Tuesday, September 4, 2012
Congratulations to Paul Secunda (Marquette) on two fronts.
First, he is quoted extensively in this Labor Day story from Milwaukee public radio: Analyst: Labor Backers Have Reasons for Optimism.
Second, he just posted on SSRN his article (forthcoming 3 Am. U. LEL Forum) Cultural Cognition Insights into Judicial Decisionmaking in Employee Benefits Cases: Lessons from Conkright v. Frommert. Here's the abstract:
Decisionmaking hubris with cognitive origins is present today in many labor and employment law cases in the United States. In two previous law review articles, I explored whether anthropological and psychological explanations of judicial decisionmaking could provide meaningful insights into how U.S. Supreme Court Justices decided some of the more controversial labor and employment law decisions.
Indeed, motivated cognition of the cultural variety, or “cultural cognition,” did robustly explain how Justices’ values in two different labor and employment law cases led to different perceptions of legally-consequential facts in those cases. Culturally-motivated cognition is “the ubiquitous tendency of people to form perceptions, and to process factual information generally, in a manner congenial to their values and desires.” The resulting opinions by the Justices in these cases suffered from “cognitive illiberalism,” which too readily discounted the views of dissenters in favor of the majority’s views of the case. Thus, in these same works, I considered potential social science and legal debiasing techniques for ridding these decisions of delegitimizing bias, while simultaneously making them more acceptable to a larger segment of society.
This article proposes to investigate how these opinion-writing and institutional debiasing strategies could work in practice in the particularly arcane and maddeningly complex area of employee benefits law under the Employee Retirement Income Security Act of 1974 (ERISA). The hope is that the professionalization of the judicial corps through the establishment of ERISA courts based on the bankruptcy court model might promote opinion-writing debiasing techniques that reduce the amount of cognitive illiberalism in employee benefits law opinions. Although no system of judicial decisionmaking will be completely free of the effects of cultural cognition, such debiasing strategies hold out the promise that employee benefit decisions will be more likely based on widely accepted perceptions of fact and evaluation of legal arguments, rather than based on the subconscious cultural biases of the sitting judge.