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September 30, 2018


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Scott Fruehwald

The problem is that cognitive biases are reinforcing both sides' views. Essay: Cognitive Biases and the Political Divide at .

Anthony Gaughan

I think you are absolutely right, Scott. And, as you write in your essay, cognitive biases are "not related to intelligence. Very intelligent people suffer from brain biases." That's a really important point that too often gets overlooked. Thanks for your comment.

Paul Horwitz

It is surprising that the proposition that very intelligent people suffer from cognitive biases would be overlooked. Even leaving aside sarcasm or contempt, it is certainly not ignored by those who do not portray themselves as part of the cognitive elite. It should certainly be known to those who would so identify as well, or who qualify by some kind of objective criteria. (Indeed, I would say that any member of the "cognitive elite" who is unaware that he or she is likely to be subject to cognitive biases, motivated reasoning, and so on or thinks there is some reason why he or she would be exempt has a highly dubious claim to being a member of any kind of cognitive elite status. Such a person might be educated, but I find it harder to call him or her intelligent.) And it was well known long before the language of cognitive bias, motivated reasoning, etc. were in common usage: What is Halberstam's best-selling classic The Best and the Brightest if not a whole book on this subject? That said, I agree that based on the little environments in which I most often see this group at work and play, they themselves regularly seem to overlook the possibility that their reasoning suffers from cognitive defects or distorting motivations.

I might say that, at least for lawyers and law professors and no doubt for many others, the qualities on which they often pride themselves are especially dangerous to them and make it especially possible for them to overlook the motivated nature of their own reasoning and the effects of cognitive biases. Those qualities include high forensic skills, high "reasoning" skills where that reasoning involves making clever arguments from limited factual information and isolated and heavily determinative premises, undue confidence in the usfeulness of "logic" where it proceeds from such limited facts or limited and dubious premises, and a combination of overconfidence in their own conclusions with the inability to fully appreciate the potential validity of alternative arguments or possibilities. (This often appears as an easy assumption that X is the only "logical" conclusion, an assumption whose weakness is often transparent to everyone except those who are already locked into a set of premises or assumptions.) Faith that a few facts, combined with various forensically or logically skillful tools applied to those few facts, can lead to an ineluctably correct answer is common in our field, although I should think these people would be better off searching for more facts, and attempting constantly to re-evaluate those facts and be equally aware of the possibility of other facts they are unaware of or have ignored, than attempting to "reason" their way to the truth from a weak or factually limited foundation.

The paragraph above suggests not just that people in this category may wield tools that are highly susceptible to weakness and to the influence of cognitive defects, but that they are also likely to be overconfident about the usefulness of those tools (for which they have been rewarded professionally for years, often without any available evidence to confirm or disconfirm the correctness of their arguments: winning a case or writing a widely noticed law review is not the same thing as getting to the truth) and about their own skill at using them. On this, see Philip Tetlock's Expert Political Judgment, in which experts' predictive skills are shown often to be wrong but they show great skill at mustering and deploying arguments rationalizing those mistakes.

Anthony Gaughan

Thank you for your great comments, Paul.

I have always loved David Halberstam's book, "The Best and the Brightest." It is an absolute classic, but I don't think it is as widely known as it once was. I just looked it up on Amazon and it is ranked #42,889 in sales, which to be sure is pretty good for an almost 50-year-old book. However, I don't think "The Best and the Brightest" is well-known outside history circles. A lot of history profs assign Halberstam's book in courses on the Vietnam War (which may explain its Amazon ranking) but it otherwise has a very low profile today.

That is a shame because "The Best and the Brightest" does indeed have great relevance to legal education, along precisely the lines you indicate. One of my favorite parts of the book is Halberstam's portrait of McGeorge Bundy, which includes Halberstam's telling observation that "McGeorge Bundy was a rationalist in an era which saw the limits of rationalism and which rekindled the need for political humanism." Halberstam's analysis of the decision-making process that got us into the Vietnam disaster illustrates why intellectual humility, caution, and self-awareness are essential components of true intelligence and wisdom.

It's particularly disconcerting to reflect on the fact that (according to polling data) we are more polarized today--and thus even more vulnerable to cognitive biases--than we were in 1964-65 when the US got itself into the Vietnam debacle. Indeed, in so many ways, the Iraq War (a conflict I served in) was a replay of the Vietnam War, albeit on a smaller scale. I am amazed by the extent to which Donald Rumsfeld was a dead ringer for Robert McNamara and Paul Wolfowitz was for McGeorge Bundy. But I should also add that I supported the Iraq War when it began in 2003, so I personally have no room to judge others. Despite having studied the Vietnam War, I still made the same cognitive mistakes everybody else did who supported the Iraq invasion.

Anyhow, thanks again so much for your comments.


Of course! Who cares about the merits? When we have tv ratings and polls (as if these have ANYTHING to do with the issues) and such to discuss, the merits of the nomination should matter not at all.

Thank goodness for thought leaders to guide the discussion to what is truly relevant: strengthening the polarization by ignoring the reasons it exists.

What should be the standard by which we judge decades old allegations of high school misconduct, following by decades of blemish free service? How should we judge this circumstance, if that is what the facts tend to show?

If culpable for allegations of drunkenness and belligerence when drunk in high school, but not sexual assault or anything close to that, should a candidate for SCOTUS be disqualified?

If Dr. Ford's memory of the attendees at the gathering in question is not corroborated by even one of those other alleged attendees, what weight should be given to those conflicts?

[Demonstrating his obvious prejudice and bias, the author states above: "The absence of additional corroborating evidence in support of Dr. Ford would give political cover to the three wavering Republican senators ..." instead of "The absence of any independent corroborating evidence in support of Dr. Ford's claims would cast doubt on the accuracy of her memory concerning the alleged incident."]

On a website read by and directed primarily to law professors, the issue that was not even mentioned in the post above -- the issue that clearly doesn't matter here -- is the ability of the person nominated to be a fair and competent member of the SCOTUS.

If your answer is that a sexual predator cannot so serve, then, IMHO, one might find that you don't understand the foundations of the legal system in the US, the rules of evidence, and the value of honest deliberation, objectivity and fairness.

If law professors argue that an accusation without more is proof enough, based on the gender of the accuser and the nature of the charge, then our legal system truly is in jeopardy, and, of equally great concern: what are these professors teaching their students?

Brett Kavanaugh Macho Macho Man Association of America

^^^^In my practice Jurisdiction, the OUTCRY to a therapist in 2006 is the corroboration for evidentiary purposes to establish a sexual abuse of a child beyond a reasonable doubt. The proof is the Outcry to an independent witness. Very similar to a VSI. Lets also consider the circumstantial evidence. It is circumstantial, but it is evidence. Most crimes are established that way. Nobody is going to produce a video of this sexual abuse.

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