Fast—and Slow—Thinking

Mark K. Dickson

©2018. Published in Landslide, Vol. 11, No. 1, September/October 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Thinking, Fast and Slow is a book on the differences between intuitive decision making (“fast thinking”) and thoughtful deliberative reasoning (“slow thinking”).

The author, Daniel Kahneman, won a Nobel Prize in 2002 for his research disproving the widely held belief that most people are generally rational and their thinking is normally sound. He showed that judgment and intuitive decision making are based less on rational thought than on a host of nonrational influences, like bias and past experiences. Deliberate slow thinking, on the other hand, is the product of more structured analysis and organized cognitive effort (although also influenced by bias and experience). Kahneman’s research has been widely applied by psychologists, economists, and others to explain judgment and decision making in every context from general human conduct to medical diagnoses, intelligence analysis, philosophy, finance, statistics, legal judgment, and military strategy, and has led to numerous efforts designed to improve the human decision-making process. Behavioral economics, based largely on Kahneman’s principles, has had a major impact on how people invest once they understand their intuitive decisions are not as rational as they thought.

Not all fast thinking is irrational or bad nor, conversely, is all slow thinking good or even useful. Some fast thinking/intuitive decision making is necessary for survival (as in involuntary reactions to loud noises or potential sudden impacts). But lots of other fast thinking examples, such as choosing a chess move or deciding whether to invest in a stock, have less to do with survival or logic and more to do with systematic bias and familiarity. Good traits in fast thinking can be learned and adopted over time with conscious effort or through repeated exposure and experience. But most people are greatly surprised to discover that what they thought was rational-based intuition and decision making in stock purchases, for example, or even in a decision to buy a new car, turn out not to be very rationally based after all. They are even more surprised to learn that fast thinking/intuitive decision making is more influential than their experience tells them, and that it is, as Kahneman characterizes it, “the secret author” of many of the choices and judgments they make.

As attorneys, we do a lot of fast thinking, but not all of it is the intuitive type discussed in Kahneman’s book. We’re trained to think on our feet in the courtroom and the boardroom with quick reactions, rapid responses, and on-the-spot decisions. Clients want immediate answers and judges have short deadlines, so there is plenty of incentive for sound fast thinking when we’re called upon to make arguments and defend positions on short notice. The confident ability to respond quickly and coolly with precision and logic is a large part of providing highly valued advice and counsel to our clients.

We also do a lot of “deliberate” slow thinking. There are times when we need to shift gears and think in cautious and unhurried terms to truly be effective. Many circumstances require a measured and well-thought-out legal approach with a view toward the long term. Policy decisions aren’t made in a snap, laws don’t change in a heartbeat, and cases aren’t built overnight. It takes a concerted methodical view, a well-thought-out strategy, and an enduring effort to build a brand, develop a portfolio, or shepherd a new law through Congress to achieve the desired goals and objectives. Long-term results require lasting and sustained effort, and attorneys are well versed to provide it.

Of course, none of this fast and slow thinking occurs in a vacuum. Whether intuitive or deliberate thinking, it usually involves more than just one person to accomplish. That’s why we all benefit from working together. We interact with others on a continuous basis in cooperating, learning, developing, and implementing the many judgments and decisions we make.

I invite you as members of the ABA Section of Intellectual Property Law (ABA-IPL) to take advantage of our opportunities to meet and collaborate with like-minded attorneys and to wade into the thinking, both fast and slow. No matter what your interests are, the ABA-IPL Section is a place for you to meet others with similar goals and desires. Our divisions and committees cover a broad range of topics that encompass all facets of intellectual property practice—whether your background is in patents, trademarks, copyrights, trade secrets, or other substantive areas, and whether you concentrate on litigation, prosecution, licensing, legislation, or transactions. We have committees in antitrust, arbitration, gaming technology, copyright office affairs, pro bono, and ethics, just to name a few. With the benefit of the grassroots work of our committees, we talk to Congress, the U.S. Patent and Trademark Office, the Copyright Office, and other agencies to make policy and influence legislation. ABA-IPL is a place where you can join with both national and international attorneys to help shape the future of intellectual property law.

At ABA-IPL we think fast, and we also think slow. This balance is why we’re so successful as the largest intellectual property law association in the world. It’s a balance that we also see in every issue of this world-class magazine and within our preeminent portfolio of nearly 60 book titles.

With your help as one of our thinkers (whether fast or slow thinking is your preference), the Section’s best thinking is yet to come. n

Mark K. Dickson is chair of the ABA Section of Intellectual Property Law. As solo practitioner and principal of Phase M Legal in San Mateo, California, he specializes in portfolio development and evaluation, risk assessment, licensing, and litigation avoidance for a wide range of technologies, including plant patent matters.