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. Because there has been very little attention paid in the academic literature to changing institutional structures as a method of debiasing, this article investigates institutional debiasing strategies that may work to minimize conflict in society over labor and employment law decisions. 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.
- culturally-motivated cognition,
- cognitive illiberalism,
- court legitimacy,
- institutional debiasing strategies,
- specialized courts,
- specialized judges
Available at: http://works.bepress.com/paul_secunda/11/