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1 J.L. & Empirical Analysis 1 (2024)

handle is hein.journals/jnlolwadem1 and id is 1 raw text is: Original Research Article Can Law Students Replace Judges in Experiments of Judicial Decision-Making? Journal of Law and Empirical Analysis January-June 2024: 1-13 © The Author(s) 2024 Article reuse guidelines: sagepub~com/journals-permissions DOI: 10.1 177/2755323X23 1210467 journals.sagepub.com/homellex S Sage Holger Spamann' and Lars Klohn2 Abstract Experimental research on judicial decision-making is hampered by the difficulty of recruiting judges as experimental participants. Can students be used in judges' stead? Unfortunately, no-at least if the objective is to study legal reasoning. We ran the same high-context 2 x 2 factorial experiment of judicial decision-making focused on legal reasoning with 31 U.S. federal judges and 91 elite U.S. law students. We obtained diametrically opposed results. Judges' decisions were strongly associated with one factor (sympathy, i.e., bias) but not the other (law). For students, it was the other way around. Equality between the two groups is strongly rejected. Equality of document-view patterns-a proxy for thought processes-and written reasons is also strongly rejected. Keywords judicial decision-making, experiment, methodology, student subjects, precedent effect, bias Introduction Experiments are the gold-standard of causal inference, and the causal determinants of judicial decisions are of obvious interest. Nevertheless, experiments with judges are rare. Judges are few and busy. The organizations that could mo- bilize them in greater number-courts, judges' associations, and judicial agencies like the FJC-are wary of doing so. Some scholars have succeeded to recruit sufficient numbers of judges for vignette experiments over several rounds of judicial conferences or continuing legal education seminars.' Only two studies-one of which we replicate with students- have recruited judges for longer experiments mimicking features of real-world judicial decision-making.2 In judges' stead, many studies of legal reasoning and judicial decision- making employ (law) students.3 If students were good proxies for judges, the rate of scientific discovery could be greatly enhanced. Are they? Unfortunately, this paper's answer is no-at least if the objective is to study legal reasoning. We conducted the same 2 x 2 factorial between-subject experiment with 31 U.S. federal judges and with 91 law students at three top-ranked U.S. law schools. Specifically, participants spend up to an hour deciding a fully briefed appeal in an international war crimes case. The experimental variations are (1) whether the precedent favors or disfavors the defendant and (2) whether the defendant is sympathetic or unsympathetic (in legally irrelevant ways). We separately reported the judge results in Spamann and K16hn (2016): the 31 judges disproportionately ruled in favor of the more sympathetic defendant but were unmoved by precedent. As we report now, the 91 students did the opposite: their decisions did not differ between defendants but did differ strongly between precedents. In short, if one had run Spamann and K15hn (2016) with students instead of judges, one would have found the opposite results. The probability of observing such differences by chance-if judge and student populations did not differ-is estimated to be only one in 500, i.e., the null hypothesis of equality of the two effects in the two populations is rejected atp < .002, notwithstanding the small sample size. Beyond their ultimate decisions, we also document that students significantly differ 'Lawrence R. Grove Professor of law, Harvard Law School, Cambridge, MA, USA 2Professor of law, Humboldt-University Berlin, Berlin, Germany Corresponding Author: Holger Spamann, Lawrence R. Grove Professor of law, Harvard Law School, 1525 Massachusetts Avenue, Cambridge, MA 02138-2903, USA. Email: hspamann@law.harvard.edu Creative Commons Non Commercial CC BY-NC: This article is distributed under the terms of the Creative Commons & L Attribution-NonCommercial 4.0 License (https://creativecommons.org/licenses/by-nc/4.0/) which permits non-commercial use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage).

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