Bit behind . . . doing best I can!
1. Overview. In session 4, we started looking at cognitive dynamics that evince “bounded rationality”— decisionmaking patterns that reflect human beings’ imperfect computational capacities. “Context dependent preferences”—the tendency of people to shift their relative evaluations of paired options when irrelevant alternatives are added to the choice set—fall into this category. We read Kelman, M., Rottenstreich, Y. & Tversky, A., Context-Dependence in Legal Decision Making, J. Legal Stud. 25, 287- (1996) (KRT), which reported several experiments showing how context-dependent preferences could distort legal determinations. One issue posed by the class discussion was whether we could assimilate KRT’s account of the operation of context-dependent preferences to our expanding account of biased factual judgments in law.
2. “Compromise effects” generally. Context-dependent preferences are of two types: ones reflecting “compromise effects” and others reflecting “contrast effects.” I will confine my discussion here to the former.
Reflecting an implicit aversion to extremeness, a comprises effect—or CE—occurs when a person’s preference for one option shifts to another that has been rendered “intermediate” along some salient decisionmaking dimension by the addition of a third, irrelevant option. The classic example is the decision of consumers who would have purchased “regular” rather than “premium” gas to select the latter when “super premium” is offered as well.
3. KRT in particular. KRT conduct multiple experiments that show subjects’ propensity to select one homicide grade over another in patterns reflecting CE. Rather than reproduce them, I will present a composite representation based on the “Self-defense?” problem from Session 1.
Let’s imagine that case had been tried on alternative theories of murder, defined as intentional killing, and voluntary manslaughter, defined as intentional killing based on an honest but unreasonable belief that deadly force was necessary to avert an immediate threat of death or great bodily harm. Imagine further that were the case tried on this basis to multiple juries, 50% of them would find Rick (the defendant) guilty of murder and 50% of voluntary manslaughter.
Now imagine the case is tried on these two theories plus a third: either “hate crime” murder, defined as an intentional killing motivated by animus against the victim based on his or her group identity; or complete self-defense, defined as an honest and reasonable belief that deadly force was necessary to avert an immediate threat of death of great bodily harm.
Consistent with KRT studies, we might predict that CEs would alter the proportion of murder and voluntary manslaughter verdicts even if the juries rejected the third theory.
Where the hate-crime theory was added to the charge array, murder would be rendered intermediate in extremeness. The KRT studies thus predict that it would thereby be rendered more attractive relative to the least extreme option of voluntary manslaughter. Let’s imagine that murder would now be the option selected by 75% of the juries presented with these three theories and manslaughter the one selected the remaining 25%.
In contrast, where the complete self-defense theory was added, voluntary manslaughter would become intermediate, and thus gain in attractiveness relative to the most extreme option of murder. Consistent with KRT, we might imagine that murder would now be preferred by only 25% of the juries and manslaughter preferred by the remaining 75%.
4. Compromise effects as motivated factual cognition. Ordinarily, decisionmaking shifts reflecting CE are viewed as evincing the lability of individuals’ preferences. Clearly that is so in a case like the classic example involving the shift from selection of regular to selection of premium gas.
But in our “Self-defense?” thought experiment, as in the actual KRT experiments, CEs are operating over alternative factual perceptions. The choice between voluntary manslaughter and murder verdicts turns on whether or not the juries credit the defense claim that Rick honestly believed himself to be at risk of immediate lethal harm when he intentionally shot Frank. In altering the proportion of murder and manslaughter verdicts, then, the addition of the irrelevant option—either “hate crime” murder or perfect self-defense—must therefore be understood to be inducing jurors to shift in their assessments of that key fact.
The operation of CE on fact perceptions makes it possible to assimilate context-dependent preferences to the course’s growing taxonomy of non-truth-convergent cognitive dynamics.
Members of that taxonomy are spelled out in relation to a simple Bayesian model in which the assessed probability of a particular factual proposition is revised by a factor equal to how much more consistent a piece of evidence is with that proposition than with some alternative. For decisionmaking consistent with this model to be truth convergent, the likelihood ratio—the factor reflecting the weight assigned tothat evidence—must be determined on the basis of valid, truth-convergent criteria.
That isn’t so, e.g., when decisionmaking reflects confirmation bias, in which case the likelihood ratio is determined by the conformity of the new evidence with one’s priors. Nor is it so when decisionmaking reflects the “story telling model,” in which case the likelihood ratio is determined by the conformity of the evidence to a story-template selected prior to evaluation of all the evidence in the case.
Where some unconscious preference unrelated to truth-seeking determines the likelihood ratio or weight associated with a piece of information, the decisionmaking process can be said to reflect motivated reasoning. Cultural cognition is a species of motivated reasoning: it reflects the stake that individuals have in conforming their factual perceptions to conclusions that affirm rather than threaten their cultural identities.
Where a CE shapes jurors’ factual determinations, context-dependent preferences can be seen as a species of motivated reasoning, too. In that case, the likelihood ratio is being determined not by valid truth-convergent criteria but rather by the conformity of the evidence to an outcome consistent with jurors’ unconscious preference for a non-extreme outcome.