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Forthcoming 2019
Forthcoming 2019 is a section from the Everyday Evidence Legal Blog that highlights recent papers from attorneys and professors from across the legal spectrum. These recent and soon-to-be publications offer readers a chance to see a wide range of issues from different legal fields.
Today’s Forthcoming 2019 features:
Epistemic Exceptionalism
(52 Indiana Law Review 207 (2019))
Abstract
From SSRN:
"While most rules of evidence and procedure are not limited by their terms to jury proceedings, courts have often applied more permissive procedural and evidentiary standards in proceedings involving judges rather than juries as factfinders. They do so, often explicitly, on the basis of “epistemic exceptionalism” — the claim that judges’ cognitive processes are more reliable than those of laypersons and can be trusted to operate with greater competence and objectivity even in the absence of evidentiary and procedural constraints.
This Article describes two principal manifestations of epistemic exceptionalism: first, a tendency among courts to exempt pretrial and bench trial proceedings from rules of evidence and procedure intended to guard against the effects of cognitive biases and fallacies to which all human cognition is susceptible; and second, a tendency to displace the jury in favor of judicial factfinding in circumstances where judges conclude that the factfinding task is too complex for the jury to perform. Surveying the empirical literature on human cognition generally and judicial cognition specifically, it argues that the claims of epistemic exceptionalism are, at best, exaggerated — while judges are less susceptible to some kinds of cognitive error, the differences are generally small in magnitude and insignificant in comparison to the extent to which judges and laypersons show similar susceptibility to cognitive illusions, implicit bias, and motivated reasoning. Moreover, generalist judges have little advantage over lay jurors in interpreting complex evidence outside the scope of their legal expertise. Thus, doctrines grounded in epistemic exceptionalism risk increasing the influence of cognitive error in judicial decisions, and they preempt the jury’s factfinding prerogatives in favor of generalist judges for no corresponding epistemic benefit.
The Article then offers three tiers of solutions to the problem of epistemic exceptionalism, ranging from specific doctrinal corrections at the lowest level, through a middle tier of institutional reforms, and culminating with a discussion of how to instill a culture of epistemic humility within judicial institutions."
The article can be found here. ( Steiner-Dillon, James, Epistemic Exceptionalism (February 27, 2018). Available at SSRN: https://ssrn.com/abstract=3130745 or http://dx.doi.org/10.2139/ssrn.3130745 )