Judicial Mindsets: The Social Psychology of Implicit Theories and the Law

This Article introduces science and research on the social psychology of judging with the aim of advancing a research agenda designed to examine the influence of social, contextual, and situational forces on judicial decision-making: situated cognition. This research agenda investigates the social nature of judging from the perspective of “Behavioral Realism.” In exploring this aspect of judicial behavior, the approach draws on multiple techniques, including experimental methods and theories in the field of social psychology. The field of social psychology offers a unique vantage point to examine how societal forces, social environments, and situations influence judging. For the social psychologist, the level of analysis is the individual in the context of a social situation. The field studies the individual within social context to understand how social contexts, situations, and environments influence attitudes, cognitions, and behavior. Further, while much quantitative research on judicial behavior employs the technique of empirically studying federal case law, a research line premised on social psychology would adopt both empirical legal studies and experimental methods to study judicial behavior. Because the field draws largely on experiments to investigate social and situational influences, the field offers both theoretical insights and an array of scientific methods to study the social and situational dimensions of judicial behavior. A law and social psychology approach to studying judicial behavior may, one day, illuminate psychological processes by which American society acculturates and socializes judges and, thereby, shapes law. As Justice Cardozo famously observed, “[t]he great tides and current which engulf the rest of men do not turn aside in their course and pass the judges by.” In this way, a law and social psychology approach may, one day, uniquely contribute to the study of how American law evolves to reflect change in American society. An important theoretical contribution of social psychology is research on implicit theories. This research has revealed that humans hold implicit theories about human nature, social institutions, and society. At the forefront of this science, Dr. Carol Dweck and her colleagues have shown that humans operate with different implicit theories about whether these phenomena are fixed versus dynamic, static versus malleable. For example, in certain circumstances, we might believe that one’s moral character may change and develop—a transgression today, but temperance tomorrow; in other circumstances, we might believe that moral character is static and cannot change—once a scoundrel always a scoundrel. These implicit belief systems often operate outside of our awareness. They shape the meaning we draw from social contexts, the decisions we make and our predictions, and how we attribute blame to others. Implicit theories are often called mindsets. This psychological research shows that these different implicit theories are social constructions: the implicit beliefs are shared, expressed, and transmitted within society, organizations, and environments. That is, social influences and situational factors influence whether we adopt fixed versus dynamic mindsets. Dweck’s research suggests these implicit theories about human nature, social institutions, and society may shape the deep, often unconscious, presuppositions and beliefs that jurists bring to legal decisions. Like lenses through which we examine the world, these implicit belief systems shape how jurists find facts in particular disputes, the inferences jurists draw, and the punishment judges impose. As well, these implicit theories may influence how jurists reason and resolve questions of interpretation under the common law, statutes, and the Constitution, a matter I turn to below. Experimental research is warranted to investigate how this science may enrich our understanding of legal reasoning and judicial behavior. This Article proceeds in three parts. Part II introduces the reader to social psychological research on implicit theories. Part III presents a general discussion of how these implicit theories likely affect judicial fact finding and the interpretation of common law, statutes, and the Constitution. Part IV offers closing remarks and recommendations for a research framework to investigate these questions