Paul Secunda: Second Post on New Legal Realism

Welcome Back NLR Guest Blogger  PAUL M. SECUNDA

The Impact of Cognitive Illiberalism on Neutral Decisionmaking

By Paul M. Secunda

In my last post, I explained the phenomenon of “cultural cognition,” or “culturally-motivated cognition,” as a series of psychological processes that help to explain existing conflict among individuals over legally and/or politically consequential facts.  I maintained that, “it is the very mechanics of cultural cognition that push individuals to adopt viewpoints that favor their identified cultural worldview and this, in turn, leads to a phenomenon known as ‘cognitive illiberalism.’”

So what is cognitive illiberalism? As defined by Dan Kahan, cognitive illiberalism is “the vulnerability of . . . legal decisionmakers to betray their commitment to liberal neutrality by unconsciously fitting their perceptions of risk and related facts to their sectarian understanding of the good life.” As a result of this bias, the critical checking function performed by the judiciary is subject to unwitting corruption.

Another danger of cognitive illiberalism is that individuals are very poor at identifying when they themselves are engaged in cognitive illiberal bias, but are quite adept at identifying when others engage in cognitive illiberal bias.  For instance, in the labor and employment law context of which I am most familiar, this dynamic transforms everyday legal debates over how to provide justice and fairness in the workplace into instances of political and legal competition between management and labor interests.  In this regard, one need only consider recent, heated debates between management and labor interests concerning gender discrimination against women in the American workplace, the need for vital private and public sector unions, and whether the employment at will doctrine should be discarded.  It often seems that the parties to these debates live in completely different realities.

It is when legal decisionmaking engages in hubristic overconfidence in favor of the prevailing judge’s cultural worldview that cognitive illiberalism endangers judicial legitimacy and its commitment to neutrality.  A court majority, unconsciously motivated by culturally-motivated cognition, runs the risk of denigrating any differing viewpoint of a minority cultural identity group as an unreasonable interpretation of a set of legally consequential facts.  In other words, this type of psychologically-tarnished decisionmaking will invariably delegitimize the legal justification for the court’s decision in the eyes of the thwarted cultural group.

This is especially so because the non-preferred group will readily recognize the occurrence of cognitive illiberalism as the underlying basis for the decision, rather than recognize the legal merits of that decision, no matter how justified those merits may be.  Consider in this regard the polarization caused by Wisconsin Governor Scott Walker’s attempt to legislate out of existence most public-sector collective bargaining rights.  As predicted by cognitive illiberalism, those who favor minimalist government and management rights favor the legislation, while those who believe government should promote collective bargaining as a fundamental human right are dead set against it.  Rather than suggesting that either side is absolutely right in this controversy, this recent labor law real-world example illustrates well how cognitive illiberalism leads inevitably to the delegitimization of the law from the perspective of the losing party (in this case, the union side of the debate).

Whether it is in labor and employment cases, constitutional law cases, or other cases, little doubt exists that the legitimacy of the courts is a pressing social concern. This is especially so in the broader judicial context outside of the United States Supreme Court among the lower federal and state courts where most cases are decided.  These decisions not only have local implications for the parties involved in the litigation, but also for  society as a whole.  As United State Supreme Court Justice Stephen Breyer recognized in  his recent book, Making Democracy Work: A Judge’s View (2010), the legitimacy of the courts depends to a large degree upon society’s perception of the judiciary as a neutral decisionmaking body.

So, culturally-motivated cognition not only provides a working theory about how most legal decisionmakers interpret legally consequential facts, but it also helps to explain the formation of cognitive illiberalism and the delegitimization of the very neutrality that most judges wish to foster.  Methods do exist, however, for counteracting these inherent biases.

In my forthcoming paper, Cognitive Illiberalism and Institutional Debiasing Strategies, 49 San Diego L. Rev. (forthcoming 2012) (available at SSRN: http://ssrn.com/abstract=1777104), I argue that to the extent that one sees cognitive illiberalism as being a consequence of unjust labor and employment law decisions, it is necessary to consider a number of institutional reforms that might help to eliminate both culturally-motivated cognition from labor and employment law decisions and the prevalence of cognitive illiberalism surrounding disputes over labor policy in the United States.  In this paper, I maintain that because better informed legal decisionmakers are more self-aware of their own culturally-motivated cognition, and the cognitive illiberalism it can engender throughout society, a spectrum of judicial reform approaches should be explored to see whether all or parts of these debiasing strategies could help overcome legal decisionmakers psychological limitations in deciding labor and employment law cases. These approaches range from fairly simply opinion-writing debiasing techniques to specialized courts and judges in the federal judiciary to the more radical idea of employment tribunals based on the British model.

Secunda on New Legal Realism

NEW FEATURE! Welcoming NLR Guest Blogger  PAUL M. SECUNDA

Culturally-Motivated Cognition As a Type of New Legal Realism

The judicial role in society is popularly understood by its principle purpose of providing a fair adjudication of disputes by a neutral decisionmaker – the judge or the jury.  Yet, a practical barrier exists. That practical barrier is cultural cognition.

“Cultural cognition,” or “culturally-motivated cognition,” describes a series of psychological processes that help to explain existing conflict among individuals over legally and/or politically consequential facts. This is better understood in circumstances when individuals must make some sense and determination of uncertain and inherently ambiguous facts—a prospect not uncommon in many areas of our increasingly complex legal landscape.

Where uncertainty and ambiguity exists, individuals must fill that information deficit in some manner.  In an effort to make sense of indeterminate facts among competing claims and arguments about how those facts matter, an individual will, as Dan Kahan has aptly observed, “tend selectively to credit empirical information in patterns congenial to their cultural values.”  At the same time, the idea of “naïve realism” explains that people simultaneously ignore or discount the views of people with different cultural outlooks.

These psychologically-based conflicts cause a continuing threat to democratic pluralism by pitting subgroups with different cultural biases against one another. Using an anthropologically-based classification system, empirical studies have shown that persons with individualist, hierarchical values tend to be skeptical about facts and arguments that support a more communitarian or egalitarian social model because endorsing those arguments would work counter to their culturally-identified group.

Importantly, legal decisionmakers experience some of the same type of identity-protective pressure that non-legal decisionmakers face.  In the judicial context, what the legally consequential facts say largely depends upon to whom the facts are speaking.  A different way of stating this is that the way that facts will matter in a given case will be based on how those facts are filtered and interpreted by the decisionmaker.  Thus, the ultimate interpretation of those legally consequential facts will be distilled by the decisionmaker’s cultural worldview, likely favoring a particular outcome in agreement with the decisionmaker’s prior cultural worldview.

Understanding cultural cognition as a practical barrier to the neutrality commitment of judges in their exercise of their judicial role is important because the mechanics are both unconscious and natural.   Although some judges can rightly be accused of engaging in an outright ideologically motivated form of judicial bias, I maintain that the majority of judges are sincerely not engaged in this kind of ideologically-based decisionmaking. Rather, a better and perhaps more helpful understanding is Kahan’s explanation: “States of persistent group polarization are . . . inevitable—almost mathematically so—as beliefs feed on themselves within cultural groups, whose members stubbornly dismiss as unworthy insights originating outside the group.” In short, it is the very mechanics of cultural cognition that push individuals to adopt viewpoints that favor their identified cultural worldview and this, in turn, leads to a phenomenon known as “cognitive illiberalism.”

My next blog post will discuss this phenomenon of cognitive illiberalism.

Paul Secunda is an Associate Professor of Law at Marquette University Law School.

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COMMENT –  This is really interesting, Paul.  Just one question:  your post largely centers on judges, but do you think that this same set of concerns applies to law beyond the courtroom?  If so, do you think that a “law-beyond-the-courtroom” focus fits into a new legal realism as well?   Examples of areas that have been studied beyond the courtroom could include HR departments trying to implement “the law,”  beat cops, prosecutors — or attorneys in general, when making decisions about which clients to encourage (and how far to push their cases),  etc.?  — Beth Mertz

PAUL responds — Yes, I believe the same set of concern applies to all individuals, not just judges.  My work has focused on the impact of cultural cognition and cognitive illiberalism on judges, but Dan Kahan and others have shown that the same basic principles apply to law beyond the courtroom.  I would suggest either one of Dan’s pieces in this regard:

1. Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837, 881 (2009).

2.  Kahan et al., ‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction,  Stanford Law Review, Vol. 64, 2012: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1755706

And yes, I think all of this fits like a glove into the new legal realism! It is just another type of response to the neoclassical law and economics that has dominated law schools for the last couple of decades.  All actors, whether cops, prosecutors, or attorneys in general, are operating under this cultural cognition model, which, in turns, leads them to make their decisions in a cognitively illiberal way.

Nobel Prize Winners in Economics Advocate Mixed Methods, Complex Approaches

Legal scholars seeking rigor in studying the law often turn to single-method solutions  – statistical analyses of large data sets, for example, or lab studies.   They might be surprised to hear two Nobel laureates in Economics talk about the importance of interdisciplinarity, of turning to many methods.

Elinor Ostrom, for example, combines field case studies and experimental lab work in her research.  Using this combination, she contested longstanding assumptions about the possibility that groups of people could cooperate to solve common pool problems (as opposed to being regulated by the state or governed by the market).   Check out her Nobel Prize presentation at:

http://www.nobelprize.org/mediaplayer/index.php?id=1223&view=1

And check out the following interview with Oliver Williamson and Elinor Ostrom, in which they discuss the importance of examining institutional contexts when performing economic analyses.  There is a nice exchange toward the end about how much economists will miss if they ignore the knowledge offered by scholars in other fields.

http://www.nobelprize.org/mediaplayer/index.php?id=1223&view=1

Both Ostrom and Williamson agree that “top-down” panaceas or “cookie cutter” approaches to policy problems don’t work.  They believe that policymakers need to give local people a chance to shape the systems used to allocate resources and resolve disputes.  Sometimes, Ostrom points out, local solutions can be the most efficient and effective options.

This is a point of view that fits very well with anthropological research, which has for some time shown us the logic of local systems of knowledge — and the damage that can be done when “solutions” to problems are imposed from outside or above without adequate consultation.