Ideology, motivated reasoning, and cognitive reflection

Decision scientists have identified various plausible sources of ideological polarization over climate change, gun violence, national security, and like issues that turn on empirical evidence. This paper describes a study of three of them: the predominance of heuristic-driven information processing by members of the public; ideologically motivated reasoning; and the cognitive-style correlates of political conservativism. The study generated both observational and experimental data inconsistent with the hypothesis that political conservatism is distinctively associated with either unreflective thinking or motivated reasoning. Conservatives did no better or worse than liberals on the Cognitive Reflection Test (Frederick, 2005), an objective measure of information-processing dispositions associated with cognitive biases. In addition, the study found that ideologically motivated reasoning is not a consequence of over-reliance on heuristic or intuitive forms of reasoning generally. On the contrary, subjects who scored highest in cognitive reflection were the most likely to display ideologically motivated cognition. These findings corroborated an alternative hypothesis, which identifies ideologically motivated cognition as a form of information processing that promotes individuals’ interests in forming and maintaining beliefs that signify their loyalty to important affinity groups. The paper discusses the practical significance of these findings, including the need to develop science communication strategies that shield policy-relevant facts from the influences that turn them into divisive symbols of political identity

Race, Crime, and Institutional Design

Minorities are gravely overrepresented in every stage of the criminal process--from pedestrian and automobile stops, to searches and seizures, to arrests and convictions, to incarceration and capital punishment. While racial data can provide a snapshot of the current state of affairs, such information rarely satisfies questions of causation, and usually only sets the scene for normative theory

Unfair Competition and Uncommon Sense

This article discusses Mark McKenna’s Testing Modern Trademark Law’s Theory of Harm as an important step forward in challenging trademark expansionism, going back to basics and asking us to assess for truth value several propositions that now seem so self-evident to lawyers and judges as to not require any empirical support at all. Like McKenna, the author believes that if the law looked for the evidence behind present axioms of harm, it would not find much there. McKenna and the author share an interest in empirical evidence on marketing and a desire to bring its insights to trademark law. But how did today’s theories of harm resulting from any kind of confusion, even confusion over unrelated goods, become “common sense” to judges, particularly when Mark Lemley asserts that modern Lanham Act jurisprudence represents “the death of common sense”? McKenna has traced the history of the harm argument in the courts, but figuring out exactly why that argument became persuasive—so persuasive, in fact, that courts now take it as factual beyond debate—is difficult. Common sense, often employed in legal reasoning, tends to hide its empirical and normative judgments in ways that make analysis difficult. McKenna, like other trademark restrictionists, tries to push back against today’s common sense with facts that will, as a whole, constitute a new (or even an old) common sense. His project limits trademark more tightly to protection against competition, with extensions only where necessary to avoid actual harm. The author briefly examines the role of common sense inferences, and how courts might deploy these inferences differently in trademark litigation