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Thursday
Sep072017

Precis for Clarendon lectures this Nov. at Oxford

Should all sound familiar to 14 billion regular subscribers.

“Cognition, freedom, and truth in the liberal state”

Overview

This series of lectures will use the laws of cognition to cast a critical eye on the cognition of law. Using experimental data, statistical models, and other sources, the lectures will probe how legal decisionmakers perceive facts and law and how the public perceives what legal decisionmakers are doing.  The unifying theme of the lectures will be that simply doing impartial law is insufficient to communicate the law’s impartiality to those who must obey it, and hence insufficient to deliver the assurance of neutrality on which the law’s legitimacy depends.  The lecture series will propose a new science of law, the aim of which is to endow law with the resources necessary to bridge this critical gap between professional and lay perspectives.

Lecture I: Laws of cognition and the “neutrality communication” problem

This lecture will present a simple model for systematizing the interaction between mechanisms of cognition and legal decisionmaking (cf. Kahan 2015).  It will then use the model to examine one such mechanism: cultural cognition.  The research in this area, I would argue, furnishes reasonable grounds to suspect that legal decisionmakers—juries, in particular—are vulnerale to biased decisionmaking that undermines the goals of accuracy and liberal neutrality. But even more decisively, the research supports the conclusion that the law lacks the resources (at present, anyway) for communicating accuracy and fairness to culturally diverse citizens, who as a result of cultural cognition will perceive legal decisionmaking to be mistaken and unfair no matter how accurate and impartial it actually is. This is the law’s “neutrality communication problem,” which is akin to science’s “validity communication problem on issues like climate change (cf. Kahan et al. 2012; Kahan 2011; Kahan 2010).

Lecture II: The “rules of evidence” impossibility theorem

This lecture will adopt a critical stance toward a position, dominant in the study of evidence law, that I will call the “cognitive fine-tuning” thesis (CFT).  CFT posits that the recurring decisionmaking miscues associated with bounded rationality—such as hindsight bias, the availability effect, probability neglect, representatives bias, etc.—can be managed through judges’ adroit application of evidence and other procedural rules.  Focusing on “coherence based reasoning” (CBT), I will argue that CFT is a conceit.  CBT refers to a form of “rolling confirmation bias” in which exposure to a compelling piece of evidence triggers the motivation to conform evaluations of the strength of all subsequent, independent pieces of evidence to the position that compelling item of proof supports. Grounded in aversion to residual uncertainty, CBT results in overconfident judgments, and also makes outcomes vulnerable to arbitrary influences such as order of proof (Kahan 2015).  What makes CBT resist CFT is that the triggering mechanism is admittedly valid evidence; indeed, the stronger (more probative) the item of proof is, the more likely it is to trigger the accuracy-distorting confirmation-bias cascade associated with CBT.  Accordingly, to counteract CBT, judges, using “cognitive fine tuning,” would have to exclude the most probative pieces of proof from the case—guaranteeing an outcome that is uniformed by the evidence most essential to an accurate judgment.  Symptomatic of the dilemmas that managing cognitive biases entails, this contradiction exposes the fundamental antagonism between rational truth-seeking and an adversary system that relies on lay factfinders (obviously, this is more an issue in the US than in the UK, which has restricted use of the jury system to criminal cases—although anyone criminal law is exactly the domain in which “the impossibility” of CFT ought to concern us the most, if we value liberty).

Lecture III: Cognitive legal realism: the science of law and professional judgment 

This lecture will offer prescriptions responsive to the difficulties canvassed in the first two.  One of these is the enlargement of the domain of professional judgment in law. Professional judgment consists in habits of mind suited to specialized tasks; one of the core elements of professional judgment is the immunity it confers to various recurring cognitive biases when experts are making in-domain decisions.  Experimental evidence shows that judges are relatively less vulnerable to all manner of bias—including cultural cognition (Kahan et al. in press)—when making legal determinations, both factual and legal.  The congeniality of professional judgment to rational truth-seeking should be maximized by the abandonment not only of the jury (nonprofessionals) but also the adversary system, a mode of evidence development inimical to the dependence of professional judgment on valid methods of information processing. But to supplement the enlargement of professional judgment of law, there must also be a corresponding enlargement in receptivity to evidence-based methods of legal decisionmaking.  The validity of legal professional judgment (even more than its reliability; right now lawyers’ professional judgment is reliable but not valid w/r/t the aims of truth and liberty) depends on its conformity to processes geared to the aims of the law.  Those aims, in a liberal state, are truth and impartiality.  How to attain those ends—and in particular how to devise effective means for communicating the neutrality of genuinely neutral law—present empirical challenges, ones for which the competing conjectures of experienced practitioners need to be tested by the methods of disciplined observation and inference that are the signature of science.  The legal-reform project of the 21st century is to develop a new cognitive legal realism that “brings the culture of science to law” (National Science Foundation 2009).

The end!

Refs

Kahan, D. Fixing the Communications Failure. Nature 463, 296-297 (2010).

Kahan, D.M. Laws of cognition and the cognition of law. Cognition 135, 56-60 (2015).

Kahan, D.M. The Supreme Court 2010 Term—Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law Harv. L. Rev. 126, 1-77 (2011).

Kahan, D.M., Hoffman, D.A., Evans, D., Devins, N., Lucci, E.A. & Cheng, K. 'Ideology' or 'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment. U. Pa. L. Rev. 164, 349-438

National Science Foundation. Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, Washington, D.C., 2009).

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Reader Comments (13)

Dan,

If the order of evidence presentation is biasing, why not just vary it: you've got 12 jurors, record the trial and present it to them edited in different orders.

I suspect you are just using evidence order presentation as an example of one type of bias out of many that might defeat the legal ideal. But, I'm just using altered order of evidence presentation as one type of debiasing move one can make given 12 jurors that isn't available when relying on only 1 judge.

Also, there's the useful fiction phenomenon: just because it isn't rational, that doesn't mean it isn't practical (as in William James' "The Will To Believe"). For democratic institutions, one practical outcome is social trust. That raises the bar on supplanting democratic institutions like trial by jury.

September 8, 2017 | Unregistered CommenterJonathan

"If the order of evidence presentation is biasing, why not just vary it: you've got 12 jurors, record the trial and present it to them edited in different orders."

I think the point is that order-dependence implies that the decision process cannot be rational - at which point there's no guarantee that any of the orders or any function of them would be. There's nothing special about presentation order - it's just one of many variable that we know shouldn't matter, but often do.

For example, suppose all the jurors operate the rule "The defendant is guilty if the first letter of the last word of the evidence is contained in the name "Mickey Mouse". Given the decision in every possible permutation of evidence presentation, how would you turn that into a just and rational decision?

"Also, there's the useful fiction phenomenon: just because it isn't rational, that doesn't mean it isn't practical"

I think a lot of those are cases of hidden rationality - something that is actually rational, but appears not to be because we're consciously judging by erroneous or partial models of the world.

The possibility of self-fulfilling beliefs (as in James' lecture) raises the interesting possibility of anti-self-fulfilling beliefs - beliefs that can only become true if you don't believe them, and are made false if they are believed. How do we know, without evidence, of which sort any given belief is? Which of the infinite possible alternatives do we apply it to? Tricky!

September 8, 2017 | Unregistered CommenterNiV

For example, suppose all the jurors operate the rule "The defendant is guilty if the first letter of the last word of the evidence is contained in the name "Mickey Mouse". Given the decision in every possible permutation of evidence presentation, how would you turn that into a just and rational decision?

Real human biases are plentiful and hard enough to deal with! Also, there's jury selection....

I think a lot of those are cases of hidden rationality...

Absolutely. I think that was James' point - or at least that there's wisdom in such "fictions" that makes them something other than pure fiction, and thus worth examining very closely before discarding. Similarly with biases - as argued by the James analog there, Gerd Gigerenzer.

...interesting possibility of anti-self-fulfilling beliefs - beliefs that can only become true if you don't believe them..

"The Tao that can be told is not the eternal Tao". Precedes James by a bit.

September 8, 2017 | Unregistered CommenterJonathan

@Joshua-- pretty much what NiV said. I'd add, too, that outside the lab there isn't a reliable way to manipulate the order of proof. The first piece of evidence isn't necessarily "first" in cognitive terms; particular members of the jury might not really "get it" & lock themselves into a coherence pathway until after several pieces of evidence are admitted or even until deliberations. As for whether the problem associated w/ CBR generalizes: I'll note that this is possibly true, but I really do think CBR by itself is enough to indict the system in the eyes of anyone who is dedicated to rational decisionmaking in law.

September 10, 2017 | Registered CommenterDan Kahan

@NiV & Jonathan:

I don't buy reflexive Burkean reactions to the effect that some obviously irrational part of legal proceedings serve some mystic legitimation function. In any case, it is a premise of liberal self-govt that govts don't lie to free, reasoning citizens.

September 10, 2017 | Registered CommenterDan Kahan

"I don't buy reflexive Burkean reactions to the effect that some obviously irrational part of legal proceedings serve some mystic legitimation function."

I think the problem is with the "obviously irrational" bit - like I said, these things are often cases of hidden rationality. On these things, I have "the true mathematician's caution in the presence of the obvious" (as Bell put it about Euclid and Archimedes).

It's probably true in the short term that a panel of trained experts can make better decisions than a random selection of people taken off the street. But the reason for juries of our peers is to prevent the formation of an elite ruling class, living in a cultural bubble isolated from the rest of society. There's a trade-off between the two risks.

The need for popular legitimacy in the legislation and justice systems isn't "mystic", I suggest, but the result of hard-learned and in some cases very nasty experience, and quite rational.

That's not to say it can't be improved upon. The traditional method was invented at a time when kings were still chopping people's heads off - and is a bit rough-and-ready. A bit of Bayesian methodology probably wouldn't go amiss. But don't forget - mathematicians even argue about whether Bayesianism is entirely justified!

"In any case, it is a premise of liberal self-govt that govts don't lie to free, reasoning citizens."

Agreed.

But governments consist of people, and people *do* lie. The question is how best to constrain them. Quis custodiet ipsos custodes?

September 10, 2017 | Unregistered CommenterNiV

I've seen some recent arguing for not stopping at replacing juries with judges, but also replacing judges with algorithms. This is also very rational - we can (or will be able to, at some point) tune and tweak an algorithm to be extremely unbiased, and test it extensively off-line to make sure (at least that is the theory), well beyond what training even an exceptionally able human can accomplish. Also, we can copy the same algorithm as much as necessary to overcome court backlogs. The algorithm could also have instantaneous access to all relevant cases.

I'd guess Dan would bite the bullet here and say that once we do have such AI capability, we should willingly relinquish control of institutions such as justice to the algorithms.

September 10, 2017 | Unregistered CommenterJonathan

People do tend to regard algorithms as more impartial than humans (although it depends a little on who programs them). People are more willing to have algorithms watching them, even for things they'd consider a violation of privacy in a human. (Although as AIs get more capable and human-like, that may change.) So in principle, yes, probably.

The problem is in understanding that it is not the 'official' laws they need to apply, but the unwritten rules, and they're a *lot* more complicated than the official ones, in the same way that real human languages are a lot more complicated that the 'grammar book' version. But in the same way that AIs are making progress in language translation - and doing it by a radically different approach to the formal grammars humans study it with - it's possible they will be able to decode and track human morality and values from statistical analysis of human behaviour in the same sort of way. It will be interesting to find out, certainly.

It is, of course, a staple storyline in science fiction - AIs being given control or taking over the world and then going wrong. But most of those are also about how human morality is more complex than following simple rules, and apply just as well to human judges and juries. So long as the AIs have shown that they understand that, and can be seen to understand all the complexities of human morality as well as the humans, I suspect people will be more accepting than most of the SF writers would expect.

That's a really fascinating scenario! I'll have to think some more about that. Thanks!

September 10, 2017 | Unregistered CommenterNiV

link for Dan:
https://ssrn.com/abstract=3032826

September 10, 2017 | Unregistered CommenterJonathan

NiV,

algorithmic justice/politics in the news:
https://phys.org/news/2017-09-congressional-redistricting-contentious-algorithm.html

I think there will be cases where such algorithms are trusted more than humans. However, I'm not sure this will be the case with judges and juries.

September 11, 2017 | Unregistered CommenterJonathan

@NiV & @Jonathan--

Don't forget Lexy.

September 11, 2017 | Registered CommenterDan Kahan

Don't forget Lexy.

Why not? You made a compelling argument that Lexy was eminently forgettable.

September 11, 2017 | Unregistered CommenterJonathan

"link for Dan:"

Heh! Use large enough sample sizes, and a correlation of 0.07 is "highly significant"! I like it! :-)

"I think there will be cases where such algorithms are trusted more than humans. However, I'm not sure this will be the case with judges and juries."

So am I. I think that people will eventually believe AI to be *capable* of being more accurate and trustworthy than humans. But an AI with human-level intelligence may thereby be as capable of being corrupt or autocratic as a human. Trained on the data to emulate human morality, it would necessarily have to be able to emulate all the ways humans can get morality wrong. Copying humans, it might copy our faults. Or in recognising our faults and deciding to differ from humans, it would be setting up its own morality above ours. Who gets to decide what's a "fault"?

There are all sorts of interesting philosophical questions here! I don't know the answers, though.

September 11, 2017 | Unregistered CommenterNiV

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