There was a very interesting piece by Maggie Koerth-Baker yesterday in New York Times magazine, about the ways in which we make up and change our minds. The immediate context to which it is directed is U.S. presidential campaign, in which both contenders (though especially Mitt Romney) have had some notorious “flip-flops.” But of course the issues it explores are relevant beyond the field of politics; for example, they are of great importance to the law.
The law, as Ronald Dworkin, Jeremy Waldron, and others like to remind us is (in prof. Waldron’s words) “an argumentative practice.” A huge part of it involves two sides arguing their cases in front of an adjudicator or a group of adjudicators, who must then make up their minds about the decision. The parties are required to present evidence in support of their arguments, and the adjudicators’ decision is expected to be responsive to that evidence. What Lon Fuller might have called the forms and limits of persuasion matter enormously to lawyers and all those interested in the law’s operation.
But is persuasion just a pipe dream? In the final sentence of the article, Jonathan Haidt, a professor of psychology at NYU’s Stern School of Business says that “the truth is that our minds just aren’t set up to be changed by mere evidence and argument presented by a ‘stranger.’” That doesn’t bode well for the enterprise of law. Fortunately, what the article says before reaching this grim conclusion suggests that it is, in fact, misleading.
For one thing, the tendency to ignore evidence and argument manifests itself more or less strongly depending on context. “In some cases,” says Ms Koerth-Baker, “if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping” – or, less contemptuously, changing our minds in response to facts and arguments. “This is why juries function,” – and judges, too, of course – “and it’s what places pressure on scientists to form opinions based on reliable data.” The ethos of a dispassionate, careful decision-maker, one who must consider and respond to facts and arguments and, if necessary, change one’s mind, can apparently go to great lengths to overcome our natural inclination to decide on the basis of emotions and partiality to our own kind.
For another, knowing that one will be giving reasons for a decision changes the way one approaches making it. “Simply having to articulate why you believe what you do can also end up changing your attitude.” Not always in entirely desirable ways. People who know they must explain their decisions will sometimes take the decision that is easiest to explain, even though they might feel it is not quite right substantively. We might guard against the danger But, suggests a psychologist from the University of Virginia, ” if you have to explain your preferences, you’re likely to adopt an attitude that makes sense to your interlocutor, even if it conflicts with your emotions.”
The way our justice system is set up helps ensure that our judges are open to persuasion by evidence and arguments. Judges believe in and are committed to the impartial decision-maker’s ethos, which suggests that they are likely to do a decent job living up to it. In order to help them do so, and also in order to verify whether they do, there is a strong expectation, increasingly taking the form of a legal rule, that judges will give reasons for their decisions. These reasons typically summarize the parties’ main arguments, and respond to them. This forces judges “to adopt an attitude that makes sense to” the parties, as well as to consider the parties’ views. This, turn, is one of the ways in which law protects human dignity, as Jeremy Waldron points out. (Perhaps, in this limited sense, reason-giving can in fact exercise a “pull towards goodness,” on judicial decisions, a possibility about which I have otherwise expressed skepticism, assuming a more substantive meaning of “goodness.”) And perhaps our judicial selection mechanism, which means that judges are recruited from the ranks of experienced litigators and legal academics, two professions which prize and help develop one’s ability to articulate one’s thinking, helps limit the risk that judges will give insincere but easy-to-state reasons for their decisions.
Despite my usual gloomy disposition (including a lack of faith in judges, at least when it comes to their ability to develop legal rules, as for example here), I am inclined to conclude on an optimistic note today. Our courts are organized in ways that counteract human beings’ poor decision-making skills, which psychologists are now describing in ever more depressing detail. And it is noteworthy that this is the result of a gradual development of the court system, rather than of its deliberate organization on scientific lines. (Those who hear an echo of Hayek here are right.) Our individual decision-making might be bad, but the accumulated intuition of generations is surprisingly good.