Secunda on New Legal Realism with Discussion

NEW FEATURE! Welcoming NLR Guest Blogger  PAUL M. SECUNDA

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

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.

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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.

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