Epistemological Dilemmas in the Assessment of Legal Decision Making

Neil Vidmar and Reid Hastie would surely be at the top of anyone's list of the leading scholars in the jury research community, David Schkade and John Payne are major figures in the broader judgment and decision-making community. All four are careful, sophisticated theorists and researchers. Any dispute involving the four of them is bound to be a productive one for the field. I will argue that their dispute brings into focus some fundamental and unresolved epistemological issues at the foundation of the study of legal decision making. In the abstract to their analyses of verdicts by 121 mock civil juries, Hastie, Schkade, and Payne (1998; henceforth HSP) list their first conclusion: "Most of the mock juries decided that the consideration of punitive damages was warranted, although appellate and trial judges had concluded that they were not warranted" (p. 287). The heart of Vidmar's critique of this claim appears in his title, "Juries Don't Make Legal Decisions!" (exclamation point in the original). Vidmar argues that there is "a fatal conceptual flaw in the experiment that renders it irrelevant to legal policy. Specifically, the experiment asked the jurors to make decisions about law, decisions that are in the exclusive province of the judge. Additionally, the authors created the impression that trial judges, as opposed to juries, were in agreement on the appropriateness of damages and would have 'got it right' if they had decided the cases. In point of fact that was not true in two of the four cases" (p. 705). In this commentary, I will explain why I think Vidmar's core argument has merit. HSP's attempt to compare mock jury verdicts to an external standard (also see Hastie, Penrod, & Pennington, 1983) is unconvincing because the comparisons are inherently ambiguous. But I will argue that for the field of legal decision making, that is cause for regret and concern—as analysts, we lose a great deal when we fail to find defensible external benchmarks. Moreover, I worry that Vidmar's essay downplays some more convincing evidence that HSP cite to bolster their arguments.