AI & Law: Thinking Fast and Thinking Slow

Cognition as composed of thinking fast and thinking slow

by Dr. Lance B. Eliot

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Key briefing points about this article:

  • A popular metacognition model is that humans have a twofold approach to how our minds work
  • One portion of our minds thinks fast, making snap decisions, called System 1 (M-consciousness)
  • The other portion thinks slow, analytically so, and is known as System 2 (I-consciousness)
  • This viewpoint about the mind can be applied to lawyers and performing legal reasoning
  • AI has likewise the sub-symbolics and the symbolics camps

Introduction

The yin and the yang.

Thinking fast and thinking slow.

What’s this fuss all about?

There is an ongoing assertion that the human mind is composed of two divisible forms of cognition, characterized as consisting of the fast-thinking realm and its conjoined twin the slow-thinking domain.

The fast-thinking portion allows us to make snap decisions. It is said to be the part of your brain that kicks into gear for making rapid and intuitive style decisions, often labeled as gut instinct, and more formally referred to simply as System 1 (a rather stark naming, for sure, with catchier names having been floated such as the M-consciousness wherein the letter M stands for mysterious).

Meanwhile, there is the slow-thinking portion that provides the logic-based part of human decision-making. This contains a decidedly deliberative capacity that allows us to perform analytic-style endeavors. Whereas fast-thinking seems to skip past the arduous effort of being step-by-step mindful, the slow-thinking portion takes its sweet time and figures out things via an amalgamation of cognitive heavy lifting. The slow-thinking element is commonly known as System 2 and carries an alternative moniker with a bit more pizzazz, the so-called information infused mental engine or simply stated as the I-consciousness.

Nobel Prize winner in Economics, Daniel Kahneman, wrote and published a quite popular book covering this two-for-one theory of the mind, doing so in 2011 with his “Thinking, Fast and Slow” compendium. His discussion stoked an already percolating belief in this dividing of cognition propositional conjecture, and since then there has been a persistent interest for those trying to prove or perhaps disprove this acclaimed hypothesis about our minds.

Be aware that there are numerous caveats associated with this whole concoction of how the mind works, along with a great deal of angst that this is an exceedingly myopic way to conceive of the mind. Some would argue that this simplistic twofold concept will inevitably lead us inadvertently down a dead-end in terms of figuring out the truth of how the mind works.

One of the most vocalized concerns is that the theory smacks of being a stark dichotomy about cognition, as though there are only two modes and nothing more. We might be waylaid by fixating on the alleged two modes.

Another qualm is the base assumption entailing the contention that fast-thinking is fast and that slow-thinking is slow. As some have roundly counterargued:

· The relative timing difference might be of a negligible degree and thus egregiously misleadingly mischaracterizes our mental exertions.

· There seem to be indications that the fast-thinking can at times be substantially slower than the slow-thinking. Likewise, studies suggest that the slow-thinking at times is seemingly faster than the fast-thinking.

All told, those that stridently focus on metacognition (i.e., how we think) do not all agree with the System 1 and System 2 propositional notions.

Your Legal Reasoning As Fast And Slow

Nonetheless, let’s give the idea a spin.

Lawyers are presumably subject to the System 1 and System 2 forms of thinking since they are by definition humans and therefore embody this dichotomous form of cognition. When standing in front of a judge and arguing a case, the odds are that you’ve done a lot of prep beforehand and have lined up a slew of carefully composed logic-based arguments. All of a sudden, the judge stops you midsentence and asks a tough and unexpected question.

What happens inside your brain?

The System 1 or fast-thinking portion comes up with an off-the-cuff answer and you quickly voice some legal buzzwords to showcase that you are being responsive to the judge. At the same time, your System 2 or slower-thinking portion is attempting feverishly to piece together an analytical answer of a deeper nature. The quick-and-dirty utterance of words from your System 1 or “snap thinking” is buying time for your System 2 logic engine to get its act together and come up with something more substantive.

Some attorneys get jammed-up because they are weak in System 1, the fast-thinking, and stronger in System 2, slow-thinking.

This means that there can be a seemingly long and awkward pause there in court as you are attempting to use the slow-thinking portion and are unable to do those quick quips (the fast-thinking mode is missing in action, as it were). Without the rapid capacity of thinking on your feet, this, unfortunately, provides an opening for the opposing counsel to jump into the fray and make it seem as though you are stumped. The judge might equally get an impression that you have no viable answer and have been snagged by a gotcha or worse still a gaping hole in your case.

Of course, the other side of that coin can be bad too. If your fast-thinking blurts out just anything at all, it can pin you into a posture that your slow-thinking would have never led you into. Fast thinking can make a mess for the slow thinking, and might so undermine your position that the slow thinking is unable to dig its way out of the legal abyss so created.

Shifting gears, consider how Artificial Intelligence (AI) will be added into this mix. The use of AI for legal reasoning is going to increasingly be apparent in our courts and all facets of the law. For details on this and other AI and law topics, see my book entitled “AI and Legal Reasoning Essentials” at this link here: https://www.amazon.com/Legal-Reasoning-Essentials-Artificial-Intelligence/dp/1734601655

Within the AI field, some assert the true path to AI is going to be via the use of Machine Learning and Deep Learning, which are approaches that utilize computational pattern matching and are considered in the sub-symbolics camp of AI development. Meanwhile, others in AI tout the logic-based approaches, perhaps you might recall the days of Expert Systems, for which those are called the symbolics camp of AI.

The sub-symbolics are akin to System 1 of thinking, while the symbolics is aiming toward System 2 of human thought.

Conclusion

This highlights the added assertion that perhaps both are needed to achieve AI, working in a conjoined manner. Or it could be that once again we’ve fallen into a false dichotomy. I’d ask you to decide by stating either yes or no about whether you believe in the twofold model of cognition, but that seems like yet another dichotomous force-fit.

When you have a free moment between your court cases, go ahead and let your System 1 and System 2 ponder this conundrum and see what you can come up with.

For the latest trends about AI & Law, visit our website www.ai-law.legal

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Copyright © 2021 Dr. Lance Eliot. All Rights Reserved.

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