Cognitive Illiberalism and Institutional Debiasing Strategies

Abstract

Legal realist scholars of a generation ago posited that judicial perception of facts reflect previously-held values and assumptions rather than record evidence. Yet crucially those scholars did not describe the psychological mechanism by which judges’ values come to shape facts. Understanding the psychological mechanism, culturally-motivated cognition, is a necessary first step to counteract the impact of cognitive illiberalism. Cognitive illiberalism results from the manner in which legal decisionmakers explain their decisions, and how those explanations are processed by “losers” in the politico-legal wars of our society. The phenomenon of cognitive illiberalism delegitimizes legal decisions and causes societal discontent with the law.

This article considers ways to reduce this needless cultural conflict over the law generally, and more specifically, in the highly polarized area of American labor and employment law. To this end, this article considers a spectrum of judicial reform debiasing strategies, ranging from opinion-writing debiasing strategies to more far-ranging specialized judge and court models, to reduce the incidents of cognitive illiberalism in labor and employment law. The article concludes by maintaining that the American legal system should at least experiment with institutional debiasing strategies to counteract cognitive illiberalism. Such experimentation would improve the public discourse on important workplace issues in the United States.

Keywords: Culturally-Motivated Cognition, Debiasing Strategies, Judicial Decisionmaking, Labor and Employment Law