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Article Title

Beyond Candor

Abstract

In Part I, I consider whether judges might hold inaccurate beliefs that make them more candid and constrained. I suggest that even if theories of neutral decisionmaking are incomplete and inaccurate, a legal system in which judges hold these beliefs about their own behavior could have advantages. If many judges believe that they can, should, and do decide almost all cases by following the law, they might behave differently than they would if they held more accurate beliefs. They might behave so as to facilitate repression and denial, because their self-esteem depends on maintaining the belief that they decide as they think they ought to decide. I suggest that such psychological mechanisms preserve candor and help law to constrain decisions.

In Part II, I assume that inaccurate beliefs preserve candor and help law constrain, and I inquire whether we should prefer such a system to one with completely introspective judges. I suggest that encouraging judges to understand their decision process better, if effective at all, could be harmful, would probably not succeed, and even if successful might not be worth doing.

I do not pretend that nonintrospection is ideal. I see it· as the least bad option available, if somewhat inaccurate internalized beliefs preserve constraint and candor. In Part III, I discuss the dilemma facing legal teachers and scholars if inducing people to hold true beliefs has bad consequences.

In sum, I make four points in this article. Descriptively, i remind legal theorists that judges decide in complicated ways that might be illuminated by psychological accounts of denial and rationalization, or cognitive dissonance, and that might include holding and sustaining inaccurate beliefs. Normatively, I argue that judges holding inaccurate beliefs about their decisions might decide better than they would with a clearer understanding of their actions. Philosophically, I suggest that if a system including judges who hold inaccurate beliefs has sufficient benefits, we should consider carefully whether such a system could in principle be justified. Editorially, I point out that by failing to consider the benefits of false beliefs, and the difficulty and harm of trying to destroy them, critical scholars have advocated imprudent tactics given their stated political goals.

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