landsman, 1998; Hans, Hannaford, & Munsterman, 1999; Hastie, Schkade, & Payne, 1998; Kovera & Cass, 2002), sentencing in criminal cases (especially capital murder) (Lynch & Haney, 2000; Wiener et al., 1998; Wiener, Pritchard, & Weston, 1995; Wiener, Rogers, Winter, et al., 2004), and most recently to assessing damages in civil litigation (see Greene & Bornstein, 2003 for a review). There is an impressive body of work (although not always with consistent results) that litigators, trial consultants, and courts can rely on to estimate the effects of legal and extralegal factors on the outcomes of juror, if not jury, judgments and decisions. As in the case with eyewitness researchers, the success of experimental psychologists in the area of juror and jury decision-making relies on simulated mock jury paradigms to isolate the mechanisms that guide and eventually determine the judgments that people make when they are asked to evaluate trial-like evidence to reach culpability, sentencing, liability, and damage judgments. The purpose of this chapter and the book as a whole is to push the academic envelope to broaden the efforts of our admittedly post-positivist2 approach to psycholegal investigation. The major thesis of this chapter is that we can use the post-postivist model of research and thinking about research to examine the effects of law in everyday behavior, and that the best way to do that is to adopt a model of legal decision-making that intertwines the law and behavioral science approach to legal analysis. While a decision-making approach makes use of simulated research as do its older cousins in eyewitness identification and jury research, it does so with an eye open to, and constrained by, the context in which people make legal decisions. In some ways, the behavioral science and law program owes a great deal to the law and economics movement because the former often reacts, either explicitly or implicitly, to study chinks in the armor of the rational choice model, which is, of course, the central metaphor in the law and economics movement. It is not important whether law and social science as legislative fact, as empirical research, or as a more general theory of law sees itself as an alternative to the law and economics movement, or whether it plays a more complementary role, showing how psychology, sociology, and anthropology can go beyond describing and even explaining behavior "at the margins." What is important is that law and social science as analytic tools can add significantly to the theory of rational choice, supplementing the tenets of the theory of the rational actor moving beyond formal rules of logic. While some psychology researchers challenge the adequacy of the "theory of rational choice" as the best descriptor of human decision-making in the law, they do not challenge the logic symmetry of the rational actor model. In other words, all decision makers who wish to maximize their own self-interest make judgments and decisions in accordance with the rules of formal logic and probability. Like those who have taken to task the rational choice model, we acknowledge its indisputable claim on how people can make decisions to maximize their gains and minimize their losses. That seems to be true by definition. However, we see another contribution and suggest that the theory of rational choice offers an important baseline for understanding both how people really do make legal decisions, and how the law would have them make those decisions. In the end, the rational choice model becomes a kind of decision baseline against which we can measure actual and normative decisions. We can learn a great deal by using the rational choice model to study the parameters of decisions that are, at least in part, determined from prohibitions, encouragements, and, in some cases, requirements in the law. We begin with a description of the law and economics approach, focusing on its central metaphor, the theory of rational action. © 2007 Springer Science+Business Media, LLC. All rights reserved.