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Monday
May042015

The law's "neutrality communication problem"

This is an excerpt from the latest CCP paper, "Ideology" or "Situation Sense"? An Experimental Investigation of Motivated Reasoning and Professional Judgment, Univ. Pa. L. Rev. (in Press).

We have suggested that the results of this study furnish evidence relevant to assessing whether identity-protective cognition affects expert scientists. We now want to show how understanding the role of identity-protective cognition in conflicts over policy-relevant science can be used to highlight the practical significance of our study results for the administration of justice.

There is an obvious sense in which the results of this study can be understood as good news for the justice system. The perception that judges are “just politicians in robes” is, as we noted, commonplace. The popular view that judges decide cases on the basis of political or cultural commitment extrinsic to law is both understandable and distressing. Yet in an experiment designed to avoid methodological limitations associated with studies that have purported to corroborate this anxiety, we found evidence that judges of diverse cultural outlooks can be expected to converge on results in cases that predictably divide the public. Their job is to decide those sorts of cases neutrally, and our evidence supports the inference that they have both the capacity and disposition to carry it out.

That such a result defies public perceptions should not come as any sort of surprise. Numerous studies have found that members of the general public themselves can be expected to conform their assessments of evidence and their interpretation of rules to the stake they have in legal outcomes that affirm the status of their groups and their own standing within them. These studies, we have emphasized, are not a reliable basis for drawing inferences about the in-domain reasoning processes of judges. But the one sort of inference that they do support is that members of the public can be expected to perceive judges to be biased in cases the outcomes of which are invested with antagonistic cultural meanings even when the outcomes of those cases reflect neutral decisionmaking.

That conclusion is, in fact, the bad news associated with our study results: the reliable convergence of culturally diverse judges on genuinely neutral outcomes has no connection at all to how untrained members of the public perceive the neutrality of those judges’ decisions. Again, because citizens lack the elements of professional judgment—the “situation sense”—that lawyers and judges acquire through their training and experience, citizens don’t have the capacity to discern those aspects of the case and the governing legal rules pertinent to assessing the neutrality or validity of judicial resolutions of them. On the contrary, in precisely those cases in which public anxiety about the cultural neutrality of the law is likely to be highest, identity-protective cognition will predictably disable members of the public from using their usually reliable lay prototypes of valid decisionmaking to assess cases outcomes. In that circumstance, no matter how expertly and impartially judges decide, one or another segment of the public will be disposed to see judges’ decisions as “politically biased” whenever courts are called upon to resolve culturally fraught controversies.

This problem is exactly parallel to the one that scientists face when empirical issues on which they possess expertise becomes entangled in culturally contested meanings. Obviously, doing valid science does not in itself communicate the validity of scientific research: people lack the expertise to see validity for themselves; they must rely on cues and processes that help them to reliably recognize who knows what about what. The capacity of members of the public to interpret those cues is compromised when propositions of risk or fact become symbols of the status of competing cultural groups. In that sort of “polluted science communication environment,” just doing valid science—including the part of valid science that consists in communicating validity to other scientists—will do nothing to silence public confusion and agitation.

Fixing this science communication problem is the aim of a new science of science communication. This subdivision of decision science uses empirical methods to identify the various dynamics that enable people to recognize as valid scientific insights that they could never verify for themselves. It aims, too, to understand, empirically, how those processes can be disrupted, and how society can effectively preempt such disruptions and counteract them when strategies of prevention fail.

Exploiting the benefits of the science of science communication will demand appropriate adjustments to myriad institutional practices. The sorts of conscious interventions necessary to protect the science communication environment from contamination are not self-executing. An integral part of the science of science communication, then, is to identify programs of implementation that appropriately reconfigure the processes for science-informed policymaking, the norms of science-generating and -consuming professions, and the structure of university training of scientists and public-policymaking professionals.

The law has a similar communication problem. Doing and communicating neutral decisionmaking are as different from one another as doing and communicating valid science. Just as solving the science communication problem demands scientific knowledge and appropriate institutional reforms, so solving the law’s neutrality communication problem will require appropriate acquisition and use of empirical knowledge of a sort aimed at expanding understanding of how people come to recognize the neutrality of the law and what law should do to make its neutrality fully recognizable.

There is one critical difference, however, between the science communication problem and the neutrality communication problem. Unlike scientists, judges are expected both to make valid decisions and communicate the validity of their work to the public. It is widely recognized that the experience of liberal neutrality in law depends on the public’s confidence that the law is genuinely impartial. The practice of reason-giving reflected in judicial opinions is understood to be intrinsic to the rule of law precisely because public assurance of the law’s neutrality depends on their access to a reasoned account of the neutral, impartial grounds for courts’ decisions.

The legal profession is doing well, our study suggests, in equipping those of its number who serve as judges to be neutral decisionmakers. But the very ubiquity and persistence of conflict over whether judges are in fact deciding cases on neutral grounds is a testament to how little the profession knows, and how poorly equipped its members are, to communicate the neutrality of the law. That deficit in lawyers’ “situation sense” is itself a barrier to citizens’ enjoyment of the value that neutral judicial decisionmaking confers on them.

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Reader Comments (5)

I've mentioned this before, but for the purpose of blog discussion: even though judges are expected to communicate the validity of their work, I would be very, very surprised if any significant fraction of the population learns about judicial opinions by reading judicial opinions. I'd be surprised if any significant fraction has ever *read* a judicial opinion (that didn't concern their own traffic ticket, divorce, etc.). There is plenty of value in giving the public access to these opinions, so any interested citizen can read one. But how can opinion-writing possibly explain the neutrality communication problem? Are judges not doing a good job of communicating with the media? Are the media not doing a good job of communicating with the public? Or do you actually think there's a straight line from the judges to the public?

May 4, 2015 | Unregistered CommenterMW

@Mw:

1. Sure, public doesn't read opinions. Doesn't follow that how courts write opinions has no effect on impressions public forms. Ask Scalia; he gets this. So we should ask ourselves: how to stop judges from being like Scalia, either on purporse or by accident.

2. The limited impact of opinions helps us to understeand that the the repertoire of devices law uses for transmitting its neutrality should be enlarged and improved.

3. Aren't *you* being a bit "opinion-focused" here in your conception of the "neutrality problem"? Indeed, a bit S Ct focused? Trial court decisions -- from Goetz to Rodney King to Zimmer/Martin -- are likely to be much more consequential. Were these trials decided neutrally? I'm not sure; but I am sure that if they were, people wouldn't perceive them to be. There's a hole, then, in the craft of *doing* justice relating to how to *communciate* it-- and it is not one that is exhausted by whether the S Ct writes opinions in a way that evinces good-faith engagement with complexity, although that is indeed one of the msgs that the judicial system fails to communicate.

May 5, 2015 | Registered CommenterDan Kahan

1. I don't know that the right question is "how do you solve a problem like Scalia?" but rather, "how DOES the way courts write opinions affect public impressions of neutrality, if at all?" I don't know that Scalia's opinion-writing is having no effect...but I'm not convinced it's having a direct effect, either. By what mechanisms do you think Scalia is doing work on the public? Doesn't that matter, if we want better judges who diffuse the neutrality problem? (Maybe I just need to read your Foreword again...)

2. Yes, definitely. I was focusing on your observation that judges are tasked with communicating their neutrality to the public. I'm not sure we want them to do that by non-opinion mechanisms (right now out-of-court communication selects for non-neutral comments), but we very well may want other actors in the legal system to take over the communicating.

3. I didn't even mention the Supreme Court in my first post! Again, I was focused on your judges-as-communicators idea, which is why I was discussing opinions. But yes, trial court verdicts and failures to indict and such probably have more of an impact. But I'm still skeptical that the one inadequately performing the craft of doing justice is the judge. Unless you're suggesting a serious reshaping of the system that puts the judge in a different role...?

I'm really just looking for some sense of the mechanics of legal communication -- that would suggest how and where the science of science communication could benefit communication of neutral decisionmaking.

May 5, 2015 | Unregistered CommenterMW

@Mw:

I don't know what standard you are using to determine "what's the question."

There is a question about whether there is a question -- that is, one can wonder whether there's really any "neutrality crisis," which I think can't be meaningfully meausred with an opinion poll.

But if there is such a thing (I think there is), then the premise that Scalia's vandalistic style of dissent contributes is plausible, in which case his opinion writing style *is* part of the problem. The premise doesn't depend on very many people in public reading his opinions either; it depends only a plausible surmise that his style enables public opinion intermediaries to more readily transmit signals that feed motivated-reasoning perception of non-neutrality. It's an empirical issue, yes. But if that's something that actually happens in the world, then it furnishes an example of how professional practice *matters*--& how collective reflection & the self-conscious propogation of better craft norms (in locations like law schools, e.g., where students start to stock inventory of "appropriate" and "inappropriate," "valid" & "invalid" ways to engage in the task of judging start to form) can matter too.

And there are many additional things to consider, as I said.

My point is that "the public doesn't read opinions" is hardly an observation that stops the "neutrality communication problem" thesis dead in its tracks.

But I suspect you agree.

May 6, 2015 | Registered CommenterDan Kahan

Yes, I agree. And I didn't mean "people don't read opinions" to be a stock-response-conversation-ender along "correlation is not causation!" lines. I think it raises important questions about how the public gets the information they use in forming opinions about the justice system.

The standard I'm using is "what question is most important to answer in order to mitigate the neutrality problem?" (I think it exists, too, but I'm not sure it's a crisis, per se.)

And I basically agree with your middle paragraph, too, I just think the mechanisms of how "public opinion intermediaries" cull from the opinion and transmit information to the public - and how the public receives it, directly or through a big game of telephone - are pretty important for mitigating the neutrality problem. Because the connection between opinion style and public perception might be very, very attenuated (although it's not implausible that it's not).

But right now I'm feeling more interested in your dualism discussion, so I'm going to go read that.

May 7, 2015 | Unregistered CommenterMW

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