Paul Secunda: Second Post on New Legal Realism

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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.

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