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Salience Theory of Judicial Decisions

Author

Listed:
  • Pedro Bordalo
  • Nicola Gennaioli
  • Andrei Shleifer

Abstract

We present a model of judicial decision making in which the judge overweights the salient facts of the case. The context of the judicial decision, which is comparative by nature, shapes which aspects of the case stand out and draw the judge's attention. By focusing judicial attention on such salient aspects of the case, legally irrelevant information can affect judicial decisions. Our model accounts for a range of recent experimental evidence that bears on the psychology of judicial decisions, including anchoring effects in the setting of damages, decoy effects in choice of legal remedies, and framing effects in the decision to litigate. The model also offers a new approach to positive analysis of damage awards in torts.

Suggested Citation

  • Pedro Bordalo & Nicola Gennaioli & Andrei Shleifer, 2015. "Salience Theory of Judicial Decisions," The Journal of Legal Studies, University of Chicago Press, vol. 44(S1), pages 7-33.
  • Handle: RePEc:ucp:jlstud:doi:10.1086/676007
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    References listed on IDEAS

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    1. Viscusi, W Kip, 1999. "How Do Judges Think about Risk?," American Law and Economics Review, Oxford University Press, vol. 1(1-2), pages 26-62, Fall.
    2. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115, pages 43-68.
    3. Pedro Bordalo & Nicola Gennaioli & Andrei Shleifer, 2012. "Salience Theory of Choice Under Risk," The Quarterly Journal of Economics, Oxford University Press, vol. 127(3), pages 1243-1285.
    4. Richard H. Thaler, 2008. "Mental Accounting and Consumer Choice," Marketing Science, INFORMS, vol. 27(1), pages 15-25, 01-02.
    5. Anthony Niblett & Richard A. Posner & Andrei Shleifer, 2010. "The Evolution of a Legal Rule," The Journal of Legal Studies, University of Chicago Press, vol. 39(2), pages 325-358.
    6. Viscusi, W Kip, 2001. "Jurors, Judges, and the Mistreatment of Risk by the Courts," The Journal of Legal Studies, University of Chicago Press, vol. 30(1), pages 107-142, January.
    7. Kahneman, Daniel & Tversky, Amos, 1979. "Prospect Theory: An Analysis of Decision under Risk," Econometrica, Econometric Society, vol. 47(2), pages 263-291, March.
    8. Kelman, Mark & Rottenstreich, Yuval & Tversky, Amos, 1996. "Context-Dependence in Legal Decision Making," The Journal of Legal Studies, University of Chicago Press, vol. 25(2), pages 287-318, June.
    9. Huber, Joel & Payne, John W & Puto, Christopher, 1982. " Adding Asymmetrically Dominated Alternatives: Violations of Regularity and the Similarity Hypothesis," Journal of Consumer Research, Oxford University Press, vol. 9(1), pages 90-98, June.
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    Citations

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    Cited by:

    1. Colussi, Tommaso & Isphording, Ingo E. & Pestel, Nico, 2016. "Minority Salience and Political Extremism," IZA Discussion Papers 10417, Institute of Labor Economics (IZA).
    2. Chen, Daniel L. & Philippe, Arnaud, 2018. "Clash of norms: Judicial leniency on defendant birthdays," IAST Working Papers 18-76, Institute for Advanced Study in Toulouse (IAST).
    3. Daniel L. Chen & Tobias J. Moskowitz & Kelly Shue, 2016. "Decision Making Under the Gambler’s Fallacy: Evidence from Asylum Judges, Loan Officers, and Baseball Umpires," The Quarterly Journal of Economics, Oxford University Press, vol. 131(3), pages 1181-1242.
    4. Dertwinkel-Kalt, Markus & Wenzel, Tobias, 2019. "Focusing and framing of risky alternatives," Journal of Economic Behavior & Organization, Elsevier, vol. 159(C), pages 289-304.
    5. Chen, Daniel L. & Prescott, J.J., 2016. "Implicit Egoism in Sentencing Decisions: First Letter Name Effects with Randomly Assigned Defendants," IAST Working Papers 16-56, Institute for Advanced Study in Toulouse (IAST).
    6. Kontek, Krzysztof, 2016. "A critical note on Salience Theory of choice under risk," Economics Letters, Elsevier, vol. 149(C), pages 168-171.
    7. repec:eee:joepsy:v:72:y:2019:i:c:p:260-277 is not listed on IDEAS
    8. repec:kap:expeco:v:20:y:2017:i:2:d:10.1007_s10683-016-9486-z is not listed on IDEAS
    9. Edward John Dorrell Webb, 2014. "Do we see monopoly or duopoly? The influence of perception on entry deterrence," Discussion Papers 14-20, University of Copenhagen. Department of Economics.
    10. Guimarães, Bernardo de Vasconcellos & Salama, Bruno Meyerhof, 2017. "Contingent judicial deference: theory and application to usury laws," Textos para discussão 440, FGV EESP - Escola de Economia de São Paulo, Fundação Getulio Vargas (Brazil).
    11. repec:eee:jeborg:v:157:y:2019:i:c:p:477-495 is not listed on IDEAS
    12. Edward J. Webb, 2014. "Perception and quality choice in vertically differentiated markets," Discussion Papers 14-07, University of Copenhagen. Department of Economics.
    13. Daniel Chen & Tobias J. Moskowitz & Kelly Shue, 2016. "Decision-Making under the Gambler's Fallacy: Evidence from Asylum Judges, Loan Officers, and Baseball Umpires," NBER Working Papers 22026, National Bureau of Economic Research, Inc.
    14. Guimaraesy, Bernardo & Meyerhof Salama, Bruno, 2017. "Contingent judicial deference: theory and application to usury laws," LSE Research Online Documents on Economics 86146, London School of Economics and Political Science, LSE Library.
    15. repec:eee:irlaec:v:57:y:2019:i:c:p:95-100 is not listed on IDEAS

    More about this item

    JEL classification:

    • D03 - Microeconomics - - General - - - Behavioral Microeconomics: Underlying Principles
    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics

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