Lecture 3: Cognitive Legal Realism: The Science of Law and Professional Judgment
THE CLARENDON LAW LECTURE SERIES 2017
"COGNITION, FREEDOM, AND TRUTH IN THE LIBERAL STATE"
Professor Dan Kahan - Elizabeth K. Dollard Professor of Law & Professor of Psychology at Yale Law School
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.
Dan Kahan is the Elizabeth K. Dollard Professor of Law & Professor of Psychology at Yale Law School. His primary research interests are risk perception and science communication. He is a member of the Cultural Cognition Project, an interdisciplinary team of scholars who use empirical methods to examine the impact of group values on perceptions of risk and related facts. In studies funded by the National Science Foundation, his research has investigated public disagreement over climate change, public reactions to emerging technologies, and conflicting public impressions of scientific consensus. Articles featuring the Project’s studies have appeared in a variety of peer-reviewed scholarly journals including the Journal of Risk Research, Judgment and Decision Making, Nature Climate Change, Science, and Nature. He is a Senior Fellow at the National Center for Science and Civic Engagement and a member of the American Academy of Arts and Sciences.
LECTURE 3: "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—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 with respect to 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).