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44 Loy. U. Chi. L.J. 1377 (2012-2013)
What Kahneman Means for Lawyers: Some Reflections on Thinking, Fast and Slow

handle is hein.journals/luclj44 and id is 1423 raw text is: ESSAY What Kahneman Means for Lawyers: Some Reflections on Thinking, Fast and Slow Charles W. Murdock* and Barry Sullivan** INTRODUCTION As academic lawyers, we are meant to extol rational thinking. After all, one of the main purposes of law school is to enable students to think like a lawyer, meaning logically, rationally, and unencumbered by emotion or irrelevant considerations. Law and economics is similar-it is predicated upon the premise that economic man acts rationally and consistently. In the case of law and economics, of course, acting rationally also means acting to increase utility. But these models do not always reflect the reality of human life. Aristotle famously emphasized that man is a rational animal.1 Aristotle, however, also understood that human beings are not moved by logic alone; that different kinds of subjects are susceptible to different kinds of proof and can be known with differing degrees of certainty; that different audiences are persuaded by different kinds of arguments; and that one who wishes to persuade must be mindful, among other things, of who his audience is.2 Aristotle was interested in how people think * Professor of Law and Loyola Faculty Scholar, Loyola University Chicago School of Law. ** Professor of Law and Cooney & Conway Chair in Advocacy, Loyola University Chicago School of Law; Arthur Cox Visiting Research Fellow, School of Law, Trinity College Dublin. 1. See ARISTOTLE, THE POLITICS OF ARISTOTLE 6 (Ernest Barker ed., 1958) (explaining that, while animals can make sounds to express pleasure and pain, man alone among the animals is furnished with the faculty of language, which allows men to declare what is advantageous and the reverse . . . and to declare what is just and what is unjust). See also Robert Renehan, The Greek Anthropocentric View of Man, 85 HARV. STUD. 1N CLASSICAL PHILOLOGY 239, 239-40 (1981) (detailing the history of the idea of man as a rational animal). Aristotle would not have disagreed with Jonathan Swift's emendation that man is a creature capax rationis, or capable of reason. See Letter from Jonathan Swift to Alexander Pope (Sept. 29, 1725), available at http:// www.ourcivilisation.com/smartboard/shop/swifl/letters/chap2.htm. 2. ARISTOTLE, THE ART OF RHETORIC 140-41 (Hugh Lawson-Tancred ed., 1991) (But since the objective of rhetoric is judgment (since men give judgment on political issues and a court case is a judgment), we must have regard not only to the speech's being demonstrative, but also to establishing the speaker himself as of a certain type and bringing the giver ofjudgment into a 1377

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