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Cultural Cognition and the Thoughtful Judge
Full text linkThat judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.
Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward egalitarianism, and communitarians sometimes perceive facts differently than individualists.
But cultural cognition is underappreciated in legal interpretation. In law, cultural cognition theory is sometimes associated with legal realism, and people who are not legal realists might discount it for that reason. Recent empirical work has also concluded that judges have some skill at avoiding cultural cognition’s influence when interpreting the law.
In this Article, I argue that cultural cognition is a more powerful concern for legal judgment than recognized. If cultural cognition exists, then it can influence legal judgment according to many theories of law, not just legal realism. Legal judgment is also susceptible to influences that are hard to track empirically. Figuring out the content of disputed laws is amenable to the values-driven influences—and errors— that cultural cognition theory contemplates.
Cultural cognition poses a problem for the thoughtful judge. Avoiding its power requires cultivating a reflective and curious attitude toward legal questions, which may be expressed in judicial virtues like wisdom, temperance, and humility. Cultural cognition theory also gives reason for concern if the judiciary separates into values-based groups
Torts: Cases, Problems, and Policy Choices
No full textWelcome to the first-year course in Torts, the study of civil wrongs. This course offers a sustained exploration of private law remedies for harm arising from both interntional and accidental conduct. Over the semester, we will examine the legal mechanisms--developed by courts and legislatures--for assigning responsibility among private parties when one person\u27s conduct causes injury to another. At the heart of our inquiry lies a fundamental question: when, and under what circumstances, does the law entitle one private citizen to obtain monetary relief from another? We will study what it takes to prevail in a tort action: the doctrinal elements, theoretical foundations, and policy considerations that animate tort law. Alongside foundational cases, we will also encounter the occasional anachronism, doctrinal oddity, or legal relic. Some of these rules have fallen out of favor, and others are making a surprising comeback. From shoppers slipping on rogue pizza slices in a Target aisle to municipalities sued over monkeys escaping from understaffed zoos, tort law is a parade of the improbable. But alongside the eccentric fact patterns lie some of the most serious questions in law--about casuation, intent, and the boundaries of responsibility in everyday life. -- From the Introduction, page 4.https://www.repository.law.indiana.edu/facbooks/1347/thumbnail.jp
The Mathematics of Regulatory Fragmentation: Understanding the Multiplicative Costs of State-Level Platform Requirements
No full textThe recent wave of state-level social media regulation represents an unprecedented experiment in territorial control of digital platforms. While constitutional questions around state authority remain central to these debates, this article examines a distinct but complementary concern: the mathematical reality of how overlapping technical requirements multiply compliance burdens. These laws aim to protect youth online through technical mandates, yet they create a regulatory patchwork that generates multiplicative rather than additive costs. Following combination theory [N(N-1)/2], each new state regulation creates conflict points with existing requirements.
This article analyzes how this regulatory multiplication affects platform architecture, user experience, and safety outcomes. By examining technical requirements from recently enacted state laws, three key findings emerge. First, state-specific technical mandates force fundamental changes to platform architecture, with each new jurisdiction multiplying system complexity that reduce reliability and divert resources from actual safety improvements. Second, contradictory state requirements create compounding operational burdens, particularly disadvantaging smaller platforms and new entrants—potentially leading to strategic market exit from heavily regulated states and increasing market concentration. Third, the regulatory patchwork paradoxically undermines its own safety goals by incentivizing technical workarounds, fragmenting user experience, and constraining safety innovation—effects that compound as platforms attempt to reconcile growing numbers of conflicting state requirements. These findings suggest the need to rethink assumptions about territorial regulation of global platforms and highlight how mathematical principles can help explain the systemic challenges of fragmented digital governance. This research contributes to both practical policy debates about platform regulation and theoretical understanding of scale challenges in digital governance
Courting Bias: Effects of Gender Socialization and Judges\u27 Genders on Litigants and the Judiciary
No full textFrom 1957 to 2023: How the Supreme Court Prevented Little Rock Schools From Achieving the Ideal of Desegregation
No full textAn Argument for a Right to Education for Undocumented Youth in Light of DACA’s Uncertain Future
No full textUndocumented youth are facing increasingly difficult circumstances in which to integrate into U.S. society both socially and economically. A primary reason for this phenomenon is the current antagonistic sentiments surrounding the Deferred Action for Childhood Arrivals (DACA) program. These sentiments have created a lack of trust in this program, with fewer undocumented youth applying for DACA status, which would allow many of them to apply to public colleges and universities at in-state tuition rates. Previous research has implied that state laws have the potential to create a property interest in education, and, as such, it must be protected from arbitrary infringement. This Article applies the proposition of a property interest in education to the nine states that have challenged DACA’s legality. Contrary to what has often been assumed, the ability of undocumented individuals to pursue higher education at lower costs would benefit both states and the undocumented population. My findings indicate that benefits would include a decrease in high school dropout rates, an increase in college attendance, undocumented individuals gaining the knowledge and preparation to become upstanding U.S. citizens, and undocumented individuals becoming increasingly equal to their documented peers