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Scholarship

Mark G. Kelman Views Heuristic Reasoning Through the Legal Lens

New York City’s Special Services for Children agency was in the midst of a severe financial crisis in 1976, with shrinking resources and rising need. Mark Kelman, fresh out of law school, was the director of criminal justice projects for the Fund for the City of New York. One of his research projects looked at the effectiveness of the triaging system in place at Special Services for Children to direct resources to the most urgent cases. Kelman and his team logged data on thousands of child neglect and abuse cases from the agency’s files—looking at the types that were deemed most critical, the action that was taken, and the outcomes. They also looked at the assumptions made by the people working in the agency to determine their case prioritization to see if those assumptions held true. Turned out they didn’t—management had made the wrong assumptions about the children most in need of immediate action.

“The results were counterintuitive. Their intuitions about the children most at risk did not match the data at all. They were way off,” says Kelman, James C. Gaither Professor of Law and vice dean. “And they changed their triaging after our report showed them that.”

This early research confirmed for Kelman the importance of empirical analysis to good policy development. It also exposed serious flaws in “common sense”—demonstrating that our biases and assumptions can skew decision making. And when assumptions are left unchallenged, decisions taken—and policy enacted—can have important unintended consequences.

Not long after the New York City study, Kelman took a position at Stanford Law School—joining the faculty in 1977 just one year after his graduation from Harvard Law School. His third-year paper exploring the implications of his findings that people typically felt better off not when they gained access to more goods, but only when they had more than those around them or more than they used to have, which also touched on heuristics, had gained a lot of attention and opened the door to his academic career.Cover Illustration of Mark Kelman's book, The Heuristics of Debate

“I was concerned about environmental issues and issues of income inequality and so was looking at the correlation between consumption and happiness,” says Kelman of his law school paper. “The assumption we make that having more makes us happier is completely false after a certain point. I wondered whether we could get people to recognize that economic growth isn’t doing for them what they believe it will, at least among people who are already reasonably well off.”

At Stanford, Kelman quickly developed a reputation for interdisciplinary scholarship that applied social science approaches to diverse legal fields, including criminal law, taxation, administrative regulation, and disability. He also delved more deeply into heuristic reasoning—the process of arriving at judgments and decisions using shorthand cues rather than all of our calculating powers and available information. Whether this is a good way in which to make decisions is a source of debate—with the “heuristics and biases” school arguing that it’s not because people often use generally apt methods in situations in which they fail, and the “fast and frugal” school contending not only that the benefits of making quick decisions generally outweigh the costs but also that heuristics users typically outperform those who make more elaborate calculations.

Fifteen years ago, Kelman also collaborated with Stanford University psychologist Amos Tversky, a pioneer of cognitive science and a key figure in the discovery of systematic human cognitive bias and handling of risk, and, along with Yuval Rottenstreich (PhD ’96), they co-authored “Context-Dependence in Legal Decision Making” in 1996.

Kelman offers his expertise in both heuristic reasoning and law in his latest book The Heuristics Debate. Providing an overview and critique of the claims made about heuristics, as viewed through the legal scholar’s lens, Kelman points out its enormous implications on a range of important areas of life from jury instructions to ideal patterns of incarceration, to maximize deterrence, tax compliance, and more. The book lays out why lawyers, policymakers, and economists should know about this debate and how that knowledge might affect future research they conduct.

“Policy is frequently derived from unexamined ideas about how people think, how they process information, what information is processed, how they make value decisions, and how they make factual decisions,” says Kelman. “How people think is unbelievably important for ideas about the efficacy of different legal strategies.”

As to how this book, the first written about this subject specifically for lawyers and policymakers, will bring about positive change, Kelman sees it as an important starting point.

“It’s a spur to a form of research, of more narrow policy- relevant research. It may change the way in which a good deal of policy-relevant legal research is conducted,” says Kelman.

The Heuristics Debate was published in April 2011 by Oxford University Press, USA. SL

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