Hastings and Monday morning quarterbacking

Mark Baer's excellent Letter about implicit bias on August 11 compels me to respond by applying what it teaches to the hindsight bias that is driving the rush to change the name of Hastings College of the Law.

Hindsight bias is "the tendency for people with knowledge of an outcome to exaggerate the extent to which they perceive that outcome could have been predicted. . . More colloquially it is known as 'Monday morning quarterbacking'" (see generally, Medical Malpractice v. Business Judgment Rule: Differences in Hindsight Bias, 73 Or. L. Rev. 587, 588 (1994)). The originator of this work was psychologist Baruch Fischhoff, who found:

"In hindsight, people consistently exaggerate what could have been anticipated in foresight. They not only tend to view what has happened as having been inevitable but also to view it as having appeared 'relatively inevitable' before it happened. People believe that others should have been able to anticipate events much better than was actually the case."

Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi. L. J. 571, 572 (1998), quoting Baruch Fischhoff, For Those Condemned to Study the Past: Heuristics and Biases in Hindsight, in Daniel Kahneman, Paul Slovic, and Amos Tversky, eds, Judgment under uncertainty: Heuristics and biases 335, 341 (Cambridge 1982). See also Adam Powell, KSR Fallout: Questions of Law Based on Findings of Fact and the Continuing Problem of Hindsight Bias, 1 Hastings Sci. & Tech. L.J. 241, 260 (2009); KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant on ex post reasoning."); Deborah L. Rhode, Leadership in Law, 69 Stan. L. Rev. 1603, 1639 (2017) (with hindsight bias "[w]e revise the history of our beliefs in light of what actually happened; in hindsight, we exaggerate what could have been anticipated in foresight.").

In the case of Serranus Clinton Hastings, the horrific descriptions of events used by Professors Benjamin Madley and Brendan Lindsay to attribute the massacre of Yuki Indians in the late 1850s to him, media's unquestioning adoption of their narrative, and the resulting urgency with which UC Hastings' leadership and the Legislature are rushing to change the College's name, fail to consider objective facts like: Hastings did not kill or participate in the unlawful killing of anyone, swore under oath in the Legislature's 1860 investigation into the "Indian Wars" in Mendocino County that he hoped to "subdue" angry Indians by feeding them and putting them to work, he had valued "Digger" Indians working in his home, communication and travel as we know it today was nonexistent at that time (the telegraph did not get to Mendocino County until 1870), and that as California's first Chief Justice Hastings interpreted Mexican law to allow a Native person's transfer of title to real property in payment of a debt, rather that accede to the majority's demeaning interpretation of the Mexican law. See, Sunol v. Hepburn, 1 Cal. 254 (1850) (Hastings, C.J., dissenting).

In addition to the hindsight bias at work, the Legislature is not where one goes for a fair trial. United States v. Lovett, 328 U.S. 303, 315 (1946) ("A bill of attainder is a legislative act which inflicts punishment without a judicial trial."). Is it any wonder that the present process and predicted results are not leading toward justice for the late Chief Justice Hastings or his heirs?