In addition to the problematic aspects of modern instrumentalist analysis when it is taking place within a still-existing traditional formalist structure and according to procedures developed during the formalist era, the paradigm shift from formalism to instrumentalism has occasioned other changes in appellate lawmaking.

It has profoundly altered the relationship of appellate courts to the larger empirical world. It has increased the range of normal variation in the kinds of arguments thought to be appropriate to make to appellate courts and increased the routine uncertainty that exists about the kind of arguments to which appellate courts will be receptive and potentially persuaded. It has resulted in less consistency in the substance of common law doctrine across different jurisdictions. It has increased the modern movement toward unpublished opinions. It has increased the partisan political polarization of judicial appointments. And it has resulted in the declining credibility and authority of judges and courts.

The 1986 Anti-Drug Abuse Act (ADAA) established the infamous 100:1 disparity in mandatory minimums for possession of powder versus crack cocaine. Because crack is more often used by black and minority Americans, this law mandated racial disparity in sentencing that contributed to the mass incarceration of black and minority Americans. This chapter analyzes the ADAA, President Reagan’s speeches on the War on Drugs, and contemporary public discourse to demonstrate that laws are rhetorical not only in their textual construction but also in their material function. Judith Butler’s concepts frames of war and precarious life illuminate how the ADAA functions rhetorically to reestablish sociocultural norms of racial division and inequity. In this view, the ADAA is not a failed attempt to counter drug use, but a successful strategy for maintaining a racist status quo. Butler’s theories can help us understand the role of law in shaping sociocultural norms, and therefore to recognize the potential of law to reinscribe and reform those norms.

Using the Tarasoff case as an exemplar, this chapter identifies and discusses a number of specific ways in which modern instrumentalist legal analysis is burdened and compromised when conducted within the structure, and according to the procedures, of current appellate adjudication. This is the case because this structure and these procedures are, in large part, vestiges of the earlier formalist period, unchanged for well more than a century.

The selection of appellate judges on an assertedly merit basis, and not by popular election, is a means of appointing judges far more in harmony with a formalist jurisprudential paradigm than with an instrumentalist one. The exceptionally limited number and kind of inputs that are involved in appellate adjudication are far more in line with formalism than instrumentalism. The kind of empirical information that is routinely excluded from the record of a case at trial, and thus denied to appellate courts, by various rules of evidence and privilege is often information that would be useful and valuable to the appellate courts when engaging in instrumentalist common law analysis. These are procedural rules that made sense within a formalist framework that operated far more problematically in the modern instrumentalist era.

This volume offers the beginnings of an answer to the question: “How can we understand and intervene in contemporary legal practice using texts from the rhetorical tradition?” Here, the study of legal rhetoric is conceived as having a macro and a micro scale, much as a mosaic represents a picture, but it is made up of many small pebbles, tiles, or pieces of glass – tesserae. Some rhetorical texts embrace grand theories, sketching perhaps a broad expanse of a picture, but not filling in the tesserae. This volume is decidedly of another kind, depicting a variety of rhetorical traditions as applied to very specific rhetorical performances from the contemporary American legal tradition. This introduction first identifies a set of criteria for evaluating the utility of rhetorical traditions as tools for understanding contemporary legal practices. It then sketches a very brief and incomplete history of the interaction of these two fields. Finally, it describes the contributions of this volume.

In the wake of the legal realist repudiation of traditional formalism, there existed an absence of a satisfying conceptual account of appellate court lawmaking in America. This void was eventually filled, almost by default, by a notion of appellate court lawmaking that is a kind of idealized version of legislative lawmaking whereby appellate courts choose to make one plausible version or another of legal doctrine the authoritative law based on their balancing of societal costs and benefits deemed to be associated with each possibility. This approach evaluates each competing version of common law in terms of the degree to which each best advances the underlying social purposes sought to be advanced by the doctrinal area in question. This newly embraced approach is often called instrumentalism.

This chapter provides a detailed description and analysis of a famous instance of modern instrumentalist analysis by a high-profile appellate court. The case is Tarasoff v. Regents of the University of California, decided by the California Supreme Court in 1976, and announcing for the first time in the United States the existence of a formal tort law duty for a therapist to warn the intended victim of violent behavior by a patient.

INTRODUCTION

In the previous chapter, I have explored how diff erent ethical theories, pertaining to well-established ethical outlooks, can provide diff erent approaches to a justifi cation for a moral duty for judges to enhance their cognition. I have concluded that the ethical theories analyzed generally support the enhancement of judicial cognition. But despite this support, I have also identifi ed ethical constraints, mainly concerning the safety and effi cacy of some interventions, that limit the scope of this moral responsibility. In this chapter, my goal is to examine whether a moral duty for judges to enhance their cognition translates into a legal one, and in what ways the current legal framework on judicial liability, professional conduct and human rights supports or rather hinders a moral duty from existing and being complied with. As I have explained in the previous chapter, a legal obligation refers to a responsibility that a person has on the basis of a prior agreement, promise or regulatory framework, such as the law (Vedder 2019). Legal duties derive their authority from established laws and regulations within a given jurisdiction, generally carrying enforceable consequences through the legal system. They may – but need not – coincide with moral duties.

I will begin this chapter by presenting the literature on a legal obligation for high-responsibility professionals to undergo cognitive enhancement since, as with a moral duty, it has been the focus of the scholarly discussion(2).

This book has explored the prospect of enhancing judicial cognition and posited a possible moral duty for judges to improve their cognitive capacities by various means. The impetus behind this inquiry stemmed from the realization, substantiated by a wealth of empirical evidence, that judges are susceptible to various implicit biases, which can subtly shape their perceptions, judgments, and decision-making processes throughout various stages of legal proceedings. Despite posing a threat to the impartiality and accuracy of judicial decisions, implicit bias remains largely unaddressed. Existing substantive and procedural rules designed to prevent arbitrary, partial, or inaccurate legal decisions primarily focus on the explicit manifestations of biases, neglecting to adequately address the negative eff ects of biases that operate beneath the level of consciousness, and which are not subject to direct introspection. To ameliorate this scenario, the enhancement of judicial cognition has been proposed in the literature. Considering the profound impact of judicial decision-making for litigants and society, and the potential for enhanced judges to mitigate the undue influence of implicit biases, the question of a possible moral duty for judges to enhance their cognition naturally emerged. Consequently, a rigorous analysis of the subject was warranted. In this concluding chapter, I summarize my findings for each of the previous chapters(1), provide some recommendations for addressing implicit bias in the courtroom that build on my analysis, and identify avenues for further research(2).

INTRODUCTION

In our attempts to understand the law, perhaps one of the most important questions one may ask is how judges decide cases, and which appropriate explanation can be used to guide or justify their decisions. This question and others fall under the scope of legal reasoning, and throughout the recent history of legal philosophy numerous and varied attempts to answer these issues have been made. Legal scholars have the intuition (or at least the hope) that there is something distinctive about the methods that judges employ to argue, reason and decide, that goes beyond the mere knowledge of legal rules that laypeople do not possess. They claim there are special modes of reasoning that are unique to the law, and attempts to describe precisely what distinguishes legal reasoning from reasoning in other spheres of human activity (e.g., scientifi c reasoning) have been manifold.

One possible way of defi ning legal reasoning describes it as the process of devising, reflecting on, or giving reasons for legal acts and decisions, or justifi cations for speculative opinions regarding the meaning of law and its relevance to action (MacCormick 2016). This defi nition highlights the two ways in which legal theorists understand what legal reasoning is. While, at first, it may seem like an easy question, simply consisting in reasoning about the law, or about how judges should decide cases, on closer inspection it becomes clear that both of these formulations are ambiguous, at least according to some theories of law.

Every day, judges are tasked with rendering decisions that carry profound consequences both for the individuals directly aff ected by them and for society as a whole. They can decide whether a person should be sent to prison and for how long, as well as whether they can await their trial in freedom or have an early release. Judges can determine child custody arrangements that profoundly influence family dynamics, and adjudicate civil disputes with far-reaching financial ramifi cations. They can decide whether an immigrant seeking asylum should receive it, or instead be sent back to their country of origin. At the highest levels, judges have the power to interpret constitutional principles and to determine important social disputes involving fundamental rights. These decisions not only aff ect present cases, but can also reverberate to the future through the doctrine of precedent. Overall, judges hold great power in our society, and in wielding this power, we expect them to act with objectivity and neutrality. We expect judges to reach and justify their decisions with resource to the authoritative legal sources, and to not be influenced by external factors that are irrelevant to the dispute.

However, as representatives of the Legal Realism movement noted already a century ago, the reality of judicial decision-making oft en fails to meet these expectations, with extraneous factors such as judges ‘ emotions, idiosyncrasies and preferences of various kinds having an impact on case outcomes. This book focuses on one specifi c extralegal factor that can influence judicial decisions, namely, implicit bias. Unlike overt prejudice and partiality, implicit biases are not subject to direct introspection, and people tend to not be aware of them.

INTRODUCTION

Consider the following scenario proposed by ethicist Thomas Douglas (2013), in which he describes a biased judge :

Douglas initially used this example to illustrate not only the possibility but also the moral acceptability – at least from a consequentialist point of view – of biomedical enhancement. But the example also raises a diff erent question: considering the availability of such a drug, does James have a duty to use it? In other words, is there an obligation for judges to cognitively enhance themselves? By which means? And on what basis? As discussed in Chapter 1 of this book, the psychological literature on decision-making has generally found that decision quality decreases as information load increases, and that people typically use heuristics to rapidly weed out possibilities as a mechanism to handle this load – a process that can introduce some biases. Besides the increase in the information load being processed, other environmental and personal conditions facilitating the occurrence of biases and leading to suboptimal decision-making were also presented in that chapter, including mental fatigue, stress, time constraints, and cognitive decline due to aging.