“Freakonomics” on Inertia

A roadblock to progress in clearer contract drafting is the dead hand of inertia. I’ve written a fair amount about it (see these posts).

Over the weekend I was in the kitchen listening to WNYC when a rebroadcast of the Freakonomics “Think Like a Child” episode came on. (That episode is available here.) Below is an extract of the transcript, consisting of a conversation between the host, Stephen J. Dubner, and Alison Gopnik (@AlisonGopnik), professor of psychology and philosophy at the University of California at Berkeley. This exchange is relevant to contract drafting simply because it puts inertia in a broader context: it’s not just a law thing.

DUBNER: So I can imagine that an adult listening to you say these things would say, ‘Sure. That makes sense. That resonates with me. I believe that children have these traits in maybe a different shape or dimension than the traits I have, but I think it’s probably hard for most adults to think about the idea that there are traits that are valued in adults that children may actually be better at than adults. So tell me a little bit about that. Are there some that would fit that category?

GOPNIK: Part of the reason why we adults are really good at learning things quickly, is because we already know a lot about the world. So when you look at how adults learn, the way that we typically learn is, we take all those things we’ve already learned and we already know—and they weigh really, really heavily in our decision-making and in the kinds of solutions that we’re going to consider—and then we maybe have a little new evidence. But most of the time, we sort of ignore it. Or we might just tweak a little bit what we already think. But you know, mostly the way our brains are is, they’re not broke, so we don’t want to fix them. They’re working just fine. We’ll just leave them the way they are.

DUBNER: Implicit in that is while we have this strong set of priors, right, prior beliefs that we act on. And also implicit in what you’re saying is we have a lot of heuristics, we have a lot of shortcuts that we’ve learned work well enough, and so we do them always, right?

GOPNIK: Exactly. Let me give you an example in the universities for example. It’s a good example, my world. We give lectures. And the origins of that are the days when there weren’t printed books, so you had one manuscript and the professor was reading from the manuscript because the students didn’t have books. It is literally a medieval instructional technique. But we’ve been doing it for hundreds and hundreds of years. It’s kind of what you do when you’re a faculty member. And the fact that we have no evidence at all—in fact, we have some evidence to the contrary—that this is a good way to get anybody to learn anything, doesn’t keep us from doing it.Mostly we’re doing it because we’ve always done it.

DUBNER: The students aren’t dying of boredom, at least. They may be bored, but they’re not dying.

GOPNIK: Exactly.

DUBNER: And when you ask yourself the question of ‘Why do we do it?’ What does even a very smart person say? How does a very smart person answer that question for themselves?

GOPNIK: I think what they say is, ‘Well, we’ve kind of always done it, and it seems to work OK, and we’re good at doing it.’ And I think, here’s the most relevant thing: It would take so much work to try and think through all the alternatives, and try them out and see which ones work and which ones don’t. That would just be such an effort that, even if maybe in the long run it would be a bit of an advantage, in terms of my short-run utilities, and in particular, just for me, it’s not going to make a difference. I think the general picture, when you talk about risks as adults, when we’re trying to decide on a course of action, we’re always balancing the risks and utilities. Whether that’s a risk to my reputation or my ego or my future interactions with other people or just a risk to my profit margin. And kids aren’t in that world of—or at least, if they’re being taken care of properly—they’re not in that world of risk and utility calculations. That liberates then, that frees them to, as we say, play. Which we sort of take for granted: yes, of course, kids play. But what ‘play’ means, what do you mean when you say someone’s playing? You mean they’re doing something without really having a specific goal, without having to worry about whether it’s going to be productive or not.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

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