Cognitive Jurisprudence


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6/18/2018 6/18/2018

Cognitive Jurisprudence

Adam J. Hirsch*

I. Introduction

Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements.1 Needless to say, the reality is that rules flow out of the pens of mortal persons beneath the impressive robes, persons who must bend their mental efforts to many complex problems and tasks, all competing for their attention.

Half a century ago, the late Herbert Simon developed the theory of “bounded rationality” in connection with human decisionmaking. His insight was that the cognitive resources (like other resources) of human beings are finite and, accordingly, must be rationed. Whether consciously or unconsciously, we all have to make hard choices about how to allocate our intellectual energies.2 We cope with cognitive deficits, Simon and his students elaborated, in a variety of ways—for example, by searching selectively through the exponential ramifications of our analysis; by settling on decisions that we find sufficiently good, even if not necessarily best; and by developing mental short-cuts (dubbed heuristics) to simplify cognitive tasks, thereby allowing us to arrive at decisions in a more frugal manner.

All of this seems rather obvious—although, as the sociologists are wont to remind us, we frequently remain oblivious to the obvious until someone points it out to us.3 At any rate, Simon’s vision contradicted the assumptions of orthodox economics, which presuppose limitless cognitive capacities and hence global rationality on the part of economic decisionmakers. Died-in-the-wool traditionalists continue to defend the usefulness of this paradigm,4 even as it shifts within the work of a younger generation of behavioral economists.5 In a parallel development, the adherents of law and economics—who imported the economic model of rational choice—now confront a growing body of scholarship that applies behavioral psychology to the analysis of rules regulating decisionmaking by legal actors, often to justify paternalistic intervention (disfavored by the economists) shielding citizens from the poor choices they might lean toward if left to their own mental devices.6

Thus far, behavioral analysis of law has provided a fruitful, if not uncontroversial,7 perspective on public policy. But thus far is only the beginning, for the revelations of cognitive psychology are universally applicable. Governors are no less constrained in their mental resources than are the governed, and each demands study. A cognitive theory of law will remain incomplete unless and until it includes a theory of cognitive jurisprudence.

In the pages following, we will explore some of the ways in which bounded rationality affects lawmakers, and thereby law itself. This is not, to be sure, an entirely new inquiry. As early as the Realist movement, when Professor Simon still wore his swaddling clothes, Jerome Frank was reminding us (in the language of his day) that “judges are not a distinct race and . . . their judging processes must be substantially of like kind with those of other men,” which he urged us to inquire into with the tools of psychology.8 Frank continued to concede his humanity after he himself ascended to the bench of the Second Circuit Court of Appeals,9 a concession that other modern judges have also made readily.10 In more recent days, a host of scholars has applied cognitive theory to analyze the behavior of all the lead players in the drama of the trial: litigants,11 attorneys,12 witnesses,13 juries,14 and trial court judges.15 As of yet, however, few scholars have trained a cognitive spotlight on the playwrights who hand judges their dramatic lines:16 appellate justices, legislators, restators, and commissioners. Each of these contributes rules, as distinct from the settlements, verdicts, holdings, sentences, and damage awards that follow at trial. And each of these, once again, is inescapably human—including, incidentally, that cerebral subspecies, homo academicus, which dominates the private lawmaking bodies that promulgate model codes. However intellectually formidable, even law faculties have limited faculties.17

Scholars examining evidence from trials claim that cognitive frailties have a noticeable impact on the verdicts and awards handed down by juries and judges.18 And if our frailties betray themselves at this level, within the realm of jus dicere, then it stands to reason they will do the same within jus dare. If anything, we might anticipate bounded rationality to distort rules more severely than it distorts rulings. The task environment in which lawmakers craft rules appears in certain respects more challenging—and hence should devour more cognitive resources—than does the task environment of the trial bench and jury box. Issuing a verdict, typically, requires a quantal choice (guilty or not guilty) or perhaps a linear choice (damages in a certain amount), whereas lawmakers face a complex choice from among an array of alternative rules, informed by any number of criteria.19 What is more, at least some areas of law comprise a competitive environment: Lawmakers pit their wits against other parties, each striving to outsmart the other. That is true, for instance, in the tax realm, where lawmakers and accountants lock horns (and minds).20 It is also true indirectly in the corporate realm, where lawmakers in different states vie to provide the most appealing situs for business charters.21

Finally, and perhaps most significantly, our legal landscape is a busy place, cultivated by busy persons. Juries typically face a single task, and they have some flexibility in allocating time toward its accomplishment. By contrast, lawmakers must attend to multiple tasks in a limited time. In The Path of the Law, Justice Oliver Wendell Holmes told of “a very eminent judge” who claimed “he never let a decision go until he was absolutely sure that he was right.”22 If such behavior, or anything like it, was ever truly possible, it is assuredly not so today. Dockets and legislative agendas are too crowded to permit it. As we would expect, term and session deadlines—occasioning the proverbial rush to judgment—put added pressure on scarce cognitive resources.23

None of this is to suggest that bounded rationality exercises a dominant influence on patterns of lawmaking; human nature is too complicated for that. But the part that it does play, alongside so many others,24 merits investigation. This Article makes a preliminary foray into the field. The question that it poses is a simple one: In what respects do legal rules reflect their authors’ limited capacities for productive thinking?

II. Selective Search

One ubiquitous device human decisionmakers employ to conserve cognitive energy is to search selectively the potential pathways of analysis of any given problem. A chess player,25 for example, examines only what appear the most promising lines of play while omitting to analyze others—not because they are irrelevant, but because of the limited effort that can be devoted to any one game.26

Selective search is cognitively efficient, but it is nevertheless imperfect. The most fundamental consequence is simply the variety of games that result, as different players explore different analytical branches and hence make different moves. The same is true of lawmakers. Each state’s legal system has evolved differently, in part, of course, because of different local conditions and cultural norms, but also because lawmakers have pursued different paths of analysis.

Within a single state’s legal landscape, selective search contributes to the contingency of rules. Participants in the process of drafting codes often come to appreciate the point. As a codifier of penal law related, “there can be an almost unending variety of alternatives to consider, so much so that the need to get on with the work has often dictated that somewhat arbitrary choices [have] to be made.”27 In similar terms, the reporter for the original Uniform Probate Code warned:

The field is so large and the variety of rules . . . is so wide that the energies of even the most unusual of talented and dedicated researchers will be dissipated. . . . [R]eviewing committees . . . [cannot] be expected to act intelligently when they must sift through hundreds of pages of technical distinctions and niceties in search of the best answer.28

In practice, as a theory of cognitive jurisprudence predicts, the (quixotic) quest for the best answer is abandoned for the (realistic) good-enough answer—and that answer varies, depending upon which analytical course the lawmaker happens to travel. Some scholars have conjectured that the common law tends in the direction of efficiency;29 but bounded rationality, afflicting judges no less than codifiers, simultaneously injects an element of randomness into the lawmaking process.

A closely related consequence of selective search is structural inconsistency between rules. One way lawmakers narrow their inquiries, typically, is by exploring problems discretely. Lawmakers tend to confine their search to the rule at issue, expending little effort on how structurally similar problems have been dealt with in other segments of the legal landscape. This form of myopia can cause one lawmaker to overlook policies reflected within rules that other lawmakers have crafted in cognate spheres.30 As a result, different patches of the legal landscape are often developed inconsistently—just as cognitive theorists would have predicted.31 The phenomenon can be equally observed within common law, statutory law, and the model codes promulgated by private lawmaking bodies.32

One illustration, drawn from the realm of inheritance law, is the conceptual distinction between two doctrines known as lapse and ademption. Both involve the core problem of how to interpret a testamentary provision that cannot be implemented literally due to a change of circumstances after the will was executed. If a testator bequeaths to someone who turns out to predecease him or her and then fails to amend his or her will in response to that development, lawmakers attempt to divine the typical preference of the testator for an alternative disposition of the property, depending upon a set of contingencies. If, however, a testator bequeaths property that is sold or destroyed prior to death, again without response by codicil, lawmakers traditionally have disregarded the question of probable intent, applying the simple principle that if a thing no longer exists it cannot be bequeathed; the possibility that the testator might, under some conditions, wish the beneficiary to receive an alternative bequest has not entered into the analysis.

Note well that the two circumstances raised here are conceptually similar, for both involve the problem better known in contract law as “impossibility.” In one case, the demise of the beneficiary frustrates the literal terms of the will; in the other, the demise of the property does the same. Arguably, the public policies applicable to the two cases are analogous—and if they are not, they need to be distinguished by analysis. Yet no such equation or analytical differentiation has occurred. Lawmakers have rarely thought to relate the doctrine of ademption to the doctrine of lapse, much less to the categorically distinct, but still corresponding, doctrine of contract impossibility. Rather, each of these doctrines has evolved in virtual—or even splendid—isolation.33

Apart from these abstract attributes of rules, selectivity of search also affects the form that rules take. Some of the concrete attributes of rules may derive from bounded rationality.

Return to our game-playing analogy. Chess players analyze selectively but as a consequence often miss preferable moves if they select the wrong lines to explore or abandon prematurely their search down a path. When they fail to consider an immediate or subsequent response to a move because they have overlooked a significant line of analysis, chess players experience the mental phenomenon of surprise.34 Even the greatest player who ever lived has succumbed to it on occasion.35 At such moments, chess players wish in retrospect that they had paid greater attention to other dimensions of the problem, realizing too late that they have made a bad move.

Lawmakers, too, are susceptible to surprise. Occasionally, lawmakers miscalculate the social repercussions of rules they craft.36 More typically, however, lawmakers fail to contemplate circumstances that call for refining general rules. Had lawmakers searched down neglected pathways, they would have announced more discriminate, or more limited, rules a priori.

Persons crafting rules have one unparalleled advantage over persons playing chess: Judges and legislators are allowed to take their moves back. Lawmakers reverse ill-conceived (as well as timeworn) rules. Likewise, and more commonly, the development of exceptions to rules, “an omnipresent feature of the legal terrain,”37 must trace substantially to selective search and resulting surprise on the part of lawmaking bodies.38

However reluctantly, lawmakers have had to own up to their periodic miscalculations. In the well-known case of Riggs v. Palmer,39 the high court of New York confronted the troubling spectacle of a will beneficiary due to inherit because he had slain the testator. Here, as cognitive theory predicts can happen,40 the testator failed to envisage this remote contingency and to provide for it under the terms of the will itself. But so, too, had lawmakers: the statutes regulating wills likewise included no qualification to disinherit slayers. The court corrected the legislators’ oversight:

If such a case had been present to their minds . . . it cannot be doubted that they would have provided for it. . . . The writers of laws do not always express their intention perfectly, but either exceed it or fall short of it. . . . [L]aw-makers could not set down every case in express terms.41

Perhaps to save face—as well as to bolster the propriety of this act of judicial legislation—the court portrayed the error as a failure of expression. In the same breath (and more candidly), the court also conceded the legislators’ failure of expectation. Lawmakers, like chess players, make inaccurate moves.42

The court in Riggs is (in)famous within jurisprudence for having laid claim to the power to carve judicial exceptions out of a statute.43 What is significant for our purposes, however, is the court’s thinly veiled cognitive justification for wielding that power. Through a less controversial legal process, legislators in some forty-five states have since acknowledged their want of thoughtfulness and have carved the same exception out of their previously overbroad inheritance statutes.44

Lawmakers have come to appreciate their potential for inaccuracy not merely in hindsight. They have met with surprise often enough to be capable of anticipating it. Knowing that they do not know how broadly or narrowly to frame a particular rule, and fearing that successors may be hard put to revise whatever rule they impose, lawmakers sometimes prefer to adopt a standard instead of a rule.45 By maintaining flexibility, a standard (assessing legality under a test of, say, “fairness” or “reasonability”) immunizes lawmakers against surprise, allowing them to refine the rule case-by-case. Traditionally, jurisprudes have conceived a tension between standards and rules: Whereas rules provide certainty and predictability, better enabling legal actors to plan their affairs, standards ensure that justice will be done.46 Under a theory of global rationality, however, this tension dissolves. By hypothesis, a preternatural lawmaker could craft a detailed, bright-line rule covering every eventuality, foreseeing every relevant variation on the facts. It is bounded rationality that creates the tension. And within a theory of cognitive jurisprudence, lawmakers’ resort to a standard represents nothing other than an implicit admission of fallibility.

III. Task Interference

Yet, the fundamental difficulty is that, however blinkered their vision, and however much they separate their tasks, human lawmakers have much to do. In this, of course, they are not alone. The experience of having one’s hands full is familiar to all of us as part and parcel of daily life. An inevitable byproduct, as we know, is that the overall quality of our performance of any one task suffers—a phenomenon referred to in the argot of psychology as task interference.47 Once more, nothing could be more central to the quotidian rhythms of our lives. Like Homer, we nod when, time and again, we become distracted.

All of this forces us to make implicit judgments about the relative priority (and ease) of the tasks set before us, given the time and attention span available—just as, by analogy to economics, we make consumption choices between differently priced goods within a market environment of budget constraints. Thus conceived, as a matter of “attentional economics,”48 we maximize “expected attentional revenues”49 by agonizing over issues we deem to be momentous, while breezing through others that we rate as inconsequential.50 It is a formula we all grasp intuitively, even if we rarely think about it consciously.51 Hence, when we misapply the formula, say, by squandering cognitive energy on a trivial decision, we are likely to be chided (or to chide ourselves) for making a mountain out of a molehill.52 And vice versa, when we invest insufficient cognitive energy in important tasks, we are again likely to hear about it (“Honey, concentrate on your driving!”).

Task interference must also weigh upon our law.53 The result, a theory of cognitive jurisprudence predicts, is that law follows the principle of unevenness: The workmanship of rules varies in quality, at least in part54 as a function of the disparate amounts of effort that lawmakers choose to devote to different rules. Depending upon how much importance they place on the issue before them, lawmakers either rise—or sink—to the occasion.

Disproportionate effort in lawmaking, and the principle of unevenness that it engenders, should manifest itself at different levels. On a macroscopic scale, lawmakers may discriminate among cases, and among statutes or codes. And on a microscopic scale, lawmakers may also discriminate within a case and within a statute or code, so long as multiple issues of law are implicated.

Lawmakers can economize on the effort they put into a less significant rule in a number of different ways. The most parsimonious strategy is simply to abstain from touching the rule at all—decision by default, a kind of heuristic that cognitive psychologists have observed in other social contexts.55 In connection with statutory law, the bottleneck of the agenda is well known.56 Barring distortions of the legislative process stemming from interest-group politics,57 statutes situated in back-alleys of the legal landscape—exempt property law, for example—are frequently left to gather dust. Forgotten but not gone, these laws tend ineluctably toward obsolescence.58

In connection with case law, the abstention heuristic translates into blind adherence to precedent—or, in the vernacular of jurisprudence, formalism—with the same result that rules become stranded in the past.59 With respect to judicial lawmaking, however, patterns of abstention are less often conceived in cognitive terms. According to orthodox jurisprudence, repeated in Supreme Court decisions, precedent is supposed to have greater weight in those areas where the reliance interest of individuals is higher—for instance, in the areas of property law and commercial law. In areas where fewer persons rely on the stability of rules, such as constitutional law, fidelity to the principle of stare decisis drops correspondingly.60

Cognitive jurisprudence suggests a different rationale for, and offers different predictions concerning, disparities in devotion to precedent. Formalism enjoys the cognitive virtue of relieving mental effort.61 Instead of thinking creatively about the rule, the court has only to discover it. As a dissenting judge recently complained, this approach constitutes “the line of least resistance[, t]he easy, most convenient” way to proceed.62 Once again, the theory prophesies that judges will have greater recourse to convenient, effort-saving devices, and hence will demonstrate less creativity, when deciding cases that they deem less important (or simply duller).63 The legist becomes the legalist in order to promote not the interests of parties operating under that law, but rather parties operating under other laws, to which cognitive energy is diverted.

Of course, both theories may hold true in part. And they may also be complementary, in that some areas of law commonly viewed as mundane place a simultaneous premium on predictability. On the entire face of the legal landscape, no region is so notoriously subservient to precedent as future-interests law.64 Taking note of the fact, Dean Ashbel Gulliver offered a conventional explanation: “[T]his branch of the law . . . usually involves honest action apt to have been taken in reliance on previous precedents.”65 But that was not all. Gulliver added, with intuitive insight:

Another factor contributing in a negative way to adherence to precedent is the absence in most future interest cases of any indication of equities that might induce ad hoc deviation from custom; . . . the question of whether the largesse is to go to Cousin Lena or Aunt Minnie is not calculated to engender a white heat of emotional prejudice in favor of either; and it’s simpler to stick with the familiar routine.66

Quite possibly, economic and cognitive forces have conspired to give future-interest law its remarkably static quality.

In addition, and more fundamentally, lawmakers may simply reflect more deeply about important problems and scrimp on others. Because greater attention tends to translate into superior decisions,67 a theory of cognitive jurisprudence predicts that major rules are likely to display better craftsmanship, whereas minor rules are liable to exhibit poorer qualities of design.

At least for some lawmakers, this process of sorting is reported to go on purposefully. Two judges have even likened it to “triage.”68 Appellate Judge Frank Coffin, author of several works on the ways of his profession, insisted that some such process has become a veritable necessity:

Without a sense of the relative importance of cases, both I and my clerks will be tempted to lavish time and care on every case, whether routine or significant . . . . We would soon find ourselves falling behind and working on older and older cases. And the older the cases, the harder it is to recall what we have . . . discussed . . . and the cycle becomes vicious.69

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