The New Enlightenment, Part 2: Mind, Law, & the Naive Cynicism of Tetlock, Wax, and Mitchell
1.1 Philosophy In Science
Not long ago, in a galaxy not too far away, Daniel Dennett published an elegantly short essay titled “The Part of Cognitive Science That Is Philosophy” (Topics in Cognitive Science 1, 2009, 231-236), in which philosophers are encouraged to do work, in view of Andrew Brook’s distinction, that simultaneously qualifies as philosophy of cognitive science and philosophy in cognitive science.
Philosophers you say? Yes philosophers – although not the customary Anglo sort. Dennett humbly includes himself as taking part in the untidiness of philosophical tradition and largely passes by the vanity, absurdity, narrowness, arrogance, meaningless toil, and countless superstitions contemporary, philosophical mammals have been occupied with. Dennett merely acknowledges that “there is no dearth of reasons why philosophers are regarded askance (at best) by many in the scientific community and they are familiar enough so that I will just acknowledge them in passing” and goes on to note the habit of philosophers to comically misjudge their competence and their “bumblebee deductions – proving from ‘first principles’ that bumblebees cannot possibly fly.” Yet, a richer context for these remarks should prove illuminating. Dennett has elaborated elsewhere, as in, for example, his contribution to the important volume Phenomenal Concepts and Phenomenal Knowledge (Oxford, 2007). Dennett concludes his essay ‘What RoboMary Knows’:
That’s the trouble with “pure” philosophical method here. It has no resources for developing, or even taking seriously, counterintuitive theories, but since it is a very good bet that the true materialist theory of consciousness will be highly counterintuitive (like the Copernican theory – at least at first), this means that the “pure” philosophy must just concede impotence and retreat into conservative conceptual anthropology until the advance of science puts it out of its misery. Philosophers have a choice: they can play games with folk concepts (ordinary language philosophy lives on, as a kind of aprioristic social anthropology) or they can take seriously the claim that some of their folk concepts are illusion generators. The way to take that prospect seriously is to consider theories that propose revisions to those concepts.
Dennett anticipates a high frequency of important mistakes within the new field of cognitive science. Philosophers are therefore free to “sit in the trees sniping away merrily.” But “that is not constructive.” We should rather “help them sort it all out, asking, not telling, being tentative, not preemptive, in our criticisms.” If you can “help scientists design experiments, they take you more seriously than they otherwise would do.”
Dennett concludes his short article with the admonishment:
It is worth remembering that the main reason everybody – really, just about everybody – is fascinated with, and troubled by, work in cognitive science is that it so manifestly promises or threatens to introduce alien substitutes for the everyday terms in which we conduct our moral lives. Will we still have free will? Will we still be conscious, thinking agents who might be held responsible? Does suffering really exist? It is because we truly need good, philosophically sound, scientific answers to these questions and not to any substitutes, that philosophers have a very substantial job to do in the ongoing progress of cognitive science.
1.2 Promises and Threats in the New Enlightenment
Research in cognitive science simultaneously promises and threatens – somewhat like, perhaps, the old covenant of blessing and cursing; repentance before grace, death before resurrection . . . buckle up and take a deep breath. Cognitive science tinkers with our everyday concepts on which our moral lives are built; thus, as Jesus himself might have put it, our old wine skins are not going to be sufficient for the new wine.
There is, then, a sense in which philosophers can play the role of mediating parish priests as the old empire crumbles and a new age dawns. But the New Enlightenment (see Christopher Hitchens’ final chapter in god is not Great, 2007 and Lakoff’s The Political Mind, 2008; see also the last entry here in the Wood ) is a project far more interdisciplinary than these directives, taken alone, might suggest. Without literature, developmental psychology, anthropology, social psychology, investigative journalism, neurobiology, ichthyology, and entomology, to name a few (Christopher Hitchens reveals some valuable social insights from his study of pigs), it is not clear how fast we are to progress in anything like a New Enlightenment. See for example the contributing departments of the Sage Center For the Study of Mind at UC Santa Barbara.
1.3 Experimental Philosophy
It is still to be seen, in fact, how cognitive science comes to maturity as a science; it could possibly morph into a new empirical philosophy as the old philosophy vanishes with faculty retirements. And it is to be seen how our current philosophical tradition is to contribute to the work of cognitive science. I grow slightly worried, for instance, as a new generation of Experimental Philosophers toy with empirical projects in their garages before digesting Lakoff, Johnson, Fillmore, Fauconnier, and Turner. There are many less than courageous thinkers to cite in our bibliographies if one wishes to merely waive all this aside by noting that Mental Spaces are not falsifiable and that Conceptual Metaphor is mere dead linguistic metaphor. Experimental Philosophers’ chosen title of ‘X-Phi’ alone suggests a certain kind of youthfulness, and so we may see young philosophers setting off for the new wine – or settling down in their basement laboratory – without any wine skins at all.
I doubt Dennett sees things much differently. He has spent crucial energy studying subjects such as the mind sciences, computer programming, robot engineering, and religious anthropology (Breaking the Spell, 2006). He has likewise been apt, as he notes in this short article, to successfully help other scientists conduct their own experiments.
2.1 Law and Economics
I say all this by way of introduction. Widening the interdisciplinary lens a bit – as far as my own investigative tinkering permitted this weekend – I now turn to economics and law; in particular, Adam Benforado and Jon Hanson’s “Naive Cynicism: Maintaining False Perceptions in Policy Debates” (57 Emory Law Journal 499, 2008). (Above Picture: Hanson on Left and Benforado on Right) Benforado and Hanson conclude with meta-methodological insights and admonishment similar to Dennett’s, but for their own tradition:
Legal scholars debate substance—at least that is the story we tell ourselves. Go to any law school in the country and you will find us trading in ideas—intellectual jousting, with the sturdiest conceptions and analyses carrying the day. In truth, however, legal academics often exhibit the same behaviors as editorialists, radio talk-show hosts, and, more broadly, members of the general population. As this Article has shown, policy scholars devote significant time and energy to commenting or speculating about the explicit motives, biases, and prejudices of those with whom they disagree. At the same time, they are unaware of the implicit motives (for, among other things, closure and system affirmation) that influence their own work. . . . Thus, the narrative of high-minded engagement and the inevitable triumph of the meritorious theory is, in significant part, a myth. The naïve cynical process seems to be shaping policies more than the cold hard data are.
Social psychology has struggled for acceptance within the legal academy, not because the insights of the field lack merit but because social psychology tells us things about ourselves that seem wrong, uncomfortable, and threatening, engendering a strong backlash.
If we want to know what is influencing legal theory and policy, we cannot continue to confine ourselves to studying numbers and graphs, and weighing the strengths of logic-driven arguments. Legal scholars, lawyers, and law students must also consider the operation of unseen dynamics around us and within us that may be the critical factors determining winners and losers in our major debates. (1143-1145)
Jon Hanson is co-founder of The Situationist and Alfred Smart Professor of Law at Harvard Law School. Adam Benforado is Assistant Professor of Law at The Earle Mack School of Law at Drexel University (J.D. Harvard), and has written opinion pieces for publications such as The Washington Post and The Baltimore Sun. Benforado and Hanson are here referring to the clash of our old – ancient perhaps – dispositionalist folk conceptions of will, conscious control, responsibility – and all the other “everyday terms in which we conduct our moral lives” (Dennett) – with the promise and threat of the developing mind sciences, particularly as applied to the field of law. Dispositionalism is thereby contrasted with Situationism, that embrace of the new, threatening conceptions of human nature that the mind sciences seem to produce – including sophisticated unconscious mechanisms that guide our action and thought. The following is a strong formulation of Situationism:
Situationism is premised on the social scientific insight that the naïve psychology—that is, the highly simplified, affirming, and widely held model for understanding human thinking and behavior—on which our laws and institutions are based is largely wrong. Situationists (including critical realists, behavioral realists, and related neo-realists) seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, Situationists rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world—including social psychology, social cognition, cognitive neuroscience, and related disciplines—and the practices of institutions devoted to understanding, predicting, and influencing people’s conduct—particularly market practices. (from About Situationism; my emphasis)
Do those embracing the old dispositionalist paradigm – which is just about all of us to some degree – accept with inquisitive grace the new findings of scientific discovery? Well, of course not. Dennett’s observations about cognitive science are directly applicable to this broader tension played out in economics and law. After replacing the phrase ‘cognitive science’ with commensurate field-specific language, Dennett’s admonition is no less apt:
It is worth remembering that the main reason everybody – really, just about everybody – is fascinated with, and troubled by, work [in the mind sciences that is referenced by Situationist scholars] is that it so manifestly promises or threatens to introduce alien substitutes for the everyday terms in which we conduct out moral lives. Will we still have free will? Will we still be conscious, thinking agents who might be held responsible?
2.2 Academic Backlash: Sniping From TheTrees
Benforado and Hanson trace three movements of the “academic backlash” provoked by threatening situationist findings over the last three decades. The final and third movement is what we find today, incarnated principally by Philip Tetlock, Professor of Organizational Behavior for the School of Business at Berkley (PhD Psychology, Yale).
Three other formidable scholars have published criticism of situationist research, all at some point co-authoring with Tetlock: Hal Arkes, professor of psychology at Ohio State University; Gregory Mitchell, a previous student of Tetlock with a recent residency at University of Virginia School of Law; and Amy Wax, Professor of Law at the University of Pennsylvania (M.D. Harvard Medical and J.D. from Columbia Law School).
Citations provided by Benforado and Hanson reveal Tetlock’s name attached to all the suspicious kinds of moves found in the rhetorical backlash. Benforado and Hanson explain these moves in terms of a common thread of unconscious “naive cynicism” motivating all three backlash movements to situationist findings. (‘Naive cynicism’ references mechanisms very broad in application, as they have significant commonality with the social mechanisms I have detailed in a significantly different setting: The Kirk of North Idaho.)
Tetlock is a professor of Business and is currently offering his services as an expert witness on these issues, which I found advertised at AIM Experts.com: “Your source for experts, consultants & litigation support services.” Tetlock’s web page reads: “Expert Witness on the hypothesized power of implicit prejudice/stereotyping in the work place.” For my purposes here, then, I will not fill up Wood real-estate interacting with his individual work, since a situational, interdisciplinary account warrants (on my view) a more investigative, and therefore more laborious approach to be undertaken in the future or by someone else. However, as will be seen, Tetlock haunts the work of the other co-authoring scholars and so he will be addressed at least implicitly here. Hal Arkes’s role in all this remains ambiguous to me and in my brief research, including Benforado and Hanson’s article, I have not found a significantly influential connection. In what follows then, I address the scholarship of Wax and Mitchell, paying special attention to work following Benforado and Hanson’s article.
3.1.1 Naive Cynicism of Amy Wax
Wax co-authored an Op-Ed with Tetlock for the Wall Street Journal, titled ‘We Are All Racists at Heart’ (December 1st, 2005), which is a primary source for Benforado and Hanson’s argument.
According to Wax and Tetlock while on Wall Street: “Some psychologists”, given their interest in implicit bias not fully predicted by verbal avowal, have refused to find sharp declines in racial prejudice “a cause of celebration”. Celebration?
Cel – e – brate good times, Come On!
What else better should mind researchers occupy themselves with? After all, 2005 was a prosperous year for all the Empire’s brothers and sisters and it has been forty years since we were willing to prosecute the first rape of a black woman in the United States. We have reached such pinnacles of justice today, we might soon be ready to defend the rape of an Indian woman. I can hear George W. Bush chiming in with Wax and Tetlock: “what a bunch of whiners”.
Wax and Tetlock go one: “Some psychologists” have simply “expanded the definition of racism to include any endorsement of politically conservative views grounded on the values of self-reliance and individual responsibility.” “Racists could be identified by ignoring expressed beliefs and tapping into the working of the unconscious mind”. Wax and Tetlock conclude:
. . . facts have nothing to do with it. What began as science has morphed into unassailable faith. However we think, feel or act, and however much apparent progress has been made, there is no hope for us. We are all racists at heart.”
Benforado and Hanson point out that this is a “misleading” summary of implicit bias theory. I think this is putting it mildly. This is an implicit ridiculing of whatever legitimate science is currently underway with respect to the important influence that unconscious knowledge structures have on our conscious thought and action. This is done by means almost purely rhetorical in nature. The less rhetorical, direct claim – that implicit bias theory seeks to increase the findings of overt ‘racism’ – is in fact opposite of reality.
As Benforado and Hanson have delineated, some nefarious group of ‘others’ must be imaginatively constructed, others who have left science behind altogether in order to further a political ideology that stands apposed to all ‘our’ conservative values. This is quintessential naive cynicism: “Unreasonable outgroup members are attacking us, our beliefs, and the things we value.” The reader is given no linguistic cue, not one subtle hint, that there might be a distinction made between these cunning radicals lurking in the nearby dark woods and any research currently in session in the institutions of higher learning. Why is this so? Because it must be so. To offer even a passing glance at such a distinction would undercut the entire rhetorical effect of Wax and Tetlock’s journalism.
It is of interest to me that this cowboy journalism is found in the Wall Street Journal and co-authored by a business professor that also acts as an “Expert Witness on the hypothesized power of implicit prejudice/stereotyping in the work place” (Tetlock’s Homepage, October 10, 2009, linked above). This might help to explain the peculiar focus of this Op-Ed. Wax and Tetlock expand the argument: “Because most of us are biased, these individuals claim, we can safely assume that every aspect of social life — every school, institution, organization and workplace — is a bastion of discrimination.” This is a convenient reductio ad absurdum, with a pleasant “safely assume” to help it go down. Given what “these individuals” claim – these anti-conservative wolves feigning the cloth of the lab scientist – it is perfectly safe to assume that every “school, institution, organization, and workplace” is a “bastion of discrimination.” So then, with a correction of facts and a more sober testimony, it implicitly follows that, at least on the principles and research and publishing of these ‘others’, no workplace is a bastion of discrimination.
3.1.2 Wax’s Recent Work
Yet, Wax has apparently distanced herself from this rhetorical approach in these leaner years. In “The Discriminating Mind: Define it, Prove it” (Connecticut Law Review, Vol. 40, Pg. 979, 2008), Wax notes Tetlock’s and Arkes’ criticism of IAT (Implicit Association Test): Wax and Tetlock question if the IAT is really a test of “prejudice, bias or racism in the ordinary sense of those words” as well as if “failing” the IAT indicated negative association to “spring from hostility.” In reality, at least to my own prima facie educated guess - to say that the IAT is not a test of ‘racism’ or ‘hostility’ – interpreted naturally . . . naturally - is tautological. So thankfully, Wax now acknowledges that these questions “miss the point.” Wax might dismiss situationist research by preferring talk of the primacy of observable action over talk of unconscious bias, but she does so with methodological grace:
. . . Attempts to blame disparities in social outcomes by race or sex on unconscious bias must be approached with caution in the current climate. Without hard evidence, sweeping and categorical claims of unconscious stereotyping are unwarranted. The extent, direction, magnitude, and even existence of unconsciously motivated behaviors against disfavored groups cannot be assumed. Rather, such assertions must be demonstrated. This necessarily requires the careful and patient accumulation of data, as well as rigorous, comprehensive, and sophisticated examinations of existing facts of social life.
So in the end, we are left with little more than a collegial “caution”, an approach fully consistent with Situationism’s habit to establish first “a view of the human animal that is as realistic as possible before turning to legal theory or policy” [again, my emphasis]. It would seem that Wax still – perhaps only unconsciously – distances herself from the core of the mind sciences, but “accumulation of data” does at least covenant her to the New Enlightenment.
This alternative rhetorical approach is amplified in a more recent article: ‘Stereotype Threat: A Case of Overclaim Syndrome?’ (U of Penn Law School, Public Law Research Paper No. 08-14) Wax proposes “new ST [Stereotype Threat] research methodology that would help to address unanswered questions about the significance of ST as compared to other possible causes of observed gaps.” Such a proposal, if constructively intended to guide current science, fits well with Dennett’s frame for interdisciplinary research.
3.2.1 Greg Mitchell’s Naive Cynicism
I have slightly different news for Mitchell. Virginia law has recently decreed how Mitchell, their newly received faculty member, will contribute to the prestige of their institution:
Tetlock not only added to Mitchell’s store of knowledge, but he also had a profound influence on how Mitchell approaches every scholarly question . . . In a relatively short period of time, Mitchell has emerged as one of the most thoughtful, rigorous, and provocative participants in debates over the use of empirical studies in law and legal scholarship. It has taken him even less time to become one of the most valued members of the Virginia faculty, which he joined just two years ago. (The Promise and Limitations of an Empirical Approach to Law)
Mitchell therefore has an important task ahead, since the opposition is challenging
the sincerity of the tolerant attitudes that many people in early 21st-century America claim to possess (creating the implication that managers are far more biased than they . . . are willing to admit) and a macro, neo-institutionalist critique that challenges the sincerity of organizational efforts to check prejudice. . .
With such claimed sincerity on the line, Mitchell no doubt has some important work to do at Virginia Law. I am beginning to wonder if fallacious rhetorical framing is a primary method of aggrandizement for academic legal careers and academic institutions! Recall Benforado and Hanson’s concluding statement: “Legal scholars, lawyers, and law students must also consider the operation of unseen dynamics around us and within us that may be the critical factors determining winners and losers in our major debates.”
3.2.2 Mitchell’s Theory of the Unconscious
Mitchell had a chance to recast his rhetorical renown, as did Wax, with his forthcoming article in McGeorge Law Review, titled ‘Second Thoughts’ [The title is deceiving; no mention is made of Mitchell's 'second thoughts' on this issue].
In this article, Mitchell gives equal prominence to both the conscious and the unconscious mind when conceiving of the law as a cognitive force. (One can only wonder where he got such a radical idea). However, Mitchell provides an ad hoc distinction between “first thoughts” and “second thoughts” that reflect the distinction between initial unconscious responses and those unconscious and conscious responses that immediate follow the initial unconscious responses.
Overall, the article was enjoyable and I found myself agreeing more than disagreeing with specific assessments of the role of the unconscious mind and the role of law within the our corporate unconscious. Mitchell concludes the article roundly; after tipping his hat to conscious deliberation, he adds: “But we should also recognize the effects of the law on unconscious and fringe-conscious thoughts, with the law effectively serving as a brooding omnipresence in our heads if not in the sky.”
3.2.3 Greg Mitchell and Amy Wax Part Ways
As nice as this sounds, however, the ad hoc distinction between first thoughts and second thoughts appears to serve only one purpose: to isolate those ‘others’ who make appeal to IAT. Given what I take to be the sophistication of the unconscious mind and the general nature of ongoing research within the mind sciences, this distinction appears to be otherwise entirely arbitrary. At what millisecond segment do we begin seeing secondary responses as apposed to primary responses? The distinction is grounded in initial unconscious responses to external stimuli, the first thoughts, precisely what IAT measures. Second thoughts just are all other salient processes, whether supporting or suppressing the effects of first thoughts. As will be seen, this distinction provides an unfalsifiable platform for naive cynicism.
3.2.4 Interpreting Mitchell Charitably
However, a trial run at a more charitable interpretation of Mitchell’s argument is available. In fact, Mitchell appears in some places to be furthering a common thesis of the sophistication of the unconscious mind (consistent with John Bargh’s work and the counterbalancing considerations of Suhler and Churchland in ‘Control: Conscious and Otherwise’ Trends in Cognitive Sciences, 13(8), 341-347, 2009). The role of the unconscious in Mitchell’s theory is prominent:
[W]e now know that bias avoidance can also occur as a result of vague or inchoate thoughts and feelings operating at the fringe of consciousness and even through processes operating fully below the level of consciousness.
And these processes are not dumb. Mitchell cites a lengthy section from Glaser and Kihlstrom’s ‘Compensatory Automaticity: Unconscious Volition Is Not an Oxymoron’ (The New Unconscious 171, 189-90; Ran R. Hassin et al. eds., 2005):
This thesis, and the findings incorporating it, represents a departure from traditional conceptions of the unconscious as passive and reactive, suggesting an unconscious that is, paradoxically, “aware.”
So the unconscious mind is complex, with first thoughts and overriding second thoughts always at play. And the unconscious mind is also, paradoxically, intentional, for example, intentionally “aware”. Surprisingly, and perhaps ironically, I take this as a slightly more accurate approach to the term ‘intentional’ than summarized by Bargh and Morsella in their recent and excellent article ‘The Unconscious Mind’ (Perspectives on Psychological Science, 3, 1, 2008). Bargh and Morsella’s operating definition of the unconscious essentially includes non-intentionality. (One of my philosophical projects is an account of such intentional ascriptions to the unconscious mind, what I call Explanatory Metaphor theory, which combines the work of Dennett’s intentional stance with metaphor comprehension theory; Bargh and Morsella reference Dennett’s work multiple times [1991, 1995], and so I assume there is plenty of room for discussion on this point).
One possible straightforward implication here is that a responsible, intentional, personal agent may be in many respects sufficiently found below the level of consciousness – or else at the fringe of consciousness – allowing the law to effectively serve – to quote Mitchell again – “as a brooding omnipresence in our heads if not in the sky.”
On this charitable interpretation – with love believing and hoping all things – all is well and good, and we should invite Mitchell to stand with us as we peer into the amorphous dark wood that stands off in the distance. But it is possible that this charitable interpretation has been a too blind, bypassing just that dynamic in the anti-situationist literature Benforado and Hanson have sought to bring to our attention.
3.2.5 Mitchell’s Continued Strong Naive Cynicism
On second thoughts then (!): It seems important to point out that Mitchell, in the end, remains ambiguous on the point of the paradoxical intentionality of the unconscious mind and at one juncture concludes only that
legal regulations typically thought of as requiring conscious, intentional thought can be effective even with respect to judgments, decisions, and behaviors that have their origins at the unconscious level.
On my charitable interpretation, the phrase “have their origins at” should be interpreted as something along the lines of “directly produced from”, consistent with the fact that both first and second thoughts may remain below the level of consciousness. But the most natural connotation suggests only an indirect causal influence. And Mitchell’s more complicated conception of the unconscious mind is clarified through a contrast with the simple-minded opposition:
[C]urrently popular models of judgment and decision-making within antidiscrimination theory and behavioral-law-and-economics theory portray humans in too simplistic a light because these models fail to give sufficient weight to the impact of second thoughts on first thoughts.
If this is all Mitchell’s theory of the unconscious amounts to, then it appears to be trivial, albeit naturally following the ad hoc nature of the distinction between first and second thoughts. As I have found to be the case throughout this anti-situationist literature, the opponent is rarely directly referenced or cited. Popular models appealing to the unconscious mind are the ones expressing simplicity? What models? What scholars? Likewise, Mitchell points to the darkness in the far off woods and implies the position of the opponent: “[W]e are not captives to our automatic first thoughts”, but rather “employ a variety of corrective second thoughts.” And “we are not cognitively compelled to dislike women or minorities or react negatively to them as a result of these first- order associations.” ” . . . neglect of the role of second thoughts can lead to perverse effects of legal policy.” Perverse effects no doubt. The idea of being held fully captive and compelled by processes found only milliseconds from the onset of all external stimuli is certainly not a picture of the human animal that permits a meaningful and efficient use of law.
Mitchell does offer a careful summary of situationist research and themes, but no link is provided between this more careful summary and the actual rhetorical opponents that frame the argument. Mitchell summarizes the “new psychological tools” and the work of scholars that “question the intentional actor model” who argue
that judgments made under uncertainty about the facts (e.g., probability judgments, causal inferences) are determined primarily by non-deliberative thought processes based on cognitive heuristics, or mental rules of thumb, rather than by careful application of the laws of probability, the rules of logic, or scientific rules for causal inference. . .
. . . Similarly, in this view, choices occur not through consultation of a stable, well-defined, coherently-ordered menu of preferences and careful deliberation about the costs and benefits of different courses of action weighted by their probability, but through the often unconscious construction and ranking of preferences based on the information presently available in memory and salient to the decision-maker, along with fleeting affective influences.
It is still not clear to me what, precisely, Mitchell finds wrong here. “Fleeting affective influences” could be seen as the result of treating first thoughts in a vacuum devoid of second thoughts; but then Mitchell swings the other way, taking special note of how these “antidiscrimination” scholars point to the “predictable biases in our judgments and decisions”. In this case, first thoughts are not fleeting influences, but now determiners of racism and latent hostility, unchecked by anything like second thoughts. It therefore remains difficult to decipher what Mitchell’s complaint might be regarding the new tools of psychology qua tools of psychology. If Mitchell has no qualms with these new tools, then he is on record implicitly suppressing the advance of cogent scientific research while imagining a scholarly debate where none exists – as he peers out into the dark woods at what would now be entirely unidentified agents.
3.2.6 The ‘Others’ Lurking in the Dark Woods
But the worst is yet to come. Immediately following this summary of “a diverse group of scholars”, Mitchell concludes:
The predominant response of behavioral law and economics scholars to evidence of systematic irrational tendencies has been to call for greater governmental regulation of consumer behavior and less reliance on market competition to produce efficient outcomes. But the prescriptions of behavioral law and economics extend far beyond the buyer-seller context. No legal actor has been immune from calls for greater oversight and often greater paternalistic protection from the government: voters, judges, jurors, financial brokers, white- and blue-collar workers, the young and the old, the educated and the uneducated, have all been the subject of regulatory proposals due to their supposed irrational tendencies.
At the blink of an eye, the more careful summary of what appears to be the cogent work of “a diverse group of scholars”, as well as a compatible – albeit counterbalancing – working thesis of the sophistication of the unconscious mind, turns into a precise reference to “unreasonable outgroup members [that] are attacking us, our beliefs, and the things we value.” In this case, the values of liberty and free market are in jeopardy. The article becomes sermonic just here: “No legal actor has been immune from calls” of tyranny; and Mitchell goes on with a soapbox naming of the young and the old, male and female, slave and the free. Although, sadly, no mention is made of the rich and the poor.
And Mitchell is sure to stand his ground over the politics of IAT:
[T]he Implicit Association Test or IAT, tell us nothing about the likelihood of bias occurring at the level of judgments, decisions, or behaviors given the intervening effects of second-order thoughts: To date, no empirical research has established that any particular score on the IAT reliably predicts any particular behavior in any particular setting. [my emphasis]
This is a strong claim. Does Mitchell support it? He tries. Mitchell cites Miguel Brendl et al., ‘How Do Indirect Measures of Evaluation Work? Evaluating the Inference of Prejudice in the Implicit Association Test,’ (81 J. Personality & Social Psychol. 760, 761; 2001). But, according to Mitchell’s own citation, Migguel Brendl et al. have a different message:
[I]ndirect measures of attitudes cannot assess discrimination, because discrimination is overt behavior, not an attitude. Thus, even if a reliable and valid measure of implicit prejudice were developed, additional research would have to establish the link between those measured attitudes and behavior.
But this is an entirely separate issue, a mere note about the legal, working definition of the word ‘discrimination.’ This has little to do with the implications of discovery within the mind sciences, as made clear by Migguel Brendl et al’s acknowledgement that even a fully successful measure of “implicit prejudice” would not assess what we consider the working definition of ‘discrimination.’ Does this mean that such an implicit measure would therefore have no consequence for legal theory? There is no suggestion of this implication here. And how subtle must the research be to establish “a link” between a confirmed, measured attitude and the stereotypical behavior of that attitude? Subtle enough for a corporation, as defendant, to win a discrimination case? Mitchell’s attempted support for his strong claim unravels further in the footnotes, where Migguel Brendl et al. are cited again:
Gehring and colleagues echo this warning: One must be cautious . . . about claims that any measure provides a direct window into racially biased behavior. This caution is particularly warranted for the IAT: researchers in social psychology disagree about the meaning of IAT scores, yet much research is reported in academic journals and the popular press as if its validity as a measure of racial bias and prejudice were well- established.
A call to caution and a note of disagreement about the meaning of IAT scores tells us close to nothing about Mitchell’s strong claim. Rather, Migguel Brendl et al. display the research frame of the new Wax and of Dennett – the frame of the New Enlightenment – helping scientists “sort it all out, asking, not telling, being tentative, not preemptive” in their criticisms. Mitchell’s naive, confirming cynicism undoubtedly provides a feeling of closure, as well as comfort within the institution of the University of Virginia School of Law; perhaps, then, it should not be too surprising if Mitchell appears to be to be fighting – albeit, likely at the fringe of consciousness, as he likes to put it – the spirit of the literature he offers in support of his preemptive criticism.
4.1 Tentatative Conclusion
My tentative conclusion is forthcoming. For now, I will enjoy my temporary feeling of closure (so get with it Mitchell!), while floating comfortably in an institutional and social vacuum.
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