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62 Mercer L. Rev. 989 (2010-2011)
Ten Legal Dissonances

handle is hein.journals/mercer62 and id is 999 raw text is: Ten Legal Dissonances by Morris B. Hoffman' 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 * State Trial Judge, Denver, Colorado. Research Fellow, Gruter Institute for Law and Behavioral Research. Member, John D. and Catherine T. MacArthur Foundation Law and Neuroscience Project. The views expressed in this Article do not reflect the views of my judicial colleagues, the MacArthur Foundation, or the Gruter Institute. This Article is based on my presentation at a Symposium, The Brain Sciences in the Courtroom, hosted by the Mercer University, Walter F. George School of Law (Oct. 22, 2010). I thank Professor Theodore Y. Blumoff and the staff of the Mercer Law Review. 1. Jack W. Brehm, Postdecision Changes in the Desirability of Alternatives, 52 J. AB. & Soc. PSYCHOL. 384, 384 (1956). One of the seminal cognitive dissonance experiments was conducted by Jack Brehm in 1956. He asked female subjects to rate the desirability of eight different household appliances. He then randomly picked two appliances for each subject and invited the subject to take one of the two appliances home as a gift. He then asked the same subjects to re-rate the same eight appliances. The appliance they chose to take home rose dramatically in their rankings, while the rejected appliance fell dramatically. Id. at 384-87. The cognitive dissonance explanation of these results is that when the subject chooses one appliance over another, the very binary nature of this choice is dissonant with the fact that the rejected appliance also has some good features. Once we pick the better of the two, we seem to resolve the dissonance of the choice by convincing ourselves the better was the best and the less good was the worst. 989

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