•  
  •  

Home > Law > DePaul Law Review > Vol. 75 > Iss. 2

 

Abstract

The social science of legal decision making often emphasizes

judgment bias. That empirical project reflects the legacy of legal

realism and grows in the shadow of law and economics, both of

which embody skepticism about legal concepts. These theoretical

influences encourage empiricists to “deconstruct” legal concepts by

identifying illicit, improper, or pernicious influences on judgment.

For example, empiricists demonstrate hindsight bias in judgments

of reasonableness and recommend interventions to remove that

bias. Identifying legal biases, their sources and remedies are

critically important. But these are not the only social scientific

questions one could ask of legal concepts. This Essay poses another:

What is the concept of the “reasonable” that would remain after

successful debiasing, and what can social science tell us about it?

This Essay begins by introducing legal theories of

reasonableness and recent empirical studies about the concept. The

empirical results count against the view that ordinary

reasonableness reflects intuitive cost-benefit analysis or a

demanding moral criterion. Instead, the results favor a lay notion of

reasonableness as an intermediate standard, reflecting a hybrid of

descriptive and prescriptive norms. At a broader level, this exercise

serves as a case study on the relationship between legal concepts

and empirical studies. Social science can bolster conceptual

skepticism by identifying biases in judgment, but it can also enrich

our understanding of legal concepts’ features.

Download

Included in

Law Commons

Share

COinS