Lawnotes

The law has developed a highly elaborate set of definitions of various degrees of personal responsibility, including deliberation, intention, knowledge, recklessness, and negligence, but has been relatively untouched by psychological research on attributional biases and particularly by the research on the dispositional bias (fundamental attribution error) or by social psychological research demonstrating that situations play a far greater role than personal preferences and dispositions in determining people’s behavior (Ross & Nisbett, 1991). Again, European civil law systems differ from common law systems in many respects, such as a more active role for the trial court judge, less emphasis on precedent, and reconsideration of the facts at the appellate level. Then, when scholars write about “legal reasoning,” they are writing about judges. The lawyer does not have to decide the case, but only to make the strongest appeal for one side; lawyers’ reasoning is discussed in courses and writings on advocacy. Jurors interpret the evidence to decide what actually happened and apply the law given to them in the judge’s instructions to reach a verdict. The judge must also seek out the appropriate legal authority, deciding which laws and previous cases are applicable. Jurors are not supposed to reason about the law itself; that is the task of the judge. Judges are trained in the law, they know the statutes and precedents, and they have the experience of judging many cases and reading the decisions of other judges. Jurors do not provide reasons for their verdicts; judges often do. Finally, much of what is written about legal reasoning is about appellate court decisions, in which judges are primarily concerned with legal procedure and the law itself, not about who wins and loses, and in which they almost always must provide legal explanations for their decisions. [Legal Reasoning- Phoebe C. Ellsworth-University of Michigan Law School 2005]