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Full-Text Articles in Law
Cognitive Bias And The Constitution, Dan M. Kahan
Cognitive Bias And The Constitution, Dan M. Kahan
Chicago-Kent Law Review
This article uses insights from the study of risk perception to remedy a deficit in liberal constitutional theory—and vice versa. The deficit common to both is inattention to cognitive illiberalism—the threat that unconscious biases pose to enforcement of basic principles of liberal neutrality. Liberal constitutional theory can learn to anticipate and control cognitive illiberalism from the study of biases such as the cultural cognition of risk. In exchange, the study of risk perception can learn from constitutional theory that the detrimental impact of such biases is not limited to distorted weighing of costs and benefits; by infusing such determinations with …
Judicial Overstating, Dan Simon, Nicholas Scurich
Judicial Overstating, Dan Simon, Nicholas Scurich
Chicago-Kent Law Review
Ostensibly, we are all Legal Realists now. No longer do legal theorists maintain that judicial decision making fits the mechanical and formalist characterizations of yesteryear. Yet, the predominant style of American appellate court opinions seems to adhere to that improbable mode of adjudication: habitually, opinions provide excessively large sets of syllogistic reasons and portray the chosen decision as certain, singularly correct, and as determined inevitably by the legal materials. This article examines two possible explanations for this rhetorical style of Judicial Overstatement. First, we review the psychological research that suggests that judicial overstatement is a product of the cognitive processes …
Deference To Authority As A Basis For Managing Ideological Conflict, Tom Tyler, Margarita Krochick
Deference To Authority As A Basis For Managing Ideological Conflict, Tom Tyler, Margarita Krochick
Chicago-Kent Law Review
American’s are polarized in their views about a variety of social and economic issues. This raises the question how political and legal institutions can develop policies and practices that will be accepted by all the various sides to a public controversy. One approach is to build legitimacy, since people are generally more willing to defer to legitimate authorities. The results of a study in which people are asked about their willingness to accept decisions made by the Supreme Court or Congress suggests that the process through which institutions make policy decisions shapes deference in ways that are distinct from the …