The law is extraordinarily good at operationalizing our folk psychology. Law is, indeed, common sense writ large. As we have learned more, however, about human nature and how the brain instantiates that nature, it is becoming equally clear that there are some fissures in this picture, some discrete aspects of our presumed natures, that the law consistently gets terribly wrong. In this essay, I briefly discuss ten common and wide-ranging legal dissonances. Although I will touch on some suggested patches, by and large, this Article is a descriptive, rather than prescriptive, exercise.
First, some apologies about nomenclature. By using the word "dissonance," I do not mean to suggest any analogy to what psychologists call "cognitive dissonance." Cognitive dissonance is a well-described phenomenon in which it appears the brain sometimes tries to reconcile conflicting information by producing self-deluding beliefs. The dissonances discussed in this Article are probably more accurately called "decision errors."' I will stick, however, with "dissonances" because the deeper point is that they are all examples of what Owen Jones has called "time-shifted rationality"-behaviors with which evolution has armed us but that, because of changes in our environment, no longer serve us as well as they once did. For the rationalists out there who believe that reason is God, the law is an exercise in pure reason, and we are largely rational beings whose ordinary common sense will seldom lead us astray, this Article begins with three well-known examples from psychology and probability that show our cognitive powers and common sense are not always what they are cracked up to be.
Hoffman, Morris B.
"Ten Legal Dissonances,"
Mercer Law Review: Vol. 62:
3, Article 11.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol62/iss3/11