Chris Jaeger

Transcript

Derek Smith:
Hello and welcome to Baylor Connection, a conversation series with the people shaping our future. Each week we go in-depth with Baylor leaders, professors, and more discussing important topics in higher education, research, and student life. I'm Derek Smith, and today we are talking psychology and the law. Our guest today is Chris Jaeger. He serves as associate professor in the Baylor Law School, coming to join the Baylor faculty in 2021 after serving in a teaching role at NYU, a clerk on the US Court of Appeals Eighth Circuit, and in private practice in Nashville. The son of a psychology professor, he earned a PhD in psychology at Vanderbilt after earning his law degree there as well. In December he was named co-winner of the American Association of Law School's Scholarly Paper Competition for Research delving into a core issue in law, how lay jurors interpret the idea of reasonableness. He's with us today on the program. Hey, Chris, congratulations on that honor, that award. And thanks for joining us today on the program.

Chris Jaeger:
Thank you very much. It was an honor and a surprise to get that award. And it's really nice to be here with you today.

Derek Smith:
Oh, great. It'll be a different topic for us. And I'm hoping as we visit we can talk about this in a way, certainly, legal scholars will find interest. But I think there's topics here that even those of us whose law knowledge extends to watching legal dramas on TV or in the movies can pick up on some things as well.

Chris Jaeger:
That's certainly my hope.

Derek Smith:
You don't find everyone who has both a law degree and a PhD in psychology. So I'm curious, what captured you first psychology or the law?

Chris Jaeger:
I would say the law captured me first after I dabbled in psychology for a while. So I was an undergrad major in psychology, I liked it, and then I took two courses, one psychology, and law, in my major, and then a philosophy of law elective. And those were the two classes that grabbed me, my favorite classes I ever had. And those are what led me to go to law school.

Derek Smith:
Had you considered becoming a lawyer at any point before that?

Chris Jaeger:
I really had not. In fact, it is shocking in hindsight how little I knew about the actual practice of law when I went to law school. It was really the academic interest spurred by those classes and thinking like sure, writing and talking for a living sounds fun so maybe I'll give this a shot.

Derek Smith:
You've teaching, you've clerked, you've been at private practice. Was there an aspect of practicing law that got ahold of you first?

Chris Jaeger:
Yes. So I did a lot of appellate advocacy when I was in practice. Rather than being kind of the one in the courtroom talking to the jury putting on the trial, I was the one ... If there was an argument, there was a mistake made at the trial court by the judge, and we thought maybe the case should have come out differently, I would handle those cases. And it was a very intellectual exercise in a way that I really enjoyed of trying to look through a record and figure out what's our strongest argument, and then craft a persuasive argument to an appellate court to say, "Look, the legal system is great, we understand judges are doing the best they can, but we think we got a raw deal here. And maybe there's something that needs corrected and can you help us with that?"

Derek Smith:
Visiting with Chris Jaeger on the program. And Chris, when we talk about the law there's the books, there's the laws that we revere in so many ways but you're also dealing with people in every aspect of it. Psychology plays a meaningful role. To what extent are all lawyers are all ... Is everyone involved in the legal system an armchair psychologist? You know what I'm saying? Does everyone have a little bit of that in them?

Chris Jaeger:
I absolutely think that's a good description.

Derek Smith:
Yes, okay.

Chris Jaeger:
Yes. Assumptions about psychology, or armchair psychology inform the law in a lot of ways but I focus on two or am particularly interested in two. One is, a lot of the rules that we make, the law, is based on assumptions, not by trained psychologists but by lawyers, about human behavior and the human mind. For example, there are things in the rules of evidence, exceptions to hearsay. A doctrine based on the idea that certain types of statements are more reliable than other types of statements. That's a psychological assumption. There's this idea that a statement made contemporaneously with what you're observing is going to be more reliable because people can't lie fast, it takes time to lie. That is an assumption about the human brain and how it works, that is testable. And I know others in the psych and law space are working on questions like that.
Assumptions about psychology are also buried in the law in the sense that we give certain questions to decision-makers, jurors, or the judge. And they're human so we might give them a standard like reasonableness and say, "Apply this." And what we're doing when we give those broad instructions or broad opportunities to judges or jurors is we're potentially inviting them to bring in their own beliefs about the world and their own beliefs about how humans think and act and use that to make a decision. And that's fascinating to me that meta-level where we just ... Rather than making a rule based on psychology we just say, "We're going to throw this one open and see what decisions you make, judges, juries, with your own armchair understanding of psychology."

Derek Smith:
As you describe this you use the word assumptions a couple of times. And certainly, assumptions are always a part of it. But for you, do you see a gap to fill in bridging the law with maybe some of those evidenced-based psychological data points or understandings?

Chris Jaeger:
That's exactly right. The armchair pitch I give on my research is, I am very interested in the way law bakes in beliefs, and oftentimes misbeliefs, about the human mind. And so can we identify some of those misbeliefs and potentially come up with ways to bring the law better into alignment with things that we do know about how the human mind works, and how people make decisions and act in the world?

Derek Smith:
I've talked to some of your colleagues in other departments on this program over the years ... And I know we have some faculty who want one of their projects or training clergy with some psychological understandings as they deal with individuals who might be struggling to have a better understanding of some of the science behind mental health issues so that clergy could blend both. It sounds like, in a way, that's what you're doing in law, you're trying to provide for legal scholars or legal practitioners.

Chris Jaeger:
I think that's right, both for legal scholars and legal practitioners. I mean, certainly, one takeaway from my series of papers on reasonableness, one of which I know we'll talk about in a little bit, is some guidance that I think is useful for lawyers on the ground who are trying to make a case to persuade a jury of lay human decision-makers that their client acted reasonably or unreasonably. That wouldn't be their client that would be the other side of the case, they acted unreasonably. And my research helps illuminate the types of things that lawyers might highlight or emphasize in their arguments to be persuasive to lay jurors.

Derek Smith:
Visiting with Chris Jaeger here on Baylor Connections. And Chris, let's talk about this project now. And you've touched on this but I'm going to ask you specifically, that idea of reasonableness. Now, obviously, one aspect of the word reasonable we think of in the law is beyond a reasonable doubt. Is that what we're talking about or does it go far beyond that?

Chris Jaeger:
This is a little bit different than that. So the idea of beyond a reasonable doubt, that's an evidentiary standard. How certain do you have to be this thing is true? I'm really interested in reasonableness when it is used as a standard to let decision-makers, judges, or jurors, oftentimes jurors, make a often outcome-determinative legal judgment. So I'm really interested in the context of tort law. Negligence is a well-known tort. A classic example is you see like a car wreck. If you're the victim of the car wreck you sue the driver of the other car. And often your argument is they were negligent in the way they operated their vehicle. Well, what does negligence mean? It means failing to act as a reasonable person would've acted under the circumstances. And oftentimes the question of whether the defendant acted reasonably is left to a jury. And so what sorts of information do those jurors want, or what sorts of information are likely to influence those jurors in their decision about whether the defendants behavior was reasonable?

Derek Smith:
And you're likely to get 12 different answers if you survey 12 different people.

Chris Jaeger:
So actually the genesis of this whole line of research was a really happy serendipity. So I went into the practice of law, I practiced for a few years in Nashville, and then went back and got my PhD in psychology after practicing for a few years. While I was back in school getting my PhD I happened to be selected for jury duty. And I wound up on a jury in what was essentially a negligence case in a federal court in Nashville. I did not think there was any chance I would be chosen for jury duty.
When they asked me what I did in the jury selection process I said, "I'm a lawyer." Usually, that gets you booted. But then they asked some follow-up questions. They're like "Well, are you practicing law now?" I was like "No, I'm getting a PhD studying legal decision-making." That's definitely going to get me booted. But it didn't get me booted. And I ended up on the jury and got to see firsthand how these 11 other people chosen to be a part of this jury thought about, did the defendant, in our case, act reasonably or not. And it was fascinating to me. As you said, you get 12 different answers. You get a lot of different answers. I don't know if it's a unique set of criteria for each person. It probably is in terms of the weight they give different things. But definitely, people in the room were talking about very different facts in the case as the basis for their judgment that the defendant acted unreasonably.

Derek Smith:
Probably some things are obvious to a lot of people, but the more nuanced it gets the more different answers you could receive.

Chris Jaeger:
That's exactly right.

Derek Smith:
This is Baylor Connections. We are visiting with Chris Jaeger, associate professor in the Baylor Law School. Obviously, this project that we're discussing, the AALS award-winning project, delves into this idea of reasonableness. You're going to have to take us inside some theories that a lot of us might not have given a lot of consideration. If you were talking to a colleague from another department on campus and they said, "Hey, I saw that headline, you won the award, what's that project about?" How would you answer that?

Chris Jaeger:
So I would start with saying a little bit of what we've been saying that oftentimes in these tort negligence cases, the case depends on what lay people, jurors, think about reasonableness. Over the years legal scholars have written thousands of pages theorizing well, what do we mean when we say reasonable? But there's a shocking lack of research empirically testing how those big legal theories map onto what lay jurors in a room deliberating a case actually care about. And so I took two of the leading theories from those reams of pages of legal scholarship and put them to an empirical test in this project to see, do they capture something about how lay people make the reasonableness judgment. And the answer is both theories capture something that I tested but there's a lot left to be explained, okay?

Derek Smith:
So a couple of these theories. Okay, the Hand formula and the Kantian theory. First the Hand formula.

Chris Jaeger:
So the Hand formula is probably the most well-known theory of reasonableness, at least in legal academic literature. The idea there is reasonableness is grounded in cost-benefit analysis. So how do you tell if somebody acted reasonably or not? In the moment they're making the decision, did it ... Was it the case that the benefits of their action would outweigh the costs? And we use that threshold to determine whether people act reasonably. If your actions are cost-justified you are acting reasonably, if they're not cost-justified, if you're creating risks for the world that are not cost-justified, then you're acting unreasonably.

Derek Smith:
It's not financial per se but it could be.

Chris Jaeger:
So the specific idea with the Hand formula is that we look at what would the cost have been ... The burden on the defendant in the case, the party being sued, what would it have cost them to act more safely in a way that would've prevented the injury? And then we compare the cost of taking that safer activity against the ... How much does that decrease that safer activity? How much would that decrease the probability of harm and the potential magnitudes of harm? So we weigh these things in a somewhat financial or economic way to give us a concrete, oftentimes put in dollars, answer. It would cost $10,000 to act safer, but that $10,000 of safer activity would we expect it to save $15,000 of expected harm so you should have done it. And the failure to do it was unreasonable.

Derek Smith:
Got you. So then the Kantian theory, what's that?

Chris Jaeger:
So the Kantian theory is grounded in philosophy of Immanuel Kant. And the idea here is we care less. It's not really about cost-benefit analysis. What it's really about is the risk to other side of that cost-benefit analysis. So a Kantian legal scholar would say something like, "What is behaving unreasonably?" Behaving unreasonably is behaving in a way that creates significant unaccepted risks for other people." If you behave in that way that behavior is unreasonable because you are infringing on that other person's autonomy.
Really the deep in the weeds basis for the Kantian theories gets into this Kantian idea of equal freedom and autonomy. We're all free to live our lives in the way we want and pursue our vision of what is good. And when somebody acts in a way that deprives us some of our freedom to pursue our own ends and live the life as we, that does not respect our equal freedom and, therefore, infringes our autonomy. Now, there are a lot of sub-variants of Kantian theory that get a little more nuanced than what I just described. Our primary concern is not cost-benefit analysis it's respecting our fellow human beings autonomy.

Derek Smith:
So one's transactional, one's relational. Is that fair to say?

Chris Jaeger:
Yes, I think it's very fair to say.

Derek Smith:
Okay, okay. All right. So you've got these theories, you've got people to study, you've got these questions you want to answer. How did you go about putting this all together for the project?

Chris Jaeger:
So what I did is I created a series of vignette studies where I would give my participants little descriptions of tort cases. What I would manipulate is the information that may be relevant, or that each of these theories would predict was relevant. So I would give participants information about what would it cost to act in a safer way. I would give participants information about well, if you don't act in a safer way, how big is the risk? And I would give participants information about that risk. If it comes to pass, how bad is the harm going to be? And I would manipulate that information to see, do people care about it? And do people care about it in the way that these different theories predict?
If the Hand formula was exactly right what we expect is my ... I give people all the information they need to do the math to figure out if this behavior was cost-justified. And, in fact, in the final experiment I do the math for them and just tell them, "This action was cost-justified or was not cost-justified." So if the Hand formula describes everything then that information should tell us everything about how jurors decide the case. Conversely, the Kantian theory, the idea there is well, actually the way I set up my variables people shouldn't care about the cost of taking safer precautions at all. The way I set up the variables, what they should care about is just how big is the risk you're creating for others.
And what I found was a bit of a hybrid where these pieces of information mattered but they didn't matter in the way that was predicted by the theories. So each theory described a little bit of truth, they got at something about how people think about this problem. But neither theory, while they're presented in the literature, is being a complete description of how people judge reasonableness in the real applied world, or at least this vignette world that I created with my studies, they only tell a little piece of the story.

Derek Smith:
So knowing that they only tell a little piece of the story, how can your colleagues in the legal world ... How do you see them utilizing that information?

Chris Jaeger:
Absolutely. So in two ways. The fact that we see they do have some effect gives us some basis. Gives, hopefully, some practicing lawyers some basis to think hey, maybe we should build our arguments in this way because we can see these sorts of information, these types of information, if we have these types of information on an actual case, will have an influence on jurors decisions. And we can feel a little more confident about that. One really practical takeaway from my studies is if you have information about how big of the ... Was the risk of injury created by the defendant's conduct? Emphasize that piece of information because that has more weight to a lay decision-maker than the Hand formula suggests it should. It gets special weight, and special Kantian weight in the minds of decision-makers. So that's one practical takeaway.
Like I said, these studies show that each of these theories has some explanatory power but there's a lot left to be explained, which has me as a researcher very excited about what else is influencing the decisions these lay decision-makers, these lay jurors are making. And so can I identify other types of information that are maybe even more powerful than the types I manipulated in these studies? So I'm doing some follow-up research now looking at things like custom, did the defendant act in a customary way or not? Perhaps that has even more influence than these Kantian ideas and these economic Hand formula-type ideas.

Derek Smith:
So as people apply those you've got more directions that you can go, as you said in your research. Probably infinite number of directions you can go. I'm curious, Chris, as we end on the final few minutes of the show, how do ... For you here as a professor at Baylor, how do research and teaching intersect for you as you interact with students?

Chris Jaeger:
So there's this idea in law schools sometimes brought up this distinction between legal formalism and legal realism. And so legal formalism is this idea of we just have these abstract rules divorced from the world. And we take these rules and we apply them to facts that pop up in a case and that's how we make legal decisions. Legal realism takes a more critical eye and says, "Well, but these are human decision-makers taking and applying these rules so maybe we'll want to think carefully about how humans do things to understand the law."
And so I'd say, at a high level, my teaching has a little bit of a legal realist flavor. I'm happy to tell students, "Here is the rule, and this is the idea behind the rule, and how the creators of the rule, if it's a legislature or if it's a court, this is" ... "Seems to be the animating principle on how they hope it will be applied. But we can think about here are some arguments you can make that a real on the ground human decision-maker might find persuasive. Even if it doesn't quite align with the spirit of the rule." And so I think going into that space at least a little bit with students is rewarding both for them academically and for them as they get ready to embark on a career practicing the law.

Derek Smith:
Gives them some interdisciplinary experience for sure. Well, Chris, you're doing great research, other colleagues are as well in Baylor Law. As we close, what are some ways you're excited to see Baylor Law have that opportunity to impact your field through research collectively?

Chris Jaeger:
So I think Baylor Law is really doing a lot of really cool stuff in the research space right now. So the hallmark of Baylor Law School is its practical focus. So a lot of law schools are really into legal theory. Baylor Law School's focus has always been putting the students first and how do we turn out good practicing attorneys? What's so exciting about the research happening at Baylor Law School right now is it is research that's focused on these practical questions. So in the real world, in litigation, cases are happening all the time that hinge on, say, a reasonableness judgment. I mean, it engages with legal theory, we've talked about Hand, we've talked about Kant.
But at the end of the day there is an on-the-ground payoff for a practicing attorney to say, "This type of information is persuasive, this type of information is not," which melds in with exactly what we're trying to do at Baylor Law School, turn out the best practicing attorneys that we can. What information can we impart on them, not just from the law but in our understanding of how legal decisions are made to help them persuade courts, help them persuade juries out there in the real world after graduating?

Derek Smith:
That's exciting. Well, Chris, congratulations on your award. Thanks for taking us on a tour here of some of these ideas in the legal world.

Chris Jaeger:
Yeah, thank you, it's been a pleasure chatting with you. And I'm excited to keep the research going and happy to be a part of the Baylor Law School community.

Derek Smith:
I look forward to having you on again one of these days and talking to some of your colleagues as well. Appreciate that. Chris Jaeger, associate professor in the Baylor Law School, our guest today on Baylor Connections. I'm Derek Smith. A reminder, you can hear this and other programs online at Baylor.Edu/Connections and you can subscribe on iTunes. Thanks for joining us here on Baylor Connections.