Academic

Cohen on Sincerity & Legal Decision Makers

By Lawrence Solum

Mathilde Cohen (Columbia University) has posted Sincerity and Reason Giving: When May Legal Decision-Makers Lie? (DePaul Law Review, Vol. 59, No. 4, 2010) on SSRN. Here is the abstract:

Public "reason giving" is an essential duty of democracies, said to promote better public decision-making by keeping the government's discretionary powers in check. However, this aim may be compromised if decision-makers cite insincere and misleading justifications as a means of preventing accountability. This Article contributes to rethinking sincerity in legal decision-making by asking both a normative and a descriptive question. The normative question is whether and to what extent should public institutions disclose the reasons for their decisions. The practical question is whether and how the fact that decision-makers have failed to fully disclose their reasons can be established.

The generally accepted and most demanding position, which I call "internalist sincerity," is that state actors should candidly reveal all the considerations that motivated them in making a decision. I argue that this conventional view is mistaken and propose instead a novel approach, "externalist sincerity," which requires only that public officials state reasons for their decisions which they believe justify the outcome, even if those reasons where not the considerations that actually motivated them. My approach revisits sincerity by way of introducing an institutional analysis, which has been largely overlooked in existing discussions. The Article claims that what we demand from institutions is a form of sincerity that is different from what we expect from individuals. When analyzing sincerity in an institutional context, our expectations matter more than the supposed intentions of institutions, particularly in cases in which there are multiple decision-makers such that there is no such thing as "the institution's state of mind."

The conceptual roadmap generated by this new look at sincerity in the law is important for two reasons. First, by clarifying what we mean when we say that public officials should be sincere about their reasons, this Article explains why disagreements on the topic often run deep, and reorients debate around more productive questions such as how to produce more pragmatic and nuanced sincerity requirements appropriate for different decision-making contexts. Second, it surveys existing models to determine whether they offer a consistent set of answers concerning the contents and contours of the duty to give sincere reasons, if indeed such a duty exists at all.

Very interesting & highly recommended.  My first impression is that the focus on "externalist sincerity" and the difference between institutions, individuals in institutional roles, and individuals speaking for themselves is very helpful.  This is a deep and important problem and this paper makes a significant contribution.

Full post as published by Legal Theory Blog on May 21, 2009 (boomark / email).