This is the second part of a three-part blog. You will need to read the first part for this segment to make sense. See Part One of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man.
Doing the Right Things for the Wrong Reasons
Are you a die-hard rationalist and demand more proof that the Reasonable Man is a myth? More evidence? Then listen to Dan Ariely’s Doing The Right Things for The Wrong Reasons. Professor Ariely talks about more of his experiments. They show how immediate, tangible, emotions and concrete facts are a much more powerful motivator than all abstract knowledge. This means that one sanctions case invoking fear will do much more to encourage cooperation than a thousand law review articles. In my experience judges that threaten harsh punishment, that are known not to tolerate discovery misconduct, tend to have fewer disputes. Now we know why. Fear is a more powerful motivator than reason. For some people a good glass of wine is a powerful motivator too.
Professor Ariely’s testimony in this video examines the big gap between everyone’s knowledge of what they should be doing, and what they actually are doing. The truth is, we often do not act reasonably. There are many other more powerful forces at work. One of the most important is environment, and thus my earlier comments on impressive court rooms, wigs, courtly conduct, and the like.
In the second half of his testimony Dan Ariely started to share some of the solutions he has come up with to these problems, ways to trick yourself and others into doing the right thing. One such motivator is public recognition, pride. Remember the Prius. So how about Cooperation awards of lawyers? Proportionality awards for judges, etc. Let’s award a whole lot of gold, silver and especially bronze medals. I am serious about this awards and recognition proposal. If you have any interest in funding such awards, or otherwise being involved, please let me know. This would be a good opportunity for vendors in the legal space, especially e-discovery vendors.
Mere intellectual appeals to change behavior are almost useless. Proclamations included. You have to persuade the whole human, and that requires addressing emotions and many other subconscious factors. That requires far more than abstract, knowledge-based writings.
The Power of Emotions and the Myth of Reasoned Behavior
The power of emotions, and immediate gratification, should never be underestimated. This includes the positive motivators, like praise and recognition. An active judiciary can do much more to impact reasonable, ethical conduct than all appeals to reason. Judges need to be in your face, with both criticism and praise, stick and carrot. The motivations need to be immediate and real, not abstract and future oriented. See eg. Victor Stanley and the impact of Judge Grimm’s threats of immediate imprisonment of Pappas, the ultimate hide-the-ball litigant. Only that last jail contempt order slowed the games.
This all reminds me of Judge Waxse’s quip that lawyers are like elementary particles, they change when observed (by judges). He has found that lawyers are more inclined to cooperate simply by including a possibility that a judge might someday watch a video of their behavior. Maybe we should require that all lawyer-to-lawyer communications be taped? Maybe we should triple the number of judges and give them all sensitivity training? Who knows? But the research shows that all manner of alternatives like that would be more successful than mere appeals to reason alone.
This all makes me wonder why I even bother to continue to write, but then again, you may have noticed that I try to include non-rational appeals in my writing, such as images and the great irrational motivator of humor. Humor is an elusive emotion to reach, but well worth the effort. It is difficult to resist the ideas of anyone who makes you laugh. Personally, I refuse to emulate anyone who does not at least make me smile. If they make me laugh out loud, well, I will dig in deep to try to understand them and their ideas.
Why else do you think I quote Jason R. Baron so much and like to present with him? He is always amusing, on and off stage. Even his arcane intellectual references can be funny; depends on the delivery. That is amazing when you consider that he is usually presenting on records management, now lately called information governance (apparently an attempt to make the topic seem vaguely interesting). They say that a smart comic can make even the reading of a phone book seem funny.
Attend some of my events with Jason at LegalTech and see for yourself. We are bound to at least make you smile. I promise to talk about killer robots, while Jason explains how AI will soon change information governance. Who knows, in the future maybe even the federal government will stop printing and filing emails as paper. But I digress.
Law is Like Economics:
Both Are Still Based on an Irrational Reliance on Reason
As you have seen from the videos, Dan Ariely is not only witty, but also a psychologist and an economist. He has one PhD in Psychology and another in Business Administration. He is also an author of a number of books that explain his works to the general reader, including the best seller: Predictably Irrational: The Hidden Forces That Shape Our Decisions.
Dan evaluates the implications of his irrationality findings in Psychology on the field of Economics. So too are many other pundits in the field. See eg. Post-Rational Economic Man, and Exploring the Post-Rational 21st Century. Ariely and others have amassed a growing body of evidence that humans are not rational machines. Yet most economists, much like most lawyers, do not believe that. They still believe that people make rational decisions. For instance, that purchases are based on reason alone. See Rational Choice Theory. That is the basis of classic economic theory, and since that presumption is wrong, so is the theory. Economics is now struggling with the development of new theories based on the way people really act. Dan is a leader of that movement, which he calls Behavioral Economics.
Learning a little about Dan’s insights and proposals to reform economic theories, and make them more realistic, and empirically based, can provide insights into the Law and reforms we should make. Surely we can do better than propose more videotapes of lawyers, in your face judges, bibles and oaths, solemn court reporters, and British style ceremonial conduct. But these are a start.
More fundamentally, we need to consider how we should speak of legal negligence in the future. We need to stop referring to whether an act is reasonable, and instead speak of acceptability, with reason just one of several factors to consider in evaluating acceptable behavior. That is what call, for lack of a better term, Holistic Jurisprudence. More on that later. Perhaps some law professors and judges are already thinking and writing about this, and I am not aware of their writings. (If they are, or you are, please let me know.) If not, then what are we waiting for? The evidence of innate irrationally based, yet acceptable, behavior, is strong. That is our everyday reality. So why do we use a measure of acceptable conduct that does not mirror reality? Legal theory needs to change as much as economic theory, and so too does legal practice.
Robots and Neuroscience?
I know what you are thinking. Maybe the answer is simply to turn our justice system over to robots programmed to make rational decisions. They will not suffer from innate irrationality like our judges do. (Yes, even judges are human and thus even judges suffer from the same cognitive disorders, same irrational drivers, that other humans do). Rational machines could also be programmed to fairly consider the innate irrationality of humans. We could create super robojudges by using active machine learning. They could receive training in just-decision-making by our top judges. Imagine, for instance, the wisdom and wit of Judge Facciola programmed into an AI entity. The input from our top judges would thereby, in theory at least, live forever. The experience and intelligence of our best judges would then be available to all litigants, not just the lucky few who appear before them. This puts a while new positive spin onto the Ghost in the Machine image.
The AI enhanced robojudges would, of course, be far more than mere rational machines. They would be trained by our legal experts to render judgments based on the Whole Man, one that actually exists, and not the legal fiction of the Reasonable Man. They would be programmed in a post-rational manner following models of real human behavior of acceptable conduct. (Our best human judges and lawyers already do that anyway, even if the jurisprudence theory says otherwise.) The day will come when many litigants will prefer smart, well-trained robots to serve as judges to evaluate acceptable conduct, especially when there are good human appeals judges to oversee the process.
It is inevitable that we will use artificial intelligence and big data in some way to reform the judicial system, to make it more effective. It has already happened in document review. Its application to the bench and judicial decision-making is also inevitable.
AI and big data will change the way judicial decisions are made, but robojudges? No. That may be the endgame, but I do not think we are ready for that, yet. Judge Facciola’s job is safe, even if his law clerk’s job is not. Unless, of course, Ray Kurzweil is right about the Singularity coming soon, then all bets are off. But Kurzweil is probably wrong about how fast AI will advance, and so I do not see this anything like this happening in the first half of this century. Computers now all have human programmers and programming errors. Who do you think would be designing the robojudges’ technology? Do you really want to replace our judges with machines like that?
No, that is not The answer (at least not yet), but it may be part of the answer. The use of AI enhanced tools in the law, such as what we call predictive coding for document review, is just beginning. It will continue and expand into many other legal activities. Very soon many more types of lawyers in addition to contract review lawyers will need to retool in order to stay employed. Their tasks will be automated, and they will be out of work. At the same time new employment positions will open for those involved in the new technologies. The jobs that open up will require greater skills, intellect, empathy, leadership, creativity and imagination. They will require uniquely human attributes way beyond the programming of any robots, now and perhaps forever.
I do not know exactly how it will play out, but, even if our judges remain human, new advanced technologies will necessarily be part of all future legal reforms. Many of the technologies are probably still unknown and thus impossible to project. But some will be based on existing technologies, just significantly improved.
Perhaps that will include active machine learning and AI based law clerks for judges. It is not hard to imagine a judge’s consideration of an AI enhanced suggested view of the case. After all, they already do this based on their clerk’s views. I suspect judicial clerks will be replaced way before the judges themselves. Judges need to be enhanced with better computers, not replaced by them.
To take a more mundane example than robots and AI, I suspect that lie detection technologies will soon advance enough to be of greater assistance to the Law. How about acceptably intrusive truth-compelling technologies? I can easily imagine neural nets with electronic brain monitors built into “truth hats.” Witnesses would be required to wear the truth-indicating hats and give the attorneys, judges and juries more and better insights into their testimony. Not only intentional lies could be revealed, but strength of recollection, areas of brain accessed, etc. This would not have to be dispositive, but suggestive. This could provide us with something more to evaluate credibility than raw instinct and intuition, as important as these faculties are.
We should be looking for all kinds of ways to bring the recent incredible advances in Neuroscience into the justice system. This is not futuristic science fiction, nor Losey’s over-active imagination. It is already happening. Many neuroscientists are looking into lie detection and other possible neuroscience applications in the Law. See eg Harvard’s Center for Law, Brain and Behavior and its program on Lie Detection & the Neuroscience of Deception.
END OF PART TWO.
Part three will follow next Sunday as I pack for LegalTech.