Inside the Mind of an Attorney

Why is a robin more a "bird" than a penguin? Why is George Clooney more a "bachelor" than the Pope? Why do people routinely make predictions that violate the logic of probability theory? Categorization and prediction are the essence of the law and the lawyer's trade. Recent advances in cognitive science make understanding these processes easier, as professor Steven L. Winter explains in his new book, "A Clearing in the Forest: Law, Life and the Mind."

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“A Clearing in the Forest: Law, Life and the Mind” by Steven L. Winter (University of Chicago Press, 440 pages, $38) Why is a robin more a “bird” than a penguin? Why is George Clooney more a “bachelor” than the Pope? Why do people routinely and, across cultures, make predictions that violate the logic of probability theory? Categorization and prediction are the essence of the law and the lawyer’s trade, and our understanding of these processes can be greatly enhanced by recent advances in cognitive science, the study of how the mind actually works. Professor Steven L. Winter has been writing about cognitive science and its impact on legal reasoning for almost 15 years, so he is uniquely qualified to introduce and explain the concepts and literature in his highly recommended new book, “A Clearing in the Forest: Law, Life and the Mind.” The early chapters of the book are essential for what follows, but will be hard going for anyone who is not already familiar with the language and concepts of cognitive theory. Cognitive theory supposes that human understanding and thought depend upon “[t]he kinds of bodies that we have and the ways in which those bodies interact with our environment.” The brain does not work like a computer. It is analog, not digital, and information is coded over multiple neurons organized into neural networks that are, in turn, connected to other networks. As a result, the brain is “primarily associative and adaptive rather than oppositional and truth conditional.” Imagination is not a “cognitive wild card,” rather it is embodied in the organic structure of the brain and operates in orderly and predictable ways. There are obvious evolutionary advantages for this. Human interaction with the environment involves so much information that it “would overwhelm one’s cognitive resources if it were necessary to recall this information consciously before it could be used.” “Idealized cognitive models,” or ICMs, are subconsciously coded cultural concepts that can be accessed without thinking. “Radial categories” are central models with extensions that, though related to the central rule in some fashion, nevertheless cannot be generated by a rule. Recent advances demonstrate that such categories are not passive objects of thought, but are the essence of reasoning itself. The book really takes off in Chapter Five, after the underlying concepts have been explained. Professor Winter explores why good stories work. Narratives “are the trajectories plotted upon material reality by our imaginations” and are therefore comprehensible only against an elaborate cognitive background. People can communicate only because their bodies interact with the environment in similar ways and these interactions give rise to shared radial categories and ICMs that can be used to create meaning. Narrative and argument are “different cases of the same pattern”; the effectiveness of both depends upon these shared background concepts. Subsequent chapters provide further insights into the relationship between imagination and law. Seemingly conflicting lines of precedent involving the right to counsel are really outgrowths of the radial categories “that are systemically misunderstood and distorted by the attempt to dissect them into standard analytical categories.” The seeming conflicts are not arbitrary, but are grounded in the Anglo-American model for an adversarial criminal trial. To be effective, rules must conform to social norms. “A rule cannot work as a rule unless it already reflects the normatively loaded understandings of those who are expected to obey it.” Moreover, it is impossible for a rule to be complete or self-defining. “As long as we treat categories as rigid little boxes, any set of boxes we devise will either be too few to do life justice, or be too many to be workable.” Cognitive theory contributes powerfully to understanding argument and persuasion. Persuasion is a function “not of soundness of its relational mapping but of the degree to which it accords with our understanding … of the world.” Reasoning by analogy “is actually the process of radial categorization by means of ICMs. Reasoning by analogy, in other words, is an ordinary mode of category extension.” The effectiveness of particular analogies depends, not upon its logical soundness, but rather upon its persuasiveness — its comportment with pre-existing ICMs. Thus, for example, although a dissent in INS v. Chadha is analytically sound, it does not comport with the majority’s ICM of “legislative action.” The justice’s analogy fails to persuade, not because it is wrong, but because “it is too unconventional to register on the majority’s conceptual radar.” Although the dogmas of original intent and strict interpretation may be meaningless, judges are still not unrestrained free agents. Judges are restricted by their biology, their experience in historical time and, most importantly, their ability to persuade other judges and the public. Decisions reflect the “radial categories, prototype effects, compositional structure, motivation, framing, and other gestalt processes” of the judges’ culture and experience. Moreover, to persuade others a decision or line of argument must conform to the intended audience’s ICMs. This constraint was explicitly recognized, with surprising candor, by a plurality of the Supreme Court in Planned Parenthood v. Casey: “the Court’s legitimacy depends on making legally principled decisions under circumstances in which the principled character is sufficiently plausible to be accepted by the Nation.” Winter demonstrates with his new tools what his intellectual forbearers, Oliver Wendell Holmes and Karl Llewellyn, merely suggested: Regularity in law derives more from the imaginative processes than from rationalistic logic or rules. Our understanding of the law can be improved by using analytical tools from the emerging study of the mind. Winter’s insights are cause for celebration. His book, no less than the emerging science, shows that “[t]here is something genuinely glorious about the irrepressibly imaginative, creative, and fecund quality of human rationality.” Phil Schatz is a member of Wrobel, Markham & Schatz.

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