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VOLUME XXII 2013 NUMBER 1
© 2013 Journal of Law and Policy
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JOURNAL OF LAW AND POLICY
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VOLUME XXII 2013 No. 1
CONTENTS
Symposium
THE IMPACT OF COGNITIVE BIAS ON PERSUASION AND
WRITING STRATEGIES
Introduction by Marilyn R. Walter, J.D. and Elizabeth Fajans, Ph.D................. 1
FOUR REASONS TO TEACH PSYCHOLOGY TO LEGAL WRITING
STUDENTS
Lawrence M. Solan, J.D., Ph.D............................................................................ 7
THE SOCIOLOGICAL AND COGNITIVE DIMENSIONS OF POLICY-
BASED PERSUASION
Michael R. Smith, J.D. ....................................................................................... 35
WHAT COGNITIVE DISSONANCE TELLS US ABOUT TONE IN
PERSUASION
Kathryn Stanchi, J.D.......................................................................................... 93
THE GOOD FIGHT: THE EGOCENTRIC BIAS, THE AVERSION TO
COGNITIVE DISSONANCE, AND AMERICAN CRIMINAL LAW
Daniel S. Medwed, J.D......................................................................................................135
METAPHOR AND ANALOGY: THE SUN AND MOON OF LEGAL
PERSUASION
Linda L. Berger, J.D. ....................................................................................... 147
A LAWYER’S HIDDEN PERSUADER: GENRE BIAS AND HOW IT
SHAPES LEGAL TEXTS BY CONSTRAINING WRITERS’ CHOICES
AND INFLUENCING READERS’ PERCEPTIONS
Bret Rappaport, J.D......................................................................................... 197

Notes and Comments
WHY NOT STRIP TO SAVE YOUR HOME? PROHIBITION ON
CHAPTER 7 STRIP OFF MAKES NO CENTS FOR DEBTORS OR
CREDITORS
Brendan Buschman .......................................................................................... 267
“MY ENGLISH IS GOOD ENOUGH” FOR SAN LUIS: ADOPTING A
TWO-PRONGED APPROACH FOR ARIZONA’S ENGLISH FLUENCY
REQUIREMENTS FOR CANDIDATES FOR PUBLIC OFFICE
Maeve Callagy ................................................................................................. 305
THROWING THE E-BOOK AT PUBLISHERS: WHAT THE APPLE
CASE TELLS US ABOUT ANTITRUST LAW
Jared Killeen.................................................................................................... 341
THE MORAL INTERCEPTION OF ORAL CONTRACEPTION:
POTENTIAL CONSTITUTIONAL CLAIMS AGAINST THE FDA’S
PRESCRIPTION REQUIREMENT FOR A PROGESTIN-ONLY BIRTH
CONTROL PILL
Scout Richters .................................................................................................. 393
NOT IN MY FRONT YARD: FREEDOM OF SPEECH AND STATE
ACTION IN NEW YORK CITY’S PRIVATELY OWNED PUBLIC
SPACES
Stephen Tower.................................................................................................. 433

1
THE IMPACT OF COGNITIVE BIAS ON
PERSUASION AND WRITING STRATEGIES
INTRODUCTION
Marilyn R. Walter and Elizabeth Fajans†
Research into the psychology of decision-making has
demonstrated that people rely on mental shortcuts to ease the
burden of processing complex and ambiguous information. These
shortcuts, known as heuristics and biases, sometimes lead to faulty
judgments because they are naturalistic and intuitive (involving,
for example, “gut instincts” and personal experience) rather than
rational consideration of the information presented.
The legal profession has explored the role of cognitive biases
in many domains, ranging from their influence on jury and
judiciary decision-making to their impact on negotiation. This
symposium, The Impact of Cognitive Bias on Persuasion and
Writing Strategies, refocused the discussion by looking at the
function and role of cognitive bias in legal writing. It explored both
the persuasive power and the related ethical challenges of
cognitive bias in this realm, with an emphasis on improving legal
writing and legal writing strategies. The panels, which were
moderated by Marilyn Walter and Elizabeth Fajans, exemplified
the myriad ways cognitive bias influences audience.
Lawrence Solan’s opening paper, Four Reasons to Teach
Psychology to Legal Writing Students, explains that the heuristics
we use to reason efficiently and to good ends can also lead to
errors in reasoning and judgment because we all have
psychological propensities—cognitive biases—that undermine
* Marilyn R. Walter is a Professor of Law and Director of the Writing Program
at Brooklyn Law School.
†
Elizabeth Fajans is Associate Professor of Legal Writing and Writing
Specialist at Brooklyn Law School.

2 JOURNAL OF LAW AND POLICY
logical reasoning. He argues that teaching students about the
cognitive propensities that interfere with effective communication
may help them to understand the underlying grounds for their
teachers’ criticisms and suggestions, to master basic legal writing
skills, and to assist them in transferring those skills to other legal
tasks.
Solan focuses on four biases that play out in legal documents.
Knowledge of these, he argues, enables lawyers to adjust their
writing, and, within ethical bounds, to stave off or exploit them.
These include the psychological propensity to appreciate plain,
simple writing; the confirmation bias, which is a tendency to seek
and value conclusions already reached at the expense of contrary
evidence; the correspondence bias, which is an inclination to
overemphasize the importance of a person’s character and to
underemphasize the effect of context on conduct; and the bias
blind spot, which make it harder for us to recognize our own biases
than to recognize the biases of others. Solan concludes with some
suggestions on how to introduce these concepts in the legal writing
classroom with exercises that will motivate students to internalize
their lessons.
Michael R. Smith argues in The Sociological and Cognitive
Dimensions of Policy-based Persuasion that familiarity with the
mental processes involved in policy-based persuasion enables
advocates to produce more effective policy arguments and to
appreciate the differences between policy arguments and deductive
rule-based reasoning. Because policy arguments advocate for a
new rule advancing or protecting a social value, the different or
competing social values of judges can lead to more varied
decisions from those based on deductive reasoning. They thus
require greater awareness of how cognitive processes affect policy-
based decision-making.
Smith explains four general cognitive processes relevant to
policy-based persuasion and, within each of the four, explores
specific cognitive strategies legal advocates can employ. . The first
process is fear of future loss. According to Smith, policy
arguments based on protecting a future social value are more
effective than policy arguments applying to the case currently
before the court as well as to future cases. Cognitive phenomena
like the uncertainty effect and status quo bias indicate that

INTRODUCTION 3
arguments that warn of future loss are more persuasive than those
warning of immediate impact because the uncertainty that future
predictions are imbued with increases fear. Second, policy-based
persuasion is more likely to succeed if advocates prove the high
probability of asserted consequences. They can effectively do so
by using relevant non-legal materials and by exploiting cognitive
processes like the conjunctive fallacy and the availability heuristic.
Third, policy arguments depend on establishing the importance of
the social value at stake. Several cognitive phenomena—loss
aversion, the endowment effect, and the negative bias—suggest an
advocate can enhance a decision-maker’s perceived importance of
a value by phrasing arguments in terms of avoiding loss instead of
acquiring a gain. The final cognitive process relevant to policy
persuasion is memorability, requiring the persuader to use
rhetorical strategies that highlight a point and render an argument
more memorable to the reader.
In What Cognitive Dissonance Tells Us about Tone in
Persuasion, Kathryn Stanchi explains that advocacy often puts
people in a state of cognitive dissonance, an uncomfortable
psychological state where ambiguity, contradiction, and
inconsistency cause people’s deeply held beliefs to clash. To
eliminate that dissonance, that conflict, people respond either by
changing their beliefs or behaviors, by rationalizing their beliefs or
behavior, or by re-conceiving the situation or reality—that is,
changing the narrative—to make it comport with their beliefs.
Knowledge about these reactions to cognitive dissonance, she
notes, can be put to rhetorical advantage if advocates are aware of
what situations create dissonance and decide whether avoiding or
resolving dissonance is most beneficial to the client. Thus, for
example, an aggressive, hard-line message that creates dissonance
may backfire because the recipient may think the argument is too
one-sided to be true and begin looking for flaws. In this situation, it
is better to avoid the dissonance and to take a more measured
approach. Stanchi concludes that cognitive dissonance studies
suggest that strategies that ease a person toward accepting a
controversial claim are the surest way of dispelling cognitive
discomfort and achieving the advocate’s goal.
Daniel Medwed views cognitive bias in a different context in
his essay The Good Fight: The Egocentric Bias, the Aversion to

Cognitive Dissonance and American Criminal Law. He first
acknowledges that the phrase “cognitive bias” often has negative
connotations. But he then suggests that for the criminal law
practitioner, two interrelated cognitive biases—the egocentric bias
and the aversion to cognitive dissonance—could be potential
assets. He begins by describing the egocentric bias, in which
people interpret information and envision themselves in ways that
promote a positive self-image, regardless of whether that image is
warranted. However, the need to maintain this positive self-image
may lead people to minimize evidence that would detract from that
image and create cognitive dissonance. Medwed illustrates this
theory by focusing on the need of both defense attorneys and
prosecutors to validate or even idealize their roles in the criminal
process. This validation both creates a psychological shell that
protects against indignities and builds a layer of confidence that
empowers lawyers to convince others of the legitimacy of their
positions. Medwed sees this occurring as lawyers develop a theory
of the case, determine which crime to charge at the plea bargaining
stage, and present their case at trial – all important stages of the
criminal justice system.
In Metaphor and Analogy: The Sun and Moon of Legal
Persuasion, Linda Berger suggests that novel characterizations and
metaphors may compete with entrenched stereotypes (cognitive
biases) and conventional categories and make the recipient open to
new perspectives and narratives. This insight can aid lawyers in
making conscious choices about persuasion. Establishing a
foundation for this argument, Berger first notes that according to
social cognition researchers, we perceive and interpret new
information by following a process of schematic cognition, in
which the new data is analogized to the knowledge structures
embedded in our memories. Researchers have divided the next
step, the decision-making process, into intuitive or analytic
systems. Some researchers, like Daniel Kahneman, view intuition
as often leading to decisions marked by mistakes and
overconfidence. Others, represented by the experimental
psychologist Gary Klein, point out the value of intuition during
decision-making because it alerts the problem solver to an
analogous pattern. Berger then applies these principles to the
processing of analogy and metaphor, contrasting the work of

INTRODUCTION 5
psychologist Dedre Gentner with that of linguist George Lakoff
and philosopher Mark Johnson. For purposes of legal persuasion,
she concludes that while conventional metaphors involve only the
retrieval of automatic categories, interpretation of novel metaphors
may prompt the reader to create meaning and prompt a new way of
seeing.
Berger then notes the differences between analogy and
metaphor. Analogy, she states, has an explicit literal predictive or
explanatory effect, e.g., a corporation is like a person. Metaphors
are somewhat different. They vary more in structure than do
analogies, may involve an ambiguous and more non-literal use of
language, and are more associated with emotion and expression
than analogy. Applied to legal persuasion, since novel metaphors
may cause the reader to see things in a different way, they are
particularly useful to a lawyer in constructing a theory of the case,
in framing what the audience perceives, and in channeling the
audience’s interpretation of an event. Finally, Berger draws upon
several case studies to illustrate how novel characterizations and
metaphors may provide alternative schemas or structures to
counter the effects of stereotypes, to prompt reflective comparison
rather than automatic categorization within a particular context,
and to activate a persuasive master story.
In the final article, A Lawyer’s Hidden Persuader: Genre Bias,
Bret Rappaport suggests that genre be considered a kind of
cognitive bias. Like other cognitive biases, genre in the legal
context may skew rational thought in two ways. It constrains the
texts that lawyers and judges use in specific circumstances
(criminal lawyers, patent lawyers, environmental lawyers, divorce
judges), and it influences readers. Indeed, Rappaport reasons that
the work of both lawyers and judges is limited by a highly
structured set of conventions.
Applying these theories, Rappaport turns first to two
transactional document genres, patent applications and wills, to
show how these highly structured genres function in the real legal
world. For transactional documents, he recommends against never
altering genre conventions, since these documents must be
timeless, multi-purpose, and infinite. However, with persuasive
documents, and in particular the appellate brief—a litigation sub-
genre—he somewhat modifies his advice. Although he recognizes

the importance of reader expectations—here, the court— he
acknowledges that a compelling reason may at times justify the
risk of confounding reader expectations by breaking with
convention. He concludes by stating that lawyers who view law
and legal writing through the lens of genre bias will better
understand how legal texts are “conceived, received, and
perceived.”
The Impact of Cognitive Bias on Persuasion and Writing
Strategies took a valuable step towards encouraging the legal
community to becoming informed about the cognitive heuristics
and biases that invariably come into play when recipients read our
legal documents. Hopefully, the work of these symposium
panelists will motivate others to continue this critical dialogue.1
1
Michael Higdon also participated in the symposium.

7
FOUR REASONS TO TEACH
PSYCHOLOGY TO LEGAL WRITING
STUDENTS
Lawrence M. Solan*
I. INTRODUCTION
In 2002, Daniel Kahneman, a psychologist then teaching at
Princeton University, was awarded the Nobel Prize in Economics.1
Much of his distinguished work was co-authored with his late
colleague, Amos Tversky. Their seminal paper, Judgment Under
Uncertainty: Heuristics and Biases,2
has generated a huge progeny
of work, underlying the field of behavioral economics, and, as
applied to legal contexts, behavioral law and economics.3
The
fundamental premise is a simple one: people routinely use
intellectual shortcuts to simulate the results of logical reasoning,
saving time and reducing cognitive load.4
But the speed with
which we employ these rule-of-thumb approaches to everyday life,
often called heuristics in the literature, comes with a price.
* Don Forchelli Professor of Law and Director, Center for the Study of Law,
Language and Cognition, Brooklyn Law School. This paper is the result of
conversations with Marilyn Walter and Elizabeth Fajans, to whom I owe a debt
of gratitude. I also thank Julie Gainsburg and Sam Glucksberg for valuable
discussion about the psychological mechanisms discussed below. The research
for this essay was supported by a dean’s summer research stipend from
Brooklyn Law School.
1
The Sveriges Riskbank Prize in Economic Sciences in Memory of Alfred
Nobel 2002, NOBEL PRIZE, http://www.nobelprize.org/nobel_prizes/
economic-sciences/laureates/2002/ (last visited Oct. 12, 2013).
2
Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty:
Heuristics and Biases, 185 SCIENCE 1124 (1974).
3
A search of the legal database LEXIS shows more than 1,325 citations to
this article in law journals as of July 11, 2013.
4
Tversky & Kahneman, supra note 2.

Employing heuristics leads to systematic errors in judgment: Not
so many errors that we have reason to abandon the strategies in the
first place, but noticeable propensities to choose one approach over
others that could yield better-reasoned outcomes.5
These
propensities are called biases, which are the side effects of the
heuristics that we use so routinely and mostly to good ends.6
Both sides of the coin—the heuristics and the biases alike—
come into play in legal reasoning. To take one well-studied
example, “the endowment effect” has been demonstrated in a
variety of circumstances to show that people tend to value what
they have more than they value what they do not have but would
like to have.7
Thus, transactions, whether for goods, services, or
the resolution of disputes by settlement, become harder in these
circumstances. The person who must give something up is likely to
assign greater value to what she has than does the other party to the
deal. Understanding this bias, which is the flip side of the strategy
of holding on to what you already have, can empower mediators
and others to facilitate transactions, increasing efficiency in
commerce, and reducing transaction costs.
What does this have to do with teaching or learning legal
writing skills? To the extent that these heuristics and biases play
themselves out in contexts that generate legal documents, it would
be irresponsible for the writer not to adjust the content and style of
what he says to take into account what will most likely influence
the reader, while also overcoming his own propensity to reason
and/or to present information ineffectively. Whether the audience
is a judge, a client, a boss, or an opposing lawyer, maximum
attention to what is likely to have persuasive force is the writer’s
goal. Add to these audiences the writer’s own set of biases, which
5
See id.
6
Id. Daniel Kahneman outlines the theory in an accessible way in his book.
See generally DANIEL KAHNEMAN, THINKING, FAST AND SLOW (2011).
7
See, e.g., Daniel Kahneman et al., Experimental Tests of the Endowment
Effect and the Coase Theorum, 98 J. POL. ECON. 1325 (1990). Recent research
suggests that this effect is not uniform across circumstances and may not be the
result of a single preference. Thus, while it is a robust phenomenon, care must
be taken not to overstate it or to oversimplify its explanation. See Gregory Klass
& Kathryn Zieler, Against Endowment Theory: Experimental Economics and
Legal Scholarship, UCLA L. REV. (forthcoming 2014).

FOUR REASONS TO TEACH PSYCHOLOGY 9
should always be monitored closely, and it becomes clear that the
writer has a lot of psychology to keep in mind.
Fortunately, some of this psychology is relatively intuitive and
is already the subject of legal writing courses that never mention
advances in cognitive and social psychology. For example, this
essay later discusses the “confirmation bias,” the propensity to
seek out and value evidence that reinforces conclusions we have
already reached.8
Law students are already being taught to avoid
this temptation and to make sure that they answer the other side’s
arguments, whether in an initial brief or in a rebuttal.9
So why do
legal writing students need to be explicitly instructed in
overcoming this bias when they are being taught its substance
without any mention of psychological literature? I suggest two
answers to this question.
The first is purely pedagogical. Students are resistant to being
bossed around. Legal writing classes can be emotionally trying as
students are told quite specifically one thing after another that they
need to change in order to become even adequate legal writers. As
suggested below, teaching the psychology behind the command
that they take the other side’s arguments seriously helps to convert
the instructor from a boss to a person sharing valuable information
that can help the student.10
This, in turn, depersonalizes subsequent
criticism of the student’s work since everyone is starting from the
same baseline: the dangerous temptation to undervalue and thereby
ignore opposing views that the reader may find convincing.
The second answer is that an understanding of these
psychological processes adds a level of subtlety to the skills the
students acquire. They are not the only ones who suffer from
confirmation bias. We all do. Learning about this bias should
motivate the student—and subsequently the lawyer, we hope—to
scan the writing of others for signs that they, too, have failed to
take seriously enough convincing arguments, and to exploit this
failure to their clients’ ends. Moreover, it is neither pleasant nor
unusual to appear before a judge who simply does not like your
8
See Raymond S. Nickerson, Confirmation Bias: A Ubiquitous
Phenomenon in Many Guises, 2 REV. GEN. PSYCHOL. 175 (1998).
9
See infra notes 38–39 and accompanying text.
10
See infra Part III.A.

case right from the beginning. This does not mean that the judge
has made up his mind once and for all. It does mean, however, that
you will have counter the judge’s initial assessment in a manner
that is especially salient. After all, judges are human too. By
teaching students to understand the psychological phenomena that
underlie some of the basic strategies of good legal writing, legal
writing instructors may help students to internalize more of what
they learn in legal writing classes. This will make it more likely
that they will be able to transfer the skills to tasks performed in
their legal careers.
Part II of this essay briefly examines some relevant advances in
educational psychology and explores the benefits of teaching legal
writing students about heuristics and biases. Part III analyzes four
cognitive biases that grow out of strategies we use successfully in
our everyday lives and argues that the description of each of them
has a valuable place in the legal writing classroom. These are the
four reasons to which the title of this essay refers. In order, they
are: the bias toward concluding that people who write simply are
smarter; the confirmation bias discussed above; the
correspondence bias, which causes us to overstate the contribution
of a person’s character and to understate the context in which
people act as explanations of people’s actions; and the bias blind
spot, which prevents us from taking our own biases as seriously as
we do the biases of others. Part IV is a brief conclusion, which
makes particular recommendations to educators for including some
of the psychological research into their legal writing courses.
II. INTERNALLY MOTIVATED LEARNING
People tend to learn better when they are intrinsically
motivated than when they learn for the sake of pleasing others in
order to achieve external validation.11
What does it mean to have
learned “better?” Surely, if you tell a student that using simple,
straightforward language is likely to be more effective than using
11
See Edward L. Deci et al., Motivation and Education: The Self-
Determination Perspective, 26 EDUC. PSYCHOL. 325, 331–32 (1991); Richard
M. Ryan & Edward L. Deci, Intrinsic and Extrinsic Motivations: Classic
Definitions and New Directions, 25 CONTEMP. EDUC. PSYCHOL. 54, 54–59
(2000).

gobbledygook, the student will understand the concept more or less
regardless of how you convey it. That is an important first step.
What legal educators really care about, however, is not only that
students can take the directive and apply it to the writing
assignments in the course, but that they will later transfer their
success in completing the course assignments to the real world of
legal practice, and become good legal writers. After all, creating
good legal writers is why we care so much about having good legal
writing programs in law schools in the first place.
Educational psychologists refer to the process of acquiring the
skill that enables one to apply learned knowledge to new situations
as the “transfer of learning.”12
It is the key to successful
professional training. The key, in turn, to enabling the transfer is
for students to “learn with understanding.”13
Psychologist John
Bransford and his colleagues have shown that people are better
able to transfer what they have learned when they understand both
the concepts presented to them and the mechanisms that underlie
the concepts they have acquired. Simply memorizing the facts does
not effectively produce transfer.14
To illustrate, Bransford and his
colleague Daniel Schwartz found that university students were
better able to apply knowledge that they learned in a lecture when,
prior to the lecture, they had engaged in analyzing various
contrasting cases, than when prior to the lecture they had merely
read about the relevant phenomena.15
This is not to say that
educators should abandon teaching content in favor of how to find
content. Rather, Bransford’s point is that when people understand
what it is they are trying to do and why, it becomes more likely
that they will internalize the learning well enough to apply it to
new situations, and thus maximize the benefits of the work they
did learning the material in the first place.
12
NAT’L RESEARCH COUNCIL, COMM’N BEHAVIORAL & SOC. SCI., HOW
PEOPLE LEARN: BRAIN, MIND, EXPERIENCE, AND SCHOOL 51 (John Bransford et
al. eds., 2d ed. 2000).
13
Id. at 5, 16, 24.
14
See id. at 55–56; see also John D. Bransford & Daniel L. Schwartz,
Rethinking Transfer: A Simple Proposal with Multiple Implications, 24 REV.
RES. EDUC. 61, 77 (1999).
15
Daniel L. Schwartz & John D. Bransford, A Time for Telling, 16
COGNITION & INSTRUCTION 475 (1998).

Consistent with Bransford’s work, other researchers have
found that people learn better when they are internally motivated to
learn than when they learn for the sake of earning rewards and
avoiding punishment. Important among these psychological
contributions is the Self-Determination Theory, developed
principally by psychologists Edward L. Deci and Richard M.
Ryan.16
The concept is simple: “When intrinsically motivated a
person is moved to act for the fun or challenge entailed rather than
because of external prods, pressures, or rewards.”17
Studies
conducted by Deci and his colleagues show that internal
motivation produces better results not only in education, but in the
workplace as well.18
Research also focuses on the differences
among external motivational factors, some of which may be more
beneficial than others in learning environments,19
and on ways of
promoting the internalization of motivations that begin
externally.20
For example, fear of parental sanctions and a belief it
will make a student more likely to launch a career successfully are
both potential external motivations for doing one’s homework. The
latter motivation, though, is obviously more consistent with
building autonomy and more susceptible to internalization.21
The value of independent motivation has been tested in
research on legal education. Studies conducted by Kennon Sheldon
(a psychology professor) and Lawrence Krieger (a law professor)
demonstrate not only higher GPAs by first-year law students who
show higher measures of self-determination, but also that engaging
in activity because one is internally motivated to do so produces a
greater sense of well-being than doing something in response to
16
See Deci et al., supra note 11, at 325; Ryan & Deci, supra note 11, at 55.
17
Ryan & Deci, supra note 11, at 56.
18
See Marylène Gagné & Edward L. Deci, Self-Determination Theory and
Work Motivation, 26 J. ORGANIZATIONAL BEHAV. 331, 345–47 (2005) (reporting
on studies showing that when supervisors are trained to give workers a greater
sense of autonomy, the workers report greater job satisfaction and greater trust
in the organization for which they work).
19
Edward L. Deci, Effects of Externally Mediated Rewards on Internal
Motivation, 18 J. PERSONALITY & SOC. PSYCHOL. 105 (1971).
20
Id.
21
Ryan & Deci, supra note 11, at 60.

external motivation.22
Sheldon and Krieger find that law students
begin their legal education with as good a sense of well-being and
internal motivation as other college graduates.23
However, both
this sense of well-being and this measure of internal motivation
deteriorate during the first year of law school24
and more or less
remain at this depressed level throughout the remainder of law
school.25
Sheldon and Krieger’s studies further demonstrate a strong
negative correlation between the extent to which law students
reflect a sense of self-determination, of which internal motivation
plays a significant role, and the extent to which they demonstrate
negative physical and psychological symptoms. Notably, the
authors observe that this correlation “is consistent with much
previous self-determination theory research, which indicates that
people perform more persistently, flexibly, creatively, and
effectively when they act for intrinsic and self-determined
reasons.”26
The lessons from all of these studies are clear: When
we have the sense that we are in control of our lives, we feel better;
when our goals are more oriented toward promoting the values that
are meaningful to us, we learn better.
In the next section, this essay will show how psychological
research into heuristics and biases explains some basic tenets of
good legal writing and legal advocacy more generally. Teaching
the research that underlies these advocacy skills, even briefly, may
well have the effect of helping students to internalize the lessons,
making the students less resistant and more likely to apply what
they learn in the classroom and beyond.
22
Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education
Have Undermining Effects on Law Students? Evaluating Changes in Motivation,
Values, and Well-Being, 22 BEHAV. SCI. & L. 261, 261 (2004).
23
Id. at 271.
24
Id. at 272–74.
25
Id. at 274.
26
Id. at 281. Professor Emily Zimmerman makes reference to much of the
literature cited here, using it to develop “vitality” as a measurable state of mind
that produces more positive experience among law students. Id. For further
discussion of these findings, see Emily Zimmerman, An Interdisciplinary
Framework for Understanding and Cultivating Law Student Enthusiasm, 58
DEPAUL L. REV. 851, 884–92 (2009).

III. FOUR LESSONS OF PSYCHOLOGY TO TEACH TO LEGAL WRITING
STUDENTS
A. Learning to Write Simply and Understanding Why It Is
Important to Do So
One of the tasks of legal writing instruction is to convince
students to write clearly using simple, straightforward language. In
fact, Bryan Garner, a leading expert on legal writing and the editor
of Black’s Law Dictionary, goes so far as to call his text on legal
writing, Legal Writing in Plain English.27
There is no secret as to
why one should write in language that is clear and simple enough
to understand easily: Plain writing is more likely to accomplish the
goal of persuading the reader of the writer’s position. Legal writing
texts say as much, and attempt to convince students of this fact.28
Students are more likely to internalize the strategy of simple,
plain writing if they understand why they should employ that
strategy than if they adopt the strategy merely to get a good grade.
This pedagogical lesson follows directly from the literature
described in the previous section and is part of the intuitive arsenal
that effective teachers possess in any event. Yet students still need
to be convinced that simple writing is better writing, especially
when it comes down to small words being better than big ones.
High school students preparing for the SAT are often taught to
associate a large vocabulary with intelligence and success in
school. This lesson runs counter to the preference for
straightforward, simple writing. Prior to beginning their legal
education, some students have learned good writing skills in
27
BRYAN A. GARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITH
EXERCISES (2001).
28
See RICHARD K. NEUMANN, JR. & SHEILA SIMON, LEGAL WRITING 148
(2008); TERRILL POLLMAN ET AL., LEGAL WRITING: EXAMPLES &
EXPLANATIONS 294–300 (2011); HELENE S. SHAPO ET AL., WRITING AND
ANALYSIS IN THE LAW 229–44 (5th ed. 2008) (advising students to use syntax
that results in simple, straightforward sentence structure). Pollman et al. focus
on making writing more concise, but virtually all of their advice to students is to
shorten passages by making them simpler, both syntactically and with respect to
vocabulary.

college, while others have not.
Telling students that simple writing is more effective takes us
only part of the way toward internal motivation. It is far more
effective than commanding, as a matter of fiat, that students write
in a simple manner. But it still requires students to act because they
trust their teacher’s warning that a plain writing style will assist
them some time in the future. There is nothing wrong with trusting
one’s teacher, or for that matter, trusting Bryan Garner. But by
providing an introduction to the psychological mechanisms that
lead to people appreciating plain writing, legal writing instructors
can create a more direct link between the goal of training law
students to write clearly and persuasively on the one hand, and the
student’s motivation for achieving that goal, on the other.
Moreover, the psychology of appreciating simple writing is
interesting in its own right. Psychologist Daniel Oppenheimer has
published studies that explain the phenomenon in terms of
processing fluency.29
When a passage is more difficult to process
than we believe it should be, we react negatively to the author. In
one of the studies, graduate students were given three versions of
essays written for admission to the English Department graduate
program at Stanford University: the original essay, that essay made
more complex by substituting a longer word taken from a
thesaurus for every third content word in the essay (moderate
complexity), and the essay made even more complex by
substituting a longer word for every content word in the essay
(high complexity). A number of graduate school application essays
were used in this study. Below is one of the essays in all three
versions: I have highlighted the altered words in the moderate and
high complexity versions.
Original:
I want to go to Graduate School so that I can learn
to know literature well. I want to explore the shape
and the meaning of the novel and its literary
29
Daniel M. Oppenheimer, Consequences of Erudite Vernacular Utilized
Irrespective of Necessity: Problems with Using Long Words Needlessly, 20
APPLIED COGNITIVE PSYCHOL. 139 (2006).

antecedents. I want to understand what the novel
has meant in different literary periods, and what it is
likely to become. I want to explore its different
forms, realism, naturalism and other modes and the
Victorian and Modernist consciousness as they are
revealed.
Moderate complexity (every 3rd applicable word lengthened):
I want to go to Graduate School so that I can learn
to recognize literature well. I want to explore the
character and the meaning of the novel and its
literary antecedents. I desire to understand what the
novel has represented in different literary periods,
and what it is likely to become. I desire to explore
its different manners, realism, naturalism and other
modes, and the Victorian and Modernist
consciousness as they are revealed.
High complexity (every applicable word lengthened):
I desire to go to Graduate School so that I can learn
to recognize literature satisfactorily. I want to
investigate the character and the connotation of
the narrative and its literary antecedents. I desire
to comprehend what the narrative has
represented in numerous literary periods, and
what it is expected to become. I desire to
investigate its numerous manners, realism,
naturalism, and other approaches, and the
Victorian and Modernist consciousness as they are
discovered.30
Participants were asked to rate the comprehensibility of the
passages (each participant received only one version), to make a
judgment of admission (yes or no), and to indicate the level of
confidence in the admission decision (1–7). Admission decisions
30
Id. at 154–55 (emphasis added).

were then scored as ranging from definitely reject (-7) to definitely
accept (+7).31
The results are striking. Participants voted to accept the
applicant who wrote the original essay significantly more often
than the one who wrote the moderately complex essay, who was in
turn considered more worthy of admission than the author of the
highly complex version. Moreover, statistical analysis showed that
comprehensibility mediated both complexity (original, moderately
complex, highly complex) and decisions to admit or not admit. In
other words, the harder it is to understand a passage, the less we
think of the ability of the person writing it, and the more complex
the passage turns out to be.32
This, at least preliminarily, confirms
the hypothesis that processing fluency affects our reaction to
written texts.
These results were confirmed in another study in which
participants were asked to rate the intelligence of Ph.D. students on
a 1–7 scale based on the abstracts of their dissertations. They were
also asked to rate the difficulty of the passage, also on a 1–7 scale.
This time, however, instead of substituting complex language for
more simple language, Oppenheimer substituted shorter words for
longer words contained in the original abstract. Every word of nine
letters or more was replaced by the second-shortest word in the
Microsoft Word 2000 thesaurus listing for the longer word. The
results were similar. Those reading the simpler version thought that
the author was more intelligent (4.80 vs. 4.26).33
In yet another experiment, Oppenheimer presented participants
with one of two translations of a meditation by René Descartes that
they were not likely to have already seen. One was translated into
relatively simple English, while the other used a lot of big words.
Participants were asked to judge both the intelligence of the author
on a 1–7 scale, and the difficulty of the passage on a 1–7 scale.
Half the participants were told that the piece they read was written
by Descartes, the other half told that it came from an anonymous
author. The results: People rated the author of the simpler version
as more intelligent, whether or not they knew in advance that
31
Id. at 141.
32
Id. at 141–42.
33
Id. at 147.

Descartes was the author.34
What are the lessons for legal writing students?
1. The experiment based on graduate school
application essays shows that making language
more complex leads to people thinking less of
the writer. One may argue that the larger words,
taken from the thesaurus, were not all used
aptly; but
2. The experiment based on the dissertation
abstracts shows that using simpler words makes
the author seem more intelligent, even though
this time, it was the simpler language that might
not always be apt; and
3. Our opinions, even of famous people, rise and
fall depending on whether their writing seems
simple and straightforward.
One can argue that using small words is only part of plain,
simple writing, and that is true.35
But the larger message is clear
enough: People do not like to be made to struggle with the
language they read, and complex language reduces processing
fluency, making them struggle. Moreover, these facts are the
opposite of what we tend to believe. As Oppenheimer puts it:
[It] seems that people’s naive theories of fluency
tend to lead them to negatively associate complexity
and intelligence. This has some interesting
ramifications. The most straightforward of these is
that authors should avoid needless complexity. As
reported in the introduction of this paper, a vast
majority of Stanford students use a strategy of
complexity when writing papers and this is
34
On the 1–7 scale, 6.5 vs. 5.6 for those who knew the author was
Descartes, and 4.7 vs. 4.0 for those who were told that the author was an
anonymous writer. Id. at 144.
35
One may be concerned that the use of longer words is not an adequate
proxy for excessively complex writing styles, which often include convoluted
syntax and very lengthy sentences. The conclusion of this essay makes
suggestions to legal writing instructors who would like to make Oppenheimer’s
point through examples that are complex in ways other than word length. See
infra text accompanying notes 85–87.

undoubtedly true at campuses and businesses across
the country. However, this research shows that such
strategies tend to backfire. This finding could be
broadly applied to help people improve their
writing, and receive more positive evaluations of
their work.36
These lessons are not remote from what is taught right now.
Nonetheless, the research into educational psychology discussed
earlier in this essay suggests that legal writing students would
benefit from being made aware of the mechanisms that underlie the
mandate that they write simply. This would allow the students to
internalize the principles more strongly, perform better, and have
the satisfaction of learning for the sake of becoming part of a
community of writers who know what it means to work in a world
in which human frailty demands that we write clearly and
straightforwardly if we wish our ideas to influence others.
B. Overcoming the Confirmation Bias
Consider this terrible mistake that lawyers sometimes make:
Lawyers get so caught up in their clients’ positions that they
become unable to stand back and see what is reasonable in the
opposition’s argument. Then, when the lawyers finally see the
merits of the other side (if they ever do), it is too late. The judge
has ruled against their client for failure to rebut decent arguments
from the other side. The tendency to fall into this trap is the result
of our being biased in favor of confirming beliefs that we already
hold. This is, sensibly enough, called the confirmation bias.
Psychologist Raymond Nickerson describes it as follows:
People tend to seek information that they consider
supportive of favored hypotheses or existing beliefs
and to interpret information in ways that are partial
to those hypotheses or beliefs. Conversely, they
tend not to seek and perhaps even to avoid
information that would be considered
counterindicative with respect to those hypotheses
or beliefs and supportive of alternative
36
Oppenheimer, supra note 29, at 152.

possibilities.37
We all do this. We become overconfident that we are right
once we take a stand, even if we were open-minded to begin with.
That happens because we tend to close our minds to disconfirming
evidence.
Of course, legal writing experts tell students and lawyers to
take into account the position of the opposing party. Justice
Antonin Scalia and Bryan Garner put it in military terms: “No
general engages the enemy without a battle plan based in large part
on what the enemy is expected to do. Your case must take into
account the points the other side is likely to make.”38
A leading
text on trial advocacy also discusses the strategy of blunting the
opposition’s case in opening argument.39
This essay suggests that
if students are made aware of the mechanisms that underlie the
confirmation bias, they are likely to do a better job internalizing
the lesson they are taught and to transfer this knowledge to
situations beyond what they learn in the writing course.
Before discussing the likelihood of confirmation bias in
confrontational situations, consider this classic demonstration of
our propensity to focus on confirming evidence whether or not we
have any emotional or intellectual ties to the result. The task was
developed by British psychologist Peter Wason. Below is a
presentation of the task from an article that Wason co-authored
with his colleague Philip Johnson-Laird:40
You are presented with four cards showing,
respectively, “A,” “D,” “4,” “7,” and you know
from previous experience that every card, of which
these are a subset, has a letter on one side and a
number on the other side. You are then given this
rule about the four cards in front of you: If a card
has a vowel on one side, then it has an even number
on the other side. Next you are told: “Your task is to
say which of the cards you need to turn over in
37
Nickerson, supra note 8, at 177 (citation omitted).
38
ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART
OF PERSUADING JUDGES 10 (2008).
39
See THOMAS A. MAUET, TRIAL TECHNIQUES (9th ed. 2013).
40
P.N. Johnson-Laird & P.C. Wason, A Theoretical Analysis of Insight into
a Reasoning Task, 1 COGNITIVE PSYCHOL. 134 (1970).

order to find out whether the rule is true or false.”41
The correct answers are “A” and “7.” But that is not how most
people respond. Almost everyone gets the “A” right, but some
people choose “4” in addition to “A” and others stop with “A.”42
The reason is that turning over the A can tell you either that the
statement is true (if you get an even number) or false (if you get an
odd one). But turning over the “7” can only falsify the statement if
the other side contains a vowel. It cannot confirm the hypothesis
with a consonant. People tend to miss reasoning that can falsify a
theory but cannot confirm it.43
Now consider this experiment that more closely illustrates
confirmation bias in real-life situations. John Darley and Padgett
Gross video recorded a fourth-grade girl named Hannah seemingly
taking a standardized academic test.44
Before watching Hannah
take the test, half of the experimental participants watched a
sequence of her in a low-income urban area, while the other half
watched a sequence of her in a middle-class suburban setting. A
control group saw Hannah in one of these two settings but did not
watch her take the test. The test-taking sequence showed her
sometimes concentrating, sometimes distracted, and was intended
to be interpretable in various ways. Participants were then asked,
among other things, to assess Hannah’s grade level on the various
41
Id. at 134–35 (emphasis omitted). The cards pictured here are
downloaded from Google Images. The curious reader can see that there are
many versions of the set online, suggesting that this experiment is indeed very
famous.
42
Id. at 136. Ninety percent of participants chose the “A,” whether alone,
or in combination with other letters.
43
The “4” is a red herring. It looks like it can confirm the theory, but it
really cannot do so, because there the theory will hold whether there is a vowel
or a consonant on the other side.
44
John M. Darley & Paget H. Gross, A Hypothesis-Confirming Bias in
Labeling Effects, 44 J. PERSONALITY & SOC. PSYCHOL. 20 (1983).

subjects tested.
The results clearly demonstrate confirmation bias. The control
group that saw Hannah in one of two milieus but did not see her
take the test concluded that she was at a slightly higher grade level
when she was portrayed as middle class. Those seeing her take the
test, having been exposed to the middle-class Hannah, scored her a
full grade-level ahead of the working-class Hannah that the other
half of the participants watched.45
Again, there was only one film
of the test-taking. The results were a function of people confirming
their hypotheses about the relationship between social class and
educational achievement.
Confirmation bias has all kinds of legal ramifications, many of
which have grabbed the attention of legal academics.46
Below are
three basic lessons for first-year legal writing students.
First, it is essential that students learn to take opposing
arguments seriously and to counter them. This often requires them
to fight the tendency to discount counterarguments as weak, a
consequence of the confirmation bias.
Second, students being taught interviewing skills must learn to
head off the confirmation bias right from the beginning. It is not
that all clients are liars. Rather, it is that the client’s narrative is
often an incomplete and somewhat biased account of the facts,
largely because the client also discounts evidence that tends to
disconfirm the story.
Finally, just as confirmation bias leads to “groupthink” in
business settings, it leads to “groupthink” in litigation settings.47
45
Id. at 24.
46
See, e.g., Christopher R. Leslie, Rationality Analysis in Antitrust, 158 U.
PA. L. REV. 261 (2010) (antitrust); Barbara O’Brien, Prime Suspect: An
Examination of Factors that Aggravate and Counteract Confirmation Bias in
Criminal Investigations, 15 PSYCHOL. PUB. POL’Y & L. (2009) (criminal
procedure); Robert A. Prentice, The Case of the Irrational Auditor: A
Behavioral Insight into Securities Litigation, 95 NW. U. L. REV. 133 (2000)
(bias by auditors leading to securities fraud); D. Michael Risinger et al., The
Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden
Problems of Expectation and Suggestion, 90 CALIF. L. REV. 1 (2002) (scientific
evidence). There are many others. This is just a small taste of the application of
confirmation bias.
47
See Brett McDonnell & Daniel Schwarz, Adaptation and Resiliency in
Legal Systems: Regulatory Contrarians, 89 N.C. L. REV. 1629, 1639 (2011)

Litigation teams feed on badmouthing the other side to one
another, especially in a contentious litigation in which rude
conduct has developed. This tendency can have very detrimental
effects on the caliber of representation provided.
It is certainly not difficult to understand what it means to take
opposing views seriously, with or without learning about the
confirmation bias. But, consistent with the theme of this essay,
exposing students to the psychological mechanisms that could
inhibit effective writing (and advocacy more generally) may help
them to internalize the point more fully, and to have a better
chance of incorporating it into their sense of what it means to
advocate well from a very early stage in their careers.
C. Controlling the Correspondence Bias
It is bad form in advocacy to replace substantive argument
based on the facts and the law with ad hominem attacks on the
opposing party. Consider this federal appellate court’s reaction to a
prosecutor’s description of a pro se defendant as a “morally
bankrupt criminal:”48
That “argument” is, of course, neither relevant to
our inquiry, nor does it qualify as legal argument.
Rather, it is a gratuitous ad hominem attack that
detracts from the persuasiveness of the
government’s argument as well as the
professionalism of its presentation. We should not
have to remind officers of the court that such
personal comments have little place in an appellate
brief.49
The reporters are full of statements in which judges express
their irritation at this tactic. Whether or not they affect the result of
an individual case, judges routinely chastise lawyers for engaging
in such conduct.50
Yet there is something intuitively right about the
(noting that groupthink “can interact with and intensify confirmation bias” by
regulators).
48
Pazden v. Maurer, 424 F.3d 303, 317 n.16 (3d Cir. 2005).
49
Id.
50
For a few recent examples, see Sabella v. Sec’y of Dep’t of Health &
Human Servs., 86 Fed. Cl. 201 (2009); State v. Whitby, 365 S.W.3d 609, 614

notion that people will tend to think that a person acts in
conformity with his character, so that a bad person is more likely
to do the bad things he is accused of having done than is a good
person. Psychologists call the tendency to overemphasize the
extent to which conduct emanates from a person’s character and
underemphasize the effect of circumstances on conduct the
correspondence bias.51
In a classic experiment, psychologists Edward E. Jones and
Victor Harris showed participants an essay that either supported or
opposed then-Cuban president Fidel Castro.52
Half the participants
were told that the authors could take whichever position they
wished, the other half were told that the authors were assigned
positions by a debating coach. Both groups of subjects believed
that the authors’ true attitudes toward Castro were reflected in the
substance of the essay, although the effect was stronger when the
participants believed that the author had a choice in the matter.53
The message conveyed in the essays was that people who support
Castro do so because they personally approve of him, and people
who oppose Castro do so because they do not personally approve
of him, even when they are told that the positions taken in the
essays were assigned and had nothing to do with the authors’
attitudes.
Over the years, many studies have confirmed this phenomenon,
which, at one time, was called “the fundamental attribution
error.”54
The earlier name reflects the observation that people often
erroneously attribute behavior to the personality of the individual
and ignore the circumstances in which the behavior occurred.
(Mo. Ct. App. 2012); State v. McDaniel, 777 N.W.2d 739, 752 (Minn. 2010);
Hildebrandt v. Veneman, 233 F.R.D 183, 183 (D.D.C. 2005); Mapp v.
Burnham, 800 N.Y.S.2d 137, 147 (App. Div. 1st Dep’t 2005).
51
See Daniel T. Gilbert & Patrick S. Malone, The Correspondence Bias,
117 PSYCHOL. BULL. 21 (1995).
52
Edward. E. Jones & Victor A. Harris, The Attribution of Attitudes, 3 J.
EXPERIMENTAL SOC. PSYCHOL. 1 (1967).
53
Id. at 6.
54
Lee Ross, The Intuitive Psychologist and His Shortcomings: Distortions
in the Attribution Process, in 10 ADVANCES IN EXPERIMENTAL SOCIAL
PSYCHOLOGY 173, 183 (Leonard Berkowitz ed., 1977); Gilbert & Malone, supra
note 51, at 24–25.

Much social psychological research over almost half a century has
pointed toward the fact that people behave differently in different
social contexts without being aware that they do so. For example,
Darley and Latané’s 1968 studies examined the circumstances in
which a bystander is likely to rescue a person in distress.55
A
participant sat alone in a room with a headset and microphone,
having been informed that she was participating in a study of how
students react to the stress of college in an urban environment. The
experimenter told the participant that she and others would speak
in turn through their microphones and that they were isolated to
enable them to remain anonymous. In reality, however, there were
no other people, only tape recordings of others. In one condition,56
participants were told that five other individuals would be involved
in the discussion. In another, the lone participant was told that he
would be speaking with only one other person. A third group was
told that three individuals would be participating.
During the experiment, the participant heard a recording of a
person represented to be one of the other participants having a
simulated seizure. When participants thought they were part of a
group of six, only thirty-one percent of them left the room to tell
the experimenter of the seizure while it was still occurring. But
when they thought that the only other participant was the person
having the seizure, they attempted to intervene eighty-five percent
of the time.57
Those who thought they were one of three performed
in the middle.
Thus, the likelihood of rescue is largely a function of the
number of available rescuers. The more potential rescuers there are
the less the likelihood that any particular individual will come
forward. The situation drives our behavior. Yet if someone told me
that I would not likely step forward to help if I were in a room
hearing a person suffer a seizure, I would find that hard to believe.
I would believe that my character would drive me to, at the very
55
John M. Darley & Bibb Latané, Bystander Intervention in Emergencies:
Diffusion of Responsibility, 8 J. PERSONALITY & SOC. PSYCHOL. 377 (1968).
56
Professors John Darley and Bibb Latané conducted a great deal of work
on the question of bystander intervention, much of which would serve to
illustrate the point I make here. See BIBB LATANÉ & JOHN M. DARLEY, THE
UNRESPONSIVE BYSTANDER: WHY DOESN’T HE HELP? (1970).
57
Id. at 380.

least, ask for assistance. In other words, like just about everyone
else, I am subject to the correspondence bias. Similarly, in judging
others, only after the significance of the circumstances in which
they acted is explained to me can I replace my default assumption
that the participants’ character traits explain their behavior in these
studies, or what my own behavior would be in real life.
Like the confirmation bias, the correspondence bias has not
escaped legal writers. It has been used as an explanation for the
treatment of falsely convicted criminal defendants,58
cultural
differences that limit successful mediation,59
causation judgment in
tort law,60
and judgment about state of mind in securities fraud
litigation.61
Professor Jon Hanson and his colleagues have written a
series of articles to explain social phenomena ranging from obesity
to pornography.62
Why should legal writing students be taught about all of this?
The correspondence bias is pervasive and it affects the way one
interprets a piece of writing. Legal writing students should be
taught about the workings of the correspondence bias and how
both to stave it off and to take advantage of it within ethical
bounds. That is, students should understand that when they tell the
story of a legally relevant event, readers cannot help but care about
the character of the characters. Students need not straddle the line
between making inappropriate ad hominem remarks on the one
58
Adina M. Thompson et al., After Exoneration: An Investigation of
Stigma and Wrongfully-Convicted Persons, 35 ALB. L. REV. 1373 (2012).
59
Russell Korobkin, Psychological Impediments to Mediation Success:
Theory and Practice, 21 OHIO ST. J. ON DISP. RESOL. 281 (2006).
60
Neal R. Feigenson, The Rhetoric of Torts: How Advocates Help Jurors
Think About Causation, Reasonableness, and Responsibility, 47 HASTINGS L.J.
61 (1995).
61
Victor D. Quintanilla, (Mis)Judging Intent: The Fundamental Attribution
Error in Federal Securities Law, 7 N.Y.U. J.L. & BUS. 195 (2010).
62
See, e.g., Adam Benforado et al., Broken Scales: Obesity and Justice in
America, 53 EMORY L.J. 1645 (2004); Adam Benforado & Jon Hanson, The
Great Attributional Divide: How Divergent Views of Human Behavior are
Shaping Legal Policy, 57 EMORY L.J. 311 (2008); Jon Hanson and David
Yosifon, The Situational Character: A Critical Realist Perspective on the
Human Anima, 93 GEO. L.J. 1 (2004); Jon Hanson & David Yosifon, The
Situation: An Introduction to the Situational Character, Critical Realism, Power
Economics, and Deep Capture, 152 U. PA. L. REV. 129 (2003).

hand and ignoring human nature on the other. What they must
learn to do is to bring the characters in their narratives to life based
on how they frame the facts. In doing so, students must stay within
the record, while exploiting their readers’ tendencies to attribute
behavior to individual personality and character traits. Similar
strategies can be used to counteract opposing narratives intended to
exploit the correspondence bias to their clients’ disadvantage.
All of this has a bit of an odor. Is it unfair to take advantage of
one’s knowledge of human psychology to gain an advantage in the
litigation arena? Consider the criminal defense lawyer who
attempts to create reasonable doubt by using a false defense—the
creation of a narrative that the lawyer believes to be false, but that
is consistent with the evidence.63
Is it proper for lawyers to take
advantage of cognitive biases to create such a false narrative?
These are hard questions. Thus, discussion of the correspondence
bias should not only give students an opportunity to develop subtle
decision making in their writing but it should also create a very
useful place in the curriculum to discuss the relationship between
advocacy, candor, truth-seeking, and legal ethics.
D. We Are All Human, We Are All Biased
Students should be taught that no matter what their self-
impression may be, we are all subject to these biases. There is a
very interesting psychological literature on how we tend to
acknowledge cognitive biases in others but are blind to them in
ourselves. A few lessons from these writings would serve students
well.
In a series of studies, psychologist Emily Pronin and her
colleagues have demonstrated that people recognize the biases
discussed in this essay, but think that they are largely immune from
them or at least more immune from them than the average
63
For different perspectives on this practice, see Lawrence M. Solan,
Lawyers as Insincere (But Truthful) Actors,” 36 J. LEGAL PROF. 487 (2012). See
also MONROE FREEDMAN, LAWYERS’ ETHICS IN AN ADVERSARY SYSTEM 48
(1975); Carl Selinger, The “Law” on Lawyer Efforts to Discredit Truthful
Testimony, 46 OKLA. L. REV. 99 (1993); William H. Simon, The Ethics of
Criminal Defense, 91 MICH. L. REV. 1703, 1717–19 (1993).

person.64
Consider the following statement, which should resonate
with students and faculty alike:
Psychologists have claimed that people show a
“self-serving” tendency in the way they view their
academic or job performance. That is, they tend to
take credit for success but deny responsibility for
failure; they see their successes as the result of
personal qualities, like drive or ability, but their
failures as the result of external factors, like
unreasonable work requirements or inadequate
instruction.65
Students who participated in this study acknowledged their
susceptibility to this bias, but believed that they were less
susceptible than the average American,66
and less susceptible than
their classmates.67
Thus, we acknowledge our weaknesses, but still
conclude that each of us is above average when it comes to
overcoming cognitive bias.68
Why do we underestimate the extent of our bias blind spot?
Emily Pronin and Matthew Kugler explain it in part by referring to
“the introspection illusion.”69
When we think of the conduct of
others, we evaluate what they have done. But when we think of our
own conduct, we evaluate the history of the thinking that led us to
behave as we did. Harvard undergraduates participating in Pronin
and Kugler’s study first replicated the task of the study just
64
See Emily Pronin et al., The Bias Blind Spot: Perception of Bias in Self
and Others, 28 PERSONALITY & SOC. PSYCHOL. BULL. 369 (2002) [hereinafter
Pronin et al., The Bias Blind Spot].
65
Id. at 370 (citation omitted).
66
Id. at 371.
67
See id. at 371–72.
68
The “Better than Average Effect” is not simply an artifact of Garrison
Keeler’s fictional Lake Woebegone. It is actually a widely studied phenomenon.
See, e.g., Mark D. Alicke et al., Personal Contact, Individuation, and the Better-
than-Average Effect, 69 J. PERSONALITY & SOC. PSYCHOL. 804 (1995); Jonathan
D. Brown, Understanding the Better-than-Average Effect: Motives Still Matter,
38 PERSONALITY & SOC. PSYCHOL. BULL. 209 (2012).
69
Emily Pronin & Matthew B. Kugler, Valuing Thoughts, Ignoring
Behavior: The Introspection Illusion as a Source of the Bias Blind Spot, 43 J.
EXPERIMENTAL SOC. PSYCHOL. 565, 566 (2007).

described70
and then were asked what information they used in
assessing their own bias and that of classmates. Once again, the
participants attributed more bias to others than to themselves,
demonstrating the bias blind spot. Moreover, they reported using
different information depending on whether they were explaining
their own bias or the bias of others. With respect to understanding
their own bias, the participants accepted the explanation “trying to
‘get inside my head’ . . . to find evidence of the sorts of thoughts
and motives that could underlie this tendency.”71
In contrast, they
explained the greater perceived bias of their classmates by
“considering how well this description fits the way that people in
general tend to behave.”72
These results should not surprise us. Recall accounts of the
financial scandals arising from the 2008 financial sector collapse.
There was a huge gap between the statements of the insiders
talking about their good intentions on the one hand and the public
perception of what they actually did on the other.73
That gap is the
result of the self-serving bias and the introspection illusion
reinforcing one another.74
Moreover, this inability to judge one’s
own cognitive state has been applied directly to the difficulty of
being self-aware about one’s own writing. Bryan Garner writes
that inexperienced lawyers, who have not yet developed their
writing skills, are less likely to be aware of their deficits.75
Garner
refers to the work of psychologists Justin Kruger and David
Dunning, who put it this way:
[W]hen people are incompetent in the strategies
70
See Pronin et al., The Bias Blind Spot, supra note 64.
71
Pronin & Kugler, supra note 69, at 567–68.
72
Id.
73
For a good description, see MICHAEL LEWIS, THE BIG SHORT: INSIDE THE
DOOMSDAY MACHINE (2010).
74
I have, for purposes of this essay, not described the full range of
mechanisms that psychologists propose to explain these and related phenomena.
The reader interested in pursuing further analysis might turn to the excellent
discussion of the relevant literature in Emily Pronin et al., Objectivity in the Eye
of the Beholder: Divergent Perceptions of Bias in Self Versus Others, 111
PSYCHOL. REV. 781, 782–87 (2004).
75
See Bryan A. Garner, Why Lawyers Can’t Write, A.B.A. JOURNAL, Mar.
1, 2013, available at http://www.abajournal.com/magazine/article/
why_lawyers_cant_write/.

they adopt to achieve success and satisfaction, they
suffer a dual burden: Not only do they reach
erroneous conclusions and make unfortunate
choices, but their incompetence robs them of the
ability to realize it.76
That is, not being good at a particular task often implies not
knowing how bad we are at that task. The experimental results are
dramatic. In one study, participants (undergraduate students at
Cornell) answered questions from the logical reasoning section of
an LSAT preparation guide. They then predicted how well they
had done in comparison with other people taking the same test.
Those in the bottom quartile, with an average of being in the 12th
percentile, predicted as a group a mean of being in the 68th
percentile.77
This lack of awareness applies to writing skills as well. As
Kruger and Dunning describe:
The skills that enable one to construct a
grammatical sentence are the same skills necessary
to recognize a grammatical sentence, and thus are
the same skills necessary to determine if a
grammatical mistake has been made. In short, the
same knowledge that underlies the ability to
produce correct judgment is also the knowledge that
underlies the ability to recognize correct judgment.
To lack the former is to be deficient in the latter.78
Thus, in one of their studies, Kruger and Dunning tested
participants on grammatical knowledge using twenty questions
taken from a National Teacher Examination preparation guide. The
results were the same as in the study discussed above: those
participants who scored in the bottom quartile overestimated how
well they did compared to others. Although they scored in the 10th
percentile on the average, they assessed themselves as being in the
61st percentile.79
Subsequent experimentation showed this low-
76
Justin Kruger & David Dunning, Unskilled and Unaware of it: How
Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-
Assessments, 77 J. PERSONALITY & SOC. PSYCHOL. 1121, 1121 (1999).
77
Id. at 1125.
78
Id. at 1121–22.
79
Id. at 1125–26.

scoring group to be especially unable to reassess their skills even
after looking at the performance of others.80
This essay does not suggest that legal writing students must go
through an exercise in demoralization by learning that their lack of
skill is matched only by their lack of self-awareness. However, it is
important that students be taught the ease with which we tend to
underestimate the shortcomings in our reasoning and skills
reflected in the biases discussed earlier in this essay.
IV. CONCLUSION
I have described in this essay the reasons to expect legal
writing students to benefit from learning about the psychological
processes that underlie basic legal writing skills. This knowledge is
apt to help students to internalize what they learn, creating a
greater likelihood that they will be able to transfer the skills to
situations outside the writing class itself. I have then described four
psychological lessons worth learning, and have explained why this
is so. What I have not done, however, is to make specific
suggestions about how to go about this. That is the subject of this
brief Conclusion.
Before doing so, however, I wish to note that the four lessons
from psychology discussed here are by no means the only ones
from which legal writing students may benefit. Surely legally
relevant psychological discoveries extend beyond these. For
example, the self-serving bias, discussed earlier in connection with
Pronin and Kugler’s experiments on the bias blind spot, should be
of interest to lawyers and to law students learning how to write
persuasively. Daniel Medwed’s essay in this volume illustrates this
point well.81
The hindsight bias is another good candidate for
integration into the legal writing curriculum. This widely discussed
phenomenon82
is defined as “the tendency for people considering a
80
See id. at 1126–27.
81
See Daniel S. Medwed, The Good Fight: The Egocentric Bias, the
Aversion to Cognitive Dissonance and American Criminal Law, 22 J.L. & POL’Y
137 (2014) (discussing how self-serving bias applies in legal educational and
professional settings).
82
See, e.g., Jay J.J Christensen-Szalanski & Cynthia Fobian Willham, The
Hindsight Bias: A Meta-Analysis, 48 ORGANIZATIONAL BEHAV. & HUM.

past event to overestimate their likelihood of having predicted its
occurrence.”83
This, too, has made its way to discussion by legal
academics.84
Like the correspondence bias, it is a pitfall that
students should learn to avoid.
In my experience, students are very engaged when they
themselves participate in surveys, the results of which are then
discussed in class. Clickers work well for me.85
Students are
required to “click in” their answer to a multiple choice question
projected in the classroom on a Power Point slide. Each student’s
answer is anonymous, but the students are required to answer the
question. Once they have responded, the distribution of responses
is projected in the form of a bar graph. Discussion follows.
Clickers are not necessary, but for some of the tasks described in
this essay, some means of projecting the problems in the classroom
probably is.
Without devoting too much classroom time, it should be both
useful and strategic to do the following:
1. Present students with examples from the
Oppenheimer study on what makes writers
appear to be smarter.86
Get their reactions and
share them with the class. Then, compare what
they say to what Oppenheimer found, and
DECISION PROCESSES 147 (1991); Baruch Fischhoff, Hindsight ≠ Foresight: The
Effect of Outcome Knowledge on Judgment Under Uncertainty, 104 J.
EXPERIMENTAL PSYCHOL. HUM. PERCEPTION & PERFORMANCE, 288–99 (1975).
83
Hal R. Arkes et al., Eliminating the Hindsight Bias, 73 J. APPLIED
PSYCHOL. 305, 305 (1988).
84
For an excellent example of this discussion, see Jeffrey J. Rachlinski, A
Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV. 571
(1998).
85
There is a substantial literature on the use of clickers in the classroom,
both in legal education and more generally in higher education. See, e.g., Paul
L. Caron & Rafael Gely, Taking Back the Law School Classroom: Using
Technology to Foster Active Student Learning, 54 J. LEGAL EDUC. 551, 559–61
(2004) (discussing use of handheld wireless transmitters to foster active learning
in law school classes); Richard E. Mayer et al., Clickers in College Classrooms:
Fostering Learning with Questioning Methods in Large Classrooms, 34
CONTEMP. EDUC. PSYCHOL. 51 (2009) (discussing the usefulness of handheld
wireless transmitters in large lecture courses).
86
See supra notes 29–36 and accompanying text.

discuss. It is possible, of course, to substitute
materials from legal writing texts that contain
before and after examples.87
Those instructors
who would rather use materials in which the
complexity involves syntax as well as word
selection may especially wish to do so.
2. Present students with the Wason card task.88
Have them respond and discuss their results in
terms of what it shows about the confirmation
bias. Then describe to them the Darley and
Gross study and discuss their reaction. Ask the
students about instances in which they have
been unreasonable in rejecting evidence that
does not seem to support their views on say,
politics.
3. Present students with Darley and Latiné’s
results in the experiment in which the
participant thought she was one of six people
hearing a seizure and did not go to the victim’s
rescue.89
Ask them what they think of that
participant. Then tell them about the other
groups and ask them what they think of her
then. Finally, discuss with the students how the
correspondence bias can be used for and against
unsympathetic parties, raising ethical issues
about using such knowledge about psychology.
4. Present students with Pronin et al.’s studies
about the self-serving bias and the bias blind
spot.90
Present them with the range of their
responses and discuss the difficulty we have in
recognizing in ourselves what we criticize in
87
See, e.g., GARNER, supra note 27, at 17–45 (presenting many examples
of unnecessarily complex language); POLLMAN ET AL., supra note 28, at 294–
305 (presenting examples directed at making writing more concise).
88
89
See supra notes 55–57 and accompanying text. It is not necessary to
show a video, as the original experimenters did. One can find appropriate
images by looking at “girl taking an exam” on Google Images, for example.
90

others. Apply this to the legal contexts in which
the biases discussed above have legal relevance,
especially the confirmation bias, through which
lawyers are apt not to take opposing views
seriously enough to be effective advocates.
5. Develop materials, either in addition to or
instead of the above suggestions, based on other
psychological phenomena, such as the self-
serving bias or the hindsight bias.
All of this can be done in course segments that last 15–30
minutes apiece. It should be well worth the time.

35
THE SOCIOLOGICAL AND COGNITIVE
DIMENSIONS OF POLICY-BASED
PERSUASION
Michael R. Smith*
Experts in legal advocacy have long recognized the importance
of policy arguments in legal persuasion.1
Despite the prevalence of
policy arguments as tools in legal advocacy, very little scholarship
has been produced instructing legal advocates on how to write
effective policy arguments in their briefs. Professor Ellie Margolis
addressed this oversight in modern advocacy pedagogy in her 2001
article, Closing the Floodgates: Making Persuasive Policy
Arguments in Appellate Briefs.2
Professor Margolis’ article takes a
* Professor of Law and Director of the Center for the Study of Written
Advocacy, University of Wyoming College of Law. I would like to thank the
George Hopper Faculty Research Fund for providing funds in support of this
article. I would also like to thank Elizabeth Fajans and Marilyn Walter of
Brooklyn Law School for the opportunity to participate in the Cognitive Bias
Symposium and to publish this article as part of the symposium proceedings. I
would also like to thank the following people and organizations for allowing me
to present earlier versions of this topic and for the helpful feedback that I
received at those presentations: Panel organizer Michael Murray and The Legal
Writing, Reasoning, and Research Section of the AALS, who invited me to
speak on this topic at the 2011 AALS Annual Meeting; Jan Levine of Duquesne
University School of Law, who invited me to speak on this topic at the 2011
Second Colonial Frontier Legal Writing Conference; and Derek Kiernan-
Johnson of The University of Colorado School of Law, who organized a faculty
colloquium on this topic in 2011. Finally, I would like to thank Tawnya Plumb
of The University of Wyoming College of Law for her research assistance.
1
See, e.g., JOHN C. DERNBACH ET AL., A PRACTICAL GUIDE TO LEGAL
WRITING & LEGAL METHOD 349–50 (4th ed. 2010); LINDA H. EDWARDS, LEGAL
WRITING: PROCESS, ANALYSIS, AND ORGANIZATION 6, 310–11 (5th ed. 2010);
RICHARD K. NEUMANN, JR., LEGAL REASONING AND LEGAL WRITING:
STRUCTURE, STRATEGY, AND STYLE 309–13 (6th ed. 2009); HELENE S. SHAPO
ET AL., WRITING AND ANALYSIS IN THE LAW 264–70 (5th ed. 2008).
2
Ellie Margolis, Closing the Floodgates: Making Persuasive Policy

number of important steps toward improving the instruction on
effective policy argumentation. First, her article explains the types
of legal issues that give rise to policy arguments and explores the
general functions that policy arguments serve in the resolution of
those issues.3
Second, her article reviews in detail various
substantive categories of policy arguments that previously had
been explored in jurisprudential scholarship and examines the
applicability of these categories to legal advocacy.4
Third,
Professor Margolis, in the most pragmatic part of the article,
explains how legal advocates can strengthen their policy arguments
by incorporating citations to persuasive authority, both legal and
non-legal.5
Professor Margolis’ article brought much-needed attention to
the lack of adequate training in policy-based persuasion and
offered the first formalized instruction in that area. This article
builds on Professor Margolis’ work by exploring policy arguments
from a social science perspective. More specifically, this article
examines policy-based persuasion from the standpoints of both
sociology theory and cognitive psychology theory. For legal
advocates to truly master the skill of policy persuasion, the
cognitive processes underlying this type of advocacy must be
explored and understood. Knowing the mental processes involved
in policy persuasion will enable legal advocates to produce more
effective arguments based on policy. Moreover, understanding
how policy arguments fit within the legal system from a
sociological standpoint will help advocates more fully appreciate
how policy persuasion differs from other types of legal persuasion.
This knowledge, too, will allow advocates to employ this strategy
Arguments in Appellate Briefs, 62 MONT. L. REV. 59 (2001) [hereinafter
Margolis, Closing the Floodgates]. For Professor Margolis’ specific discussion
of the lack of literature on making effective policy arguments, see id. at 60 &
n.8.
3
Id. at 65–70.
4
Id. at 70–79.
5
Id. at 79–83 (applying to policy-based persuasion her general advice on
citing non-legal materials in legal arguments, which she explored in her previous
article, Ellie Margolis, Beyond Brandeis: Exploring the Uses of Non-Legal
Materials in Appellate Briefs, 34 U.S.F. L. REV. 197 (2000) [hereinafter
Margolis, Beyond Brandeis].

SOCIOLOGICAL AND COGNITIVE DIMENSIONS 37
more readily and effectively. This article takes the first step in
exploring policy-based persuasion from both of these social
science perspectives.
Part I of this article generally defines the concept of a policy
argument in terms of sociological principles and cognitive
psychology principles. This section identifies the unique role
policy-based persuasion plays in legal decision-making and
explores the general mental processes underlying this type of
advocacy. Part II sets out a new categorization scheme for policy
arguments based on the different broad cognitive processes
involved in such arguments. In this section, we will see that policy
arguments, from a cognitive perspective, fall into two broad
categories: policy arguments that focus primarily on the future, and
policy arguments that focus on both the present and the future. The
discussion of these two broad categories of policy arguments sets
up the final section, Part III, where we explore specific rhetorical
strategies brief writers can use to improve the effectiveness of their
policy arguments. Building on the categorization scheme set out in
Part II and the other principles of social science explored in Part I,
this final section identifies and examines specific guidelines for
maximizing the persuasive impact of policy-based advocacy.
I. A SOCIAL SCIENCE DEFINITION OF A POLICY ARGUMENT
A. A Working Example: The Interspousal Immunity Scenario
Before we explore a definition of a policy argument in terms of
sociological and cognitive principles, I will set out a hypothetical
example of this type of argument. I will return to this example
many times in this article to illustrate various points about policy
arguments.
Assume that we are lawyers practicing in a jurisdiction that
recognizes interspousal immunity as a defense to a tort suit.6
Under interspousal immunity, a spouse as a general matter cannot
6
I have used this interspousal immunity example of a policy argument in
my prior writings. See MICHAEL R. SMITH, ADVANCED LEGAL WRITING:
THEORIES AND STRATEGIES IN PERSUASIVE WRITING 95–96 (3d ed. 2013).

sue the other spouse for injuries resulting from a tort.7
Jurisdictions that recognize interspousal immunity generally do so
for two reasons. First, these jurisdictions believe that allowing one
spouse to sue another would have an embittering effect on the
marriage due to the adversarial nature of litigation. Thus, in an
effort to preserve marital harmony, these jurisdictions bar such
suits.8
Second, these jurisdictions also fear that allowing insured
spouses to sue each other could lead to rampant insurance fraud.
Because spouses live together and share finances and living
expenses, there is a fear that an insured defendant spouse would
not earnestly defend against the suit because a judgment for the
plaintiff spouse paid by the defendant’s insurer would actually
benefit both spouses.9
Assume further that we are representing a defendant in a tort
suit and are confronted with an issue of first impression in our
jurisdiction: whether interspousal immunity applies to bar a suit
between divorced parties for a tort committed during marriage.
The plaintiff’s counsel in such a scenario could logically argue that
interspousal immunity should not bar the suit because the parties
are no longer spouses. What’s more, the plaintiff’s attorney could
argue that the reasons underlying the immunity do not apply in this
situation because (1) there is no longer marital harmony—or even
a marriage—to protect from the rigors of the adversarial process,
and (2) insurance fraud is not more likely to occur in this situation
than in any other arms-length lawsuit because a judgment for the
plaintiff does not automatically benefit the defendant ex-spouse.
In response to this logical argument by the plaintiff’s counsel,
we as the defendant’s counsel could make a policy argument. We
could argue that allowing this suit would actually encourage
divorce on a societal scale. The argument would go like this: If the
court were to hold in this case that interspousal immunity does not
apply to a suit between divorced spouses for a tort committed
during marriage, then a spouse injured through the tortious conduct
7
See generally, e.g., Robeson v. Int’l Indemnity Co., 282 S.E.2d 896 (Ga.
1991). The discussion of interspousal immunity in the text is based on Georgia
law.
8
E.g., id. at 898–99.
9
E.g., id.

of his or her mate in the future could avoid the interspousal
immunity defense by divorcing before filing suit. An injured
spouse would be advised by his or her attorney that he or she could
stay married to the tortfeasor and be barred from recovery or
divorce the tortfeasor and seek compensation in court. It is not
unlikely that many injured spouses would choose the option of
divorce and recovery over the option of marriage and no recovery.
Thus, from a societal standpoint, such a rule would amount to a
financial incentive for divorce.
With this policy argument, we as counsel for the defendant
spouse could try to persuade the court to hold that suits for torts
committed during marriage are barred even if the parties divorce
prior to the initiation of the lawsuit. Our argument would be based
on the policies of protecting marriage as a social institution and
avoiding the encouragement of divorce.
B. The Definition of a Policy Argument
Many definitions of a policy argument have been offered in the
previous literature on the topic.10
I, however, offer a new definition
of a policy argument in terms of sociological and psychological
principles:
A policy argument is an argument made by a
legal advocate to a court that urges the court to
resolve the issue before it by establishing a new
rule that advances or protects a particular social
value implicated by the issue.
To see how I have arrived at this definition, the words of the
definition must be examined closely.
1. “. . . to a court . . .”
The first part of the definition states as follows: “A policy
10
See authorities cited supra note 1. See also WILSON HUHN, THE FIVE
TYPES OF LEGAL ARGUMENT 51 (2d ed. 2008); Margolis, Closing the
Floodgates, supra note 2, at 70.

argument is an argument made by a legal advocate to a court.”
This language highlights the fact that the definition is limited to the
context of legal advocacy in the court system. Policy arguments
can be made in many different contexts in society, especially in the
context of the legislative processes of local, state, and federal
legislatures.11
This article, however, focuses only on the use of
policy arguments by legal advocates in the context of making legal
arguments to a court of law. We saw this type of policy argument
in the interspousal immunity example above, where we discussed
how the defendant’s attorney could use a policy argument in
defending his or her client in court.
2. “. . . advances or protects a particular social value . . .”
The second part of the definition that will be examined actually
comes near the end: “A policy argument is an argument . . . that
advances or protects a particular social value implicated by the
issue.” In terms of cognitive processes, policy arguments persuade
in a very different manner than other types of legal argumentation.
Most legal arguments are based on established (and binding) legal
authority such as statutes, administrative rules, and case law.12
As
a consequence, these types of legal arguments, from a cognitive
standpoint, are based largely on principles of formal logic such as
deductive reasoning13
and analogical reasoning.14
Policy
11
See, e.g., ROBERT J. MARTINEAU & ROBERT J. MARTINEAU, JR., PLAIN
ENGLISH FOR DRAFTING STATUTES AND RULES 13–19 (2012); ROBERT J.
MARTINEAU & MICHAEL B. SALERNO, LEGAL, LEGISLATIVE, AND RULE
DRAFTING IN PLAIN ENGLISH 93 (2005); ABNER J. MIKVA & ERIC LANE, AN
INTRODUCTION TO STATUTORY INTERPRETATION AND THE LEGISLATIVE
PROCESS 59–68 (1997).
12
See, e.g., DERNBACH ET AL., supra note 1, at 151 (“The relevant rules of
law . . . provide the framework for your analysis . . . .”); EDWARDS, supra note
1, at 17 (“The foundation of any legal analysis is the relevant rule of law.”);
HUHN, supra note 10, at 51 (“There is a fundamental difference between policy
arguments and the other four types of legal arguments [we have discussed].”);
SHAPO ET AL., supra note 1, at 113 (“Begin [legal analysis] by explaining the
controlling rule in the jurisdiction in which your problem is located.”). See
generally, e.g., JAMES A. GARDNER, LEGAL ARGUMENT: THE STRUCTURE AND
LANGUAGE OF EFFECTIVE ADVOCACY 38–39 (2d ed. 2007).
13
See authorities cited supra note 12. Professor Gardner’s entire book is

arguments, on the other hand, are not based on established legal
authority15
or on processes of formal logic. Policy arguments are
instead based on an appeal to a judge’s value system.
Consider the interspousal immunity scenario, for example. In
that discussion, we assumed that we were legal advocates
defending a party from an ex-spouse in a tort suit. As a policy
argument, we argued that if the court held that interspousal
immunity was inapplicable and that the suit was allowed, the
precedent established by that ruling would encourage divorce as a
means of bypassing the interspousal immunity defense in future
tort suits between spouses. Although this argument seems logical,
it is not based on principles of formal logic. Instead, it is based on
an appeal to a judge’s value system and, more specifically, the
value the judge places on marriage as a social institution.
The unique nature of policy arguments can best be illustrated
by comparing it to rule-based, or deductive, reasoning. The formal
logic of deductive reasoning is predicated on a binding major
premise.16
Consider this famous example of a formal deductive
syllogism:17
devoted to deductive reasoning in the context of legal argument. See generally
GARDNER, supra note 12.
14
See, e.g., DERNBACH ET AL., supra note 1, at 101–05; EDWARDS, supra
note 1, at 106–12; HUHN, supra note 10, at 42–43, 119–22; SHAPO ET AL., supra
note 1, at 62–64; Linda H. Edwards, The Convergence of Analogical and
Dialectic Imaginations in Legal Discourse, 20 LEGAL STUDIES FORUM 7, 10
(1996) [hereinafter Edwards, The Convergence].
15
Policy arguments can be based on an express statement of policy
underlying the relevant legal rule. However, this article focuses on the skill of
crafting an original policy argument rather than the skill of formulating an
argument based on an existing statement of policy. Professor Margolis also
recognized the difference between these two types of policy arguments and
similarly focused her articles on the skill of crafting novel policy arguments. See
Margolis, Beyond Brandeis, supra note 5, at 211–12; Margolis, Closing the
Floodgates, supra note 2, at 60.
16
E.g., GARDNER, supra note 12, at 4, 53–70; Anita Schnee, Logical
Reasoning “Obviously,” 3 LEG. WRITING 105, 107–08 (1997).
17
GARDNER, supra note 12, at 5.

All men are mortal. (MAJOR PREMISE)
Socrates is a man. (MINOR PREMISE)
Therefore, Socrates is mortal. (CONCLUSION)
In this example, the major premise—All men are mortal—is an
undeniable truism and serves as the basis for the formal deductive
logic that follows it.18
Legal arguments based on binding
established rules also are grounded in the formal logic of deductive
reasoning. Consider this example from James A. Gardner:19
In order to be enforceable, (MAJOR PREMISE)
a contract must be supported
by consideration.
The contract between Tim (MINOR PREMISE)
and Mary is not supported
by consideration.
Therefore, the contract (CONCLUSION)
between Tim and Mary
is not enforceable.
The major premise in this syllogism—that enforceable
contracts must be supported by consideration—is a rule mandated
by binding law. Thus, the conclusion is not a product of choice or
personal preference; it is product of formal deductive reasoning.20
Policy arguments function quite differently. In the interspousal
immunity example, there is no binding rule (i.e., major premise)
that states that a judge must avoid establishing rules that encourage
divorce. Consequently, the policy argument we explored is not
based on deductive reasoning flowing from an indisputable major
premise. Rather, our argument—that the court should rule in our
favor to avoid encouraging divorce on a societal scale—is based on
an effort to tap into the judge’s value for marriage as a social
institution. A judge is not required to protect marriage as an
institution, and our policy argument is only as strong as the judge’s
personal commitment to that institution.
18
See id.
19
Id. at 9.
20
Id. at 6–8 (discussing the “power of syllogistic reasoning”).

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