Wednesday, July 27, 2011

So-Called Empirical Testing of Hunches Underlying Legal Rules

Many empirical studies of legal rules are prone to complain and proclaim that this or that belief or hunch has not been tested "empirically." See, e.g., Behavioral Biases and Local Court Rules ("Many legal rules are based on hunches about human behavior that have not been tested empirically.") What these researchers often actually mean, of course, is that the beliefs and hunches they are interested in have not been tested in a fashion these researchers deem rigorous. For example, generations of students and scholars and police officers have tested the hunch that taking notes sometimes improves the note taker's "performance."

N.B. My strong hunch is that it would be unwise in the extreme to prohibit jurors from taking notes merely because one study (see above) suggests that note taking (under certain circumstances) exacerbates the "vividness effect." Some questions:
  • Does note taking improve the performance of some jurors but not others?
  • Does juror discussion -- discussion of the evidence by, e.g., 12 jurors -- dissipate the vividness effect?
  • Is note taking a substitute for the inability of jurors to see a full transcript of the proceedings?

A strong preference for "surprising" research results can be dangerous. See my Draft Reply to Mike Redmayne   


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.