Legal Realism as Psychological and Cultural (Not Political) Realism

Abstract

The answer to the question of how law knows, we argue, is that law knows in the same way that ordinary democratic citizens know. When deliberating about what dangers are real and which are specious, and about which policies are efficacious and which are futile or even self-defeating, ordinary folk will rarely have direct access to the answers themselves. Instead, they must make decisions about what information and which sources warrant their trust. They must judge whether the stories in which the information is embedded are plausible and consistent with one another. They must consider which norms are relevant, given the facts as they know them. And all the empirical evidence we have suggests they will do all of this through interlocking social and cognitive mechanisms that cause them to rely on a culturally contingent situation sense, an implicit knowledge of how the material and social world works and who can be trusted to report it accurately.

We call this form of active knowledge cultural cognition because it is sensitive to values that vary along culturally distinguishable lines and because the information that shapes and interacts with these values is conveyed through the same social networks that are the lifeblood of socialization and cultural transmission. What legal actors know to be true, it turns out, depends a great deal on what they value and whom they trust.

Keywords: legal realism, cultural cognition, jury decision-making, judicial bias