Sprain and Gastil: An Interpretative Account of Jurors’ Expressed Deliberative Rules and Premises

Professor Dr. Leah Sprain of Colorado State University and Professor Dr. John Gastil of Penn State University have published What Does It Mean to Deliberate? An Interpretative Account of Jurors’ Expressed Deliberative Rules and Premises, Communication Quarterly, 61(2), 151-171 (2013).

Here is the abstract:

To advance deliberative theory and practice, this study considers the experiences of trial jurors who engaged in deliberation. Conceptualized as a speech event, this article inductively explores the deliberative rules and premises articulated by jurors. Jurors believe deliberation should be rigorous and democratic, including speaking opportunities for all, open-minded consideration of different views, and respectful listening. Jurors actively consider information, but face-to-face deliberation is essential for thoroughly processing evidence. Although emotions should not influence the final verdict, participants report that emotions often reinforce deliberative norms. These results inform theory and deliberative experiences in and beyond the jury.

Professor Gastil describes the research in his recent post at Jury and Democracy Blog: New article shows how jurors decribe their service experience.

Legal informatics papers at We Robot 2013 Conference

Some legal informatics papers or panels are included in the program for the 2013 We Robot Conference, to be held 8-9 April 2013 at Stanford Law School, in Stanford, California, USA:

Panel: Law as Algorithm
Speakers: Peter Asaro, Lisa Shay, Woodrow Hartzog
Moderator: Harry Surden
Related Papers:
On Implicit and Explicit Legal Requirements for Human Judgment
Do Robots Dream of Electric Laws? An Experiment in Law as Algorithm
[...]

Panel: Designing Values
Speakers: Ergun Calisgan, AJung Moon, Aneta Podsiadla
Moderator: Ian Kerr
Related Papers:
Open Roboethics Pilot: Accelerating Policy Design, Implementation and Demonstration of Socially Acceptable Robot Behaviors
What Robotics Can Learn from the Contemporary Problems of Information Technologies Sector- Compliance and Enforcement of Privacy by Design
[...]

Paper: Programming Robotic Decisions with Potentially Lethal Outcomes: Comparing Self-Driving Cars and Autonomous Weapon Systems, and How They Should Be Regulated as Their Autonomous Capabilities Evolve
Authors: Kenneth Anderson, Matthew Waxman
Commentator: Dan Siciliano (Stanford University Rock Center)

HT @LawandLit

Maclean: Rethinking Law as Process: Creativity, Novelty, Change

Dr. James Maclean of the University of Southampton Law School has published a new book entitled Rethinking Law as Process: Creativity, Novelty, Change, (Routledge, 2013).

Here is the abstract:

Rethinking Law as Process draws on insights from ‘process philosophy’ in order to rethink the nature of legal decision-making. While there have been significant developments in the application of ‘process’ thought across a number of disciplines, little notice has been taken of Whiteheadian metaphysics in law. Nevertheless, process thought offers significant opportunities for serious inquiry into the nature of legal reasoning and the practical application of law. Focusing on the practices of organising, rather than their effects, an increased processual awareness re-orients understanding away from the mechanistic and rationalist assumptions of Newtonian thought, and towards the interminable ontological quest to arrest or to classify the essentially undivided flow of human experience. Drawing together insights from a number of different fields, James Maclean argues that it is because our inherited conceptual framework is tied to a ‘static’ way of thinking that every attempt to offer justifying reasons for legal decisions appears at best to register only at the level of explanation. Rethinking Law as Process resolves this problem, and so provides a more adequate description of the nature of law and legal decision-making, by repositioning law within a thoroughly processual world-view, in which there is only the continuous effort to refine and to redefine the continuous flux of legal understanding.

This book could provide a theoretical framework for research on a number of recent developments in legal technology, law practice, and legal education, including legal decision support systems, legal compliance systems, norm development in multiagent systems, the unbundling of legal services, legal process management, and innovation in legal technology, law practice, legal services delivery, and legal education.

HT @law_book

Sileno, Boer, and van Engers: The Institutional Stance in Agent-based Simulations

Giovanni Sileno, M. Sc., Dr. Alexander Boer, and Professor Dr. Tom Van Engers, all of the Leibniz Center for Law at the University of Amsterdam, presented a paper entitled The Institutional Stance in Agent-based Simulations, at ICAART 2013: International Conference on Agents and Artificial Intelligence, held 15-18 February in Barcelona.

Here is the abstract:

This paper presents a multi-agent framework intended to animate scenarios of compliance and non-compliance in a normative system. With the purpose of describing social human behaviour, we choose to reduce social complexity by creating models of the involved agents starting from stories, and completing them with background theories derived from common-sense and expert knowledge. For this reason, we explore how an institutional perspective can be taken into account in a computational framework. Roles, institutions and rules become components of the agent architecture. The social intelligence of the agent is distributed to several cognitive modules, performing the institutional thinking, whose outcomes are coordinated in the main decision-making cycle. The institutional logic is analyzed from a general simulation perspective, and a concrete possible choice is presented, drawn from fundamental legal concepts. As a concrete result, a preliminary implementation of the framework has been developed with Jason.

For the full text of the paper, please contact the authors.

Click here for abstracts of other papers presented at ICAART 2013.

Epstein, Landes, and Posner: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

Professor Dr. Lee Epstein, Professor Dr. William M. Landes, and Senior Circuit Judge Richard A. Posner, have published The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, 2013).

Here is the publisher’s description:

Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.

The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors’ view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making.

HT @law_book

Rowell and Bregant on Numeracy and Legal Decisionmaking

Professor Arden Rowell and Jessica L. Bregant, both of the University of Illinois College of Law, have posted Numeracy and Legal Decisionmaking (2012).

Here is the abstract:

There are now substantial literatures in health and financial decisionmaking chronicling how people’s numerical abilities affect their decisions. This Article presents the first empirical studies of whether numeracy — or people’s ability to understand and use numbers — also interacts with legal decisionmaking. It finds that the substance of legal analysis varies with math skill for at least some subset of cases, suggesting that legal analysis — and legal advice — may vary with the math skills of the decisionmaker. On the margin, this means that similarly situated persons may not get the same outcome when they bring identical cases, simply because the attorney they hire (or the judge they face) has a hidden set of characteristics — i.e., high or low numeracy. This conclusion creates fairness and rule of law concerns about the quality and consistency of legal decisionmaking, and implicates numeracy as a neglected but potentially critical aspect of legal education.

IPSA World Congress 2012: Legal Informatics, Decision Making, and Communication Papers

A number of papers on legal informatics, legal decision making, or legal communication are being presented at IPSA World Congress 2012: International Political Science Association World Congress 2012, being held 8-12 July 2012 in Madrid, Spain.

The Twitter hashtag for the conference is #ipsawc.

Click here for the list of panels.

Click here for the conference schedule.

To view abstracts of panels or papers, click here, enter keywords in the search box, and click “Search”.

Hall on the Potential for Ethical Blindness in Legal Decision-Making

Kath Hall, LL.M. of Australian National University College of Law has posted Why Good Intentions Are Often Not Enough: The Potential for Ethical Blindness in Legal Decision-Making, forthcoming in Reaffirming Legal Ethics: Taking Stock & New Ideas (Reid Mortensen et al. eds. 2010). Here is the abstract:

“This chapter takes as its starting point the question of how otherwise experienced and principled lawyers can make blatantly unethical decisions. As recent research has shown, lawyers can become involved in legitimizing inhuman conduct just as they can in perpetuating accounting fraud or hiding client scandal. To an outsider looking at these circumstances, it invariably appears that the lawyers involved consciously acted immorally. Within the common framework of deliberative action, we tend to see unethical behaviour as the result of conscious and controlled mental processes.

“Whilst awareness is always part of our actions, this chapter challenges the pervasiveness of assumptions about the power of conscious processes in ethical decision making. Drawing on a range of psychological research, it focuses on two important findings: first, that automatic mental processes are far more dominant in our thinking than most of us are aware; and second, that because we do not generally have introspective access to these processes, we infer from their results what the important factors in our decision making must be. These findings challenge the notion that individuals can be fully aware of what influences them to act ethically or unethically. It also suggests that we need to concentrate upon those conscious processes that we do know influence decision making in deepening our understanding of how to improve ethical awareness.”

HT The Situationist.

Vallbé on Judicial Decision Making

Dr. Joan-Josep Vallbé, a researcher at Universitat Autònoma de Barcelona, Institute of Law & Technology, has published his Ph.D. dissertation entitled Models of Decision Making: Facing Uncertainty in Spanish Judicial Settings (2009). Here is a summary:

“The work of the thesis that follows began because of a problem: a group of professionals (Spanish junior judges) needed to improve the conditions under which they had to make their decisions. So far a great deal of research effort … has been devoted to show and test that a solution to this problem might come through the design and application of an artificial intelligent device that helped in their decision-making process. However, the aim of the present work is not to focus upon the process of building a system designed to support decision-making, but to explore whether and why such a decisional, organizational problem existed, and how it could be detected and represented. In other words, our objective is to explore what makes specially problematic this decision-making process by Spanish junior judges, and eventually why should an intelligent device may help them. This way we expect to better understand the role of organizations in making decisions. …

One of the main organizational principles governing the Spanish legal and judicial system is the on-call period. Regularly courts remain on call for full eight-days periods, though the regular recurrence of on-call periods depends on the number of courts within a given judicial district. Should there only be one court in a judicial district—which is not a rarity in Spanish less populated areas—that judge and the court office would be almost always on call. While on call, the court office is responsible for handling all incoming cases reported by the police, the public prosecution or by citizens at large. For instance, if an offense takes place in a specific judicial district, the judge who is on call will be in charge of supervising all enquiries related to the facts of the case. Since the Spanish criminal procedure, like in any other civil law system, is based on the ‘inquisitorial’ principle (as opposed to the ‘adversarial’ or ‘accusatorial’ principle of the common law system), judges on call are to lead the judicial police in all criminal enquiries …. The different activities the judge has to endure while on call may entail paying attention over a number of parallel issues (raised by the police, lawyers, prosecutors, etc.). Usually, the need for quick decisions seriously handicaps (or impedes) reviewing jurisprudence or precedents. Therefore at the best of times inexperienced judges have to rely on uncertain consultation with peers or senior judges (if available, which is not always possible). Thus when on-call, their decision-making process is very likely to take place in a context of special ambiguity, in sharp contrast with other routine and rule-based decisions that bind most legal proceedings in ordinary judicial decision-making. …

“Part I of this work sets forth the theoretical background of the thesis. In Chapter 1 we present a review of how decision-making problems within organizations have been dealt with in political science, paying attention to the differences between rational choice theories and behavioral organization decision analysis. In Chapter 2, the implications of bounded rationality for organizational decision analysis will be outlined, including a full discussion on the separation between the inner and outer environments of decisions.

“Once the general framework has been put forth, Part II contains the work done with junior judges. Chapter 3 will be dedicated to present all the information relevant to contextualize our case. First we will offer a description of the essential features of the Spanish judicial system, focusing our attention on Courts of First Instance and Magistrate and, in particular, on the main features of its on-call service. Second, a description of the source of our data will be outlined, highlighting different kinds of data obtained and their role in the thesis. In particular, responses to closed questions in the questionnaire will be used in this chapter to attempt a profile of the Spanish junior judges which will emphasize their perception of their professional environment and some indicators of their quality of life. The main conclusions arrived at in this chapter, in addition to those gathered from the few previous studies on the matter, will lead us to our final chapter. In Chapter 4 responses to open-ended questions in textual form will be used to test our main hypotheses. In a few words, we will explore the kind of uncertainty that surrounds judges’ decision making, and the kind of knowledge they use to overcome these situations, through the use of distinct textual analysis techniques, including text mining and textual (multivariate) statistics. Finally, some conclusions are dispensed in Chapter 5.”

Dr. Vallbé discusses some aspects of his dissertation in his new post, entitled Managing practical memories of legal organizations: Beyond document and case management, at VoxPopuLII.