The Situationist

Posts Tagged ‘Jon Hanson’

Review of “Ideology, Psychology, and Law”

Posted by The Situationist Staff on May 30, 2012

Over at The Jury Expert, You can read an insightful review (by Rita R. Handrich, PhD) of Jon Hanson’s recent book, Ideology, Psychology, and Law” (Oxford University Press). [Introductory chapter available, here].

It opens this way:

Trial consultants, and the very best trial lawyers, practice with an awareness of the law, the domain of the case facts, and the way jurors are likely to understand and misunderstand all of it. If these avenues of thought had a single intersection, you would find that Jon Hanson has been living on that corner for 25 years. As a Harvard Law School professor and prolific writer, he has done much to keep me and many others informed of the traffic coming from these diverse directions. . . .

Read the entire review here.

Related Situationist posts:

Posted in Book, Ideology, Law, Politics, Situationist Contributors | Tagged: , , , , | 2 Comments »

Science and Situationism Praised on Huffington Post Blog

Posted by The Situationist Staff on March 17, 2012

From Huffington Post and Cornell Sun (By Sebastian Deri):

As someone who was better at English and history than math and science in high school, what I chose to study in college was partly an effort to shy away from the latter fields and take refuge in “softer” subjects. “Leave the questions of science to the scientists, I am concerned with justice and morality,” we, who chose humanities, said! These two domains were exclusive — “non-overlapping magisteria” as Stephen Jay Gould might say. No meaningful dialogue between the disciplines was possible or necessary.

This attitude, however, is lazy and destructive — or at best, hopelessly antiquated.

The scientific study of human behavior is shedding new light on our actions and inner life. To ignore these insights is not just a mistake. It is criminal.

I’m on our school’s mock trial team and have done mock trial for seven years now. There was a point at the beginning when I really felt that I was crusading on the side of righteousness in a system optimized for delivering justice. But eventually, I came to realize the solutions being offered in the courtroom simply could not get to the heart of the matter in the way science could. This realization came not from inside a courtroom, but rather from a brain scientist writing in a magazine.

In an article in The Atlantic, “The Brain on Trial,” David Eagleman makes the case that we must wade out of the swamp of the medieval machinations of our legal system — obsessed with the ancient and largely useless preoccupation with assigning blame.

He cites a seemingly straightforward pedophilia case. Eagleman describes the case of a 40-year-old man who “developed an interest in child pornography” and began to make “subtle sexual advances toward his prepubescent stepdaughter.” Eventually he was sent to prison. It was only after the discovery and successful removal of a tumor in his brain that he was able to abandon his pedophilia. Eagleman explains, “When your biology changes, so can your decision-making and your desires. The drives you take for granted… depend on the intricate details of your neural machinery.” Eagleman argues that “we can build a legal system more deeply informed by science, because when modern brain science is laid out clearly, it is difficult to justify how our legal system can continue to function without taking what we’ve learned into account.”

But, David Eagleman is a neuroscientist. Of course he would be inclined to make such a grandiose claim for his discipline. Well, we are hearing the same calls from within the law.

Jon Hanson is Law Professor at Harvard. He has a bachelor’s degree in Economics and a degree in law. Yet, eventually his studies in law — and specifically the tobacco industry — led him to abandon this field for the study social psychology, social cognition and other mind sciences.

He has since founded “The Project on Law and the Mind Sciences” at Harvard Law School and advocates for his version of the theory he calls “situationism.” As though it were coming straight from the mouth of Eagleman, Hanson writes that situationism “is premised on the social scientific insight that the naïve psychology… on which our laws and institutions are based is largely wrong. Situationists… seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines.”

And those insights are impossible to ignore. Take the MAO-A gene. Having a certain form of this gene (the low MAO-A gene), when combined with childhood mistreatment, significantly increases your chances of becoming violent. Yet, I have only ever heard of one case where such evidence was even up for discussion. In response to that evidence, the D.A. said, “The more of this information that you put before a jury, the [greater the] chances of confusing them.” In other words, the claim is not that such evidence is irrelevant, but rather we are too stupid to handle it. How condescending and pessimistic. Even the prosecution’s rebuttal expert claimed “it’s way too early to use this research in a court of law.” If we are ever to progress morally and socially we cannot afford to hold such views.

Not just our legal system, but our political system too could use an injection of scientific reasoning. Many political claims are testable scientific hypotheses and ought to be treated as such. To support the “war on drugs,” for example, under the claim that it reduces crime and drug use is to make a scientifically testable and falsifiable hypothesis. Of course, the data is messy and experiments hard to come by, but the very act of framing these as scientific questions will help us hack through this choking epistemic relativism in which everyone is entitled to an opinion by virtue of the fact that their justification may correspond to a possible version of reality. The world is not essentially unknowable. And the tools of science can help us peer into the eyes of reality. And from that reality, we should build our society.

I’m not worried that we run the risk of ignoring science as a great tool in our legal system, political debates or moral reasoning. Its encroachment into these domains is inevitable. The question is how quickly we’re going to embrace it rather than resist it at the cost of progress. With great gusto and speed, not only must scientists become lawyers, politicians and preachers but lawyers, politicians and preachers must become scientists.

Sample of related Situationist posts:

Posted in Education, Neuroscience, Situationist Contributors, Social Psychology | Tagged: , , , , | Leave a Comment »

Jon Hanson on Law and Mind Sciences

Posted by The Situationist Staff on March 15, 2012

Harvard Law School just published an interview with Jon Hanson.  We’ve posted it in full below.

Director of the Project on Law and Mind Sciences at Harvard Law School (PLMS), Professor Jon Hanson has long combined social psychology, economics, history, and law in his scholarship. After PLMS hosted several conferences featuring leading mind scientists and legal scholars, Hanson collected the work of many of the contributors in a book he edited, “Ideology, Psychology, and Law” (Oxford University Press). [Introductory chapter available, here].

In the following Q&A, he speaks about the new book, the connection between law and mind sciences, and his own work in a field that has grown rapidly over the past 20 years.

What sparked your interest in the study of mind sciences and the law?

My interest has evolved through several stages. Although I studied economics in college, I did so with special interest in health care policy, where the life-and-death decisions have little in common with the consumption choices imagined in neoclassical economics. Purchasing an appendectomy through insurance has little in common with buying a fruit at the market.

After college, I spent a year studying the provision of neonatal intensive care in Britain’s National Health Service, attending weekly rounds with neonatologists at London hospitals, meeting with pediatricians in rural English hospitals, interviewing nurses who were providing daily care for the infants, some of whom were not viable, and speaking with parents about the profound challenges they were confronting. Those experiences strengthened my doubts regarding the real-world relevance of basic economic models for certain types of decisions.

In law school, I studied law and economics, but tended to focus on informational problems and externalities that had been given short shrift by some legal economists at the time. After attending a talk by, and then meeting with, the late Amos Tversky, I became an early fan of the nascent behavioral economics movement.

It wasn’t, however, until I spent a couple of years immersed in cigarette-industry documents in the early and mid 1990s that I felt the need to make a clean break from the law’s implied psychological models and to turn the mind sciences for a more realistic alternative.

What was it about the cigarette documents that had that effect?

Well, they made clear that the tobacco industry articulated two views of their consumers – an inaccurate public portrayal, and a more accurate private view.

The first, which the industry conveyed to their consumers and to lawmakers, was of smokers who are independent, rational, and deliberate. Smokers smoke cigarettes because they choose to, because smoking makes them happier, even considering the risks. The industry thus gave consumers a flattering view of themselves as autonomous, liberated actors while assuring would-be regulators that there was no need to be concerned about the harmful consequences of smoking. Smokers were, after all, just getting what they wanted.

The second view of the consumer, which was evident in the industry’s internal documents, was of consumers as irrational, malleable, and manipulable. The industry’s confidential marketing strategy documents, for instance, made clear that the manufacturers theorized and experimented to discover how to target, persuade, lure, and chemically hook young consumers to take up and maintain the smoking habit. That internal understanding of consumers had nothing in common with the industry’s external portrayals.

I came to the realization that, unfortunately, the latter view of the human animal is far more accurate and, furthermore, that failure to understand the actual forces behind human behavior may be contributing to injustice.

How did that realization influence your research?

In the late 1990s, I put my writing down and devoted a couple of years to learning what I could about the mind sciences – social psychology, social cognition, cognitive neuroscience, and the like. Those fields, coincidentally, were blossoming with new theories, new methodologies, and new findings and insights, most of which created challenges to the fundamental assumptions in law and legal theory.

What were some of those insights?

To keep things simple, I’ll boil them down to two big ones.

First, mind scientists had learned that most people in western cultures operate with a naïve and commonsensical model of human psychology that presumes that an individual’s actions reflect a stable personality or disposition and little else. From that perspective, people are presumed to be in control of, and responsible for, their behavior and its consequences.

By the way, that’s the same model of human behavior that is employed in law and conventional legal theory. And it’s the same model that the tobacco industry actively promoted.

The second big insight was that that model of human behavior is fundamentally wrong. People are moved less by a stable disposition and more by internal and external forces that generally go unnoticed in our causal stories. The errors go beyond our causal assessments of other people’s behavior; we confuse and deceive even ourselves, believing our own reasons, when social science reveals those reasons often turn out to be mere confabulations.

What does that mean for the law?

Exactly. That’s the big question. My briefest answer is: a lot. The book is one place where the contributors and I begin to sketch some of the answers.

Given the large gap between what the law assumes and what the mind sciences have shown to be true, my initial goal has been to understand the breadth and contours of that gap and to develop a better understanding of the psychological and contextual forces behind human behavior. I have resisted the strong urge to focus on only those psychological tendencies that can lead to straightforward but narrow implications for law.

Having said that, abandoning the familiar, if wrong, conception of human behavior is daunting and unsettling; it calls for establishing new knowledge structures and being open to some humbling truths about ourselves and some uncomfortable truths about our justice system.

I expect that several generations of lawmakers, legal academics, and lawyers will be grappling with the implications of what mind scientists are discovering about human behavior. Indeed, they will have to do so, if we are ever going to find meaningful solutions to many of our thorniest policy challenges.

Is this entirely new terrain?

I shouldn’t give the impression that I am alone in the wilderness. The approach I’ve taken has its origins in the legal realism movement, and there is actually significant overlap with parts of more recent legal theoretic schools of thought, from law and economics to critical legal studies.

Furthermore, there are other scholars around the country exploring this terrain, and I have been extraordinarily lucky to work with a number of remarkable students over the years, including Melissa Hart, Doug Kysar, David Yosifon, Adam Benforado, Michael McCann, and Mark Yeboah.  Most of those students have gone on to make their own path-breaking contributions to law and mind sciences.

Can you say more about how the field has evolved and your involvement in it over the last 20 years?

Well, 20 years ago, only a small but important corner of psychology known as “decision theory” or “behavioral economics” was getting much attention among legal theorists. Roughly, the research and evidence in that field disputed the “rationality” assumption of the “rational actor” model. I co-authored several articles arguing that those insights suggested that market actors could, would, and do manipulate the risk perceptions of consumers.

A decade ago, I co-wrote a pair of law-review articles (“The Situation” and “The Situational Character”) introducing some of the broader insights of mind sciences and speculating on some of their implications for law. The articles were among the first of their kind, and contested even the “actor” portion of the “rational actor” model. At the time, many readers from legal academia found the research we reviewed to be foreign and hard to fathom.

Five years ago, I began the Project on Law and Mind Sciences. With then-Dean Kagan’s support, some technical know-how from Michael McCann, and the aid of many outstanding students, I set up a website and blog and began holding annual conferences intended to help bridge the gap between the law and the mind sciences. In the meantime, numerous books have popularized the mind sciences, and several new law school programs and projects have been established around the country reflecting and reinforcing this burgeoning interdisciplinary approach.

As of today, the mind sciences are, well, hot. There is now almost too much scholarship for me to keep up with, judges are beginning to cite such research in their opinions, and student groups are springing up in law schools, including the vibrant Student Association for Law and Mind Sciences (or “SALMS”) at Harvard Law School. Every year, I hear from more 1Ls who tell me they chose Harvard Law School because of the exciting work that we’ve been doing.

Are other members of the HLS faculty now employing mind sciences in their work?

Absolutely. Alan Stone has been writing and teaching about the law and psychiatry since the 1960s.  Cass Sunstein and Christine Jolls, when here, were prominent leaders of the economic behavioralism movement. Several other members of the faculty employ mind sciences in elements of their scholarship and teaching. Lani Guinier, Bob Bordone, Martha Minow, Duncan Kennedy, Charles Ogletree, Bob Mnookin, Larry Lessig, Diana Feldman, Bruce Hay, Yochai Benkler, Glenn Cohen, and David Cope come to mind, and I’m surely forgetting some. Among our visitors this year, Dan Kahan and Martha Chamallas are prominent leaders in this interdisciplinary approach.

Many of us are interacting more often and more collaboratively with mind scientists in other departments of this University and beyond, and I would be surprised if we didn’t add a social psychologist to our faculty in the next decade, as other law schools have.

Your book has more than 20 contributors representing different disciplines. Does their work share a common theme?

First, let me emphasize that the book reflects the work of many students and my assistant, Carol Igoe, who helped organize the conferences on which much of the book is based and who helped in the initial editing stages as part of a seminar that I taught.

To your question, I need to be quite abstract to locate one common theme. If there is a single thread running throughout the book, it is that “how we think” affects “what we think” about law. Many of the contributors – social psychologists, political scientists, legal scholars among them – also consider the effects of “what we want to believe” on “how we think.”

More concretely, some authors examine the implications of the dispositionist conception of the person for the law. Others scrutinize and challenge the ideological premises of prominent legal goals, including utilitarianism and instrumentalism. Some consider the harmful effects of the “free market” ideology. Others look at the implicit motives underlying political ideologies – that is, left and right – while a few summarize evidence regarding the effects of political ideology on judicial decision-making. That’s a sample.

You write that the legal system is built on a dubious ideological framework. How so?

There are several ways in which that is true. Construing “ideology” broadly to refer to shared understandings of human behavior, I’ll answer by echoing what I’ve already highlighted. The legal system presumes that a person’s behavior is the manifestation of little more than a stable set of preferences, combined with a given supply of information, activated by the person’s will. Such perceived truths about what makes people behave as they do shape beliefs about why some groups are advantaged or disadvantaged or about how well certain systems or institutions operate. Unfortunately, those shared understandings are often incorrect.

How do ideology and psychology influence judicial decision making?

That’s another great question, which calls for a bigger answer than I can muster here. What I can say is that there seems to be little disagreement among observers of the legal system that judicial decision making is influenced by ideology. Although some point to Roe v. Wade while others point to Citizens United as their exemplar, the disagreement is over when and how judges are swayed by ideology.

Social psychology and social cognition help us see that there is no escaping the influence of ideology, any more than a person can speak without an accent.  Although we tend to hear the accents and perceive the ideologies of those who don’t share our own, we all have both.  So ideology is inescapable; pretending that we operate outside of ideology probably makes us more, not less, subject to its biasing influence.

More important, mind scientists have discovered some of the implicit motives and situational factors that push us toward one ideology or another, including political ideologies or legal-theoretic ideologies.

Will an awareness of mind sciences help an attorney in practicing the law?

I hope so.

Having an awareness of the power and effects of psychology and ideology on the law, a lawyer can better predict the outcomes of cases and more ably persuade jurors or judges to see a case their way.

An imperfect analogy is to a doctor who understands the underlying causes of a disease and not simply its symptoms. A lawyer who understands what is moving the law is like the doctor who understands the disease and its processes. Such a lawyer can be effective in taking on the tough, novel cases on the frontiers of the law.

Understanding the remarkable insights being generated by mind scientists similarly can help lawyers to understand and work with their clients or even to recognize and articulate injustices that might otherwise be missed.

My own teaching reflects my strong belief that law students will make better lawyers if they learn some psychology. At the very least, they will learn something about themselves.

A sample of related Situationist posts:

Posted in Choice Myth, Ideology, Law, Legal Theory, Situationist Contributors, Social Psychology | Tagged: , , , , | Leave a Comment »

Harvard Law School Highlights The Situationist Blog

Posted by The Situationist Staff on September 20, 2011

From Harvard Law School Website:

The Situationist blog, run by the Project on Law and Mind Science at Harvard Law School, recently received the 2011 Media Prize awarded by the Society for Personality and Social Psychology, an international organization of scholars devoted to social and personality psychology.

Harvard Law School Professor Jon Hanson established the Situationist with Vermont Law School Professor Michael McCann LL.M. ’05 to share the work of the Project on Law and Mind Science, which Hanson directs.

“It is terrific to see this recognition of the wonderful work being done by Jon Hanson and others writing on this innovative, cross-disciplinary blog,” said Dean Martha Minow. “The cross-pollination between theory and practice illuminates law, the mind sciences, and the human experience with powerful implications for how we make decisions, solve problems, and design institutions.”

The project seeks to identify and understand the implications of social psychology, social cognition, and other related mind sciences for law, policymaking, and legal theory. Hanson and the PMLS team have run an annual conference since 2008 on topics such as “The Psychology of Inequality” in 2011 and “The Free Market Mindset” in 2009. Many of the speakers at the conferences are regular contributors to the blog.

In their article “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture” Hanson and Santa Clara Law Assistant Professor David Yosifon ’02 define “Situationism.”

“Situationism is premised on the social scientific insight that the naïve psychology—that is, the highly simplified, affirming, and widely held model for understanding human thinking and behavior—on which our laws and institutions are based is largely wrong. Situationists (including critical realists, behavioral realists, and related neo-realists) seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world—including social psychology, social cognition, cognitive neuroscience, and related disciplines—and the practices of institutions devoted to understanding, predicting, and influencing people’s conduct—particularly market practices.”

Read more about “Situationism” on the award-winning blog.

Hanson is editor of a collection of articles titled “Ideology, Psychology, and Law,” which is forthcoming from Oxford University Press in November.

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Read more about awards and praise for Situationist Blog here.

Posted in Awards, Situationist Contributors, Social Psychology | Tagged: , , , , | Leave a Comment »

The Situation of Jon Hanson

Posted by The Situationist Staff on May 26, 2011

From Harvard Law School Website:

Professor Jon Hanson, the Alfred Smart Professor of Law, is this year’s winner of the prestigious Albert M. Sacks-Paul A. Freund Award for Teaching Excellence, an honor bestowed each spring by the Harvard Law School graduating class. The award recognizes teaching ability, attentiveness to student concerns and general contributions to student life at the law school.

This is the second time Hanson has received the recognition. He won the Sacks-Freund award in 1999, and he was a finalist in 2000 and again in 2006.

Class Marshall Sameer Singh Birring ’12 introduced Hanson at Class Day exercises on May 25. He called Hanson a pioneer in the movement to apply insights from psychology to the analysis of law and policy. A student in Hanson’s Corporations class this spring, he said he found Hanson’s teaching to be transformative. “Jon Hanson impacted my thinking more than any other professor at Harvard and his class changed my life,” he said. “Learning about psychological phenomena and how they affect our choices, our thinking and our policy gave me an entirely new perspective with which to view the law and the greater world around us.”

In his remarks, Hanson talked about his own journey to Harvard Law School. “I wasn’t actually supposed to become a Harvard Law School professor. Just ask anyone who knew me before I was one.”

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Read more here.

Posted in Education, Life, Situationist Contributors | Tagged: , , | 4 Comments »

SALMS Lecture – Tonight

Posted by The Situationist Staff on March 29, 2011

Jon Hanson Evening Lecture and Reception

On Tuesday, March 29th, Professor Jon Hanson will give a lecture entitled “Law, Psychology, and Inequality” at 6PM in Harvard Law School’s Austin East.  A reception with free food and drink will follow!

Posted in Distribution, Events, Law, Legal Theory, Situationist Contributors | Tagged: , | Leave a Comment »

Divided Loyalties Symposium

Posted by The Situationist Staff on February 10, 2011

Situationist Contributor Jon Hanson will give the keynote at an interdisciplinary symposium:“Divided Loyalties: Professional Standards and Military Duty Hanson’s talk is titled “Shock Therapy: Changing Unethical Behavior by Understanding its Sources.”

The symposium is being held at Case Western University Law School, and is funded in part by the Arthur W. Fiske Memorial Lectureship Fund. It it co-sponsored by: Center for Professional Ethics, Frederick K. Cox International Law Center, Institute for Global Security Law & Policy, Law-Medicine Center, and Center for Social Justice.

The symposium website summarizes the focus of the conference this way:

There has always been some tension between the ethical, legal, and professional obligations of professionals and the requirements of military service. This tension has been increased by the War on Terror. Physicians, mental health professionals, lawyers, and law enforcement/corrections officers serving in the military have been placed in situations in which their professional ethics, obligations, and legal duties may contradict military necessity or directives, or even place the role of professional in direct conflict with the role of military personnel.

As the management of armed conflict, the law of war, and the professionalization of the military has increased, this tension has similarly increased. Military professionals have been asked to bring their expertise, skills, and professional talents to the prosecution of military action not just as military personnel but as doctors, mental health professionals, lawyers, and law enforcement/corrections officers. Doctors and mental health professionals are charged with supervising and controlling interrogations, lawyers are asked to provide legal opinions and advise on the treatment of prisoners, and law enforcement and corrections officers must guard and control prisoners. While performing these duties military necessity can impose conflicting duties and concerns. The need for information, validation, or security may require different loyalties and focus than the professional duty. The need for information about an upcoming attack that could save the lives of comrades may directly contradict the need for care or treatment of a prisoner.

This symposium brings together professionals, ethicists, theorists and practitioners from medicine, mental health care, the law, law enforcement, and the military to explore these complicated and timely issues in an open and frank discussion.

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You can find more details about the symposium, the participants, and the agenda here.

Related Situationist posts:

Posted in Conflict, Events, Ideology, Morality, Social Psychology | Tagged: , , , , | Leave a Comment »

Situationism in Policy

Posted by The Situationist Staff on April 10, 2010

Situationist Contributor Jon Hanson was recently interviewed by Big Think.  Here is his answer to the following question: “How have policy makers responded to your research?”

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You can view more at “Harvard Law Spotlights Situationism” and  “Jon Hanson on Situationism and Dispositionism,” which contains other related Situationist links.

Posted in Law, Legal Theory, Public Policy, Situationist Contributors, Video | Tagged: , , | Leave a Comment »

What Does Situationism Mean for Law?

Posted by The Situationist Staff on March 23, 2010

Situationist Contributor Jon Hanson was recently interviewed by Big Think.  Here is his answer to the following question: “What are some of the changes that the legal system should be making?”

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To watch the first part of Hanson’s BigThink interview, see “Jon Hanson on Situationism and Dispositionism,” which also contains other related Situationist links.

Posted in Deep Capture, Education, Ideology, Legal Theory, Situationist Contributors, Video | Tagged: , , , | Leave a Comment »

Hanson & Kysar To Deliver the 2010 Monsanto Lecture

Posted by The Situationist Staff on March 18, 2010

Situationist Contributor Jon Hanson and Yale Law Professor Doug Kysar are co-delivering the 2010 Monsanto Lecture on Tort Law and Jurisprudence tomorrow at Valparaiso University School of Law.  Their lecture is titled “Abnormally Dangerous: Inequality Dissonance and the Making of Tort Law.”  Here’s the abstract.

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At the conceptual heart of tort law rests a choice between negligence and strict liability as the default standard of care for unintentional wrongs. The prevailing American view holds that strict liability should be reserved for rare cases in which an activity poses significant hazards even after a defendant has taken all reasonable care. The types of explanations for that preference have shifted over time from a classical liberal rationale to an economic efficiency rationale.  Neither of those explanations is fully persuasive on its own terms, as a careful examination of leading cases makes clear. So what might explain why courts sometimes prefer a negligence standard, when their logic could as easily have led them to a strict liability alternative?

There is growing evidence from the mind sciences that the reasons people give for their behavior and decisions are rarely causal and are often confabulatory. The field of social cognition, for instance, has demonstrated through countless experiments that “implicit attitudes” and “implicit motives,” which lie outside the purview of introspection, play a far more significant role in shaping our attitudes, ideologies, and behavior than most of us realize—or care to acknowledge. Among the most studied and influential implicit motives are the “cognitive closure” motive and the “inequality rationalization” motive.

Focusing primarily on Judge Posner’s famous and influential opinion in Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., we examine whether an understanding of those implicit processes might help explain why he held that the activity of transporting highly toxic and flammable chemicals through residential neighborhoods was not abnormally dangerous and thus not subject to strict liability (and why, more generally, negligence has so thoroughly dominated strict liability as the default standard of care).  We investigate further whether such implicit dynamics left unexamined might themselves be abnormally dangerous.

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For a sample of related Situationist posts, see “Taking Behavioralism Seriously (Part I) – Abstract and Top Ten List,” “Tort Law’s Distributional Injustice,” The Cultural Situation of Tort Law,” Situationist Torts – Abstract,” Robin Hood Motives,” “The Interior Situational Reaction to Inequality,” The Motivated Situation of Inequality and Discrimination,” and “The Situation of Inequality – Guns, Germs, and Steel.”

Posted in Abstracts, Distribution, Events, Implicit Associations, Law, Legal Theory, Public Policy, Situationist Contributors | Tagged: , , , | 1 Comment »

Jon Hanson on Situationism and Dispositionism

Posted by The Situationist Staff on March 13, 2010

Situationist Contributor was recently interviewed by Big Think.  Here is his answer to the following questions: “What is wrong with our legal system’s notion of human behavior?”; and “What led you to study the link between law and cognition?”

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For a sample of related Situationist posts, see “Hanson’s Chair Lecture on Situationism,” “Legal Academic Backlash – Abstract,” “‘Situation’ Trumps ‘Disposition’ – Part I,” and ““Situation” Trumps “Disposition”- Part II.”

Posted in Ideology, Law, Legal Theory, Social Psychology, Video | Tagged: , , , | 2 Comments »

Taking Behavioralism Seriously (Part I) – Abstract and Top Ten List

Posted by The Situationist Staff on January 6, 2009

Doug Kysar and Situationist contributor Jon Hanson recently posted on SSRN their important 1999 article, Taking Behavioralism Seriously: The Problem of Market Manipulation (74 N.Y.U.L. Rev. 363) on SSRN. Here is the article’s abstract.

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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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SSRN has just announced its Journal of Behavioral & Experimental Economics and Journal of Behavioral Economics Top Ten lists for papers posted in the last 60 days.  Taking Behavioralism Seriously made both lists.

To download the paper for free click here.  That link will direct you to the abstract and various download options.  To download the companion article, Taking Behavioralism Seriously: Som Evidence of Market Manipulation (112 Harvard L. Rev. 1420) click here. For a sample of related Situationist posts, see “Promoting Smoking through Situation” and “The Situation of Subprime Mortgage Contracts – Abstract.”

Posted in Abstracts, Behavioral Economics, Choice Myth, Legal Theory | Tagged: , , , , , , , , , , , , , | Leave a Comment »

Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast)

Posted by The Situationist Staff on January 1, 2009

Mark Lanier with appleFrom Harvard Law Website:

W. Mark Lanier, the plaintiffs attorney who won a $253 million judgment against pharmaceutical giant Merck & Co. over the fatal effects of its painkiller Vioxx, spoke to Professor Jon Hanson’s Torts class on November 19 at the law school.

Lanier is the founder of the Lanier Law Firm and serves as the Houston firm’s lead litigation counsel. He has won multi-million dollar awards for plaintiffs against such powerful corporations as Merck, Amoco and Becton Dickinson.  has called him “one of the top civil trial lawyers in America.”

Professor Hanson’s Torts 6 class studies the various aspects of tort law, including the psychological, which was the focus of Lanier’s talk. Recounting his trial “war stories” for Hanson’s students, Lanier displayed the “theatrical flair” noted by The Wall Street Journal, which is key to his success in communicating with juries. He changed voices, accents and postures for different characters, and even removed his glasses to reenact the deposition of a witness by another lawyer.

Describing the theory behind his approach, Lanier told the class that plaintiffs litigation is “a bit like professional wrestling meets ballet. The corporations pay for wonderful ballerinas who execute kicks with great precision. We tend to go in as professional wrestlers executing the Texas Tombstone Piledriver. And wrestling beats ballet.” In the Angleton, Texas, trial against Merck, Lanier’s “wrestling” included exhorting jurors to find against Merck with the biblical story of the young David defeating Goliath the giant.

After the class, Professor Hanson commented, “It’s easy to see why Mark is one of the most successful and feared trial attorneys of his generation. His war stories were both eye-opening and spellbinding.”

Lanier is a 1984 graduate of Texas Tech University School of Law and a part-time preacher. In 2006, he was named a Top 10 Trial Attorney as well as one of the 100 Most Influential Lawyers in America by The National Law Journal.

Watch the video

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Hanson’s Chair Lecture on Situationism

Posted by The Situationist Staff on November 11, 2008

Hanson Chair Lecture Image SmallEmily Dupraz wrote a nice summary (for the front page of the Harvard Law website) of Situationist contributor Jon Hanson’s recent lecture at Harvard Law School. Here are some excerpts (as well as a link to the webcast of the lecture).

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Individual free choice, an idea that permeates common sense and legal theory, assumes that actions reflect the stable preferences of individual actors. Individuals are responsible for their actions (that is, their preference-driven choices), and laws can therefore be designed on that assumption.

But if that assumption is wrong, says Harvard Law School Professor Jon Hanson, then laws built upon it may not be advancing the ends they purport to serve. And Hanson’s view, steeped in interdisciplinary study in the mind sciences, is that the assumption of indvidual free choice is faulty. The decisions people make, he says, are often determined by influential factors in the situation—that is, non-salient and often invisible external and internal factors that influence, not only how we behave, but also how we make sense of our behavior.

This is what Hanson calls “situationism.” Using social psychology and related mind sciences to help understand law and legal theory, he suggests that people, ideologies, and laws are shaped by forces quite different from those they imagine. While varying versions of the individual-choice model have served as the basis for most laws, policies, and mainstream legal theories, Hanson says, social psychology, social cognition, cognitive neuroscience, and related social scientific fields have uncovered many ways in which that model is detrimentally incorrect.

Hanson explored some of those ideas in an October 29th lecture at HLS entitled, “The Human Animal, Ideology, the Law, and other Situational Characters.” The lecture commemorated his appointment as the Alfred Smart Professor of Law. (Watch the webcast). The chair was endowed by the Smart Family Foundation, in honor of Alfred Smart, a 20th-century publishing entrepreneur who helped launch Esquire magazine and other publications.

Among those in the audience was Hanson’s colleague, Professor Alan Stone, a psychiatrist and interdisciplinary expert in law and the mind sciences and a renowned film critic. When Stone retires from the HLS faculty, the Smart chair will become the Alan Stone Professorship. Alfred Smart was Stone’s father-in-law.

In his lecture, Hanson incorporated several movie clips to help illustrate his arguments and to recognize Alan Stone’s love of cinema. Referring to a famous dream sequence from Federico Fellini’s “8 ½,” Hanson said: “Our ideology is like a car—it’s an instrument or tool that enables us to get around and gives us the feeling that we’re in control, in the driver’s seat of our lives. [But] we are far more situationally constrained than we ever imagined. Consequently, we’re unable to get where we want to go . . . . In my view, a necessary condition for making better laws is first understanding who we are, what moves us, and what purposes and subconscious motives our ideologies are actually serving.”

Hanson said that the mind sciences behind “situationism” have complex implications for the legal system, and that the law-making process must do a better job of taking into account how individuals make decisions.

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Hanson joined the HLS faculty in 1992 after receiving a law degree from Yale. Hanson is is an expert in tort and corporate law with a background in law and economics. He is co-director and creator of the Project on Law and Mind Sciences at HLS and contributes regularly to a blog that discusses the legal implications of human decision-making – The Situationist. Hanson received the 1999 Sacks-Freund Award for excellence in teaching and was a finalist in both 2000 and 2006.

In her introduction of Hanson, Dean Elena Kagan ’86 said: “His deep appreciation and concern for the students of this law school knows no real bounds. He is teacher, mentor, and friend to so many students – possibly to more than any other faculty member at this law school.”

In honor of Alan Stone’s interdisciplinary expertise, the chaired professorship is to be given to someone who has “distinction in scholarship related to the intersection of legal studies and one of the following: psychiatry, psychology, medicine, and literary and film studies.”

Stone is currently the Touroff-Glueck Professor of Law and Psychiatry, a joint appointment held with HLS and the Harvard Medical School. Kagan hailed him as “one of the earliest and one of the best interdisciplinary scholars at Harvard,” having forged his interdisciplinary paths among law and psychiatry and law and film studies for almost four decades.

In addition to his work exploring the intersection of law and psychiatry, Stone is a movie critic for the Boston Review, and he recently published a book entitled, “Movies and the Moral Adventure of Life.”

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To watch the webcast of the video, click here.  To read a Harvard Law Record article summarizing the lecture, click here.

Posted in Choice Myth, Events, Ideology, Illusions, Legal Theory, Video | Tagged: , , , , | 1 Comment »

Hanson To Give (Situationist) Chair Lecture

Posted by The Situationist Staff on October 29, 2008

This evening, Situationist contributor and co-creator, Jon Hanson will deliver his lecture, “The Human Animal, Ideology, the Law and other Situational Characters” in honor of his appointment as the Alfred Smart Professor of Law (one day to the the Alan Stone Professor of Law) at Harvard Law School.

This event will take place in Harvard Law Library’s Caspersen Room beginning at 5:00 p.m. with a reception immediately following the talk.

For more information about the lecture, click here.

Alan A. Stone is the Touroff-Glueck Professor of Law and Psychiatry at Harvard University. He graduated from Harvard College in 1950 with a degree in psychology, and earned his M.D. from Yale Medical School in 1955. Becoming interested in the intersection of law, psychology, and psychiatry, he first earned a position as lecturer at Harvard Law School in 1969 before earning a joint appointment with Harvard Medical School three years later. In 1978, he was awarded a Guggenheim Fellowship.

Stone also has an avid interest in cinema, and serves as the film critic for the Boston Review.

Posted in Events, Uncategorized | Tagged: , , , | 1 Comment »

Policy IAT Launched

Posted by The Situationist Staff on September 22, 2008

The Project on Law and Mind Science recently launched a policy-oriented implicit association test (IAT).

The IAT is an experimental method designed to measure associative information that people are either unwilling or unable to report. The test was first published by Greenwald and colleagues in 1998. The IAT builds on the implicit-explicit distinction in memory. It reflects the observation that because much social cognition occur in an implicit mode, measuring unconscious cognition likely provides the “missing ingredient” necessary to support efficient testing and development of psychoanalytic, behaviorist, and cognitive theories.

Development & Status of the Implicit Association Test

PRE-IMPLICIT ASSOCIATION TEST RESEARCH: 1990 – 1997

In the early 1990s, Greenwald and Situationist contributor Mahzarin Banaji, in collaboration with others, co-authored a number of papers that explored the unconscious operation of stereotyped beliefs, prejudicial attitudes and discriminatory behavior in the context of social groups, personal judgment, and gender. The authors also investigated automatic stereotyping and implicit social cognition generally. Greenwald proposed in a 1990 article that robust attitude effects can be easily discovered when attitude is involved only indirectly. In 1993, Banaji and others refined Greenwald’s 1990 proposal, arguing that stereotype information is influential only when the social category of the target makes the information relevant to judgment. For example, whereas priming individuals with stereotypes of aggression influences judgments about men, it has little influence on judgment about women. Alternatively, judgments about women are influenced when individuals are primed with stereotypes for dependence. In that 1993 article, Banaji and her co-authors also argued that an individual’s social category influences use of primed stereotype information.

BIRTH OF THE IMPLICIT ASSOCIATION TEST: 1998

Greenwald, McGhee, and Schwarz first published the IAT in 1988. Since then, “the IAT has been used repeatedly to measure implicit attitudes and other automatic associations.” IAT subjects sort stimuli representing four categories using two responses: usually keys on a computer keyboard. Each response is assigned to two of the four categories. The test rests on the assumption that participants will sort stimuli faster where they experience paired categories as more closely associated.

In their 1998 paper, Greenwald and colleagues presented three experiments that showed that when highly associative categories (e.g. flower + pleasant) share a response key, performance on the test is faster than when less highly associated categories share the same key. In the first experiment, subjects were asked to sort stimuli for flowers, musical instruments, insects, and weapons. This experiment tested the hypothesis that associations can be revealed by mapping two discrimination tasks alternately onto a single pair of responses. The results confirmed this assumption– superior performance was observed when associatively compatible categories were mapped onto the same response. The second experiment extended the test to a domain more typically attitudinal than the first experiment: using the test to discriminate differences between Japanese Americans and Korean Americans in their evaluative associations toward Japanese and Korean ethnic groups. The researchers hypothesized that ethnically Korean subjects would find it more difficult to perform the Japanese + pleasant than the Korean + pleasant combination and vice versa. This hypothesis was based on the history of Japanese-Korean antagonism. The results of the IAT confirmed the expected pattern. The third experiment combined the tasks of classifying Black and White names and discriminating pleasant versus unpleasant word. Twenty-six White American students participated in this test. At the end of the test, each subject responded to questionnaire measures for race-related attitudes and beliefs. The results of the third experiment “clearly revealed patterns consistent with the expectation that White subjects would display an implicit attitude difference between the Black and White racial categories. More specifically, the data indicated an implicit attitudinal preference for White over Black, manifest as faster responses for the White + pleasant combination than for the Black + pleasant combination.”

Since its initial publication in 1988, the IAT has been applied in a diverse array of disciplines including social and cognitive psychology, clinical psychology, developmental psychology, neuroscience, market research, health policy, business and consumer research, and law.

Policy Application for the Implicit Association Test

Although since its initial publication in 1988, the IAT has been applied in a diverse array of disciplines, application to the legal and policy arenas has been minimal. This is the case even though the dominant schemas that shape law and policy are not unlike attitudes, stereotypes and other forms of implicit cognition that IAT is so often harnessed to measure. In a series of articles, Situationist contributor Jon Hanson and his collaborators have endeavored to identify the dominant knowledge structures, schemas, and categories that shape law and policy. Based on their research, the most influential policy scripts boil down to a very simple two-part proposition:  “markets are good, regulation is bad.”  It seems likely that the IAT can shed light on this dominant policy script.

Hanson and Situationist fellow Mark Yeboah have developed an IAT-based study to investigate the the presence and strength of policy scripts across the ideological spectrum. The experiment hopes to shed light on a number of questions, including the extent to which implicit associations correspond with explicit attitudes about markets and regulation and how those associations might vary across various ideological and political dimensions.

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To participate in the Policy IAT, click here.

To read a fascinating interview of professors Banaji and Greenwald about the history and significance of the IAT, go to the five-part series: Part I is here; Part II is here; Part III is here; Part IV is here; and Part V is here.

To review all of the previous Situationist posts discussing implicit associations click on the “Implicit Associations” category in the right margin, or, for a list of such posts, click here.

Posted in Ideology, Implicit Associations, Politics | Tagged: , , , , | 1 Comment »

 
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