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Transactions: The Tennessee Journal of Business Law

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Systematic and empirical thinking does not come easily into a mind trained in the common law, where anecdote is as persuasive as- and often more persuasive than-scientific evidence. Common law reasoning often proceeds in the following way: If I can think up an argument for something, and if I can illustrate that argument with anecdotes, the thing I'm arguing for must be true.

But a person whose inclination is on the other side of the issue will be laboring under the same cognitive illusion. That person will think up supporting arguments and find illustrative anecdotes as well. But that person and I can't both be right, even though we both have good arguments and memorable anecdotes. In fact, both of us are ignorant. Under Leszek Kolakowski's Law of the Infinite Cornucopia, an infinite supply of arguments exists to support any position you would like to take.

As long as we think in arguments, we will remain ignorant because arguments close off inquiry. And our ignorance is also based on the illusion that we already know whatever we could know about a particular subject. Imagine a circle about 18 inches across. It encompasses what could be known, but we tend to go through life assuming that it is also what we already know. We are not aware of what we don't know, so we imagine that we do know and what we could know are the same thing.


Paper presented at the second transactional law conference, "Transactional Education: What's Next," in 2010. Presented in the Negotiation panel with:

Tina L. Stark - Contract Drafting: A Prerequisite to Teaching Transactional Negotiations

Howard Katz - Negotiation as a Foundational Skill



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