1-1-2008 Second Thoughts

Biases in judgment and decision-making often arise at the level of firstorder thoughts. If these initial thoughts are not overridden by secondorder thoughts, they may lead to biased outputs. Current psychological models of legal actors assume that individuals are largely incapable of overcoming these first-order biasing thoughts and that these thoughts ultimately lead to irrational and discriminatory behavior. These models, however, ignore considerable evidence that individuals often naturally engage in self-correction and that situational pressures often encourage self-correction. I discuss the conditions under which self-correction may occur and the possibilities and limits for the law in promoting selfcorrection to overcome biased judgments, decisions, and behavior. Seals... exemplify one of the strongest impulses of legal ordering, to signal formally to people at critical moments that they are about to leave the world of social interaction for the world of compulsion, bureaucracy and impersonality. It is a way of saying "this counts," "this is for keeps," "we're not kidding around anymore" and similar things.... With seals, of course, the modern problem has been that as the form of the seal has been attenuated (down to a preprinted "seal"), its cautionary effect has been vitiated apace. -Arthur Lefo Our instincts and intuitions sometimes lead us in directions that, on second thought, we'd rather not go. The impulse to hit the brakes when one's car encounters a patch of ice can be consciously overridden by preparing for that possibility. The attractive actor's endorsement of a product may resonate at some affective level, but this appeal often falls flat when its informational content is analyzed. Our initial impressions of students and co-workers may be based on stereotypes of the groups to which they are perceived to belong, but these initial impressions often give way to more nuanced beliefs as we learn more about these * Daniel Caplin Professor of Law & E. James Kelly, Jr.-Class of 1965 Research Professor, University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903-1738, greg-mitchell@virginia.edu. This paper benefitted from discussions with Hal Arkes, Richard Petty, and Philip Tetlock, as well as comments by participants at the McGeorge School of Law talk based on an earlier version of this paper and by students in the University of Illinois Law and Economics seminar. 1. Arthur Allen Leff, A Letter from Professor Leff to a Prospective Publisher, 94 YALE L.J. 1852, 185253 (1985) (entry on "seals" from Professor Left's legal dictionary proposal). 2009 / Second Thoughts people as individuals. These second thoughts, which may be the product of conscious effort or may come to us just as rapidly and unbidden as the initial thoughts, can serve as important checks on judgments, decisions, and behavior. We learn through experiences that initial reactions to stimuli should sometimes be distrusted or avoided, and we develop a variety of techniques for employing second thoughts to overcome suspect, undesirable, or maladaptive first thoughts.2 The propensity to engage in self-doubt and self-correction varies across persons and situations. Some people, due to their education, upbringing, values, or genetic endowment, naturally engage in reflection and revision more often than others. Nevertheless, all persons with cognitively normal functioning possess the ability to engage in some amount of deliberation, "metacognition," or thought about one's own thoughts-indeed, metacognition is sometimes described as a uniquely human characteristic. Metacognition often follows a feeling of difficulty, surprise, or unease when trying to process information. For example, a fleeting feeling of knowing something that cannot quite be expressed may prompt a memory search, while a feeling of unease upon encountering a member of another social group may lead to vigilance about what one thinks and says during the encounter. But metacognitive processes that lead to adjustments in judgments and beliefs may also occur without our awareness through the operation of automatic processes and associative networks within the mind. Both forms of second 2. By "first thoughts" I mean initial responses to stimuli, while "second thoughts" refer to any subsequent processing of the stimuli or thoughts initiated by the first thoughts. Cf. Deanna Kuhn, Metacognitive Development, 9 CURRENT DIRECTIONS PSYCHOL. SCI. 178, 178 (2000) (defining metacognition as "cognition that reflects on, monitors, or regulates first-order cognition"); Richard E. Petty & Pablo Brifiol, Persuasion: From Single to Multiple to Metacognitive Processes, 3 PERSP. ON PSYCHOL. SCI. 137, 142 (2008) ("Primary thoughts are those that occur at a direct level of cognition and involve our initial associations of some object with some attribute or feeling. Following a primary thought, people can also generate other thoughts that occur at a second level, involving reflections on the first-level thoughts."). A stimulus may at times trigger multiple, conflicting first thoughts, with second thoughts then mediating which of these first thoughts will gain dominance or attention (e.g., meeting another person may activate categories related to this person's sex, race, age, and occupation, with motivation and inhibition mechanisms determining which category, and its related content, captures attention and influences subsequent thought). See C. Neil Macrae & Galen V. Bodenhausen, Social Cognition: Thinking Categorically About Others, 51 ANN. REV. PSYCHOL. 93, 102 (2000). 3. See, e.g., Guy Lories et al., From Social Cognition to Metacognition, in METACOGNITION: COGNITIVE AND SOCIAL DIMENSIONS 1, 1 (Vincent Y. Yzerbyt et al. eds., 1998) ("The possibility of metacognition seems typical of the human species and may be related to our being linguistic animals. It stands as one of the important differences between animal and human cognition and the very existence of psychology is proof of our interest in our own mental processes."). Whether metacognition is in fact uniquely human is now the subject of debate. Compare J. David Smith & David A. Washburn, Uncertainty Monitoring and Metacognition by Animals, 14 CURRENT DIRECTIONS PSYCHOL. SC. 19 (2005) (summarizing research confirming animals' capacity for metacognition), with Peter Carruthers, Meta-Cognition in Animals: A Skeptical Look, 23 MIND & LANGUAGE 58 (2008) (arguing that metacognition processes within non-humans should not be accepted from the current public data). The capacity for metacognition appears to vary developmentally as well. Kuhn and Pease argue, for instance, that metacognitive executive control of first-order thoughts develops considerably during adolescence. See Deanna Kuhn & Maria Pease, Do Children and Adults Learn Differently?, 7 J. COGNITION & DEV. 279