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The Situational Character: a Critical Realist Perspective on the Human Animal , 93 93 Geo L Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 11-2004 The ituaS tional Character: A Critical Realist Perspective on the Human Animal Jon Hanson Santa Clara University School of Law David Yosifon Santa Clara University School of Law Follow this and additional works at: https://digitalcommons.law.scu.edu/facpubs Part of the Law and Economics Commons, Law and Society Commons, and the Legal History Commons Automated Citation Jon Hanson and David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal , 93 93 Geo L. J. 1 (2004), Available at: https://digitalcommons.law.scu.edu/facpubs/59 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected], [email protected]. Articles The Situational Character: A Critical Realist Perspective on the Human Animal JON HANSON* & DAVID YOSIFON** Th is Article is dedicated to retiring the now-dominant "rational actor" model of human agency, together with its numerous "dispositionist" cohorts, and replacing them with a new conception of human agency that the authors call the "situational character." Th is is a key installment of a larger project recently introduced in an article titled The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture. 1 That introduc­ tory article adumbrated, often in broad stroke, the central premises and some basic conclusions of a new app roach to legal theory and policy analysis. This Article provides a more complete version of one of those central premises by elucidating a more realistic conception of the human animal than is currently embraced in legal theory. The Article begins with a short introduction to the la rger project, and de­ scribes the central place that a realist conception of the human actor plays in that project. It then explores several bodies of literature within the fields of social, cognitive, behavioral, and neuralpsychology in pursuit of a vision of the human actor that is grounded in social science. Having explicated that conception, the Article then outlines some of the basic implications of it fo r law, legal theory, and social policy. It then analyzes conventional legal scholars', particularly legal economists', arguments fo r ignoring the lessons of social science in their treatment of human agency. As part of that analysis, this Article describes why recent efforts to incorporate some psycho­ logical findings-the sort of work that is often labeled "behavioralist"-have been inadequate. Finally, the authors brieflylook beyond thehuman actor itselfto consider some of the fa irly obvious-but generally ignored-realities of our present social situation, and some of their implications fo r common policypr esumptions. As subsequent work will make clear, this new, situationist conception of the human animal is as important to a realist account of law and legal theory as the dispositionist conception has been to now-dominant accounts. * Professor of Law, Harvard University. ** Visiting Professor of Law, Rutgers Law School-Camden. We are grateful to Tracy Conn, Kemoy Foster, Sam Halabi, Geutam lois, Mariko Miki, Susie Rhees, Matt Thompson, Brandon Weiss, and Andrew Woods for superb research assistance, and to Carol Igoe for outstanding secretarial assistance. Financing from the Harvard Law School Summer Research Fund and Rutgers Law School-Camden School provided valuable research support. We are also grateful for helpful comments to participants at the Yale Legal Theory Workshop, the University of Texas Law School Faculty Workshop, and the 2004 Louise D. Brandeis Lecture Series at Harvard Law School, sponsored by the American Constitution Society. Finally, we would like to express our love and deepest gratitude to Kathleen, Emily, Erin and Ian Hanson, and Paula Noyes-without these characters in our situation, this Article would never have been possible. I. 152 U. PA. L. REV. 129 (2003). 1 2 THE GEORGETOWN LAW JOURNAL [Vol. 93 :1 TABLE OF CONTENTS I. INTRODUCTION ...................................... 6 A. BRINGING THE READER UP TO SPEED . 6 B. AN INTRODUCTION TO DISPOSITIONISM ................... 6 C. THE UBIQUITY OF DISPOSITIONISM ...................... 8 1. Dispositionism in (Law and) Economics . .. .. 8 2. Dispositionism in Classic Liberal Political Theory . .. 10 3. Dispositionism in the Law ...................... 13 a. Contract Law ........... ... .... ..... 13 b. Tort Law . .. .. .. .. .. .. 15 c. Criminal Law .... .............. ... 18 D. THE HIGH STAKES OF DISPOSITIONISM-AND OF OUR ARGUMENT . 20 II. MISSING THE SITUATION AND SEEING DISPOSITION . .. .. .. .. 22 A. TWO SOURCES OF DISPOSITIONISM ...................... 23 1. A Basic Source of Dispositionism . .. .. .. .. 23 2. A Deeper Source of Dispositionism ............... 24 B. THE INTERIOR FUNDAMENTAL ATTRIBUTION ERROR . ........ 25 1. Thinking and Being . .. .. .. .. .. .. .. 28 2. Preferences and Identity . .. .. .. .. .. .. 29 3. Willing, Acting, and Freedom . .. .. .. .. .. .. 30 4. Summary of the Interior Fundamental Attribution Error . 31 5. The Situation of Our Interiors . .. .. .. .. .. .. 32 6. Situation Defined . .. .. .. .. .. .. .. .. 33 III. GETTING TO KNowT HE SITUATIONAL CHARACTER .. .... .... .. 34 A. INSIDE THE SITUATIONAL CHARACTER . .. .. .. .. .. 34 1. Flies, Rats, and Science ............ .......... 34 2. A Closer Look at the Interior Situation ............. 36 B. UNSEEN COGNITION (VS. "THINKING") ................... 37 1. Choice Biases .......... ............ ...... 39 2004] THE SITUATIONAL CHARACTER 3 a. Intratemporal Effe cts . 39 i. Heuristics ........................... 39 ii. Endowment Effe cts . 41 iii. Framing Effe cts . 42 iv. Summary............................ 43 b. Intertemporal Effe cts . 44 2. Process Biases . 49 a. Knowledge Structures ..... 50 i. Th e Stereotypical Knowledge Structure . 52 ii. Cognitive Groupism . 54 iii. Stereotype Threat and Some Exterior Situational Consequences of Knowledge Structures .... ......... .............. 59 b. Attributional Processes . 62 i. Causation, Responsibility, and Blame ... .. .. 62 ii. LayJud ges . ... ................. 65 iii. The Situation of Attributions . 66 c. Counter/actual Thinking ........... ... ... 67 3. Defending our Knowledge Structures .............. 71 a. Where Motive Meets Knowledge Structures . 71 b. Economics: A Preliminary Case Study ... 75 i. Knowledge Structures in the Analysis of Te mporalEffe cts ... .... ...... ......... 76 ii. The Focus on Choice Biases . 82 4. Summary . .................................. 84 C. ATIlTUDES (vs. "PREFERRING") .....•.....••...••••.•• 85 1. Some Evolution of the Concept . 85 a. The Traditional View-Stable and Causal . 85 b. The Modem View-Neither Stable nor Causal . 86 c. The Emerging View- Implicit and Automatic . 87 2. Motivation ................................. 90 4 THE GEORGETOWN LAW JOURNAL [Vol. 93: 1 a. Motive to Understand .. .................... 91 b. Motive to Self-Affirm . .. 94 i. Individual ........................... 95 ii. Group .... .......................... 100 iii. System (and World) .. ............... ... 101 iv. Summary............................ 106 c. Motive to Simplify . .. 106 d. Motive to Cohere . .. .. .. .. 107 i. Individual ........................... 108 ii. Group.............................. 111 3. Affect..................................... 115 D. BEHAVIOR (VS. "CHOOSING") ....... .. ................ 120 1. Visceral Factors . .. 120 2. The Inverted Causal Relationship Between Attitudes and Behavior . .. 122 E. AUTOMATICITY & THE ILLUSION OF CONSCIOUS WILL ("THE WILL") ...... ........ ... ........ .............. 124 1. Automaticity ................................ 126 2. The Illusion of Will ......... .. 128 iv. A FEW POSSIBLE LESSONS FOR LAW AND LEGAL THEORY l33 A. THE LAW . .. .. 134 B. LEGAL THEORY . .. .. .. .. .. .. l36 V. DrsPOSITIONISM IN LAW AND ECONOMICS . .. .. 138 A. THE DISPOSmONIST ACTOR OF LAY AND LEGAL-ECONOMIC THEORIES ... ........................... ........ 139 B. SCRUTINIZING THE MYTH OF THE RATIONAL ACTOR . .. .. 14 4 2004] THE SITUATIONAL CHARACTER 5 C. FIVE TYPES OF INADEQUATE "REALISM" .................. 152 1. Counterfeit Realism . 153 2. Defensive Realism . 159 3. Selective Realism ................ ...... ...... 167 4. Weak-Fonn Realism . ...................... ... 167 5. Strong-Fonn Realism . 169 VI . THE SITUATIONAL CHARACTER'S SITUATION . 17 0 A. SEEING IT ............. .. .................... 17 1 B. MISSING IT . • . 17 2 C. DENYING WHAT WE CANNOT ADMIT . 17 5 VII . CONCLUSION........................................ 177 "What is a human being? Legal theorists must, perforce, answer this question: jurisprudence, aft er all, is about human beings. " - Robin West2 "If you want to know the law and nothing else, you must look at it as a bad man, who cares only fo r the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons fo r conduct, whether inside the law or outside of it, in the vaguer sanctions of con­ science. " - Oliver Wendell Holmes, Jr. 3 "[Tlhe implicit modern liberalconception of the average person [is that he is] good, but inept, and fo r both reasons not very responsive to incentives, though perhaps rather plastic. The implicit conservative view of the average person,
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