CATEGORIES 101: You’re either in, or you’re out!
This past weekend Professor Lucy Jewel and I presented Categories! A Cognitive Rhetorician’s Approach to Logos and Pathos at the Psychology and Lawyering: Coalescing the Field conference held at the William S. Boyd School of Law at UNLV. The conference itself was superb and presented abundant opportunities to learn about the intersections of law and psychology. The field of cognitive psychology offers insight into how individuals receive and process information, so it presents a gold mine for studies in persuasion. My first few blog posts will tap into this area to offer some of the insights we developed for the presentation on categories.
Principles of cognitive psychology teach us that categorizing objects is natural. Indeed, categorizing is essential to our very survival. Just imagine the cognitive overload if we had to reprocess every daily experience as if it were brand new. Categories form a figurative box permitting us to create cognitive shortcuts to quickly determine whether something fits in or falls out. Categories facilitate the creation of prototypes. For example, if I ask you to think of a bird, you will likely picture something like a sparrow or a robin rather than a penguin. By the same token, categorizing at the fringes presents difficulty—have you ever pondered whether a tomato is a fruit or a vegetable? Categorization also leads to dichotomous thinking—yes/no, black/white, in/out—even though the world cannot be broken down into such simplistic terms.
Because categories tend to oversimplify the complexities of everyday life, they can sometimes interfere with our ability to candidly assess the world. In the instant we categorize something, we cease to see that something for what it truly is. Rather, we only look at how it fits within the assigned category.
Since individuals process and categorize based on their personal experiences, appellate advocates must become adept at predicting existing categories and either utilizing or changing them to advance their clients’ positions. An essential component of persuasive advocacy is reaching the audience in a way that the audience can understand the message. Through categories, an advocate can tap into pre-existing cognitive shortcuts for the benefit of the client. Conversely, if the pre-existing category is detrimental to the client, an advocate may need to insulate against any implicit bias or prejudice that the category is likely to produce.
Regarding categories, Anthony Amsterdam and Jerome Bruner, in their book Minding the Law, posit seven principles:
- Categories are made, not found.
- Categories imply a world that contains them.
- Categories are not always clean-cut.
- Categories serve a particular function
- Categorizing is an act of meaning making.
- Categories become entrenched in practice.
- Categories are never final.
My next several posts will take these principles in turn, break them down, and provide strategies for effectively managing cognitive categories. For now, I leave you to consider the power of categories and the great potential for challenging categories inherent in appellate advocacy. Think about the attorneys who challenged the existing category of separate but equal in the case of Brown v. Board. By deconstructing the doctrine of separate but equal, the advocates were able to reconstruct a new category rooted in the principle that separate is inherently unequal. In a different way, Abe Fortas deconstructed a negative category surrounding his client, Clarence Earl Gideon, to successfully argue for a defendant’s right to counsel in both state and federal proceedings. If we stop to think about it, nearly every landmark Supreme Court case has relied on the successful management of categories.