NCJ Number
67150
Journal
Law and Human Behavior Volume: 3 Issue: 1-2 Dated: (1979) Pages: 21-38
Date Published
1979
Length
18 pages
Annotation
SERIOUS FLAWS EXIST IN THE SERIES OF EXPERIMENTAL STUDIES CONDUCTED BY PROFESSORS WALKER AND THIBAUT INVESTIGATING THE RELATIVE MERITS OF DIFFERENT PROCEDURAL SYSTEMS FOR LITIGATION.
Abstract
THREE PRIMARY WEAKNESSES ERODE THE EXPERIMENTAL DESIGN OF THEIR PARTICULAR EXPERIMENTS. NO BASIS IS SUGGESTED FOR THE USE OF DISTRIBUTION OF CONTROL AS THE BASIC VARIABLE FOR ASSESSING THE JUSTICE OF ALL FORMS OF LEGAL AND NONLEGAL DISPUTE RESOLUTION. NO EXPERIMENTAL SUPPORT IS FOUND FOR THE CLAIM THAT THE ADVERSARY SYSTEM IS THE MOST EFFECTIVE MEANS FOR DETERMINING TRUTH BECAUSE MORE FACTS WILL BE 'FERRETED OUT.' FINALLY, THIBAUT AND WALKER DO NOT SUCCEED IN EXPERIMENTALLY DEMONSTRATING THE SUPERIORITY OF THE ADVERSARY SYSTEM IN MODERATING PREEXISTING BIAS AMONG DECISIONMAKERS. A SECOND MAJOR CRITICISM OF WALKER AND THIBAUT'S WORK IS THAT TWO TYPES OF COST ASSOCIATED WITH THE ADVERSARY SYSTEM HAVE NOT BEEN CONSIDERED; I.E., THE COSTS TO THE SYSTEM ITSELF AND THE COSTS TO THE CLIENTS OF ADVERSARIAL SYSTEMS, INCLUDING THE MONETARY COSTS AND THE EFFECT PROCEEDINGS MAY HAVE ON THE RELATIONSHIP OF THE PARTIES TO A CASE. A THIRD MAJOR CRITICISM IS THAT CULTURAL AND SUBJECTIVE BIASES ARE APPARENT IN EXPERIEMENTS DESIGNED TO MEASURE TRANSNATIONAL NORMATIVE PREFERENCES FOR PROCEDURAL SYSTEMS. IT IS CONCLUDED THAT, ALTHOUGH EXPERIMENTAL RESEARCH INDICATING HOW PEOPLE FEEL ABOUT A LEGAL SYSTEM IS VALUABLE, OBJECTIVE MEASUREMENT OF THE INCIDENCE OF SUCH FEELINGS DOES NOT NECESSARILY REVEAL ANYTHING ABOUT THE OBJECTIVE QUALITIES OF THE SYSTEMS BEING CONSIDERED. REFERENCES ARE PROVIDED. (DEG)