Christopher Robertson — Blinding as a Solution to Institutional Corruption

The April 10, 2013 Lab seminar was presented by Christopher Robertson, Associate Professor of Law at The University of Arizona, James E. Rogers College of Law and Edmond J. Safra Center for Ethics Lab affiliate. Conducted in conjunction with Aaron Kesselheim, Dan Durand, and Jim Greiner, Professor Robertson's Lab project explores blinding as a solution to institutional corruption through two projects: a multidisciplinary symposium on the concept of blinding, and a social science experiment that will explore the role of biases in litigation science and advanced blinding as a potential transformative reform. For his Lab presentation, Professor Robertson synthesized broad concepts of institutional corruption, discussed a working paper on juror self-assessment, and spoke extensively about blinding in litigation.

Professor Robertson began the Lab seminar by introducing a sketch model, which focused on the larger synthesis of institutional corruption. The model, which was cyclical in nature, illustrated the relationships that develop between decision makers (e.g., members of Congress), outcomes (e.g., laws, policy), and financial or other interests (e.g., industry, special interests). The model demonstrated the mutually beneficial dependencies inherent to institutional corruption. Professor Robertson explained to the participants of the Lab that they might conceptualize these dependencies through the lens of Congressional corruption: A law serves an industry's interest; the industry supports the policy maker's election, and then the policy maker then processes the preferred outcome.

Robertson critiqued two extant solutions to institutional corruption. One solution is banning the dependencies that may give rise to corruption, but this solution may be infeasible unless there are alternative sources of that support (e.g., public funding). In many contexts, it is not economically, politically, or culturally feasible to replace a subsidy that is currently creating a dependency.

Another solution, sometimes called "professionalism" is to allow an individual to be exposed to a dependency, but to nonetheless exercise a mental self-control that allows ones' decisions to remain unaffected. After reviewing the American Medical Association's (AMA) Code of Medical Ethics and Federal Bribery statutes, both of which call for this sort of self-assessment and self-control over potential biases, Professor Robertson explained the difficulties of these models by drawing on the psychological literature of de-biasing and contamination. The key point that he argued for was that, once exposed to a dependency, avoiding bias is extremely difficult. Drawing on the work of Wilson and Brekke, Robertson showed that one must not only be cognizant and introspective of a potential bias, but they must also know how to correct the bias, and a motivation to do so. And even still, one must be able to change their mental behavior, which can be rather difficult. At this point in the presentation, one participant of the Lab sparked a discussion of intuitive versus rational decision-making. She argued that there are certain biases that bedevil people, some of which might very well be evolutionary, a product of our intuitive decision-making faculties. From this discussion, Professor Robertson introduced his working paper on juror self-assessment. The paper, which is based on an empirical study, seeks to determine if juror self-assessments are actually reliable. By creating a biasing factor (pretrial publicity) and randomizing jurors to a biasing condition and a control, Professor Robertson and his colleague's findings revealed that even after screening, self-diagnosing is questionable. Participants of the Lab were eager to discuss Professor Robertson's findings. In particular, one participant questioned how the norms of an institution might affect the possibilities of de-biasing. He reasoned that even after screening, jurors would surely be influenced by the collective behaviors of their fellow jurors.

Robertson suggested that blinding is sometimes more feasible as a solution to institutional corruption, since it may allow the dependency but prevent it from infecting the ultimate decisions of the institutional agents, who remain unaware of the source of the dependency. Turning to the topic of blinding, Professor Robertson began to lay the framework for his system of blinding expert witnesses. The proposed system would require an attorney to set criteria for experts by providing facts and fees, establish an unbiased intermediary to select a fair expert and blind the facts, and choose an expert to review the case. He argued that this system would leave funding and support out of the equation, thus fostering an environment where the decision maker (the expert witness) is able to distinguish between the relevant and necessary versus the irrelevant and prejudicial. At this point in the discussion, one participant of the Lab expressed his concern about the intermediary potentially becoming biased. In light of this, another participant inquired why judges do not simply pick independent experts. Professor Robertson explained that there is indeed a federal rule that gives all federal and most state judges the option to do so, but that it's not a common practice, due to the judge's incentives and professional culture. In contrast, blinding is designed to be driven by the rational incentives of the self-interested litigants. Robertson presented results of his experiments with mock jurors, showing that the presence of a blinded expert more than doubles the odds of winning. Robertson argued that this sort of incentive makes blinding potentially feasible in a way that court-appointment is not.

In summary, Professor Robertson and participants of the Lab discussed key concepts and terms relating to institutional corruption. Discussion primarily centered on self-assessment of bias, contamination, and blinding as a solution to eliminating improper dependencies where institutional corruption already exists or is likely to develop.