Group Report: What Is the Role of Heuristics in Making Law?

In making and applying law, many agents and institutions aim for some optimal solution, yet end up mired in complexity and inefficiency. Their decision-making processes may therefore be improved by the judicious use of simplifying heuristics. In this report we ex- amine some of the ways that heuristics might be used (and should not be used) in the cre- ation and application of laws and regulations. We begin by distinguishing m-heuristics (mental heuristics used by a person) from l-heuristics (legal heuristics as simplified procedures encoded into law). The human mind appears to be prepared by evolution to use certain m-heuristics when making moral judgments. To the extent that l-heuristics map onto m-heuristics, they are likely to be cognitively easy and to seem legitimate to many participants. We next examine the law- making process and the steps at which m- and l-heuristics might be used by specific agents. In the third section we take Roman law as a case study in which l-heuristics were widely and effectively employed. We consider the lessons of ancient Rome for modern law. In the fourth section we consider legal and moral objections to the use of heuristics, such as constitutional prohibitions on using factors such as age, sex, and race in decision making, or the need for explicit listings of reasons to allow for judicial review. In the fifth section, we examine the social and institutional factors that support or inhibit the effec- tiveness of heuristics. We conclude with suggestions for further research, including the question of how to explain and justify l-heuristics in ways that people will understand and accept.