Imagination and Choice

It is the rare person who can manage to publish top flight scholarship while serving as associate dean for academic affairs. But we have learned to expect uncommon accomplishments from Anne Dailey, and so I know no one is surprised by this winter’s publication of her Imagination and Choice, 35 Law and Social Inquiry 175 – 210 (2010). This imaginative (adjective intended) article provides a needed supplement to recent developments in legal analysis built upon cognitive theory. Please join me in congratulating her on the piece and in wishing her a very happy birthday (August 9).

The problems Anne addresses are longstanding. American law’s profound commitments to markets and democracy are commonly defended with references to individual choice. Deals between individuals are said to produce worthy economic outcomes as a result of considered judgments made by trading partners. Decisions of elected officials are said to represent worthy political outcomes because political leaders owe their positions to the accumulated choices of the citizenry. Everyone understands, however, that not every individual choice deserves the same level of respect. In earlier eras, this problem was represented most clearly with examples involving duress. Few would advocate enforcing a contract made at the point of a gun. The problem that ultimately generates Anne’s article is that every choice involves some elements of duress, and thus legal theorists face a vexing dilemma. If we acknowledge a more accurate view of human decision-making that respects limits on free will, how can we avoid losing the beauty of a system based on individual choice?

There aren’t many alternatives. One approach is simply to downplay the existence of constraints and valorize choices actually made by the affected parties. An equally unpalatable alternative is to emphasize all the ways in which individual decisions are not truly the product of unfettered choice. No matter how much truth lies in this view, few Americans would rush to embrace a position whose implications involved a shift toward top-down (some might say parentalistic) approaches to economic and political decision-making. Accordingly, during the last ten years, particular emphasis has fallen upon a third way. Cognitive theorists have productively devoted considerable energy to identifying predictable ways in which human decision-making is likely to be flawed. To use one example, if we know people are likely to be unduly optimistic about their prospects, perhaps we shouldn’t allow them to waive insurance on their rental car. The beauty of a systematic study of familiar cognitive errors is that it suggests a series of policy responses that involve minor tinkering with outcomes. Certainly this is less threatening than any global doubt about a system build upon individual choice. As was clear from Anne and Peter Siegelman’s earlier review of Dan Ariely’s book and a similar volume by Sunstein and Thaler, Anne has great respect for this cognitive research.

In this article, however, Anne sounds a cautionary note. She explains with great sensitivity how many causes of flawed decisionmaking run far deeper than cognitive errors. In particular, she illustrates the complex, dynamic, and sometimes self-destructive forces that psychoanalysts believe often drive human behavior. She follows her explanation with an extended example involving pre-nuptial agreements. Mere counseling about options aimed at “debiasing” people entering marriage might help counterbalance a cognitive error toward over optimism about the permanence of the marriage. But if, as Anne convincingly argues, many people enter marriage with ambivalence and repression of conflicting feelings, no amount of premarital cognitive counseling is likely to be very helpful. Accordingly, Anne suggests instead that courts be open to post divorce substantive review of the terms of pre-nuptial agreements.

Of course, as Anne is fully aware, her reintroduction of a psychoanalytic perspective risks reproducing the problems for which the cognitive approach represented the third way. Once observers acknowledge that people often act in self-destructive ways for reasons they don’t understand and cannot control, it’s hard to identify those situations in which respecting individual choice should remain the paramount goal of any legal system. Anne’s article, however, makes a strong case that failing to acknowledge these sorts of human failings is simply to deny reality. In a Freudian world, a little denial may not always be a bad thing, but certainly Anne provides considerable food for thought on how to find the right balance. I look forward to her next installments in her developing work on this very important topic. Bravo!