Repression of Cognitive Dissonance: Grand Effects on our Legal System

-- Revision by KeithEdelman of Elyse Schneider's first paper

A Personal Revelation

Upon arriving in Spain, I asked a Spaniard the quintessential American question: “What do Americans look like to Europeans?” Instead of the typical “You wear white sox with sandals” answer, he said, “You are naïve. The truth is right there in front of you, but you won’t see it.” Over time, I began to see what was in front of me, what many Americans (and, admittedly, many Spaniards) do not. We are afraid to confront realities that conflict with our strongly held beliefs. In fact, we affirmatively repress these inconsistencies in many areas.

An Example: Cognitive Dissonance in the Economic Crisis

Frank Rich argued that even though “the cruel ambush of 9/11 supposedly slapp[ed] us into reality…one of our most persistent cultural tics of the early 21st century is Americans’ reluctance to absorb…bad news.” Despite ample evidence, we tend to disregard such information that clashes with widely held beliefs. For instance, Americans need to repress the logical inconsistencies posed by the economic crisis: government’s necessary intervention vs. the rejection of nationalization as inconsistent with American ideals. To alleviate our psychological discomforts, we avoid unsettling realities. This is a classic example of the repression of cognitive dissonance.

Effects on Our Legal System

Repression of cognitive dissonance greatly affects the American legal system. For instance, we enact procedural rules and utilize certain learning methods that dismiss evidence inconsistent with our ideals. This results in an over-confidence and over-reliance in the system's effectiveness. Furthermore, we, as lawyers, affirmatively defend the system that has provided for us despite evidence of its collapse. This paper explores these effects with the hope of facilitating positive change through understanding.

Repressive Processes

Americans often hope that our legal system will achieve certain ideals (e.g. procedural due process). Any uncertainty inherent in the legal structure that questions its effectiveness is likely to cause much discomfort. Recognition of this inconsistency will result in cognitive dissonance. To combat this uneasiness, we tend to avoid the contradictory information. For instance, Frank demonstrated that modern societies resort to “legal magic” to quell the requisite uncertainty in fact finding. This illogical maneuver clashes with our desire to achieve perfection in the system. We repress this inconsistency by utilizing internal processes to focus our attention. For instance, harsh evidentiary rules that forbid information as to the system’s weaknesses are prevalent. This causes overconfidence in the truth of the “facts,” further demonstrated in appellate courts’ ordinary refusal to question the trial court’s evidentiary determinations.

Holmes (and the greater Realist movement) observed that what courts will do, in fact, is dependent on various factors such as unconscious judgments, tradition, and other human limitations. Similarly, Cohen demonstrated how judicial opinions use “transcendental nonsense”: circular reasoning to mask the true motives behind judges’ decisions. Although these comments have been quite influential, law schools still adhere to doctrinal justifications through the casebook method. Functional explanations conflict with the belief that law is logical and internally consistent. To repress this discomfort, we utilize doctrinal analysis to minimize discussion of judges' true motives. This faulty educational method encourages lawyers’ limited use of conceptual tools to achieve social change.

Affirmative Support For the Ailing Structure

In addition to reinforcing belief in the products of our legal system, cognitive dissonance causes Americans to affirmatively support the structure itself. As Arnold stated, “Men become bound by loyalties and enthusiasms to existing organizations. If they are successful in…these organizations, they come to regard them as the ultimate in spiritual and moral perfection.” In America, our creed is capitalism. Because capitalism has benefited many lawyers, we refuse to recognize that it is in fact a creed. The response to unsettling evidence is often to defend capitalism as the only "right" way to act. Justifying capitalism, even after its inequalities and disasters, is a classic form of repression of cognitive dissonance. When confronted with realities as to its effects or its status as merely a “creed”, those who have benefited defend it vigorously.

Lawyering Opportunities

The first step in good lawyering is to understand the people's behavior. In addition, we must be aware of the consequences our repression has on the legal system. In light of these insights, we can begin to discover exactly how to get the change we need.

Understanding the repression of cognitive dissonance provides opportunities for lawyers like Robinson to succeed. Individuals who can recognize this natural response can utilize better techniques to help their clients. For example, Robinson’s use of gossip proved much more influential for his Fijian/Serbian client than any knowledge of the law.

On a larger scale, understanding why some lawyers defend and justify capitalism enables us to change this structure that has produced much injustice. We can recognize that arguing capitalism's theory will likely elicit further denial. As Arnold realized, "Necessity compel[s] government action; theory denie[s] it." If we can show defenders a lifeboat while they are dangerously close to sinking, the only choice will be to hop on board. We must emphasize the necessity of the times, rather than debate the theoretical merit of the current creed.

The understanding of this psychological phenomenon within our legal structure is a key first step. Only after this comprehension can meaningful change begin.

• This edit is a useful attempt to respond to my comments on Elyse's first draft. You've given "repression" the meaning of "repression of cognitive dissonance," and tried to connect that to the supposed naivete of US Americans. But why you would want to lead with as problematic an illustration as the rules of evidence (repression of cognitive dissonance is how we should understand a reluctance to accept hearsay?) I cannot fathom.