Gave a talk at cool conference on Supreme Court and the Public at Chicago-Kent Law School. Co-panelists included Dan Simon & "evil Dr. Nick" Scurich, my colleague Tom Tyler, and Carolyn Shapiro, all of whom gave great presentations. This is a set of notes I prepared the morning of the talk; I spoke extemporarneously, but made essentially these points. Slides here.
1. Pattern recognition is an unconscious (or preconscious) process in which phenomena are matched with previously acquired stores of mental prototypes in a way that enables a person reliably to perform one or another sort of mental or physical operation. The classic example is chick sexing: day-old chicks, whose fuzzy genitalia admit of no meaningful visual differences, are unerringly segregated by gender by trained professionals who have learned to see the difference between males & females but who can't actually say how.
In fact, though, pattern recognition is not all that exotic & is super ubiquitous: it's the form of cognition ordinary people use to discern others' emotions, chess grand masters to identify good moves, intelligence analysts to interpret aerial photos, forensic auditors to detect fraud, etc.
I'm going to be asserting that pattern recognition is part of both expert scientific judgment and expert legal judgment, & that it is the gap between expert and public prototypes that generates conflict about both.
2. Margolis's masterpiece set Patterns, Thinking & Cognition & Dealing with Risk link divergence between public and expert risk assessments to breakdowns in the translation of insights gleaned by use of the experts' pattern-recognition faculties into information the public can understand using theirs.
a. For Margolis, all cognition is a form of pattern recognition. Expert judgment consists in the acquisition and reliable accessing of distinctive inventories of patterns—or prototypes—that are suited to the experts’ domain. Necessarily, members of the public lack those prototypes, and if unaided by experts use alternative, lay ones to make sense of phenomena from that domain.
b. The point of science communication is to make it possible for members of the public to be guided by the experts. It does that not by making it possible for members of the public to know what scientists know; that’s not possible because members of the pubic lack the prototypes that would enable them to see what the scientists see. Instead, science communication engages another, distinct set of prototypes that members of the public use to recognize who knows what about what. The transmission of expert knowledge to nonexperts is mediated by another set of pattern-recognition enabling prototypes that members of the public use to figure out who knows what about what. This mediating system of prototypes is usually very reliable – people are, in effect, experts at figuring out who the experts are and what they are trying to say.
c. Nevertheless, there are some sorts of identifiable, recurring confounds that block or distort the processing of transmission of scientific knowledge to the public. The problem isn’t that the public can’t “understand” what the experts know – i.e., see what the experts see – because that’s always the case, even when the public converges on the positions supported by expert judgment. Rather, the difficulty is that the mediating prototypes are not up to the task of enabling the public to see “who knows what about what.” The result is a state of discord between the judgments experts make when they are guided by their specially calibrated pattern-recognition faculties and the ones laypeople are constrained to form on the bias of their lay prototypes relating to the matters in question.
d. Cultural cognition fits this basic account. People gain access to what’s known to science through affinity networks that certify “who knows what about what.” Those networks are plural; but they usually converge in their certifications (ones that persistently misled their members on who knows what about what would not last long). Sometimes, however, facts that admit of scientific investigation—like whether the earth is heating up, or whether the HPV vaccine will cause girls to engage in promiscuous unprotected sex—get invested with contentious social meanings that pit the certifying groups into a state of opposition. In that case, diverse people will be in a state of persistent disagreement about those facts—not because they lack scientific knowledge; they don’t have that on myriad other facts on which there is no such disagreement—but because the faculties they use (reliably, most of the time) to identify who knows what about what are generating conflicting answers across diverse groups.
3. Law is parallel in all respects.
a. Legal reasoning consists in an expert system of pattern recognition. This is what Llewellyn had in mind when he described “situation sense.” Llewellyn, it’s true, famously discounted the power of analytical or deductive reasoning to generate legal results. But for him the interesting question was how it was that there was such a high degree of predictability in the law, such a high degree of consensus among lawyers and judges, nonetheless. “Situation sense,” a perceptive faculty that is calibrated by education and professionalization and that reliably enables lawyers and judges to conform fact patterns to a common set of “situation types” (i.e., prototypes), was Llewellyn’s answer.
b. Members of the public lack lawyers’ situation sense. They do not “understand legal reasoning” not because they are deficient in some analytical faculty but because they lack the specialized inventory of professional prototypes that lawyers enjoy, and thus do not see what lawyers see. If they are to converge on what lawyers know, then, they must do so through the use of some valid set of mediating prototypes that enable their pattern-recognition faculty reliably to apprehend “who knows what about what” in law.
c. Just as there are instances in which antagonistic cultural resonances block effective use of the mediating prototypes that laypeople use to discern expert scientific judgment, so there are ones in which antagonistic cultural resonances block effective use of mediating prototypes that laypeople must necessarily use to discern expert legal judgment. When that happens, there will be persistent conflict among diverse groups of people on whether legal controversies are being correctly or neutrally resolved. See “They Saw a Protest.”
4. The law’s neutrality communication problem admits of the same solution as science’s expertise communication problem.
a. Public controversies over science are not intractable. They do not reflect inherent defects or flaws in science; nor do they reflect the (admitted) limits on the capacity of the public to comprehend what scientists know. Rather, they are a reflection of gaps or breakdowns in the mediating prototypes that members of the public normally make reliable use of to discern who knows what about. The science of science communication involves identifying those gaps and fixing them.
b. To the extent that the neutrality communication involves the same sort of difficult as the expertise communication problem, then it’s reasonable to surmise the neutrality communication problem is tractable. The idea that public conflict over law validity is an inescapable consequence of the indeterminacy of law and the resulting “ideological” nature of decisionmaking is as extravagant as saying that disagreements over science are based on the inherent “ideological bias” or indeterminacy of scientific methods. Members of the public necessarily apprehend the validity of law through mediating prototypes. Through scientific study, it should possible to identify what those mediating prototypes are, where the holes are gaps are in those prototypes, and how to remedy those gaps.
c. The advent of the science of science communication began with the recognition that it was wrong to think there was no need for one. Doing valid science and communicating science to the public are different things. Doing valid science actually does involve communication, of course, of the sort that scientists engage in to share knowledge with each other. But that communication works by engaging the stock of prototypes to which the scientists’ faculty of expert pattern recognition is specifically calibrated. Supplying that information to the public doesn’t help them to know what scientists know—or see what scientists see—because they lack the scientists’ inventory of prototypes. Effective public science communication, then, consist in supplying information that engages the mediating prototypes that enable nonexperts to reliably figure out who knows what about what. Like any other form of expert judgment, moreover, expert science communication involves the adroit use of pattern recognition faculties calibrated to prototypes that suit the task at hand.
d. The first step in the development of a science of legal validity communication must likewise be the recognition that there is a need for it. Legal professionals are in much broader agreement about what constitutes neutral or valid determination of cases than are ordinary members of the public. But just as the validity of science from the (pattern-recognition-informed) point of view of the scientist does not communicate the validity of science to the public, so the neutrality of law from the pattern-recognition-informed point of view of lawyers does not communicate the neutrality of law to laypeople. Judges communicate the bases of their decisions, of course. But the sort of communication that judges use to communicate the validity of their decisions is aimed at demonstrating the validity of their decisions to legal professionals; it does that by successfully engaging the prototypes that inform legal situation sense. That sort of communication won’t reliably enable members of the public to perceive the validity of the law, because the public lacks situation sense and thus cannot see what lawyers see. Like the existence of public conflict over science, the existence of public conflict over law is a product of the breakdown of the mediating prototypes that members of the public must rely on to know who knows what about what. Dispelling the latter conflict, too, involves acquiring knowledge scientific knowledge about how to construct and repair mediating prototypes. And as with the communication of science validity, the communication of law validity will require the development of expert judgment guided by the adroit use of pattern recognition faculties calibrated specifically at that.