The Undoing Response: A Reaction to The Undoing Project by Michael Lewis

The connection between the human mind, and human behavior has always fascinated scholars like Rene Descartes, Adam Smith, and Karl Marx to name a few. For much of human history, the mind-body problem presented a scientific dilemma because the workings of the mind are unobservable. Economic theory and the Enlightenment painted humans as rational beings, making mental processes and emotions irrelevant. Driven by economic theory, the idea of humans as primarily rational actors carried into the Twentieth Century. 

In Michael Lewis’ The Undoing Project, Lewis describes the friendship that sparked the counter movement against Homo economicus (aka economic man). Homo economicus was a rational actor who could calculate utility (or value) to make the right decision. The story that would change how we see this economic man centers on two Israeli psychologists: Daniel Kahneman and Amos Tversky. Kahneman and Tversky were polar opposites. Kahneman had problems with self-confidence, and speaking his own mind, although he formulated the Israeli defense forces’ aptitude testing that is still used today.  Tversky, on the other hand, was a former Israeli paratrooper, and nearly died on the battlefield.  Tversky did not fear sharing ideas, and/or attacking critics.   

Together, Kahneman and Tversky combined into a formidable team, and showed that the human mind was a not perfect machine.  Emotions and other mental intuitions impacted the decision making process, and sometimes led to the wrong decisions. The most telling time of the mind’s imperfections was when humans face a choice with uncertain consequences.  For example, when humans are left with a choice between shooting down a plane and saving thousands, but killing the passengers, or doing nothing, and killing thousands, our rational minds stall.  

Kahneman and Tversky’s work, which would win a Nobel Prize in Economics, influenced many to see human rationality differently. In economics, Tversky and Kahneman influenced Richard Thaler to develop the field of behavioral economics. In the legal field, Cass Sunstein used the ideas of Kahneman and Tversky to shape regulatory policy during his time as Administrator of the Office of Information and Regulatory Affairs. 

The focus of The Undoing Project is on the friendship between Kahneman and Tversky, their ideas, and impact on various fields. The legal field is missing. As a lawyer, the book made me think about how does this dichotomy between rationality and the mental processes that make us, at times, irrational impact the legal system. 

There are moments in the legal system that call on the jury to determine the rationality of the defendant. For example, in personal injury cases, a juror is tasked with determining how the “reasonable person” would have acted in that situation. The reasonable person standard is, in theory, supposed to be an objective test. But, is it really objective? If one is to believe the More Perfect podcast episode Mr. Graham and the Reasonable Man, it is difficult to see the objectivity in the standard. Perhaps, the reasonable person standard and reasonableness, is as my criminal law professor said it is, just whatever the jury thinks it is.  

Further, uncertainty is present in the judicial decision making process. A judge must decide between two choices. For example, is this piece of evidence hearsay? Does a particular right to X exist under the Constitution? Does the search violate the Fourth Amendment? These aren’t questions Kahneman and Tversky spent much time on, but the problems in human decision making in life, and economics, also impact those who decide legal judgments. 

Legal judgments from the smallest criminal case to the cases on the Supreme Court docket have a far-reaching impact, as any impact political judgments make. Thus, The Undoing Project gives me concern over the prevalence of law and economics in legal decisions and academics. The impact of legal judgments, especially if they lead to an injustice, gives light to why judicial power, as with political power, should have its limits. 

Finally, if the legal system only sees human behavior as rational, we only see a small part of the law. As a result, legal policies, and choices only touch a small part of the problems they try to correct. Inevitably, what I think Kahneman and Tversky point to in understanding the law is some form of legal realism. This is not to say that a judge’s decision depends on their choice of coffee, or what they ate for breakfast. But it’s a legal realism that has to account for the mental processes of human behavior, and notice that the law has limitations.