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Conversations With Phineas Gage: A Neuroscientific Approach to Negotiation Strategies

by Edward R. Ergenzinger, Jr.
December 2002

Honorable Mention in the Law Student Category
2002 James Boskey ADR Writing Competition. The competition is Sponsored by the ABA Section of Dispute Resolution and the Association for Conflict Resolution.

Edward R. Ergenzinger, Jr.


I. The Neurobiology of Decision-Making

A. Phineas Gage and the Dawn of Neuroscience

B. The Influence of Emotion

1. The Somatic-Marker Hypothesis

Views From Cognitive Psychology

II. The Application of Modern Brain Research to Negotiations

Manipulating Preferences

1. The "Mere Exposure" Effect

a. Objects

b. People

2. Shifting Subjective Weights in Evaluative Judgment

a. Precision

b. Probability, Proportion, and Affect

Parameters Affecting the Assessment of Risk

The Role of Affective Imagery

2. Individual Differences


At the core of the modern study of neuroscience is the idea that all behavior is a reflection of brain function. (1) According to this view, brain function is as responsible for simple motor behaviors like walking and breathing as it is for complex behaviors like feeling (affect) and thinking (cognition). (2) Neuroscientific research is in many ways an exploration of one of the last frontiers of science: the biological bases of consciousness and the mental processes by which we perceive, learn, remember, and act. (3)

Although we are far from a complete understanding of the inner workings of the brain, neuroscience research into decision-making has both complemented and updated traditional views of decision-making derived from such fields as psychology and economics. (4) Classical economic theory described individuals as "hyper-rational", making decisions by gathering and processing information in an optimal manner before acting in a manner that maximizes utility within a stable set of preferences. (5) This view gradually gave way to behavioral economics,which recognized that perceptual and cognitive contributions to the decision-making process result in an approach whereby the decision-maker merely attempts to attain a satisfactory level of achievement (so-called "bounded rationality"). (6) Bounded rationality came to dominate economic, and subsequent psychological, research on judgment and decision-making in the latter half of the twentieth century. (7) As a result of this research, it became increasingly clear that individuals do not express a stable set of preferences for given choices, but that these preferences are often constructed, not merely revealed, when presented with a choice problem. (8)

In recent years, a relatively neglected aspect of decision-making and judgment has secured greater interest among scholars and researchers: the automatic, experiential, affect-based side of our mental life. (9) Neurological research has highlighted the fact that the region of the human brain primarily responsible for rational judgment and decision-making cannot function properly without input from regions responsible for emotion. (10) Much of the time this input and its influence may not even be noticed on a conscious level, but it nonetheless shapes our decisions and judgment in drastic ways. (11) Although emotional influences have been analyzed by legal scholars in such areas as jury deliberations (12), appellate advocacy (13), judicial decision-making (14), and consumer products liability (15), there has been little or no direct discussion of the applicability of these findings to the field of dispute resolution.

Using both old and new research in the areas of psychology and neuroscience, this paper examines how these insights can be used for strategic advantage in negotiations. Part one of this paper will provide a brief history of neurological research into judgment and decision-making. In part two, scientific observations and theories will be applied to the process of negotiation. Psychological research regarding the effects of prior exposure and framing on affective associations will be analyzed in the context of manipulating preferences. In addition, neurological and psychological research on risk-taking behavior will provide insights into the role of imagery and individual differences on the assessment of risk. Ultimately, these findings will demonstrate that what we perceive as rational thought cannot exist independently of the vagaries of the heart.


A. Phineas Gage and the Dawn of Neuroscience

On September 14, 1848, a brief but fantastic account was published in the Free Soil Union of Ludlow, Vermont:

As Phineas P. Gage, a foreman on the railroad in Cavendish, was yesterday engaged in [tamping] for a blast, the powder exploded, carrying an iron instrument through his head … [t]he most singular circumstance connected with this melancholy affair is, that he was alive at two o'clock this afternoon, and in full possession of his reason, and free from pain. (16)

So began one of the seminal case studies in neurology, one that would ultimately call into question the assertion that Gage was "in full possession of his reason." (17) Although the rod pierced the base of his skull and traversed the front of his brain before exiting at high speed from the top of his head, Phineas Gage lived for nearly 13 more years. (18)

Perhaps more surprising than the fact that he survived was the effect of the accident on Gage. He experienced no paralysis or sensory deficits except for the loss of vision in his left eye, which was directly damaged by the rod. (19) His manual dexterity was intact, and there was no noticeable difficulty in his speech, language, or capacity for rational thought. (20) What was impaired, however, was his personality. (21) Specifically, Gage was no longer able to behave appropriately as a social being, and instead made choices that were consistently disadvantageous to him. (22)

The story of Phineas Gage became embroiled in medical debates of the time regarding the organization of the brain; debates which would continue in some form or another for a century. (23) In Gage's case, modern computer reconstructions of his skull estimate that the damage was localized to the ventromedial prefrontal cortices, located immediately behind the forehead on the underside of the brain. (24) For a field that in Gage's time was just coming to terms with the idea that specific areas could be responsible for sensory or motor functions, however, the idea of an area responsible for personality was beyond the pale for the vast majority of physicians and scientists. (25) Due to this bias, the significance of the behavioral changes associated with his brain injury were largely lost, waiting to be revisited in the latter part of the twentieth century.

B. The Influence of Emotion

1. The Somatic-Marker Hypothesis

In the 1980s, neurologist Antonio Damasio began studying patients he had been treating for damage to different parts of the prefrontal cortex. (26) One of these patients, whom he dubbed "Elliot," had suffered damage to his ventromedial prefrontal cortices as a result of a benign tumor that had been surgically removed. (27) Following the surgery, Elliott underwent significant personality changes that prompted Damasio to describe him as a "modern Phineas Gage." (28) Although his knowledge base survived and he could perform many separate functions just as well as he had before, Elliott could not be counted on to perform an appropriate action when it was expected. (29) For example, if required to read and classify documents for a given client, Elliot could understand and categorize each of the separate documents, but he was likely to suddenly switch from sorting to spending the entire day reading individual papers in detail. (30)

As Dr. Damasio treated Elliot, there was another aspect about his patient that started to trouble him: Elliot always seemed to recount the events that were taking place in his life with "a detachment that was out of step with the magnitude of the events." (31) Upon deeper probing, Damasio discovered that Elliot's relatives and Elliot himself recognized that he was "emotionally flat" compared to before his illness. (32) Further observation, psychophysiological studies, and neurological examinations designed to measure emotional reactivity indicated that objects and events that evoke emotional responses in most individuals failed to evoke an emotional response in Elliot. (33) These studies of Elliot and of subsequent similar patients led to the astounding realization: such patients no longer experienced emotion like the rest of us. (34)

Because, in general, the prefrontal cortices receive neural input from the rest of the entire brain, it is not surprising that this region is important for consolidating and sorting a wide variety of information from both the outside environment and from the body itself. (35) What is implied by studies of patients such as Gage and Elliot, however, is that the ventromedial portion of the prefrontal cortices are specifically involved in the integration of feeling and emotion with the anticipated consequences of one's actions. (36) Based upon his research, Damasio devised a theory as to how such an interaction works. (37) A lifetime of experience has resulted in the "marking" of input to the prefrontal cortex with positive or negative emotions, a process that has been learned over time by the association of emotional input from the body (somatic input) with predicted future outcomes of certain scenarios. (38)

Dubbed the "somatic-marker hypothesis," followers of this theory postulate that somatic markers increase the accuracy and efficiency of the decision process by rapidly and immediately linking an image of a future outcome with either a negative or positive association. (39) These markers are in many cases automatic and beneath our conscious awareness, but without them, individuals are prone to continually explore all possible outcomes and consequences available to them without the ability to weigh one alternative as superior to another. (40) Particularly when the required judgment or decision is complex or mental resources are limited, relying on an affective impression can be far more efficient than weighing all of the pros and cons or retrieving many relevant examples from memory in their entirety. (41)

2. Views From Cognitive Psychology

The somatic-marker hypothesis provides a neurological and anatomical complement to the theories of some earlier cognitive psychologists. For example, Robert Zajonc of Stanford University argued in the early 1980s that decision-making processes could be divided into "preferences" (feelings) vs. "inferences" (logic). (42) Zajonc argued that these processes were independent modes of information processing, but that affective reactions often occur automatically and can guide information processing and judgment. (43) Similarly, Seymour Epstein, Professor Emeritus of the University of Massachusetts, proposed a "dual-process" theory around 1990 based upon opposing conceptual systems: the experiential vs. the rational. (44)

The experiential system, according to Epstein, is automatic and attuned to affective associations, while the rational system is conscious and deliberative. (45) Although the theories of Damasio, Zajonc, and Epstein may differ in some of their details, they share the overriding assertion that emotional influences play an important role in decision-making.


Part two of this paper will present research findings that are consistent with the somatic-marker hypothesis. Based upon these findings, potential applications to the negotiation process will be discussed. These studies tend to fall into two broad categories: those that examine factors influencing preferences and those that examine perceptions of risk.

A. Manipulating Preferences

The "Mere Exposure" Effect

a. Objects

In studies conducted by Zajonc and colleagues into the influence of affect on judgment, a consistent finding is that objects repeatedly presented to an individual are capable of creating a positive preference toward those objects, even if no substantive information supports such an attitudinal change. (46) For example, subjects previously presented with stimuli such as faces, Chinese ideographs, or nonsense phrases at varying frequencies rate those stimuli with which they have been exposed more positively than unfamiliar stimuli. (47) When viewed through the lens of the somatic-marker hypothesis, this makes some sense: if you have prior exposure to something and have no negative association from that experience, it is preferable to choose that alternative than to go with an unknown.

This "mere exposure" effect is remarkably hardy, having been replicated with visual, auditory, gustatory, abstract, and social stimuli. (48) An important feature of the mere exposure effect is that the more frequent the exposure to a stimulus, the more positive the resulting response. (49) The effect also appears to be remarkably long-lasting, persisting even after subjects are provided with conflicting information regarding a given stimulus. (50)

Studies also indicate that an exposure does not have to be consciously remembered or even consciously perceived to induce the mere exposure effect. For example, one study involving amnesic patients demonstrated that prior exposure to pictures of faces accompanied by fictional biographies results in a later preference for those faces that were paired with positive information, even though the amnesic patients could not consciously recall the descriptions. (51) Such findings are also consistent with Damasio's somatic-marker hypothesis in that emotional influences seem to be rapidly associated with a given stimulus even before conscious awareness occurs.

Some basic applications of the mere exposure effect to negotiations merely reinforce common sense notions of how to get one's point across. Through the mere exposure effect, one would expect that, in some circumstances, the early statement of a position followed by regular repetition could have a measurable effect on the positive affective association an individual would have with that position. This notion supports an approach known well in the world of public speaking and the media: tell them what your point is going to be, make your point, and then summarize the point you just made.

A consistent feature of the stimuli used in these studies, however, is that they tend to be affectively neutral if presented on their own (e.g., nonsense phrases or ideographs), and only acquire a positive association through the prior exposure. In the case of alternatives that have universally negative affective associations (e.g., disease or death), the somatic-marker theory would predict that the "mere-exposure" effect would do little to counteract this pre-existing bias. In less extreme examples, alternatives that may be affectively neutral to one person may carry an emotionally negative connotation to another, simply based on individual histories. (52) Thus it is unlikely that preferences can be shifted toward a given option in every circumstance.

b. People

Studies placing the mere exposure effect in a social context have provided particularly dramatic results. Bornstein and colleagues have found that prior exposures to pictures of faces not only to affect preferences for those pictures, but also the interpersonal behavior of subjects toward the pictured individual. (53) Specifically, subjects subliminally exposed to a picture of a confederate subsequently displayed a more positive attitude toward that person. (54) Even more remarkably, those subjects were much more likely to agree with that confederate later when they engaged in a judgment task, even though they did not consciously recognize him. (55)

This finding raises interesting questions about the effect that prior exposures to parties on the other side of the negotiating table can have on what we believe to be our independent judgment. As stated in the previous section, prior negative associations are likely to have the common sense effect of producing a negative bias toward that individual's position. The converse may also be true: prior positive associations with an adversary (e.g. from prior fair dealings in similar transactions) may predispose an individual to be more likely to agree with that adversary in certain judgments. An intriguing area of application lies in those instances where an individual has previously encountered their current adversary, but in a brief manner that was emotionally neutral. For example, does prior exposure to an attorney's face solely through television or print advertising produce an effect similar to that described in the Bornstein study, such that individuals exposed to these images are more likely to agree with the featured attorney in future dealings? Conversely, because negotiations add an adversarial element that was not present in the relatively neutral laboratory setting of the Bornstein study, are the influences of such exposures less evident in the context of negotiations? Further study is therefore needed to explore these intriguing implications of the mere exposure effect.

2. Shifting Subjective Weights in Evaluative Judgments

Utilization of affective influences on decision-making in the area of evaluative judgments has much to do with framing, or presenting options in such a way that bias is created toward a particular choice. (56) For example, a venture described as having a 75 percent chance of success has more appeal than the same venture described as having a 25 percent chance of failure. (57) Although usually described in terms of individual risk aversion (58), the neural basis for framing's pervasive and persistent effects may lie in the rapid and immediate affective association conjured in the mind of the listener. (59) Such an explanation is consistent with descriptions of framing by Daniel Kahneman and Amos Tversky as resembling "perceptual illusions more than computational errors." (60)

Regardless of whether risk-averse or risk-seeking behavior can be explained by the somatic-marker hypothesis, it is clear that the way a proposal is worded or "framed" can have a significant impact upon its appeal. In the context of negotiations, such effects have the potential to impact decisions regarding distributive gains, where two parties must divide a given commodity or sum of money. As described below, cognitive psychologists have explored how variables relating to the distributional qualities of affective impressions impact judgment, such as the precision of the affective impression and probability.

a. Precision

Psychological research has tended to support what is known as "the evaluability principle": the weight of a stimulus attribute in an evaluative judgment or choice is proportional to the ease with which the value of that attribute is associated with an affective impression. (61) This means that the easier it is to precisely assign affective weight to information, the easier it is to use that information in the decision-making process. (62) In this way, stimuli with more precise affective associations carry more weight in impression formation, judgment and decision-making.

An example of this principle may be seen in a study conducted by Christopher Hsee of the University of Chicago, in which people were asked to assume that they were interested in buying a used music dictionary, and asked how much they would pay for dictionaries presented to them. (63) Dictionary B had twice as many entries as Dictionary A, but Dictionary A was in much better physical condition. (64) In a condition where the dictionaries were presented together, subjects were willing to pay more for Dictionary B, but in a condition where one group of subjects evaluated only A and another group evaluated only B, subjects were willing to pay more for Dictionary A. (65) Hsee theorizes that this effect is due to the evaluability principle: when the music dictionaries were side by side, it was easier to compare the number of entries to determine quality, but when the dictionaries were viewed independently, the most salient factor was physical condition. (66) Although the number of entries is a superior attribute in deciding to buy a dictionary, physical condition was more easily translated in this case into a good or bad impression.

With respect to negotiations, the evaluability principle is important because it indicates that even very important attributes may not be used by a decision-maker unless they can be translated precisely into an affective association. (67) Often this means two things: placing offers in favorable context and playing into the emotions of the opposing party. For the contextual prong, where a negotiation involves a set amount of money or a commodity with a known value, the context is already set and the evaluability principle is inherently involved. (68) By contrast, where the negotiation involves an item for which the value is only known by one party, then providing a favorable context becomes much more important. For example, in the sale of a used car, the seller often has more information about the true value of the car compared to the buyer and context can be provided either objectively (by a third-party mechanic) or subjectively (by "puffing" and comparisons to similar cars). The avenue chosen depends upon whether you are the buyer or seller, and on the true condition of the car. (69)

For the second, emotion-laden prong, framing issues in a manner that provides a clear contrast between options along a variable that is known to hold some emotional weight will accentuate the effect of providing a favorable context. Take, for example, the setting of a job offer. As described above, if a negotiation involves a set amount of money or a commodity with a known value, the context is presumably set. Thus, from the employer's perspective, if a competitor is offering a qualified applicant a salary that is much higher than what you are offering, the context is already set and may be difficult to overcome. Where the salaries are the same, however, it is important to point out other areas that would carry affective weight with the applicant, such as quality of life and company culture. Attention should be focused on those areas in which the affective reactions of the other party would be particularly positive or negative, and choices should be presented accordingly. For instance, in the example above, even if you are offering a lower salary, the quality of life issue may carry a great deal of weight if the applicant is a new parent.

A technique that plays into both prongs of this approach is the use of irrelevant or distractor options. (70) For example, subjects asked to train rats by choosing between a "mild" or "slightly painful" electric shock chose the "slightly painful" shock only 24 percent of the time. (71) When an extreme third option was provided that subjects could see but not choose, the percentage of subjects that chose to administer the "slightly painful" shock increased: to 28 percent when the third option was "moderately painful" and 39 percent when the third option was "extremely painful". (72) By providing an extreme third option, two opposing choices are immediately placed on a continuum that frames an otherwise unattractive option as a "moderate" choice. In negotiations, this lends added support to the technique of asking for more than you actually want to receive to facilitate arrival at a "moderate" position. Similarly, these observations also support the technique of bargaining over items that are not important to you as a means of strengthening your position with respect to those items for which you are truly interested.

b. Probability, Proportion, and Affect

As opposed to situations in which affective weights are precisely assigned, situations involving considerable uncertainty over some ambiguous item can also impact judgment. This is typically discussed in terms of uncertainty regarding quantity, leaving the decision-maker vulnerable to the salience of probability and proportion. (73) For example, in another experiment by Hsee, a group of subjects presented with an overfilled 7 oz. container of ice cream were willing to pay more for it than another group presented with an underfilled 8 oz. container. (74) Thus, the absolute amount is not as relevant as the proportion in certain situations.

This effect can interact with the evaluability principle described above. For example, in a gambling context, payoffs are easily evaluable in terms of probability. (75) In other words, it is usually easy to determine if your odds are greater than, or less than 50 percent. Thus, the rated attractiveness of a gamble is usually more related to the probability of winning than by the size of the payoff. (76) For example, subjects asked to rate the attractiveness of a wager with a 7/36 chance of winning $9 consistently rate this gamble as unattractive. (77) This is presumed to be due to the fact that, absent other information, the fact that the odds of winning are so much below 50 percent assumes greater relevance in the wager's overall attractiveness than the absolute amount that could be won. (78) If however, that same unattractive gamble is placed in a context in which it is juxtaposed against a very minor loss (e.g., you will only lose 5 cents for every try), then the size of the payoff assumes salience over the probability and the rated attractiveness of the gamble increases. (79) By providing some context for the payoff, the proportion of cost to benefit is so attractive in an affective sense that it can reverse the influence of probability for that particular decision. (80)

In some cases, the affective component of these judgments can be so salient that variation in probability has little to no weight at all in the decision-making process. Particular examples that carry extremely strong affective associations are such outcomes as "winning the lottery" or developing cancer. (81) The associations with such outcomes are so great that the attractiveness or unattractiveness of a decision relating to these possibilities is relatively insensitive to changes in probability as great as from .99 to .01. (82)

With respect to decisions regarding distributive gain during negotiations, the research mentioned above reinforces the importance of framing. Where possible, negotiators should try to avoid setting out raw numbers without some sort of context for those figures. For example, in a settlement context, the chances of prevailing at trial are often invoked to try to influence the opposing party's openness to a given offer. Imagine you are a defendant offering $20,000 to settle a personal injury case, and objective criteria are available to demonstrate that the average jury award for similar personal injury cases is $50,000. Now imagine that your offer is preceded by the added information that plaintiffs in similar cases only prevail at trial 20 percent of the time. The settlement offer and average jury awards are immediately placed in the context of a probability: plaintiff's chances at trial. Similar proportions can also be invoked in this setting to provide additional context, such as the percentage of such a jury award that would be lost to attorney's fees. As described in the next section, however, these effects need to be balanced against assessments of risk, which have their own impact upon judgment.

2. Parameters Affecting the Assessment of Risk

Studies by Damasio, Slovic, Epstein and others point to the notion that, regardless of how logical or statistical we would like to think our assessments of risk are, risk assessment is ultimately a product of affective associations. For example, in a recent study by Damasio and colleagues, normal subjects and patients with damage to their ventromedial prefrontal cortices were asked to perform a gambling task. (83) The task involved turning cards from one of four decks, with some cards resulting in a reward while others result in a penalty. (84) Unknown to the subjects, two of the decks were probabilistically "advantageous" (meaning that they resulted in greater overall rewards over time), while two decks were probabilistically "disadvantageous." (85) Self-accounts obtained in parallel verified that before normal individuals were consciously aware of which decks were advantageous, they began choosing advantageously and exhibited anticipatory skin conductance responses when they pondered a "risky" choice (picking from a disadvantageous deck). (86) In contrast, patients with damage to their ventromedial prefrontal cortices were able to eventually determine which decks were logically risky, but they continued to choose disadvantageously with no sign of anticipatory skin conductance responses. (87) These results underscore the fact that affective associations assist in decision-making, even when such influences are not consciously recognized.

a. The Role of Affective Imagery

In many ways, the effect of risk avoidance on judgment is the inverse of the seeking of a distributive gain. It is therefore not surprising that the principles described above with respect to probability, proportion, and affect are effectively reversed when it comes to the perception of a risk. This principle is best exemplified in several studies examining risk assessment where human lives were fictionally at stake. Forensic psychologists and psychiatrists asked to judge the likelihood that a mental patient would commit an act of violence were more likely to label the patient as dangerous if they were told that 10 out of every 100 similar patients committed an act of violence, as compared to being told there was a 10% chance of violence. (88) Similarly, subjects asked to rate the dangerousness of diseases rated a disease that kills 1,286 people out of every 10,000 as more dangerous than one that kills 24.14% of the population. (89)

This effect seems to be due in part to the affective associations that these alternative scenarios conjure up. Studies indicate that risk assessments framed in terms of probabilities of 10-20% tend to conjure the relatively benign affect-laden image of a single individual with a low risk of developing disease or committing violence. (90) In contrast, the equivalent representations presented in absolute numbers tend to conjure frightening images of large numbers of people dying or running amok. (91) These findings are also consistent with studies showing that story and narrative formats (which tend to invoke stronger affective associations) are more effective as warnings than statements of relative frequencies of harm. (92)

With respect to negotiations, it should be apparent that framing a choice in terms of a risk of loss or danger has more of an effect on encouraging a particular decision than framing the choice in terms of a potential gain. The use of probabilities should therefore be appropriately adjusted when framing a particular option. In addition, where possible, the negotiator should supplement the use of probabilities or stark numbers with story formats to maximize the invocation of affect-laden imagery.

b. Individual Differences

Studies have also demonstrated that individual differences in the ability to associate emotion with anticipated outcomes can affect risk assessment. In a gambling task, subjects who reported themselves to be highly reactive to negative events made fewer selections from decks with large losing payoffs, while greater self-reported reactivity to positive events was associated with a greater number of selections from high-gain decks. (93) In a negotiation context, background research or clues obtained in the course of negotiation regarding the predisposition of individuals on the other side of the bargaining table should guide how options are framed. Despite some of the generalizations stated in previous sections, it is important to remember that negotiation strategies must be tailored to fit both the situation, and the participants.


The insights of neuroscientific and psychological research over the past two decades have provided a new understanding of the role that emotional associations play in decision-making and judgment. For example, the mere exposure effect provides added support to common rhetorical techniques and raises intriguing questions regarding the influence of such effects on interpersonal relations. It is also of critical importance to frame issues in such a manner as to provide a clear contrast between options along a variable that has some emotional association. Depending on the context, the use of proportions vs. straight numbers vs. narratives can have an effect on preferences and biases toward specific decisions. Finally, it is important to remember that, despite these generalizations, negotiation strategies must be tailored to fit both the situation, and the participants. While some applications of this research corroborate existing practices in the field of negotiations, it is hoped that past and future studies in this area will serve to assist practitioners who wish to more consistently apply these principles to their strategic advantage.

End Notes

1. ERIC R. KANDEL, Brain and Behavior, in PRINCIPLES OF NEURAL SCIENCE 5, 5 (Eric R. Kandel, James H. Schwartz, & Thomas R. Jessell eds., 1991).

2. Id.

3. ERIC R. KANDEL, JAMES H. SCHWARTZ, & THOMAS R. JESSELL, An Overall View, in PRINCIPLES OF NEURAL SCIENCE 3, 3 (Eric R. Kandel, James H. Schwartz, & Thomas R. Jessell eds., 1991).

4. See generally, ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN 171-72 (Avon Books Inc. edition, 1998); Kandel, supra note 1; Paul Slovic, Rational Actors and Rational Fools: The Influence of Affect on Judgment and Decision-Making, 6 Roger Williams U. L. Rev. 163 (2000).

5. Richard A. Posner, Rational Choice, Behavioral Economics, and the Law, 50 Stan. L. Rev. 1551, 1552 (1998).

6. Herbert A. Simon, Rational Choice and the Structure of the Environment, 63 Psychol. Rev. 129, 137-38 (1956); but see Posner, supra note 5 at 1453-54 (stating that conventional economic analysis of law abandoned the "hyper-rational" view attributed to it by behavioral economists long ago).

7. Slovic, supra note 4 at 164.

8. Baruch Fischhoff et al., Knowing What You Want: Measuring Labile Values, in Cognitive Processes in Choice and Decision Behavior, 117-41 (Thomas S. Wallsten ed., 1980); Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica 263 (1979).

9. Slovic, supra note 4 at 165.

10. See generally, BARBARA A. MELLERS et al., Effects of Emotions and Social Processes on Bounded Rationality, in BOUNDED RATIONALITY 263 (G. Gigerenzer & R. Selten eds., 1999); Alice M. Isen, Positive Affect and Decision Making, in HANDBOOK OF EMOTIONS 261 (Micheal Lewis & Jeannette M. Haviland, eds., 1993); Damasio, supra note 4.

11. See generally, Damasio, supra note 4.

12. See, e.g., Reid Hastie, Emotions in Juror's Decisions, 66 Brooklyn L. Rev. 991 (2001).

13. See, e.g., Sarah C. Haan, The "Persuasion Route" of the Law: Advertising and Legal Persuasion, 100 Colum. L. Rev. 1281 (2000).

14. See, e.g., Peter Brandon Bayer, Not Interaction But Melding - The "Russian Dressing" Theory of Emotions: An Explanation of the Phenomenology of Emotions and Rationality With Suggested Related Maxims for Judges and Other Legal Decision Makers, 52 Mercer L. Rev. 1033 (2001).

15. See, e.g., Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74 N.Y.U. L. Rev. 640 (1999); Slovic, supra note 4.

16. Cited at (Last checked Nov. 23, 2001)(The rod was an inch and a fourth in circumference, and three feet and eight inches in length).

17. That Gage survived was a consequence, in part, to the fact that the tamping iron he was using was custom-made, and tapered to a point at the end that first entered his head in his left cheek. Damasio, supra note 4, at 4.

18. Id. at 10.

19. Id. at 8.

20. Id.; Mellers, supra note 10 at 264.

21. Mellers, supra note 10 at 264.

22. Id. Before the accident, Gage was "temperate" in his habits, accomplished within his vocation, and was highly regarded by his employer and by the men he supervised. Damasio, supra note 4, at 4, 8. After the accident, he never again held a steady job. Id. at 8. Gage manifested little deference for others, indulged in the most shocking profanity, was impatient regarding any advice that was contrary to his immediate desires, and was prone to formulating many future plans that were almost immediately abandoned. Id.

23. Id. at 12. The argument was essentially over whether specialized functions such as language or memory could be localized in any specific area of the brain or whether functions were distributed over its entirety. Id. As with many great debates, the truth as we understand it today is somewhere in the middle. While the brain contains a number of redundant networks that can compensate for some areas lost to injury, the brain is generally organized as a collection of functional units that are specialized for specific operations. See generally, Kandel, supra note 1 at 7-16.

24. H. Damasio, T. Grabowski, R. Frank, A. M. Galaburda, & A. R. Damasio, The return of Phineas Gage: The skull of a famous patient yields clues about the brain, 264 Science 1102 (1994). The cerebral cortex is a multilayered sheet of nerve cells toward the outer surface of the brain that can be subdivided into functional units depending on the type of function that area conducts (e.g. processing visual input, generating a movement, planning a movement, integrating sensory input from multiple sensory modalities, etc.). See generally, Kandel, supra note 1 at 7-16. The prefrontal cortices are comprised of a right and left prefrontal cortex, but are adjacent to one another where the two hemispheres abut one another. Id.

25. Damasio, supra note 4, at 13.

26. Id. at 34.

27. Id. at 35-6.

28. Id. at 34.

29. Id. at 37.

30. Id. at 36. His ability to make appropriate decisions was impaired, and despite the sometimes disastrous results of those decisions, he could not learn from his mistakes. Id. at 38.

31. Damasio, supra note 4 at 44.

32. Id. at 45. Elliot reported that he recognized that topics which had previously evoked strong emotion no longer caused any reaction at all. Id.

33. Id. at 45-51.

34. Id. at 44-5.

35. See generally E. G. Jones & T. P. S. Powell. An anatomical study of converging sensory pathways within the cerebral cortex of the monkey, 93 Brain 793 (1970); Earl K. Miller, The prefrontal cortex: Complex neural properties for complex behavior, 22 Neuron 15 (1999); R. Levy & P. S. Goldman-Rakic, Segregation of working memory functions within the dorsolateral prefrontal cortex, 133 Exp. Brain Res. 23 (2000).

36. Damasio, supra note 4 at 180-83. Neuroanatomical studies tend to support this assertion. As stated, the prefrontal cortices receive input from the rest of the entire brain, including input from areas responsible for processing emotion such as the anterior cingulate cortices and amydalae. Id. at 132-34. Other areas that seem to be implicated in some types of emotional experiences include those areas responsible for processing inputs from the body and viscera, such as the right somatosensory association cortex in the right parietal lobe. Id. at 70-1. All of these regions provide input that reaches the ventromedial prefrontal cortices. Id.

37. Id. at 173-75; see generally Antonio R. Damasio, The somatic marker hypothesis and the possible functions of the prefrontal cortex, 351 Phil. Trans. Royal Soc. London - Series B: Biological Sciences 1413 (1996).

38. Damasio, supra note 4 at 174.

39. Id.

40. Id. at 193-94.

41. Slovic, supra note 4 at 170-71. While this system may have evolved to produce efficiency and speed in the decision-making process (for example, in being able to quickly assess danger from the movements of an animal that has never before been encountered based upon previous experiences with predators) this same system may provide a neural correlate for prejudice. Such a correlate could explain why prejudice is such a consistent trait across cultures, but also points to the role that experience and learning can have in altering the development of such associations.

42. Robert B. Zajonc, Feeling and thinking: Preferences need no inferences, 35 Am. Psychol. 151, 154 (1980);

MARIA LEWICKA, Is hate wiser than love? Cognitive and emotional utilities in decision making, in DECISION MAKING: COGNITIVE MODELS AND EXPLANATIONS 90, 91-92 (Rob Raynard, W. Ray Crozier, & Ola Svenson, eds., 1997); Slovic, supra note 4 at 167.

43. Zajonc, supra note 42 at 155.

44. Seymour Epstein, Integration of the cognitive and psychodynamic unconscious, 49 Am. Psychol. 709, 710 (1994).

45. Lewicka, supra note 42 at 93.

46. Robert B. Zajonc, Attitudinal effects of mere exposure, 9 J. Pers. & Soc. Psychol. Monograph 1 (1968).

47. Slovic, supra note 4 at 171.

48. Robert F. Bornstein, Exposure and affect: Overview and meta-analysis of research, 1968-1987, 106 Psychol. Bull. 265 (1989).

49. Slovic, supra note 4 at 171.

50. Slovic, supra note 4 at 172, citing D. A. Sherman et al., Affective Perseverance: Cognitions Change but Preferences Stay the Same (1998). When asked to study Chinese characters and their fictionalized meanings, with half of the characters assigned positive meanings (e.g., beauty), and half assigned negative meanings (e.g., disease), subjects later preferred characters associated with positive meanings seventy percent of the time. Id. Even when the subjects were then told the true meaning of the characters, however, subjects still exhibited preferences toward those characters that had initially been paired with positive meanings. Id.

51. M. K. Johnson, J. K. Kim, & G. Risse, Do alcoholic Korasoff's syndrome patients acquire affective reactions?, 11 J. Exp. Psych.: Learning Memory & Cognition 27 (1985). Studies involving "normal" volunteers also demonstrate that subliminal exposure to stimuli (exposures so brief that they cannot be consciously perceived) are sufficient to significantly affect subject preferences toward the subliminal stimuli. See W. R. Kunst-Wlison & R. B. Zajonc, Affective discrimination of stimuli that cannot be recognized, 207 Science 557 (1980); see also Bornstein, supra note 48 at 265.

52. For example, interest rates being equal (which is a big assumption), one individual may have no preference between a bank loan and using a credit card, while another may have an extreme aversion to using a credit card due to a personal or family history of financial irresponsibility regarding their use.

53. R. F. Bornstein, D. R. Leone, & D. J. Galley, The generalizability of subliminal mere exposure effects: Influence of stimuli perceived without awareness on social behavior, 53 J. Personality & Social Psych. 1070 (1987).

54. Id.

55. Id.

56. Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 Science 453 (1981); seealso ROBERT H. MNOOKIN, SCOTT R. PEPPET, ANDREW S. TULUMELLO, BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES, 207-09 (Belknap Press, 2000).

57. 57 Tversky & Kahneman, supra note 56 at 453.

58. 58 See Karl Halvor Teigen & Wibecke Brun, Anticipating the future: Appraising risk and uncertainty, in DECISION MAKING: COGNITIVE MODELS AND EXPLANATIONS 112, 114 (Rob Raynard, W. Ray Crozier, & Ola Svenson, eds., 1997).

59. Damasio, supra note 4 at 193-94.

60. Daniel Kahneman & Amos Tversky, Choices, Values, and Frames, 39 Am. Psychologist 341, 343 (1984).

61. Slovic, supra note 4 at 176.

62. Id. For example, it is easier to decide whether you would want to accept a roommate who has been described as "obnoxious", than it is to decide whether you would want to accept a roommate who has been described as "intelligent." Barbara A. Mellers et al., Distributional theories of impression formation, 51 Organizational Behav. & Hum. Decision Processes 313 (1992). Intelligence, while a favorable trait, is not very meaningful in terms of likeableness, and so it is more difficult to assess whether it should have a positive connotation in this context. Slovic, supra note 4 at 174-5.

63. Christopher K. Hsee, Elastic justification: How unjustifiable factors influence judgments, 66 Organizational Behav. & Hum. Decision Processes 122 (1996) [hereinafter Hsee I]; Christopher K. Hsee, The evaluability hypothesis: An explanation for preference reversals between joint and separate evaluations of alternatives, 67 Organizational Behav. & Hum. Decision Processes 242 (1996) [hereinafter Hsee II]; Christopher K. Hsee, Less is better: When low-value options are valued more highly than high-value options, 11 J. Behav. Decision Making 107 (1998) [hereinafter Hsee III].

64. Slovic, supra note 4 at 174-5.

65. Id. at 175.

66. Id.

67. Id. at 176.

68. See Leigh Thompson & Reid Hastie, Social perception in negotiation, 47 Organizational Behav. & Hum. Decision Processes 98 (1990); Leigh Thompson & Dennis Hrebec, Lose-lose agreements in interdependent decision making, 120 Psych. Bull. 396 (1996).

69. A buyer will invariable choose the objective context, while the seller may prefer the subjective context if the car is in less than good condition.

70. Hanson & Kysar, supra note 15 at 676; see also Michael Harrison & Albert Pepitone, Contrast Effect in the Use of Punishment, 23 J. Personality & Soc. Psychol. 398, 400-01 (1972).

71. Harrison & Pepitone, supra note 70 at 400-01.

72. Id.

73. Id.

74. Id; Hsee III, supra note 63.

75. Slovic, supra note 4 at 178.

76. Id.

77. Id.

78. Id.

79. Id.

80. Id. This effect is especially prominent when the gamble has to do with human lives: willingness to intervene in a given scenario is determined more by the proportion of lives saved than by the actual number of lives. David Fethersonhaugh et al., Insensitivity to the Value of Human Life: A Study of Psychophysical Numbing, 14 J. Risk & Uncertainty 283 (1997); Jonathan Baron, Confusion of Relative and Absolute Risk in Valuation, 14 J. Risk & Uncertainty 301 (1997); James Friedrich et al., Psychophysical Numbing: When Lives Are Valued Less as the Lives At Risk Increase, 8 J. Consumer Psychol. 277 (1999). A study by Slovic found that people would more strongly support an airport-safety measure expected to save 98% of 150 lives at risk than a measure expected to save 150 lives. Slovic, supra note 4 at 179. The absolute number of lives is difficult to evaluate on its own, but when the question is framed in terms of a proportion, the assignment of affective weight is presumably easier and becomes more salient.

81. Id. at 180.

82. Id.

83. Antoine Bechara, Hanna Damasio, Daniel Tranel, & Antonio R. Damasio, Deciding advantageously before knowing the advantageous strategy, 275 Science 1293 (1997).

84. Id.

85. Id.

86. Id.

87. Id.

88. Slovic, supra note 4 at 183-84; Paul Slovic et al., Violence Risk Assessment and Risk Communication: The Effects of Using Actual Cases, Providing Instruction, and Employing Probability Versus Frequency Formats, 24 L. & Hum. Behav. 271 (2000).

89. Slovic, supra note 4 at 184; Slovic et al., supra note 94 at 288.

90. Slovic, supra note 4 at 184.

91. Id.

92. Laurie Hendricks et al., Relative Importance of Scenario Information and Frequency Information in the Judgment of Risk, 72 Acta Psychologica 41, 58-60 (1989).

93. Ellen Peters & Paul Slovic, The Springs of Action: Affective and Analytical Information Processing in Choice, 26 Personality & Soc. Psychol. Bull. 1465 (2000).


Although he drew on some of his graduate training related to Neurology and Psychology for this article, Edward R. Ergenzinger currently practices patent law in the area of biotechnology with the law firm of Alston & Bird, LLP. He received a J.D. in 2002, Ph.D. in Neuroscience in 1999, and B.A. in Biology and Psychology in 1994, all from Wake Forest University.

Edward Ergenzinger focuses his intellectual property law practice on patent procurement issues in the area of biotechnology. In addition to his experience as a patent attorney, Dr. Ergenzinger has several years of experience in the field of intellectual property law through his work as a patent agent and law clerk while attending law school full-time. Furthermore, his scientific training includes research and graduate coursework in the areas of neurophysiology, neuropharmacology, drug delivery systems, cellular and biochemical neuroscience, and molecular neuroscience.

Dr. Ergenzinger is the lead author or co-author on over 35 scientific and legal publications that have appeared in such venues as Nature Neuroscience, Nature Encyclopedia of Life Sciences, Legal Times, The Scientist, BioPharm Magazine, and Stanford Technology Law Review. He has lectured on scientific topics as part of the medical, graduate, and undergraduate curriculae at Wake Forest University. He has also lectured on intellectual property law as part of North Carolina Bar Association programs, including continuing legal education on developments in chemical and biotechnology patent law.

Dr. Ergenzinger is also active in legislative advocacy efforts relating to patent law through organizations such as the Biotechnology Industry Organization (BIO), for which he serves on their Intellectual Property Counsel's Committee. He has co-chaired panels on patent legislation as part of the BIO 2003 and BIO 2004 conventions that have included members of the House Subcommittee on Courts, the Internet , and Intellectual Property of the House Judiciary Committee. In particular, the panel he co-chaired for BIO 2003 was selected for a special program on Capitol Hill for members of Congress and their staff.

In 1994, Dr. Ergenzinger received a B.A. in Biology and Psychology, cum laude with honors, from Wake Forest University, where he was a Presidential Scholar. He received a Ph.D. in Neuroscience from Wake Forest University in 1999, where he was a National Institute of Mental Health Predoctoral Fellow at the School of Medicine. In 2002, he received a J.D. from Wake Forest University School of Law, where he was co-founder and editor-in-chief of the Wake Forest Intellectual Property Law Journal and received an American Bar Association Award for Excellence in the Study of Intellectual Property Law. Dr. Ergenzinger is registered to practice before the United States Patent and Trademark Office.

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