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Please contact Maja Lucas (lucas@law.eur.nl) if you have questions.
Seminar on the occasion of the inaugural lecture of Jeffrey J. Rachlinski, Erasmus Chair of Empirical Legal Studies.
This seminar is organized under the auspices of the Dutch Judicial Council
Date: November 9, 2010 (10.00 - 17.00 hour).
Location: Erasmus University Rotterdam, room T3-20, campus Woudestein (route)
Costs: NO FEE CHARGED
Register: through the registration
Speakers
- Willem van Boom, professor of civil law, Erasmus School of Law and deputy judge in the Hague Court of Appeal.
- Carsten de Dreu, professor of social psychology, University of Amsterdam.
- Raimond Giard, associate professor of tort law, Erasmus School of Law and clinical pathologist Maasstad Ziekenhuis Rotterdam.
- Ivo Giesen, professor of civil law and civil procedures, University of Utrecht and deputy judge in the ‘s-Hertogenbosch Court of Appeal.
- Jan Smits, professor of European Private Law at Maastricht University and Professor of Comparative Legal Studies in the University of Helsinki.
- Femke S. ten Velden, project leader. Department of Psychology, Section of Work and Organizational Psychology, University of Amsterdam.
Program
10.00 - 10.30 | Arrival, registration and coffee |
10.30 - 10.45 | Opening - Willem van Boom |
10.45 - 11.15 | Facts, framing and fallacies in tort negligence - Raimond Giard |
11.15 - 11.45 | Attribution, causation and prevention - Ivo Giesen |
11.45 - 12.15 | discussion |
12.30 - 13.30 | LUNCH |
13.30 - 14.00 | The judge between facts and norms: on the psychology of norm selection - Jan Smits |
14.00 - 14.30 | Judicial Judgement and Decision Making: A motivated information processing in groups perspective - Femke ten Velden and Carsten de Deu |
14.30 - 15.00 | Discussion and concluding remarks |
16.00 | Inaugural lecture - Jeffrey Rachlinski |
Seminar
The concluding phase of a legal procedure is when the judge decides on the case, the verdict. The starting point of this process however occurred long before: a surprising negative experience by the claimant, the perception of an unwanted outcome allegedly as result of someone’s wrongdoing. Not only does this provoke emotions like frustration and disappointment, it also induces questions such as who or what is to be blamed, how was this negative outcome caused and how might damages have been prevented or minimized? This interplay of cognition and emotions characterizes the commence of the conflict. This quarrel now has to be solved in the legal arena.
How and when this dispute resolution takes place will depend on many factors. The first step is of course for the victim to take action. Only a small minority of civil disputes eventually come to court, most of them are settled beforehand. Since the judge will see a highly selected spectrum of cases, his or her ruling will be influenced by all the issues leading to such a special group of litigants. When, why and how was the decision made to go to court, how did all this evolve? In what way does the claimants lawyer present the case? What does this litigation signify for those who are directly involved and whose lives may subsequently be changed drastically by the outcome? What specific roles do the individual different legal professionals play in this drama and how do all these players interact? The answer to questions like these should be of great interest to all those involved in the law, both academically and professionally because eventually these answers are pertaining to the final judicial ruling.
There are two essentially different positions: the litigants perspective and the legal professionals perspective. It is essential to recognize that for litigants the reality of their disputes consist solely of their subjective experiences and appreciations. Although it may seem that the dispute is about money, compensatory claims frequently have unrevealed aims. Yet, once in contact with lawyers the claimants often have to change what they expect and aim for: the legal system is redefining their perceptions and positions. Eventually “Law is not what judges say in the reports but what lawyers say, to one another and to clients, in their offices” (Shapiro).
The investigation of how civil disputes are solved demands a empirical research project on the determinants of human behavior within the legal context as just depicted. But we want more than just descriptive data. We wish to understand the observed conduct and must therefore study the mind and the behavior of people in relation to their negative experiences, the birth of conflicts, the confrontation with lawyers, the dynamics of problem solving including legal factfinding and decision making. These topics belong to the realm of psychology.
Since the law is a normative endeavor, we not only ask for descriptive but also for prescriptive conclusions from psychological research. This implies not only asking how do judges decide but also trying to find an appropriate answer to the query how they should decide. A central theme is the observation that the most significant psychological difference between individuals who were involved in events leading up to a mishap and those who are called upon to investigate it after it has occurred is knowledge of the outcome, so there is a real risk of outcome bias. What corrective procedures will we need?
From the general psychological point of view we ought for practical purposes to narrow our observations for the above matters to two sides. First, on a group level, the research on the interactions between all persons involved the perspective of social psychology. Examples are interactions between claimant-plaintiff, client-lawyer, between judges in group decision making. Second, on an individual level, the fundamental processes involved such as perception, thinking, argumentation and deciding etc. the perspective of cognitive psychology. How can we value the beliefs from parties, experts, lawyers and judges?
In this seminar on determinants, dynamics and delusions of judicial decision making, we will discuss some of these matters with the following question in mind. If judicial decision making is the culminating point of the legal procedure, this is not a process done in isolation but the final phase in a multistep process: how is this judgment influenced by these consecutive steps? It is searching for answers to the simple question how do judges decide?
Registration is closed.
