August 15, 2008
During a conference in May on collective wisdom organized by Professor Jon Elster of the College de France in Paris, Harvard Law School Professor Adrian Vermeule ’93 presented a working paper debunking the idea that several minds are always better than one in legal decision-making.
Vermeule began his presentation by describing arguments about collective wisdom that appear in legal theory scholarship. For example, many judicial institutions are structured so that judges make decisions on panels, juries decide the fate of someone accused of a crime, and American courts are even beginning to examine laws of other countries for additional perspectives on a case before issuing decisions.
Finding fault with the idea of collective wisdom, Vermeule said there is always a question of whose minds make up the smaller group making the decision. In the case of courts considering the laws of other countries, there might be a question of whether countries with less established legal systems should be included, for example.
“The quality of minds isn’t independent of their number,” said Vermeule, in describing his second criticism of collective wisdom. “More minds can be systematically worse than fewer because of selection constraints, incentives for epistemic free-riding, and emotional influences.” This is particularly true in the law, where judges are often expected to follow the precedent of previous courts instead of thinking independently, he said.
Vermeuele went on to describe why the structure of legal institutions often means that having a small group of people solving a problem creates “epistemic bottlenecks.” In a panel of nine judges, for example, if four are left-leaning and four are right-leaning, one person is the swing vote. The problem is exacerbated if the person casting the final vote is not as knowledgeable as the others.
The John H. Watson Professor of Law, Vermeule is an expert in administrative law, constitutional law and theory, legislation, and national security law. He is the author of “Mechanisms of Democracy: Institutional Design Writ Small,” which was published last year. Vermeule joined the HLS faculty in 2006.