HCA Jurimetrics

'Judicial Ideology in the Absence of Rights: Evidence from Australia' by Zoe Robinson, Patrick Leslie and Jill Sheppard comments 

This article investigates whether apex court judges behave ideologically in cases not involving civil, political, or economic rights. Research on comparative judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior is outside of rights-based issues. The study contributes to existing research by exploring the predictive effect of judicial ideology on the entire corpus of judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology based and uses original data on every decision by Australian High Court Justices between 1995 and 2018 to test whether, and in which types of cases, the votes of Australia’s apex court judges align with their ideology. The results show a strong relationship between ideology and voting behavior, regardless of policy area, suggesting that judicial policy preferences will inevitably find an outlet, even in the absence of authority over rights.

Suppression

'Debunking the myth: why Victoria is not the suppression order 'capital' of Australia' by Jason Bosland in (2020) 24 Media and Arts Law Review incisively unpacks received wisdom regarding suppression orders, building on Bosland's Sydney Law Review article noted elsewhere in this blog (and in NSW Law Journal noted here).

The new piece argues that Victoria’s reputation as the nation's 'suppression order capital' is attributable ironically, as an unfortunate consequence of the Victorian courts being more transparent regarding levels of suppression than courts in other jurisdictions'. Bosland notes concerns regarding reliance on very incomplete data compiled by News Corp, with figures derived from the number of orders notified to media organisations (whether via email or directly to journalists present in court) rather than the number of orders actually made.

 The article notes that the NSW Supreme Court issued over 50% more suppression orders than the Victorian Supreme Court and that scrutiny of NSW lower courts is difficult because order notifications are rare and registries do not keep track of the numbers.

Importantly the article argues that the 'Suppression Capital' meme does not account for the variety in the types of orders that can be made, noting that a significant number of Victorian orders are made under statutory powers designed to deal with specific contexts, such as details of post-custodial sex offenders, or the names of people found not guilty by reason of mental illness. Courts elsewhere lack the specific statutory powers. Bosland accordingly notes that data should account for the fact that not all orders represent courts' 'general' approach to suppression; some instead respond to specific interventions by Parliament.

In a cogent examination of jurimetrics Bosland notes that jurisdictional 'rankings' do not account for significant differences in caseloads (consistent with differences in population). He argues that if judicial officers serve as a proxy for caseload, Victorian judges made an average of 1.5 general power suppression orders per judge, compared to 2.2 in Western Australia and 2.3 in South Australia. In a more restricted comparison between the NSW and Victorian Supreme Courts, the NSW supremes made 1.84 orders per judge and the Victorians made 1.36 orders per judge.

Jules O’Donnell, whose tweets drew my attention to the Bosland piece, astutely comments

 it seems to me that if you took the most hawkish approach to Bosland's analysis, your conclusion would still be: 'we can't be sure which State or Territory is the suppression capital of Australia, but we know Victorian courts and tribunals are the most transparent'.

Privacy Publics and Suppression Order Jurimetrics

'The Public Information Fallacy' by Woodrow Hartzog comments 

The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.

In this article, I argue that the “no privacy in public” justification is misguided because nobody even knows what “public” even means. It has no set definition in law or policy. This means that appeals to the public nature of information and contexts in order to justify data and surveillance practices is often just guesswork. There are at least three different ways to conceptualize public information: descriptively, negatively, or by designation. For example, is the criteria for determining publicness whether it was hypothetically accessible to anyone? Or is public information anything that’s controlled, designated, or released by state actors? Or maybe what’s public is simply everything that’s “not private?”

If the concept of “public” is going to shape people’s social and legal obligations, its meaning should not be assumed. Law and society must recognize that labeling something as public is both consequential and value-laden. To move forward, we should focus the values we want to serve, the relationships and outcomes we want to foster, and the problems we want to avoid.

'Two Years of Suppression under the Open Courts Act 2013 (Vic)' by Jason Bosland in (2017) 39(1) Sydney Law Review 25 comments

The Open Courts Act 2013 (Vic) (‘OC Act’) was introduced in response to concerns that suppression orders were granted too frequently by the Victorian courts and that problems often existed in relation to the breadth, clarity and duration of such orders. Some of these concerns were verified in a 2013 study of all suppression orders made in Victoria between 2008 and 2012. In order to assess the impact of the OC Act, this article presents the findings of a follow-up empirical study of suppression orders made by the Victorian courts in the two years following the commencement of the OC Act on the 1 December 2013. The main results show that there has been no notable reduction in the overall number of suppression orders since that time and that the OC Act has led to no improvements in terms of the scope and clarity of orders. Furthermore, while the data demonstrates a significant reduction in orders being made without sufficient end dates, it is also found that the County and Magistrates’ courts frequently make orders that they do not have the power to make.

Bosland argues that the Act followed

ongoing concerns that the use of suppression orders by the courts in that state was placing the fundamental principle of open justice in jeopardy.The media, in particular, claimed that too many suppression orders were being made in Victoria compared to other jurisdictions in Australia and that this was undermining the usual open justice rule that the media, other than in exceptional circumstances, should be unrestrained in providing fair and accurate reports of proceedings conducted in open court. The supposedly large number of suppression orders was said to be the result of orders being made on grounds not justified according to the strict requirements of the law, a view echoed by others, including the Honourable Philip Cummins, a retired Justice of the Supreme Court of Victoria.  In the period prior to the OC Act, for example, Cummins claimed that orders were often made on ‘therapeutic, prophylactic or prudential grounds falling short of the true ground of necessity’ required by the law and that many orders were superfluous due to existing restraints on publication. Alongside these concerns, problems were also said to exist in relation to the drafting of orders, with claims that many were imprecise and overly broad in scope, and often contained insufficient limitations as to their duration. These latter concerns were confirmed by this author (with Bagnall) in an empirical study of all suppression orders made by the Victorian courts between 2008 and 2012 (‘2013 Study’). However, it should be emphasised that no attempt was made in that study to assess whether allegations of unjustified orders were well founded or not. 

The OC Act, which was shaped, in part, by reference to the results of the 2013 Study, was introduced specifically to address the problems identified above. However, with a few notable exceptions set out in Part II of this article, it does so mainly by codifying and clarifying the pre-existing law, rather than by implementing substantive changes to the law of suppression. Indeed, this is consistent with the findings of the 2013 Study that the problems with suppression orders in Victoria were not the result of deficiencies in the substantive law; rather, they rested with the application of the law and with judicial practice. The main benefit of the OC Act, therefore, is in the reinforcement of the existing legal principles by placing them on a firm and accessible statutory footing. But, while the primary goal of introducing the OC Act was to modify judicial behaviour as a means of enhancing openness and accountability, there have been recent claims of little change in the overall number of suppression orders issued by the Victorian courts. On 9 November 2016, the Attorney-General of Victoria announced the appointment of the Honourable Frank Vincent, former Justice of the Victorian Court of Appeal, to conduct a review into the operation of the OC Act. 

This article contributes to the assessment of the impact of the OC Act by presenting the findings of a follow-up empirical study of suppression orders made by the Victorian courts under the OC Act in the two years following its commencement on 1 December 2013. Using the results of the 2013 Study as a baseline, this new research assesses the effectiveness of the OC Act in relation not only to the number of suppression orders being made by the various courts, but also — and perhaps more importantly — to whether it has resulted in improvements in the drafting of orders in terms of their scope, clarity and duration. 

Part II of this article provides an overview of the key reforms introduced by the OC Act. Part III sets out the results of the present study and compares them with the results of the 2013 Study. The main findings are that there has been no significant overall reduction in the rate of suppression (that is, the number of suppression orders issued) following the introduction of the OC Act and that there have been no improvements in terms of the breadth and clarity of orders. Furthermore, while there has been a significant reduction in the proportion of orders made without specified end dates, it is also found that the County and Magistrates’ courts often made orders that they did not have the power to make and that all courts frequently failed to comply with the basic drafting requirements expressly mandated in the OC Act. In light of these results, Part IV provides some comments on the rate of suppression in Victoria, examines why many of the issues identified with suppression orders in the 2013 Study continue unabated under the OC Act, and considers what might be done to ensure greater compliance with the OC Act in the future. h

Jurimetrics

'Judging the Judiciary by the Numbers: Empirical Research on Judges' by  Jeffrey J. Rachlinski and Andrew J. Wistrich in (2017) 13 Annual Review of Law and Social Science asks

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.

The authors comment

Judges are the axle on which the wheels of justice turn. They manage pretrial proceedings, mediate settlement conferences, rule on motions, conduct bench trials, supervise jury trials, take guilty pleas, impose criminal sentences, and resolve appeals. In the process, they find facts, make or apply law, and exercise discretion. Judges wield enormous power and society therefore rightly expects much of them. Judges must be fair minded, impartial, patient, wise, efficient, and intelligent (Wistrich, 2010). They must set aside their politics and their prejudices, make rational decisions, and follow the law. (See, e.g., American Bar Association, Model Code of Judicial Conduct, 2011, Rules 1.1, 1.2, 2.2, 2.3, 2.4, 2.5, 2.8). But is it possible for judges to perform as we expect?

The answer to this question remains somewhat uncertain. Twenty years ago, Lawrence Baum (1997, p. 149) concluded, “Despite all the progress that scholars have made, progress that is accelerating today, we are a long way from achieving truly satisfying explanations of judicial behavior.” Much more research has been conducted since then, but judicial behavior still remains something of a mystery. Some scholars argue that judges behave rationally but make decisions that further their self-interest ( Epstein et al. 2013). That assertion, however, raises as many questions as it answers: What do judges see as their self-interest? Are fairness and impartiality their primary goals? What incentives do judges really face? After all, they rarely lose their positions and seldom get promoted. And even if judges primarily strive for fairness and impartiality, do they achieve these goals?

Research on human judgment and choice indicates that most people face cognitive limitations that lead them to make choices that do not consistently further their own ends (Ariely 2009). People commonly rely on intuition and simple shortcuts (or  heuristics) to make choices (Kahneman 2011). Heuristics can be effective and surprisingly accurate (Gigerenzer and Todd 1999), but can also lead to predictable mistakes when over-applied or misused. These problems plague professionals as well. Research on doctors, dentists, accountants, futures traders, and others shows that they all fail to live up to an idealized standard of judgment in many settings ( Ariely 2009). It would be surprising if judges are any different.

The available research on judges suggests that they sometimes f all short of the lofty ideal to which society holds them. A growing body of research supports the conclusion that although judges are often excellent decision makers, they have vulnerabilities. At the outset, we know that in some areas of law, judicial decisions are too chaotic. A study of immigration asylum decisions, for example, reveals that some judges grant asylum in a high percentage of cases while others almost never grant asylum (Ramji-Nogales et al. 2007). Asylum outcomes thus turn on the random assignment of a case to one judge or another. Decisions concerning whether to grant leave to appeal or to allow release on bond in immigration cases are similarly erratic ( Rehaag 2012; Ryo, 2016). Concerns about variation in conviction rates have also long haunted criminal law (Weisselberg and Dunworth, 1993). Even in criminal sentencing decisions in federal court, in which a highly structured set of guidelines cons trains judges, variation remains robust ( Scott 2011). Judges do not seem to decide as reliably as might be hoped or expected. Worse still, the variation does not just arise from chaos or a lack of meaningful standards, it arises from systematic vulnerabilities in how judges think.

This article surveys the empirical research that assesses whether judges live up to the standards of their profession. The evidence accumulated to date reveals that judges fall short in predictable ways. First, as the legal realists feared, judges’ personal characteristics influence their decision making. Specifically, the research indicates that when cases raise issues that are salient to judges’ personal characteristics, they do not consistently put their characteristics aside. Second, judges overreact to mechanisms of accountability, such as appellate review, retention, and promotion. Third, judges rely too heavily on intuitive ways of thinking that can be misleading. Fourth, in making decisions, judges sometimes rely on factors outside the record, including inadmissible evidence, their emotional reactions, and prejudices.

To be fair to judges, they labor under a great deal of academic scrutiny. The existing research on judicial decision making probably focuses too heavily on judicial failings. Scholars conduct their research with an eye towards showing that judges are politically motivated or biased. This is understandable, given the ideal of neutral judging that society expects from judges, but the emphasis on deviations likely makes judges seem worse than they are. The research includes several studies in which judges adhere to an ideal norm of neutrality, and we certainly include these in our review. No studies really provide usable estimates of how many cases are skewed by politics, prejudice, or other misjudgment, and the research does not support a means of making a reasonable estimate. The circumstances under which judges deviate from the norm are nevertheless worth exploring, not to make judges look bad, but to identify potential ways they might improve.

In reaching our conclusions, we review a diverse array of both experimental and field studies of judicial decision making. We set aside judges’ autobiographies and biographies, interviews of judges, careful parsing of individual opinions, and judges’ own accounts of how they make decisions. Such undertakings can provide valuable insights, but our focus lies on systematic empirical accounts of judicial decision making. These include archival studies of actual decisions and experiments or simulations using hypothetical cases. Although most research on judges emphasizes decisions of the US Supreme Court (especially since the Second World War), our focus lies with the state courts, lower federal courts, and a handful of international studies. Although the US Supreme Court is important, of course, it resolves few cases and represents only a tiny window into the judicial decision-making process. Each of the studies we incorporate into our analysis involves vastly more judges than the 39 people who have served on the Supreme Court in the last 70 years. The focus on the Supreme Court also tends to emphasize the role of politics in judging. Political influence is only one way judges can fail to meet the demands of their roles. We discuss this concern but expand upon it.

In New Zealand The Wheels of Justice: Understanding the Pace of Civil High Court Case by Bridgette Toy-Cronin, Bridget Irvine, Kayla Stewart and Mark Henaghan comments 

Delays in the court process are a key obstacle in accessing justice. Delay creates costs; not only in the loss of time but also financial and psychological costs. These costs are borne by the litigants, the economy, and the public purse. This is the first major New Zealand study to investigate the pace of High Court civil cases and to examine if, and where, delays might occur. 

In this report, we look at both the overall length of cases, and we focus on various points in the life of a case where delay might occur. We have used mixed methods to study these issues: a quantitative analysis of data provided by the Ministry of Justice, an analysis of physical court files, and interviews with lawyers, judges, court staff, and litigants. 

Determining the overall length of a case is a more complex task than it appears on its face, particularly as there are limitations to the data recorded by the Ministry of Justice. Where possible, we have used our analysis of the physical court files to overcome these limitations and evaluate case length. On average, a case filed in the High Court will conclude within 191.5 days. General proceedings, one of the types of civil proceedings heard by the High Court, frequently exceeded the average case length, taking an average of 381 days to conclude. As general proceedings were the longest class of cases and account for 29 per cent of the High Court’s total caseload, the report focuses on this case type. Study participants agreed that most general proceedings should not exceed two years; only 18 per cent of general proceedings exceeded this limit. 

Analysing case length alone, however, cannot answer all questions about delay. Delay can occur in extremely short cases; conversely, for some very long cases the passage of time could not be conceived as delay. In fact, we précised several long cases that had no evidence of delay. These included cases that were ‘parked’ for various reasons: waiting for a related case to be resolved, an appeal to be heard, remedial work to be undertaken, or a settlement negotiated. Some cases just needed more time to be ready for trial, especially cases involving multiple parties, or with complex evidentiary issues. While lengthy, these cases were not necessarily delayed. 

Other cases – long and short – exhibited evidence of delay. Interviews with the participants helped to tease out the nature of this delay. The lack of judicial time to promptly hear fixtures (interlocutory and substantive) and deliver judgments was of particular concern. The unavailability of litigation participants, especially experts, also slows the pace of a case. Errors by registry were also evident; while rare, these errors can delay case progression. Finally, litigation involves a range of participants: litigants, lawyers, witnesses, court staff, and judges. The behaviours of any of these participants in the process can affect pace. For example, litigants, whether represented or unrepresented, can create delay for strategic reasons; lawyers preparing court documents late or to a poor standard can create delay. We canvas the interplay between these litigation participants and consider how these relationships can affect pace. 

When considering solutions to the causes of delay the fundamental purposes of the court must be kept to the fore: to secure just outcomes between parties, publicly state the law, reinforce norms, and limit executive power. The court is a complex organisation. There are many participants who each respond to their own pressures and incentives. Any solutions must take into account this complexity. Proposed reforms should be carefully considered and approached cautiously. 

Before firm recommendations can be made, further analysis of this data is required. A number of possibilities, however, have emerged at this preliminary stage. Many of these reforms centre on the case management process, including: earlier identification of issues in dispute, greater inclusion of litigants earlier in the process, improving the timing and methods of eliciting witness evidence, considering judicial specialisation, and setting firm timetables. Another key area for further research is initiatives to lower or better plan the cost of legal representation, which has a close but complex relationship with the pace of litigation. Other possible reforms focus on the court’s broader operations, including: protecting judgment writing time, and maximising the advantages that can be harnessed from modern technology. There is an urgent need to improve data about who uses our courts, whether or not they are represented, and how their cases proceed. Without this information, we are unable to design a civil justice system that responds to the needs of those using the court and that protects its important public function.

Jurimetrics

A major report - Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: An Empirical Study - by Jane Goodman-Delahunty and Annie Cossins for the Royal Commission into Institutional Responses to Child Sexual Abuse considers 

the extent to which joint trials with cross-admissible tendency evidence infringed defendants’ rights, and the extent to which joint trials posed a risk of unfair prejudice to the defendant. In particular, we investigated the reasoning processes of juries in a simulated joint trial of sex offences involving three complainants versus a separate trial involving a single complainant.

The authors state that

Our jury deliberation and reasoning study investigated these issues by presenting 10 different versions of a videotaped trial involving the same core evidence to a total of 1,029 jury-eligible mock jurors. The study tested the impact of evidence strength, the number of charges and the presence of specific judicial directions on jury decision-making in joint versus separate trials.

The five key aims of the project were to:

1. document juries’ interpretation of cross-admissible evidence in a joint child sexual abuse trial, to determine the extent to which juries engage in impermissible reasoning regarding such evidence 

2. compare the above decision-making processes with those of juries in a separate trial involving the same defendant 

3. compare trial outcomes (acquittal, conviction or hung jury) in a joint versus separate trial involving the same defendant 

4. examine the relationship between jurors’ misconceptions about child sexual abuse, jury deliberations and decisions, and trial outcomes 

5. determine the effect of question trail use on juries’ reasoning and decisions.

Previous research

The research identified three types of potentially unfairly prejudicial reasoning in cases of joinder: (a) inter-case conflation of the evidence; (b) accumulation prejudice through accumulation of counts or witnesses; and (c) character prejudice. Past studies yielded a ‘joinder effect’ in the form of increased conviction rates when at least three similar crimes were joined in a single trial compared to when separate trials were held for these offences. No prior experimental studies of joinder examined jury decisions in cases of child sexual abuse. Past research focused almost exclusively on conviction rates and failed to distinguish logically related permissible reasoning on the one hand, from logically unrelated and impermissible uses of the evidence in joint trials on the other. Whether observed joinder effects were due to permissible or impermissible and unfairly prejudicial reasoning remains unknown.

The jury deliberation and reasoning study

To address methodological limitations of previous research, and provide empirical evidence on the issues raised by tendency evidence, we used an experimental jury simulation approach to examine the relationship between jury decision making and trial outcomes in a joint trial of alleged child sexual abuse. The trial type was one of four variations: (a) Separate trial with an adult male complainant with moderately strong evidence (a basic separate trial) (b) Separate trial with an adult male complainant with moderately strong evidence, in which relationship evidence about the defendant’s uncharged sexual acts and grooming behaviours was presented (a relationship evidence trial) (c) Separate trial with an adult male complainant with moderately strong evidence, in which tendency evidence from two prosecution witnesses was admitted (a tendency evidence trial) (d) A joint trial involving the same defendant and three adult male complainants, who gave weak, strong and moderately strong evidence, respectively (a joint trial).

Judicial directions were defined as one of five variations: (a) Standard jury directions (b) Standard jury directions plus a context evidence direction (c) Standard jury directions plus a context evidence direction with a question trail (d) Standard jury directions plus a tendency evidence direction (e) Standard jury directions plus a tendency evidence direction with a question trail.

A total of 1,029 mock jurors – 580 women and 449 men aged between 18 and 82 years – were randomly allocated to one of 90 juries to view an experimental trial and deliberate to a verdict with fellow jurors.

Key findings – Chapter 4

Part 4.1: The influence of mock jurors’ pre-trial expectations and attitudes

The first step in the analysis was to assess individual mock jurors’ pre-trial expectations and attitudes. The aim was to examine the contribution of their individual differences to jury reasoning and decision making, and ensure that observed differences in responses to the trials were the result of changes in the trial information and not due to pre-existing differences in the mock jurors assigned to any particular trial group. The results show that the more mock jurors knew about child sexual abuse, the less likely they were to endorse other types of pre-trial bias. Accurate recall of the case facts was higher among mock jurors with more accurate knowledge about child sexual abuse, and lower among those with high expectations of forensic evidence being presented at trial. Mock jurors with higher educational achievement were less likely to expect forensic evidence at trial. Mock jurors who were more knowledgeable about factors that influence a complainant’s reports of child sexual abuse – and who favoured the prosecution – rated the complainant as more credible.

Part 4.2: The influence of the trial type on jury reasoning and verdicts

The study compares jury reasoning and decisions across four different types of trials: a basic separate trial, a relationship evidence trial, a tendency evidence trial and a joint trial. These analyses are based on individual mock juror responses to a written questionnaire completed at the conclusion of their jury deliberations. The purpose of these quantitative analyses is to explore whether there was a ‘joinder’ effect and whether the verdicts were motivated by permissible or impermissible reasoning.

Was there a joinder effect?

As more inculpatory evidence against the defendant was added to the trials, conviction rates for both non-penetrative and penetrative offences against the focal complainant increased. Conviction rates in separate trials with relationship evidence and tendency evidence were significantly higher than those in the basic separate trial. However, there were no significant differences between conviction rates in the tendency evidence trial compared to the joint trial. Thus, we did not identify a joinder effect.

The findings demonstrated that increases in the culpability of the defendant and the credibility of the focal complainant were most prominent in response to sources of evidence that were independent of the focal complainant, and did not increase merely when more evidence was added or the claims were presented in a joint trial. In deliberations about the basic separate and relationship evidence trial, mock jurors were more likely to express the view that the evidence was unpersuasive because it was simply one person’s word against that of another.

A major finding was that as more independent sources of evidence were introduced to support the focal complainant’s account, the complainant’s credibility increased, he was perceived as more convincing and his evidence was accorded more weight. Thus, there were no significant differences in the assessed credibility of the focal complainant in the basic separate trial versus the relationship evidence trial, although the addition of the relationship evidence increased the plausibility of the complainant’s account and his evidence was rated as significantly more convincing. In line with this finding, mock jurors were more likely to blame the complainant in the basic separate trial than in any other type of trial. Similarly, ratings of the defendant’s sexual interest in boys, inferences about his criminal intent and the factual culpability of the defendant were lowest in the basic separate trial and increased significantly in the tendency evidence and joint trials; that is, as more inculpatory evidence against the defendant was admitted.

Jury deliberations significantly increased ratings of the defendant’s criminal intent and factual culpability in trials that involved relationship and tendency evidence. The inferred criminal intent of the defendant predicted the verdict at both juror and jury levels, irrespective of the type of offence. In the absence of tendency evidence, juries were more reluctant to convict for the more serious penetrative offences. Jury distinctions between penetrative and non- penetrative offences confirmed that they reasoned separately about the counts, making distinctions between the counts relating to the same complainant. The presence of tendency evidence increased convictions for both the non-penetrative and penetrative offences, in both separate and joint trials.

Were juries in joint trials more susceptible to inter-case conflation of the evidence?

We tested mock jurors’ recall accuracy by asking multiple-choice questions about the case of the focal complainant. Results showed that trial complexity, not trial type, predicted the accuracy of factual recall. Accuracy on these questions was greatest in the less complex trials where only two witnesses appeared for the prosecution (an average of three errors), and decreased as more witnesses appeared for the prosecution, in both the tendency evidence and joint trials (an average of four errors). Mock jurors’ formal education had no effect on their factual recall accuracy. Across all juries, individual mock jurors who made fewer errors on the multiple-choice questions were more prone to acquit, and individual mock jurors who made more errors were more prone to convict, but this was unrelated to the type of trial.

Part 4.3: Jury reasoning by type of trial

To supplement the quantitative analyses reported in Part 2, we conducted a series of additional analyses using other sources of data to gain further insight into jury reasoning and decision making. Results reported in this section are drawn from quantitative and qualitative analyses of the content of the jury deliberations; open-ended responses by individual mock jurors about the main reasons for their verdicts; and a case study of jury reasoning in joint trials. These analyses focused on the prevalence of impermissible reasoning and jury susceptibility to unfair prejudice against the defendant. Contrary to expectations, juries in this study were not prone to impermissible reasoning and made very few factual errors. Most errors were corrected in jury deliberations.

The prevalence of impermissible reasoning in jury deliberations

A quantitative analysis of the content of jury deliberations in which all statements that might indicate unfair prejudice against the defendant were coded revealed that impermissible reasoning was rare, and when it might have occurred, it was more likely in the separate trials without tendency evidence than in the trials with tendency evidence.

We found a low rate of factual errors in jury deliberations; only 7.7 per cent of juries made more than two factual errors. Two or more factual errors were more likely to occur in jury deliberations about the joint trial; that is, the trial with the most complex evidence. When errors were made, the vast majority were corrected in the course of deliberations, demonstrating the ability of jury groups to self-correct. None of the 90 jury verdicts were based on inter-case conflation of the evidence.

We found no evidence of emotional or illogical reasoning by juries in any of the trials in which tendency evidence was admitted. We found only two jurors who appeared to use a lower standard of proof than the criminal standard, and only two jurors whose verdicts were driven by emotion. None of the juries featured a juror who reasoned illogically about the evidence.

A qualitative analysis of individual mock jurors’ main reasons for their verdict revealed that 90 per cent of the decisions to convict were based on the consistency of evidence from multiple witnesses, the credibility of the witnesses and the pattern of grooming behaviour engaged in by the defendant. Reasons that might indicate character prejudice as a reason for conviction were less than 3 per cent. These findings were supplemented by a qualitative thematic analysis of jury deliberations about the focal complainant in 33 joint trials, which did not uncover any conviction based on character prejudice.

Overall, our analyses of the reasons for decisions to convict provided negligible support for the notion that joint trials produce verdicts based on inter-case conflation of the evidence, character prejudice or accumulation prejudice. As instructed by the trial judge, mock jurors used their common knowledge and experience of the world in understanding the behaviours of the complainants and the defendant. Together, these findings provided no support for the hypothesis that joint trials lead to impermissible reasoning.

Part 4.4: Were juries in joint trials susceptible to accumulation prejudice?

This section tests the hypothesis that juries in a joint trial use the overall number of charges or witnesses to determine the guilt of the defendant. The results provid no support for the hypothesis that impermissible reasoning was triggered by accumulation of the counts or witnesses against the defendant. This conclusion was based on separate statistical analyses conducted on the accumulation of counts and accumulation of witnesses. Together, convergent results of quantitative and qualitative analyses on each issue confirmed that jurors and juries made logical and appropriate distinctions between the same types of offence alleged by different complainants, based on the strength of the evidence.

The findings demonstrate that the culpability of the defendant was predicted by mock jurors’ assessments of the credibility of the complainants, not the overall number of counts and witnesses. We found no reliance on reasoning by accumulation in a joint trial, as there was no significant increase in conviction rates or in the defendant’s factual culpability for allegations by the focal complainant in trials with six counts versus those with two counts.

Similarly, the addition of two prosecution witnesses in a joint trial did not increase conviction rates and, most notably, did not elevate the conviction rate for the complainant with the weak claim. In addition, mock juror ratings of victim blame did not vary in response to increases in the number of Crown witnesses, as might be expected if jurors were improperly accumulating the evidence. Rather, victim blame was predicted by individual mock jurors’ misconceptions about child sexual abuse. Results of coding the content of the jury deliberations revealed no impermissible reasoning or reduction in the onus of proof in trials with more counts. As juries were exposed to more witnesses and their cognitive load increased, they made more factual errors, but there were no observed differences in uncorrected or persistent errors across trials; that is, the results in separate and joint trials were similar. A case study of deliberations in a joint trial showed that juries in trials with six counts devoted most available deliberation time to the weak claim where the disparities in evidence were greatest, controverting the view that juries would gloss over these differences in a joint trial. A further case study of deliberations in a joint trial confirmed that no jury decision to convict or acquit was based on impermissible reasoning about the tendency evidence.

Part 4.5: The influence of jury directions on jury reasoning and decision making

In this section we examine whether there was support for judicial assumptions about the effectiveness of jury directions in reducing impermissible reasoning. As was noted above, we did not find that mock jury verdicts were based on impermissible reasoning. Nonetheless, we compared jury reasoning with and without specific jury directions provided to jurors in the relationship evidence trial regarding the uses of context evidence, and with and without specific jury directions on the uses of tendency evidence, provided to juries in the tendency evidence and joint trials. In addition, following the jury deliberations, we asked mock jurors a series of questions about how helpful the directions were.

The findings in this study are in line with a large body of empirical research demonstrating the ineffectiveness of most jury directions. Systematic statistical comparisons of jury reasoning and decisions in the relationship evidence trial, tendency evidence trial and joint trial accompanied by standard directions (on the one hand) and specific directions on the uses of relationship evidence and tendency evidence (on the other) yielded few differences. Overall, the relationship evidence direction was more effective than the tendency evidence direction, which produced no apparent benefits, irrespective of whether it was provided in a separate or a joint trial. Analyses of the content of jury deliberations revealed that error rates in using the context evidence and the tendency evidence were unaffected by the presence of these directions. More deliberation time was devoted to discussing ‘beyond reasonable doubt’ when standard jury directions were given than when juries received tendency directions.

The context evidence direction helped juries overcome their reluctance to convict for the penetrative offence, but the rate of conviction by juries for the non-penetrative offence was unaffected, although factual culpability ratings on both counts increased significantly in the presence of the context evidence direction. Consistent with the findings reported in Part 4.2, conviction rates were predicted by the convincingness of the complainant, irrespective of the presence of the direction on context evidence. In addition, convictions for penetrative offences in trials with tendency evidence were predicted by higher child sexual abuse knowledge on the part of individual jurors, not the jury directions. In both separate and joint trials with tendency evidence, the judge’s tendency evidence direction had no significant influence on the verdict, inferred criminal intent or the factual culpability of the defendant.

Self-report measures provided by mock jurors following their deliberations revealed that mock jurors who received context directions as opposed to the standard directions perceived the judge’s instructions as more confusing; found it more difficult to assess witness credibility and apply the law; reported a higher cognitive load; and felt that the judicial instructions made it harder to understand the charges, recall the facts, weigh the evidence and assess the case for the prosecution. Similarly, compared to the standard directions, mock jurors rated tendency evidence directions as more difficult to understand, and perceived that these directions increased their cognitive load. However, mock jurors rated the charges as easier to understand when they were given tendency evidence directions in a joint trial than when they were not given these directions.

Part 4.6: The influence of question trails on jury reasoning and decision making

In this section, we examine the influence of a question trail on jury reasoning and decision making, to discern whether this assisted the juries in their deliberations. Overall, using a question trail appeared to increase the efficiency of jury decision making. The main finding was that using a question trail reduced the overall duration of deliberation in relationship evidence trials, where deliberations persisted far longer in the absence of a question trail. Mock jurors who used a question trail reported that they required significantly less cognitive effort to reach a unanimous verdict than was the case among those who deliberated without this aid.

The question trail had no influence on mock jurors’ memory of the case facts. Separate analyses conducted on the relationship evidence trial showed that with the aid of a question trail, the defendant was rated significantly less factually culpable, and accordingly, the conviction rate for both the penetrative and the non-penetrative offences declined. Content analysis of deliberations in those trials revealed that with a question trail, a significantly greater proportion of deliberation time was devoted to discussing the counts and the judge’s instructions. When given a question trail, the mock jurors perceived that they required less cognitive effort to evaluate the defence case. This difference may account for the observed verdict shift from hung juries to acquittals.

Separate analyses conducted on the joint trial revealed that a question trail had no significant influence on the defendant’s factual culpability or on conviction rates, regardless of the evidence strength or offence type. However, mock juries reported significantly more difficulty in understanding the charges in a joint trial when given a question trail than when deliberating without one.

Part 4.7: Self-reported cognitive effort by type of trial

In this project, the complexity of the four types of trials varied. Accordingly, the cognitive load imposed on the mock jurors varied by trial type, and was greater in the tendency evidence and joint trials than in the basic separate and relationship evidence trials. Following their deliberations, all mock jurors responded to a series of questions about the extent of effort they had expended in reasoning about the case and coming to a verdict. To gain further insight into mock jury reasoning and decision making, in this section we present the results of mock jurors’ self-reports about the difficulty of their tasks, by trial type. As might be expected, mock jurors perceived that recalling the case facts was significantly more demanding in the tendency evidence trial than the basic separate trial, and that understanding jury instructions was more difficult in the joint trial than in the basic separate trial. Mock jurors reported that it required more effort to understand the charges as more inculpatory evidence was admitted.

Unexpectedly, mock jurors perceived that significantly more cognitive effort was required in the separate trial with relationship evidence and the tendency evidence trial than in a basic separate trial, while the joint and basic separate trials were perceived as requiring equivalent effort. The same pattern held for the tasks of assessing witness credibility, weighing the evidence, and evaluating the case for the prosecution and defence. Mock jurors rated reaching a unanimous verdict as significantly more difficult in the relationship evidence trial than in the basic separate trial. They rated deliberation in the relationship evidence and joint trials as more useful in understanding the case than in basic separate trials and in tendency evidence trials. Finally, mock jurors reported that deliberation significantly increased their confidence in the verdict reached.

Part 4.8: Fairness of the trial

A primary concern when considering the use of separate versus joint trials in child sexual abuse cases is the fairness of the trial to the defendant. In this section, we present a series of analyses that assess the perceptions of juries of the fairness of the trial, by type of trial. These analyses draw on mock jurors’ post-trial responses to a range of questions about the fairness of the trial, their expectation that they would be informed of any prior offending by the defendant, and the threshold they applied in interpreting the standard ‘beyond reasonable doubt’. In addition, we draw on some coding of the content of jury deliberations.

The main outcome of these analyses is a series of convergent findings showing that mock jurors rated the joint trial as more fair to the defendant than the basic separate trial. As we expected, mock jurors inferred more criminal intent on the part of the defendant as more inculpatory evidence was admitted in the different types of trials, and intent was rated as equivalent in the tendency evidence and joint trials. These ratings show that mock jurors made a logical analysis of the inculpatory evidence presented in the different types of trials. Other results are unexpected. First among them is the finding that mock jurors viewed the basic separate trial as significantly less fair to the defendant than trials that included more inculpatory evidence. Secondly, the defendant was rated as significantly less convincing in the separate trial with relationship evidence than in the joint trial with tendency evidence. Similarly, the mock jurors perceived the instructions from the judge as significantly less fair to the defendant in the basic separate trial than in the joint trial. A fourth measure that reflected an unexpected difference compared to what might be anticipated was the mock jurors’ interpretation of the threshold ‘beyond reasonable doubt’ applied to convict the defendant. In the basic separate trial, the threshold applied was significantly lower (85.2 per cent) than that in the joint trial (92.1 per cent).

Finally, with respect to information about prior offending by the defendant, a substantial proportion (three-fifths) of the mock jurors expected that they would have been informed at trial of any prior child sexual abuse incidents, charges or convictions involving the defendant. Significantly more mock jurors who attended a separate trial believed that if other charges had been made against the defendant, they would have been informed. In the course of jury deliberation, our content analysis reveals that concern about prior allegations against the defendant were rarely expressed, and no significant relationship existed between trial type and comments made by mock jurors that they would or would not have been informed of prior allegations of sexual misconduct.

Discussion – Chapter 5

Part 5.1: Was there a joinder effect?

As expected, we found that conviction rates varied according to the strength of the inculpatory evidence presented at each type of trial. Conviction rates increased with the admission of more inculpatory tendency evidence. Since these increases in the conviction rate occurred in both the tendency evidence trial and the joint trial, these findings do not support the hypothesised joinder effect. Although the conviction rates by juries and individual jurors in the joint trial were, on average, higher than those in the tendency evidence trial, these increases were not statistically significant, and were not due to the type of trial; that is, they were not due to the joinder of counts in the joint trial. In other words, we did not find a significant joinder effect.

Importantly, we did not find that the verdicts rendered were based on impermissible or prejudicial jury reasoning. Our analysis of credibility ratings confirmed that juries were sensitive to the source of additional prosecution evidence in assessing witness credibility. We can attribute increases in credibility ratings to systematic and permissible reasoning based on the probative value of the tendency evidence. Multiple convergent findings showed that jury decision making in the tendency evidence trial was similar to that in a joint trial, indicating that the juries were not reasoning in an illogical and superficial manner in the joint trial when given cross-admissible tendency evidence, compared to the tendency evidence trial which involved one complainant and two witnesses who gave similar accounts of sexual abuse by the defendant. The admission of the tendency evidence, whether in the context of a separate or a joint trial, did not lead to impermissible reasoning.

Part 5.2: Were convictions in joint trials the result of impermissible reasoning?

Inter-case conflation of the evidence To test the hypothesis that jurors would confuse or conflate the evidence tendered in support of different counts in joint trials, we compared the accuracy of jurors’ factual recall and their factual culpability ratings of the defendant.

Accuracy of factual recall

The deliberations revealed that more jurors made factual errors in trials with tendency evidence than they did in trials without tendency evidence, driven in part by the higher number of witnesses in those trials. Jurors’ mean recall accuracy scores decreased as trial complexity increased, indicating that the complexity of the trial evidence rather than joinder, per se, significantly predicted factual recall accuracy. Because juries promptly corrected their inaccuracies, we found no support for the hypothesis that persistent uncorrected errors were a feature of jury decision making in trials with tendency evidence, so no evidence emerged that errors of this nature had any causal effect on jury verdicts.

Compared to a real trial, where there is considerable repetition and more opportunity for juries to discuss the evidence and deliberate, our experimental simulations may have fostered the potential for more confusion than would arise in a real trial. This element of the trial simulation is likely to have contributed to the higher factual error rate observed in cases with more complex evidence. Nonetheless, in real child sexual abuse trials, whether separate or joint, a similar potential for confusion cannot be discounted as result of, for example, trial length, juror fatigue, juror disinterest, changing levels of concentration and trial complexity.

Factual culpability

The observed pattern of factual culpability ratings showed that juries relied on more systematic reasoning, rather than susceptibility to evidentiary conflation. This evidence of jury reasoning in response to additional evidence of the defendant’s other criminal misconduct controverts the hypothesis that juries in joint trials or in trials with complex tendency evidence engaged in impermissible prejudicial reasoning because of inter-case conflation of the evidence.

Accumulation prejudice

To examine the extent to which elevated conviction rates in joint trials with tendency evidence were attributable to impermissible reasoning, we tested whether juries were prone to convict based on the overall number of charges against the defendant or the overall number of witnesses called by the prosecution.

Multiple counts

Courts have hypothesised that a defendant will be unfairly prejudiced in joint trials because juries are prone to reasoning that the defendant is guilty simply because of the number of charges brought by the prosecution. To test whether juries were affected by the number of counts in the joint trial, we compared two trials in which the same evidence was presented by four witnesses called by the prosecution. The only salient difference between the trials was the number of charges against the defendant. Factual culpability ratings differed by count and by complainant according to evidence strength, independently of the type of offence, so we did not find any accumulation prejudice as a result of multiple counts. As with verdicts, the factual culpability ratings reflected that juries were able to evaluate the culpability of the defendant for each separate count according to different evidentiary strength. Thus, juries displayed the ability to distinguish between the evidence of different complainants.

Multiple witnesses

Courts have hypothesised that juries are susceptible to the cumulative effects of multiple witnesses, which are expected to increase in joint trials. This version of the accumulation prejudice hypothesis holds that a defendant will be unfairly prejudiced because juries are prone to reasoning that the defendant is guilty simply because of the number of witnesses appearing for the prosecution. To test jury susceptibility to the accumulative effect of multiple witnesses, we examined conviction rates when either four or six witnesses appeared for the prosecution in a joint trial. The addition of two prosecution witnesses did not significantly increase conviction rates, or ratings of the defendant’s factual culpability, providing no support for the accumulation hypotheses. Most importantly, the presence of these witnesses did not increase the conviction rate for the count with the weakest evidence. These findings directly controverted the accumulation prejudice hypotheses in relation to multiple witnesses, by indicating that both jurors and juries evaluated the evidence of multiple witnesses based on its probative value, not simply the number of witnesses.

Character prejudice

Character prejudice arises when a juror uses the severity or number of allegations of criminal misconduct by the defendant to reason that the defendant is a person of bad character, and is therefore probably guilty of the current charges. Encompassed within this concept is the hypothesis that juries will be less concerned about convicting because the defendant deserves punishment for the prior misconduct, charged or uncharged.

The admission of inculpatory evidence about four other acts of sexual abuse from two additional independent witnesses, irrespective of whether they were witnesses or complainants, did not diminish the ratings of how convincing the defendant was, suggesting that jurors were not engaging in impermissible reasoning on the basis of character prejudice. If they had, these ratings would have differed significantly between the separate trial and the trials with tendency evidence, in which juries were exposed to evidence of the defendant’s other acts of sexual abuse. Thematic evaluation of the jury deliberations revealed that no juries in either the tendency evidence or joint trials impermissibly used the tendency evidence to conclude that the defendant was guilty because of the number of allegations of prior misconduct made. Furthermore, there was no evidence of verdicts motivated by emotional reactions to the severity of the allegations, such as a sense of horror regarding the allegations, or a desire to punish the defendant. Ratings of the credibility and convincingness of the focal complainant showed that the complainant’s credibility was enhanced by the evidence from independent witnesses or complainants who reported similar criminal conduct by the defendant, irrespective of whether the defendant was charged with counts pertaining to those individuals. Similarly, jurors’ ratings of the convincingness of the focal complainant were significantly higher when tendency evidence was admitted, compared to the separate and relationship evidence trials that had no tendency evidence.

In sum, the low frequency and isolated examples of reasoning in deliberations involving inter- case conflation of the evidence, accumulation prejudice, or character prejudice suggests that the likelihood of impermissible reasoning, whether in joint or separate trials, is exceedingly low. This low probability suggests that there was negligible unfair prejudice to the defendant in joint trials or trials where tendency evidence was admitted.

Part 5.3: Legal safeguards against unfair prejudice

The law attempts to curtail the perceived unfairly prejudicial effect of joint trials and evidence of a defendant’s other misconduct via judicial instructions or directions. We examine the extent to which judicial directions and/or fact-based question trails reduce juries’ reliance on any impermissible reasoning, thereby mitigating unfair prejudice to the defendant.

Did judicial directions reduce any impermissible reasoning?

We found no differences in the ratings of the perceived criminal intent of the defendant, nor in ratings of his factual culpability for each of the counts when standard directions versus tendency directions were given in either the tendency evidence trials or joint trials. These results mirror findings from our deliberation analysis: that many juries appeared to either ignore or misunderstand the tendency direction and, consequently, failed to apply it or misapplied it. Nonetheless, juries perceived that more cognitive effort was required when they were given tendency evidence directions versus standard judicial directions in the tendency evidence trial. Overall, it appears that the tendency evidence directions were not only difficult to understand, but were also difficult to apply. The directions, based on accepted legal practice, were not written in plain English; they were comprised of dense, legal language that, anecdotally, appears to pose comprehension problems for lawyers as well. The outcome may be an effect that favours the defence, rather than the prosecution.

Do question trails reduce impermissible reasoning?

The question trail helped juries in the relationship evidence trial reach a verdict more rapidly – on average 25 minutes faster than in the absence of a question trail. From a content analysis of jury deliberations, we found a second feature of the question trails: they increased the proportion of time that juries devoted to discussing the counts of child sexual abuse.

Part 5.4: General conclusions about unfair prejudice in joint trials

Although the expectation was that more complex trials with tendency evidence would result in more unfair prejudice to the defendant, we found more evidence of impermissible reasoning in the basic separate trial and in the relationship evidence trial than in the more complex trials. For example, in the separate trials, juries were more likely to believe that there was an onus on the defendant to prove his innocence. This finding is a crucial outcome of this study. Overall, the results show that it is unlikely that a defendant will be unfairly prejudiced in the form of impermissible reasoning as a consequence of joinder of counts or the admission of tendency evidence. Given the low probability, we found there is negligible risk to the defendant of a conviction based on reasoning logically unrelated to the evidence. We recommend further empirical research on jury directions and fact--based question trails.

Conclusion

Major outcomes

This project produced two particularly significant findings: 1. There was little indication that mock juries were susceptible to any joinder effect. 2. Even if there was a joinder effect, there was no evidence that jury conviction rates were the result of impermissible propensity reasoning resulting in unfair prejudice to the defendant.

We specifically looked for instances of verdicts driven by inter-case conflation of the evidence, reasoning by accumulation prejudice and character prejudice. Across four different types of trials, no convictions were made on those bases, and very few mock juror comments reflected emotionally motivated, superficial or impressionistic considerations. Overall, jury reasoning and verdicts were logically related to the probative nature of the admitted evidence.

Implications for the criminal justice system

While some individual mock jurors made errors, and others were susceptible to attitudinal biases and decision-making prejudice, these instances were infrequent. As a group, the juries monitored and corrected individual jurors’ errors. The key to the mock juror and jury verdicts was their assessment of the credibility of the complainants, based on the source of the evidence in support of the charges.

In this study, we found that verdicts were not based on impermissible reasoning or unfair prejudice to the defendant. These outcomes suggest that any fears or perceptions that tendency evidence – whether presented in a separate trial or a joint trial – is unfairly prejudicial to the defendant are unfounded.

Medical Innovation and Mammoth Onesies

'A Property Theory of Medical Innovation' by Anna Laakmann in (2016) 56(2) Jurimetrics comments

In discussions about the proper scope and strength of intellectual property (IP) protection, commentators frequently note that robust IP rights for medical technology developers are necessary to offset the costs of regulatory scrutiny by the U.S. Food and Drug Administration (FDA). This observation, while true, fails to capture important nuances in the relationship between IP and FDA regulation. Ostensibly conflicting IP and regulatory systems actually are overlapping, complementary components of a composite legal scheme governing information production and distribution. Both systems create incentives to produce intangible goods, albeit different types of goods at different points in technology development timelines. IP pulls inventions into the commercial arena, and public health regulation pushes developers to move nascent discoveries downstream along innovation pathways. Importantly, interplay between IP and regulation creates feedback loops of cumulative technological innovation.

This Article highlights the functional relationships between IP and regulatory laws to advance a holistic approach to medical innovation policy. It introduces the term “regulatory property” to describe how administrative oversight gives rise to the creation of valuable information resources. Regulatory takings and givings involve government redistributions of preexisting goods that transfer wealth among affected members of society. By contrast, regulatory property refers to the process whereby government regulation leads to the production of new information goods. As regulatory property is generated, interacting federal and state laws manage its allocation across private and public domains. The Article proposes strategies to address the unique challenges raised by innovation that is not tied to the creation of new tangible things, such as diagnostic algorithms and newly discovered uses for known products. More broadly, it suggests that understanding the dynamics between intellectual and regulatory property aids in developing coherent governance schemes for all potentially beneficial, risky medical technologies.

The delicious 'How not to clone a mammoth' by Steve Jones in (2015) 386(9989) The Lancet 125, in reviewing Beth Shapiro's How To Clone A Mammoth, comments

The first line of the US mule-training manual is said to read: “First gain the animal's attention by striking it smartly between the ears with a stout stick”. For authors, their book's title does the same job. I got some odd glances on the tube a while ago when I was reading a work provocatively labelled (in sixty-point capitals) The Wisdom of Whores which, despite the empty seats that opened up on both sides of me, is in fact an enthralling account of the epidemiology of HIV/AIDS. The most recent Diagram Prize for Oddest Book Title of the Year at the Frankfurt Book Fair was won by Strangers Have the Best Candy, which should also guarantee a seat on a crowded train. How to Clone a Mammoth, too, might be a contestant for the titular crown. 

However, this is a book that waves a stout stick but never really gets round to using it. It is full of attention-grabbing speculations about the potential scientific process of “de-extinction”, but its ultimate response to its own front cover is that “You won't be able to” and, yes, there it is, in the author's own words on page 99: “Mammoth cloning is not going to happen”. The elephant in the room is not, it seems, a mammoth. .... 

There's not much hope of inserting the mammoth genes for thick hair and cold-resistant haemoglobin into a modern elephant. Another idea, Shapiro explains, is to cut and paste your pachyderm; to compare the most mammoth-like sections of a number of elephant genomes and then to assemble a simulacrum of the extinct proboscid that is really an elephant in disguise. Rather more rational (albeit needing several lifetimes' work) is the idea of breeding from hairy elephants with dumpy legs until an individual emerges hirsute and squat enough to withstand the arctic cold. Other schemes include the possibility of finding frozen sperm in a mammoth carcase and fertilising an elephant with it, but that idea is fantastical indeed. If the spurious Mammoth ever does appear the creatures could move to Pleistocene Park in Siberia, a recent attempt to simulate what the tundra looked like in the days when it was grazed by their extinct relatives. 

The mammoth steppe was the largest single block of habitat ever seen, far larger than the tropical rainforest, and those great beasts were what ecologists call a “keystone species”: a creature whose activities determine the fate of many others. Wolves are the same: when they were introduced into the USA's Yellowstone National Park 15 years ago, they reduced elk numbers by half, so that ground cover increased, sheltering voles that were eaten by hawks, and so on and on. A Russian enthusiast has already fenced off a section of Siberian tundra and filled it with wild horses, bison, and deer. Shapiro describes how the effect has been dramatic; a great increase in rich grassland as the animals trample the soil and recycle nutriments and, less predictably, less snow cover in winter as their hooves sweep it away. That, in turn, means that the permafrost gets colder than before, and—an unexpected bonus—releases less carbon dioxide. A new behemoth might then play a part in keeping the whole planet cool. 

Another approach to populating Pleistocene Park is simpler: why not get the conservationists of the world to knit great woolly suits for the animals to keep them warm and comfortable in wintry Siberia?

Patent Jurimetrics

'Does Familiarity Breed Contempt Among Judges Deciding Patent Cases?' by Mark A. Lemley, Su Li and Jennifer M. Urban offers 

the first comprehensive look at how a district judge’s experience affects decisionmaking in patent cases. We find that that there is a strong, statistically significant relationship between a judge’s experience and case outcome: more experienced judges are less likely to rule for the patentee. Notably, the relationship exists for rulings finding noninfringement; judicial experience had no relationship to the likelihood a judge would find a patent invalid. The relationship appears to hold across judges, rather than to be driven by the rulings of particular judges. Beyond individual judges, some technologies (biotechnology, mechanics) are associated with more patentee wins, while patentees are less likely to win computer hardware and software cases. Some district courts (Delaware, New Jersey) are more likely to find patents infringed. By contrast, perhaps surprisingly, we find no significant relationship between litigation in the Eastern District of Texas and a judge’s ruling for or against the patentee. Finally, we find that suing on multiple patents is associated with an increased likelihood that at least one patent will be found to be infringed.

Our results challenge what has been an implicit assumption in the literature and discussion that particular districts are biased in a particular direction, driving forum shopping. And they test for the first time the implicit assumption in the literature, in calls for specialized patent trial courts, and in the Patent Pilot Program, that experience with patent cases at the trial level will lead to different — usually assumed to be “better” — outcomes from what we see from generalist courts. Our results suggest that there is a difference, but that “better” may be in the eye of the beholder. They suggest some sort of learning effect among district court judges across the country, and that patentees benefit from litigating before inexperienced judges, at least on issues of infringement. Depending on the reason for this effect, adoption of a specialized patent trial court might help accused infringers but not patentees, raising broader questions about patent reform and how to measure the value of an expert court.

They conclude that

The more experience judges have with patent cases, the less likely they are to rule for patent owners. Our finding is a strong and highly significant finding, robust across districts, across time, and across areas of technology. It has potentially profound implications for patent law, where it might lead us to question the way we design patents, and for the broader project of judicial specialization, which may have unintended substantive consequences.

HCA Jurimetrics

'The High Court on constitutional law: the 2011 statistics' by Andrew Lynch and George Williams in 35(3) UNSW Law Journal (2012) 846-865 [PDF] presents

 statistical information about the High Court’s decision making for 2011 at both an institutional and individual level, with an emphasis on constitutional cases as a subset of the total. The authors emphasise the importance of acknowledging the limitations that inhere in an empirical study of the decision-making of the High Court over just one year. In particular, care must be taken not to invest too much significance in the percentage calculations given the modesty of the sample size, especially in respect of the smaller set of constitutional cases. Nevertheless, this annual exercise remains worthwhile in that it offers assistance to those followers of the Court’s decisions who are interested in the way in which the dynamics between its individual members translate into institutional outcomes. It provides simple empirical data about the functioning of the Court that may otherwise be left merely to impression.

The authors endeavour to draw readers’ attention to trends and patterns observed in earlier years where these enhance understanding of the significance of these results. As it turns out, the results of our 2011 survey of decision-making on the Court provide a clear demonstration of the value of looking at the Court on a yearly basis. They are, in several key respects, notably different from those of the immediately preceding years. Statistical representations of the way in which the High Court and its Justices decided the cases of any given year are only a supplement, rather than any kind of substitute, for scholarship that subjects the legal reasoning contained in the cases to substantive analysis or examines the impact of the Court’s decisions upon government and the community.

The authors also refrain entirely from making the exercise one from which they presume to make inferences about the particular working relationships amongst the Court’s members. The results are drawn only from what may be observed from the public record of the Court’s decided cases. This remains inadequate source material from which to assess, for example, the level of influence which any Justice has amongst his or her colleagues.

They conclude -

2011 was the year that the French Court returned to the norm. Gone were the historically high levels of unanimity of 2009 and 2010, with last year instead presenting a more familiar, fractured Court. It is difficult for any bench composed of seven independent judges to sustain high levels of agreement across the work of the High Court, let alone in controversial constitutional cases. What was remarkable was that the French Court did so for its first two years.

A central reason for why unanimity proved more elusive in 2011 was the so-called ‘Heydon effect’. Justice Heydon has been a more regular dissenter during his tenure on the High Court than many of his colleagues, but in 2011 he greatly exceeded his earlier results on this score. His rate of dissent across all cases for the year tripled from a previous high of around 15 per cent to over 45 per cent. This amount of formal disagreement has only been exceeded once in the annual surveys we have conducted on decision-making in the Court – and that was by the Court’s greatest ever dissenter, Kirby J, in 2006. Justice Kirby’s level of dissent in other years during the Gleeson era was anything upwards of around 25 per cent but never as high as that of Heydon J last year.

2011 may prove to be an aberration in Justice Heydon’s rate of dissent.

Certainly it would seem difficult to sustain, but conversely it would be surprising if it subsided dramatically. That the latter appears unlikely is borne out by other indicators. There has been a gradual, but noticeable, change in tone and approach in many of his judgments, with a greater willingness on his part to express his legal opinion even more forcefully and in striking and colourful language. In Momcilovic, for example, he went further than any other judge in holding, in dissent, the whole of the Charter to be invalid. He did so in a judgment that was dismissive of the Charter, and of human rights statutes and human rights principles in general, stating at one point that:

The odour of human rights sanctity is sweet and addictive. It is a comforting drug stronger than poppy or mandragora or all the drowsy syrups of the world. But the effect can only be maintained over time by increasing the strength of the dose.

With Heydon J, a reader never need doubt where he stands on a legal question, and his often sharply critical reaction to the judgments of other members of the Court stands up well with the best traditions of High Court dissent.

Justice Heydon will, however, have limited opportunities for future dissent. The requirement in section 72 of the Constitution that High Court judges retire at the age of 70 means that he must leave the Court in early 2013. He is not alone in his impending departure. Going first is Gummow J, who retired in October 2012. Justices Hayne and Crennan must then retire in 2015. All up, a majority of the Court will depart in a little over three years, with only French CJ and Bell and Kiefel JJ of the current bench then remaining (with their years of retirement being, respectively, 2017, 2021 and 2024). The stability of membership that marked the early period of the French Court is about to end, as the Court’s personnel undergoes rapid change.

Given the breakdown in 2011 of the trends of the French Court in its first two years, it will be interesting to observe how the Court decides those matters before it in the last remaining months of its present composition. Even more interesting will be to see the changes that follow from the replacement of those two Justices who appear to play such different roles on the High Court today – Gummow J whose opinions have consistently reflected majority thinking on the Court since his appointment in 1995 and Heydon J who now most regularly represents the alternative minority voice on the institution.