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Friday
Apr052013

The equivalence of the "science communication" and "judicial neutrality communication" problems

Gave a talk for the Yale Law School Executive Committee today.  

Basic claim was the psychological & professional equivalence of the "science communication problem"and the "judicial neutrality communication problem."  

1. Just as doing valid science doesn't communicate the validity of it to citizens whose collective decisions need to be informed by science, so doing neutral decisionmaking doesn't convey the neutrality of it to citizens whose rights or interests or status is being affected by law.

2. As a result, cultural polarization can be expected to occur about the neutrality of constitutional decisions even when those decisions have been resolved "neutrally" with reference to the craft norms of law, just as cultural polarization can be expected over the validity of science even when scientists are doing valid science with reference to the craft norms of science.


3. The "science of science communication" is about using science to improve the communication of valid science in democracy.  Its success depends on the integration of that science into the training of scientists and science-informed policymakers.

4. Law similarly needs a "science of neutrality communication." And it success will depend on law scholars committing themselves to producing it, law schools instructing students in it, and the profession including the judiciary becoming active participants in shaping its direction and use. 

Slides here.

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Reader Comments (5)

This is fascinating - as one of the contexts that really coalesced my opinions on motivated reasoning was SCOTUS rulings - most specifically the way the libz and the conz on SCOTUS justified their reversal of ideology on states' rights on Gore V. Bush.

...even when those decisions have been resolved "neutrally" with reference to the craft norms of law,

What are your reflections on the predictable nature of how the SCOTUS justices vote? Seems to me that they view principle almost entirely from a partisan lens - and easily do 180s depending on the political ramifications. Consider, for example, how those against "judicial activism" have been the most judicially activist (w/r/t overturning precedent), perhaps in history. I remember seeing some articles discussing how Gore V. Bush significantly undermined the public's trust in the non-partisan nature of SCOTUS. How could the justices on SCOTUS be anything less than motivated reasoners, Dan?

April 5, 2013 | Unregistered CommenterJoshua

Dan, given Joshua's point, do you have a trust index for SCOTUS as you do for scientists?

I think it would show high respect, and that by secluding themselves from overt advocacy their motivated reasoning is within a believable framework. An example is that the work together and ask questions similarly even when they vote the opposite on a ruling. How you looked into this or could you as you did the scientists study in your slides?

April 6, 2013 | Unregistered CommenterJohn F. Pittman

@Joshua & @JFP:

I can't say I'm convinced that judges are not influenced by "politics" or cultural dispositions or the like in ways or to a degree that they shouldn't be b/c in fact I don't have evidence & *also* I'm convinced that this is something that is very very hard to observe directly. Some considerations:

1. Likely you realize that there is an inherent selection bias in litigation: cases the outcomes of which are easiest to predict are more likely not to be filed or to settle, etc; accordingly, litigated cases will be skewed toward noisier, less predictable outcomes; this effect is magnified in S Ct, which tends to select for review cases that have *divided* lower courts! In theory, then, judges could agree on 99.99% of outcomes, including ones that have clear political significance, and we'd still see a picture of outcomes where judges seem to disagree to a surprising extent and possibly too where "ideology" or whathaveyou ends up making a difference only b/c the "law" in such cases has so much less purchase than usual. Political science & legal scholar studies that try to correlate outcomes w/ measures of judge ideology (like party of appointing president) blithely ignore this problem.

2. Such studies also ignore the distinction between the *evaluative* role that political (or cultural) values can play internal to law vs. the external *cognitive* influence of them in distorting apprehension of law. Often the law requires what amounts to a political or moral theory; e.g., is antitrust law about "maximizing consumer welfare" (Bork) or preserving the market as an outlet for competitive indivudal striving of some sort (Douglas, J., sadly I don't do justice to the theory-- I don't get it!)? Is "free speech" about protecting the individual from state-enforced influences on his or her choice of best way to live (J.S. Mill) or about assuring the unimpeded flow of argument and reason-giving that democratic politics assumes (Micklejohn)? Etc. Those sorts of questions are "law" questions yet they depend both on committing to one or another theory & reasoning from it in a more or less philosophical way. It is unsurprising that both what theory a judge selects and how he or she reasons from it will be correlate w/ that individual's "ideology" or "values" -- & no lawyer would see that sort influence as "political" in any way that isn't also perfectly consisteing with *doing* law. On the other hand, if someone is picking a result to help the democrats or republicans -- I can see why one woudl viewt Bush v. Gore in that category, say -- then that's an extraneous influence of values on law. Similarly if one *perceives* that a protestor is hitting someone on the head w/ a sign conditional on whether (a) one is a conservative or liberal & (b) the protestor is an anti-abortion or a DADT protestor. Conscious or not, in the latter two cases, that is instance of subversion of law by eternal ideology or culture or whatehaveyou. The political science/law review observational studies can't separate out these two sorts of outcomes and thus overestimate the impact of "ideology" etc. See this piece for a discussion of this issue.

3. For these reasons, I think experimental testing is a more fruitful way to figure out if judges are influenced by cultural cognition or like forms of motivated reasoning. I think the hypothesis that judges *won't* be influenced as much as, say, members of public would be when they are engaged in legal analysis but *will* be influenced as much when forming perceptions of risk is very plausible. Judges have professional habits of mind, just like scientists do. But the latnerqative hypotyhesis -- that motivated reasoning will be rife in judges -- is at plausible too, I just think less so. Eager to find out!

4. Lawyers are *less* likely to think the S Ct is politically motivated than are members of the public. I will track down the study -- it is fairly recent -- that found this & post it. This fits my own casual observation & is consistent w/ the premise that laypeople will tend to perceive decisions of S Ct to be "ideological" even when lawyers would agree that the deicisons are "valid" from point of view of law. BTW, I think lawyers (judges too) would draw a distinction between saying "that decision is incorrect" and "that decision is invalid." That is, often lawyers or dissting judges will believe that a court should have decided the "other way" but that the court still reached a conclusion in an appropraite way -- by relying on and applying in good faith materials that the law recognizes as authoritative.

5. On trust, I take it you mean, @JP, public satisfacation w/ S Ct? Traditiohally it has been very high. But the trend is definitely downward in recent years. Check out this Pew Report. I suspect that the Court's performance has contriuted to this some; but I also think that the background in which people try to make sense of the Court has become more conducive to forming of politically polarized opinions.

6. There was an interesting competition between a computer that political scienitsis programmed to predict outcomes in the S Ct and "experts" from the legal academy. The political scientists' computer used an algorithm that gave consdierable weight to what one would view as "ideological" or "political" criteria. The computer got 75% of the cases for the term in question correct; the experts got 60%. Victory for the political scienitsits & the ideology thesis? Well, no one bothered to point out that the U.S. S Ct reverses 75% of cases it takes yr in & yr out; that's not surprising b/c docket is discretionary & Ct is more likely to grant review in case that it thinks is incorrectly decided. But once one takes this into account, it beocmes clear tht the computer was no better than a properly weighted coin toss. The "experts" were worse, though; that's scary. Actually, Linda Greenhouse, the former reporter on S Ct for NY Times, beat them all. I think she is more of an expert, frankly, than the ones the investigtators included in their sample, few of whom actually had lots of experience w/ the S Ct's decisionmaking across all manner of cases.

April 6, 2013 | Registered CommenterDan Kahan

A question on your "considerations" about neutrality in judicial decision-making:

On your second point. re: the distinction between culturally-motivated "evaluative" reasoning and "external" considerations....I would like to understand better what you mean by "neutrality." If one believes that hierarchical or egalitarians tend to share a worldview and normative framework, as well as a sense of group solidarity (in as much as your other research relies on them doing so, ie. in regards to protection of their group status), what is the difference in claiming that reasoning from their particular (non-neutral, highly contested) cultural stance is distinct from saying they are reasoning as "republicans" or "democrats" (also highly contested frameworks correlated to these cultural frameworks) - there may be a slight variation in membership between the groups but what is the distinction re: neutrality? Neutrality to what? If we say that a SCt justice came to a particular conclusion "neutrally" based on reasoning from their highly-contested cultural beliefs - to what are they neutral? To the outcome? Isn't the typically most contested issue in cases that garner a public perception of non-neutrality from the SCt, the very sort that rest on these contested cultural norms and the reasoning they consequently inspire (w/Bush v. Gore the aberration - I'm thinking more Roe-line of cases, Health Care, Same-sex marriage, religious freedom, etc.)? I would be surprised if people's perception of non-neutrality in judicial decision-making goes deeper than this selection-bias w/in a selection bias....(which is just one among many reasons why it is not surprising that lawyers perceive less ideological bias than those looking at a smaller universe of outcomes). I'm not saying the distinction doesn't exist philosophically, I am just wondering what is the import regarding perceptions of neutrality in judicial decision-making?

April 6, 2013 | Unregistered CommenterTHD

@THD:

1. I don't think for present purposes it makes any difference whether we say that the source of the bias -- the threat to "neutrality" -- is political (Republican vs. Democrat) or ideological (liberal vs. conservative or whatever) or cultural (hierarchical vs. egalitarian, individualistic vs. communitarian, cosmpolitan vs. traditionalist, tastes great vs less filling, etc). That's one of the points of the essay I linked to. I don't understand your question to be saying otherwise, but I do want to be sure that I'm not misunderstood on that before addressing the more interesting issue.

2. I think "neutrality" as it typically figures in debates among constitutional theorists and even some judges is a product of the attraction of abstract thinking that gets no one anywhere except into a state of agigation and confusion. Is it possible to be "neutural" given contested cultural & political perspectivdes etc? I thnk the question is ill-posed!

3. There is, however, a state of real, reciprocal accommodation that people who hold strongly divergent understandings of the best way to live can achieve within a shared political order. The attainment of it can allow people who are the lineal cultural descendants of people who for centuries chopped one another's heads off over sectarian disagreements to live together not only peacefully but profitably. The citizens of a regime of that sort will converge on practices and norms, including but not limited to legal protection of recognizably liberal freedoms. With refernece to those, they will form reliable practical understandings of a kind of what being "neutral" (whether they call it that or not) demands of the state and of them as they engage in collective decisionmakign and other public interactions. They will also form strong expectations that neturality in law and these related norms and practices will be respected. They'll do & expect all of this despite the impossibility of their being some stance that is "neutral" w/ regard to the competing perspectvies of republckans & democrats, hierarchs & egalitarians, etc. -- just as bees will manage to fly despite the puzzlement of mathematicians.

4. Judges have a critical role to play in enforcing this kind of practical neutrality in a liberal constitutional regime. They will develop workable rules and doctrines and reasoning strategies for carrying it out. Doing all of that, of coruse, will demand the cultivation of professional habits of mind that enable them to discern what being neutral requires; and what they *see* will necessarily be different from what those who are depending on them to perform this expert function will see. Doing neutral judging -- and showing other professionals that one is doing it-- will thus be entirely differnt form communicating neutrality to those who are entitled to have it. And because having it necessarily depends on experiencing assurance that the law is in fact neutral, it turns out that communicating neturality must be something judges in a liberal regime must become experts at too.

I'm sure this account is still incomplete -- wrong, even! but that's inevitable & actually not a problem so long as one's account is close enough to true to be useful --but is this clearer? If so, please help me to become less confused!

April 6, 2013 | Registered CommenterDan Kahan

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