"Group Report: What is the Role of Heuristics in Litigation"

Michigan Law Authors
Areas of Interest
Publish Date
2006
Publication
Heuristics and the Law
Publication Type
Book Chapter
Abstract

This chapter examines the role of heuristics in the Anglo-American and Continental litigation systems by considering two broad areas: heuristics that appear in legal rules and procedures, as well as heuristics used by various legal actors (e.g., judges, juries, lawyers). It begins with theoretical accounts of heuristics in psychology and law. Next, it explores the role that heuristics play in the litigation process from the selection and construction of cases to the appellate process. Although procedural rules are in place to ensure that legal decision processes are deliberative, the complexities and uncertainties inherent in legal judgments promote the use of simplifying heuristic strategies. Accordingly, numerous possible instances of heuristics are identified both in legal rules and in the judgment processes of legal actors. The prescriptive utility of heuristics is considered with reference to competing legal ideals. If legal decision makers are to come closer to legal ideals, then the law must strive for perfection through complexity. If legal ideals take account of psychological reality, then the law should design an environment that recognizes human constraints and thereby facilitates heuristic decision strategies that are adaptive.

Considerably more scientific work is needed to specify the conditions under which various heuristics are used in the legal domain and under which conditions these heuristics are used successfully to achieve legal objectives.

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