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"Blink," Don't Think

Richard Epstein  is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago.

One of the central themes of Malcolm Gladwell’s “Blink” is that too often we suffer from too much information. Whether we proceed by intuition, or complex protocol, often the best approach is to look at a few salient features and then make up our minds. This view should lead us to rethink the exhaustive disclosure requirements that mar the law of medical malpractice, product liability and securities regulation.

It should also lead us to rethink the endurance contest for nominees to the high court that passes under the name deliberative democracy. Truth is that most people will make up their minds whether they like a candidate or not on the strength of a resume, a reputation, and quick first impression. The rest is largely posturing in an effort to bolster the record one way or another.

Judge Roberts does not need any buildup to pass the blink test. He has a stellar record, a sterling reputation, and an excellent demeanor. So the only purpose of further hearings has to be negative. Those who dislike him because he is too conservative, hope that they can find something that will make an easy case into a hard one. All this is difficult because it cannot be right to say that he is disqualified because he is too conservative. The first democratic nominee will be out because he or she is too liberal.

So let us hope that this nomination will move to the back pages. I would have more confidence that the process should include a vigorous cross examination if there were any chance that any senator would change his or her view in response to any answer that he might supply. It is not going to happen. We shall decide better if we deliberate less.

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