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Hanson, Jon

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Hanson, Jon
Author's Publications: search.filters.isAuthorOfPublication.6cbe0af5-bac3-4ca4-955a-a3652c96abe2

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Now showing 1 - 10 of 13
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    Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory
    (2004) Chen, Ronald; Hanson, Jon
    This Article focuses primarily on one slice of social psychology and social cognition research, namely the vast and vibrant field examining the integral role that knowledge structures play in the way we attend to, remember, and draw inferences about information we encounter and, more generally, the way we make sense of our world. The human system of processing information is, in many cases, an efficient means of understanding our worlds and ourselves. Classification of people, objects, and other stimuli is often both indispensable and ineluctable. Still, as social psychologists have demonstrated, "virtually any of the properties of schematic functioning that are useful under some circumstances will be liabilities under others." The categories and schemas that operate, usually automatically, influence all aspects of information processing - from what information we focus on, to how we encode that information, to which features of that information we later retrieve and remember, and to how we draw inferences and solve problems based on that information. Given the unconscious and biasing influence of our schemas, combined with the fact that our schemas themselves will often reflect our unconscious motives, we should be mindful, even distrustful, of our schemas and the conclusions that they generate. These effects, the processes that drive them, and the biases they engender are the primary subject of this Article. A central goal is to offer a broad understanding of how individuals utilize categories, schemas, and scripts to help make sense of their worlds. In doing so, we serve another main objective: to provide a comprehensive (yet manageable) synthesis of a vast body of social psychology literature. This overview should transform how we make sense of our laws and legal-theoretic world. Part II of this Article is devoted to describing the significance of knowledge structures. Part III briefly summarizes how legal scholars have thus far applied insights about knowledge structures and argues that their most profound implications have yet to be appreciated. Part III then provides a set of predictions regarding the influence of knowledge structures and the biases they likely engender for legal theories and laws.
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    Taking Behavioralism Seriously: The Problem of Market Manipulation
    (1999) Hanson, Jon; Kysar, Douglas A.
    For the past few decades, cognitive psychologists and behavioral researchers have been steadily uncovering evidence that human decisionmaking processes are prone to nonrational, yet systematic, tendencies. These researchers claim not merely that we sometimes fail to abide by rules of logic, but that we fail to do so in predictable ways. With a few notable exceptions, implications of this research for legal institutions were slow in reaching the academic literature. Within the last few years, however, we have seen an outpouring of scholarship addressing the impact of behavioral research over a wide range of legal topics. Indeed, one might predict that the current behavioral movement eventually will have an influence on legal scholarship matched only by its predecessor, the law and economics movement. Ultimately, any legal concept that relies in some sense on a notion of reasonableness or that is premised on the existence of a reasonable or rational decisionmaker will need to be reassessed in light of the mounting evidence that humans are "a reasoning rather than a reasonable animal." This Article contributes to that reassessment by focusing on the problem of manipulability. Our central contention is that the presence of unyielding cognitive biases makes individual decisionmakers susceptible to manipulation by those able to influence the context in which decisions are made. More particularly, we believe that market outcomes frequently will be heavily influenced, if not determined, by the ability of one actor to control the format of information, the presentation of choices, and, in general, the setting within which market transactions occur. Once one accepts that individuals systematically behave in nonrational ways, it follows from an economic perspective that others will exploit those tendencies for gain. That possibility of manipulation has a variety of implications for legal policy analysis that have heretofore gone unrecognized. This article highlights some of those implications and makes several predictions that are tested in other work.
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    The Situational Character: A Critical Realist Perspective on the Human Animal
    (2004) Hanson, Jon; Yosifon, David G.
    This 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." This 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, 152 U. Pa. L. Rev. 129 (2003). That introductory article adumbrated, often in broad stroke, the central premises and some basic conclusions of a new approach 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 larger project, and describes 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 neural psychology 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 for law, legal theory, and social policy. It then analyzes conventional legal scholars', particularly legal economists', arguments for 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 psychological findings - the sort of work that is often labeled "behavioralist" - have been inadequate. Finally, the authors briefly look beyond the human actor itself to consider some of the fairly obvious - but generally ignored - realities of our present social situation, and some of their implications for common policy presumptions. 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.
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    The Great Attributional Divide: How Divergent Views of Human Behavior are Shaping Legal Policy
    (2008) Benforado, Adam; Hanson, Jon
    This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people's dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should be a major priority of legal scholars. With such information, legal academics could predict which individuals, institutions, and societies are most likely to produce situationist ideas - in other words, which have the greatest potential for developing the accurate attributions of human behavior that are so important to law.
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    The Illusion of Law: The Legitimating Schemas of Modern Policy and Corporate Law
    (2004) Chen, Ronald; Hanson, Jon
    This Article is about some of the schemas and scripts that form and define our lives. It is about the knowledge structures that shape how we view the world and how we understand the limitless information with which we are always confronted. This Article is also about the "evolution of ideas" underlying corporate law and all of modern policymaking. It is about the ways in which schemas and scripts have influenced how policy theorists, policymakers, lawyers, and many others (particularly in the West) understand and approach policymaking generally and corporate law specifically. It is about both the invisibility and blinding effect of those schemas. It is about the battle over those schemas and the prizes of victory. And, finally, it is about how the now-dominant schemas render us the "unwitting puppets of the intellectual forces that have been undermining the basis of a free society these past decades." We begin our discussion in Part II with the dominant knowledge structures underlying modern policymaking, describing the emergence of what we term the "meta script" of policymaking - or the schemas that frame our approach to policy analysis today. Part III turns to the law regulating large commercial interests - specifically, corporate law - and examines the emergence and dominance of the new "macro script" of corporate law. It examines the schemas that identify and legitimate the purpose of the law. Parts IV and V highlight the signs of illusion in those schemas and then begin to unveil the situational magician behind those illusions. Corporate law works, as all illusions work, by relying on a set of schemas that guide our attention and inferences and play into our intuitions and motives. Yet the outcome and response that this Article suggests is neither so benign nor light-hearted as that of a magic show. While its analysis is concentrated on corporate law, the Article's implications reach each of us, from law student to legal scholar, citizen to policymaker, and reveal something unsettling: all of us are susceptible to schematic sleight-of-hand, tricks that render us vulnerable to dangerous illusion. Where many have heretofore tended to see magic, this Article reveals the illusion of law and some of the unseen mechanisms that make it possible. This project's larger ambition, it should be noted, is not to encourage disillusionment with the purported goals of the law, but to provide insights that help tailor our means and to narrow the gap between our ends and our outcomes.
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    Taking Behavioralism Seriously: Some Evidence of Market Manipulation
    (1999) Hanson, Jon; Kysar, Douglas A.
    An important lesson of behavioralist research is that individuals' perceptions and preferences are highly manipulable. This article presents empirical evidence of market manipulation, a previously unrecognized source of market failure. It surveys extensive qualitative and quantitative marketing research and consumer behavioral studies, reviews common practices in settings such as gas stations and supermarkets, and examines environmentally oriented and fear-based advertising. The article then focuses on the industry that has most depended upon market manipulation: the cigarette industry. Through decades of sophisticated marketing and public relations efforts, cigarette manufacturers have heightened consumer demand and lowered consumer risk perceptions. Such market manipulation may justify moving to enterprise liability, the regime advocated by the first generation of product liability scholars
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    Taking Behavioralism Seriously: A Response to Market Manipulation
    (2000) Hanson, Jon; Kysar, Douglas A.
    In two previous articles, we hypothesize that, because consumers are subject to predictable cognitive processes that depart from rational utility maximization, manufacturers have the opportunity and incentive to manipulate consumer perceptions of product risks. We suggest in those earlier articles that enterprise liability might offer the most efficient products liability regime in response to the problem of market manipulation. This work extends the analysis by focusing more particularly on the extent to which enterprise liability can combat manufacturer exploitation of consumer cognitive processes. It does so by responding to critiques recently offered by Professors Jeffrey Rachlinski and James Henderson in their article, "Product-Related Risk and Cognitive Biases: The Shortcomings of Enterprise Liability." Those authors argue that we overstate the extent of market manipulation and underestimate the ability of existing laws to identify and redress manipulative conduct. In addition, they argue that, even if enterprise liability does offer the best theoretical response to market manipulation, it offers little hope of practical results due to certain insurmountable difficulties in implementation. Finally, they contend that enterprise liability might actually backfire if adopted, ultimately exacerbating the problem of market manipulation by enabling product manufacturers who oversell safety through fear-based marketing appeals. We respond to each of these critiques and conclude that the case for enterprise liability remains remarkably strong.
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    Situationist Torts
    (2008) Hanson, Jon; McCann, Michael
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    Naive Cynicism: Maintaining False Perceptions in Policy Debates
    (2008) Benforado, Adam; Hanson, Jon
    This is the second article in a multi-part series. In the first part, The Great Attributional Divide, the authors suggested that a major rift runs across many of our major policy debates based on contrasting attributional tendencies (dispositionist and situationist). This article explores how dispositionism maintains its dominance despite the fact that it misses so much of what actually moves us. It argues that the answer lies in a subordinate dynamic and discourse, naïve cynicism: the basic subconscious mechanism by which dispositionists discredit and dismiss situationist insights and their proponents. Without it, the dominant person schema - dispositionism - would be far more vulnerable to challenge and change, and the more accurate person schema - situationism - less easily and effectively attacked. Naïve cynicism is thus critically important to explaining how and why certain legal policies manage to carry the day.