This week’s New York Times Magazine contains its annual Year in Ideas, which always makes for fascinating reading.

Two of the articles touched on employment law topics.  The first, called “The Myth of the Deficient Older Worker”,  describes a study by three economists who pitted “seniors” (those over 50) against “juniors” (those under 30) in three decision-making tests designed to assess risk taking, competitiveness and cooperation.    The seniors did very well, outperforming their younger counterparts in the risk-taking test, and showing higher levels of cooperation.  On the competitiveness test, the seniors were “very slightly less” competitive overall.  Way to go people who are still a little older than me!

The second article has more to do with courts than with employers.  Three law professors published an article claiming that certain Supreme Court justices are guilty of “cognitive illiberalism“: the belief that other people’s perceptions might be biased, while I only perceive the objective truth.  In the case the professors studied, 8 of the 9 justices concluded that no reasonable jury could view a videotape of a police chase and conclude that the police were not justified in ramming the suspect’s car (rendering him a quadriplegic).    Justice Scalia wrote that the evidence of reckless driving on the videotape was so apparent that no one could disagree with it.  In fact, when the authors of the article showed the same video to 1,350 Americans, 25 percent disagreed with Scalia and the other Justices.   Many of those who disagreed were members of discrete subgroups like liberal African-American women from the Northeast.

The authors suggest this supports the existence of cognitive illiberalism among the Justices, and underscores the importance of judges engaging in a “mental double-check” to ensure that no reasonble jury really could disagree with his or her conclusions.  The authors conclude: “If [the judge] can picture a discrete group who would disagree that a decision is self-evident, go with a jury.”   As a defense attorney, of course, I may benefit from the fallacy when a judge dismisses a case at summary judgment on the grounds that no reasonable juror could find a disputed issue of material fact!

cognitive illiberalism