A third view of the black box: Cognitive coherence in legal decision making

D Simon - U. Chi. L. Rev., 2004 - HeinOnline
U. Chi. L. Rev., 2004HeinOnline
How do judges and jurors decide cases? Though obviously central to the law, the mental
processes for making decisions remain an opaque feature at the heart of legal discourse.
For more than a cen-tury, views of the process have clustered around two ideal types. One
rests on the assumption that legal decisions are the product of rational decision-making
processes. According to this" Rationalist" view, legal decisions emanate naturally from
prescribed forms of logical inference, namely deductions, inductions, and analogies. Critics …
How do judges and jurors decide cases? Though obviously central to the law, the mental processes for making decisions remain an opaque feature at the heart of legal discourse. For more than a cen-tury, views of the process have clustered around two ideal types. One rests on the assumption that legal decisions are the product of rational decision-making processes. According to this" Rationalist" view, legal decisions emanate naturally from prescribed forms of logical inference, namely deductions, inductions, and analogies. Critics, on the other hand, question the veracity of this account and portray the deci-t Associate Professor, University of Southern California Law School. This Article and the underlying experimental research were supported by the National Science Foundation, grants SES-0080424 and SES-0080375, and by a USC Law School summer research stipend. I thank my collaborators, Keith Holyoak and Steve Read, for the stimulating and gratifying path we have taken together. For thoughtful comments on this Article and on much of the underlying research, I thank Scott Altman, Jody Armour, Yochai Benkler, Gary Blasi, Mary Dudziak, Catherine Fisk, Sam Fraidin, Ron Garet, Beth Garrett, Ariela Gross, Dan Kahan, Greg Keating, Dan Klerman, Russell Korobkin, Tom Lyon, Andrei Marmor, Ed McCaffery, Tamara Piety, Elyn Saks, Mike Shapiro, Larry Simon, Dave Slawson, Nomi Stolzenberg, and Eric Talley. For superb research, I thank Aaron Brownstein, Dan Krawczyk, Lien Pham, Adam Scardina, Chad Snow, and Carey Stone. As always, the staff of the USC Law School Library has been terrifically helpful. I owe special thanks to my mentors, Dan Gilbert, Martha Minow, Lew Sargentich, and Henry Steiner. Correspondence welcome: dsimon@ law. usc. edu.
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