Cultural Cognition at Work

Abstract

Cultural cognition theory provides an anthropological and psychological-based theory about how values actually influence judicial decisionmaking. It suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decision-making. Applying these insights to two controversial United States Supreme Court labor and employment decisions, this Article contends that judges in many instances are not fighting over ideology, but rather over legally-consequential facts. This type of disagreement is particularly prevalent in labor and employment law cases where the factual issues that divide judges involve significant uncertainty and turn on inconclusive evidence. This distinction between ideology and cultural cognition is critical for two connected reasons. First, the identification of cultural worldviews, as opposed to partisan or legal bias, as a major influence on judicial decisionmaking assists in bringing legitimacy back to the judging function. Second, social science research indicates that techniques exist for judges to counteract their susceptibility to this form of biased decisionmaking.