Sunday, February 23, 2014

The Judicial Mind: A Cognitive Theory of Jurisprudence [the paper]

By Laura K. Bomyea
Laura Bomyea is a May 2013 graduate of Albany Law School and is currently employed at Young/Sommer LLC in Albany.  She received her B.A. in Philosophy, with a concentration in Literature, from Bard College, and wrote her Bachelor's thesis on philosophy of language and metaphor.
While at Albany Law, she served as Student Editor-in-Chief of the New York Environmental Lawyer, an Associate Editor on the Albany Law Review, a Student Editor with the New York Government Law and Policy Journal, and a Research Assistant with the Government Law Center at Albany Law.
She prepared this paper, as well as the presentation on the same subject, for Professor Bonventre's Judicial Process Seminar, Fall 2012.

A great deal has been written through the ages on the subject of jurisprudence, the role of judges, and the process of judicial decision-making. Justices currently on the bench, as well as those who sat decades ago, have produced lengthy tomes on their personal judicial philosophies, as well as their views on how judges should approach the many complex legal and social problems they face.

One common theme among the writings of some of the greatest U.S. Supreme Court Justices is the notion that something—some ineffable something—is at work beneath the judge’s conscious thought which shapes his view from the bench and steers him toward making particular decisions in particular ways.

Today, neuroscience and technology have advanced by leaps and bounds, enabling us to better understand the human brain and its activities. This, in turn, should also enable us to better understand the subconscious forces at work in the judge’s mind. Thus, attorneys and judges alike would do well to explore these contemporary scientific theories of the mind and its politics, perhaps finally making articulate and conscious those judgments which were such a mystery to the likes of Holmes and Cardozo.

Part I of this paper will lay out current theories advanced by cognitive scientist and linguist George Lakoff, who has created a theory of moral politics--i.e., how our politics are related to and derived from deep-seated moral worldviews. Part II of this paper will explore techniques for investigating judicial writings to reveal certain clues about a judge’s worldview or politics, and instances where Lakoff’s theory seems to hold true on the bench.
To read the paper, open HERE.
To view Laura Bomyea's previously published presentation on this subject, click HERE