All,
I'm responding to the thread started by Don Boren about facts and
law.  Several posts express concern that while students can
conclude that facts are associated with laws, they can't reason
why.  This distinction between "associating" versus "reasoning" is
much deeper, much more important, than it appears on the surface.
It is also, I think, a place where the ALSB can make distinctive
contributions to education.  Below is a coarse summary (3 typed
pages long) of my thoughts/readings related to the fact/law issue.
 
1.  Evolutionary psychologists claim that our minds were adapted to
survive in the pre-historic environment of 2 million years ago.
(Cosmides, 1989)  In that environment, when we saw a bush in the
jungle shake (a fact), we fled, fearing a tiger might be behind it
(a conclusion).  It was adaptive then to respond *speedily,* to
respond *out of proportion to the evidence* (a tiger probably
wasn't there), to form inaccurate conclusions when they increase
the long term chances for survival. (Plotkin, 1994)
     Adaptation to the hunter-gatherer world has produced humans
who generally use *association*, not *reasoning.* (Margolis, 1989)
Association is a *quick* way to get to a *conclusion.*  Association
is also often inaccurate in ways that promoted survival in
prehistoric times.  In contrast, *reasoning* is slow but more
systematically accurate.
     We are built to associate in the "fact-conclusion" mode; we
don't easily think in a "fact, *reason,* conclusion" mode.  So when
we ask our students to give *reasons why* the facts show a
violation of the law, we are asking them to do something unfamiliar
(to use reasons).  Worse, we are asking them to do the familiar
(get to a conclusion) in an unfamiliar way (using slow reason
instead of fast association).  In these situations they often
associate and then use the words Hunter's mentioned as surrogates
for reasoning; they say, "in my opinion" or "Its my belief that
..." and claim they are reasoning.   The quick association is also
why so many jurors form opinions after opening arguments instead of
waiting for the evidence.  Once the belief is formed, we know that
the believe will systematically ignore evidence in conflict with it
and focus on evidence consistent with it.  (Bandura, 1986)
 
 
2.  Law school education is distinctive.  Its arguable that,
through about 30 intense, unusually demanding, graduate courses we
learned only 3 major things.  They are 1) legal rules (e.g. the
rules of contracts), 2) factual analysis (using existing facts to
infer new facts), and 3) legal analysis (applying a rule of law to
facts and to new, varying, facts).  Note that the legal rules
changed from course to course (from contracts to torts) so legal
analysis and factual analysis are the things that remained somewhat
constant, were most repeated, through most of the three years.
Also notice that factual analysis is a part of legal analysis.  So
legal education is almost the only place where skill in using
reason to deal with facts is *really drilled* into students.  Given
the amount of time we spent to "get it," it shouldn't be surprising
that our students have a hard time "getting it."  It takes time to
learn to reason about facts.  It takes repeated practice to
overcome the inclination to inaccurately associate.
     While reasoning is slower (and more accurate), I think its
more adapted to the reality of the contemporary world.  Associating
a Bosnian as the enemy is easy.  Reasoning that the Bosnian is a
human being too, is more difficult.  So investing in this legal
skill may be the antidote to the evolutionary inclinations to
merely associate, inclinations which seem now to plague humanity.
Markets don't usually reward those who quickly come to the same
conclusion to which everyone else quickly came.  Markets *do*
reward those who slowly come to different and more accurate
conclusions.  Today the stock market would probably reward the
person claiming that there isn't a tiger behind every bush, or it
would reward one who sought additional evidence about whether there
was one there or not.  So I conclude that parts of legal education
counter the survival biases that are no longer adaptive.
 
 
3.  Scholars working in diverse fields confirm different parts of
this association vs. reasoning picture.  Neurosurgeons have
determined that the associational process as our basic way of
thinking.  (Damesio, 1993)  Association is also a major feature of
emotions such as moods. (Bandura, 1986) Traditional psychologists
have identified other processes which share one or all of these 3
the key features of associations.  These features of other
processes are: 1) they let us *conclude quickly,*  2) even if we
are *inaccurate,*  3) as long as we *err in the direction of
prehistoric survival.*
     Herbert Simon's bounded rationality does this with speed and
systematic inaccuracy.  Leon Festinger's rationalization in the
face of cognitive dissonance does this with speed, inaccuracy,
perhaps in the direction of survival in a group.  Group think does
this with speed, inaccuracy, with clear survival value for group
members.  (Janis, 1972) Paranoia does this with speed, inaccuracy,
and clear bias toward individual survival.  Solomon Ache's
conformity to group pressure does this on all three features.
(Larsen, 1990)  Aron Beck has developed a substitute for
psychanalysis based on part on helping patients see factual reality
more clearly.  (Beck, 1976)  Kahnaman & Tverski's work shows this
and so does "belief perseverance."  Thomas Kuhn's "paradigm wars"
support speed, inaccuracy, perhaps survival in a group.  It is a
theme, not before articulated in this fashion (I think), of much of
psychology and philosophy of science.  The evidence suggests that
association's features often undermine human effectiveness.  Skill
in reasoning about facts seems to be at least a partial antidote.
 
 
4.  Philosophers keep pointing, although obliquely, to the ability
to do the "fact, reason, conclusion" type of thinking (instead of
mere associating) as the key to moving humanity forward.  Jurgen
Habermas says that understanding others *is* possible (many
Europeans think shared understanding is impossible), when we can
see the reasons others use in connecting facts to conclusions.
Kohlberg's initial, and perhaps most fundamental insight was that
moral character is revealed by our reasons rather than by our
conclusion.  Moral growth can be viewed as the use of increasingly
more adequate reasons.  Rawls work on reflective equilibrium was a
way of refining our reasons.  These scholars keep suggesting that
skill in the use of reason plays a hugh role in moving humanity
forward.  Unfortunately, we don't teach this skill--in a meaningful
way--anywhere but in law school; even there we teaching in a
somewhat casual manner.
 
5.  Another evolutionary bias supports obedience to authority. This
is the evolutionary requisite for quick conclusions about group
hunting and to the stability required for group social life and
sexual monogamy.  But the world has changed, even recently.  The
obedient organizational man of the 1950's is no longer the one
reaping the greatest rewards; instead its the entrepreneur, people
such as Bill Gates.  The organization man historically looked *up*-
-to an authority--to tell him what to do or what is right.  The
entrepreneur looks *out*--to factual reality--to figure out what
will work and what won't.  As the industrial structure of the world
continues down the path toward more, smaller, organizations, and as
the rate of change increases, this outward looking ability will
become increasingly more valuable while looking to authority will
become less valued.  Yet education largely trains students to look
to authority; very little of it is concerned with independently
figuring out factual reality.  Legal education is the exception.
 
6.  The thoughts on topics 1 to 5 have led me to a couple of
radical conclusions.  First, its enormously important for us to
carefully pick the skills we teach.  I've concluded that certain
legal skills are more socially important than such a useful skill
as algebra.  That makes topics like net present value, the
marketing concept, double entry book keeping, Maslow's hierarchy of
needs, and GNP calculations really pale in comparison.  More ... I
think those traditional business topics become socially meaningful
*only after* the skill in factual analysis is developed.  That's
not happening now and that's a flaw in business education--and
education in general.
     Second, Csikszentmihalyi, the former chair of psychology at
Chicago, argues powerfully that humans are now able to control,
through education, their own evolution.  He says that we need to be
more careful in choosing educational objective and lays out
complicated standards for choosing based on evolutionary success.
When I read him, I thought perhaps optimistically, that some of the
skills developed in legal education fit his standards better than
anything else.  But I'm also pessimistic; I fear these posts are
just small sounds, with little fury, signifying nothing  ...  that
nothing will change ...  that big chunks of our professional lives
will, with the passage of time, count as nothing ... Yet this issue
seems ... [dare I be blunt] ... more important than anything I've
ever seen in legal scholarship.
 
 
Ed Conry
[log in to unmask]
 
 
 
                              Bibliography
 
 
1.  ALBERT BANDERA, SOCIAL FOUNDATIONS OF THOUGHT AND ACTION at 337 (1986).
In a despondent mood, people interpret events negatively and recall
unpleasantness easily; in a positive mood, people view matters
positively and recall positive experiences more easily.
 
2.  AARON BECK, COGNITIVE THERAPY (1976).
 
3.  L. COSMIDES, The Logic of Social Exchange: Has Natural Selection
Shaped How Humans Reason?  31 COGNITION 187 (1989).  She  writes:
 
     Our species spent over 99% of its evolutionary history as
     Pleistocene hunter-gatherers ... agriculture first appeared
     less than 10,000 years ago.  Ten thousand years in not a long
     enough for much evolutionary change to have occurred, given
     the long human generation time; thus our cognitive mechanisms
     should be adapted to the hunter-gather mode of life, and not
     to the twentieth century industrialized world.
 
Orstein writes along similar lines:
 
     The mind evolved great breadth, but it is shallow, for it
     performs quick and dirty sketches of the world.  This
     rough-and-ready perception of reality enabled our
     ancestors to survive better.  The mind did not evolve to
     ... be truly rational.
 
4.  MIHALY CSIKSZENTMIHALYI, THE EVOLVING SELF (1993).
 
5.  ANTONIO DAMASIO, DESCARTES' ERROR, Emotion, Reason and the Human
Brain, 136-138 (1994)
 
6.  JURGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION (1984).
 
7.  IRVING JANIS, VICTIMS OF GROUPTHINK: A Psychological Study of
Foreign-Policy Decisions and Fiascoes (1972)
 
8.  Knud Larsen, The Asch Conformity Experiment: Replication and
Transhistorical Comparisons 5 J. SOCIAL BEHAVIOR AND PERSONALITY 163
(1990).
9.  HOWARD MARGOLIS, THINKING, PATTERNS AND COGNITION (1989)
 
10.  HENRY PLOTKIN, DARWIN MACHINES AND THE NATURE OF KNOWLEDGE (1994).
Plotkin writes:
 
     All normal humans are rational in the general sense of having
     the ability to reason.  But though rational, there is a large
     body of evidence that shows we are not very logical,
     consistent or informed in our reasoning abilities.  These
     deviations away from ideal or "good" thinking practices take
     a number of forms.