The Situationist

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.

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