Our recent past Boden Lecturer Dan Kahan and his colleagues have developed a provocative body of empirical and theoretical scholarship on “cultural cognition” (see, e.g., his article here in the Marquette Law Review). Kahan’s basic thesis is that judges and other legal decisionmakers tend to perceive facts in ways that are congenial to their social values. This is not a conspiracy theory – Kahan’s claim is not that judges intentionally manipulate the facts in order to reach desired results, but that their values shape their perceptions in subtle, unconscious ways.
Paul Secunda has been exploring the implications of cultural cognition theory for law and employment law. An initial foray is here, and the latest entry in the series is here. The new paper is entitled “Psychological Realism in Labor and Employment Law.”
Paul is concerned that culturally driven fact-finding may undercut the perceived legitimacy of the courts. In the new paper, he suggests a variety of potential reforms for further consideration that might address the cultural cognition and legitimacy concerns. Among the more provocative is a proposal for specialized employment-law courts or judges, analogous to our specialized bankruptcy courts.
The abstract of the new paper appears after the jump.
Facts matter, especially in labor and employment law cases. But not in the way that labor scholars of a generation ago understood. Those scholars correctly posited that judicial perception of facts reflected previously-held values and assumptions rather than record evidence. Yet crucially, those scholars did not describe the psychological mechanism by which judges’ values came to shape facts in labor and employment law cases. Understanding the psychological mechanism by which judicial values shape legal decisions is a necessary first step to set up a framework to counteract the impact of cognitive illiberalism, a form of cognitive bias that impacts society writ large, in such decisions.
Psychological realism in labor and employment law explains that judges in these cases are generally not self-conscious partisans but rather decisionmakers who seek most of the time to get the law right without being ideologically committed to any prior legal or political view. Yet, values matter because judges, as human beings, cannot help but to act based on their culturally-informed perceptions of legally consequential facts.
By understanding the mechanism by which values influence decisionmakers in labor and employment law cases, it is possible to consider ways to reduce needless cultural conflict over, and discontent with, the law. To this end, this article considers a spectrum of judicial reform proposals which seek to help judges address the increasing complexity of labor and employment law cases in a manner which would also reduce the incidents of impact of cognitive illiberalism in American society.