Sunday, August 26, 2012
I have talked a lot on this blog about the ideas of Daniel Kahneman on how cognitive biases affect our thinking, and I have written a review of how his ideas apply to law and legal education. (here) Now, four authors have written an article that applies Kahneman's ideas to a focused chunk of legal education--how the order that torts are taught affects the students' views of the judicial role.
What's on First?: Organizing the Casebook and Molding the Mind by Donald G. Gifford, Joseph Leonard Kroart, Brian M. Jones, & Cheryl Cortemeglia.
Abstract: This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all three groups of students shifted toward a belief that judges consider social, economic, and ideological factors, the degree of the shift differed in a statistically significant way depending on which torts their professors taught first. These differences persisted throughout the semester, even after they studied other torts. Further, these differences were observed even when the analysis controlled for law school ranking and were more pronounced among students attending the highest ranked schools.
In interpreting the survey results, the authors employ sociologist Erving Goffman’s theory of “frame analysis” and the work of cognitive psychologists including Amos Tversky and Daniel Kahneman on “anchoring.” The Article concludes that the category of tort liability to which students are first exposed affects the “frame” or “lens” through which they view the judicial process. This frame becomes anchored and persists throughout the study of other tort categories. The lessons about the nature of the judging process learned implicitly through the professor’s choice of topic sequence may be even more important than the substantive topics themselves.