Below I share with you (by permission) my primary work product: one page summaries illustrating 17 cognitive biases, how they relate to the law, and some ways to mitigate or manage them.
Table of Contents- 1
Memory binding – 2
Hindsight bias – 3
Egocentric bias– 4
Suggestibility – 5
Consistency bias – 6
Von Restorff effect – 7
Anchoring – 8
Base rate fallacy – 9
Bandwagon effect – 10
Einstellung effect – 11
Framing effect – 12
Emergence – 13
Recency effect– 14
Endowment effect – 15
Ikea effect – 16
Expert’s overconfidence– 17
Gambler’s fallacy– 18
References
2. Memory binding
Definitions
• Different components of an event, or different events, are bound together.[1]
• Relates to your ability to tie things together in your working memory and update them when they change.[2]
Synonyms/Related Concepts
• Suggestibility
• False memory- the spontaneous narrative report of events that never happened.[3]
General Examples
• An older woman can’t remember where she left her keys, since the association between the object and its location is lost.[4]
Legal Examples
• A Ryder employee observed Timothy McVeigh rent a van a couple days before the Oklahoma City Federal Building bombing in 1995. He recalled there being two men: one tall and fair, fitting McVeigh’s description; and the second, a short, stocky, dark-haired, and tattooed. It turned out that McVeigh rented the van alone, but that the next day two men that matched the description of McVeigh and his supposed companion came in to rent a van.[5]
Related logical fallacies:
• Composition
Significance:
• Witness recollection of events may be inaccurate: “People recall correctly a fact they learned earlier, or recognize accurately a person or object they have seen before, but misattribute the source of their knowledge.”[6]
Strategies for Mitigation:
• Presume modest reductions in memory accuracy for older witnesses and when the testimony is about the objects or scene surrounding something emotionally charged, such as an injured person.[7]
3. Hindsight bias
Definitions
• A tendency to exaggerate the likelihood that would have been assessed for an event before it occurred.
• A strong tendency to attach a coherence, causality, and deterministic logic to events viewed in hindsight such that no other outcome could possibly have occurred.[8]
Synonyms/Related Concepts
• Also called “knew it all along’’ effect, wisdom after the fact, creeping determinism, and outcome knowledge.
• Outcome bias
General Examples
• In 1986, the Challenger exploded. Decision makers were severely criticized for not heeding warning signs of a problem with the O-rings. But, without benefit of hindsight, preventing the Challenger disaster would have required, not attending to the problem with the O-rings, but attending to every warning sign which seemed as severe as the O-ring problem.[9]
Legal Examples
• Two groups were asked to estimate the probability of flood damage caused by blockage of a drawbridge. Group A was told only the information known before deciding whether to implement expensive precautions. Group B was told the same information, plus the fact that a flood had actually occurred. 76% of group A concluded the flood was so unlikely that no precautions were necessary; 57% of group B concluded the flood was so likely that failure to take precautions was legally negligent.[10]
Related logical fallacies:
• Irrelevance, appeal to tradition
• Retrospective determinism- because an event happened, it was inevitable.
Significance:
• Jurors and judges are susceptible to this error in deciding negligence, transfer litigation[11], patent obviousness[12], and many other prediction-based judgments.[13]
Strategies for Mitigation:
• Be aware of how easy this error is to make. Be careful of feeling bad about decisions that were
made, and of losing confidence in your decision–making capabilities. Beware an overconfidence
that results from hindsight’s clarity of vision when predictions come true.[15]
4. Egocentric bias
Definitions
• When people claim more responsibility for the results of a joint action than an outside observer would credit them, including for negative outcomes.[16]
Synonyms/Related Concepts
• Self-serving bias- the common human tendency to take credit for success but to deny responsibility for failure[17]
• Illusory superiority- causes people to overestimate their positive qualities and abilities and to underestimate their negative qualities, relative to others
• Overconfidence bias
General Examples
• When married couples are asked to estimate the percentage of household tasks they perform, their estimates usually add up to more than 100%.[18]
Legal Examples
• Judges were asked to estimate their reversal rates on appeal. 87.7% of the judges believed that at least half of their peers had higher reversal rates than themselves.[19]
Related logical fallacies:
• Appeal to authority, composition
Significance:
• Having a somewhat inflated belief in one's abilities helps maintain one's morale and ensures a healthy sense of well-being.[20]
• However, egocentric bias might make it unlikely that judges will grant requests to set aside judgments in both civil and criminal cases. Litigants may struggle too much to convince federal judges that they might have been wrong— for example, on an interlocutory appeal.[21]
Strategies for Mitigation:
• The social benefits of having confident, decisive judges likely outweigh the costs associated with an occasional erroneous decision caused by egocentric bias— “only people who are depressed appear to possess an accurate portrait of their abilities.” However, (1) proceeding with caution and (2) searching for independent sources of judgment may appropriately mitigate the bias in some circumstances.[22]
5. Suggestibility
Definitions
• To be affected by a communication or expectation such that certain responses are overtly enacted, or subjectively experienced, without volition, as in automatism.[23]
• To accept what people say consciously, but uncritically, and to believe or privately accept what is said.
Synonyms/Related Concepts
• Memory binding
• Confabulation- the spontaneous narrative report of events that never happened (false memories).[25] The confusion of imagination with memory, or the confused application of true memories.[26]
General Examples
• Subjects were asked whether they saw a TV film about the moment a plane hit a building (the plane had crashed on take-off). 55% of respondents said they had seen the film and remembered details about the speed and angle of the plane. There was no TV coverage.[27]
Legal Examples
• Participants are shown a film of a traffic accident. Those asked how fast the cars were going when they smashed into each other estimated higher than those who were asked how fast the cars were going when they hit each other.[28]
• A witness is asked to guess about the details of an event they witnessed. Subsequently, the witness is more likely to erroneously assert the guess as an answer.[29]
Related logical fallacies:
• Composition, False Cause
Significance:
• Witness recollection of events may be partially or wholly fabricated. Memories may be distorted by leading questions, e.g. “did you see the speeding car?”rather than “did you see a speeding car?” Child recognition in sex abuse cases and pretrial identification accuracy are also suspect.
Strategies for Mitigation:
• Require the unilateral recollection of details before one is allowed to claim remembering an event.[30]
6. Consistency bias:
Definitions
• Incorrectly remembering one’s past attitudes and behavior as resembling present attitudes and behavior.
Synonyms/Related Concepts
• Cognitive consistency- refers to the tendency for beliefs to persevere more often than warranted by available information[31]
• Rosy retrospection- rating a past event more positively than you actually rated the event at the time
• Cognitive dissonance- Dissonance is the uncomfortable feeling of holding two ideas at the same time. People reduce dissonance by changing their beliefs, attitudes, and actions.[32]
General Examples
• Swimmers who answered questions regarding their water use and signed a water conservation flyer subsequently took shorter showers than the “mindful-only” subject group that just answered the questionnaire.[33]
Legal Examples
• A driver may honestly but inaccurately recall instructing a passenger to buckle up before a car accident [34], e.g. in a negligence case.
• An administrative federal agency’s rule-making is influenced more by interest groups before, rather than during, the notice and comment period. The agency is more “locked in” once it has proposed a rule.[35]
Related logical fallacies:
• Personal wishes, sweeping generalization
Significance:
• Agencies exhibit suboptimal levels of change in response to public comment.[36] Judges and legislators may similarly resist optimal change in light of otherwise sufficient evidence.
• Inaccurate testimony of past mistakes.
Strategies for Mitigation:
• Delay extensive analysis and public commitments by the agency until after it has received public input. Use split decision-making models within agencies, give advance notices of proposed rule-making, initiate group meetings and workshops, and engage regulatory negotiation.[37]
• Legal ethics committees and legislators could use a comparable strategy when making rules or laws.
7. Von Restorff effect
Definitions
• Predicts that an item that "stands out like a sore thumb" is more likely to be remembered than other items.[38]
Synonyms/Related Concepts
• Also called distinctive encoding
• If the distinctiveness results from humor, it is called the humor effect
• Bizarreness effect (remembering bizarre images more than common ones[39]), serial position effect (recall accuracy varies as a function of an item's position within a study list[40]), and within item memory binding (when a target item is emotionally arousing)[41]
General Examples
• You have a list of to-do items, and one item is circled with a broad blue marker. The circled item is more likely than others to be recalled.
Legal Examples
• Halting the attorney's presentation to rule on a motion to strike makes the statement stand out and, in effect, helps the jury remember the stricken evidence or statement.[42]
• Inciting statements made by courtroom attorneys which her opponent then objects to. The legal thriller A Time to Kill, for instance, demonstrates an instance where an emotional policeman, in response to an inappropriate question and over the judge’s instruction, dramatically urges the jury to free the accused.[43]
Related logical fallacies:
• Argumentum ad Nauseum
Significance:
• Judge and jury recollections of evidence may improperly emphasize particular facts.
Strategies for Mitigation:
• Judges should be conservative with the use of an order to strike from the record and subsequent statement to the jury to disregard the stricken statement.[44]
8. Anchoring
Definitions
• The human tendency to rely too heavily on one trait when decision making
• The tendency to fixate on specific features of a presentation too early in the diagnostic process, and to base the likelihood of a particular event on information available at the outset[45]
Synonyms/Related Concepts
• Also called tram-lining, first impression, and focalism
• Focusing effect/illusion- putting too much importance on one aspect of an event
General Examples
• Subjects were asked about the percentage of African nations which are members of the United Nations. Those asked "Was it more or less than 10%?" guessed lower values (25% on average) than those who had been asked if it was more or less than 65% (45% on average).[46]
Legal Examples
• Plaintiffs were more likely to accept a $12,000 final offer when it followed a $2,000, rather than a $10,000, opening offer.[47]
• In one experiment, judges were given the details of a personal injury case and asked to estimate the award. Those anchored by knowledge of a move for dismissal based on not meeting the $75K jurisdictional minimum averaged $882K compared to $1200K in the unanchored group.[48]
Related logical fallacies:
• Quick-fix Fallacy
Significance:
• Plea bargaining[49], jury awards[50], employment law cases[51], and settlement negotiations[52] may all depart from otherwise efficient outcomes.
Strategies for Mitigation:
• Awareness of the anchoring tendency is important.[53] Remind oneself to attend to all relevant information, irrespective of presented order, before judging.
• Early guesses should be avoided. Delay forming an impression until more complete information is gathered.[54]
9. Base rate fallacy
Definitions
• When the conditional probability of some hypothesis H given some evidence E is assessed without taking into account the "base rate" or "prior probability" of H and the total probability of evidence E[56]
Synonyms/Related Concepts
• Also called base rate neglect and representativeness exclusivity[57]
• Representativeness fallacy: the tendency of decision makers to ignore base rates and overestimate the correlation between what something is and what it appears to be.
• Some argue that the fundamental attribution error is an instance of the base rate fallacy[58]
General Examples
• A doctor performs a diagnostic test for a devastating, but extremely rare, worst-case-scenario disease. This over-utilizes the test and overestimates post-test likelihood of the disease.[59]
Legal Examples
• The best interpretation of a contract reflects both the prior likelihood (base rate) of a pair of contracting parties having a given intention and the probability that the contract would be written as it is given that intention.[60] Departures constitute base rate fallacies.
Related logical fallacies:
• Special pleading
Significance:
• Judges are likely to give too much weight to the relevance of written contracts and too little weight to outside evidence when seeking to determine the true intent of the parties.[62]
Strategies for Mitigation:
•Keep tabs on your dry holes— track interpretations and evidence you didn’t adopt.[63] Picture digging a number of holes looking for a good place to dig a well: even if you strike water the first time, don’t forget that there’s usually about X failed attempts for every success.
• Base judgments on good data appropriately tailored to the reference class,[64] and learn the principles underlying Bayesian reasoning.[65]
10. Bandwagon effect
Definitions
• The tendency to do or believe things because many other people do or believe that same thing.
Synonyms/Related Concepts
• Groupthink (Group members try to minimize conflict and reach consensus without critical thinking), herd behavior (individuals acting together without planned direction), conformity, memetics (study of units [memes] of cultural evolution, such as a word), anchoring, stare decisis (following legal precedent)
General Examples
• Voters changed their votes from Bush to Clinton when they learned that Clinton was in the lead.[66]
Legal Examples
• Many jurisdictions adopted the Holland case (ruling on the net worth method of determining one’s income taxes) merely because other jurisdictions did[67]
• Numerous Latin American countries ratified the International Covenant on Civil and Political Rights and the American Convention on Human Rights because of the international bandwagon effect of passing these treaties into force[68]
Related logical fallacies:
• Bandwagon Fallacy (argumentum ad populum, appeal to the masses, appeal to belief, appeal to the majority, appeal to the people, argument by consensus, authority of the many, argumentum ad numerum , and consensus gentium "agreement of the clans")
Significance:
• Legislation passage, sentencing norms, judicial findings, and constitutional interpretation may be partly caused by the bandwagon effect rather than solely because the facts and legal analysis support a particular result.
Strategies for Mitigation:
• (1) Warn about the possibility of bias, (2) describe the direction of the bias, (3) provide a dose of feedback, then (4) offer an extended program of training with feedback, coaching, etc.[69]
• (1) “Unfreeze” commitment to patterns of thinking by a quiz-and-feedback instrument demonstrating the subject’s bias. (2) change to de-biased thinking by reassuring the subject that biases do not threaten self-esteem. (3) “Refreeze” by practicing over time until new strategies replace old ones and become second nature.[70]
11. Einstellung Effect
Definitions
• Trying to solve a problem by pursuing solutions that have worked in the past– instead of evaluating and addressing each problem on its own terms.[71]
Synonyms/Related Concepts
• Einstellung literally means "attitude" in German. Aufgabe means "task." The Aufgabe is the task which creates a tendency to execute a previously applicable behavior.[72]
• Bounded awareness
General Examples
• Jar A holds 21 units of water, B 127, and C 3. If 100 units must be measured out, the solution is to fill up B and pour out enough water to fill A once and C twice. If that subject is subsequently told to get 18 units of water from jars with capacities 15, 39, and 3, she will tend to give a complex solution even though it’s simplest to just add the 15 and 3 jars.[73]
Legal Examples
• The directors of Trust Company agreed any appreciation in the value of the securities it purchased from Alleghany would benefit Alleghany, and Trust Company would bear any loss.[74] The court found the directors liable for negligence.[75] The directors did not “see” the defect because of the Einstellung effect.[76]
Related logical fallacies:
• Functional fixedness- that “[k]nowledge of the usual use or function of an object leads to a ‘fixation’ of that object to a General purpose.”[77] The object may be a misapplied syllogism.
Significance:
• Behavior is not blameworthy/negligent if it is due to normal mental processes such as the Einstellung effect. People should not be liable for failing to conform to a standard established without reference to the realities of human behavior.[78]
Strategies for Mitigation:
• For those with experience but not yet mastery, pay greater attention to the task at hand, asking whether it is fundamentally different from problems dealt with in the past. Avoid deciding on autopilot.[79]
12. Framing effect
Definitions
• Drawing different conclusions from the same information, depending on how that information is presented.
• Individuals have a tendency to select inconsistent choices, depending on whether the question is framed to concentrate on losses or gains[80]
Synonyms/Related Concepts
• Prospect theory: models decisions made between alternatives involving risk.
• Certainty effect and pseudocertainty effect: a sure gain is favored to a probabilistic gain[81], but a probabilistic loss is preferred to a definite loss[82].
General Examples
• Subjects were told that an unusual Asian disease would kill 600 people. The subjects could choose Program A (“200 people will be saved") or Program B (“there is a one-third probability that 600 people will be saved, and a two-thirds probability that no people will be saved"). Though both A and B presented the same option, 72% of participants preferred program A while 28% went with B.[83]
Legal Examples
• By inappropriately framing an issue on review as one of statutory interpretation rather than prospective, provisional agency policy, the majority opinion relied on dictum in the Chevron case (which decided how much deference to give an agency’s interpretation of a statute).[84]
• Framing a legal question by asking whether race-based decision making is needed to substantially benefit children has several implications, such as entrenching race-conscious decisionmaking by the government.[85]
Related logical fallacies:
• Complex question
Significance:
• Judges and juries are susceptible to the framing effect[86] in both the presentation of evidence and the presentation of legal arguments.
Strategies for Mitigation:
• Judges can make a concerted effort to approach decision problems from multiple perspectives using lateral thinking.[87] When evaluating settlement offers, for instance, judges might compare them not only to the status quo, but also to other reference points.[88]
• (1) “Unfreeze” commitment to patterns of thinking by a quiz-and-feedback instrument demonstrating the subject’s bias. (2) Change to de-biased thinking by reassuring oneself that biases do not threaten self-esteem. (3) “Refreeze” by practicing over time until new strategies replace old ones and become second nature.[89]
13. Emergence
Definitions
• The way complex systems and patterns arise out of a multiplicity of relatively simple interactions
• The idea that the whole appears as a result of the dynamics of its component parts[90]
Synonyms/Related Concepts
• Synergy (when a soprano and a bass sing a song, it’s better than each part being sung separately), failure of reductionism (you can’t figure out why a mind’s not working right by breaking it down to component parts),[91] positive-sum game (where all participants can win)
General Examples
• Photons arriving from diverse directions converge on a two-dimensional retina, and then “emerge” as the three-dimensional visual world we see.[92]
Legal Examples
• A judge may be viewed as a logician. However, this focus comes at the cost of using any tool besides deduction; clearly there is more to adjudication than deduction[93]
• The “totality of circumstances” test for third party criminal assault[94] reflects a reductionist, rather than emergent, perception
• Assuming the discreteness of law, morality, politics, and religion may obscure the empirically ascertainable need for moral insight in legal adjudication[95]
Related logical fallacies:
• False cause, genetic fallacy
Significance:
• In determining what is in a child’s interest, a judge may look to established criteria such as interaction with biological parents, financial support, and school attendance rather than perceiving the child’s welfare as a system which cannot be reduced to constituent parts. Criminal behavior, deterrence, human behavior, and public policy may be similarly resistant to reductionist analysis applied by juries, judges, and lawyers.
Strategies for Mitigation:
• “Admit into legal discourse the moral presuppositions and religious convictions which are foundational to the legal rules and principles argued or decided to be applicable, in the light of which the legal rules and premises must be understood.”[96]
• Promote the awareness and development of judge and advocate morality, or at least acknowledge the inextricably connected nature of morality, politics, and belief in legal decisionmaking.
• Consider preferring “totality of the circumstances”-like tests over those with a limited number of prongs
14. Recency effect
Definitions
• Remembering more recent information better than less recent information.[97]
Synonyms/Related Concepts
• Serial positions effect: Recall accuracy varies as a function of an item's position within a study list.[98] Also called order effects; generally, the beginning and end are weighted more than the middle.
• Primacy effect: among earlier list items, the first few items are recalled more frequently than the middle items[99]
• Peak-end rule: we judge our past experiences almost entirely on how they were at their peak (pleasant or unpleasant) and how they ended
• Availability heuristic: estimating what is more likely by what is more available in memory
General Examples
• A student is read a list of twenty words in Spanish. When asked to recall the words, the student begins with the most recent words, and remembers the words at the end of the list best.[100]
Legal Examples
• Evidence presented during a trial at the end has more impact than if presented in the middle. [101]
• Compared to simple cases, juries in complex cases are more likely to be affected by the recency effect than the primacy effect.[103]
Related logical fallacies:
• Argumentum ad Nauseum, genetic fallacy
Significance:
• Judges and juries are susceptible to the recency effect in the presentation order of trial evidence.
Strategies for Mitigation:
15. Endowment effect
Definitions
• Valuing something you own more than something similar that you don’t own.
Synonyms/Related Concepts
• Also called divestiture aversion and loss aversion
• Status quo bias
General Examples
• Overpricing garage sale items.
Legal Examples
• A negotiator refuses an offer which, according to his preferences going in, was favorable. The negotiator’s preferences changed due to feeling a sense of ownership[108] (quasi-endowment) of a particular term which developed during the negotiations.[109]
• Because the endowment effect is larger with respect to tangibles, "when forced to place a loss on someone, the law chooses to deprive R[ightful] O[wner] of his financial asset rather than deprive A[dverse]P[ossessor] of her tangible asset."[110]
Related logical fallacies:
• Appeal to authority, personal wishes
Significance:
• In addition to explaining some inefficient negotiation results, the law could factor in the duration and fact of ownership when distributing assets and calculating damages.
Strategies for Mitigation:
• Build experience. Especially in alternative dispute resolution, negotiate repeatedly for the same type of good.[111]
• Factor a modest increase to the owner’s valuation of objects owned for a long period when allocating assets, e.g. in a divorce proceeding.
16. Ikea effect
Definitions
• Valuing something more when you spent more effort making or obtaining it.
Synonyms/Related Concepts
• Not-Invented-Here Bias (not using already existing products, research or knowledge because of their external origins), endowment effect, escalation of commitment bias (after negotiation for two solid weeks, you agree to a settlement against your interest based on how much effort you’ve invested)
General Examples
• “When instant cake mixes were introduced in the 1950s, housewives were initially resistant: the mixes were too easy, suggesting that their labor was undervalued. When manufacturers changed the recipe to require the addition of an egg, adoption rose dramatically.”[113]
Legal Examples
• Law school graduates value their legal education because of how demanding it was, even if the learning outcomes aren’t that valuable.
•“[W]orkers may view the purchase of company stock in their 401(k) accounts as an investment in something that they can control.”[114] However, it is likely that employees overvalue both the worth of company stock and their ability to affect the stock’s value.
Related logical fallacies:
• Personal wishes, special pleading, genetic fallacy
• Sunk cost fallacy
Significance:
• Judges may overly value their own judicial opinions, and mistakenly think that others value their work similarly. Thus, on appeal and in subsequent opinions, a judge may give his own past conclusions and reasoning too much weight.
• Also, an attorney may be disappointed when opponents and clients don’t value the attorneys’ hard-won negotiation settlements, crafted documents, or other work products at the level the attorney thinks is merited.
Strategies for Mitigation:
• Regularly track the difference between your predictions of others’ valuations of your work and what they actually valued.
• Force clients to put effort and struggle into their own cases and settlements so they’ll be more satisfied with the results.
17. Expert’s overconfidence
Definitions
• A tendency for experts to believe they’re more skilled or better predictors in their field than they actually are.
Synonyms/Related Concepts
• Illusory superiority (also called above average effect, superiority bias, leniency error, sense of relative superiority, primus inter pares effect, and Lake Wobegon effect)[117]
General Examples
• Information from a brain damage test was given to clinical psychologists and their secretaries. The secretaries’ diagnoses were no worse than the psychologists’.[119]
Legal Examples
• An alleged murderer’s attorney was so overconfident in her ability that she didn’t prepare for the sentencing phase and called no witnesses. Contrary to the attorney’s expectation of acquittal, her client was convicted and sentenced to death[121]
• “The community of fingerprint experts and examiners have long claimed a level of accuracy and trustworthiness for fingerprint evidence well above what is actually achieved.”[122]
Related logical fallacies:
• Appeal to authority, genetic fallacy
Significance:
• Experienced arbitrators and mediators may overestimate their ability to predict party offers or damage amounts.
• Attorneys may overestimate their ability to predict litigation success, opponent behavior, and settlement amounts.
Strategies for Mitigation:
• Policy capture the decision-making process of experts, such as a judge. Make a model, then develop a regression analysis describing her model of decision making, and see if a model predicts better than the expert[123]- if so, rely on it more.[124]
• Do what weather forecasters do: calibrate[125]. Constantly gather feedback and compare it to past predictions, and apply intensive, personalized feedback[126]. Use a highly structured checklist, and have other experts review your decisions.[127]
18. Gambler’s Fallacy
Definitions
• The belief that if you observe deviations from expected independent behavior of a random process, in sequence, then future deviations in the opposite direction are more likely.
Synonyms/Related Concepts
• Also called Monte Carlo fallacy, law of averages
General Examples
• You flip a coin nine times: heads each time. Belief that the tenth flip has a greater than 50% chance of being tails is an example of the Gambler’s Fallacy. (The universe doesn’t “remember” the flipping history)
Legal Examples
• A judge decides one more case in a manner consistent with precedent, figuring “the whole doctrine will be clarified without having to undertake major doctrinal revisions.”[130] There is no reason why waiting “just one more case” will ameliorate the need to resolve a legal doctrine.
Related logical fallacies:
• Authority of tradition, false cause
Significance:
• The gambler's fallacy could explain why, contrary to theory of specific deterrence, some punishment has "positive punishment effect".[131]
Strategies for Mitigation:
• As an attorney or judge witnessing a sequence of similar convictions, awards, or judgments, remind oneself of the law of probabilities and the independence of each case.[132]
• Fully restart the decision making process with each case, negotiation, prediction, etc.[133]
[1]Daniel L. Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers 94 (New York: Houghton Mifflin, 2001).
[2] “Explore your memory survey,” BBC Science and Nature Homepage, available at http://www.bbc.co.uk/science/humanbody/mind/surveys/memory/no_flash_version.shtml
[3]"Mind fiction: Why your brain tells tall tales", New Scientist, October 7, 2006
[4]Kaoru Nashiro & Mara Mather, The Effect of Emotional Arousal on Memory Binding
in Normal Aging and Alzheimer’s Disease, (January 2011, in press, American Journal of Psychology) http://www.usc.edu/projects/matherlab/pdfs/NashiroMatherAJPinpress.pdf.
[5]Paul Brest and Linda Hamilton Krieger, Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers and Policymakers, 250 (Oxford, 2010).
[6]Daniel L. Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers 93 (New York: Houghton Mifflin, 2001).
[7]Kaoru Nashiro and Mara Mather, How Arousal Affects Younger and Older Adults' Memory Binding, Exp Aging Res. 2011 January; 37(1): 108–128 (2011), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3058756/
[8]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1191 (November 2002), available at http://www.crnns.ca/documents/AEM%20Ms%20-%20Achieving%20Quality%20in%20Decision%20MakingEducation%20copyPC.pdf
[9]Eliezer_Yudkowsky, “Hindsight bias,” available at http://lesswrong.com/lw/il/hindsight_bias/
[10] Fischhoff, B., and Beyth, R. 1975. I knew it would happen: Remembered probabilities of once-future things. Organizational Behavior and Human Performance, 13: 1-16.
[11]Simkovic, M., & Kaminetzky, B. (2010). Leverage Buyout Bankruptcies, the Problem of Hindsight Bias, and the Credit Default Swap Solution. Seton Hall Public Research Paper: August 29, 2010.
[12] See e.g. 82 St. John's L. Rev. 39 (2008); Tex. Intell. Prop. L.J. 237 (2008); and 86 Tex. L. Rev. 1 (2007).
[13]See e.g. Hindsight Bias in Legal Cognition, Erin M. Harley, Social Cognition Vol. 25, No. 1, 2007, pgs. 48-63; A Positive Psychological Theory of Judging in Hindsight, Jeffrey J. Rachlinski, 65 U Chi L Rev 571 (1998); Reducing the Hindsight Bias Utilizing Attorney Closing Arguments, Stallard & Worthington, Law & Human Behavior, Vol. 22, No. 6, Pgs 671-83 (1998); Juror Decision Making, Attitudes, and the Hindsight Bias, Casper, Benedict, and Perry, Law & Human Behavior, Vol. 13, No. 3, pgs. 291-310 (1989).
[14]Eliezer_Yudkowsky, “Hindsight bias,” available at http://lesswrong.com/lw/il/hindsight_bias/
[15]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1191 (November 2002).
[16]Ross, M. & Sicoly, F. (1979). Egocentric biases in availability and attribution. Journal of Personality and Social Psychology 37, 322-336.
[17] Miller, D.T., & Ross, M. (1975). Self-serving biases in the attribution of causality: Fact or fiction? Psychological Bulletin, 82, 213-225.
[18]Ross, M. & Sicoly, F. (1979). Egocentric biases in availability and attribution. Journal of Personality and Social Psychology 37, 322-336.
[19]Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777, 813-814 (2001).
[20]Shelley E. Taylor & Jonathan D. Brown, Illusion and Well-Being: A Social Psychological Perspective on Mental Health, 103 Psychol. Bull. 193, 199-200 (1988).
[21]Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777, 813-814 (2001).
[22]Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777, 824-825 (2001).
[23]Wagstaff, G.F., "Suggestibility: A Social Psychological Approach", pp. 132–145 in Schumaker, J.F. (ed), Human Suggestibility: Advances in Theory, Research, and Application, Routledge, (New York), 1991.
[24] Wagstaff, G.F., "Suggestibility: A Social Psychological Approach", pp. 132–145 in Schumaker, J.F. (ed), Human Suggestibility: Advances in Theory, Research, and Application, Routledge, (New York), 1991.
[25]"Mind fiction: Why your brain tells tall tales", New Scientist, October 7, 2006
[26]The American Heritage Dictionary of the English Language, Fourth Edition. Retrieved January 01, 2008,
[27]Elizabeth F. Loftus and Katherine Ketcham, “Witness from the defense: the accused, the eyewitness, and the expert who puts memory on trial 95 (New York: St. Martin’s Press, 1991).
[28] Elizabeth F. Loftus and Katherine Ketcham, “Witness from the defense: the accused, the eyewitness, and the expert who puts memory on trial 83 (New York: St. Martin’s Press, 1991).
[29]Paul Brest and Linda Hamilton Krieger, Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers and Policymakers, 251 (Oxford, 2010).
[30] Paul Brest and Linda Hamilton Krieger, Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers and Policymakers, 251 (Oxford, 2010).
[31]Stephanie Stern, "Cognitive Consistency: Theory Maintenance and Administrative Rulemaking," 63 U. Pitt. L. Rev. 589, 604 (2002).
[32]Festinger, L. (1957). A theory of cognitive dissonance. Stanford, CA: Stanford University Press.
[33]Chris Ann Dickerson et al., Using Cognitive Dissonance to Encourage Water Conservation, 22 J. Applied Soc. Psychol. 841, 847-50 (1992).
[34] Stuart M. Israel, Taking and defending depositions, ALI-ABA, 98 (2004).
[35]Stephanie Stern, "Cognitive Consistency: Theory Maintenance and Administrative Rulemaking," 63 U. Pitt. L. Rev. 589, 599 (2002).
[36]Stephanie Stern, "Cognitive Consistency: Theory Maintenance and Administrative Rulemaking," 63 U. Pitt. L. Rev. 589, 644 (2002).
[37] Paul Brest and Linda Hamilton Krieger, Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers and Policymakers, 251 (Oxford, 2010).
[38]Von Restorff, H. (1933). "Über die Wirkung von Bereichsbildungen im Spurenfeld (The effects of field formation in the trace field)". Psychologie Forschung 18: 299–342.
[39]McDaniel MA, Einstein GO, DeLosh EL, May CP, Brady P. The bizarreness effect: it's not surprising, it's complex. J Exp Psychol Learn Mem Cogn. 1995 Mar; 21(2):422-435.
[40]Ebbinghaus, Hermann (1913). On memory: A contribution to experimental psychology. New York: Teachers College.
[41]Kaoru Nashiro and Mara Mather, How Arousal Affects Younger and Older Adults' Memory Binding, Exp Aging Res. 2011 January; 37(1): 108–128 (2011), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3058756/
[42] Thomas Sannito, Psychological Courtroom Strategies, Trial Dipl. J., Summer 1981, at 171.
[43]http://www.imdb.com/title/tt0117913/quotes
Deputy Dwayne Powell Looney: I got a little girl. Somebody rapes her, he's a dead dog. I'll blow him away just like Carl Lee did.
D.A. Rufus Buckley: Objection your Honor!
Jake Tyler Brigance: Do you think the jury should convict Carl Lee Hailey?
Judge Omar Noose: Don't answer that question.
Deputy Dwayne Powell Looney: (with emphasis) He's a hero. You turn him loose.
Judge Omar Noose: The jury will disregard...
Deputy Dwayne Powell Looney: Turn him loose!
D.A. Rufus Buckley: Your honor, you silenced that witness!
Deputy Dwayne Powell Looney: You turn him loose!
[44] Thomas Sannito, Psychological Courtroom Strategies, Trial Dipl. J., Summer 1981, at 171.
[45]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1187 (November 2002).
[46]Tversky, A. & Kahneman, D. (1974). Judgment under uncertainty: Heuristics and biases. Science, 185, 1124-1130.
[47] Russell Korobkin and Chris Guthrie, Opening Offers and Out-of-Court
[48]Chris Guthrie, Jeffrey J. Rachlinksi, and Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777 (2001).
[49]84 Wash. U. L. Rev. 835 (anchoring affect in plea bargaining).
[50]40 Loy. L.A. L. Rev. 653, n. 58 (2007) (jury damage awards).
[51]See e.g. Foster v. State, 23 Fed.Appx. 731 (2001) (“anchoring event” in employment discrimination); Rivera-Rodriguez v. Frito Lay Snacks Caribbean, a Div. of Pepsico Puerto Rico, Inc., 265 F.3d 15 (2001) (anchoring event in employment discrimination); Davis v. Lucent Technologies, Inc., 251 F.3d 227 (2001) (anchoring in wrongful termination claim).
[52]Paul Brest and Linda Hamilton Krieger, Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers and Policymakers, 268 (Oxford, 2010).
[53]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1187 (November 2002).
[54] Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1187 (November 2002).
[55]Jeffrey Fagan, "Death and Deterrence Redux: Science, Law, and Causal Reasoning on Capital Punishment," 4 Ohio St. J. Crim. L. 255, 298 (2006).
[56]Bar-Hillel, M. (1980). The base-rate fallacy in probability judgments. Acta Psychologica, 44, 211-233.
[57]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1188 (November 2002).
[58]Nisbett, R.E., Borgida, E., Crandall, R., & Reed, H. (1976). Popular induction: Information is not always informative. In J.S. Carroll & J.W. Payne (Eds.), Cognition and social behavior, 2, 227-236.
[59]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1188 (November 2002).
[60] Yair Listokin, Bayesian Contractual Interpretation, 39 J. Legal Stud. 359, 359 (2010).
[61]Barbara A. Spellman and Simone Schnall, Embodied Rationality, 35 Queen's L.J. 117, 152 (2009).
[62]Yair Listokin, Bayesian Contractual Interpretation, 39 J. Legal Stud. 359, 359 (2010).
[63] Thomas Sannito, Psychological Courtroom Strategies, Trial Dipl. J., Summer 1981, at 171.
[64] Max Minzner, Putting probability back into probable cause, 87 Tex. L. Rev. 913, 952 (2009).
[65]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1188 (November 2002).
[66] Morwitz, Vicki G., and Carol Pluzinski. "Do Polls Reflect Opinions or Do Opinions Reflect Polls?" Journal of Consumer Research os 23 (1996): 53-65. 8 Apr. 2007.
[67] State v. Cherry, 559 S.E.2d 297, 305-306 (2001), citing Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).
[68]Ellen Lutz and Kathryn Sikkink, International human rights law in practice: the justic cascade: the evolution and impat of foreign human rights trials in Latin America, 2 Chi. J. Int'l L. 1, 15 (2001).
[69]Fischhoff, B. Debiasing. In D. Kahneman, P. Slovic, and A. Tversky (eds.), Judgment under uncertainty: Heuristics and biases. Cambridge, Mass.: Cambridge University Press (1982).
[70] Max Bazerman, Judgment in Managerial Decision Making: 3rd Edtion, John Wiley and Sons, Inc., 197-199 (1994).
[71]Evgeny Morozov, Einstellung Effect, available at http://www.edge.org/q2011/q11_12.html#morozov.
[72]Einstellung Effect, Wikipedia, http://en.wikipedia.org/wiki/Einstellung_effect#Background (last visited May 2, 2011).
[73]Luchins, A. S. (1942). Mechanization in problem solving. Psychological Monographs, 54, No. 248.
[74]Larry D. Soderquist, The proper standard for directors' negligence liability, 66 Notre Dame L. Rev. 37, 46 (1990).
[75]Litwin v. Allen, 25 N.Y.S.2d 667, 699 (1940).
[76]Larry D. Soderquist, The proper standard for directors' negligence liability, 66 Notre Dame L. Rev. 37, 49 (1990).
[77]Kearsley, Problem-Solving Set and Functional Fixedness: A Contextual Hypothesis, 16 CAN. PSYCHOLOGICAL REV. 261, 263 (1975).
[78]Larry D. Soderquist, The proper standard for directors' negligence liability, 66 Notre Dame L. Rev. 37, 46 (1990).
[79]Evgeny Morozov, "Einstellung Effect," available at http://www.edge.org/q2011/q11_12.html#morozov
[80]Plous, Scott (1993). The psychology of judgment and decision making. McGraw-Hill.
[81]Tversky, A., & Kahneman, D. (1986). Rational Choice and the Framing of Decisions. The Journal of Business, 59, S251-S278.
[82]Tversky, A. and Kahneman, D. (1981). The Framing of Decisions and the Psychology of Choice. Science. Vol 211(4481).
[83] Tversky, A. and Kahneman, D. (1981). The Framing of Decisions and the Psychology of Choice. Science. Vol 211(4481) pp.453-458.
[84] Elizabeth Foote, Statutory interpretation or public administration: how Chevron misconceives the function of agencies and why it matters, 59 Admin. L. Rev. 673, 686 (2007).
[85] David D. Meyer, Palmore comes of age: the place of race in the placement of children, 18 U. Fla. J.L. & Pub. Pol'y 183, 201 (2007).
[86]Philip G. Peters, Jr., Health courts?, 88 B.U. L. Rev. 227, 246 (2008).
[87]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1198 (November 2002).
[88]Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777, (2001).
[89] Max Bazerman, Judgment in Managerial Decision Making: 3rd Edtion, John Wiley and Sons, Inc., 197-199 (1994).
[90] Francisco Varela, The Emergent Self, http://edge.org/conversation/the-emergent-self (2001).
[91] Robert Sapolsky, The Lure Of A Good Story, http://www.edge.org/q2011/q11_print.html
[92] Frank Wilczek, Hidden Layers, http://www.edge.org/q2011/q11_print.html
[93] Jonathan Edward Maire, The possibility of a Christian jurisprudence, 40 Am. J. Juris. 101, 119 (1995).
[94] Totality of circumstances test, 2 Premises Liability 3d § 43:10 (2010).
[95]Jonathan Edward Maire, The possibility of a Christian jurisprudence, 40 Am. J. Juris. 101, 132-133 (1995).
[96] Jonathan Edward Maire, The possibility of a Christian jurisprudence, 40 Am. J. Juris. 101, 152 (1995).
[97]Deese and Kaufman (1957) Serial effects in recall of unorganized and sequentially organized verbal material, J Exp Psychol. 1957 Sep 54(3):180-7.
[98]Ebbinghaus, Hermann (1913). On memory: A contribution to experimental psychology. New York: Teachers College.
[99]Murdock, B.B., Jr. (1962) The Serial Position Effect of Free Recall, Journal of Experimental Psychology, 64, 482-488.
[100] Tversky, A. and Kahneman, D. (1981). The Framing of Decisions and the Psychology of Choice. Science. Vol 211(4481) pp.453-458.
[101] Jansen Voss, The Science of Persuasion: an Exploration of Advocacy and the Science Behind the Art of Persuasion in the Courtroom, 29 Law & Psychol. Rev. 301, 311 (2005).
[102] Laurens Walker, A model plan to resolve federal class action cases by jury trial, 88 Va. L. Rev. 405, 430 (2002).
[103]Ryan Patrick Alford, Catalyzing more adequate federal habeas review of summation misconduct: persuasion theory and the sixth amendment right to an unbiased jury, 59 Okla. L. Rev. 479, 515 (2006).
[104]John A. Call, Handling the jury: the psychology of courtroom persuasion, 16-SPG Brief 47, 50 (1987).
[105] Ryan Patrick Alford, Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis, 11 Mich. J. Race & L. 325, 329, 334 (2006) [trial strategies often focus on the optimal closing argument].
[106]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1193 (November 2002).
[107]Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica 263, 279 (1979); see also Amos Tversky & Daniel Kahneman, Rational Choice and the Framing of Decisions, 59 J. Bus. S251, S258 (1986).
[108]Dan Ariely, Predictably Irrational, pg. 137 (2009) (ownership is not limited to material things)
[109] Henner Gimpel, Preference Construction in Negotiations: Loss Aversion and Quasi-Endowment, http://www.im.uni-karlsruhe.de/Upload/Publications/ ee2407fc-c2fe-4a8c-9a51-2b9c44548d7a.pdf 3 (2005).
[110]John L. McCormack, Title to property, title to marriage: the social foundation of adverse possession and common law marriage, 42 Val. U.L. Rev. 461, 486 (2008).
[111]Henner Gimpel, Preference Construction in Negotiations: Loss Aversion and Quasi-Endowment, http://www.im.uni-karlsruhe.de/Upload/Publications/ee2407fc-c2fe-4a8c-9a51-2b9c44548d7a.pdf 18 (2005).
[112]Marion Crain, "Managing identity: buying into the brand at work," 95 Iowa L. Rev. 1179, 1240 (2010).
[113]Michael I. Norton, “The IKEA Effect: When Labor Leads to Love,” http://hbr.org/web/2009/hbr-list/ikea-effect-when-labor-leads-to-love
[114]John L. McCormack, Title to property, title to marriage: the social foundation of adverse possession and common law marriage, 42 Val. U.L. Rev. 461, 486 (2008).
[115]Pallier, Gerry, et al. "The role of individual differences in the accuracy of confidence judgments." The Journal of General Psychology 129.3 (2002): 257+.
[116]Morris, Errol (2010-06-20). "The Anosognosic’s Dilemma: Something’s Wrong but You’ll Never Know What It Is (Part 1)". Opinionator: Exclusive Online Commentary From The Times. New York Times. Retrieved 2011-03-07.
[117]Hoorens, Vera (1993). "Self-enhancement and Superiority Biases in Social Comparison". European Review of Social Psychology (Psychology Press) 4 (1): 113–139.
[118]Schendel, Joel D., John C. Morey, M. Janell Granier, and Sid hall. 1983. Use of self-assessments in estimating levels of skill retention. U.S. Army Research Institute for the Behavioral and Social Sciences, Research Report 1341. http://hbr.org/web/2009/hbr-list/ikea-effect-when-labor-leads-to-love
[119]Menandd, Louis. 2005. Everybody’s an Expert. New Yorker, Dec. 5, pp. 98-101.
[120]See Chet K. W. Pager, Blind Justice, Colored Truths and the Veil of Ignorance, 41 Willamette L. Rev. 373, 380 (2005) (explaining "as early as 1872, [Sir James] Stephen believed that lie-detection ability was gained through experience. Accordingly, those with relevant experience, such as detectives, judges, and CIA, are more confident in their abilities. They are also more misguided.")
[121]Cave v. Singletary, 971 F.2d 1513, 1526-1527, C.A.11 (Fla.),1992.
[122]Nathan Benedict, Fingerprints and the Daubert standard for admission of scientific evidence: why fingerprints fail and a proposed remedy, 46 Ariz. L. Rev. 519, 548 (2004).
[123]Stuart Sutherland, Irrationality: Why We Don’t Think Straight, pg. 288.
[124]Max Bazerman, Judgment in Managerial Decision Making, 200 (1994).
[125]Joseph Hallinan, Why we make mistakes: how we look without seeing, forget things in seconds, and are all pretty sure we are way above average, 158 (2009).
[126]Max Bazerman, Judgment in Managerial Decision Making: 3rd Edtion, John Wiley and Sons, Inc., 196 (1994).
[127]Jerome Groopman, How Doctors Think, 183-186.
[128]Gilovich, T. (1991). How We Know What Isn't So: The Fallibility of Human Reason in Everyday Life. New York: The Free Press
[129] Greg Pogarsky & Alex R. Piquero, Can Punishment Encourage Offending? Investigating the "Resetting" Effect, 40 J. Res. Crime & Delinq. 95, 99-100 (2003).
[130]Rafael Gely, Of sinking and escalating: a (somewhat) new look at stare decisis, 60 U. Pitt. L. Rev. 89, 122 (1998).
[131]Michael Vitiello, California's three strikes and we're out: was judicial activism California's best hope? 37 U.C. Davis L. Rev. 1025, 1108 (2004).
[132]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1192 (November 2002).
[133]Pat Croskerry, "Achieving Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias," Academic Emergency Medicine, Vol. 9, No. 11: 1192 (November 2002).
