Person:

Hanson, Jon

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.

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.

This article is the third of a multipart series. The first part, "The Great Attributional Divide," 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.

The second part, "Naive Cynicism," 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, naive 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. Naive cynicism is thus critically important to explaining how and why certain legal policies manage to carry the day.

Naive cynicism often takes the form of a backlash against situationism that involves an affirmation of existing dispositionist notions and an assault on (1) the situationist attributions themselves; (2) the individuals, institutions, and groups from which the situationist attributions appear to emanate; and (3) the individuals whose conduct has been situationalized. If one were to boil down those factors to one simple naive-cynicism-promoting frame for minimizing situationist ideas, it would be something like this: Unreasonable outgroup members are attacking us, our beliefs, and the things we value.

We predict that naive cynicism is a pervasive dynamic that shapes policy debates big and small. We argue that it can operate at a particular moment or over long periods of time, and that it is embraced and encouraged by both elite knowledge-producers and the average person on the street.

This Article examines the reactions of prominent academics to situationist scholarship. As we argue in this Article, naive cynicism, operating as we predict above, has played a significant role in retarding the growth and influence of more accurate situationist insights of social psychology and related fields within the dominant legal theoretical frameworks of the last half-century.

This Article attempts to elucidate how our forebears, who were presumably as devoted to justice and liberty in their times as we are in ours, failed to condemn behaviors that are today widely viewed as patently oppressive, unfair, and even evil.

Our argument unfolds in several Parts. Part II summarizes evidence from social psychology and related fields that helps explain how people who imagine themselves fair and just routinely blame the victims of inequities and excuse the perpetrators or passive observers through blame frames.

Because humans crave justice, salient suffering or inequalities activate an injustice dissonance within us. Too often, we alleviate that dissonance, not by addressing the injustice, but by creating an illusion of justice through assumptions, arguments, or stereotypes about the blameworthiness of the victim. Part II then describes three powerful blame frames that have coexisted, while alternating in dominance, throughout American history: the God frame, the nature frame, and the choice frame.

Part III elucidates through a few prominent examples how blame frames have operated throughout history to relieve our forebears' injustice dissonances and to perpetuate systems of oppression. The motivated attributions underlying those blame frames acted to legitimate laws, customs, and practices that today - with the benefit of hindsight and the lens of a new frame - are recognized as clearly unjust.

Part IV argues that we suffer an equally great confusion today, but the injustices that haunt our generation are soothed less by the God and nature frames and more by conceptions of choice. Choicism attributes disparities to the preferences and character of individuals and their groups. Although choicism purports to be colorblind and non-discriminatory, it is, unfortunately, just the latest cloak veiling racism and other groupisms while allowing us to blame victims and excuse non-victims. Part IV, by examining public reactions to Hurricane Katrina and her aftermath, then shows how Americans experienced an unusually powerful and intractable injustice dissonance when the winds, water, and desperation exposed inequalities that choicism could not readily justify. For at least a moment, Americans faced what seemed to be strong evidence of racial injustice. Part IV reveals some of the ways that a set of overlapping and largely camouflaged blame frames obscured and confused the public discourse regarding Katrina and the injustice dissonance she wrought.

Finally, this Article argues that only by understanding the sources and effects of blame frames can we ever hope to end oppression and thereby live according to the fundamental values we espouse.

This article was written for the 2005 Symposium: "Calabresi's Costs of Accidents: A Generation of Impact on Law and Scholarship" held at the University of Maryland Law School. Donald Gifford provided the following summary in his introduction to the symposium issue:

Adam Benforado and Professor Jon Hanson analyze Calabresi's and Posner's very different views of law and economics using concepts borrowed from social psychology. They view Posner as representative of the "relative" dispositionist whose analysis proceeds from the belief that "[t]he individual is presumed to be an independent, choice-making agent whose acts both satisfy and reveal a set of underlying preferences." In contrast, according to Benforado and Hanson, "Calabresi stands as a relative situationist in a particularly dispositionist school of thought";] he "has the instincts of a social psychologist," and differs from those who would "ignore the more significant role played by situational forces - unseen or underappreciated features in our environment and in our interiors." Benforado and Hanson suggest that both Calabresi's and Posner's intellectual development were influenced greatly by their differing reactions to changing intellectual trends emerging during the 1960s: Calabresi seems to have embraced "the general push toward situationism," while Posner was one of a number of scholars that "lashed back in an attempt to legitimate the systems that were being upended by situationist thinking."

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.

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.

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.