I have a new post up at the CBA National Magazine’s blog, in which I summarize and discuss a most fascinating study by Dan Kahan and his colleagues at Yale’s Cultural Cognition Project. The study tried to establish, empirically, whether judges, lawyers, law students, and members of the general public would be influenced in the same way by their ideological inclinations in solving hypothetical legal problems (both of which involved statutory interpretation).
What it found was that while the members of the public are indeed swayed by politically salient but legally irrelevant facts introduced into the hypotheticals, lawyers and judges are not. Law students fall somewhere in between the public and the professionals. The study hypothesizes, persuasively in my view, that it is professional training and experience ― of whose effects it provides a very useful account for those of us not schooled in psychology and cognitive science ― that explain this difference.
The study is also valuable for making clear a difference that too often goes neglected by both the critics and the supporters of judges. It points out that its findings do not mean that judges and lawyers approach legal problems free from any ideological influences whatever. Rather, it is important to distinguish ideological commitments that are an inextricable and perfectly legitimate part of the law, and those that are not. The study provides the view that competition law should be oriented towards consumer welfare as an example of the former. This view is, or was at a certain time, not uncontested; it can be meaningfully described as ideological. But competition law must have some view of its ends if it is to function, and any such view is ideological in that sense, so saying that a judge is influenced by “ideology” as a description of his or adopting one such view isn’t actually all that interesting. By contrast, a judge resolving the same issue differently due to the identity of the parties to the case could be a sign of improper ideological influence. Existing “empirical” scholarship tends to focus on, or largely detects, ideological influences of the former, less interesting sort. This one tries to pick out the latter ― and fails, concluding that judges are not, contrary to an all-too-common stereotype, just “politicians in robes,” which should be source of great relief to those of us who believe in the Rule of Law.
There is a lot more to the study though and, I dare say, even to my comment on it. Please give them a read.
Double Aspect 