Empirical studies serve to enlighten the law, even when they simply confirm the wisdom of existing rules. Chris Guthrie's article, Misjudging, primarily serves that useful function—confirming the wisdom of existing rules—even though the author sought to establish something different. Guthrie's article applies insights from cognitive psychology to the resolution of legal disputes and presents some empirical proof of the effect of the application. He concludes that three sets of “blinders”—informational, cognitive, and attitudinal—affect the ability of judges to reach correct resolutions of disputes. He therefore recommends further appreciation of the ability of arbitration and mediation to avoid some of the pitfalls of “misjudging” the blinders cause.
The theme of this response is that the studies Guthrie reports and cites have an implication that undercuts his conclusion. Specifically, his studies are more consistent with a litigation model where juries rather than judges decide facts. The reason is that they confirm the wisdom of some common law rules of evidence that protect fact-finding juries from certain types of information. Although Guthrie does not focus on juries, his article reaffirms as empirically justified the common law rules that protect juries from certain types of information. This response will focus on two rules: the introduction of repair evidence and the prohibition against per diem arguments in some jurisdictions.
7 Nev. L.J. 500 (2007).
Shoben, Elaine W., "Evidentiary Wisdom and Blinders in Perspective: Thoughts on Misjudging" (2007). Scholarly Works. Paper 577.