By: Aesha Soni
Critical thinking is the cornerstone of legal education. Critical thinking requires a heterogeneity of ideas which arise from the diverse experiences that individuals have lived through to provide contextual lens through which law can effectively evaluate issues. However, the rise of Cancel Culture and the influence of Legal Formalism erodes diversity of thought in the legal field. This essay discusses the impact of Cancel Culture and Legal Formalism on open dialogue, exploring how both concepts foster Mob Mentality and discourage critical thinking, ultimately hindering the effectiveness and integrity of the legal field.
“Cancel Culture” or “Canceling” refers to boycotting individuals or institutions deemed offensive or objectionable, and started as a means for the oppressed to confront their oppressors and dismantle historically contingent power imbalances in society.[i] However, it can lead to a “Mob Mentality,” where people collectively adopt a particular perspective or behave in unison without critically evaluating their actions or considering the consequences.[ii]
The American legal system generally operates within the due process framework, ensuring that individuals are not unjustly punished or stigmatized without sufficient evidence and a fair trial.[iii] Canceling diminishes the principle of “innocent until proven guilty” by imposing social consequences without affording individuals the opportunity to defend themselves. Cancel Culture is a social phenomenon, not a legal concept, but it can influence public perception and discourse, potentially impacting individuals’ reputations and professional opportunities, and lead to grave real-world consequences.[iv]
Throughout history, the perilous repercussions of Mob Mentality have become evident time and again. An illustration of this is the era of McCarthyism in the United States, which was characterized by a hyper-suspicious atmosphere fueled by the Cold War.[v] This pervasive sense of disloyalty and fear gave rise to a form of Mob Mentality, where individuals were swayed by the prevailing sentiment and partook in actions targeting alleged communists and communist sympathizers.[vi] The echoes of this group hysteria can be traced back to the Salem Witch Trials, a dark chapter in history where members of Puritan society cheered for the torturous deaths of individuals––who held opposing views to the prevailing hegemony of the town––or “witches” without due process or substantial evidence.[vii] The mob, driven by a collective frenzy, abandoned reason and justice in favor of blind conformity.
Within the legal field, Cancel Culture and Mob Mentality can lead to a chilling effect on intellectual discourse, as individuals may fear expressing unpopular opinions or engaging in nuanced debates out of fear of getting “Canceled” or facing social and professional repercussions.[viii] The consequences of Cancel Culture on intellectual diversity are dire, especially if legal academic institutions silence students or discourage them from expressing dissenting opinions because it could impede the development of critical thinking skills and reduce the diversity of thought.[ix] When students are discouraged from questioning prevailing ideas or engaging in thoughtful debate, it limits their ability to analyze issues and consider alternative viewpoints.[x]
Critical thinking is fundamental to the legal field as lawyers must analyze complex legal issues, evaluate evidence, and apply logical reasoning to develop effective strategies and arguments. However, “Legal Formalism” or “Formalism” poses a significant challenge to cultivating critical thinking skills. Formalism emphasizes strict adherence to rules and textual interpretation.[xi] Formalism can provide stability and predictability in judicial decision-making, but it also limits the exploration of alternative perspectives.[xii]
Formalism prioritizes the letter of the law over broader context and societal implications, inhibiting critical thinking in the legal field, which hinders the development of well-rounded professionals capable of exploring alternative perspectives and creative problem-solving approaches.[xiii] As a result, legal education detaches from the nuances of real-world concerns and complex legal issues. [xiv]
Legal anthropologist Elizabeth Mertz observed countless classroom dialogues between professors and students at top U.S. law schools and developed her theory:
“Legal training focuses students’ attention away from a systematic or comprehensive consideration of social context and specificity. Instead, students are urged to pay attention to more abstract categories of legal (rather than social) contexts, reflecting a quite particular, culturally driven model of justice.”[xv]
If legal education continues to reproduce collective thought patterns related to the law, then we will see the detrimental effects of excluding voices in the process of making legal meanings.[xvi] For instance, when students of marginalized communities remain silent or censor themselves, they become culturally invisible, and mainstream thought patterns become dominant.[xvii] These one-sided legal meanings prevent the use of law as an instrument of democracy.[xviii] The intersection between Formalism and the lack of critical thinking highlights the need for a balanced approach within the legal system and promotes justice.[xix] In conclusion, over-reliance on Formalism can limit the ability to consider the unique circumstances of each case, and Mob Mentality and Cancel Culture can lead to rushed judgments and a disregard for fair evaluation. It is crucial for legal professionals to engage in critical thinking to uphold the principles of justice and fairness in their decision-making processes.
[i] Lauren Yang , Don’t be so quick to say #metoo to cancel culture, The Harvard Crimson (2020), (last visited Nov 1, 2023), https://www.thecrimson.com/column/playing-devils-advocate/article/2020/2/24/premaratne-me-too-cancel-culture/ (citing to “getting canceled” and “cancel culture”: What it means, Merriam-Webster (last visited Nov 1, 2023) https://www.merriam-webster.com/wordplay/cancel-culture-words-were-watching).
[ii] Understanding the crowd: A deep dive into mob mentality, Grouport Journal, (last visited Nov 1, 2023) https://www.grouporttherapy.com/blog/mob-mentality; Keegan Lee-Ng, “cancel culture” and the deterioration of individual thought, John Locke Institute (2021), https://www.johnlockeinstitute.com/post/drag-me-cancel-culture-and-the-deterioration-of-individual-thought (last visited Nov 1, 2023).
[iii] Procedural Due Process Civil, Justia Law, https://law.justia.com/constitution/us/amendment-14/05-procedural-due-process-civil.html (last visited Nov 1, 2023).
[iv] Nicole Dudenhoefer, Is Cancel Culture Effective? UCF Pegasus Magazine (2020), https://www.ucf.edu/pegasus/is-cancel-culture-effective/ (last visited Nov 1, 2023).
[v] McCarthyism and the Red Scare, Miller Center (2023), https://millercenter.org/the-presidency/educational-resources/age-of-eisenhower/mcarthyism-red-scare (last visited Nov 1, 2023).
[vi] Id.
[vii] Glenn Greenwald, The Lynch Mob Mentality, Common Dreams, (2010), (last visited Sept 29, 2023) https://www.commondreams.org/views/2010/02/05/lynch-mob-mentality
[viii] Julio Mitchell, Cancel culture unmasked: Unraveling the game theory behind public lies and ambushed discourse, Omni, https://omnilabs.ai/book/cancel-culture-unmasked (last visited Nov 1, 2023).
[ix] Bassam Saleem, Cancel culture: A threat to intellectual diversity, LinkedIn (2023), (last visited Nov 1, 2023)
[x] Id.
[xi] Richard H. Fallon, “The rule of law” as a concept in constitutional discourse, 97 Columbia Law Rev, 46 (1997).
[xii] Stefanie A. Lindquist and Frank C. Cross, Stability, Predictability And The Rule Of Law: Stare Decisis As Reciprocity Norm, Stanford Univ. Press, 176, 192 (2010).
[xiii] Steven Friedland, Adaptive strategies for the future of Legal Education, SSRN, (2016) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2718486 (last visited Nov 1, 2023).; Stefanie A. Lindquist and Frank C. Cross, Stability, Predictability And The Rule Of Law: Stare Decisis As Reciprocity Norm, Stanford Univ. Press, 176, 192 (2010).
[xiv] Steven Friedland, Adaptive strategies for the future of Legal Education, SSRN, (2016) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2718486 (last visited Nov 1, 2023).
[xv] Lucille A. Jewel, Silencing Discipline in Legal Education, 49 U. Tol. L. Rev. 657, 661 (2018); Elizabeth Mertz, The language of law school: Learning to “think like a lawyer,” 6 (2007).
[xvi] Lucille A. Jewel, Silencing Discipline in Legal Education, 49 U. Tol. L. Rev. 657, 662 (2018).
[xvii] Id.
[xviii] Lucille A. Jewel, Silencing Discipline in Legal Education, 49 U. Tol. L. Rev. 657, 663 (2018); Silencing student voices hurts education, democracy, Student Press Law Center (2020), https://splc.org/2007/05/press-release-silencing-student-voices-hurts-education-democracy/ (last visited Nov 1, 2023).
[xix] T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale Law Journal 1005, 943 (1987).
