Framing Effects in Proportionality Analysis: Experimental Evidence

66 Pages Posted: 21 Oct 2022 Last revised: 20 Jul 2023

See all articles by Anne van Aaken

Anne van Aaken

Max Planck Institute for Research on Collective Goods; University of Hamburg, Law School

Roee Sarel

Institute of Law and Economics, University of Hamburg

Date Written: October 18, 2022

Abstract

Proportionality analysis (PA), which is widely used by courts around the globe to balance conflicting public goals or private rights, is typically considered to be a rational process. But is it? Does the framing of the legal case affect the decision-making of (judicial) actors? And if so, are legal professionals more or less likely to be affected by the framing?
We analyze theoretically and experimentally how features of PA might influence the decision’s outcome through behavioral effects, such as biases, heuristics, and framing. In the experiment, subjects conduct a PA for legal cases that vary only in their framing, where the wording is designed to nudge subjects to either support or oppose the legal act that is challenged as disproportional. We contrast three groups of subjects: administrative judges, law students, and non-law students.
Our analysis yields three key findings. First, we find evidence of framing effects in PA; second, the effects are mitigated by legal training (non-law students are the most susceptible, followed by law students and then judges) and third, judges demonstrate only weak bias in PA but do fall prey to other unrelated behavioral effects. The findings thus highlight the importance of framing effects but also the potentially debiasing effect of legal training and professional expertise when in a professional context. We discuss the relevance of these findings also for the United States, which is not only exposed to PA through international law but is also subject to scholarly debates on the (present and future) use of PA in constitutional law.
The Article makes three important contributions: (i) it is the first to test whether framing effects occur in PA, (ii) it provides evidence that legal expertise mitigates bias in PA but that judges are still susceptible to biases outside their domain of expertise and (iii) it identifies how biases and heuristics may affect PA in general.

Keywords: Proportionality Analysis, Behavioral Law and Economics, Judges

JEL Classification: K19, K41, D03

Suggested Citation

van Aaken, Anne and van Aaken, Anne and Sarel, Roee, Framing Effects in Proportionality Analysis: Experimental Evidence (October 18, 2022). Available at SSRN: https://ssrn.com/abstract=4251219 or http://dx.doi.org/10.2139/ssrn.4251219

Anne Van Aaken

Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Roee Sarel (Contact Author)

Institute of Law and Economics, University of Hamburg ( email )

Johnsallee 35
Hamburg, 20148
Germany

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