April 11, 2017 Articles

Arbitral Legitimacy in a Post-Truth Society

By S.I. Strong

Justice Brandeis once famously claimed that the best way to combat pervasive falsehoods and political misperceptions was through "more speech," but that strategy is built on the assumption that errors arise out of information deficits. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J. concurring). According to empirical research, the Brandesian response is ill-suited to a world increasingly built on so-called "alternative facts." See Brendan Nyhan & Jason Reifler, "When Corrections Fail: The Persistence of Political Misperceptions," 32 Polit. Behavior 303 (2010); Brendan Nyhan & Jason Reifler, The Roles of Information Deficits and Identity Threat in the Prevalence of Misperceptions (Feb. 11, 2016); S.I. Strong, "Alternative Facts and the Post-Truth Society: Meeting the Challenge," 165 U. Pa. L. Rev. Online _ (forthcoming 2017) [hereinafter Strong, Alternative Facts]. Fortunately, interdisciplinary research not only explains why existing methods of persuasion fail, it also describes how to combat the problems associated with the modern legal and political climate.

One useful way of looking at the problem of pervasive misconceptions is through the lens of the ongoing debate about the legitimacy of international arbitration. As I discuss in an upcoming article (see S.I. Strong, "Truth in a Post-Truth Society: How Sticky Defaults, Status Quo Bias and the Sovereign Prerogative Influence the Perceived Legitimacy of International Arbitration," 2018 U. Ill. L. Rev. __ (forthcoming 2018) [hereinafter Strong, Legitimacy]), numerous empirical studies prove that international arbitration (meaning both international commercial (business-to-business) and investment (investor-state) arbitration) offers a fair and unbiased means of resolving complex, high-value legal disputes through sophisticated, highly formal procedures that more closely resemble judicial procedures in commercial courts than domestic arbitration. However, critics routinely ignore this data and continue to question the validity of the procedure. Why?

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