We review experimental research on judicial decision-making with a focus on methodological issues. First, we argue that only experiments with relatively high realism, in particular real judges as study subjects, plausibly generalize to judicial decision-making in the real world. Most experimental evidence shows lay subjects to behave very differently from expert judges in specifically legal tasks. Second, we argue that studying the effects of non-law is not a substitute for studying the effects of law since large unexplained residuals could be attributed to either. Direct experimental studies of the law effect are few and find it to be puzzlingly weak. Third, we review the substantive findings of experiments with judges, distinguishing between studies investigating legal and nonlegal factors and paying close attention to the nature of the experimental task.

Settlement, not trial, is the predominant way in which most legal disputes are resolved. Despite this, very little research has examined how the public thinks about settlement. This chapter discusses the need for such research and describes the first few projects trying to fill that need. People hold complex and fairly accurate beliefs about the nature and prevalence of settlement. They also show remarkable willingness to draw inferences when parties settle, including inferences about a defendant’s responsibility. Some avenues for the future of this burgeoning field are also discussed.

Most of the contracts we sign are standard form consumer contracts. Also known as boilerplate or fine print agreements, these uniform “one-size-fits-all” agreements are the most common type of economic contract, used for billions of commercial transactions each year. As this chapter will highlight, experimental research has the potential to significantly inform the regulatory discourse about consumer contracts by providing evidence as to the problems that consumer contracts generate, as well as to the effectiveness of the regulatory tools currently implemented (or under consideration) in addressing these problems. This chapter reviews existing experimental scholarship on consumer contracting with the goal of elucidating its contributions to our knowledge, while at the same time highlighting what remains to be done. Its focus is on experimental studies involving three main issues: (1) consumers’ contracting realities – how consumers behave around form contracts; (2) consumer psychology – how consumers perceive form contracts and the law governing them; and (3) how different regulatory interventions could refashion these contracting realities.

Bias is a topic that has received intense academic study, but its importance within experimental jurisprudence has yet to be unpacked. To fill this lack, we make the following contributions in this chapter. First, we situate the topic within this newly named – but not necessarily new – academic movement: We present recent research on bias in the law and discuss whether it rightly fits within the remit of experimental jurisprudence. Second, continuing to draw on this recent research, we unpack issues that inhere to explorations of bias, ones that are important for understanding, in the experimental jurisprudence context, participants and the data they generate as well as researchers and the data they garner and interpret. Finally, we conclude by offering words of caution and guidance as bias research within experimental jurisprudence progresses.

The primitive and mature kinds of guilt in Freud identified in Chapter 7 are revisited and related to the two parallel kinds of guilt Melanie Klein finds in infant life in the paranoid–schizoid and depressive states. In both accounts, guilt is seen to be either primitive and persecutory or mature and restorative, and these are foundational for adult life. I take the two accounts so consolidated to represent different ways of organising guilt in modern social, political and legal practices. I argue that legal guilt as understood in existing retributive theory is essentially primitive and punitive and consider the counter-productive impact of a persecutory penal regime on the immature and the maturing psyche. I argue that an alternative approach based on a mature retributivism is possible. I consider Jeffrie Murphy’s view that there is no logical reason why retributive theory should lead to persecutory practice and argue that there is an historical logic behind it. A mature retributivism based in moral psychology on a person taking responsibility leads to a conception of guilt as reparative and reconciliatory. This constitutes an ethically real basis for critique of law’s existing institutional practice, in what I call an ERIC critique.

People who live under a rule of law typically want their laws to work. At their strongest, laws cause people to refrain from doing what they otherwise would have done and act in favor of the law. This is “legal constraint.” If a law doesn’t do what is intended, there is a good chance that it is because of a failure of constraint. When people knowingly commit crimes, they have failed to be legally constrained. When judges reach results they favor because they did not pay due regard to the law that applies to their cases, they have failed to be constrained too. This is why political commentators frequently complain that a law “lacks teeth” or that judges are “activists.” But legal constraint is not just the stuff of political sniping. Legal philosophers, too, have a keen interest in it. In this chapter, I will first discuss how the insights of twentieth-century jurisprudence set the parameters for the empirical study of legal constraint. Thereafter, I will show how experimental methods are particularly well suited to this study. Finally, I will review the literature in experimental jurisprudence that bears upon legal constraint.

Though a moral psychology of guilt and taking responsibility is central to moving beyond violation, we must also understand denial as a moral psychological phenomenon. This may be straightforwardly ethical in its form or may disclose an underlying metapsychology of what Freud called disavowal. This chapter considers Stanley Cohen’s investigation of these terms in his pathbreaking States of Denial (2001). Cohen supported but was also deeply ambivalent about Freud’s account. He questioned the relationship between the unconscious and responsibility, the possibility for dissembling and the importance of psychological over sociological determinants of action. I defend an account of psychological denial or disavowal by addressing these concerns. The analysis is then applied to Joshua Oppenheimer’s film The Act of Killing (2014) concerning guilt and denial among perpetrators of the Indonesian genocide (1965-6). At home, these men are treated as celebrities, their actions unquestioned. The opportunity to make a film of their past as they wish challenges denial and brings out guilt feelings which are expressed morally, psychologically and physiologically. The film’s method is viewed as a form of psychoanalytic encounter providing a transitional space (Winnicott) to deal with guilt. It reveals the capacity for guilt even when it is socially denied in an unusual form of transitional justice.

The complexity involved in developing and deploying artificial intelligence (AI) systems in high-stakes scenarios may result in a “liability gap,” under which it becomes unclear who is responsible when things go awry. Scholarly and policy debates about the gap and its potential solutions have largely been theoretical, with little effort put into understanding the general public’s views on the subject. In this chapter, we present two empirical studies exploring laypeople’s perceptions of responsibility for AI-caused harm. First, we study the proposal to grant legal personhood to AI systems and show that it may conflict with laypeople’s policy preferences. Second, we investigate how people divide legal responsibility between users and developers of machines in a variety of situations and find that, while both are expected to pay legal damages, laypeople anticipate developers to bear the largest share of the liability in most cases. Our examples demonstrate how empirical research can help inform future AI regulation and provide novel lines of research to ensure that this transformative technology is regulated and deployed in a more democratic manner.

Determining proximate causation is crucial for decisions about legal liability, but how judges select proximate causes is a notoriously disputed issue. Knobe and Shapiro (2020) recently argued that the perceived (ab)normality of causal factors explains both laypeople’s and legal experts’ causal selection patterns. While a large body of psychological research shows that people indeed often select abnormal factors as most important, this research has focused on a very narrow set of scenarios: two simultaneously occurring but independent causes that either conjunctively or disjunctively bring about some outcome. We here explore whether normality also guides causal selection in structures that may be more typical of many legal scenarios: successively occurring causes that are themselves causally connected (causal chains). Comparing effects of both statistical and prescriptive abnormality on causal selection in chains, we only find a tendency to select abnormal causes for manipulations of prescriptive but not statistical normality. Moreover, judgments about the counterfactual relevance of causes or about their suitability as targets of intervention were only moderately correlated with causal selection patterns. The interplay between causal structure and different kinds of (ab)normality in people’s reasoning about proximate causation may thus be more complex than is currently recognized.