Judging Under Uncertainty

In this book, Adrian Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. He argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty.

Thirty-five chapters describe various judgmental heuristics and the biases they produce, not only in laboratory experiments, but in important social, medical, and political situations as well. Most review multiple studies or entire subareas rather than describing single experimental studies.

Adrian Vermeule argues that the arc of law has bent steadily toward deference to the administrative state, which has greater democratic legitimacy and technical competence to confront issues such as climate change, terrorism, and biotechnology. The state did not shove lawyers and judges out of the way; they moved freely to the margins of power.

Human decision making involves problems which are being studied with increasing interest and sophistication. They range from controversial political decisions via individual consumer decisions to such simple tasks as signal discriminations. Although it would seem that decisions have to do with choices among available actions of any kind, there is general agreement that decision making research should pertain to choice prob lems which cannot be solved without a predecisional stage of finding choice alternatives, weighing evidence, and judging values. The ultimate objective of scientific research on decision making is two-fold: (a) to develop a theoretically sound technology for the optimal solution of decision problems, and (b) to formulate a descriptive theory of human decision making. The latter may, in tum, protect decision makers from being caught in the traps of their own limitations and biases. Recently, in decision making research the strong emphasis on well defined laboratory tasks is decreasing in favour of more realistic studies in various practical settings. This may well have been caused by a growing awareness of the fact that decision-behaviour is strongly determined by situational factors, which makes it necessary to look into processes of interaction between the decision maker and the relevant task environ ment. Almost inevitably there is a parallel shift of interest towards problems of utility measurement and the evaluation of consequences.

In the Second Edition of Rational Choice in an Uncertain World the authors compare the basic principles of rationality with actual behaviour in making decisions. They describe theories and research findings from the field of judgment and decision making in a non-technical manner, using anecdotes as a teaching device. Intended as an introductory textbook for advanced undergraduate and graduate students, the material not only is of scholarly interest but is practical as well. The Second Edition includes: - more coverage on the role of emotions, happiness, and general well-being in decisions - a summary of the new research on the neuroscience of decision processes - more discussion of the adaptive value of (non-rational heuristics) - expansion of the graphics for decision trees, probability trees, and Venn diagrams.

A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning. Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.

This book, first published in 2002, compiles psychologists' best attempts to answer important questions about intuitive judgment.