COGNITIVE JURISPRUDENCE

ADAM J. H IRSCH*

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

* David M. Hoffman Professor of Law, Florida State University. M.A. 1979, J.D. 1982, Ph.D.
1987 Yale University. Thanks to Matt Adler, Steve Bank, George Fisher, Greg Mitchell, and Richard
Posner, together with audit ors at a faculty colloquium at the University of California, Hastings College
of the Law, for helpful comments. Research for this Article was supported by a grant from the COFRS
fund of Florida State University, which the author gratefully acknowledges.
1. For an eighteenth century assertion of the divine inspiration for English law, see, for example,
1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *42 (1765–69). For a secular
encomium, see, for example, Foster v. State, 596 So.2d 1099, 1105 n.12 (Fla. Dist. Ct. App. 1992). For a
discussion, and criticism, of judges’ tradition of “priestly trappings,” “clothing [their] wearer with the dignity
that befits the augur,” see JEROME FRANK , COURTS ON TRIAL : MYTH & REALITY IN AMERICAN JUSTICE
254–61 (2d prtg 1950).
2. Simon’s theories are encapsulated in HERBERT A. SIMON , REASON IN HUMAN AFFAIRS (1983).
Neurophysiologists have recently taken up the problem. See generally WALTER J. FREEMAN, HOW BRAINS
MAKE UP THEIR MINDS (2000).

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600 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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

3. E.g., ANTHONY GIDDENS, IN DEFENSE OF SOCIOLOGY 3–4 (1996). In fact, this sensation reflects
still another cognitive phenomenon known as the “hindsight bias,” which leads us to overestimate the
predictability of events in retrospect. This psychological disposition has also been found to extend to
scientific results, and hence makes all our scholarship appear more trivial. Paul Slovic & Baruch Fischhoff,
On the Psychology of Experimental Surprises, 3 J. EXPERIMENTAL PSYCHOL. 544, 544 (1977).
4. E.g., Gary S. Becker, Nobel Lecture: The Economic Way of Looking at Behavior, 101 J. POL.
ECON. 385, 402 (1993) (“[N]o approach of comparable generality has yet been developed that offers serious
competition to rational choice theory.”). This is hardly the only assumption of orthodox economics under
attack today as bad psychology. Preference exogeniety is another. See generally Samuel Bowles,
Endogenous Preferences: The Cultural Consequences of Markets and Other Economic Institutions, 36 J.
ECON. L IT. 75 (1998).
5. E.g., RICHARD H. THALER, QUASI RATIONAL ECONOMICS (1994). Bounded rationality has to
some degree been reflected in orthodox economics via the subterfuge of misrepresenting costly cognition as
costly information-gathering. John Conlisk, Why Bounded Rationality, 34 J. ECON . LIT. 669, 690–91 (1996)
(“It is curious that such similar . . . issues . . . have been treated so differently in standard economics, one
avoided and the other embraced.”). See also GARY S. BECKER, THE ECONOMIC APPROACH TO HUMAN
BEHAVIOR 6–7 (1976). At least one law and economics scholar has conceived lawmaking as an
“information product.” Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557,
585–86, 623 (1992).
6. For example, in connection with the discharge in bankruptcy, see THOMAS H. JACKSON, THE
LOGIC AND LIMITS OF BANKRUPTCY LAW 228–43 (1986); and Charles G. Hallinan, The “Fresh Start”
Policy in Consumer Bankruptcy: A Historical Inventory and an Interpretive Theory, 21 U. RICH. L. REV. 49,
109–18 (1986). For theoretical discussions of the paternalistic implications of behavioral analysis of law, see
Adam J. Hirsch, Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives, 73 WASH . U.
L.Q. 1, 17–22 (1995); Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law
and Economics, 50 STAN. L. REV . 1471, 1541–45 (1998); and Eyal Zamir, The Efficiency of Paternalism, 84
VA. L. REV . 229, 254–75 (1998). Cf. Richard A. Posner, Rational Choice, Behavioral Economics, and the
Law, 50 STAN . L. REV. 1151, 1575 (1998). For recent survey articles, see generally Russell B. Korobkin &
Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and
2003] COGNITIVE JURISPRUDENCE 601

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 shall 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 was still in his swaddling cloths, 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

Economics, 88 CAL. L. REV. 1051 (2000); and Cass R. Sunstein, Behavioral Law and Economics: A
Progress Report, 1 AM. L. & ECON. REV. 115 (1999).
7. For recent skeptical critiques, see generally Robert A. Hillman, The Limits of Behavioral Decision
Theory in Legal Analysis: The Case of Liquidated Damages, 85 CORNELL L. REV. 717 (2000); Gregory
Mitchell, Taking Behavioralism Too Seriously? The Unwarranted Pessimism of the New Behavioral
Analysis of Law, 43 WM. & MARY L . REV . 1907 (2002); and Tanina Rostain, Educating Homo
Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement, 34 LAW & SOC’Y
REV . 973 (2000). For a response to the first of these critiques, see Jeffrey J. Rachlinski, The “New” Law and
Psychology: A Reply to Critics, Skeptics, and Cautious Supporters, 85 CORNELL L. REV . 739 (2000).
Finally, for an argument that, taken alone, cognitive theory provides an impoverished perspective on human
psychology, see Anne C. Dailey, The Hidden Economy of the Unconscious, 74 CHI.-KENT L. REV. 1599
(2000).
8. JEROME FRANK, LAW AND THE MODERN MIND 105–06 (2d prtg. 1931); Jerome Frank, Are
Judges Human? Part One: The Effect on Legal Thinking of the Assumptions that Judges Behave like Human
Beings, 80 U. P A . L. REV . 17 (1931); Jerome Frank, Are Judges Human? Part Two: As Through a Class
Darkly, 80 U. P A. L. REV. 233 (1931).
9. See In re J.P. Linahan, 138 F.2d 650, 652–54 (2d Cir. 1943) (Frank, J.); FRANK , supra note 1, at
255–56. Frank donned his robe in 1941. For a discussion of his judging, see ROBERT J. GLENNON , THE
ICONOCLAST AS REFORMER 102–92 (1985).
10. Among them is William H. Rehnquist, the current Chief Justice of the U.S. Supreme Court:
“Judges, so long as they are relatively normal human beings, can no more escape being influenced by public
opinion in the long run than can people working at other jobs.” Quotes, A.B.A. J., Aug. 1989, at 30. See
also BENJAMIN N . CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 167 (1921) (“Deep below
consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of
instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.”);
RICHARD A. P OSNER, THE FEDERAL COURTS 366 (rev. ed. 1996) (“Judges are not that different from people
of the same class in the society from which they come. The unruliness of American judiciaries is the
unruliness of American culture.”).
602 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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

11. For recent discussions, citing in turn to earlier ones, see generally Frank B. Cross, In Praise of
Irrational Plaintiffs, 86 CORNELL L. REV. 1 (2000); Chris Guthrie, Better Settle Than Sorry: The Regret
Aversion Th eory of Litigation Behavior, 1999 U. ILL. L. REV. 43; Chris Guthrie, Framing Frivolous
Litigation: A Psychological Theory, 67 U. CHI. L. REV. 163 (2000); and Samuel Issacharoff, The Content of
Our Casebooks: Why Do Cases Get Litigated?, 29 FLA. ST . U. L. REV . 1265 (2002).
12. See generally Lynn M. LoPucki, Legal Culture, Legal Strategy, and the Law in Lawyers’ Heads,
90 NW . U. L. REV. 1498 (1996).
13. See Phoebe C. Ellsworth & Robert Mauro, Psychology and Law, in 2 THE HANDBOOK OF SOCIAL
PSYCHOLOGY 684, 702–17 (Daniel T. Gilbert et al. eds., 1998) (surveying the literature). For other recent
discussions, see Elizabeth F. Loftus, Leading Questions and the Eyewitness Report, in JUDGMENT AND
DECISION MAKING 199 (Terry Connolly et al. eds., 2d ed. 2000); and William Meadow & Cass R. Sunstein,
Statistics, Not Experts, 51 DUKE L.J. 629 (2001).
14. E.g., Gretchen B. Chapman & Brian H. Bornstein, The More You Ask the More You Get:
Anchoring in Personal Injury Verdicts, 10 APPLIED COGNITIVE PSYCHOL. 519 (1996); David Schkade, Cass
R. Sunstein & Daniel Kahneman, Deliberating About Dollars: The Severity Shift, 100 COLUM. L. REV. 1139
(2000). For surveys of the capacious literature, see Dennis J. Devine, Laura D. Clayton, Benjamin B.
Dunford, Rasmy Seying & Jennifer Pryce, Jury Decision Making: Forty-Five Years of Empirical Research
on Deliberating Groups, 7 PSYCHOL. P UB. P OL’Y & L. 622 (2001); and Ellsworth & Mauro, supra note 13,
at 693–02. For an earlier survey, see Robin MacCoun, Experimental Research on Jury Decision Making,
244 SC I. 1046 (1989). On the related psychological problem of jury nullification, see Mark Pingle,
Submitting to Authority: Its Effect on Decision Making, 18 J. ECON. P SYCHOL. 45 (1997).
15. C.K. ROWLAND & ROBERT A. CARP, P OLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS
152–73 (1996). See also Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial
Mind, 86 CORNELL L. REV. 777 (2001) (examining judges’ susceptibility to cognitive illusions and biases);
Arthur J. Lurigio, John S. Carroll & Loretta J. Stalans, Understanding Judges’ Sentencing Decisions:
Attributions of Responsibility and Story Construction, in APPLICATIONS OF HEURISTICS AND BIASES TO
SOCIAL ISSUES 91 (Linda Heath et al. eds., 1994); Richard L. Wiener & Christine C. Pritchard, Negligence
Law and Mental Mutation: A Social Inference Model of Apportioning Fault, in APPLICATIONS OF
HEURISTICS AND BIASES TO SOCIAL ISSUES, supra, at 117; W. Kip Viscusi, How Do Judges Think About
Risk?, 1 AM. L. & ECON . REV . 26 (1999).
The most fundamental manifestation of bounded rationality at the level of judgment is the
occasional occurrence of legal error, which cognitive theory predicts is more likely, the more
complicated the rule a judge has to apply. Thus, the notoriously complicated Rule Against Perpetuities
has frequently resulted in legal error. Even the Rule’s all-time master described it as “a constant school
of modesty”—by which, of course, he meant intellectual modesty. JOHN C. GRAY , THE RULE AGAINST
PERPETUITIES at xi (Roland Gray ed., 4th ed. 1942) (1886). Within a cognitive model of judging, then,
an old maxim turns upside-down: Hard law makes bad cases when the judge who applies it is
boundedly rational!
16. For a suggestion of the general dearth of psychological studies of judging, see LAWRENCE BAUM,
THE PUZZLE OF JUDICIAL BEHAVIOR 137–38, 141 (1997).
My own explorations of the effects of bounded rationality on lawmaking began in 1996. See
Adam J. Hirsch, Inheritance and Inconsistency, 57 OHIO ST . L.J. 1057, 1145–62 (1996) [hereinafter
Hirsch, Inconsistency]; Adam J. Hirsch, Inheritance Law, Legal Contraptions, and the Problem of
Doctrinal Change, 79 OR. L. REV. 527, 567–68, 573 (2000). One can find occasional stabs at the
problem scattered through the literature of jurisprudence. For an early suggestion that the phenomenon
of legal fictions traced to the conceptual limitations of the “human mind[s]” of judges, see L. L. Fuller,
Legal Fictions, 25 I LL . L. REV . 513, 524–25 (1931). For several recent contributions to the literature,
see Hillary A. Sale, Judging Heuristics, 35 U.C. DAVIS L. REV . 903 (2002); Mark Seidenfeld, Cognitive
2003] COGNITIVE JURISPRUDENCE 603

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 pa rties, 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

Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 CORNELL L. REV . 486
(2002); and Stephen M. Bainbridge & G. Mitu Gulati, How Do Judges Maximize? (The Same Way
Everybody Else Does—Boundedly): Rules of Thumb in Securities Fraud Opinions, 51 EMORY L.J. 83
(2002).
17. Doubtless, academics enjoy more ample time for reflection than any other mortal lawmaker (“the
leisure of the theory class”). But compare Grant Gilmore’s (playful?) assertion that “the academic mind is
usually a generation or so behind the judicial min d in catching on to . . . things.” GRANT GILMORE, THE
DEATH OF CONTRACT 90 (1974).
18. E.g., Guthrie et al., supra note 15, at 829 (“Our study demonstrates that [trial] judges rely on the
same cognitive decision-making process as laypersons, which . . . can produce poor judgments.”).
19. For a theoretical discussion citing to earlier works on the same subject, see Craig D. Parks &
Rebecca Cowlin, Group Discussion as Affected by the Number of Alternatives and by a Time Limit, 62
ORGANIZATIONAL BEHAV . & HUM. DECISION PROCESSES 267 (1995).
20. See generally DAVID LUBAN , LAWYERS AND JUSTICE 47–49 (1988) (observing the exploitation
of “loopholes” in law). To a degree, election-finance law and criminal law likewise comprise competit ive
task environments. These games of cat-and-mouse have gone on since the dawn of law. For example,
Britain’s Parliament proved no match for medieval estate planners, who quickly succeeded in thwarting the
Statute of Uses. Blackstone commented dryly: “[T]hus . . . a statute made upon great deliberation . . . has
had little other effect than to make a slight alteration in the formal words of a conveyance.” 2 BLACKSTONE,
supra note 1, at * 336. Likewise, the church “ever had of their counsel the best learned men that they could
get,” and these “found many means to creep out of th[e mortmain] statute.” 2 id. at * 270.
604 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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.

21. See generally Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL . ECON. 416
(1956) (positing a general theory of legal competition among states).
22. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 465 (1897).
23. For an early recognition, see ARISTOTLE, THE “ART ” OF RHETORIC 5–7 (John Henry Freese
trans., G.P. Putnam’s Sons 1926) (c. 330 B.C.) (observing that “judgments are delivered on the spur of the
moment, so that it is difficult for the judges properly to decide questions of justice or expediency”). On the
theoretical significance of time pressure, see TIME PRESSURE AND STRESS IN HUMAN JUDGMENT AND
DECISION MAKING (Ola Svenson & A. John Maule eds., 1993); JOHN W. PAYNE, JAMES R. BETTMAN &
ERIC J. JOHNSON , T HE ADAPTIVE DECISION MAKER 37–40 (1993); and A. John Maule & Anne C. Edland,
The Effects of Time Pressure on Human Judgment and Decision Making, in DECISION MAKING : COGNITIVE
MODELS AND EXPLANATIONS 189 (Rob Ranyard et al. eds., 1997); Mieneke W.H. Weenig & Marleen
Maarleveld, The Impact of Time Constraints on Information Search Strategies in Complex Choice Tasks, 23
J. ECON. PSYCHOL. 689 (2002). For suggestions by judges that time pressure has adversely affected the
quality of their opinions, see EDWARD LAZARUS, CLOSED CHAMBERS 285–86 (1998); Howard T. Markey,
On the Present Deterioration of the Federal Appellate Process: Never Another Learned Hand, 33 S.D. L.
REV . 371, 374 (1988); and Lauren K. Robel, Caseload and Judging: Judicial Adaptations to Caseload, 1990
BYU L. REV. 3, 9–10. By analogy, the scramble that occurs near the end of a legislative session or when a
bill is on the floor is notoriously inauspicious for the quality of legislation. E.g., Stephen Breyer, The 1991
Justice Lester W. Roth Lecture: On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L.
REV . 845, 873 (1992). Crowded agendas also diminish the intensity of review of private legislation.
Lawrence H. Averill, Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALA . L.
REV . 891, 905 n.63 (1992); Adam J. Hirsch, Revisions in Need of Revising: The Uniform Disclaimer of
Property Interests Act, 29 FLA . ST . U. L. REV. 109, 179 n.324 (2001).
24. Not least, of course, the substantive policy concerns of lawmakers. For a range of perspectives,
see generally BAUM, supra note 16; DANIEL A. FARBER & P HILIP P. FRICKEY , L AW AND PUBLIC CHOICE
12–33 (1991); RICHARD A. POSNER, OVERCOMING LAW 109–44 (1995); RICHARD A. POSNER, THE
PROBLEMS OF JURISPRUDENCE 186–96 (1990); ROWLAND & CARP, supra note 15, at 10–17; LAWRENCE S.
WRIGHTSMAN, JUDICIAL DECISION MAKING : IS PSYCHOLOGY RELEVANT ? (1999); Orley Ashenfelter,
Theodore Eisenberg & Stewart J. Schwab, Politics and the Judiciary: The Influence of Judicial Background
on Case Outcomes, 24 J. LEGAL STUD. 257 (1995); Frederick Schauer, Incentives, Reputation, and the
2003] COGNITIVE JURISPRUDENCE 605

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

Inglorious Determinants of Judicial Behavior, 68 U. CIN. L. REV. 615 (2000); Dan Simon, A Psychological
Model of Judicial Decision Making, 30 RUTGERS L.J. 1 (1998); and Gregory C. Sisk, Michael Heise &
Andrew P. Morris, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning,
73 N.Y.U. L. REV . 1377 (1998).
25. Professor Simon offered this illustration in his seminal essay. Herbert A. Simon, A Behavioral
Model of Rational Choice, 69 Q. J. ECON. 99, 106–07 (1955).
26. “What a person cannot do he or she will not do, no matter how strong the urge to do it.”
HERBERT A. SIMON , T HE SCIENCES OF THE ARTIFICIAL 28 (3d ed. 1996). On selective search, see id. at 55–
59.
27. Sanford J. Fox, Reflection on the Law Reforming Process, 4 U. MICH. J.L. REFORM 443, 452
(1971).
606 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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 her and then fails to amend her will in response to that

28. Richard V. Wellman, Law Teachers and the Uniform Probate Code, 24 J. LEGAL EDUC. 180, 182
(1972).
29. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 21.5, at 614 & n.7 (citing to prior
discussions).
30. This phenomenon may also have to do with mechanisms of long-term memory retrieval.
“Associationist” theories of memory posit that knowledge is stored in interconnected mental compartments.
Those interconnections operate like an analytical search tree, and, absent a close connection, a lawmaker (let
us say) might fail to associate legal knowledge in one compartment with that located in another. Steven A.
Sloman, Rational Versus Arational Models of Thought, in THE NATURE OF COGNITION 557, 573–74, 578
(Ro bert J. Sternberg ed., 1999) (citing to memory studies).
31. “[P]articular decision domains will evoke particular values, and great inconsistencies in choice
may result from fluctuating attention.” SIMON , supra note 2, at 18. For an early recognition of the
phenomenon in connection with one branch of lawmaking, see JOHN CHIPMAN GRAY, RESTRAINTS ON THE
ALIENATION OF PROPERTY § 7 (2d ed. 1895).
32. For an extended discussion and a great number of examples, see Hirsch, Inconsistency, supra note
16.
2003] COGNITIVE JURISPRUDENCE 607

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 applic able 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
trace to 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

33. Hirsch, Inconsistency, supra note 16, at 1125–35. It is tempting to posit at this juncture
something akin to an “inverse square law” in cognitive jurisprudence: The greater the “distance” between
two points along the legal landscape, the lesser the likelihood that a lawmaker will think to compare them
when crafting a rule at one of the two points. But as a science of human nature, cognitive psychology cannot
so easily be reduced to the austerity of equations.
34. Or to use Simon’s phraseology, they suffer “unanticipated consequences.” Simon, supra note 25,
at 103; Herbert A. Simon, Rationality in Political Behavior, 16 POL. P SYCHOL. 45, 46–47 (1995). Of course,
this is not the only circumstance that can occasion what is commonly meant by surprise, but it does
constitute one distinct variant of the phenomenon. See generally G.L.S. SHACKLE, DECISION ORDER AND
TIME IN HUMAN AFFAIRS (2d ed. 1969) (discussing surprise in the context of economic theory).
35. See BOBBY FISCHER, MY 60 M EMORABLE GAMES 28 (1969) (“This [p]awn sac[rifice] caught me
completely by surprise.”); id. at 114 (“Having overlooked [black’s] last move, I was somewhat shaken!”); id.
at 193 (“This [move] looked like a shot—but instead it’s a shock.”).
608 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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

36. A striking historical example of legal miscalculation was Great Britain’s “bloody code” of the
eighteenth century: the vast expansion of the list of capital offenses, on the erroneous assumption that
increasing the severity of punishment would control the incidence of crime. When members of Parliament
came to the realization that “extreme severity, instead of operating as prevention to crimes, rather tended to
inflame and promote them, by adding desperation to villainy,” they set about reforming the code. 1 LEON
RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750, at 343
(1948) (quoting Sir Archibald Macdonald). See also ADAM JAY HIRSCH, THE RISE OF THE PENITENTIARY :
PRISONS AND PUNISHMENTS IN EARLY AMERICA 40–43 (1992).
37. Frederick Schauer, Exceptions, 58 U. CHI. L. REV . 871, 872 (1991).
38. Cf. id. at 872–73, 875 (suggesting that exceptions are typically the product of “fortuitous
circumstances” of the inadequacy of language to express exceptions to rules within the singular wording of
the rules themselves). See also supra note 20 and accompanying text (noting legal actors’ exploitation of
imperfect rules, or “loopholes” in rules, that can prompt lawmakers to undertake to refine them).
39. 22 N.E. 188 (N.Y. 1889).
40. “If the parties [to a contract] are boundedly rational, they may be unable to anticipate every
eventuality,” irrespective of the transaction costs involved. Oliver Hart & John Moore, Incomplete
Contracts and Renegotiation, 56 ECONOMETRICA 755, 757 (1988). Of course, wills would not be expected
to differ from contracts in this respect.
2003] COGNITIVE JURISPRUDENCE 609

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 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

41. Riggs, 22 N.E. at 189. See also, e.g., In re Estate o f Kolacy, 753 A.2d 1257, 1261 (N.J. Super. Ct.
Ch. Div. 2000).
42. Commissioners are equally vulnerable to surprise. For an example in the Uniform Laws, see
infra note 102. The overarching problem was identified long ago by Aristotle:
[I]t is plainly impossible to pronounce with complete accuracy upon such a subject -matter as
human action. Whenever then the terms of the law are general, but the particular case is an
exception to the general law, it is right, where the legislator’s rule is inadequate or erroneous
in virtue of its generality, to rectify the defect.
ARISTOTLE, THE NICOMACHEAN ETHICS 179–80 (J.E.C. Welldon trans., Prometheus Books 1987)(c.
334–23 B.C.) (citation omitted).
43. See generally John F. Manning, Textualism and the Equity of the Statute, 101 COLUM L. REV. 1
(2001) (discussing the propriety of judicial legislation). Other jurisprudes have spilled drums of ink over
Riggs. See, e.g., RONALD DWORKIN, The Model of Rules I, in TAKING RIGHTS SERIOUSLY 14, 23–45
(1977).
44. See RESTATEMENT (SECOND) OF PROP.: DONATIVE TRANSFERS § 34.8 note (1983) (Statutory
Note to Section 34.8).
45. Compare a related observation by Judge Frank Easterbrook:
What happens when you turn a generalist [judge] loose in a complex world? An ignorant or
unwise judge will be unaware of his limits and is apt to do something foolish. A sophisticated
judge understands that he is not knowledgeable and so tries to limit the potential damage.
How is this done? By and large, it is done by constructing “five-part balancing tests.” Not
only judges but also the leaders of the bar find this approach congenial. The American Law
Institute’s Restatements teem with multi- factor approaches.
Frank H. Easterbrook, What’s So Special About Judges?, 61 U. COLO . L. REV . 773, 779–80 (1990).
Legislators have also chosen on occasion to adopt standards instead of rules, sometimes declaring their
intention of allowing gradual refinement of the law. For instances of intentional indefiniteness within the
610 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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, sta ndards 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

federal Bankruptcy Code, for example, see 11 U.S.C.A. § 1113(c)(3), § 361 & Historical and Revision
Notes, § 525 & Historical and Revision Notes (2000). For a famous example in the Uniform Laws, see
U.C.C. § 2-302 & cmt. (1987).
46. See, e.g., Carol M. Rose, Crystals and Mud in Property Law, 40 STAN . L. REV . 577, 590–93
(1988). Compare economic models of the optimal level of generality or specificity of law. See Kaplow,
supra note 5, at 585–86 (exploring the efficiency of expending resources to craft rules as a whole, as
compared to piecemeal, ex post refinement of a standard, and citing to earlier economic analyses). See
generally Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR .
L. REV. 23 (2000) (providing a behavioral analysis of the virtues of rules versus standards from the
perspective of legal actors and adjudicators, but not from the perspective of lawmakers).
47. See, e.g., DANIEL KAHNEMAN , ATTENTION AND EFFORT 178–202 (1973); HAROLD E. P ASHLER,
THE PSYCHOLOGY OFATTENTION 265–317 (1998); David Navon & Daniel Gopher, On the Economy of the
Human-Processing System, 86 PSYCHOL. REV . 214, 218–22 (1979); Christopher D. Wickens, Processing
Resources in Attention, in VARIETIES OF ATTENTION 63 (Raja Parasuraman & D. R. Davies eds., 1984).
2003] COGNITIVE JURISPRUDENCE 611

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 visa
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 between cases, and between 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.

48. Warren Thorngate, On Paying Attention, in RECENT TRENDS INTHEORETICAL PSYCHOLOGY 247,
249 (Wm J. Baker et al. eds., 1988).
49. Id. at 250.
50. The same conclusion derives from the closely allied field of informational economics: “The
economic approach . . . implies . . . greater investment in information when undertaking major than minor
decisions—the purchase of a house or entrance into marriage versus the purchase of a sofa or bread.”
BECKER , supra note 5, at 6–7.
51. To give just one example, the phenomenon has been observed within the field of
psycholinguistics: studies indicate that persons engaged in the task of reading employ comprehension
strategies that ration attention, expending greater effort on passages deemed important while skimming over
trivial passages. Christine J. Gordon & Carl Braun, Metacognitive Processes: Reading and Writing
Narrative Discourse, in 2 METACOGNITION, COGNITION, AND HUMAN PERFORMANCE 1, 3–6 (D.L. Forrest -
Pressley et al. eds., 1985) (citing and summarizing prior studies).
52. In a similar vein, abstract thinkers have ever been the butt of derision for misdirecting their
cognitive energies—beginning with Socrates, whom his contemporary Eupolis mocked as a “poverty-
stricken windbag . . . who contemplates everything in the world but does not know where his next meal is
coming from.” I. F. STONE , THE TRIAL OF SOCRATES 135 (1988).
53. Professor Simon associated the phenomenon with legislative behavior and with government
decisionmaking in general. SIMON, supra note 2, at 79–83; Herbert A. Simon, Rationality as Process and as
Product of Thought, in DECISION MAKING 58, 72–74 (David E. Bell et al. eds., 1988).
54. Another factor, obviously, is variations in the raw talent of different lawmakers. In what state
would we find commercial law today, had Karl Llewellyn and Grant Gilmore decided to become
constit utional lawyers?
612 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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 commercia l 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

55. See, e.g., Steffen Huck & Jorg Oechssler, Informational Cascades in the Laboratory: Do They
Occur for the Right Reasons?, 21 J. ECON. PSYCHOL. 661 (2000); Amos Tversky & Eldar Shafir, Choice
Under Conflict: The Dynamics of Deferred Decision, 3 PSYCHOL. SC I. 358 (1992).
56. See, e.g., Michael E. Levine & Charles R. Plott, Agenda Influence and Its Implications, 63 VA . L.
REV . 561 (1977).
57. See generally FARBER & FRICKEY, supra note 24, at 12–33.
58. “The . . . notable characteristics of state exemption laws are their extreme variety and, in many
instances, their extreme obsolescence. . . . [T]hey are not typically subject to periodic legislative revision,”
due to “neglect.” Vern Countryman, For a New Exemption Policy in Bankruptcy, 14 RUTGERS L. REV. 678,
681–84 (1960). See also Richard E. Mendales, Rethinking Exemptions in Bankruptcy, 40 B.C. L. REV . 851,
855–56 (1999). Likewise, the law of donative transfers suffers notoriously from “[g]eneral legislative
disinterest.” Edward C. Halbach, Jr., Stare Decisis and Rules of Construction in Wills and Trusts, 52 CAL .
L. REV . 921, 921 (1964). A recent court has bemoaned the failure of Wyoming’s legislature to update the
state’s obscure intestacy statute in over 130 years. See In re Estate of Fosler, 13 P.3d 686, 689–90 (Wyo.
2000). And in Massachusetts, a court has had to wrestle of late with a 165 year old intestacy statute!
Woodward v. Comm’r of Soc. Sec., 760 N.E. 2d 257, 264 (Mass. 2002).
59. Adherence to precedent also effectively results when an appeal is denied, and the two
mechanisms can be conceived as functionally similar. See generally H.W. P ERRY, JR., DECIDING TODECIDE
(1991). There are other possible jurisprudential applications of the abstention heuristic. Another, far larger
(but less common) one is the legal reception. See generally ALAN WATSON, LEGAL TRANSPLANTS (1974).
60. For recent discussions, see State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); and Planned Parenthood
of Southeastern Pa. v. Casey, 505 U.S. 833, 854–55 (1992). For recent law and economics analyses of stare
decisis, citing in turn to earlier ones, see generally Thomas R. Lee, Stare Decisis in Economic Perspective:
An Economic Analysis of the Supreme Court’s Doctrine of Precedent, 78 N.C. L. REV . 643 (2000); and Erin
2003] COGNITIVE JURISPRUDENCE 613

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

O’Hara, Social Constraint or Implicit Collusion? Toward a Game Theoretic Analysis of Stare Decisis, 24
SETON HALL L. REV . 736 (1993).
61. This much, at least, has been recognized for some time. Justice Holmes described formalism as
the “uninstructive and indolent use of phrases to save the trouble of thinking closely.” Oliver Wendell
Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 461 (1899). Although he appreciated
the legal certainty that formalism provides, Holmes insisted that “repose is not the destiny of man.” Holmes,
supra note 22, at 465–68 (quotation at 466); Oliver Wendell Holmes, Jr., Address at the Banquet of
Midellesex Bar Association (Dec. 3, 1902), in 3 THE COLLECTED WORKS OF JUSTICE HOLMES 535, 536
(Sheldon M. Novick ed., 1995). In a less pejorative vein, Judge Cardozo pointed out that “the labor of
judges would be increased almost to the breaking point if every past decision could be reopened in every
case.” CARDOZO, supra note 10, at 149. For more recent observations, see, for example, BAUM, supra note
16, at 72; and Frederick Schauer, Precedent, 39 STAN . L. REV. 571, 599 (1987). On the possibility that
precedent constitutes a form of herd behavior, see Eric Talley, Precedential Cascades: An Appraisal, 73 S.
CAL . L. REV . 87 (1999).
62. Stevens v. Casdorph, 508 S.E.2d 610, 615 (W. Va. 1998) (Workman, J., dissenting).
63. For evidence that such considerations can affect a higher court’s decision to grant an appeal, see
PERRY, supra note 59, at 253–65. For the suggestion that decision on the basis of procedural technicality,
avoiding the substantive merits of a case, can likewise operate as a mechanism for agenda control, enabling
the court to dispose of “undesirable” cases “quickly and cheaply,” and thereby to devote “more energy to
cases in which they are interested,” see Jonathan R. Macey, Judicial Preferences, Public Choice, and the
Rules of Procedure, 23 J. LEGAL STUD. 627, 632–41, 645–46 (1994) (quotations at 646).
64. See, e.g., Halbach, supra note 58, at 921. The titles tell the story. See generally W. BARTON
LEACH , P ROPERTY LAW INDICTED! OR THE PEOPLE VS. BLACKSTONE, KENT , GRAY , AND STARE DECISIS
(ACCESSORIES: PONTIUS PILATE AND THE LAWS OF THE MEDES AND THE PERSIANS) (1967); William F.
Fratcher, Exorcise the Curse of Reversionary Possibilities, 28 MO . B. J. 34 (1972); Wythe Holt, The Testator
Who Gave Away Less Than All He or She Had: Perversions in the Law of Future Interests, 32 ALA . L. REV .
69 (1980); Taylor Mattis & David Schellenberg, The Doctrine of Worthier Title in Illinois: Burying the
Dead, 23 J. MAR. L. REV. 81 (1989); Ronald Maudsley, Escaping the Tyranny of Common Law Estates, 42
MO . L . REV. 355 (1977); Nicholas L. White, Bringing Tennessee into the Twentieth Century: Re
614 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

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

Possibilities of Reverter, Powers of Termination and Executory Interests When Used as Land Control
Devices, 15 MEM. ST . U. L. REV . 555 (1985); Robert R. Wright, Medieval Law in the Age of Space: Some
“Rules of Property” in Arkansas, 22 ARK. L. REV. 248 (1968); Charles M. Agee, Jr., Note, Has Tennessee
Abolished Its Ancient Class Gift Doctrine or Only Modified It? , 7 MEM. ST . U. L. REV . 129 (1976).
65. ASHBEL G. GULLIVER, CASES AND MATERIALS ON THE LAW OF FUTURE INTERESTS 11 (1959).
66. Id. at 12.
67. See, e.g., PAYNE ET AL ., supra note 23, at 72–75 (suggesting that reflection is positively
correlated with decision quality). For an early observation, see JEREMY BENTHAM, The Principles of Penal
Law, in 1 WORKS OF JEREMY BENTHAM 365, 402 (John Bowring ed., 1842) (ms. 1775–1802). According to
Bentham, “[i]n matters of importance, everyone calculates. Each individual calculates with more or less
correctness, according to . . . the power of the motives which actuate him.” Id. But see Timothy D. Wilson
& Jonathan W. Schooler, Thinking Too Much: Introspection Can Reduce the Quality of Preferences and
Decisions, 60 J. PERSONALITY & SOC. P SYCHOL. 181 (1991) (finding that when one’s spontaneous decision
happens to be superior, reflection can prompt one to switch to an inferior decision because one will often
perceive additional advantages and disadvantages in alternative choices, hence making the alternatives more
difficult to distinguish); Timothy D. Wilson, Douglas J. Lisle, Jonathan W. Schooler, Sara D. Hodges,
Kristen J. Klaaren & Suzanne J. LaFleur, Introspecting About Reasons Can Reduce Post-Choice
Satisfaction, 19 PERSONALITY & SOC. P SYCHOL. BULL. 331 (1993) (related finding).
68. FRANK M. COFFIN, ON APPEAL 175–76 (1994); Robel, supra note 23, at 9. For two other
appellate judges’ acknowledgment of case sorting (but without this nomenclature), see Markey, supra note
23, at 380–81; Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62
U. CHI. L. REV. 1371, 1374 (1995) (“Time does not allow for the same careful, thoughtful analysis and
writing to be poured into all cases . . . .”). See also William M. Richman & William L. Reynolds, Appellate
Justice, Bureaucracy, and Scholarship, 21 U. M ICH. J.L. REFORM 623, 629, 642–43 (1988).
2003] COGNITIVE JURISPRUDENCE 615

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

Because “sustained writing time is a rare and precious commodity,” 70

Coffin recognized that he had to guard it jealously.
When inclined to cut intellectual corners, a judge can do so in another
way: to wit, by delegating some of the work to law clerks or staff attorneys.
Once again, participants report, a certain degree of delegation of judges’
workloads is inevitable.71 And as a theory of cognitive jurisprudence would
predict, observers also report that judges pass along greater opinion-writing
responsibilities in some cases than in others.72 Because inexperienced clerks
may wind up exercising significant influence on cast-off cases, the result once
again is to degrade the quality of lawmaking in the regions they cover, relative
to those that the more experienced judges reserve for themselves.73
Whether as a result of greater delegation or simple indifference, judges’
opinions in moribund areas of the law have drawn criticism for their
propensity for sloppiness. In a deliciously irreverent essay, Professor John
Langbein sliced to bits the Supreme Court’s analysis in an obscure 1989
ERISA opinion. 74 He concludes insightfully:
[The opinion] is such a crude piece of work that one may well question
whether it had the full attention of the Court. I do not believe that either
Justice O’Connor or her colleagues who joined this unanimous opinion

69. COFFIN, supra note 68, at 175–76. See also Wald, supra note 68, at 1374 (“But what is the
alternative?”).
70. FRANK M. COFFIN, T HE WAYS OF A JUDGE 163 (1980).
71. “[C]aseload pressure . . . leaves no alternative, in most instances, to . . . intensive utilization of law
clerks.” Id. at 69–70. See also , Robel, supra note 23, at 10. According to one estimate, “well over half of
the text the [Supreme] Court now produces was generated by law clerks.” Sean Donahue, Behind the Pillars
of Justice: Remarks on Law Clerks, 3 LONG TERM VIEW , Spring 1995, at 77, 81.
72. Markey, supra note 23, at 380–81; Richman & Reynolds, supra note 68, at 629, 642–43; Robel,
supra note 23, at 47.
73. For suggestions of this effect, see POSNER, supra note 10, at 149–51, 157; Erwin N. Griswold,
The Federal Courts Today and Tomorrow: A Summary and Survey, 38 S.C. L. REV. 393, 398 (1987); and
Markey, supra note 23, at 382. But see W ILLIAM H. REHNQUIST , THE SUPREME COURT 262–63 (Pat Hass
ed., Alfred Knopf 2001) (1989) (insisting that clerks always operate under the judge’s close supervision).
74. John H. Langbein, The Supreme Court Flunks Trusts, 1990 SUP. CT . REV. 207, 217–28.
616 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

would have uttered such doctrinal hash if they had been seriously
engaged in the enterprise.
Unfortunately, [this] is not the first instance in which the Supreme
Court has discharged ERISA business shoddily. I understand why a
Court wrestling with the grandest issues of public law may feel that its
mission is distant from ERISA. . . . If the Court is bored with the detail
of supervising complex bodies of statutory law, thought should be given
to having the job done by a court that would take it seriously.75

Others have made similar observations about judicial output in other

fields, such as taxation and securities regulation, also seemingly starved for
attention. 76
Along with agenda-limiting, legislators similarly relieve pressure on
their attentional resources by delegating drafting responsibilities ex ante to
their professional staffs and ex post to administrative agencies. Here,
however, delegation doubtless yields happier results, for staffs and agencies
bring to lawmaking a substantive and technical expertise that most
representatives lack.77 The striking difference in quality between statutory
law in areas like taxation and judicial opinions construing those statutes
cannot but trace to this disparity of specialization, mitigating in the first
instance, and not in the second, the effects of task interference.
Apart from differences in quality, lawmaking might be expected to
display differences in complexity by virtue of uneven distributions of
attention. Rules within remote fields, a theory of cognitive jurisprudence

75. Id. at 228–29 (citations omitted).

76. Professor Frederick Schauer suggests that the apparent indifference of the Justices of the Supreme
Court toward an array of AFDC, ERISA, and tax cases decided in one term resulted in their being “decided
early in the Term, by 7-2, 8-1, or 9-0 opinions, and with comparatively brief opinions . . . given the
enormous complexity of the issues” involved. Frederick Schauer, Statutory Construction and the
Coordination Function of Plain Meaning, 1990 SUP. CT . REV. 231, 247–48. See also BERNARD SCHWARTZ,
DECISION : HOW THE SUPREME COURT DECIDES CASES 89 (1996) (remarking Earl Warren’s disinterest in
tax cases); Bainbridge & Gulati, supra note 16, at 138–39 (securities cases); Erwin N. Griswold, Forward to
BERNARD WOLFMAN, JONATHAN L.F. SILVER & MARJORIE A. SILVER, DISSENT WITHOUT OPINION : T HE
BEHAVIOR OF JUSTICE W ILLIAM O. DOUGLAS IN FEDERAL TAX CASES xii (1975) (“One conclusion to draw
from this study is that Justice Douglas, like many others, finds no intellectual interest or challenge in tax
cases—or, to put it more directly, he dislikes tax cases and does not regard them as worthy of his careful
attention.”); Erik M. Jensen, Of Crud and Dogs: An Updated Collection of Quotations in Support of the
Proposition that the Supreme Court Does Not Devote the Greatest Care and Attention to Our Exciting Area
of the Law; or Something the Tax Notes Editors Might Use to Fill Up a Little Space in that Odd Week when
Calvin Johnson Has Nothing to Print, 58 TAX NOTES 1257, 1257 (1993); Sale, supra note 16, at 909–10
(securities cases).
77. HARRISON W. FOX, JR. & SUSAN W. HAMMOND, CONGRESSIONAL STAFFS 144, 151–53 (1977);
MALCOLM E. JEWELL & SAMUEL C. PATTERSON, T HE LEGISLATIVEPROCESS IN THEUNITED STATES 156–
60 (4th ed. 1986); TOMMY NEAL, LAWMAKING AND THELEGISLATIVE PROCESS 25–26 (1996); KENNETH F.
WARREN, ADMINISTRATIVE LAW IN THE POLITICAL SYSTEM 44, 50–62 (3d ed. 1997).
2003] COGNITIVE JURISPRUDENCE 617

might predict, should evidence greater simplicity of design, in light of the

relative paucity of attention devoted to those fields. Yet no such pattern is
broadly apparent. Legal excrescences appear more or less equally prevalent
in all regions of the legal landscape, including such attention-deprived fields
as future interests law, with its “numerous highly refined and technical
distinctions.”78 Apparently, apathy fails to translate into austerity within the
process of lawmaking. In some instances, apathy may even aggravate
complexity over time, in a process having more to do with the legal nervous
system than the legal mind. 79
Switching to a microscopic lens, we may discover more subtle
manifestations of task interference within discrete units of lawmaking output,
including legislation. When courts or other lawmaking bodies have no choice
but to deal with multiple issues simultaneously, a theory of cognitive
jurisprudence again anticipates that they will apply themselves unevenly, the
lion’s share of attention going to primary tasks. Because any given case—or
statute—may or may not implicate multiple issues, task interference at this
level affects the production of rules more or less at random. This random

78. In re Dulles’ Estate, 67 A. 49, 50 (Pa. 1907). Within future interests law, the Rule Against
Perpetuities—whose dissection required of Professor John Chipman Gray no fewer than 833 mind-numbing
pages—is doubtless the mother of all legal excrescences, despite its distance from law’s center of gravity.
GRAY , supra note 15. For observations (both modern and historical) of the prevalence of legal excrescences
within the legal landscape, see FRED RODELL, WOE UNTO YOU, LAWYERS ! 41 (1939); and Hirsch,
Inconsistency, supra note 16, at 1146–47 nn.270, 273.
79. In a recent article, Professor Andrew Kull draws the opposite conclusion. He argues that apathy
on the part of judges tends systematically toward legal simplification:
[T]he elaboration and maintenance of legal doctrine requires cultivation. Issues that form a
significant and rewarding part of professional life will justify finer distinctions and more
elaborate legal structures. . . . [T]he common law (or equity) itself needs nourishment, the
way a tree needs to take moisture from the ground. When judges . . . begin to spend most of
their time working on other problems, an old tree that grew to enormous size when moisture
was plentiful will start t o die back and to lose some of its branches.
Andrew Kull, The Simplification of Private Law, 51 J. LEGAL EDUC. 284, 291 (2001). Yet, to continue
Professor Kull’s metaphor, we know that neglect of vegetation can cause it to wither or, just as easily, to
become overgrown. So long as lawmakers lavish attention on a rule, we would expect its degree of
complexity (or lushness) to correspond more closely with perceptions of public policy. When lawmakers
become inattentive, however, that correspondence may cease in either direction. The “nervous” response of
over-refinement (or over-cultivation) of law follows from lawmakers’ pretensions and yearnings to impress
their audience. Thus, Blackstone (in a delightfully Whiggish set piece) accused the Normans of having
“frittered [Anglo-Saxon law] into logical distinctions . . . and . . . metaphysical subtilties, with a skill most
amazingly artificial . . . [, for] no other purpose . . . than to show the vast powers of the human intellect,
however vainly or preposterously employed.” 4 BLACKSTONE, supra note 1, at *417. As a more recent
observer echoes, “simplicity embarrasses . . . lawyers and judges.” LoPucki, supra note 12, at 1500. See
also Robert F. Nagel, The Formulaic Constitution, 84 MICH. L. REV. 165, 182 (1985) (suggesting that in
complexifying legal rules, courts are playing to an academic audience); Peter H. Schuck, Legal Complexity:
Some Causes, Consequences, and Cures, 42 DUKE L.J. 1, 7, 31–38 (1992) (positing that legal complexity is
a “craft value”). Of course, special interest lobbying can cause a legal excrescence to arise in any corner of
the legal landscape. See supra note 57 and accompanying text.
618 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

element contributes once again to the unpredictable quality, or contingency, of

rules.80
At the same time, task interference within judicial opinions might also
manifest itself in consistent ways. Not infrequently, a single case implicates a
substantive issue along with an issue of civil procedure. In the resulting
opinion, by hypothesis, the quota of attention devoted to civil procedure—
famously the “handmaid” to substance, meriting “due subordination”—could
tend systematically to be the smaller of the two.81
Equivalent effects should appear within complex statutes and codes,
whose peripheral provisions may be more poorly reasoned than those located
at the center, even in the hands of a specialist. Indeed, peripheral provisions
may be unreasoned: One of the key (cognitive) differences between a
common law rule and a statutory rule is that the court establishing a rule in a
case of first impression is supposed to give a reason for it, whereas a
legislative body need not. Arbitrary choice simplifies decisionmaking even
more than cursory choice—and legislators are free to indulge in this
streamlining mechanism at will, thus potentially amplifying imbalances of
effort within a given complex statute.82
The Uniform Probate Code affords an example of this phenomenon. In
1990, the Commissioners set about revising from beginning to end the Code’s
substantive articles. The self-identified “grand themes” of this revision
included the perceived need to reduce reliance on formalities in inheritance
law, to react to the growing frequency of probate -avoidance, and to take into
account the rising incidence of so-called blended families (resulting from
multiple-marriages).83 But the Commissioners also took the occasion to touch
upon some not-so-grand themes. One provision, included for the first time,
dealt with the problem of honorary trusts for noncharitable purposes, covering

80. See supra note 29 and accompanying text.

81. Charles E. Clark, The Handmaid of Justice, 23 WASH. U. L.Q. 297, 297 (1938). Of course, in an
earlier age the opposite was true, an irony not lost on legal historians: “So great is the ascendancy of the Law
of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually
secreted in the interstices of procedure.” HENRY MAINE, D ISSERTATIONS ONEARLY LAW AND CUSTOM 389
(1883). Because criminal procedure has become so highly constitutionalized, it occupies a more prominent
status than its civil counterpart. But the law of evidence may display a similar tendency toward
marginalization relative to substance.
82. But compare the sarcasm of Benjamin Franklin, proto-Realist: “So convenient a thing it is to be a
reasonable Creature, since it enables one to find or make a Reason for every thing one has a mind to do.”
BENJAMIN FRANKLIN, T HE AUTOBIOGRAPHY OF BENJAMIN FRANKLIN 88 (Leonard W. Labaree et al. eds.,
Yale University Press 1964) (1791).
83. See UNIF . PROBATE CODE art. II, prefatory note (amended 2002), 8 U.L.A. 75 (1998); John H.
Langbein & Lawrence W. Waggoner, Reforming the Law of Gratuitous Transfers: The New Uniform
Probate Code, 55 ALA. L. REV. 871, 873–75 (1992).
2003] COGNITIVE JURISPRUDENCE 619

bequests for the care of pets, graves, and the like. It was, as one of the
Commissions admitted, “a tag end . . . a manifest frill. . . . The main concerns
of the revised [Uniform Probate Code] lie elsewhere.”84 How, then, did the
Commissioners go about drafting this minor provision? By copying out of a
draft submitted to them by a layperson!85 The result was a rule shot-through
with ambiguities and setting a limit on the duration of honorary trusts that was
arrived at, as the reporter himself confessed, “for no particular reason.”86
Commissioners, alas, are just as vulnerable to task interference as any other
lawmakers.
Task interference within a code can manifest itself dynamically as
neglect, on top of shoddy construction. As lawmakers struggle to modernize
a code (which, because it takes so long to complete, can grow obsolete even
before it is adopted87), they will likely turn their attention first to its central
provisions. Outlying provisions within a code—like outlying quadrants of
law within a universe of codes—may once more be left to gather dust. What
else could explain the survival within the estate -administration provisions of
many local probate codes of those hoary distinctions between real and
personal property that have long since disappeared from the (more prominent)
substantive provisions of those very same codes?88 Commissioners, too, have
updated the Uniform Laws unmethodically. 89
Once again, lawmakers are not entirely oblivious to these phenomena,
and they have offered at least one response to the problem of task interference

84. Letter from John H. Langbein to Adam J. Hirsch (Sept. 20, 1999) (on file with author).
85. See Adam J. Hirsch, Trusts for Purposes: Policy, Ambiguity, and Anomaly in the Uniform Laws,
26 FLA. ST . U. L. REV . 913, 952 (1999).
86. National Conference of Commissioners on Uniform State Laws, Proceedings in Committee of the
Whole, Uniform Probate Code Article II (July 15, 1990), at 133–34 (unpublished document, on file with
author) (statement of Professor Lawrence Waggoner). The sundry ambiguities in the provision are unpacked
in detail in Hirsch, supra note 85, at 930–50.
87. See, e.g., Grant Gilmore, The Good Faith Purchase Idea and the Uniform Commercial Code:
Confessions of a Repentant Draftsman, 15 GA . L. REV. 605, 627 (1981) (discussing revisions to the Uniform
Commercial Code).
88. See W ILLIAM M. MC GOVERN, JR. & SHELDON F. KURTZ, WILLS, T RUSTS AND ESTATES § 12.6,
at 505 (2d ed. 2001). E.g., FLA . STAT . ch. 733.612(21) (2001). On the antiquated theoretical roots of the
distinction, see THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS 668 (2d ed. 1953).
89. A striking illustration of peripheral obsolescence within the Uniform Laws is the provision
dealing with lacunae in the Uniform Commercial Code, also replicated within the Uniform Probate Code and
other Uniform Acts. The provision’s vague language—stating that gaps are to be filled “by the principles of
law and equity”—has been slavishly copied without apparent reconsideration or elaboration by the
Commissioners for over a century, originating in their first widely adopted product, the Uniform Negotiable
Instruments Law of . . . 1896! Compare U.C.C. § 1-103 & cmt. (1987), and UNIF . PROB. CODE § 1-103
(amended 2002), 8 U.L.A. 27 (1998), with UNIF . NEGOTIABLE INSTRUMENTS LAW § 196 (1896). For a
further discussion, noting several issues of construction raised by the provision, see Adam J. Hirsch, supra
note 85, at 916 n.18.
620 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

within a given work product. Consider the distinction between precedent and
dictum, a dichotomy so deeply ingrained that it is rarely discussed (although,
historically, it did not take hold within the legal mind until sometime around
the seventeenth century90). One jurisprudential explanation for the
nonbinding effect of dicta is political: Unlike legislators, judges are only
empowered to decide the issues before them. 91 But another explanation,
offered by Justice John Marshall as early as 1821, is cognitive. He reflected
in Cohens v. Virginia, “The reason for this maxim is obvious. The question
actually before the Court is investigated with care, and considered in its full
extent. Other principles . . . are considered in their relation to the case
decided, but their possible bearing on all other cases is seldom completely
investigated.”92
There it was. Courts focus their attention on the central matter of the
dispute at-hand and pay less mind to issues potentially raised by other facts.
Justice Marshall understood intuitively that dicta should not bind, because
they provide less reliable analysis. Both his descriptive and normative
conclusions fit perfectly into a theory of cognitive jurisprudence.

IV. A TALE OF TWO OPINIONS

The theoretical propositions offered in the last many pages remain

(maddeningly!) difficult if not impossible to demonstrate with any truly
satisfying degree of rigor. The problem, of course, is that countless factors
affect the process of lawmaking in any given instance, and we have no way to
move the process into a laboratory.
Nevertheless, we next elaborate a sequence of cases that gets us
marginally closer to that ideal. Both cases were decided by the same court—
the Supreme Court of Florida—in unanimous opinions penned by the same
judge—the Honorable Benjamin Overton, now retired—within a thirteen year
span, and both dealt with the same doctrine of inheritance law—the
pretermitted spouse rule. Not a true controlled experiment, to be sure, but

90. See J.H. BAKER, AN INTRODUCTION TOENGLISH LEGAL HISTORY 172–73 (2d ed. 1979); RUPERT
CROSS & J.W. HARRIS , PRECEDENT IN ENGLISH LAW 41 (4th ed. 1991); Harold J. Berman & Charles J.
Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 EMORY L.J. 437, 447–
48 (1996).
91. See Michael C. Dorf, Dicta and Article III, 142 U. PA . L. REV. 1997, 2000–01 (1994); Kent
Greenawalt, Reflections on Holding and Dictum, 39 J. LEGAL EDUC. 431, 434 (1989).
92. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821) (emphasis added). See also Wittmer
v. Peters, 87 F.3d 916, 919 (7th Cir. 1996) (Posner, C.J.); BAKER, supra note 90, at 173 (quoting sixteenth-
century commentary); KARL N. LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA 15–16 (Paul Gewirtz
ed., 1989) (1928–29).
2003] COGNITIVE JURISPRUDENCE 621

perhaps the best we can hope for—and with due apologies to the justices
under observation for turning them into guinea pigs.
The pretermitted spouse rule, now codified into most states’ probate
codes, deals once again with the problem of how to interpret a will executed
prior to a profound change in circumstances. Ordinarily, if a testator fails to
provide for a surviving spouse, the survivor can claim a forced share of the
decedent’s estate, known as the elective share in common law jurisdic tions.
But if the survivor is omitted from a will the testator executed prior to
marriage, and which the testator forbore to revise thereafter, the survivor can
instead claim an intestate share of the decedent’s estate—invariably a sum
larger than the forced share.93
The rationale for the pretermitted spouse rule is clear: It gives effect to
the probable intent of the testator, one of the core policies of inheritance law.
Although a premarital will may purport to leave out the surviving spouse,
lawmakers surmise that the decedent’s failure to update her will after the
marriage, in the majority of cases, constitutes an oversight. In all likelihood,
the premarital will fails to reflect the testator’s actual postmarital intent. By
overriding an obsolete estate plan, the pretermitted spouse doctrine operates to
forestall inadvertent disinheritance of a surviving spouse.94
That said, it has remained for lawmakers to iron out the details of the
doctrine—whence our sequence of cases. In the first case, Estate of Ganier v.
Estate of Ganier,95 decided in 1982, the court was presented with a twist on
the usual fact pattern. Here, the testator (T) and the person whom she would
eventually marry (A) met in 1973 and became “close friends.”96 In 1977, T
executed a will under which she left A a modest bequest. The relationship
deepened, and eighteen months later, in 1978, the parties wed. T died in
1979, never having amended her premarital will. 97
A could now elect against the will and claim a forced share (3/10 of the
estate under state law), an improvement over his share under the executed
estate plan. But could he claim instead an intestate share (here, 1/2 of the
estate) based upon the pretermitted spouse rule? This rule had already been
codified within the state. The text of the statute specified that a surviving
spouse was entitled to an intestate share under a premarital will “unless . . .

93. MC GOVERN & KURTZ, supra note 88, § 3.6, at 135–36.

94. See, e.g., In re Estate of Beaman, 583 P.2d 270, 274 (Ariz. Ct. App. 1978); UNIF . P ROBATE CODE
§ 2-301 cmt. (amended 2002), 8 U.L.A. 133 (1998); MC GOVERN & KURTZ, supra note 89, § 3.6, at 135.
95. 418 So.2d 256 (Fla. 1982).
96. Id. at 257.
97. See id.
622 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

[t]he spouse is provided for in the will,” as he was in the instant case.98 On
simple reading, then, this was an easy case.
Justice Overton did not resolve the issue easily, however. Having drawn
attention to the statutory text, he proceeded to explore the purpose underlying
the pretermitted spouse doctrine. The aim of that doctrine, Overton reported,
was “to prevent the inadvertent disinheritance of a spouse whom the testator
had married after executing a will.”99 Yet what exactly did this policy
encompass? On the one hand, a will might make no provision for an as yet
unmet spouse, or it might fail to treat a premarital benefic iary as a spouse.
Under this second scenario, deference to the language of the will would again
thwart intent: “Marriage effects a profound change in a person’s relationships
and responsibilities,” and “[s]ubstantially different considerations underlie a
person’s bequest to a friend or acquaintance and that person’s testamentary
provision for the well-being of a spouse.”100 In light of this fact, Justice
Overton opined for a unanimous court, “We hold that a spouse has not been
‘provided for,’ within the meaning of [the statute], unless the testator . . .
made such provision in contemplation of marriage . . . . Eliminating [that]
requirement . . . defeats the reason for the rule.”101
Justice Overton’s activeness of mind and preparedness to add a judicial
gloss upon the statutory text is noteworthy. And the result is also eminently
sensible, so much so that the rule in Ganier was grafted into the Uniform
Probate Code when the Commissioners got around to revising it in 1990. 102
The Supreme Court of Florida was spa red further encounters with the
pretermitted spouse doctrine for the next twelve years. Then came Via v.
Putnam103 in 1995, raising a new and provocative set of facts.
In Via, the testator (T) and his first wife (A) executed mutual wills in
1985, under which each bequeathed his entire estate to the other, with the

98. Id. at 257 (quoting FLA. STAT . ch. 732.301(2) (1979)).

99. Id. at 258.
100. Id. at 260.
101. Id. at 260–61.
102. UNIF. PROBATE CODE § 2-301 & cmt. (amended 2002), 8 U.L.A. 133–34 (1998). The
Commissioners’ comment accompanying the revision seems a trifle oblique: The language used in the
original version of this section “impli[ed] . . . that the section was inapplicable if the person the decedent later
married was a devisee in his or her premarital will. It was clear, however, from the underlying purpose of
the section that this was not intended.” Id. § 2-301 cmt. What is actually clear, however, is that the drafters
had failed to anticipate this scenario, and hence had failed to provide for it in the original version of the
section—just as legislators in New York had failed to anticipate the scenario of the slayer-beneficiary. See
supra notes 39–42 and accompanying text. Commissioners, no less than legislators, engage in selective
search when they craft rules, and so they may experience surprise and need to correct their products later
on—even if they would prefer to downplay their fallibility.
103. 656 So.2d 460 (Fla. 1995).
2003] COGNITIVE JURISPRUDENCE 623

survivor’s estate going to their children. T and A simultaneously entered into

a contract, whereby each promised not to amend his will. Under the law of
will contracts, that agreement became binding once one party died in
compliance. In this case, A died first, without changing her will. T thereby
inherited A’s entire estate. T subsequently remarried and ultimately died in
compliance, in or about 1993, having executed no new will after his first
wife’s death nor after his second marriage.
T’s second spouse and widow (B) sought in the alternative an elective
share, despite the will contract, or a larger intestate share as a pretermitted
spouse, despite the will contract.
Once again, the court’s ruling was unanimous, and once again Justice
Overton spoke for the court. But here the court had two issues of law to
resolve, since the effectiveness of a will contract against the elective share—
that is to say, the ability of one spouse to contract around the forced share in
an agreement with parties other than the other spouse—is unclear as a matter
of general law and had not previously come before a court within the state.
Overton addressed this issue first and at some length, assaying the competing
policies of contract rights and spousal protection. Ultimately, he ruled that the
elective share should supersede a will contract.104
Then, toward the end of the opinion, Justice Overton turned his attention
to the pretermitted spouse rule. The will at issue here was an unamended
premarital will, albeit a contractual one, and the pretermitted spouse statute
made no textual exception for contractual wills. Overton ruled that the statute
controlled the case:
[Florida’s] statute sets forth three specific circumstances when a
pretermitted spouse would not be entitled to a share of the decedent’s
estate . . . . To hold as suggested by the children [viz., that the
pretermitted spouse rule not apply] would essentially amend the statutory
exceptions . . . and add a fourth exception. The legislature enacted these
exceptions based on the public policy of protecting the surviving
spouse . . . . The legislature has clearly taken into account when this
provision should apply and when it should not apply. . . . We conclude
that we have no authority to judicially modify the public policy
protecting a surviving spouse’s interest in the deceased spouse’s
estate . . . . 105

Held, B could claim a full intestate share of T’s estate, according to the
letter of the pretermitted spouse statute.

104. Id. at 462–65. See generally MC GOVERN & KURTZ, supra note 88, § 4.9, at 215–16.
105. Via, 656 So.2d at 466.
624 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

Now, as a theoretical matter, this decision cannot possibly be sound.

Justice Overton identified the purpose of the pretermitted spouse rule as the
“protecti[on of] the surviving spouse.”106 That is true only at the broadest
level of generality. More specifically, as Overton himself had indicated
thirteen years earlier in Ganier, the policy underlying the rule is to protect the
surviving spouse from inadvertent disinheritance.107 Under the facts of Via,
T’s failure to update his will was not inadvertent; on the contrary, T was
contractually bound not to do so, so his intent was irrelevant! Paradoxically,
if T had breached the contract and left B an inheritance, intending to benefit
her, she would have wound up with less! For then a postmarital will would
exist, the pretermitted spouse rule would not apply, the bequest would be
ineffective as a breach of the will contract, and B would have had to settle for
an elective share.
Under this ruling, then, T’s decision to abide by the binding contract in
effect rendered it nonbinding, whereas a breach of contract would have
rendered it binding. Only a Lewis Carroll could applaud such logic. Sadly,
and strikingly, Justice Overton’s presence of mind in Ganier had deteriorated
into an absence of mind in Via.
Related and equally striking was the second opinion’s more superficial
approach to statutory construction. In Ganier, Justice Overton searched
beneath the text for the policies underlying the statutory language and
discovered them buried in the subtext. In Via, he skimmed the surface,
ending his abbreviated search with the “three specific . . . exceptions”108 set
out in the very same statutory text.
So, what was going on here? Of course, one cannot dismiss the
possibility that either the court’s or Justice Overton’s own judicial philosophy
had evolved (if that is the right word) over the space of thirteen years. If so,
that was not an evolution Justice Overton chose to remark in Via, which never
once refers to Ganier. A cynic —or a Realist—might also point out that the
results of the two cases coincide suspiciously. In each instance, the surviving
spouse carried the day.
Cognitive jurisprudence suggests at least the plausibility of another
interpretation. In Ganier, Justice Overton’s attention was focused on the task
of elaborating the pretermitted spouse rule. No other issue requiring his
attention was presented by the facts of the case. In Via, on the other hand, his
attention was divided between two tasks, each demanding separate effort:

106. Id.
107. See supra note 99 and accompanying text.
108. Via, 656 So.2d at 466.
2003] COGNITIVE JURISPRUDENCE 625

elaboration of the elective share rule and of the pretermitted spouse rule. In
Via, analysis of the first issue took up more pages and appears to have
consumed more intellectual energy. By hypothesis, the first issue distracted
his attention from the second one; the second portion of the opinion in Via
reads more like an afterthought. There is no evidence that Justice Overton
even consulted Ganier when he drafted Via109—which in-and-of-itself might
have triggered in his mind greater reflection. And his formalistic method of
analysis concerning the second issue —seeking no further than a plain
meaning—served to spare him from further effort.110 Textualism is the
cognitive analogue of precedent when statutory construction stands at issue.
Can we point to the indications of task interference here as conclusive?
Well, perhaps not.111 But this curious sequence of cases is at least suggestive
that task interference within opinions can occur. And if that helps to explain
the court’s behavior in Via—if, in fact, the court would have been inclined to
pursue more thoughtfully its analysis of the pretermitted spouse rule, as it had
in Ganier, but for the need to pursue other issues simultaneously 112—then we
can readily see how contingent that inclination is. For the existence of the
elective-share diversion in Via was pure happenstance. That part of the case

109. As already remarked, Ganier is never once cited in Via.

110. For a recognition of the intellectual frugality of plain-meaning analysis, see Schauer, supra note
76, at 253–56.
111. Still another possible cognitive explanation for the deterioration of Justice Overton’s analysis in
Via is that, quite apart from having to face multiple tasks, he was simply thirteen years older than when he
composed his opinion in Ganier. Justice Overton wrote his opinion in Via within four years of his
retirement. As we age, our attentional resources, and hence the total effort we have available to put into
things, tend to diminish. For a review of the studies in this area, see generally Joan M. McDowd &
Raymond J. Shaw, Attention and Aging: A Functional Perspective, in HANDBOOK OF AGING AND
COGNITION 221 (Fergus I.M. Craik & Timothy A. Salthouse eds., 2d ed. 2000). And so it is reported that
Justice Thurgood Marshall delegated more and more opinion writing to his clerks as he aged, see DAVID G.
SAVAGE , TURNING RIGHT : THE MAKING OF THE REHNQUIST SUPREME COURT 73–74 (1992); BOB
WOODWARD & SCOTT ARMSTRONG,T HE BRETHREN:INSIDE THE SUPREME COURT 258–59 (1979), whereas
Justice Oliver Wendell Holmes, who, living in a different era, always wrote his own opinions, simply
produced progressively shorter and less analytical ones as he aged, see Boris I. Bittker, Federal Income
Taxation and the Family, 27 STAN. L. REV . 1389, 1400–04 (1975) (discussing an example of “late-vintage
Holmes, magisterial in tone, studded with quotable phrases, and devoid of analysis”); Adam J. Hirsch,
Searching Inside Justice Holmes, 82 VA. L. REV. 385, 391–92 (1996).
112. For two cases contrary to Via, heard in other jurisdictions, where the pretermitted spouse issue
was the primary one before the court, see In re Estate of Beauchamp, 564 P.2d 908, 910 (Ariz. Ct. App.
1977); and In re Estate of Stewart, 444 P.2d 337, 339–40 (Cal. 1968) (Traynor, J.). “It would be anomalous
to conclude that this [pretermitted spouse] stat ute requires that [the surviving spouse] receive more because
the testator performed his contract than she would have received had he breached it.” Id. It bears noting that
whereas Justice Overton’s opinion in Via undertook to explore the law of other st ates in connection with the
elective share issue, Via, 656 So.2d at 464–65, he made no equivalent exploration in connection with the
pretermitted spouse issue, which would have revealed these earlier opinions—another apparent reflection of
the disparate attention Justice Overton devoted to these two issues.
626 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

might just as easily have been absent, for instance if a statute or a separate
common law opinion had already resolved the issue.

V. WHERE TO GO FROM HERE

Having sketched the outlines of a cognitive theory of jurisprudence,

together with some of its predictions and observed manifestations, we must
finally take up—or at least raise—the prescriptive and normative questions
that follow in its train: Are the behavioral adaptations of lawmakers to the
boundedness of their own rationality functionally undesirable? And if so, in
what ways should we (or rather they) respond?
Plainly, our answer to the first question hinges on whether lawmakers
are making optimal use of their cognitive resources, given the scarcities that
exist within their minds. As earlier remarked,113 persons achieve cognitive
efficiency by throwing themselves into tasks that ge nerate the greatest
rewards. An optimal allocation of cognitive effort is “meta -rational,” leading
to decisions that remain imperfect—we have surveyed those imperfections in
foregoing pages—but nevertheless are as good as they can become in the
aggregate.114
By emphasizing “important” rules over insignificant ones, lawmakers
take a step in the right direction. All else being equal, attention to important
rules is time well spent.115 Were lawmakers instead to concentrate on less
important rules, they would again make mountains out of molehills, leaving
themselves with insufficient attentional resources to devote to the truly
momentous issues. The overall quality of our law would suffer as a
consequence.

113. See supra notes 48–52 and accompanying text.

114. Cf. Sale, supra note 16, at 944–63 (criticizing judicial resort to decision-simplifying rules in
connection with securities cases). The concept of meta-rationality is developed in Helmut Jungermann, The
Two Camps on Rationality, in JUDGMENT AND DECISION MAKING , supra note 13, at 575, 581–82. See also
Hal R. Arkes, Costs and Benefits of Judgment Errors: Implications for Debiasing, 110 PSYCHOL. BULL. 486,
487, 492 (1991) (observing that to the extent “[s]uboptimal behaviors occur . . . because the effort or cost of
a more diligent judgment performance is greater than the anticipated benefit,” the behaviors are “adaptive in
a larger sense”).
115. But all else is not necessarily equal; another factor in the equation of cognitive efficiency is the
complexity of the issue of law in question—and hence the size of the cognitive investment necessary to
dispose of that issue intelligently. When decisions are equally important, but some are complex while others
are simple, scarce cognitive energy is more efficiently devoted to resolving the simpler issues. Such
concerns may influence the cognitive investment strategies of some lawmakers. Judge Learned Hand spoke
suggestively of his aversion to tax law:
[T]he words of such an act as the Income Tax . . . leave in my mind only a confused sense of
some vitally important, but successfully concealed, purport, which it is my duty to extract, but
which is within my power, if at all, only after the most inordinate expenditure of time.
Learned Hand, Thomas Walter Swan, 57 YALE L.J. 167, 169 (1947).
2003] COGNITIVE JURISPRUDENCE 627

The problem of how we go about evaluating the importance of a rule

remains a puzzle, to be sure.116 If no consensus can form on this question—if
the matter is simply one of taste —then the efficiency of attention allocation
becomes subjective and the issue evaporates. Assuming, however, that a
rough consensus on the relative importance of rules lies within our grasp, then
the strategy lawmakers ought to follow is clear enough.
That lawmakers do appear to divide their time disproportionately among
rules may indicate that the strategy commands a following and that something
approaching an optimal allocation of effort is being made. But we can hardly
rest assured of that fact. For lawmakers in most instances do not divide their
time among tasks according to any formal process,117 following an articulated
standard; the division occurs in camera and hence (as Karl Llewellyn would
remind us) is unreliable.118 Indeed, the mode of sorting may not rise to the
level of consciousness;119 sometimes, even the decision to sort may not rise to
that level. It remains entirely possible that lawmakers deliberate most over
rules not that they rate as more important, but rather that appear to them as
more conspicuous.
Psychological studies suggest several reasons to fear that these will not
always be one and the same. Obviously, we all pay greatest attention to, even
fixate on, those matters of greatest personal moment to us, at least insofar as
our physical well-being is concerned. Bred into our ancestors, who would not
have survived without it, this instinct remains adaptive in our less feral, but
still dangerous, world of today.120 Perhaps as a byproduct of that instinct,
evidence shows that when we feel a sense of “issue involvement,” when an
issue before us has significance to our own lives, we are actuated to pay closer
attention. 121 Of course, many of the issues lawmakers address lie beyond the

116. For one tantalizingly simple response to this problem, which may, however, be more properly
taken as the starting point of the analysis, see Kaplow, supra note 5, at 579 (“The value of effort in designing
a rule depends on the frequency of behavior subject to the rule.”). See also PERRY, supra note 59, at 254,
260, 262, 264.
117. Processes of the legislative agenda, and of the judicial agenda insofar as it can accept or reject
appeals, are of course exceptions.
118. See KARL N. LLEWELLYN, THE COMMON LAW TRADITION : DECIDING APPEALS 365 (1960)
(“Covert tools are never reliable tools.”).
119. Consider a comment made by an anonymous Supreme Court Justice to Professor H.W. Perry, in
response to his query of whether the Justice’s interest in subject areas affects the Justice’s decisions to grant
certiorari: “I am sure it [does], but I am not even sure what those areas are for me.” PERRY, supra note 59, at
261.
120. This may not be true of all our instincts, a point now under exploration within the realm of
behavioral biology. See generally Owen D. Jones, Time-Shifted Rationality and the Law of Law’s Leverage:
Behavioral Economics Meets Behavioral Biology, 95 NW . L. REV . 1141 (2001).
121. See Shelly Chaiken, The Heuristic Model of Persuasion, in 5 SOCIAL INFLUENCE: T HE ONTARIO
SYMPOSIUM 3, 8–11 (Mark P. Zanna et al. eds., 1987) (surveying the literature in connection with persuasion
628 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

social boundaries of their own lives. In those instances where lawmakers do,
however, experience issue involvement, one would expect them to deliberate
more. And because the presence or absence of issue involvement is peculiar
to the individual lawmaker, its cumulative effect on the allocation of attention
should be to heighten its randomness.
A second risk, having the same effect, is that lawmakers’ attention may
be drawn not to rules, but rather to facts. Psychological studies find a
tendency of persons to focus more on “vivid,” concrete information than on
“pallid,” abstract information, and the extremeness of information also tends
to grab attention.122 Facts are more concrete than rules, and the salience of
facts does not necessarily correlate with the importance of the issues of law
that they raise. Certainly, the power of facts to concentrate legislative minds
is well known. Some statutory rules are even named after the events that
swept them onto the agenda, such as Megan’s Law, the Son-of-Sam Laws,
and, once upon a time, Tilden’s Law.123
That fact-salience draws (and, by so doing, distorts) the attention of the
judicial mind is also likely. We are already familiar with one of its other
manifestations: Hard cases make bad law! Presumably, judges are prompted
to lavish attention on those very same cases. Willful legal error, like a
reevaluation of law, requires mental effort, after all. In these instances, facts
provoke the court to effort. If the same court, thus galvanized, were instead to
find cause to revise the applicable rule, the effort expended would not
necessarily bear any relation to the importance placed on the rule in question.
A closely related magnet for attention is emotion: People tend to focus
on what stirs them, along with what stands out.124 Emotion, surely, is largely
responsible for making a hard case an attention-getting case. But issues of
law as well as of fact may excite the emotions of a lawmaker. Here, again,

research); Shelly Cjaolem & Charles Stangor, Attitudes and Attitude Change, in 38 ANN. REV. PSYCHOL.
575, 594–96 (1987) (observing that at higher levels of personal involvement, subjects tend to engage not
only in more, but also in biased, information processing).
122. See RICHARD NISBETT & LEE ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF
SOCIAL JUDGMENT 47–49 (1980); SUSAN T. RISKE & SHELLEY E. T AYLOR, SOCIAL COGNITION 247–66 (2d
ed. 1991); Leslie Z. McArthur, What Grabs You? The Role of Attention in Impression Formation and Causal
Attribution, in 1 SOCIAL COGNITION : T HE ONTARIO SYMPOSIUM 201, 203, 215 (E. Tory Higgins et al. eds.,
1981); Shelley E. Taylor, The Availability Bias in Social Perception and Interaction, in JUDGMENT UNDER
UNCERTAINTY: HEURISTICS AND BIASES 190, 192–93 (Daniel Kahneman et al. eds., 1982).
123. For the dramatic, but now forgotten, events that gave rise to the last of these, see J.B. Ames, The
Failure of the “Tilden Trust,” 5 HARV. L. REV . 389, 389–92 (1892); and Lawrence M. Friedman, The
Dynastic Trust, 73 YALE L.J. 547, 590 n.156 (1964).
124. NISBETT & ROSS, supra note 122, at 45–47; PASHLER, supra note 47, at 246–48; SIMON , supra
note 2, at 29–30. See generally Yaniv Hanoch, “Neither an Angel Nor an Ant”: Emotion as an Aid to
Bounded Rationality, 23 J. ECON. P SYCHOL. 1 (2002).
2003] COGNITIVE JURISPRUDENCE 629

lawmakers may find themselves lured away from issues they would deem
more important, were the choice made dispassionately. For a cognitive
concomitant to emotional poignancy is emotional aridness—an unstimulating,
thankless task is liable to be a thinkless one.125
These theoretical predictions find some support in the extant literature of
legal criticism. The observation that emotion can move lawmakers is as old
as Aristotle,126 but the notion that it affects attention to rules has also been
sounded on occasion. Recall Dean Gulliver’s explanation for lawmakers’
neglect of future interests law: The facts of these cases “[are] not calculated to
engender a white heat of emotional prejudice in favor of either” litigant.127
Recall also Professor Langbein’s speculation that the U.S. Supreme Court is
“bored” with the law of ERISA and other “complex bodies of statutory law,”
and for this reason “has discharged ERISA business shoddily.”128
Other commentators have also weighed in on this theme. Professor
Frederick Schauer asserts that the Supreme Court’s “comparatively brief,”
unanimous or nearly unanimous opinions in ERISA, AFDC, and tax cases
reflect the fact that “the substance of the dispute[s] seem[] . . . less politically
or morally or economically charged” in these cases than in constitutional
cases simultaneously before the Court.129 Yet, Schauer adds, the Court’s
implicit judgments concerning the importance of these cases are “morally and
socially erroneous,” for “[f]ar more of the public welfare of the United States
turns on questions of qualification for AFDC benefits than on the question of
flag desecration.”130
Failures of attention have also been observed at the root of a more
concrete phenomenon—the setting, and skewing, of the judicial agenda.
Here, even participants in the process have voiced concerns. Not long after
leaving the federal Court of Appeals, Kenneth Starr criticized the Supreme
Court for agreeing to hear an excess of “sexy” cases while turning aside
“important but unglamorous business-related issues.”131 Presumably, the sex

125. The problem of emotion in law has recently aroused scholars. For a contribution addressing some
of its other dimensions, see RICHARD A. P OSNER, Emotion in Law, in FRONTIERS OF LEGAL THEORY 225
(2001).
126. See ARISTOTLE, supra note 23, at 5–7. See also N. Sec. Co. v. United States, 193 U.S. 197, 400–
01 (1903) (Holmes, J., dissenting).
127. GULLIVER, supra note 65, at 12.
128. Langbein, supra note 74, at 228–29.
129. Schauer, supra note 76, at 247–48.
130. Id. at 247. Schauer himself rates these cases as “[un]interesting,” or even as “real dogs,” but
“[t]hat is not to say they [are] socially unimportant.” Id.
131. Kenneth W. Starr, Rule of Law: Supreme Court Needs a Management Revolt, WALL ST . J., Oct.
13, 1993, at A23.
630 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

appeal of a case again relates either to eye -catching facts or to emotional

attractions. The upshot, in Starr’s view, was that the Court had “squander[ed]
a precious national resource—the time and energy of the justices
themselves”132—a metaphor singularly apt within a theory of cognitive
jurisprudence. In similar terms, Justice Harry Blackmun dissented from the
denial of certiorari in what he deemed an “important” tax case: “I hope that
the Court’s decision to pass this case by is not due to a natural reluctance to
take on another complicated tax case that is devoid of glamour and
emotion.”133
Along with emotional considerations, Professor H.W. Perry reports
statements by Supreme Court justices to the effect that their brethren’s
willingness to hear cases has also turned on their individual interests
stemming from “their activities [and] . . . personal experience.”134 For
instance, Westerners on the Court are alleged to have been particularly
concerned about, and disposed to take, cases dealing with water rights.135
Such evidence fits the hypothesis that the random incidence of issue
involvement can direct, or at least play a part in directing, lawmakers’
attention.
If lawmakers do truly fail on a regular basis to apportion their cognitive
energies optimally—a possibility raised, albeit in no way proven, by these
anecdotal suggestions—what could be done about it? From a structural
perspective, we may class our answers under two heads: (1) curative
measures, designed to enhance lawmakers’ rationality, and (2) conciliatory
measures, which accept bounded rationality as inevitable and adjust other
principles in response to it.136
Among curative options, perhaps the most obvious one is to introduce
more (cognitive) labor.137 Task interference dwindles as we break apart

132. Kenneth W. Starr, Rule of Law: Trivial Pursuits at the Supreme Court, WALL ST . J., Oct. 6, 1993,
at A17.
133. Singleton v. Commissioner, 569 F.2d 863, cert. denied, 439 U.S. 940, 941–42 (1978) (Blackmun,
J., dissenting).
134. PERRY, supra note 59, at 260–63.
135. See id. at 261–62.
136. See generally Baruch Fischhoff, Debiasing, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS
AND BIASES, supra note 122, at 422.
137. We shall not delve here into the question of whether individual lawmakers could somehow be
motivated to dedicate greater cognitive effort to their work than they already do. By all accounts, judges and
legislators labor rather diligently at their jobs, whatever their mercenary incentives to do so. E.g., JEWELL &
PATTERSON, supra note 77, at 92–98; ALAN ROSENTHAL, LEGISLATIVE LIFE 62–64 (1981); Griswold, supra
note 73, at 398, 403; Judith S. Kaye, Forward: “Year in Review” Shows Court of Appeals Continuing Its
Great Traditions, 42 N.Y.L. SCH . L. REV. 331, 333–35 (1998); Markey, supra note 23, at 373; Robel, supra
note 23, at 7–8. Cf. POSNER, supra note 10, at 85–86, 221–36, 335–36 (suggesting that judges could be
2003] COGNITIVE JURISPRUDENCE 631

compound tasks and distribute them to additional personnel.138 What is more,

those personnel might fruitfully deliberate with one another, a point long
acknowledged in the maxims of folk psychology. 139 Judges, too, have
grasped the point, at least at the macroscopic level. Their pleas for more
hands (and minds) to carve up the judicial workload is historically
longstanding. 140 Interaction among courts also occurs (in effect) via the
appellate process and pe rcolation.
At the microscopic level, however, fewer efforts have been undertaken
in this direction. When disposing of individual cases, the various members of
a court collude, or collide, but they rarely collaborate in the sense of sharing
responsibility. 141 Personality clashes and jealousies have often interfered with
the exchange of ideas.142 Whether or not greater collegiality and deliberation
among judges would lead to better lawmaking,143 task interference within

prompted to greater effort). See generally Lynn A. Stout, Judges as Altruistic Hierarchs, 43 WM. & MARY
L. REV . 1605 (2002) (addressing theoretically lawmakers’ devotion to their work). Cf. infra note 143.
138. “[I]t is now clear that the elaborate organizatio ns that human beings have constructed in the
modern world to carry out the work of . . . government can only be understood as machinery for coping with
the limits of man’s abilities to comprehend and compute in the face of complexity . . . .” Herbert A. Simon,
Rational Decision Making in Business Organizations, 69 AM. ECON . REV . 493, 501 (1979). See also
SIMON , supra note 2, at 87–88.
139. Thus, two heads are better than one. Modern cognitive studies tend to confirm the maxim, albeit
with significant reservations. See infra note 143.
140. By the nineteenth century, even the traditionally monocratic Court of Equity bowed to this logic.
BAKER, supra note 90, at 95–99. Fo r modern discussions in connection with the federal courts, see, for
example, POSNER, supra note 10, at 181, 193; Griswold, supra note 73, at 407–08; and William L. Reynolds
& William M. Richman, Justice with More Judges, 15 J.L. & P OL. 559 (1999).
141. Opinions are rather a product of “solitary incubation,” as one judge has put it. COFFIN, supra note
68, at 169.
142. For a brief recitation of some of the petty conflicts that plagued the U.S. Supreme Court in the
mid-twentieth century, see Michael J. Klarman, Book Review, 12 LAW & HIST . REV . 399, 402–03 (1994).
Disrespectful rhetoric within opinions hardly improves matters. See, e.g., United States v. Virginia, 518 U.S.
515, 594–95 (1996) (Scalia, J., dissenting) (asserting that “[a]ny lawyer who gave . . . advice” a priori in line
with the ruling of the six-Justice majority “ought to have been either disbarred or committed”). Conferences
of the Supreme Court have been characterized as remarkably devoid of discourse, although the Justices do
exchange views by way of written memoranda. See LAZARUS, supra note 23, at 285; REHNQUIST , supra
note 73, at 254–55, 257–59; SAVAGE, supra note 111, at 202–03. One byproduct of the paucity of
interaction is a proliferation of multiple opinions. Griswold, supra note 73, at 400. As described by one
former law clerk, the Court is “really nine separate courts. The Justices lead separate, even isolated lives.”
LAWRENCE BAUM, THE SUPREME COURT 158–69 (7th ed. 2001) (quotation at 159). But compare Judge
Coffin’s assertion that appellate courts have fostered a collegial atmosphere that results in superior
judgments. COFFIN , supra note 70, at 58–59, 171–75.
143. Studies suggest that the effectiveness of brainstorming and information pooling as a means of
enhancing the quality of decisions can depend upon such factors as how the group is organized and what sort
of decision lies at issue. For surveys of the literature, see generally Daniel Gigone & Reid Hastie, Proper
Analysis of the Accuracy of Group Judgments, 121 PSYCHOL. BULL. 149 (1997); Reid Hastie, Review Essay:
Experimental Evidence on Group Accuracy, in INFORMATION POOLING AND GROUP DECISION MAKING 129
(Bernard Grofman & Guillermo Owen eds., 1986); and John M. Levine & Richard L. Moreland, Progress in
632 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

cases could still be reduced if we regularly assigned lawmaking responsibility

by the issue instead of by the case (at least to the extent that issues are wholly
distinct)—giving new meaning to the per curiam opinion. One can speculate
about the utility of such a “co-authorship” strategy in a case like Via v.
Putnam; the possibility at least deserves considering.
Group effort also occurs within legislative bodies and private lawmaking
bodies, via the committee system. At the macroscopic level, different
personnel undertake different Uniform Law projects, but at the microscopic
level, drafting responsibility within a Uniform Law project falls primarily on
the Reporter. A more formalized subcommittee approach to drafting (in the
legislative tradition) might better serve the end of cognitive efficiency.144
Another strategy for enhancing rationality involves a related operation:
division of labor, along with its addition. Experts within a given area have
already made a cognitive investment that pays dividends, so to say, in the
form of heightened decisionmaking ability within their range of expertise.145
Specialized courts take advantage of this efficiency,146 as do both specialized
legislative committee staffs and the selective committees of private

Small Group Research, 1990 ANN . REV. P SYCHOL. 585. The utility of group involvement is doubtful, for
example, when tasks have no easily demonstrable solution, which is often true of lawmaking. Gigone &
Hastie, supra, at 149. Group decision is also vulnerable to social loafing by individual members of the
group, see Levine & Moreland, supra , at 615 (citing to studies), and even to group pathologies that
encourage the group to risky and extreme choices, see id. at 619 (citing to studies). For discussions in a legal
context, see COFFIN , supra note 68, at 168; Eleanor C. Main & Thomas G. Walker, Choice Shifts and
Extreme Behavior: Judicial Review in the Federal Courts, 91 J. SOC . PSYCHOL. 215 (1973); Schkade et al.,
supra note 14, at 1139; Seidenfeld, supra note 16, at 527–43; and Cass R. Sunstein, Deliberative Trouble?
Why Groups Go to Extremes, 110 YALE L.J. 71 (2000).
144. In a similar spirit, the American Law Institute employs consultative groups as adjuncts to the
process of drafting Restatements. “The apparent organizational theory behind this system is based upon the
principle that the more persons to review a draft, the better the finished product will be,” and consultative
groups “provide those drafting the project with a sounding board” for their ideas. Averill, supra note 23, at
904–05. One Commissioner has suggested that Uniform Act projects duplicate this technique, possibly with
“subgroups,” for different segments of projects. Id.
145. See the related economic discussion in GARY S. BECKER, HUMAN CAPITAL 17–21 (3d ed. 1993).
On the cognitive efficiency of expert judgment, see, for example, Robert J. Sternberg & Peter A. Frensch,
On Being an Expert: A Cost-Benefit Analysis, in THE PSYCHOLOGY OF EXPERTISE 191, 191–97 (Robert R.
Hoffman ed., 1992). Expertise is not, however, an unqualified blessing, for it can breed do gmatism and
respond inflexibly to new situations. Richard L. Revesz, Specialized Courts and the Administra tive
Lawmaking System, 138 U. P A. L. REV . 1111, 1120 (1990) (quoting Justice Scalia); Seidenfeld, supra note
16, at 496–508; Sternberg & Frensch, supra, at 197–98. Needless to add, social change often does present
lawmakers with novel problems. Once again, the point finds expression in the maxims of folk psychology:
Sometimes the most novel insights come out of the mouths of babes.
146. Rochelle C. Dreyfuss, Specialized Adjudication, 1990 BYU L. REV . 377, 378–79; Griswold,
supra note 73, at 408. But see POSNER, supra note 10, at 250–53, 244–70 (suggesting that specialization of
courts renders lawmaking more ideological because experts in an area of law are apt to embrace one of a
number of competing ideologies).
2003] COGNITIVE JURISPRUDENCE 633

lawmaking bodies. Exploitation of expertise is perhaps the single greatest

virtue of statutory law, as well as of Uniform Acts and Restatements, which
can contrast so sharply, and favorably, with law made in the same field by a
generalist judge, as earlier observed.147 Specialized lawmaking entities
should be less prone to relegate subject areas than a generalist lawmaker
might, although even here the danger of microscopic task interference
remains. Another virtue of the subcommittee approach to lawmaking,
however, is that it opens opportunities for subspecialization that can also
produce efficiencies at the microscopic level.
Apart from these rather drastic measures, other measures might be taken
simply to acknowledge the inevitability of bounded rationality in lawmaking
and to reduce the damage that it inflicts. Scholars have long perceived in
cognitive theory normative implications for the substance of rules governing
citizens,148 while other scholars have lately begun to consider how lawmakers
might craft rules designed to respond to the bounded rationality of the trial
court judges and juries whose task it is to apply them. 149 Arguendo, the
cognitive frailties of lawmakers themselves could, by the same token, tell us
something about what sorts of rules they ought to craft when they go about
their creative task.

147. See supra text following note 77. Even a generalist court may be able, however, to exploit the
expertise of individual members by deferring to them within their particular metier. For a suggestion that
Justice Powell received such deference in corporate and securities cases, see Bainbridge & Gulati, supra note
16, at 139–42. For a suggestion by one of his brethren that Justice Blackmun served as the Court’s authority
on tax matters, see William J. Brennan, Jr., A Tribute to Justice Harry A. Blackmun, 1990 ANN. SURV. AM.
L. xi, xiii. See also COFFIN, supra note 70, at 141 (asserting that his philosophy in assigning cases was to
“exploit expertise in moderation, making sure that each judge eventually gains experience in all fields”). But
see Kaye, supra note 137, at 335 (noting the practice of one appellate court to assign cases at random so that
“no one of us is designated ‘the expert’ in any particular subject area”); Kirk J. Stark, The Unfulfilled Tax
Legacy of Justice Robert H. Jackson, 54 TAX L. REV. 171, 174–75 (2000–2001) (suggesting that the Court
failed to avail itself of Justice Jackson’s tax expertise). Staff assistance aside, a similar pattern of deference
to the expertise of individual legislators within a legislative body has been observed. JEWELL & P ATTERSON,
supra note 77, at 218–20.
148. See supra note 6 and accompanying text.
149. See Guthrie et al., supra note 15, at 821–22, 828–29 (suggesting that “judges and legislators
might craft rules that minimize the adverse effects that cognitive illusions can have on judgment”); Jeffrey J.
Rachlinski, Heuristics and Biases in the Courts: Ignorance or Adaptation?, 79 OR. L. REV. 61, 70–81, 85–
101 (2000) (offering examples); Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in
Hindsight, 65 U. CHI. L. REV . 571, 602–24 (1998) (same) [hereinafter Rachlinski, Psychological Theory];
Schkade et al., supra note 14, at 1168–70 (concerning juries). Several recent scholars have identified rules
whose function (they posit) is to reduce the cognitive burdens of judgment, through no-fault and other fact -
excluding mechanisms, without substantially impairing judgment, in areas of law where disputes are
perceived to be relatively unimportant. Bainbridge & Gulati, supra note 16, at 118–36; Kull, supra note 79,
at 286, 289, 291; Sale, supra note 16, at 905–44. On the utility of these devices, compare Bainbridge &
Gulati, supra note 16, at 136–38, with Sale, supra note 16, at 944–63, and with Kull, supra note 79, at 292–
93.
634 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

In a (half serious?) aside, Judge Posner remarks that if the cognitive

frailties of human beings are as severe as the behavioralists posit, then the
universality of those frailties should, in effect, cancel out any justification for
paternalizing that we could otherwise derive from them: “Dare we vest
responsibility for curing irrationality in the irrational?” he rhe torically
inquires.150 This suggestion is reminiscent of another tu quoque argument
offered centuries earlier by Adam Smith, again in defense of individual
autonomy: “It is,” Smith scoffed,
the highest impertinence and presumption . . . in kings and ministers, to
pretend to watch over the œconomy of private people, and to restrain
their expence . . . by sumptuary laws . . . . They are themselves always,
and without exception, the greatest spendthrifts in the society. Let them
look well after their own expence, and they may safely trust private
people with theirs.151

There may be a moral component to this sort of reasoning. Certainly,

one does best to lead by example. Yet this maxim hardly implies that those
who cannot do so durst not lead at all; those who want ability may still have
things to teach. Followed to its logical conclusion, Judge Posner’s query
suggests the equal unfitness of lawmakers to promote any normative agenda
for law, be it paternalistic or libertarian—and hence, as it were, their equal
fitness to do so. In the absence of a manifest Deity, mortal lawmakers must
make do with what mental faculties they possess, striving imperfectly to
promote paternalism—as well as efficiency—wherever appropriate.
On the contrary, recognition of the universality of bounded rationality
suggests the possibility of extending paternalism. Lawmakers may, where
necessary, self-paternalize, protecting themselves from their own perceived
irrationality, just as they do for others.152 Thus have Adam Smith’s
hopelessly prodigal politicians endeavored to shield themselves from their
own extravagance by enacting balanced-budget laws while simultaneously
taxing consumer luxuries.153 Lawmakers, creating substantive rules to govern
others and process rules to govern themselves, can do the same.

150. Posner, supra note 6, at 1575.

151. ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 329
(Edwin Cannan ed., The Modern Library 1937) (1776).
152. Compare the suggestion that in a regime of populist lawmaking, the prospect for paternalistic
intervention is diminished, because lawmakers will act irrationally under pressure from irrational citizens.
See Jolls et al., supra note 6, at 1543. Yet self-paternalistic behavior by citizens is common, see Hirsch,
supra note 6, at 86–89, and could likewise be mediated through their representatives, see id. at 55 nn.198–99.
See generally JON ELSTER, ULYSSES UNBOUND (2000) (offering a theoretical discussion of self-
paternalism—also known in the philosophical literature as precommitment).
153. On balanced-budget laws as a form of self-paternalism, see Hirsch, supra note 6, at 87.
2003] COGNITIVE JURISPRUDENCE 635

One example is the principle that dicta lack the weight of precedent.154
Because judges are (however dimly) aware both of their own tendency to
gloss over portions of an opinion peripheral to the issue at-hand and of a
succeeding judge to free-ride on a predecessor’s cognitive effort, they have
taken care to underscore to successors that no such portion should carry the
full force of law. In this instance, a principle of legal process finds its
vindication in the frailties of the very ones who have propounded it.
Conceivably, we could expand on and diffuse this bright-line principle,
according diminished precedential weight to common law in outlying regions
of the legal landscape, where lawmaking is bound to be less thoughtful. Such
a principle would, however, disrupt reliance and would probably prove
unworkable in any event, given the difficulty of defining law’s fringes.155 At
the same time, a legislature can, and should, as a rule of thumb scrutinize with
a more skeptical eye provisions of common law rules and model codes, not to
mention its own existing codes, that it recognizes as remote whenever it
codifies and revises law. Because they are less likely to have been carefully
crafted, minor rules merit less legislative deference, apa rt from the separate
consideration of reliance and transition costs.
Lawmakers could also take steps to protect themselves against some of
the manifestations of bounded rationality by insisting on reallocations of
cognitive effort that they might not otherwise be inclined to make. A
suggestion (or directive) that statutes and opinions contain relation-to-other-
rules comments or analysis would help to assuage the problem of legal
inconsistency by encouraging (or requiring) lawmakers to develop peripheral
vision. Likewise, a suggestion (or mandate) that comments expounding a
rationale for each and every one of a statute’s or model rule’s provisions
accompany its passage or promulgation would serve to reduce the frequency
of arbitrary choice within these forms of lawmaking.156 Coaxing lawmakers
to redistribute the effort they dedicate to law found in different substantive
areas or secreted in different cases seems more difficult to accomplish via

154. See supra notes 90–92 and accompanying text.

155. Courts have it in their power in discrete cases to avoid setting a precedent by issuing unpublished
opinions, whereby in effect entire opinions become the functional equivalent of dicta. Courts can employ
this technique in instances where they prefer to devote less attention to the issues of law raised by a case. See
POSNER, supra note 10, at 162–75 (citing to earlier discussions); Richman & Reynolds, supra note 68, at
632–36, 642–43; Wald, supra note 68, at 1374–75 (observing that “unpublished opinions . . . are the product
of a . . . much-abbreviated decision-making process”).
156. The National Conference of Commissioners’ style manual calls for drafters of Uniform Acts to
omit purpose clauses because “[c]omments and annotations supply this detail.” National Conference of
Commissioners on Uniform State Laws, Procedural and Drafting Manual 26 (1997) (unpublished document,
on file with author). In practice, however, even the comments appended to Uniform Acts often want
discussions of their rationales. See Hirsch, supra note 23, at 184.
636 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

process rules. There remains, nevertheless, one last thing that lawmakers can
do about bounded rationality in that regard, without really doing anything at
all: They can follow the Delphic admonition to know thyself ! By gaining an
appreciation of cognitive theory, lawmakers may learn to budget their own
attention more reflectively and hence to become less susceptible to attentional
errors.
There is room for optimism that, once made aware of task interference
and salience, lawmakers will become better equipped to conduct themselves
efficiently. Although some “robust” cognitive biases have proven
unresponsive to education,157 these seem to be ones involving mental
processes that occur outside of awareness and hence that are difficult to
manipulate.158 At a certain level, this is also true of attention: The processes
whereby one is led to focus on a matter “occur rapidly and seem opaque to the
individual.”159 Still, one’s overall distribution of attention at least has the
potential to occur consciously and so ought to be malleable.160 Certainly,
lawmakers are sensible of the choices they make to accept an appeal or to
introduce legislation, rationing attention at a gross level. They could easily
enough be made sensible of other, more subtle, choices that lawmakers have
(presumably) been making intuitively, as well as of the saliency phenomena
that can cause them to discriminate between cognitive tasks. By act of will,
surely, persons are capable of redirecting their attention. 161
In other words, lawmakers may do well simply to read this article.
But even saying this much involves assumptions. One is that, once
educated, lawmakers will prove able to apply what they have learned
correctly. 162 The risk nonetheless exists that they will commit so-called errors

157. The hindsight bias, see supra note 3, is one example. For references to studies, see Rachlinski,
Psychological Theory, supra note 149, at 586–88. Cf. Hillman, supra note 7, at 735–36.
158. See Arkes, supra note 114, at 493 (citing to studies); Timothy D. Wilson & Nancy Brekke,
Mental Contamination and Mental Correction: Unwanted Influence on Judgments and Evaluations, 116
PSYCHOL. BULL. 117, 121–22 (1994) (citing to studies). People also appear to underestimate their own
susceptibility to cognitive bias and so may be less inclined to take education about it to heart. See id . at 125–
26.
159. PASHLER, supra note 47, at 8.
160. See PAYNE ET AL ., supra note 23, at 14–15, 107–08 (suggesting that “people sometimes explicitly
control their mode of cognition,” although “conscious decisions on how to decide are not made that often”).
161. Justice Holmes spoke of consciously ignoring hard cases: “I have long said there is no such thing
as a hard case. I am frightened weekly but always when you walk up to the lion and lay hold the hide comes
off and the same old donkey of a question of law is underneath.” Letter from Oliver Wendell Holmes, Jr., to
Frederick Pollock (Dec. 11, 1909), in 1 HOLMES-POLLOCK LETTERS 155, 156 (Mark DeWolfe Howe ed., 2d
ed. 1961).
162. The strategy of raising lawmakers’ consciousness, so that they learn to think about thinking, may
simply push unconscious behaviors back one step. “The distinction between automatic and controlled
processes is somewhat muddied by the fact that in principle, even deliberate, conscious actions are mediated
2003] COGNITIVE JURISPRUDENCE 637

of application,163 possibly by overcompensating for the cognitive errors the y

are now striving to avoid. 164 Jerome Frank recognized the problem in the
related context of judicial prejudice: “The conscientious judge will, as far as
possible, make himself aware of his biases . . . and, by that very self-
knowledge, nullify their effect,” he observed from the bench, “the sunlight of
awareness has an antiseptic effect on prejudices.”165 At the same time, “[o]ne
of the subtlest tendencies which a conscientious judge must learn to overcome
is that of ‘leaning over backwards’ in favor of persons against whom his
prejudices incline him. . . . [S]ome men . . . have been unjust in their efforts
to exclude bias . . . .”166 By analogy, lawmakers apprised of the foibles of
task interference might similarly “lean over backwards,” paying too much
attention to matters they appreciate having a propensity to neglect.167
More fundamentally, however, the danger exists that, in the course of
deciding consciously how to allocate attention, lawmakers will consume more
attention than that decision is worth. 168 Do lawmakers possess the sangfroid
to keep allocative decisions in perspective? Or is subconscious choice
preferable to self-conscious choice in this respect? Could it turn out that, once
made wittingly, lawmakers’ decisions about how to allot their thinking—and
hence about how to perform their job as best they can—would once again
prove emotionally fraught and thus get in the way of the primary decisions
that must follow? In other words, could the task of diminishing task
interference itself interfere with other tasks, thereby aggravating the very

by unconscious, automatic processes.” John F. Kihlstrom, Conscious Versus Unconscious Cognition, in THE
NATURE OF COGNITION 173, 178 (Robert J. Sternberg ed., 1999).
163. Daniel Kahneman & Amos Tversky, On the Study of Statistical Intuitions, in JUDGMENT UNDER
UNCERTAINTY: H EURISTICS AND BIASES, supra note 122, at 493, 495 (1982); Matthew Rabin, Psychology
and Economics, 36 J. ECON. LITERATURE 11, 31–32 (1998).
164. For a st udy reporting this “reversed impact” effect, see Richard E. Petty, Duane T. Wegener &
Paul H. White, Flexible Correction Process in Social Judgment: Implications for Persuasion, 16 SOC .
COGNITION 93, 109–10 (1998). For a review of other studies reporting instances of overcompensation,
among other errors of application, see Wilson & Brekke, supra note 158, at 130–33. See generally Duane T.
Wegener, Meghan Dunn & Danny Tokusato, The Flexible Correction Model: Phenomenology and the Use
of Naive Theories in Avoiding or Removing Bias, in COGNITIVE SOCIAL PSYCHOLOGY 277 (Gordon B.
Moskowitz ed., 2001).
165. In re J.P. Linahan, 138 F.2d 650, 652–53 (2d Cir. 1943) (Frank, J.).
166. Id. at 652 n.10.
167. Or, paradoxically, education might literally backfire: trying to suppress attention to something
salient could cause it to become more accessible than before, “and this can lead to the thought having a
greater contaminating effect on judgment.” Wegener et al., supra note 164, at 282 (citing to studies)
(emphasis added).
168. For discussions raising this dilemma in the abstract, see Conlisk, supra note 5, at 686–88; Cass R.
Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 ETHICS 5, 28–30 (1999); Wilson &
Brekke, supra note 158, at 136. See also Kihlstrom, supra note 162, at 177–78 (suggesting that even
unconscious cognitive processes may draw on attentional resources).
638 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 76:599

problem it is supposed to alleviate?169 And assuming that were the case,

would it be the part of wisdom for conscientious lawmakers not to read this
article?170
***
Alas, we must end the discourse, just when it is beginning to get
interesting.

169. For one study in which such a “disruptive” effect appeared, see Cesare Cornoldi, The Impact of
Metacognitive Reflection on Cognitive Control, in METACOGNITIVE AND COGNITIVE NEUROPSYCHOLOGY
139, 153–54 (Giuliana Mazzoni & Thomas O. Nelson eds., 1998). See also Wilson & Schooler, supra note
67, at 191 (suggesting such an effect as one possible explanation for the study’s data). Of course, we can
alert lawmakers to this danger as well (unless doing so simply compounds the problem, see supra note 167).
But lawmakers will then have to ponder how to make decisions about how to make decisions about how to
make decisions, and we face an infinite regress.
170. The parable of the centipede comes to mind:
The centipede was happy, quite,
Until the frog for fun
Said, “Pray which foot comes after which,”
Which wrought his mind to such a pitch
He lay distracted in the ditch,
Considering how to run.
A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT ANDMODERN SOURCES
151 (H.L. Mencken ed., Alfred A. Knopf 6th ed. 1960) (anonymous).