Abstract
Behavioural law and economics has established a burgeoning research agenda investigating the impact of bias and heuristics on legal decision-making. One of the most important behavioural contributions concerns the impact of framing on choice. The present article expands this line of scholarship by developing a novel hypothesis under which lawyers’ attachment to objectivity and neutrality is assumed to militate against frames challenging the profession’s underlying norms. More specifically, the “apolitical hypothesis” expects the attachment of legally irrelevant political motivation to legal arguments to decrease their attractiveness. The hypothesis is tested in an experimental setting accounting for a varying degree of legal indeterminacy in the domain of European Union law. The experimental results show support for the hypothesis: a political frame made law students 12–24% more likely to select the “apolitical” legal option.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
The rule of law is, among others, listed in Article 2 of the Treaty on European Union. That serious value can be attached to this principle by various actors is illustrated by the ongoing legal and political contestation between the European Commission and EU Member States (notably Poland and Hungary).
Lasser (2004, 62) talks about a bifurcation in the French Civil Law system between an official formalist discourse—the one of importance for the apolitical hypothesis—and an “unofficial social responsiveness debate”, and contrasts this with the way American judicial opinions combine formalist and policy discourses.
The idea of a “pure” law has a strong pedigree in the legal-positivist imagination (Kelsen 1934).
See Article 33 of Law No 2019–222 of 23 March 2019 on programming period 2018–2022 and justice reform.
According to prospect theory, the underlying decision-making process proceeds in two steps: in the first phase, the subject scans the decision problem, including its framing, which is “controlled by the manner in which the choice problem is presented as well as by norms, habits, and expectancies”. Second, the framed choices are evaluated, and the most valuable option selected (Tversky and Kahneman 1986, 257).
The emphasis on legal equivalence is important here. The hypothesis tries to tap into pitfalls in paradigmatic legal behaviour rather than claiming that the political treatment does not affect the subject in some other way. The argument tackles the assumed ability of lawyers to decide purely on the basis of the law.
The law school produces the bulk of the country’s lawyers and judges, which should add to the experiment’s external validity.
Four sessions with 22 students on average were run. Their median age was 22 and the majority of them were female (68%).
Typical bones of contention concern the extent to which the European Parliament must be involved in the legislative process and whether the Council adopts the law by unanimity or qualified majority.
Note the incidental support for the theoretical motivation of the apolitical hypothesis in the scholarly work of legal academics on choice of legal basis.
Case C-300/89 Commission v Council (Titanium Dioxide) [1991] ECLI:EU:C:1991:244, para 10.
The real-world sources drawn from were Directive (EU) 2011/82 for legislation A and Directive (EU) 2017/2455 for legislation B.
Directive (EU) 2015/413 of the European Parliament and of the Council of 11 March 2015 facilitating cross-border exchange of information on road-safety-related traffic offences [2015] OJ L68/9.
The concept of centre of gravity entails determining which substantive aspect of a law is the most prominent, and thus decisive for the choice of legal basis.
The provision starts with “Save where otherwise provided in the Treaties, the following provisions shall apply [...]”.
As regards more general legal bases, such as Article 114(1) TFEU, being subsidiary to more specific powers, see among others Case C-131/87 Commission of the European Communities v Council of the European Communities [1989] ECLI:EU:C:1989:581 and Case C-22/96 European Parliament v Council of the European Union [1998] ECLI:EU:C:1998:258.
Specifying prior expectations as precisely as possible—even in the absence of much information—aids research transparency. The prior is of lesser importance in this case due to the novelty of the experimental design but setting measurable standards arguably fosters good research practices. The posterior distributions from this experiment in turn lay the foundation for priors in future work in this area.
The experiment was not designed to address the objection put forward by Druckman (2001) that framing effects are diminished outside laboratory conditions where subjects can exchange and have access to credible information.
The logarithmic transformation of the likelihood function \(L(\pi |x)={\frac{n!}{(n-x)!x!}}\pi ^x(1-\pi )^{n-x}\) is done merely out of computational convenience.
The \(\theta \) parameter of the control likelihood functions can be compared to the working prior expected probabilities attached to each outcome under different ambiguity conditions of the two scenarios. Only the observed (posterior) \(\theta \) of the control functions is important for the analysis of the results but the Appendix discusses the discrepancy between expected and observed probabilities as a measure of performance of the experimental design (Fig. 1).
In this equation h is directed and a positive sign shows the positive effect of the treatment.
Given doubts about the underlying normality assumption of the Z-statistic for our data (notably scenario B), non-parametric tests add robustness to the analysis. These include Fisher’s exact probability test, Barnard’s test, Pearson’s chi-squared test and a G-test. They should all yield similar p-values when testing for between-group difference. The difference between Fisher’s and Barnard’s test is that Fisher’s test uses fixed margins, while Barnard’s test allows for random margins.
The level of ambiguity is in statistical terms a hyperparameter defining the underlying binomial distribution of outcomes in the control group.
p-values in Fisher’s exact test are computed using factorials as \(p= \frac{( a + b ) !\ ( c + d ) !\ ( a + c ) !\ ( b + d ) !\ }{a !\ b !\ c !\ d !\ N !}\) where \(\{a,b,c,d\}\) are the four quadrants of a \(2\times 2\) contingency matrix of individual frequencies and N is the total number of observations.
At 5% ambiguity, 2 participants in the control group choose the unlikely option, while at 50% ambiguity 25 choose each. So \(10 - 2 = 8; 36 - 25 = 11; 11 - 8 = 3\).
References
Baird, V. A. (2001). Building institutional legitimacy: The role of procedural justice. Political Research Quarterly, 54, 333–354.
Baird, V. A., & Gangl, A. (2006). Shattering the myth of legality: The impact of the media’s framing of supreme court procedures on perceptions of fairness. Political Psychology, 27, 597–614.
Barents, R. (1993). The internal market unlimited: Some observations on the legal basis of community legislation. Common Market Law Review, 30, 85–109.
Berukstiene, D. (2016). Legal discourse reconsidered: Genres of legal texts. Comparative Legilinguistics, 28, 89–117.
Bless, H., Betsch, T., & Franzen, A. (1998). Framing the framing effect: The impact of context cueson solutions to the ‘asian disease’ problem. European Journal of Social Psychology, 28, 287–291.
Breda, V. (2017). The grammar of bias: Judicial impartiality in european legal systems. International Journal for the Semiotics of Law, 30, 245–260.
Casey, G. (1974). The supreme court and myth: An empirical investigation. Law and Society Review, 8, 385–419.
Cohen, G. L. (2003). Party over policy: The dominating impact of group influence on political beliefs. Journal of Personality and Social Psychology, 85, 808–822.
Cohen, J. (1988). Statistical power analysis for the behavioral sciences. Mahwah: Lawrence Erlbaum Associates.
M, de S.-O.-L’. E. Lasser. (2004). Judicial deliberations: A comparative analysis of judicial transparency and legitimacy. Oxford: Oxford University Press.
de Vreese, C. H. (2004). The effects of frames in political television news on issueinterpretation and frame salience. Journalism and Mass Communication Quarterly, 81, 36–52.
Druckman, J., & Nelson, K. R. (2003). Framing and deliberation. American Journal of Political Science, 47, 728–744.
Druckman, J. N. (2001). Using credible advice to overcome framing effects. The Journal of Law, Economics, & Organization, 17, 62–82.
Dyevre, A., Wijtvliet, W., & Lampach, N. (2019). The future of European legal scholarship: Empirical jurisprudence. Maastricht Journal of European and Comparative Law, 26, 348–371.
Eisenberg, T., & Hans, V. P. (2009). Taking a stand on taking the stand: The effect of a prior criminal record on the decision to testify and on trial outcomes. Cornell Law Review, 94, 1353–1390.
Gibson, J. L., & Caldeira, G. A. (2011). Has legal realism damaged the legitimacy of the U.S. Supreme Court? Law and Society Review, 45, 195–219.
Gigerenzer, G., & Engel, C. (Eds.). (2006). Heuristics and the law. Cambridge: MIT Press.
Gillman, H. (2001). What’s law got to do with it? judicial behavioralists test the “legal model” of judicial decision making. Law & Social Inquiry, 26(2), 465–504.
Greene, E., & Dodge, M. (1995). The influence of prior record evidence on juror decision-making. Law and Human Behavior, 19, 67–78.
Guthrie, C., Rachlinski, J. J., & Wistrich, A. J. (2001). Inside the judicial mind. Cornell Law Review, 86, 777–830.
Hart, H. L. A. (1994). The concept of law (2nd ed.). Oxford: Oxford University Press.
Hoenig, J. M., & Heisey, D. M. (2001). The abuse of power: The pervasive fallacy of powercalculations for data analysis. The American Statistician, 55, 1–6.
Jolls, C., Sunstein, C. R., & Thaler, R. (1998). A behavioral approach to law and economics. Stanford Law Review, 50, 1471–1550.
Jullien, D. (2016). All frames created equal are not identical: On the structure of kahneman and tversky’s framing effects. Oeconomia, 6, 265–291.
Jupille, J. (2004). Procedural politics: Issues, influence, and institutional choice in the European Union. Cambridge: Cambridge University Press.
Kahan, D. M. (2011). Neutral principles, motivated cognition, and some problems for constitutional law. Harvard Law Review, 125, 1–77.
Kahan, D. M. (2013). Ideology, motivated reasoning, and cognitive reflection. Judgment and Decision Making, 8, 407–424.
Kelsen, H. (1934). Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. Vienna: Franz Deuticke Verlag.
Keren, G. (Ed.). (2011). Perspectives on framing. London: Psychology Press.
Klamert, M. (2010). Conflicts of legal basis: No legality and no basis but a bright future under the lisbon treaty? European Law Review, 35, 497–515.
Korobkin, R. B., & Ulen, T. S. (2000). Law and behavioral science: Removing the rationality assumption from law and economics. California Law Review, 88(4), 1051–1144.
Levin, I. P., Schneider, S. L., & Gaeth, G. J. (1998). All frames are not created equal: A typology and critical analysis of framing effects. Organizational Behavior and Human Decision Processes, 76, 149–188.
Mackie, J. (1977). The third theory of law. Philosophy and Public Affairs, 7, 3–16.
Montesquieu, B. (1748). De l'esprit des lois. Geneva: Barrillot et fils.
Rachlinski, J. J. (2011). The psychological foundations of behavioral law and economics. University of Illinois Law Review, 2011(5), 1675–1696.
Rachlinski, J. J., Wistrich, A. J., & Guthrie, C. (2015). Can judges make reliable numeric judgments? distorted damages and skewed sentences. Indiana Law Journal, 90, 695–739.
Rhee, J. W. (1997). Strategy and issue frames in election campaign coverage: A socialcognitive account of framing effects. Journal of Communication, 47, 26–48.
Robbennolt, J. K. (1999). Anchoring in the courtroom: The effects of caps on punitive damages. Law and Human Behavior, 23, 353–373.
Schauer, F. (2010). Is there a psychology of judging? In Klein & Mitchell (Eds.), The psychology of judicial decision making (pp. 103–120). Oxford: Oxford University Press.
Scheb, J. M., & Lyons, W. (2000). The myth of legality and public evaluation of the supreme court. Social Science Quarterly, 81, 928–940.
Scheingold, S. A. (2004). The politics of rights: Lawyers, public policy, and political change (2nd ed.). Ann Arbor: The University of Michigan Press.
Sheffrin, S. M. (2017). Behavioral law and economics is not just a refinement of law and economics. Oeconomia, 7(3), 331–352.
Sher, S., & McKenzie, C. R. M. (2006). Information leakage from logically equivalent frames. Cognition, 101, 467–94.
Shklar, J. N. (1964). Legalism. Cambridge: Harvard University Press.
Siems, M. M., & Síthigh, D. M. (2012). Mapping legal research. The Cambridge Law Journal, 71, 651–676.
Steblay, N., Hosch, H. M., Culhane, S. E., & McWethy, A. (2006). The impact on juror verdicts of judicial instruction to disregard inadmissible evidence: A meta-analysis. Law and Human Behavior, 30, 469–492.
Tanford, S., & Cox, M. (1988). The effects of impeachment evidence and limiting instructions on individual and group decision making. Law and Human Behavior, 12, 477–497.
Teichman, D., & Zamir, E. (2014). Judicial decision-making: A behavioral perspective. In E. Zamir & D. Teichman (Eds.), The Oxford handbook of behavioral economics and the law (pp. 664–702). Oxford: Oxford University Press.
Tversky, A., & Kahneman, D. (1974). Judgment under uncertainty: Heuristics and biases. Science, 185(4157), 1124–1131.
Tversky, A., & Kahneman, D. (1981). The framing of decisions and the psychology of choice. Science, 211, 453–458.
Tversky, A., & Kahneman, D. (1986). Rational choice and the framing of decisions. Journal of Business, 59, 251–279.
Varo, A. E., & Hughes, B. (2002). Legal translation explained. Manchester: St. Jerome Publishing.
Wissler, R. L., & Saks, M. J. (1985). On the inefficacy of limiting instructions: When jurors use prior conviction evidence to decide on guilt. Law and Human Behavior, 9, 37–48.
Wistrich, A. J., Guthrie, C., & Rachlinski, J. J. (2005). Can judges ignore inadmissible information? the difficulty of deliberately disregarding. University of Pennsylvania Law Review, 153, 1251–1345.
Acknowledgements
The author gratefully acknowledges financial support from European Research Council Grant No. 638154 (EUTHORITY).
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Appendix
Appendix
1.1 Design performance
Due to the novel character of the hypothesis and the original design of the experiment, a degree of uncertainty concerning the intended performance of the conditions was inevitable. The design entailed notably the operationalization of legal ambiguity (indeterminacy) to get a better sense of the limits of the framing effect under investigation. Figure 3 illustrates the difference between intended and observed design performance in the control group. The design predicted a slightly higher number of successes in both scenarios. Importantly, the experiment has borne out the intention to distinguish an indeterminate from a relatively determinate legal problem. Moreover, while the latter scenario was predicted to serve as a litmus test of the political frame, it in fact proved the more sensitive instrument to measure the framing effect; a part of the reason why was that scenario B turned out even more legally determinate in practice than anticipated.
Probability mass functions illustrating the differences between the working prior probability of success in the control group for each scenario and the observed posterior probability of the same. The distributions are given for \(n = \{45, 42, 87\}\), \(x = \{0,\ldots ,40\}\)\(p_{prior} = \{0.50, 0.15, 0.23\}\) and \(p_{posterior} = \{0.40, 0.05, 0.23\}\). The prior distribution shows how the experimental design intended to distinguish varying degrees of ambiguity between scenarios A and B. The posterior distribution shows how the design actually performed in practice. On the whole the intention of the design was respected, as there was a significant difference in the probabilities of success in scenarios A and B. Nonetheless, in both scenarios the posterior probability of success was lower than expected. The line form of the probability functions obfuscates the discrete nature of the distributions but is visually more informative. The vertical line marks the actual number of successes in the control group in the experiment, which equals the mode of the probability mass function
1.2 Materials
The following materials were used in the experiment: (1) a textbook-like sheet intended to aid learning about the relevant ECJ doctrine; (2) text of legislation A and B; and (3) texts of relevant Treaty articles.
Rights and permissions
About this article
Cite this article
Ovádek, M. The apolitical lawyer: experimental evidence of a framing effect. Eur J Law Econ 48, 385–415 (2019). https://doi.org/10.1007/s10657-019-09632-7
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10657-019-09632-7