Intro: Yesterday, I read an excellent post by Robert on his blog Seven Spheres, which was on the topic of confirmation bias. You should check out his blog because there are some really great posts on a whole range of topics about what makes this world tick. His post reminded me of an article I posted on LinkedIn last year, and I thought I would include it on my blog. Confirmation bias is something we should all think about, because it affects our judgments and decisions daily and we probably don’t even realize it. Please read on . . .
I recently read an article titled: “Legal Ethics and Confirmation Bias.” The article begins its trek with a brief overview of how the practice of law is governed by its professional rules of conduct, provides a very good definition of “confirmation bias,” and then diverts down the road less traveled attempting to correlate racial discrimination and advancement within the legal profession. I’m not saying that the author didn’t have a legitimate point, she did. I would just like to address the elephant in the room she skillfully avoided and diverge down a different trail.
The definition of “confirmation bias,” as provided by the author, is “a phenomenon wherein decision makers have been shown to actively seek out and assign more weight to evidence that confirms their hypothesis, and ignore or under-weigh evidence that could disconfirm their hypothesis.” But applying this to a lawyer’s representation of a client, as the author first does (representation that is supposed to be zealous and one-sided in nature), and applying it to the determination of who gets a promotion in a law firm, as the author does next, seems to me to severely limit the application of the two most important words in the definition – “decision makers.” I will be happy to expand that application.
In the context of a discussion of legal ethics, you would think the author would discuss the elephant, or zebra or gorilla if you prefer, namely judges. I can’t think of any more important context than the individuals who “decide” the outcomes of legal disputes. If judges actively seek out information to confirm their biases, even if that behavior is so inherently ingrained they don’t realize what they are doing, as opposed to evaluating evidence openly and objectively, then certainly there will be no “justice” when a decision is rendered. This has, in fact, been one of the chief criticisms of the U.S. Supreme Court. Since that court exercises complete discretion over the cases it hears, it has been said that they only take cases that they have already decided. If true, I find that frightening in two respects.
First, the high court is not required to clear up discrepancies with the interpretation and application of federal law among the circuits of the federal courts of appeal. Thus, the federal law can be differently applied in different parts of the country – no uniform federal law for the land – and who cares, right, if that is politically expedient. Second, if the highest court only hears cases it desires and has prejudged them, and if confirmation bias permeates all of the judicial system, then there is ample ammunition for the criticism that the courts are purely political entities, with judges being mere puppets doing the bidding of their appointers or electors and not objectively applying the law as it is written. Deciding court cases is not playing pinball; these decisions have dramatic impacts on people’s lives.
Ok, I addressed the elephant, and now for my own divergence.
We first must recognize the obvious – that every individual is a “decision maker.” We all make countless decisions each day, as mundane as how often we brush our teeth or as magnanimous as whether to have children. Next, there appears to be an overwhelming desire for people to categorize things as being black or white – not in the racial context – but an oversimplification of issues or subject matter. Where in reality there may be thirteen different alternatives, or various shades of gray in between them all, people like to think there is always either an A or B or right or wrong answer. There usually isn’t. Things aren’t that simple and sometimes the answer is all of the above.
In the age of social media this faulty logic has become epidemic, or to use the parlance – “gone viral.” It is, in reality, thinking backwards. People begin with a conclusion and seek out supporting “evidence” to validate themselves. The evidence is often questionable, and the positions fermented are polarizing; based more in inebriated blind faith than in reality. This leads more to one-sided screaming and incivility than to any type of productive discourse. People have decided they are right, they have their evidence, and they will no longer consider any other contrary evidence. They have integrated their position, on whatever the subject matter may be, so strongly as part of very their own identity that being “right” is necessary to protect that identity – the position has become secondary. Being “wrong” would simply shake them at their core, spin their minds into a state of oblivion. They may even label the countervailing information, even if it is overwhelming, as “fake news” or “lies” or even claim it is “biased,” all the while discounting their own biases or the biases of the sources they consulted – if they had any to begin with. They are so intoxicated with the notion that their ideas are gospel and irrefutable they see no need to even hear any words but their own.
Overconfidence and an inflated view of one’s own self-importance is magnified in cyberspace where people can create their own forums and post with relative anonymity. There are no social repercussions for being rude and inconsiderate or, more to the point, being an asshole online. There is no peer group in the room to subtlety apply pressure to be civil or call out bad behavior – at least, not in a meaningful way. When “conversations” deteriorate to episodes of cyber-rage and the leveling of death threats, which I have experienced all too frequently online, I think we can safely say this is aberrant behavior – worthy of a diagnostic code in the Diagnostic and Statistical Manual of Mental Disorders.
My advice is simple – wake up from your own delusions, think critically, speak civilly or hold your tongue and listen for a change, and be prepared to admit when you’re wrong – be thrilled to expand your point of view!
Photo: I found this picture on the Internet in the public domain. I could find no other attribution for it.
LinkedIn: If anyone wants to connect on LinkedIn, you can find me at https://www.linkedin.com/in/haroldstearley/
Update: April 25, 2018 – The ABA Journal just published an article about research demonstrating judicial bias with traditional gender roles, and I discovered an older article about implicit bias.