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Article
Judgment, Identity, and Independence
Connecticut Law Review (2009)
  • Cassandra Burke Robertson
Abstract

Whenever a new corporate or governmental scandal erupts, onlookers ask “Where were the lawyers?” Why would attorneys not have advised their clients of the risks posed by conduct that, from an outsider’s perspective, appears indefensible? When numerous red flags have gone unheeded, people often conclude that the lawyers’ failure to sound the alarm must be caused by greed, incompetence, or both. A few scholars have suggested that unconscious cognitive bias may better explain such lapses in judgment, but they have not explained why particular situations are more likely than others to encourage such bias. This article seeks to fill that gap. Drawing on research from behavioral and social psychology, it suggests that lawyers’ apparent lapses in judgment may be caused by cognitive biases arising from partisan kinship between lawyer and client. The article uses identity theory to distinguish particular situations in which attorney judgment is likely to be compromised, and it recommends strategies to enhance attorney independence and minimize judgment errors.

Keywords
  • Identity theory,
  • cognitive bias,
  • partisan bias,
  • bias blind spot,
  • social psychology,
  • legal profession,
  • torture memos,
  • behavioral psychology
Disciplines
Publication Date
2009
Citation Information
Cassandra Burke Robertson. "Judgment, Identity, and Independence" Connecticut Law Review (2009)
Available at: http://works.bepress.com/cassandra_robertson/3/