Crowdsourcing bleg – getting lawyers to think creatively

By skepticlawyer

Law is a conservative profession. There is a reason why a large number of us still dress in clothes associated with the 18th century, and it isn’t because barristers’, advocates’ and judges’ kit flatters anyone, male or female, fat or thin. It’s because, in the law, when it ain’t broke, lawyers are disinclined to fix it.

That this has been the common sense of the profession for a very long time is something of which our lawyer readers would be well aware, right down to the clothing issue: Ulpian once commented that the only people in Rome in his day (2nd century AD) who wore the national dress (toga for men, palla and stola for women) were priestesses, victorious generals… and lawyers.

Some things never change.

However, getting stuck in a cognitive rut all day every day isn’t good for anyone, no matter how much conservatism is necessary in a given profession. To that end, Club Troppo’s Ken Parish (who, as you may be aware, is both a very fine lawyer and legal academic) is trying to crowdsource some innovative ‘anti-cognitive bias’ seminars for students at his work. To my mind, I’ve always thought that part of a good legal education is gaining an understanding of why conservatism works in law, but not in other areas (scientific research, perhaps?).

Anyway, here’s Ken’s request:

Nicholas Gruen’s post about Einstellung (a person’s predisposition to solve a given problem in a specific manner even though there are “better” or more appropriate methods of solving it) has given me an idea.  I would like to devise a couple of seminars for undergraduate Law students to be delivered as part of the subject Jurisprudence that I am next teaching at CDU in semester 2 2012 (so there’s plenty of time to work out how to do it).

When you consider obstacles to rational thinking and problem-solving  like Einstellung, “framing” as enunciated by people like Kahnemann and Tversky, confirmation bias, and Jonathan Haidt’s “social intuition” model of moral decision-making, it’s pretty clear that much of what we usually believe to be genuinely reflective, critical and analytical thinking, both on our own part and by others, is actually much less considered and rational than we might imagine.

I have in mind a couple of seminars that would explain the basics of each of these research approaches to cognitive biases or shortcomings.  We would also have students undertake versions of some of the surveys that led to these research findings.

However, what I’m also wondering is whether there are any well accepted practical techniques for diagnosing and correcting such cognitive biases in ourselves, other than the obvious but difficult one of attempting to adopt a skeptical stance in interrogating one’s own thought processes, especially when dealing with a question likely to arouse strong emotions?  And what useful indicators might exist to tell us when to engage in that sort of careful skeptical reflection about our own motives, assumptions and thought processes?  Heuristics and habit are unavoidable and useful behaviours.  None of us has the time or energy to reflect carefully and skeptically on every decision we make in our daily lives, and in most cases repeating behaviour that worked previously is both efficient and sensible.  Are there any reliable guides for picking when that might not be so?

Any hints or observations on how best to run seminars like this would be gratefully received e.g. Patrick noted that his law firm runs training programs where they examine cognitive phenomena like framing.

The closest I’ve ever come to running a session designed to take (in this case) first year law students out of their comfort zone (I’m not sure it addressed cognitive bias) was an exercise based on ideas first developed by F. A. Hayek and John Rawls. First, I gave students this quotation from Hayek (from Law, Legislation and Liberty):

Although we must endeavour to make society good in the sense that we shall like to live in it, we cannot make it good in the sense that it will behave morally.

I then divided them into groups of four and asked them to design a society (with legal system) they would like to live in, but that if the society magically came into existence, they would not have any control over the status they would have in that society — it would be allocated randomly (by what I referred to as their ‘law tutor’s magic bucket’). When it came to the magic bucket, I focussed on status and income. This was in part because I wanted to bring out the difference between legal regimes that are based on status (eg, Shariah) and legal systems based on contract (the common law). Occasionally I’d get a Civilian coming through on the Erasmus program who was aware of Roman law’s transition from status to contract, which enlivened things considerably. I also wanted to force students to think about the difference having control over an attribute (eg, religion, occupation) and having no control over an attribute (sex, sexual orientation, race) made in their calculation.

Once the societies had been designed by the different groups of students, they all had to traipse past my ‘magic bucket’, where they selected a card randomly with a status written on it. I made sure that (a) there were enough cards to go around, and (b) the different statuses were statistically realistic: ie, 49% of the cards were male and 51% female, 5% were gay (in addition to assigned sex), 10% were receiving incomes at or below the minimum wage, or in the top 10% etc etc (in addition to assigned sex and sexual orientation), 5% were black or mixed race (also in addition…), 20% were committed members of a monotheistic religion (in addition to…). They then went back to their groups and decided (based on their allocated ‘bucket position’) whether they wanted to tweak the society they’d designed (and in what way) or whether they wanted to keep it as is.

Needless to say, the results (which I collated anonymously) were interesting. Lots of males suddenly became pro-abortion. Lots of people didn’t want to live in the same area as people of a different religion (but not race), which I found intriguing. I got loud complaints from one student when he turned up a card that had both ‘gay’ and ‘Muslim’ on it (I was assured this was impossible, natch).

I do recommend reading Ken’s links (especially the material by Jonathan Haidt, which more than anything I have ever read, convinced me that the world’s different religions produce very different moralities). It was Haidt’s insights that allowed me to portray convincingly (in Bring Laws & Gods) a situation of moral clash where the small, conquered civilisation, Roman occupied Judaea, had values that would be familiar to modern US religious conservatives on homosexuality and abortion, but the big, powerful civilisations nearby (one, Greece, with ‘soft power’, and the other, Rome, with ‘hard power’) did not share those values: rather, the opposite. As Haidt observes:

We found that conservatives moralized sexual issues more than liberals, and that they were more likely to become “morally dumbfounded” while trying to explain themselves. But the differences were largest on homosexuality — an issue in the culture war — and they were much smaller for issues of consensual incest.

For a Roman, the morality reflex would have been completely reversed: all modern laws — even common law ones — that evince horror at consanguinity are Roman in origin. All modern laws against homosexuality are derived, ultimately, from Judaism.

If you’ve got any ideas, comments, etc, leave them here, or over at Club Troppo.


  1. Henry2
    Posted April 28, 2011 at 9:45 am | Permalink

    Hi folks,

    I would like to introduce you to the concept of an issue tree. It is not my invention but the invention of a chap named David Wojick.
    I have copied his own introduction of it from another place and within that is his publication of access to his work.

    More technically, the logical structure is tree like. I discovered this general structure, which holds for all issues, in 1973, and called it the Issue Tree. I have a textbook on issue trees (written in 1975) —

    Every node in the tree is a separate statement, objection or question. The structure begins with a top node statement that raises the issue. …

    The structure is “tree” like because each statement (or claim) typically has several objections and/or questions that address it, while each objection and question in turn has several responses, and so on. If the average number of responses at each node is three then with just 10 levels we get about 100,000 nodes (3 to the 10th power), with almost 60,000 at the 10th layer. ….

    There are many distinct sub-issues within the tree. This is where the contradictory arguments come from. By the same token, [adversaries] each point to those arguments that best support their cause. Most importantly there is no way to accurately summarize this structure except in general terms.



  2. Posted April 28, 2011 at 10:18 am | Permalink

    “gaining an understanding of why conservatism works in law”

    A contested view. And I’m not noting that to pick or disagree on the view, but rather to observe that there is a self-referential aspect to the way law digs rather narrowly into ruts.

    I think generally there is far too little theoretical analysis in legal studies, and I know most law students don’t like jurisprudence (perhaps that’s part of the problem). In my experience students who came across from more intellectual (& less ‘functional’) areas like literature or history usually took far more creative and interesting positions in essays.

    I would have liked a deeper grounding in the origins of legal thought, as well as at the other end the critical and comparative analyses people have undertaken.

    I’ve learned over time that you can learn from some of the more far fetched critical theorists without endorsing their sprawling mindset or hypothesis-conclusion reasoning.


  3. Posted April 28, 2011 at 10:20 am | Permalink

    …. And I’ve learned not to throw the baby out with the bathwater and to appreciate many of the conservative institutions embedded within law. No better example than the removal then re-instigation of gowns in the Australian family courts…

  4. Posted April 28, 2011 at 2:30 pm | Permalink

    That’s a fascinating point, [email protected], and something I’d forgotten. If I recall correctly ‘narrative’ pleadings were abandoned at the same time, mainly because litigants had been filing novels… So the Family Court went back to Bullen & Leake (or other pleading book of choice, I’ve never worked in Family).

  5. Posted April 28, 2011 at 2:56 pm | Permalink

    I watch my first years with amusement as they start to think like lawyers…

    We are the Borg, you will be assimilated 🙂

  6. Posted April 28, 2011 at 2:59 pm | Permalink

    There is also argument mapping. In the category of ‘markets in everything’, there is even a consultancy/software producer which provides such services and software.

  7. Posted April 28, 2011 at 5:37 pm | Permalink

    Lorenzo @6: funny but true. Because I had already studied and worked before coming to law, I can remember the sensation that went with having my brain ‘rewired for law’. It was not always pleasant, either.

    I’ve noticed the same thing (on a smaller scale) hopping across from common law to civil law. It is all very well and good (and comforting) to note that the two systems tend to finish up close together (or even on the same square), but dealing with the different starting positions can be eyewateringly frustrating.

  8. Posted April 28, 2011 at 6:46 pm | Permalink

    ‘Rewiring’ sounds like what happened when I learnt declarative programming (SQL) after having much experience in procedural programming languages.

    The Einstellung effect seems to describe something that happens to me quite a bit, when after I’ve finished a piece of work, look back and think “why didn’t I do that the other way?”. With the endless methods of solving problems it’s not always efficient to rationally or even consciously consider them all, sometimes you just have to go with what you know will work even if it won’t be the best solution. It comes down to a trade off between the time/energy/cost of considering alternatives with the cost of suboptimal outcome, which intrinsically will be a ‘gut’ decision and have inherent biases against mental effort of changing thought patterns. Overcoming it would appear to require a humble and self critical character, although formalising techniques would undoubtedly help.

  9. Jacques Chester
    Posted April 29, 2011 at 6:08 am | Permalink

    Alan Perlis’s 19th epigram: “A language that doesn’t affect the way you think about programming, is not worth knowing.”

  10. Posted April 29, 2011 at 6:56 am | Permalink

    Your reference to scientific research made me remember Kuhn’s “Structure of Scientific Revolutions”. “Normal science” is the term used for scientific work conducted within the prevailing paradigm. It seems to me that, although there are revolutions in science, much energy is devoted to such normal science.

    On the other hand, there is a known problem with scientific literature. Studies tending to confirm the paradigm are less likely to be published than studies tending to show some new facet of, or a question about, the paradigm. But statistically such outcomes (ie studies throwing doubt upon the paradigm) are bound to occur. This might be thought to suggest science is not a conservative activity. But this potential weakness is dealt with by the need for repetition (and more fundamentamentally, repeatablility) of the experiment, before the paradigm can shift.

    My memory of Kuhn and indeed Popper has faded a good deal, and I wonder if this thinking has in fact been overtaken in the 2 decades since I read this literature.

  11. Mr T
    Posted April 30, 2011 at 8:06 am | Permalink

    What a fantastic exercise. Reminded me of “Blue Eyes”.

    So much discourse today is made from positions formed out of people’s status, religion and political upbringing.

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