Problem-solving in the Courts (ill-defined problems: i.e. the specifics of  the goal state -- a solution  fair for all parties concerned-- are far from clear)

In many trials, judge and jury are trying to make a straightforward decision. The defendant is either innocent or guilty. The lawsuit should be decided for the plaintiff or for the defendant. These decisions can be enormously difficult, but at least the task is clear: Gather and evaluate the evidence; make a choice between two outcomes.

In other cases, though, the court's role is different. The court has a goal, and must figure out how to reach the goal. In a divorce case, for example, the goal is to reach a settlement that is fair for both husband and wife; if the couple has dependent children, the goal must also include a living arrangement for the children that will be sensitive to their needs. Likewise, in a bankruptcy case, the goal is to arrive at a distribution of resources that is fair for everyone.

These cases suggest that we should sometimes think of the courts as engaged in problem-solving, rather than decision-making. As the textbook chapter describes, problem-solving begins with an initial state (the circumstances you are in right now) and a goal state (the circumstances you hope to reach). The task is to find some path that will lead you from the former to the latter. In many court cases, the problem is an ill-defined one: We know roughly what the goal state will involve (namely: a solution that is fair for all parties concerned), but the specifics of the goal state are far from clear.

In addition, some argue that solutions to legal disputes should, as much as possible, promote the health and well-being of all parties involved. This emphasis, sometimes called "therapeutic jurisprudence," obviously adds another goal in our search for a problem solution. The search for these solutions can obviously be difficult. The judge (or other mediator) needs to be fair and pragmatic, but often also needs to be insightful, creative, and perhaps even wise. How can we help people to find these King Solomon-like solutions? Legal scholars, therapists, social workers, and others have all offered their advice, but it also seems plausible that we might gain some insights from the study of problem-solving.

As an illustration, many courtroom settlements can be guided by analogy. A judge, for example, might find an equitable resolution for a child-custody dispute by drawing an analogy from a previously decided case. Likewise, a mediator might find a fair divorce or bankruptcy settlement by appealing to some suitable analogy. Of course, judges already use analogies; this is built into the idea that settlements must be guided by appropriate legal precedents. But we know that, in general, people often fail to find and use appropriate analogies, and also that there are steps we can take to promote analogy use. It seems likely, therefore, that we can use these steps to help legal decision-makers become better problem-solvers, and, in that fashion, provide real benefit for the criminal justice system. However, little research investigates this specific point, and cognitive psychology's potential contribution to this important area is so far underexplored.

To learn more about this topic in cognitive psychology and the law:

See, in the textbook chapter, pages 483-495

Winick, B. J. (1998). Sex offender law in the 1990s: A therapeutic jurisprudence analysis. Psychology, Public Policy, and Law, 4, 505-570.

Winick, B. J., & Wexler, D. B. (2003). Judging in a therapeutic key: therapeutic jurisprudence and the courts. Durham, N.C.: Carolina Academic Press.