Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two different cases and situations are relevantly similar. One traditional view posits that these determinations are made on the basis of the rationale in the earlier case, another traditional view sees similarity in the facts of the earlier case plus the outcome, and the Legal Realist view insists that determinations of similarity are ex post attributions based on a judge’s outcome or policy preferences. In contrast to all of these positions, however, is a view informed by research in cognitive psychology. This research supports the conclusion that outcome-independent perceptions of similarity, perceptions based on the experiences and background of the perceiver, not only play a role in the determination of similarity, but often lead precedential reasoners to reason from particular to particular without the conscious mediation of any rule or principle.
Memory issues are well-known in legal trials that involve the reliability of eyewitnesses in criminal cases. However, the relevance of memory to law...
Evidence law controls what information will be admissible in court and when, how, and by whom it may be presented. It shapes not only the trial...
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This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
Professor Elizabeth Scott, the chief reporter of the American Law Institute’s (ALI) Restatement of Children and the Law, has often observed that the...
In New York State Rifle & Pistol Association v. Bruen, Justice Thomas’s majority opinion announced that the key to applying originalist methodology...
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This article argues that the fact that an action will compound a prior injustice counts as a reason against doing the action. I call this reason The...
At first blush, the debate between Stanley Fish and Ronald Dworkin that took place over the course of the 1980s and early 90s seems to have produced...
Forensic evidence has become a common tool in police investigations and a familiar form of evidence at trial. Forensic scientists are trained to...
Scott Lilienfeld warned that psychology’s ideological uniformity would lead to premature closure on sensitive topics. He encouraged psychologists to...
We examined how the presentation of risk assessment results and the race of the person charged affected pretrial court actors’ recommendations to...
Across multiple national surveys sampling more than 12,000 people, we have found that a majority of Americans, more than 60 percent, consider false...
Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two...
This chapter examines the intellectual and social contexts in which the American Law Institute (ALI) has operated and how they have influenced the...
Sometimes a police officer can only stop a fleeing suspect by striking or shooting him. When is it morally justified to use such force rather than let...