Diminishing the Harmful Effects of “Cultural Cognition” in Labor and Employment Litigation

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.

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Sentencing Commission Makes Crack Amendment Retroactive

The U.S. Sentencing Commission announced yesterday that the most important of the recent changes to the crack sentencing guidelines will be made retroactive, assuming Congress does nothing to block retroactivity before November 1.   Filling in the details, the Commission has now posted the unofficial “reader-friendly” version of its new retroactivity amendment.  The news is very good for defendants serving long prison terms under the prior, harsher versions of the crack sentencing guidelines.  It is also important to note, however, that the Commission used this amendment as an occasion to make some subtle, but significant, changes to the retroactivity guideline that will diminish the value of retroactivity to some defendants with pending or future sentence modification requests.

Here are the highlights of the Commission’s work.

First, the big, good news for crack defendants: The Commission chose to make retroactive the changes to the drug quantity table that were promulgated in April.  The Commission also made retroactive another guidelines amendment that reduces sentences for crack defendants convicted of simple possession.  (To be technically precise, these are Parts A and C of Amendment 750.)  These were the two decisions that I (and many other witnesses) advocated most forcefully for at the June hearing on retroactivity (see my post here), and they will make a big difference for a large number of people.  According to Commission analysis, “approximately 12,000 offenders would be eligible to seek a reduced sentence and the average sentence reduction would be approximately 23 percent.”  To be sure, district judges will have discretion to turn down any sentence-modification requests they receive, but the experience with retroactivity for the 2007 crack amendment indicates that the great majority of eligible defendants will indeed be granted sentence reductions.

Second, the Commission wisely rejected the Administration’s misguided request to disqualify defendants above Criminal History III or with firearms involvement.  (See my post here.)

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