Document Type

Article

Publication Date

2012

Publication Citation

90 Nebraska Law Review 611 (2012)

Abstract

This article introduces Dr. Carol Dweck’s seminal and significant line of psychological research on the phenomenon of implicit theories and draws on this research as a lens through which we might better understand judicial decision-making. In particular, the article focuses on the implications of two types of implicit theories – whether people believe that phenomena are static and fixed versus dynamic and malleable. By introducing this research, this article aims to forward a research agenda designed to examine how social, contextual, and situational forces influence judicial behavior.

An entity theory reflects the mindset that phenomena are fixed and unlikely to change. An incremental theory reflects the mindset that phenomena are malleable and can be developed. Humans hold entity or incremental implicit theories about, for example, human nature, social institutions, and society. These theories, or “mindsets,” affect perception, judgment, and decision-making and strongly shape how people organize their experience in, knowledge about, and transactions in the world. When an entity theory is salient, people expect that phenomena are fixed, immutable and unchangeable. However, when an incremental theory is salient, humans believe that phenomena are malleable, changeable, and affected by contexts and situations. Whether one holds an entity theory versus an incremental theory is often driven by situations, contexts, and social influences: a form of situated cognition.

Implicit theories affect how jurists find facts, draw inferences, and impose punishment. Research on implicit theories, moreover, can enrich our understanding of how jurists apply the common law, engage in statutory interpretation, and construe the Constitution, offering novel insight into a timeless legal debate: whether American law is static versus dynamic. The article sets forth a research agenda that will form a line of psychological experiments to examine these processes.