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An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture

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An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Jon Hanson & David Yosifon, The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 U. Pa. L. Rev. 129 (2003). Published Version http://scholarship.law.upenn.edu/penn_law_review/vol152/iss1/9/ Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:12964431 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA THE SITUATION: AN INTRODUCTION TO THE SITUATIONAL CHARACTER, CRITICAL REALISM, POWER ECONOMICS, AND DEEP CAPTURE JON HANSONt & DAVID YOSIFON t What social psychology has given to an understanding of human nature is the discovery that forces larger than ourselves determine our mental life and our actions-that chief among these forces... [is] the power of the social situation. -Mahzarin R. Banajil Perceptionsare real .... They color what we see ... what we believe ... how we behave. They can be managed... to motivate behavior ... to create positive business results. -Burson-Marsteller Public Relations Firm Home PageW t Professor of Law, Harvard University. "' Law Clerk, Judge Patti B. Saris, United States District Court for the District of Massachusetts. B.A., Rutgers University; M.A., Carnegie Mellon University; J.D., Harvard Law School. We are grateful to Kwaku Akowuah, Tom Allen, Tim Cullen, Chris Egleson, Garrett Moritz, Lena Salaymeh, Yoni Rosenzweig, Wes Shih, Mila Sohoni, Dan Weiner, Allen Wong, and Michelle Yau for excellent research assistance, to Adam Benforado, 'Jon Goldin, Sam Halabi, Brandon Hofmeister,Jith Meganathan, Matt Thompson, and Adam Wright for extraordinary research assistance, and to Carol Igoe for outstanding secretarial assistance. Financing from the Harvard Law School Summer Research Fund provided valuable research support. We are also grateful to participants in the Harvard Law School Faculty Workshop, the University of Michigan Law and Economics Workshop, and the Harvard Law School Graduate Student Workshop for helpful comments. We would particularly like to thank Ian Ayres, Guido Calabresi, Christine Desan, Phoebe Ellsworth, John Gillis, Lani Guinier, Mort Horwitz, James Livingston, Duncan Kennedy, Todd Rakoff, the late Gaston Rimlinger, Scott Sandage, Joseph Singer, Paul Slovic, Peter Stearns, Diana Strassmann, and Roberto Unger, among many others, for their enriching situational influences on us and this work. Finally, we would like to express our love and deepest gratitude to Kathleen, Emily, Erin, and Ian Hanson; Paula Noyes; and Michael, Viola, Michael, Jr., Tracy, Stephen, and Evan Yosifon. I Mahzarin R. Banaji, Ordinary Prejudice, 14 PSYCHOL. Sci. AGENDA 8, 8 (2001). 2 SHELDON RAmPTON & JOHN STAUBER, TRUST US, WE'RE EXPERTS! 2 (2001) (all but first ellipsis in original) (quoting Burson-Marsteller, Inc., at http://www.bm.com (Sept. 27, 1997)). (129) 130 UNIVERSITY OF PENNSYLVANIA LAWREVIEW [Vol. 152:129 INTRODUCTION TO AN INTRODUCTION ................................................ 132 I. SETTING THE STAGE: TWO PUZZLES ................................................ 133 A. The First Puzzle....................................................................... 133 B. The Second Puzzle ................................................................... 139 II. BRIEF INTRODUCTION TO THE SITUATIONAL CHARACTER .............. 149 A. Seeing the Actors...................................................................... 149 B. M issing the Stage ..................................................................... 154 C. The Bounds of Dispositionism................................................... 157 1. How Fundamental Is Our Dispositionism ? ........................... 157 a. Economic incentives ........................................................... 158 b. The limits of economists'situationism................................... 159 c. Some situation behind our dispositionism.............................. 165 2. How Fundamental an Error Is Our Dispositionism? ............ 167 D. Some Sources of Dispositionism.................................................. 174 E. The FundamentalInterior Attribution Error (or, Getting Ourselves Wrong) ......................................................... 177 III. A BRIEF INTRODUCTION TO CRITICAL REALISM ............................. 179 A. "Realism".............................................................................. 181 B. "Critical".............................................................................. 182 C. What Is So CriticalAbout Realism? ........................................... 183 1. Facing Our Fears of Reality .................................................... 184 2. Thinking the Unthinkable ..................................................... 187 3. Faith or Social Science? .......................................................... 189 D. Some Presuppositionsof Critical Realism .................................... 191 IV. BRIEF INTRODUCTION TO POWER ECONOMICS .............................. 193 A. Power..................................................................................... 193 1. Power Blindness ...................................................................... 195 2. Looking for Power .................................................................. 196 B. Economics .............................................................................. 197 C. Some Implications of Power Economics ........................................ 198 V. BRIEF INTRODUCTION TO DEEP CAPTURE ................................... 202 A. Shallow Capture...................................................................... 202 B. Deep Capture: An HistoricalExample ........................................ 206 C. Deep Capture: History Repeating Itself ....................................... 212 1. Som e Deep Im plications of Shallow Capture ....................... 212 2. The Depth of Capture ............................................................ 213 3. The Invisibility of Capture ..................................................... 218 4. Learning from History ................................. 219 2003] THE SITUATION a. Institutions to deeply capture............................................... 219 b. Fundamentalattribution errors ........................................... 223 c. Incentives to deeply capture................................................. 223 i. The stakes of geocentricism ............................................. 223 ii. The stakes of dispositionism ............................................ 225 D. The Deep Capture Hypothesis .................................................... 229 VI. SOME EVIDENCE OF THE DEEP CAPTURE HYPOTHESIS .................... 230 A. Some Shallow Evidence of Deep Capture...................................... 231 B. Some Less Shallow Evidence of Deep Capture............................... 242 C. Some Cross-CulturalEvidence of Deep Capture............................. 250 D. Some Direct Evidence of Deep Capture........................................ 260 E. Some Deeper Evidence of Deep Capture: The Puzzles Revisited ....... 269 1. The Demand for Credible Messengers ................................. 269 2. The Creation of Credible Messengers ................................... 272 a. A m arket test .................................................................... 275 b. Re-imagining the marketplace of ideas................................... 278 VII. A THEORY OF ATTRIBUTIONAL PRESUMPTIONS ............................ 285 A. Legal-Theoretic Presumptions .................................................... 287 1. The Classical Theory of Contract .......................................... 288 2. The Dispositionism of Post-Classical Contract Theory ......... 292 B. Legal Presumptions.................................................................. 299 C. Social Policy Presumptions: Learningfrom History Again ............ 303 1. The Teacher's View of the Learner ........................................ 304 2. The Master's View of the Slave ............................................... 308 a. The basic message-dispositionism....................................... 309 i. Revealed inferiority ........................................................... 310 ii. Consent-implied and revealed ....................................... 319 b. Amplifying dispositionism: The anti-slavery bogeypeople .......... 321 c. Dispositionalizingthe opposition........................................... 324 d. Our dispositionalizationof slavery ......................... 326 3. C on clusion .............................................................................. 327 D. The Situational Bogeypeople ...................................................... 328 1. The Communism Bogeyman ................................................. 329 2. The Personal-Responsibility Bogeyman ................................. 332 3. The Paternalism Bogeyman .................................................. 336 4. Summary: The Bogeypeople as Response to, and C reation of, T hreat ....................................................................... 340 CONCLUSION: FACING OUR FEARS ......................................................
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