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German Abstract: Eine zentrale Herausforderung der Migrationssteuerung auf Unionsebene ist die „Bekampfung“ irregularer Einwanderung. Die vorliegende Arbeit widmet sich einem der drangendsten Probleme der EU-Ruckfuhrungspolitik, in concreto der niedrigen Ruckfuhrungsrate irregular aufhaltiger Migrant*innen. Jahrlich werden nur rund 40 % aller Ruckkehrentscheidungen auch tatsachlich vollzogen. Mogliche Losungsansatze finden sich in den Rechtsordnungen ausgewahlter Mitgliedstaaten. Deshalb wird die deutsche, osterreichische und spanische Rechtslage in einem Rechtsvergleich analysiert. Die drei Mitgliedstaaten „bekampfen“ den irregularen Aufenthalt von Migrant*innen mithilfe eines differenzierten Systems von Regularisierungen. Regularisierungen, verstanden als Rechtsinstrument, stellen eine Alternative zu Ruckfuhrungen dar und umschreiben jede rechtliche Entscheidung, die irregular aufhaltigen Migrant*innen ein Aufenthaltsrecht gewahrt. Sie beenden den irregularen Aufenthalt von Migrant*innen, allerdings nicht durch eine Ruckfuhrung iSe Auserlandesbringung, sondern durch die Gewahrung eines Aufenthaltsrechts. Anhand dieser Untersuchung wird die folgende These entwickelt: Durch unionsrechtlich normierte Regularisierungen, die die derzeitige Ruckfuhrungspolitik der EU erganzen, wird die irregulare Einwanderung auf Unionsebene wirksamer „bekampft“. English Abstract: A key challenge in managing migration at the EU level has been ‘combatting’ of irregular immigration. The present book addresses perhaps one of the most pressing structural problems regarding the EU’s return policy: the enforcement deficit in returning migrants who stay irregularly. Only 40 per cent of return decisions are actually enforced. Possible solutions are found in the national legal frameworks of selected EU Member States, which is why Germany, Austria and Spain are examined comparatively. These three Member States target the status of ‘irregular residence’ through a differentiated system of regularisations. Regularisations represent an alternative to returns and these legal instruments can be understood as any legal decision that grants migrants a legal residence. They terminate the irregular stay of migrants through granting residence permits rather than through deportation. This analysis leads to the following thesis: irregular immigration can be ‘fought’ more effectively with EU Law Regularisations on the EU level, which would effectively complement the existing rules of the EU return policy.

French Abstract: Une preuve scientifique peut-elle suffire a fonder une condamnation penale, en l’absence de tout autre element au dossier? Les avancees technologiques constantes et l’elargissement des bases de donnees de profils d’ADN et d’empreintes digitales peuvent creer l’illusion qu’une trace peut etre liee a un prevenu en dehors de tout contexte concret, et avec un degre de probabilite tres eleve. En realite, il n’en est rien. Dans la presente contribution, nous confronterons les principes juridiques de la libre appreciation des preuves et de l’intime conviction avec les connaissances actuelles en matiere d’analyse forensique de l’ADN et de dactyloscopie. Nous mettrons en lumiere les decalages inevitables qui existent entre l’information que peut fournir un expert scientifique dans l’etablissement des faits et la question qui interesse le magistrat charge de determiner si le prevenu a commis l’infraction. Nous verrons que les dispositions legales actuelles ne rendent que partiellement compte de la complexite du processus de raisonnement et de prise de decision tenu par le magistrat dans ce type de cas et illustrerons notre propos au moyen d’elements de la theorie de la decision. – Zusammenfassung: Kann ein wissenschaftlicher Beweis ausreichen, um eine strafrechtliche Verurteilung zu begrunden, wenn keine weiteren Elemente vorliegen? Der standige technologische Fortschritt und die Erweiterung der Datenbanken mit DNA-Profilen und Fingerabdrucken konnen die Illusion hervorrufen, dass eine Spur mit hoher Wahrscheinlichkeit einem Angeklagten zugeordnet werden kann, ohne Berucksichtigung der jeweiligen Fallumstande. Das ist jedoch wirklichkeitsfern. In diesem Beitrag stellen wir die Grundsatze der freien Beweiswurdigung und der richterlichen Uberzeugung den aktuellen Kenntnissen der forensischen DNA-Analyse und der Daktyloskopie gegenuber. Wir erlautern die unvermeidlichen Diskrepanzen zwischen den Informationen, die ein Sachverstandiger zur Tatsachenfeststellung liefern kann, und der Frage, die fur den Richter von Interesse ist, der festzustellen hat, ob der Angeklagte die Straftat begangen hat. Wir zeigen auf, inwiefern die gegenwartigen gesetzlichen Bestimmungen die Komplexitat des Denk- und Entscheidungsprozesses des Richters in solchen Fallen nur teilweise Rechnung tragen, und veranschaulichen unseren Standpunkt anhand entscheidungstheoretischer Uberlegungen. English Abstract: Can scientific evidence be sufficient to convict, in the absence of any other element in the case? Constant technological advances and the expansion of DNA profile and fingerprint databases can create the illusion that a trace can be associated with an accused person outside any case context, and with a high degree of probability. In reality, this is not the case. In this contribution, we highlight the inevitable discrepancies that exist between the information that a scientific expert can provide in establishing the facts and the question of primary interest to the legal decision makers in charge of determining whether the accused has committed the offense. We shall argue that the current legal provisions only partially account for the complexity of the reasoning and decision-making process followed by legal decision makers in cases based only on only a single item of scientific evidence. We illustrate our point with elements of decision theory.

The merits of using subjective probability theory as a normative standard for evidence evaluation by legal fact-finders have been hotly debated for decades. Critics argue that formal mathematical models only lead to an apparent precision that obfuscates the ad-hoc nature of the many assumptions that underlie the model. Proponents of using subjective probability theory as normative standard for legal decision makers, specifically proponents of using Bayesian networks as decision aids in complex evaluations of evidence, must show that formal models have tangible benefits over the more natural, holistic assessment of evidence by explanatory coherence. This paper demonstrates that the assessment of evidence using a Bayesian network parametrized with values obtained from the decision makers greatly reduces role-induced bias, a bias that has been largely resistant to de-biasing attempts so far. This shows that using Bayesian networks as decision aids can benefit legal decision making.

Not all judges necessarily take a decision in exactly the same way. Some legal decisions are quite ‘hard’, others are rather ‘soft’. To tell them apart, scholars and practitioners have an interest in measuring and comparing legal decisions within a well-defined case-space. So far, this required a close reading of each decision and hence a considerable human effort. The only area amenable to automation were courts with judges who not only vote on verdicts, but who also make these voting records available—such as for example the U.S. Supreme Court. This paper introduces a new measurement approach that does not rely to voting data, but uses the citations in written legal decisions instead. Modelling the frequency of how often a decision is citing a legal source, we estimate the latent positions of both, decisions and sources in a joint case-space. We showcase our model in the context of forum shopping and forum selling in a particularly unlikely case, Ger- many’s Landgerichte (lower courts). A method for easily and automatically measuring decisions in a joint case-space is not only a mere academic exercise, but is instrumental to anyone who studies legal decision making at large scale.

The idea of artificial legal intelligence stems from a previous wave of artificial intelligence, then called jurimetrics. It was based on an algorithmic understanding of law, celebrating logic as the sole ingredient for proper legal argumentation. However, as Holmes noted, the life of the law is experience rather than merely logic. Machine learning, which determines the current wave of artificial intelligence, is built on a data-driven machine experience. The resulting artificial legal intelligence may be far more successful in terms predicting the content of positive law. In this article, I discuss the assumptions of law and the rule of law and confront them with those of computational systems. As a twin paper to my Chorley lecture on Law as Information, this should inform the extent to which artificial legal intelligence provides for responsible innovation in legal decision making.

The open access of citizens to public information is regulated by the Access to Information Act through Law no. 12527 of 18 November 2011, rooted in article 216 of the Constituicao da Republica Federativa do Brasil de 1988: “[...] mudanca de paradigma ao estabelecer que o acesso e a regra e o sigilo, a excecao". Within the judicial branch, the main focus of this project, this is guarded both at local as well as at national level. More verbose explanations are available. This document reports the design of a legal decision support system, for the Brazilian judicial branch, with possible applications to other domains. The main source of data for the system are documents describing the proceedings of lawsuits. We denominate these documents as Legal Event from the Past (LEP) throughout the report. For the development of an early version of the system, or what may be denoted as prototype, we focus on local, i.e., state courts, in a way that enables extensions of the system for processing LEPs regardless of their origin. For comparative purposes, as well as for ensuring scalability of the prototype, several other judicial authorities are considered.

Making legal judgments requires making sense of a complex set of usually contradicting pieces of information. Systematic judgment biases can be caused - amongst others - by unbalanced information search (confirmatory search) as well as by biased information processing and particularly coherence structuring (coherence shifts) in which the interpretation of information is changed to fit the emerging favored option. In four studies, we investigate the complex interplay between both kinds of influences. In a newly developed paradigm, participants completed three legal cases in which they could freely search for information. We manipulated between subjects whether systematic search was possible or not and measured the assessment of each investigated piece of information; moreover, we tracked the overall assessment of the case over time. In line with previous studies, we observe strong coherence shifts in each study. Contrary to our expectation, however, we mainly find disconfirmatory information search, in that people tended to search for information that was contrary to their current belief in the given case. We also observed a trend towards an interaction between both factors. Our results underline an unconscious striving for coherence when making complex judgments that cannot be easily corrected.

The law and literature movement has a long and distinguished history and has spawned many strands since its origins in the eighteenth century. Most recently, legal storytelling has realized a prominent position in law school pedagogy; it is seen as a way to teach law students effective strategies for client advocacy. Storytelling acumen enables lawyers to present their clients’ circumstances to legal decision makers in ways that can facilitate favorable outcomes. What is less well-settled is how best to teach storytelling skills in law school. Some scholars are proponents of a theoretical approach — teaching students narrative theory and the rudiments of literary criticism — while others prefer practical methods founded in clinical courses. This article proposes a two-pronged approach to teach storytelling in a family law context utilizing both theory and practice. It features critical analysis of literary texts to expose persuasive narrative techniques and writing exercises designed to help students apply them to lawyering.

This paper presents a novel algorithmic approach to the problems of inconsistency and bias in legal decision making. First, we propose a new tool for reducing inconsistency: "Synthetic Crowdsourcing Models" (“SCMs”) built with machine learning methods. By providing judges with recommendations generated from statistical models of themselves, such models can help those judges make better and more consistent decisions. To illustrate these advantages, we build an SCM of release decisions for the California Board of Parole Hearings. Second, we describe a means to address systematic biases that are embedded in an algorithm (e.g., disparate racial treatment). We argue for making direct changes to algorithmic output based on explicit estimates of bias. Most commentators concerned with embedded biases have focused on constructing algorithms without the use of bias-inducing variables. Given the complex ways that variables may correlate and interact, that approach is both practically difficult and harmful to predictive power. In contrast, our two-step approach can address bias with minimal sacrifice of predictive performance.

A central question in the study of courts' legitimacy pertains to the extent to which the specific court decisions affect their institutional legitimacy – an issue of both theoretical and empirical concern. The scholarly literature (centered almost entirely on the US Supreme Court) typically distinguishes between diffuse and specific support – the former referring to general attitudes toward the institution, while the latter addresses the congruence between the particular content of a judicial decision and the policy preferences of the evaluating public. The conventional view in the literature suggests that the level of diffuse support is typically unaffected by short-term variations in specific support. To the extent that such a relationship exists, changes in diffuse support are short-lived and incremental. However, recent findings suggest that specific support impacts diffuse support.These conflicting empirical findings presents a puzzle, which requires resolution – either by resolving that one empirical account is more valid than the other; or by revising the theory in a way that may account for both seemingly conflicting results. Our study takes the latter approach. Drawing on the work of Hoekstra (2000) we suggest that different judicial decisions vary in their relevance to the evaluating public. This "content-relevance" of the decision serves as a judgment-weight of specific support in the updating process of diffuse support. Given a particular level of specific support (e.g. in/congruence between the judicial decision and preferred policy), low content-relevance is hypothesized to entails minimal updating of diffuse support, while high content-relevance lead to it pronounced updating.We utilize a unique political situation created by one judicial decision by the Israeli High Court of Justice (HCJ) during the 2013 municipal elections. The HCJ ordered the removal of three city elected mayors (on the basis of their indictments for corruption) less than a month before the municipal elections yet permitted all three to put their names on the ballots. In fact, all three incumbent mayors were consequently reelected by the relevant constituencies shortly after their removal by the court. This unique setting permits simultaneous comparison of the responses of communities for which the same court decision is either strongly or weakly relevant. We control for potential intervening factors by selecting demographically matched cities, and by controlling for a host of individual-level characteristics. Our findings provide support for the content-relevance hypothesis. Specific support was found to be associated with diffuse support only in 'target' cities (addressed directly by the judicial decision), but not in the 'control' cities. These findings replicate the two sets of seemingly conflicting results reported in the literature, and offer systematic and theoretically based resolution to these diverging results. Moreover, this study contributes to the literature on court legitimacy also by expanding the geographic, political and legal context in which public opinion interacts with legal decision.

Identifying legal change is an ordinary part of legal decision making, but participants in those decisions regularly focus on different objects and metrics. A version of the problem arises when one observer points to results while another observer points to processes for generating such results. Often change can be detected on one of those dimensions and not another. This article offers a way to think about legal change that captures process-result combinations. The article illustrates the combination with numerous examples from ordinary life, ordinary law, and constitutional law -- including particular controversies such as same-sex marriage benefits, as well as crosscutting debates over methods of interpretation. The article then suggests why people might want to link legal results with antecedent legal processes, estimates the seriousness of the problem this creates for measuring legal change, and evaluates responses in the form of excluding or aggregating dimensions of interest. Throughout, the article draws lessons from psychology, philosophy, politics, and empirical studies.

We use a laboratory experiment to test the impacts of uncertainty, the magnitude of fines and aversion against making type-I and type-II errors on legal decision making. Measuring uncertainty as the noise of a signal on the defendant's guilt observed by legal decision makers, we observe that a supposed wrongdoer is less likely to be punished if fines and uncertainty are high. Furthermore, judges care far more about type-I errors and violators steal far less often than expected payoff maximizers would. While our results support the theoretical predictions on average, a cluster analysis provides evidence for heterogeneous behavior of participants, many of whom don't respond to changes in the parameters or are far more driven by uncertainty than the magnitude of fines.

Various legal decision-making criteria can be formulated as likelihood ratio tests, wherein liability, prohibition, or other outcomes are associated with evidence strength exceeding a posited threshold. Stating rules in this manner clarifies their nature, facilitates the comparison of conventional and optimal rules as well as the identification of differences between rules across contexts, and provides further illumination in instances in which a decision standard is not truly a likelihood ratio test.

Criminal procedure is organized as a tournament with predefined roles. We show that assuming the role of a defense counsel or prosecutor leads to role induced bias even if participants are asked to predict a court ruling after they have ceased to act in that role, and if they expect a substantial financial incentive for being accurate. The bias is not removed either if participants are instructed to predict the court ruling in preparation of plea bargaining. In line with parallel constraint satisfaction models for legal decision making, findings indicate that role induced bias is driven by coherence effects (Simon, 2004), that is, systematic information distortions in support of the favored option. This is mainly achieved by downplaying the importance of conflicting evidence. These distortions seem to stabilize interpretations, and people do not correct for this bias. Implications for legal procedure are briefly discussed.

In a previous study (presented at CELS 2009; in press, JELS), we tested how lay people evaluate judicial decision-making. Participants were presented with three judicial decisions, and were asked to evaluate the acceptability of those decisions, focusing on the decision-making process and on the courts’ legitimacy. One of the central findings of that study was that lay people’s judgments of judicial decision-making are highly contingent on the outcome of the courts’ decisions, regardless of the procedures followed (which were described as favorable). Participants found the decision-making highly acceptable when they agreed with the judges’ decisions, but deemed them relatively unacceptable when they disagreed with them. That study left open the possibility that lay judgments of judicial decision-making are not derived directly from the decisions themselves, as in real life, few people read the actual texts of judicial decisions. Rather, the public’s judgments may be mediated by professional legal commentators who communicate judicial decisions and comment on them in the media. As these “general-interest intermediaries” are likely to be more sensitive to procedural fidelity and legal reasoning, they may afford lay people a basis to make more principled and less outcome-contingent judgments of the judiciary’s work. This study tested this possibility by presenting lay participants with legal commentators’ evaluations of judicial decisions in the media. We found that the commentaries did not alter participants’ evaluations of the courts’ decisions, as these judgments continued to be influenced strongly by the participants’ agreement with the outcomes of the decisions. Moreover, lay reactions to the intermediaries themselves were dominated by the participants’ preferred outcomes in a similar manner: the commentators were deemed to be competent and their commentaries were deemed to be fair and objective when their conclusions were congruent with the participants' preferred outcomes. The opposite was true when the participants disagreed with the intermediaries’ conclusions. These findings suggest that the dependency of lay judgments of judicial decision-making on the decision outcomes cannot easily be fixed by means of “general-interest intermediaries.”

People's intuitions about the underlying causes of past and future actions might not be the same. In 3 studies, we demonstrate that people judge the same behavior as more intentional when it will be performed in the future than when it has been performed in the past. We found this temporal asymmetry in perceptions of both the strength of an individual's intention and the overall prevalence of intentional behavior in a population. Because of its heightened intentionality, people thought the same transgression deserved more severe punishment when it would occur in the future than when it did occur in the past. The difference in judgments of both intentionality and punishment was partly explained by the stronger emotional reactions that were elicited in response to future actions than in response to past actions. We consider the implications of this temporal asymmetry for legal decision making and theories of attribution more generally.

A proficiency test is an assessment of the performance of laboratory personnel using samples whose sources are known to the proficiency test administrator but unknown to the examinee. Proficiency tests can help identify reasonable first pass estimates for the rates at which various types of errors occur. It is crucial to obtain error rate estimates because the reliability and probative value of forensic science evidence is inextricably linked to the rates at which examiners make errors. Without such information, legal decision makers have no scientifically meaningful way of thinking about the risk of false identification and false non-identification associated with forensic reports.

This paper’s objective is to provide an account of certain aspects of a relationship between, on the one hand, moral and intellectual virtues and, on the other hand, the phenomenon of law-application. The paper is not centrally concerned with the relationship between a general conception of ethics (i.e. virtue ethics ) and law, but instead focuses on the relationship of certain traits of character, in particular certain aspects of practical wisdom, and the process of legal decision-making. The paper’s central objective is to present a plausible picture of subjectively possessed virtue, and in particular of practical wisdom, that is able to play a role in legal decision-making.

In an experimental study we investigated effects of information amount and legal training on the judgment accuracy in legal cases. In a two (legal training: yes vs. no) x two (information amount: high vs. low) between-subjects design, 90 participants judged the premeditation of a perpetrator in eight real-world cases decided by the German Federal Court of Justice. Judgment accuracy was assessed in comparison with the Court’s ruling. Legal training increased judgment accuracy, but did not depend on the amount of information given. Furthermore, legal training corresponded with higher confidence. Interestingly, emotional reactions to the legal cases were stronger when more information was given for individuals without legal training but decreased for individuals with training. This interaction seems to be caused by fundamental differences in the way people construct their mental representations of the cases. We advance an information processing perspective to explain the observed differences in legal judgments and conclude with a discussion on the merits and problems of offering more information to lay people participating in legal decision making.

Lay participation in criminal trials, even if prescribed by the 1853 Argentine Constitution, was not established in the country until 2004, when the province of Cordoba created a mixed court to deal with cases of aberrant crimes and corruption. The article describes the initial experience with mixed courts in the metropolitan area of Great Cordoba, and in small cities of the province, in order to depict the impact of different social contexts on lay participation. The support for citizen participation in legal decision making, the responses to the introduction of the new mixed courts, and jury-judge agreement rates are some of the issues compared. The analysis uses data obtained in the sentences pronounced in the period 2005-2008, and interviews to lawyers, magistrates and common citizens who served as jurors, conducted both in metropolitan and town areas. Qualitative material gathered in the interviews is used also to explore the effect of lay participation in legal decision making in the construction of an identity as citizens.

Discussing factors that may make judicial opinions a minefield of misinformation, Seventh Circuit Judge Richard Posner hypothesizes . . . judges' knowledge of the world . . . relevant to legal decision making, derives to a significant degree from judicial opinions that, he suggests, may often be systematically unreliable sources of information. To test this hypothesis, Judge Posner urges academic commentators to expand their study of cases beyond judicial opinions . . . [and] get hold of the briefs and record to check the accuracy of the factual recitals in the opinion. Doing as Judge Posner proposes yields support for his hypothesis. The analysis also reveals that where a court's factual recitals do not comport with the underlying record, the negative effects can extend beyond the delivery of justice in the instant matter to denigrating subsequent case law and generating other adverse effects as well. After considering the antecedents and consequents of erroneous factual recitals, remedies are suggested for mitigating the problem.

According to Judge Richard Posner, judicial opinions may be a mine of misinformation, but this tends not to be recognized because rarely do "commentators get hold of the briefs and record to check the accuracy of the factual recitals in the opinion." By comparing several opinions with their underlying records, evidence is here adduced in support of Judge Posner's hypothesis. The practical import of such findings are described by Judge Posner: "All this would be of relatively little importance were it not that lawyers' and, particularly judges' knowledge of the world, or at least the slice of the world relevant to legal decision making, derives to a significant degree from judicial opinions." Given the multiplier effect generated by precedent, as increasing numbers of opinions (generally, unknowingly) come to rely on factually incorrect recitals provided in earlier opinions, the threat to the administration of justice becomes more widespread. This suggests the need for a system that would identify and make these errors known before their damaging impact becomes magnified.

This paper, written in reply to Professor Robert Prentice's forthcoming paper analyzing my skeptical approach to behavioral law and economics (Robert A. Prentice, Chicago Man, K-T Man, and the Future of Behavioral Law and Economics, 56 VAND. L. REV. (forthcoming 2003)), offers some additional thoughts in favor of a modest approach to revising the law's assumption of rationality, as compared to the bolder approach argued for by Professor Prentice. After discussing how the ambiguous nature of much of the evidence on human rationality may explain some of the differences between Professor Prentice and myself, I turn to the larger question of whether legal decision theorists describe behavior at too general a level to be useful in the formulation of legal policy. In particular, I discuss the tendency of legal decision theorists to speak in terms of "behavioral tendencies" and how this approach to behavioral description may impede the progress of behavioral law and economics. I contend that there has been too great an emphasis on finding and describing behavioral tendencies toward irrationality, without due regard for the boundary conditions on these supposed tendencies. As a result, much of the interesting and important information about the constraints on rational versus irrational behavior is consigned to ceteris paribus clauses and treated as "noise" that should be ignored and controlled rather than elucidated and understood.

To understand how people behave in an uncertain world - and to make viable recommendations about how the law should try to shape that behavior - legal scholars must employ a model or theory of decision making. Only with an understanding of how people are likely to respond to legal rules can legal scholars, judges, legislators, and regulators craft rules that are likely to encourage desirable behavior and discourage undesirable behavior. Rather than rely on rational choice theory, behavioral law and economics scholars (or legal decision theorists) have turned to Daniel Kahneman and Amos Tversky's "prospect theory" to inform their analyses of law and legal behavior. Prospect theory contains several empirical propositions relevant to legal analysis, but this paper focuses primarily on prospect theory's insight that people often make risk-averse choices when selecting between "gains" and risk-seeking choices when selecting between "losses." The paper surveys efforts in the legal literature to use this insight to inform the way legal scholars think about law and behavior in several doctrinal areas. The paper acknowledges some limitations associated with this work (e.g., external validity, differences in individual decision making, differences in group vs. individual decision making), but it concludes that prospect theory is nonetheless a valuable tool for legal scholars and policy makers.