Judicial Mindsets: the Social Psychology of Implicit Theories and the Law

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 611. Judicial Mindsets: The Social Psychology of Implicit Theories and the Law

Judicial Mindsets: The Social Psychology of Implicit Theories and the Law

Victor D. Quintanilla (fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 611

II. The Social Psychology of Implicit Theories ............. 616
A. Implicit Theories of Human Nature ................ 617
B. Implicit Theories of Society and Social Institutions ..... 621
C. The Social and Situational Dimension of Implicit Theories .......................................... 624

III. Judicial Decision-Making and Implicit Theories ........ 626
A. Implicit Theories and Fact Finding ................ 627
B. Implicit Theories and Jurisprudence ............... 630
1. The Common Law ............................. 634
2. Statutory Interpretation ....................... 637
3. Constitutional Law ............................ 640

IV. Studying the Social Dimensions of Judicial Decision-Making ............................................... 645

I. INTRODUCTION

Legal scholars and social scientists from a range of disciplines have converged on a question that legal realists posed long ago: Does the actual practice of judging differ from the traditional account of judicial decision-making and if so, then how?(fn1) To examine this question,

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large-scale qualitative and quantitative studies have flourished.(fn2) From the field of political science, we are discerning that, while precedent constrains judging, political ideology subtly influences judicial behavior in a number of contexts.(fn3) From the field of law and psychology, we are uncovering that cognitive biases, preconceptions, and prejudice lead reasoning and judgment to depart from normative theories of rationality.(fn4) We are actively investigating the heuristics that judges employ, their cognitive biases, and the potential shortcomings of their judgment. These research paradigms confirm the contemporary

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relevance of Justice Holmes's theory that judging is not merely a deductive feat,(fn5) that "[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do [with legal reasoning] than the syllogism. . . ."(fn6)

The law and psychology community has studied jury decision-making extensively, and in the past decade, the field has turned to investigating the psychology of judging.(fn7) This research has primarily examined the cognitive and motivational dimensions of judging, i.e., heuristics, motivation, biases, schemas, attitudes, and motivated cognition.(fn8) The line of inquiry, however, has largely left unexplored the social, contextual, and situational nature of judging: one of social psychology's unique contributions to understanding judicial behavior.

This Article introduces science and research on the social psychology of judging with the aim of advancing a research agenda designed to examine the influence of social, contextual, and situational forces on judicial decision-making: situated cognition.(fn9) This research agenda investigates the social nature of judging from the perspective of "Behavioral Realism."(fn10) In exploring this aspect of judicial behavior, the

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approach draws on multiple techniques, including experimental methods and theories in the field of social psychology.(fn11) The field of social psychology offers a unique vantage point to examine how societal forces, social environments, and situations influence judging.(fn12) For the social psychologist, the level of analysis is the individual in the context of a social situation.(fn13) The field studies the individual within social context to understand how social contexts, situations, and environments influence attitudes, cognitions, and behavior.(fn14) Further, while much quantitative research on judicial behavior employs the technique of empirically studying federal case law, a research line premised on social psychology would adopt both empirical legal studies and experimental methods to study judicial behavior.(fn15) Because the field draws largely on experiments to investigate social and situational

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influences, the field offers both theoretical insights and an array of scientific methods to study the social and situational dimensions of judicial behavior. A law and social psychology approach to studying judicial behavior may, one day, illuminate psychological processes by which American society acculturates and socializes judges and, thereby, shapes law.(fn16) As Justice Cardozo famously observed, "[t]he great tides and current which engulf the rest of men do not turn aside in their course and pass the judges by."(fn17) In this way, a law and social psychology approach may, one day, uniquely contribute to the study of how American law evolves to reflect change in American society.

An important theoretical contribution of social psychology is research on implicit theories. This research has revealed that humans hold implicit theories about human nature, social institutions, and society. At the forefront of this science, Dr. Carol Dweck and her colleagues have shown that humans operate with different implicit theories about whether these phenomena are fixed versus dynamic, static versus malleable.(fn18) For example, in certain circumstances, we might believe that one's moral character may change and develop a transgression today, but temperance tomorrow; in other circumstances, we might believe that moral character is static and cannot change-once a scoundrel always a scoundrel. These implicit belief systems often operate outside of our awareness. They shape the meaning we draw from social contexts, the decisions we make and our predictions, and how we attribute blame to others. Implicit theories are often called mindsets. This psychological research shows that these different implicit theories are social constructions: the implicit beliefs are shared, expressed, and transmitted within society, organizations, and environments.(fn19) That is, social influences and situational

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factors influence whether we adopt fixed versus dynamic mindsets.(fn20)

Dweck's research suggests these implicit theories about human nature, social institutions, and society may shape the deep, often unconscious, presuppositions and beliefs that jurists bring to legal decisions.(fn21) Like lenses through which we examine the world, these implicit belief systems shape how jurists find facts in particular disputes, the inferences jurists draw, and the punishment judges impose.(fn22) As well, these implicit theories may influence how jurists reason and resolve questions of interpretation under the common law, statutes, and the Constitution, a matter I turn to below.(fn23) Experimental research is warranted to investigate how this science may enrich our understanding of legal reasoning and judicial behavior.(fn24)

This Article proceeds in three parts. Part II introduces the reader to social psychological research on implicit theories. Part III presents a general discussion of how these implicit theories likely affect judicial fact finding and the interpretation of common law, statutes, and the Constitution. Part IV offers closing remarks and recommendations for a research framework to investigate these questions.

II. THE SOCIAL PSYCHOLOGY OF IMPLICIT THEORIES

In recent decades, experimental psychologists have studied the implicit theories people hold about personality, social arrangements, and society.(fn25) Leading this important line of research, Dweck and her colleagues have conducted seminal experiments demonstrating that people hold markedly different implicit theories about whether human nature and institutions are primarily fixed and static versus dynamic and malleable.(fn26) This research has shown that people's implicit beliefs

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powerfully shape their perception, judgment, and decision-making.(fn27) These mindsets influence the meaning people draw from their observations of others and how they understand their own experiences.(fn28) The theories are implicit because, unlike most scientific theories, the theories are rarely elaborated and often operate outside of awareness.(fn29) Like systems of folk psychology, or larger meaning systems, these implicit beliefs strongly influence how people organize their experience in, knowledge about, and transactions in the world.(fn30) These mindsets shape people's attributions and inferences, along with social events.(fn31) The implicit theories are not mere individual differences or personality differences. Instead the mindsets are expressed and shared socially and culturally within situations and environments, which powerfully influence the degree to which these mindsets operate.(fn32)

A. Implicit Theories of Human Nature

There are two contrasting implicit theories about personality and moral character: human nature is static and fixed versus dynamic and malleable.(fn33) One theory is termed an entity mindset. When an entity theory is salient, people believe human nature is static, fixed, immutable, and unchangeable.(fn34) People tend to interpret human nature based on immutable, static traits (e.g., caring, honest, intelligent,

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criminal, reckless). With an entity mindset, people expect that behavior is driven by...