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

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