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Abstract

Scientists have long recognized two distinct forms of human thought. “Type 1” reasoning is unconscious, intuitive, and specializes in finding complex patterns. It is typically associated with the aesthetic emotion that John Keats called “beauty.” “Type 2” reasoning is conscious, articulable, and deductive. Scholars usually assume that legal reasoning is entirely Type 2. However, critics from Holmes to Posner have protested that unconscious and intuitive judgments are at least comparably important. This Article takes the conjecture seriously by asking what science can add to our understanding of how lawyers and judges interpret legal texts. The analysis is overdue. Humanities scholars have long invoked findings from cognitive psychology, brain imaging, and neural network theory to argue that postmodern interpretations that ignore texts in favor of politics and cultural explanations are hopelessly incomplete. Similar arguments should be a fortiori stronger in law, where judges and scholars routinely stress the detailed wording of texts. The Article begins by reviewing previous attempts to apply literary theory to legal texts. We argue that the main failing of this literature is that it says little or nothing about how judges and advocates choose between competing legal interpretations. Section II argues that the best way to fill this gap is to ask what scientists have learned about the brain. This includes the fundamental insight that most human thought processes rely on both Type 1 and Type 2 methods. The Article also documents the surprising cognitive psychology result that Type 1 judgments show significant universality, i.e. that humans who study subjects for long periods often make similar choices without regard to the societies they were born into. Section III extends these arguments to law by arguing that legal judgment frequently turns on the brain’s Type 1 pattern recognition machinery. The next two Sections build on this foundation to construct an explicit theory of how Type 1 thinking enters into legal reasoning and outcomes. Section IV begins by reviewing nineteenth century theories that claimed a leading role for intuitive reasoning in public policy. Section V updates these theories to accommodate the relatively weak statistical correlations that psychologists have documented, arguing that modern court systems amplify these signals in approximately determinate ways. It also explains why court systems that emphasize close textual analysis are able to resist erosion from competing incentives like cronyism and judicial activism. Section VI builds on these theory insights to suggest specific policy prescriptions.

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