Deciding Novel and Routine Cases without Evidence
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Peter Applegarth
Abstract
In novel cases, judges often weigh policy considerations based on common sense assumptions and personal experience about how certain individuals, groups and institutions behave. For example, in assessing the consequences of creating a new category of duty of care, a new immunity from suit or even a new tort, judges are invited to predict (or speculate about) how individuals, groups, professions and institutions would behave if the law was different. In routine cases, judges also rely on assumptions and experience in deciding questions of reasonableness and past hypothetical facts about causation. In deciding both novel and routine cases on the basis of assumptions and experience, judges are prone to cognitive biases that affect decision-making in general.
This article provides a Trans-Pacific and Commonwealth perspective on the business of judging by an Australian judge with ten years’ experience of sitting in trials and appeals in a State Supreme Court. Civil jury trials in Australian courts are exceptional, and typically are confined to defamation trials in which either party may elect for a jury.
© 2018 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Foreword
- Editor’s Introduction
- Articles
- Reflections of a Torts Teacher on the Bench
- Deciding Novel and Routine Cases without Evidence
- “Mending Wall” and Negligence: How a Poem can Inform the Common Law
- Evaluating Credibility of Witnesses – are We Instructing Jurors on Invalid Factors?
- Moral Outrage and Betrayal Aversion: The Psychology of Punitive Damages
Articles in the same Issue
- Frontmatter
- Foreword
- Editor’s Introduction
- Articles
- Reflections of a Torts Teacher on the Bench
- Deciding Novel and Routine Cases without Evidence
- “Mending Wall” and Negligence: How a Poem can Inform the Common Law
- Evaluating Credibility of Witnesses – are We Instructing Jurors on Invalid Factors?
- Moral Outrage and Betrayal Aversion: The Psychology of Punitive Damages
