Facts matter, especially in labor and employment law cases. But not in the way that labor scholars of a generation ago understood. Those scholars correctly posited that judicial perception of facts reflected previously-held values and assumptions rather than record evidence. Yet crucially, those scholars did not describe the psychological mechanism by which judges’ values came to shape facts in labor and employment law cases. Understanding the psychological mechanism by which judicial values shape legal decisions is a necessary first step to set up a framework to counteract the impact of cognitive illiberalism, a form of cognitive bias that impacts society writ large, in such decisions.
Psychological realism in labor and employment law explains that judges in these cases are generally not self-conscious partisans but rather decisionmakers who seek most of the time to get the law right without being ideologically committed to any prior legal or political view. Yet, values matter because judges, as human beings, cannot help but to act based on their culturally-informed perceptions of legally consequential facts.
By understanding the mechanism by which values influence decisionmakers in labor and employment law cases, it is possible to consider ways to reduce needless cultural conflict over, and discontent with, the law. To this end, this article considers a spectrum of judicial reform proposals which seek to help judges address the increasing complexity of labor and employment law cases in a manner which would also reduce the incidents of impact of cognitive illiberalism in American society.
- Psychological realism,
- culturally-motivated cognition,
- labor and employment law,
Available at: http://works.bepress.com/paul_secunda/9/