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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.


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