Ten Legal Dissonances - Morris B. Hoffman

• Citation: Vol. 62 No. 3
• Publication year: 2011

Ten Legal Dissonances

by Morris B. Hoffman*

The law is extraordinarily good at operationalizing our folk psychology. Law is, indeed, common sense writ large. As we have learned more, however, about human nature and how the brain instantiates that nature, it is becoming equally clear that there are some fissures in this picture, some discrete aspects of our presumed natures, that the law consistently gets terribly wrong. In this essay, I briefly discuss ten common and wide-ranging legal dissonances. Although I will touch on some suggested patches, by and large, this Article is a descriptive, rather than prescriptive, exercise.

First, some apologies about nomenclature. By using the word "dissonance," I do not mean to suggest any analogy to what psychologists call "cognitive dissonance." Cognitive dissonance is a well-described phenomenon in which it appears the brain sometimes tries to reconcile conflicting information by producing self-deluding beliefs.¹ The

* State Trial Judge, Denver, Colorado. Research Fellow, Gruter Institute for Law and Behavioral Research. Member, John D. and Catherine T. MacArthur Foundation Law and Neuroscience Project.

The views expressed in this Article do not reflect the views of my judicial colleagues, the MacArthur Foundation, or the Gruter Institute. This Article is based on my presentation at a Symposium, "The Brain Sciences in the Courtroom," hosted by the Mercer University, Walter F. George School of Law (Oct. 22, 2010). I thank Professor Theodore Y. Blumoff and the staff of the Mercer Law Review.

1. Jack W. Brehm, Postdecision Changes in the Desirability of Alternatives, 52 J. Ab. & Soc. Psychol. 384, 384 (1956). One of the seminal cognitive dissonance experiments was conducted by Jack Brehm in 1956. He asked female subjects to rate the desirability of eight different household appliances. He then randomly picked two appliances for each subject and invited the subject to take one of the two appliances home as a gift. He then asked the same subjects to re-rate the same eight appliances. The appliance they chose to take home rose dramatically in their rankings, while the rejected appliance fell dramatically. Id. at 384-87. The cognitive dissonance explanation of these results is that when the subject chooses one appliance over another, the very binary nature of this choice is dissonant with the fact that the rejected appliance also has some good features. Once we pick the better of the two, we seem to resolve the dissonance of the choice by convincing ourselves the better was the best and the less good was the worst.

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dissonances discussed in this Article are probably more accurately called "decision errors."² I will stick, however, with "dissonances" because the deeper point is that they are all examples of what Owen Jones has called "time-shifted rationality"-behaviors with which evolution has armed us but that, because of changes in our environment, no longer serve us as well as they once did.³ For the rationalists out there who believe that reason is God, the law is an exercise in pure reason, and we are largely rational beings whose ordinary common sense will seldom lead us astray,⁴ this Article begins with three well-known examples from psychology and probability that show our cognitive powers and common sense are not always what they are cracked up to be.

I. Cognitive Reflection

Consider these simple story problems. Try to answer them quickly, without resort to writing down any algebra or other notes: (1) A bat and ball cost $1.10 together. The bat costs $1.00 more than the ball. How much does the ball cost? (2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? (3) In a lake, there is a patch of lily pads. Every day the patch doubles in size. If it takes 100 days for the patch to cover the entire lake, how long did it take for the patch to cover half of the lake?

If you answered (1) $0.10, (2) 100 minutes, or (3) anything other than 99 days, you answered incorrectly.⁵ But do not be embarrassed, you are in good company. In fact, in a study of undergraduates at seven

2. I would like to thank an anonymous psychologist in the audience at the Mercer Law Review Symposium who brought this nomenclature issue to my attention. It turns out, however, that some very interesting work by two economists-Keith Chen at Yale University and Jane L. Risen at the University of Chicago-is challenging the orthodox cognitive dissonance model, suggesting that the post-choice preference change shown in Brehm-like experiments is actually an artifact of-get ready to be surprised here-the Monty Hall Paradox, see M. Keith Chen & Jane L. Risen, How Choice Affects and Reflects Preferences: Revisiting the Free-Choice Paradigm, 99 J. Pers. & Soc. Psychol. 573 (2010), discussed later in this Article. See infra Part II. So maybe, without even knowing it, I was right after all to use the word "dissonance."

3. Owen D. Jones, Time-Shifted Rationality and the Law of Law's Leverage: Behavioral Economics Meets Behavioral Biology, 95 Nw. U. L. Rev. 1141, 1172 (2001).

4. There are still a few rationalists left. In fact, except for the kinds of exceptions discussed, I am a big believer in the power of ordinary common sense, and indeed in a kind of moral realism informed by evolution. See, e.g., Morris B. Hoffman, The Neuroeconomic Path of the Law, in Law and the Brain 3 (Semir Zeki & Oliver Goodenough eds., 2006). I have a strong faith in our ordinary cognitive powers, which makes it all the more important to recognize those few legal areas in which our common sense so comprehensively fails us.

5. The answers are (1) $0.05, (2) 5 minutes, and (3) 99 days.

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different universities, you can see that the best any single group did-the cohort from the Massachusetts Institute of Technology (MIT)-was to average two right and one wrong:

On the other hand, if you got two or even all three right, do not gloat too much. You probably sensed that they were trick questions and intentionally resisted your first impulsive answer. Indeed, these kinds of questions, called cognitive reflection tests (CRTs), are used by researchers to study just that-the extent to which we can and cannot resist our first impulse about what appears to be a purely logical task, and what exactly it means to have such an "impulse" and to be able to "resist" it. It turns out that just knowing these are tricky questions arms most of us with an ability to avoid their pitfalls. In fact, when CRT studies are conducted, the tricky questions are typically embedded in a much larger number of non-tricky questions precisely to avoid this powerful arming phenomenon.⁷

Psychologists have long known, and long been delighted, that there are many kinds of tasks at which humans are surprisingly bad, from CRTs to a myriad of well-known visual and language tests. These sorts of dissonances not only vary in kind, they vary in magnitude-what we might also call "stickiness." It seems that we can avoid some dissonances just by knowing about them ahead of time, like the CRTs. We cannot seem to shake other dissonance, no matter how long we cogitate about

6. Shane Frederick, Cognitive Reflection and Decision Making, 19 J. Econ. Persp. 25, 29 tbl. 1 (2005). Chris Guthrie and his colleagues repeated Frederick's experiment with Florida trial judges, who performed somewhere between Harvard University and University of Michigan undergraduates. Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 13-14 (2007). These same authors have written a wonderful survey of decision-making errors, both in theory and in practice, specifically targeting the decisions of judges. See Chris Guthrie et al., Inside the Judicial

Mind, 86 Cornell L. Rev. 777 (2001).

7. Guthrie et al., Blinking on the Bench, supra note 6, at 10-12.

Sample

MIT

Carnegie Mellon Harvard Michigan Bowling Green Michigan State

Toledo

Mean score

2.18

1.51 1.43 1.18

0.87 0.79 0.57⁶

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them.⁸ Most of these difficult-to-overcome dissonances, at least the ones most salient for the law, are probability dissonances: problems we all have in evaluating risk, even-and, it seems, most especially-the most mathematically gifted of us.⁹

II. The Monty Hall Paradox

The most famous of the probability errors, and no doubt one of the stickiest, is called the Monty Hall Paradox, named after the host of the old game show, "Let's Make a Deal." At the end of each show, Monty would give the day's big winner one last chance to win a really big prize. He would display three doors. Behind two of them were dud prizes-for our purposes, let us say the dud prizes were goats. But behind one of the doors was a fantastic prize. The placement of the goats and prize was random, but Monty knew what was behind each door before each game began. The contestant would then pick a door-let us say she picked Door No. 1. To tease the contestant and to increase the level of the audience's anticipation, Monty would open one ofthe other two doors to reveal a goat-let us say he opened Door No. 3.¹⁰

8. The stickiness of a particular dissonance is probably a function of the magnitude of its adaptive value. Perhaps the CRT-type errors are easy for us to overcome because, although we certainly need to make quick decisions in some circumstances, our brain size and intelligence also put an adaptive premium on taking a more measured and thoughtful approach in other circumstances. The probability errors, which seem grounded at least in part on the problem of hyperbolic discounting, see infra note 9, were probably driven by much stronger adaptive pressures. Having a preference for keeping a bird in hand rather than trading it for two in the bush would have been supremely adaptive in an era when survival from day to day was dicey.

9. See infra Part IV.A. There are many evolutionary explanations for why...