Calibrating Legal Judgments

49 Pages Posted: 1 Feb 2016 Last revised: 19 Oct 2016

Frederick Schauer

University of Virginia School of Law

Barbara A. Spellman

University of Virginia School of Law

Date Written: October 19, 2016

Abstract

In ordinary life, people who assess other people’s judgments typically take into account the other judgments of those they are assessing in order to calibrate the judgment presently being assessed. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. Such information allows a user to see whether a particular rating comes from a rater who is enthusiastic about every place she patronizes, or instead from someone who is incessantly hard to please. And even when less systematized, as in assessing a letter of recommendation or college transcript, calibration by recourse to the decisional history of those whose judgments are being assessed is ubiquitous. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges in reviewing legislative or administrative decisions, magistrates in evaluating search warrant representations, or jurors in assessing witness perception. In most legal domains, calibration by reference to the prior decisions of the reviewee is invisible, either because it does not exist or because reviewing bodies are unwilling to admit using what they in fact know and employ. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s aversion to overt calibration and explores what this says about the nature of law and legal decision-making.

Suggested Citation

Schauer, Frederick and Spellman, Barbara A., Calibrating Legal Judgments (October 19, 2016). The Journal of Legal Analysis, forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2016-58; Virginia Law and Economics Research Paper No. 2016-19. Available at SSRN: https://ssrn.com/abstract=2724650 or http://dx.doi.org/10.2139/ssrn.2724650

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

Barbara A. Spellman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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