Taking Delight in Being Contrary, Worried about Being a Loner or Simply Indifferent: How Do Judges Really Feel About Dissent?

AuthorAndrew Lynch
Published date01 June 2004
Date01 June 2004
Subject MatterReview Essay
A Review of Cass R Sunstein, Why Societies Need Dissent (2003)
Andrew Lynch*
In Cass Sunstein's new book, Why Societies Need Dissent, the reader is presented with an
impassioned yet methodical rumination on the value to be gained through the airing of
voices which challenge the mainstream. Sunstein's canvas is an ample one and while
the book presents a compelling case overall for the legal protection of free speech, it is
wholly inadequate to describe Why Societies Need Dissent as a book simply for lawyers.1
Through repeated references to the lessons of history and by drawing significantly
upon psychological research into group decision-making, Sunstein seeks to reach out
to as broad an audience as possible. The book may irritate those who would prefer that
the incessant voices of disquiet were silenced but will surely provide comfort to social
activists and those feeling disenfranchised from the mainstream in their community's
political and social life. As such, it is very much a book for our times.
So far as this wider scope of the book is concerned, Sunstein succeeds admirably in
sifting through and explaining rather a lot of humanities research to bolster what is,
ultimately, a fairly straight-forward and commonsense proposition: 'unchecked by
dissent, conformity can produce disturbing, harmful, and sometimes astonishing
outcomes'.2 Many of the examples which Sunstein uses in support of this contention
would readily occur to the reader without prompting — the American government's
* Senior Lecturer, University of Technology, Sydney. The author wishes to thank Professor
George Williams, the two anonymous referees and the editors for their comments upon
earlier drafts of this paper.
1 A point acknowledged also by Kirby J: Justice Michael Kirby, 'Tradition and Diversity —
Twin Strengths of the Judiciary' (2004) 42 Law Society Journal 76, 78.
2 Cass R Sunstein, Why Societies Need Dissent (2003) 1.
312 Federal Law Review Volume 32
actions at the Bay of Pigs and subsequently in Vietnam, the defeat of the Axis powers
in World War II and the financial collapse of corporations with complacent and pliant
boards of governance, to name just a few.
All of this is most compelling and does not brook much disagreement. However, in
one chapter Sunstein turns his spotlight upon courts so as to specifically address the
factors which influence judicial dissent and it is this aspect of his work which I think is
of particular interest to those in legal circles. To what extent may our understanding of
the workings of the judiciary be informed by group psychology? How strong on a
bench, is the pressure which Sunstein suggests exists in all groups to dissuade its
members from dissension? How clearly do some judges respond to that pressure and
in what ways? Is it possible to say that some are able, in accordance with the terms of
their oath,3 to completely exclude considerations of where they stand in relation to
their colleagues when delivering a judgment? To the extent that is not possible, should
we be worried?
Two dominant phenomena are put forward by Sunstein as explaining why groups do
what they do and how these tend to inhibit voices of dissent. The first of these are
cascades — 'movements in which many people end up thinking something or doing
something because of the beliefs or actions of a few "early movers," who greatly
influence those who follow.'4 It is clear that cascades may be informational or social in
nature, be about facts or values — though, of course, it is difficult and futile to insist on
separating these too strictly. The defining feature of any cascade is the herd-like
mentality whereby the private stance of the individual is influenced less by their own
views and more by the signals conveyed to them by others. To give a dramatic
example, it is in this way that individual disaffection with a particular regime can,
quite suddenly, be harnessed by the forces of revolution.5 But clearly, opinions on any
number of matters, far less dramatic, are often shaped by cascades. This is not bad in
itself, but it clearly has the potential to be so. It is through cascades that people can be
led into error.
Through its obsession with analogical reasoning, law has, if anything, an
entrenched propensity for cascades which influence decision-making:
The system of legal precedent can also result in cascades, as early decisions lead later
courts to a particular result — and eventually most or all courts come into line, not
because of independent judgments but because of a decision to follow the apparently
informed decisions of others. The sheer level of judicial agreement will suggest a
consensus, but the appearance will be misleading if most courts have been influenced,
even decisively influenced, by their predecessors. Judges are not lemmings, but they
certainly follow one another.6
The accretion of legal principle through the development of and adherence to
precedents is a very clear instance of the cascade effect which Sunstein argues is so
widely prevalent. He seems on somewhat shakier ground when he argues that
3 Specifically the obligation to 'do right to all manner of people according to law without fear
or favour, affection or ill-will': High Court of Australia Act 1979 (Cth) s 11, sch.
4 Sunstein, above n 2, 54.
5 Ibid 55.
6 Ibid 54–5.

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