Georgetown Law Journal

November, 2004

**Article**

**\*1** THE SITUATIONAL CHARACTER: A CRITICAL REALIST PERSPECTIVE ON THE
HUMAN

ANIMAL

Jon Hanson [[\[FNa1\]](#Document1zzFN_Fa1)]{.underline}

David Yosifon [[\[FNaa1\]](#Document1zzFN_Faa1)]{.underline}

Copyright © 2004 by The Georgetown Law Journal Association; Jon Hanson,
David

Yosifon

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.
[[\[FN1\]](#Document1zzFN_F1)]{.underline} 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.

TABLE OF CONTENTS

I. INTRODUCTION
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6

A. BRINGING THE READER UP TO SPEED
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B. AN INTRODUCTION TO DISPOSITIONISM
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C. THE UBIQUITY OF DISPOSITIONISM
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1\. Dispositionism in (Law and) Economics
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2\. Dispositionism in Classic Liberal Political Theory \...\...\..... 10

3\. Dispositionism in the Law
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a\. Contract Law
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b\. Tort Law
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c\. Criminal Law
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D. THE HIGH STAKES OF DISPOSITIONISM\--AND OF OUR ARGUMENT
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II\. MISSING THE SITUATION AND SEEING DISPOSITION
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A. TWO SOURCES OF DISPOSITIONISM
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1\. A Basic Source of Dispositionism
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2\. A Deeper Source of Dispositionism
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B. THE INTERIOR FUNDAMENTAL ATTRIBUTION ERROR
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1\. Thinking and Being
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2\. Preferences and Identity
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3\. Willing, Acting, and Freedom
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4\. Summary of the Interior Fundamental Attribution Error \...\..... 31

5\. The Situation of Our Interiors
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6\. Situation Defined
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III\. GETTING TO KNOW THE SITUATIONAL CHARACTER
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A. INSIDE THE SITUATIONAL CHARACTER
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1\. Flies, Rats, and Science
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2\. A Closer Look at the Interior Situation
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B. UNSEEN COGNITION (VS. \"THINKING\")
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1\. Choice Biases
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a\. Intratemporal Effects
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i\. Heuristics \...\...\...\...\...\...\...\...\...\...\...\...\..... 39

ii\. Endowment Effects \...\...\...\...\...\...\...\...\...\...\.... 41

iii\. Framing Effects \...\...\...\...\...\...\...\...\...\...\...\...
42

iv\. Summary \...\...\...\...\...\...\...\...\...\...\...\...\...\.....
43

b\. Intertemporal Effects
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2\. Process Biases
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a\. Knowledge Structures
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i\. The Stereotypical Knowledge Structure \...\...\...\..... 52

ii\. Cognitive Groupism \...\...\...\...\...\...\...\...\...\...\... 54

iii\. Stereotype Threat and Some Exterior Situational

Consequences of Knowledge Structures \...\...\...\.... 59

b\. Attributional Processes
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i\. Causation, Responsibility, and Blame \...\...\...\...\... 62

ii\. Lay Judges \...\...\...\...\...\...\...\...\...\...\...\...\.....
65

iii\. The Situation of Attributions \...\...\...\...\...\...\.... 66

c\. Counterfactual Thinking
\...\...\...\...\...\...\...\...\...\...\.... 67

3\. Defending our Knowledge Structures
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a\. Where Motive Meets Knowledge Structures \...\...\...\...\...\... 71

b\. Economics: A Preliminary Case Study \...\...\...\...\...\...\.... 75

i\. Knowledge Structures in the Analysis of Temporal

Effects \...\...\...\...\...\...\...\...\...\...\...\...\...\... 76

ii\. The Focus on Choice Biases \...\...\...\...\...\...\...\.... 82

4\. Summary
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84

C. ATTITUDES (VS. \"PREFERRING\")
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1\. Some Evolution of the Concept
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a\. The Traditional View\--Stable and Causal \...\...\...\...\...\... 85

b\. The Modern View\--Neither Stable nor Causal \...\...\...\...\... 86

c\. The Emerging View\-- Implicit and Automatic \...\...\...\...\... 87

2\. Motivation
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a\. Motive to Understand
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b\. Motive to Self-Affirm
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i\. Individual \...\...\...\...\...\...\...\...\...\...\...\...\..... 95

ii\. Group \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
100

iii\. System (and World) \...\...\...\...\...\...\...\...\...\..... 101

iv\. Summary \...\...\...\...\...\...\...\...\...\...\...\...\...\....
106

c\. Motive to Simplify
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d\. Motive to Cohere
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i\. Individual \...\...\...\...\...\...\...\...\...\...\...\...\.... 108

ii\. Group \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
111

3\. Affect
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115

D. BEHAVIOR (VS. \"CHOOSING\")
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1\. Visceral Factors
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2\. The Inverted Causal Relationship Between Attitudes and

Behavior
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E. AUTOMATICITY & THE ILLUSION OF CONSCIOUS WILL (\"THE WILL\") \...\...
124

1\. Automaticity
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2\. The Illusion of Will
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iv\. A FEW POSSIBLE LESSONS FOR LAW AND LEGAL THEORY
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A. THE LAW
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134

B. LEGAL THEORY
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136

V. DISPOSITIONISM IN LAW AND ECONOMICS
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A. THE DISPOSITIONIST ACTOR OF LAY AND LEGAL-ECONOMIC THEORIES \.....
139

B. SCRUTINIZING THE MYTH OF THE RATIONAL ACTOR
\...\...\...\...\...\...\... 144

C. FIVE TYPES OF INADEQUATE \"REALISM\"
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1\. Counterfeit Realism
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2\. Defensive Realism
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3\. Selective Realism
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4\. Weak-Form Realism
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5\. Strong-Form Realism
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VI\. THE SITUATIONAL CHARACTER\'S SITUATION
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A. SEEING IT
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171

B. MISSING IT
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172

C. DENYING WHAT WE CANNOT ADMIT
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VII\. CONCLUSION
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177

**\*5** \"What is a human being? Legal theorists must, perforce, answer
this question: jurisprudence, after all, is about human beings.\" \~
Robin West [[\[FN2\]](#Document1zzFN_F2)]{.underline}

\"If you want to know the law and nothing else, you must look at it as a
bad man, who cares only for the material consequences which such
knowledge enables him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or outside of it, in the
vaguer sanctions of conscience.\"

\~ Oliver Wendell Holmes, Jr. [[\[FN3\]](#Document1zzFN_F3)]{.underline}

\"\[T\]he implicit modern liberal conception of the average person \[is
that he is\] good, but inept, and for both reasons not very responsive
to incentives, though perhaps rather plastic. The implicit conservative
view of the average person, in contrast, is that he is competent but
bad; hence conservatives place emphasis on incentives and constraints.\"

\~ Richard Posner [[\[FN4\]](#Document1zzFN_F4)]{.underline}

**\*6** I. INTRODUCTION

A. BRINGING THE READER UP TO SPEED

In a companion article we introduced the concept of \"critical
realism,\" our name for an analytic posture that strives to begin with
as real an account of the human animal\--the ultimate subject of legal
inquiry\--as can be mustered. That version of realism is critical in
that it is suspicious of, and willing to scrutinize, even our most basic
lay and legal-theoretic assumptions about ourselves and society.
[[\[FN5\]](#Document1zzFN_F5)]{.underline} In that first
article\--titled The Situation\--we began to develop our critical
realist project by bringing together in a new way a few of the core
insights of social psychology and economics. With respect to the former,
we focused particularly on a central and recurring finding that humans
tend to overstate the role of individual disposition and
under-appreciate the role of situation in accounting for human behavior.
[[\[FN6\]](#Document1zzFN_F6)]{.underline} As a general matter, lay
theories of human behavior, as well as legal theories, recognize the
role of situation only when it is palpable or when theorists are
particularly motivated to do so. And even then, only the most salient or
satisfying elements of the situation are considered. Otherwise,
disposition is presumed to govern.

Particularly in Western cultures, as we will explore, a person\'s
behavior is generally understood to manifest, not simply her
disposition, but a particular dispositionist causal schema that presumes
that behavior reflects freely willed (often consciously made)
\"choices,\" which in turn reflect a stable set of \"preferences.\" This
Article thoroughly fleshes out that widely held conception of human
behavior which we call dispositionism. In so doing, we provide a more
realistic depiction of the human animal, and a more promising starting
place for theorizing about humans and their institutions, including laws
and legal theory. We call that depiction the situational character.

B. INTRODUCTION TO DISPOSITIONISM

In The Situation, we highlighted several foundational studies
illustrating both the strength of dispositionism and the extent to which
our dispositionism is **\*7** wrong.
[[\[FN7\]](#Document1zzFN_F7)]{.underline} Our exposition centered on
the path-breaking work of Yale psychologist Stanley Milgram, who cracked
the dispositionist nut wide open in a dramatic series of experiments in
the 1960s.

Milgram arranged an experimental situation in which
subjects\--compensated volunteers\--were led to believe that they were
participating in a study on memory.
[[\[FN8\]](#Document1zzFN_F8)]{.underline} In the basic design of the
experiment, the subject first met another \"subject\"\--who was actually
one of Milgram\'s confederates\--and the two drew straws to determine
what part in the experiment they would take. The confederate was
inevitably assigned the role of the \"student,\" and promptly strapped
into a chair with electrodes affixed to his body. The true subject was
(seemingly randomly) assigned the role of the \"teacher,\" and was
instructed to administer an electric shock\--by flipping a switch on a
shock box\--each time the \"student\" incorrectly answered a question
posed by the experimenter. The \"teacher\" was led to believe that the
shocks would be painful, and that their intensity would increase in
fifteen-volt increments with each wrong answer\-- from 15 volts all the
way up to 450 volts, which was labeled \"Danger! XXX!\" on the shock
box. [[\[FN9\]](#Document1zzFN_F9)]{.underline}

Before the experiment was undertaken, Milgram described the protocol to
lay people and psychologists and then asked both groups to estimate how
far most \"teachers\" would go with the shocking before refusing to
continue. Those surveyed believed, as might the reader, that most would
refuse early on. College students predicted that just 1 in 100 subjects
would shock all the way to 450 volts, and professional psychologists
predicted that only 1 in 1000 \-- \"the sadists\"\--would go that far.
[[\[FN10\]](#Document1zzFN_F10)]{.underline}

But we humans do not\--and this is a central theme of critical
realism\-- understand ourselves well.
[[\[FN11\]](#Document1zzFN_F11)]{.underline} In the basic design of the
experiment, 100% of the subjects continued with the shocking at least to
350 volts, and 65% went all the way to 450 volts (\"Danger! XXX!\").
[[\[FN12\]](#Document1zzFN_F12)]{.underline} The dispositionist
assumption, that people would never freely choose to knowingly inflict
pain like that on an innocent subject in the absence of a highly salient
situational force\--such as a gun to their heads\--is robust. But it is
often wrong. In our dispositionism we **\*8** fail to appreciate the
powerful, but unseen, situational influences over the subjects\'
behavior in Milgram\'s lab. Milgram performed his study in numerous
settings on hundreds of subjects who were, in all respects, typical
people. They were not sadists; they were simply, like all of us,
situational characters who were subject to unappreciated but profound
influences in the situation. Indeed, Milgram was able to alter his
subjects\' behavior by altering the situational influences. By varying
the proximity of the \"teacher\" to the \"student,\" or the \"teacher\"
to the \"experimenter,\" or by altering the prestige of the experimental
setting (by moving the location of the experiment from Yale to
Bridgeport, Connecticut), Milgram discovered he could increase or
decrease the level of shocking that subjects would be willing to
administer. [[\[FN13\]](#Document1zzFN_F13)]{.underline}

Experiments like Milgram\'s, and there are literally hundreds of others,
[[\[FN14\]](#Document1zzFN_F14)]{.underline} have demonstrated that we
place far too much emphasis on disposition\--on an individual\'s
perceived motivations, preferences, choices, and will\--in accounting
for her conduct. In so doing we fail to appreciate the very potent,
though often unnoticed, influences of situation.

C. THE UBIQUITY OF DISPOSITIONISM

Before we further describe the situational character, it is essential
that we make clear just how central and vital dispositionism is to
virtually all of our conventional legal theories, laws, social policies,
and common sense self-conceptions. At almost every turn, dispositionism
defines or biases what we see and how we construe what we see: behavior
is strongly presumed to reflect freely willed, preference-satisfying
individual choice. But as dispositionists, we are both consistent and
consistently wrong.

1\. Dispositionism in (Law and) Economics

Dispositionism is very familiar to scholars and students who have
studied the \"rational actor\" model of law and economics, the
now-dominant legal-theoretic paradigm.
[[\[FN15\]](#Document1zzFN_F15)]{.underline} Many complaints have
already been leveled about the lack of realism in that model, most of
which focus on the apparent limits of \"rationality\" in human
decisionmaking. [[\[FN16\]](#Document1zzFN_F16)]{.underline} We will
review that literature below, but we want to highlight at the start that
even as they now vigorously debate the degree or kind of \"rationality\"
that human agents display, economists seem virtually unanimous in
assuming that people are preference-driven choosers (that is,
dispositionists). [[\[FN17\]](#Document1zzFN_F17)]{.underline}

Richard Posner, a standard-bearer of the law and economics movement,
insists that law and economics does not depend on people thinking
\"rationally\" **\*9** in the sense of being logical, calculating, and
accurate; but it does depend upon their being dispositional in the sense
of choosing their own ends: \"Rationality means little more to an
economist than a disposition to choose, consciously or unconsciously, an
apt means to whatever ends the chooser happens to have.\"
[[\[FN18\]](#Document1zzFN_F18)]{.underline}

For the legal economist, the ultimate line of defense for the rational
actor is dispositionism. Whether a person actually \"rationally\" thinks
through his or her decisions, or even whether people make decisions
\"consciously or unconsciously\" is not, according to Posner, pivotal.
To be sure, most legal economists have presumed that their model agents
are far more than mere choosers, but the rational actor model itself
need not be premised on more than the proposition that choices are just
that, the chooser\'s choices.
[[\[FN19\]](#Document1zzFN_F19)]{.underline} As Milton Friedman, the
Nobel Prize-winning economist and intellectual forerunner of the law and
economics movement put it: \"\[E\]very individual serves his own private
interest \.... The great Saints of history have served their \'private
interest\' just as the most money-grubbing miser has served his private
interest. The private interest is whatever it is that drives an
individual.\" [[\[FN20\]](#Document1zzFN_F20)]{.underline}

Economically oriented analysts, in the words of Gary Becker (another
Nobel Prize winner), have applied the \"combined assumptions of
maximizing behavior, market equilibrium, and stable preferences, \...
relentlessly and unflinchingly.\"
[[\[FN21\]](#Document1zzFN_F21)]{.underline} Despite their claim to
social science, economists in general and legal economists in particular
have indeed applied dispositionist assumptions unflinchingly\--that is,
without the self-suspicion and rigorous inspection that social science
would demand. This is no doubt because their dispositionist assumptions
seem so intuitively plausible, and so fundamental to our sense of
ourselves, that they are beyond question.
[[\[FN22\]](#Document1zzFN_F22)]{.underline} And perhaps this may also
help explain **\*10** why Stanley Milgram never won the Nobel Prize.
[[\[FN23\]](#Document1zzFN_F23)]{.underline}

2\. Dispositionism in Classic Liberal Political Theory

As we emphasized in our previous article, the sweep of dispositionism
extends far beyond the whipping post of law and economics and the
rational actor model. Indeed, the dispositionism of law and economics
should be seen as a kind of juiced-up version of the dispositionism that
has been at the core of every one of our society\'s most influential
legal and social theories. Far from being simply an artifact of a highly
stylized and, to some, easily dismissed legal theory, dispositionism of
various forms has long been emblazoned on the banner of classic liberal
political theory itself.

John Locke\'s conception of the human animal, as expressed in his famous
Second Treatise on Government, for example, starts here:

\[W\]e must consider what state all men are naturally in, and that is, a
state of perfect freedom to order their actions, and dispose of their
possessions and persons, as they think fit, within the bounds of the law
of nature; without asking leave or depending upon the will of any other
man. A state also of equality, wherein all the power and jurisdiction is
reciprocal, no one having more than another \.... Man in that state has
an uncontrollable liberty to dispose of his person or possessions \....
[[\[FN24\]](#Document1zzFN_F24)]{.underline}

Such dispositionist assumptions\--that by their very nature humans enjoy
the freedom to order their actions as they see fit\--are the heart of
Locke\'s contractual theory of society, much as they are the heart of
legal economists\' familiar calls for the expansion of, and deference
to, contracts and markets and, more generally, the cornerstone of
classic liberal political theory.

A generation after Locke, the French philosopher Jean Jacques Rousseau,
in his signature work The Social Contract, relied on dispositionism to
make his claim that freedom was the natural condition of humanity:

This common liberty results from the nature of man. His first law is to
provide for his own preservation, his first cares are those which he
owes to himself; and as soon as he reaches years of discretion, he is
the sole judge of the proper means of preserving himself, and
consequently becomes his own master.
[[\[FN25\]](#Document1zzFN_F25)]{.underline}

**\*11** The human animal, in this classic liberal picture, is its \"own
master,\" \"the sole judge of the proper means\"\--the \"apt\" means, to
use Posner\'s term\--of pursuing its own interests. It is of particular
importance that both Locke and Rousseau, like the legal economists of
today, begin their famous political tracts with initial claims about the
sources or nature of human behavior. Those foundational axioms are
presumed self-evident, and their truth is taken for granted throughout.
The assumptions are not, in other words, the demonstrated conclusion of
a philosophical or scientific inquiry.

Now is as good a time as any to pause and emphasize, as we did in our
previous article and will again, that dispositionists do not assume that
human beings are immutable or complete in their self-possession. Indeed,
it was Rousseau\'s view that, while humans were by nature all equal,
some could become severely twisted by extreme situational disadvantage.
Inverting what he took to be the classic view that slaves were by their
very essence slave-like, for example, Rousseau asserts that the
dispositionist attribution is wrong for missing the situation\--that
slavery wrought slave-like behavior and not the other way around:

Aristotle \[who held the essentialist view of slaves\] was right; but he
took the effect for the cause. Nothing can be more certain than that
every man born in slavery is born for slavery. Slaves lose everything in
their chains, even the desire of escaping from them: they love their
servitude \.... If then there are slaves by nature, it is because there
have been slaves against nature. Force made the first slaves, and their
cowardice perpetuated the condition.
[[\[FN26\]](#Document1zzFN_F26)]{.underline}

Rousseau sees situation, as dispositionists tend to, where it is highly
salient\--such as in the institution of slavery, or in the modern
dispositionist cliché, when there is \"a gun to the head.\" That
situation is recognized where it is highly visible is the exception that
proves the rule: situation, unless obvious, is irrelevant, leaving only
disposition. [[\[FN27\]](#Document1zzFN_F27)]{.underline}

In the same generation as Rousseau, on the other side of the Atlantic,
Thomas **\*12** Jefferson embraced a similarly dispositionist view of
humanity, and acted on it. Jefferson, by any standard a leading
proponent of classic liberal political theory, opened the American
Declaration of Independence with a statement of human nature that echoed
Rousseau\'s. It was \"self-evident,\" Jefferson wrote, that \"all men
are created equal \... are endowed by their Creator with certain
unalienable rights, \[and\] that among these are Life, Liberty and the
pursuit of Happiness.\" [[\[FN28\]](#Document1zzFN_F28)]{.underline}
Individual liberty is not just a political goal, but also a self-evident
self-conception. That such liberty would be exercised to pursue
happiness was, for Jefferson, also self-evidently grounded in a
dispositionist presumption. When Jefferson took the reins of the
government he helped to fashion, dispositionism remained integral to his
vision of the state and the citizen. In his first inaugural address, he
stated that

\[A\] wise and frugal government, which shall restrain men from injuring
one another, shall leave them otherwise free to regulate their own
pursuits of industry and improvement, and shall not take from the mouth
of labor the bread it has earned. This is the sum of good government
\.... [[\[FN29\]](#Document1zzFN_F29)]{.underline}

Though Jefferson was directing his comments to his Federalist political
opponents, his words nonetheless reflected a widely shared vision of
humanity. Those words have echoed off of that shared vision through
successive generations. Jefferson\'s ideas, according to the historian
Richard Hofstadter, were rooted not so much in a particular \"system of
economics or politics, but an imperishable faith expressed in
imperishable rhetoric.\" [[\[FN30\]](#Document1zzFN_F30)]{.underline}
That faith is a faith in dispositional man, and it is a faith that has
reverberated in our political discourse throughout this country\'s
history. While our political tradition has been laced with conflict,
there has also been, a shared \"ideology of self-help, free enterprise,
competition, and beneficent cupidity \.... However much at odds on
specific issues, the major political traditions have shared a belief in
the rights of property, \[and\] the philosophy of economic individualism
\... as necessary qualities of man.\"
[[\[FN31\]](#Document1zzFN_F31)]{.underline}

And that ideology is at least as strongly shared in our day. Ronald
Reagan, for example, made statements in his farewell address that echoed
precisely the sentiments Jefferson expressed in his inaugural address
nearly two-hundred years before: \"And I hope we have once again
reminded the people that man is **\*13** not free unless government is
limited. There\'s a clear cause and effect here that is as neat and
predictable as a law of physics: as government expands, liberty
contracts.\" [[\[FN32\]](#Document1zzFN_F32)]{.underline}

Dispositionism does indeed promise \"neat and predictable\" causal
attributions. So long as we see our behavior as reflecting free,
preference-satisfying choices, social policymaking becomes as clear as a
law of physics\-- just as one should get out of the way of a falling
apple if one wants to avoid being hit on the head, one need only remove
all obvious situational constraints from consumer and citizen choice to
ensure human liberty (and humanity\'s best hope for happiness).
[[\[FN33\]](#Document1zzFN_F33)]{.underline} Such a neat and predictable
theory may be as attractive as it is common, but as we hope to show in
this Article, dispositionist presumptions are no more laws of human
reality than the presumption that the sun revolves around the earth is a
law of astronomy. [[\[FN34\]](#Document1zzFN_F34)]{.underline}

3\. Dispositionism in the Law

a\. Contract Law

As surely as apples don\'t fall far from their trees, the fruit of
dispositionism defines, not only our common sense and our legal and
political theories, but also our laws. While this may not be surprising,
it should be troubling. As if we are trapped in a kind of
self-conception fun house, this false image of ourselves infects almost
all of our institutions and systems, including our system of justice.

Consider the law of contract, on which so much of our legal apparatus
rests. For the most part, the law of contract mirrors our basic
dispositionist self-conceptions. It is concerned with the enforcement of
promises. [[\[FN35\]](#Document1zzFN_F35)]{.underline} When promises are
perceived as freely made, they are generally enforceable.
[[\[FN36\]](#Document1zzFN_F36)]{.underline} And when **\*14** contract
law sees behavior manifesting a promise\-- such as signatures or other
affirmative expressions of assent\--it usually sees them as having been
freely made. This follows from dispositionism\--human conduct is
presumptively understood as the free expression of individuals\'
preferences and will. Only very narrow doctrines, such as \"duress\" or
\"undue influence,\" are available for those rare instances when that
presumption might be rebutted. The narrow exceptions arise, predictably,
only where the most palpable and powerful situational forces are in
play. The First Restatement of Contracts defined the kind of duress that
could make a contract voidable as a \"wrongful threat of one person by
words or other conduct that induces another to enter into a transaction
under the influence of such fear as precludes him from exercising free
will and judgment.\" [[\[FN37\]](#Document1zzFN_F37)]{.underline}

The starting place is the dispositionist will, which is presumed to be
the usual and proper cause of a person\'s behavior. The concept of
duress does not depart from the dispositionist view. It is only a
particular kind of experience that will excuse a promise under the
doctrine: dispositionally experienced fear.

\[D\]uress consists of threats that cause such fear as to induce the
exercise of volition, so that an undesired act is done\.... The question
is \... did it put one entering into the transaction in such fear as to
preclude the exercise by him of free will and judgment. Age, sex,
capacity, relation of the parties, attendant circumstances, must all be
considered. Persons of a weak or cowardly nature are the very ones that
need protection. The courageous can usually protect themselves; timid
persons are generally the ones influenced by threats, and the
unscrupulous are not allowed to impose upon them because they are so
unfortunately constituted. [[\[FN38\]](#Document1zzFN_F38)]{.underline}

Even in the exceptional, backwater doctrine of duress, the focus of
contract law remains resolutely dispositionist\--the will of the victim
must be overcome in order for the doctrine to be implicated. And because
we see most behavior as resulting from individual will, it is only the
very palpable situational force of an unscrupulous person making a
fear-inducing threat that can trump the presumption that it is an
individual\'s will in charge. Even then, it is primarily the
\"unfortunately constituted\" \"\[p\]ersons of a weak \... nature\" who
are vulnerable to such obvious situational threats. There is little or
no recognition in this doctrine of the power of less conspicuous
situation over virtually all of us, **\*15** though this would seem to
be the first place, if any, where situation should be taken into
account. [[\[FN39\]](#Document1zzFN_F39)]{.underline} Under this
approach, the situational pressures created in Stanley Milgram\'s
laboratory would surely not be seen as duress.

b\. Tort Law

A similar conception of human beings pervades the law governing
noncontractual harms\--tort law. Long before the rational actor began
making the rounds of the law reviews, tort law\'s reasonable person was
a dispositionist mainstay. [[\[FN40\]](#Document1zzFN_F40)]{.underline}
Just as contract holds people accountable for their promises, tort law
holds them responsible for their wrongful harms. Under the basic
negligence standard, a person is liable for the harms that a reasonable
person would have prevented in similar circumstances.
[[\[FN41\]](#Document1zzFN_F41)]{.underline} The standard speaks to the
disposition of the tortfeasor, as well as to the disposition of the
reasonable person against whom the tortfeasor is to be judged:

The actor is required to recognize that his conduct involves a risk of
causing an invasion of another\'s interest if a reasonable man would do
so while exercising

**\*16** (a) such attention, perception of the circumstances, memory,
knowledge of other pertinent matters, intelligence, and judgment as a
reasonable man would have; and

\(b\) such superior attention, perception, memory, knowledge,
intelligence, and judgment as the actor himself has.
[[\[FN42\]](#Document1zzFN_F42)]{.underline}

The person conceived in the reasonable person standard here is a
dispositional actor. The law is concerned primarily with the
tortfeasor\'s\--or the reasonable person\'s\--dispositional qualities:
her conscious thoughts (her \"attention\"), her perceptions, her
memories, her intelligence, and, finally, the culmination of all of
those features, her judgment. Situational influences are not entirely
ignored. In fact, more so than with contract and many other areas of
law, situational forces can be important to the outcomes in tort
litigation. When applying the reasonable person standard, for instance,
juries are asked to determine if a litigant\'s behavior was reasonable
in the actor\'s situation. And, to be sure, a fair amount of the
litigation process can be devoted to framing and debating causal
attributions. It is not unusual, therefore, for at least one side to
emphasize certain salient situational considerations. Insofar as that
occurs, however, the anchor of dispositionism still significantly biases
the factual and legal assessments of wrongfulness and liability.
[[\[FN43\]](#Document1zzFN_F43)]{.underline}

Relatedly, tort law doctrine recognizes situational influences only
where they are so palpable as to make themselves clear to the reasonable
dispositionist. As in contract law, there are exceptional doctrines in
tort law that can rebut the basic dispositionist presumption, but they
are only the most palpable situational forces. A sudden tempest, for
example, may excuse a wayward sailor\'s use and damage of a stranger\'s
dock, under the doctrine of necessity.
[[\[FN44\]](#Document1zzFN_F44)]{.underline} Even there, however, the
law focuses less on the situation itself, and more on the
reasonablesness of the actor\'s choice given that palpable situation.
And, as the Restatement indicates, such situations are rare.
[[\[FN45\]](#Document1zzFN_F45)]{.underline} Circumstances that would
warrant the **\*17** application of the doctrine of necessity, for
instance, include those in which a defendant wanted \"to protect against
a public enemy, or to prevent or mitigate the effect of conflagration,
flood, earthquake, or pestilence.\"
[[\[FN46\]](#Document1zzFN_F46)]{.underline} Consider another
exceptional tort doctrine: incapacitation. Tort law holds that if \"an
actor\" causes some harm because of a sudden incapacitation\--such as an
unexpected epileptic fit or a heart attack while driving a car, the
actor will be considered negligent only if the incapacity was reasonably
foreseeable to them. [[\[FN47\]](#Document1zzFN_F47)]{.underline} The
first draft of the Third Restatement notes that \"the modern cases are
impressively unanimous in accepting\" the principle that an unexpected
incapacity is a defense to negligence.
[[\[FN48\]](#Document1zzFN_F48)]{.underline} And this is not
surprising\--an epileptic fit or a heart attack makes a stunning case
that the defendant had not dispositionally willed his allegedly tortious
behavior. But making this showing of \"incapacitation\" is the
defendant\'s burden; the presumption is that the actor\'s conduct was an
expression of dispositional free will.
[[\[FN49\]](#Document1zzFN_F49)]{.underline} And the burden is a high
one.

The situational clarity of an epileptic fit or a heart attack yields
again to situational invisibility just as soon as disposition can once
more plausibly account for behavior. Within its discussion of
incapacity, the Third Restatement compares the condition of incapacity
to that of \"mental illness,\" which generally does not provide an
excuse to negligence or otherwise alter the standard of conduct.
[[\[FN50\]](#Document1zzFN_F50)]{.underline} That is because, according
to the Second Restatement, \"limited or moderate mental disorders \...
ordinarily are not especially important as an explanation for conduct.\"
[[\[FN51\]](#Document1zzFN_F51)]{.underline} Without sudden incapacity,
the most important explanation for conduct is expected to be, and in the
eyes of tort law almost irrebutably is, dispositional choice. On the
outside, only a calamitous situation such as a fire or a storm is seen
to trump the presumption that people behave dispositionally. On the
inside only total incapacitation is. Tort law\'s reasonable person is,
no less than the rational actor or classical liberal theory\'s natural
man is, a dispositional actor.

This basic dispositionist perspective in tort law was succinctly stated
recently in a federal judge\'s order dismissing a claim seeking to hold
McDonald\'s liable in some measure for the obesity (and concomitant
health problems), of some of its customers:

**\*18** As long as a consumer exercises free choice with appropriate
knowledge, liability for negligence will not attach to a manufacturer.
It is only when that free choice becomes but a chimera\--for instance,
by the masking of information necessary to make the choice, such as the
knowledge that eating McDonalds with a certain frequency would
irrefragably cause harm\--that manufacturers should be held accountable.
[[\[FN52\]](#Document1zzFN_F52)]{.underline}

The presumption is that human behavior reflects dispositional choice
and, more specifically, that those eating frequently at a fast-food
establishment \"irrefragably\" (that is, indisputably) have
\"appropriate knowledge\" of the harms they will encounter by so doing.
No liability will attach \"as long as\" this presumption holds out. And
it holds out a long time. Instances where behavior will not be seen as
evidencing free choice\--such as where a manufacturer has \"mask\[ed\]\"
information necessary to the choice\--are the rare exception. Such
instances, in fact, are \"chimeras\" of the expected experience of free
will. [[\[FN53\]](#Document1zzFN_F53)]{.underline} The world of humans,
the real world that we think we perceive correctly, is the world of free
choice. Tort law is as certain of this as was Rousseau or Jefferson.
[[\[FN54\]](#Document1zzFN_F54)]{.underline} It leaves little room for
the possibility that our dispositionism may itself be the chimera.

c\. Criminal Law

In criminal law too, dispositionism dominates. Again, it is not that
situational considerations play no role. They do. Indeed, they may play
as great a role here as they do in any area of law. The law does not
look just to outcomes and behavior, it also attempts to assess a
defendant\'s state of mind when engaging in a particular act.
[[\[FN55\]](#Document1zzFN_F55)]{.underline} In that quite
dispositionist inquiry, situational considerations are often brought to
light by defense counsel in an effort to limit the defendant\'s **\*19**
apparent culpability. Still, the process is closely tethered to the
situational insensitivity of the doctrine and the dispositionist
presumptions of the factfinders.
[[\[FN56\]](#Document1zzFN_F56)]{.underline} The Model Penal Code
states: \"A person is not guilty of an offense unless his liability is
based on conduct that includes a voluntary act or the omission to
perform an act of which he is physically capable.\"
[[\[FN57\]](#Document1zzFN_F57)]{.underline} The depth of the Code\'s
dispositionism is illustrated by how broadly it construes volition.

The following are not voluntary acts within the meaning of \[the
standard set forth above\]:

\(a\) a reflex or convulsion;

\(b\) a bodily movement during unconsciousness or sleep;

\(c\) conduct during hypnosis or resulting from hypnotic suggestion;

\(d\) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
[[\[FN58\]](#Document1zzFN_F58)]{.underline}

In other words, a person\'s behavior will only rarely be understood as
the result of some force other than voluntary choice.

The doctrines of duress, heat of passion, mental disorder, and
diminished capacity are as impoverished in criminal law as are their
cousin doctrines in contract and tort law. The Model Penal Code\'s basic
approach to excuse doctrines is summarized well in its formulation of
duress:

It is an affirmative defense that the actor engaged in the conduct
charged to constitute an offense because he was coerced to do so by the
use of, or a threat to use, unlawful force against his person or the
person of another, that a person of reasonable firmness in his situation
would have been unable to resist.
[[\[FN59\]](#Document1zzFN_F59)]{.underline}

Again, the only kind of situation that is recognized is a threat of
force, a highly palpable situational influence. An actor will be excused
only for those situational forces that a reasonable person, that is, a
dispositional person, would see as overtaking free will. As one court
cited by the Code put it: \"Duress consists in \[sic\] forcing a person
to act against his or her own will. It does not exist when a person can
choose whether he or she will perform the act said to have been done
under duress.\" [[\[FN60\]](#Document1zzFN_F60)]{.underline}

The excuse of mental illness is similarly narrow:

**\*20** A person is not responsible for criminal conduct if at the time
of such conduct as a result of mental disease or defect he lacks
substantial capacity either to appreciate the criminality
\[wrongfulness\] of his conduct or to conform his conduct to the
requirements of law. [[\[FN61\]](#Document1zzFN_F61)]{.underline}

The strong presumption is that people, absent highly conspicuous
situational constraints, enjoy substantial capacity to conform their
conduct to law. Determining conduct, after all, is what the will is all
about. As a practical matter, defenses of mental incapacity are almost
never successful\--a verdict of not guilty by reason of insanity, for
example, succeeds in only one-tenth of one percent of all felony cases.
[[\[FN62\]](#Document1zzFN_F62)]{.underline} The dispositionist
presumption that pervades our common sense, and which is at the heart of
the criminal law, is nearly irrebuttable.
[[\[FN63\]](#Document1zzFN_F63)]{.underline}

D. THE HIGH STAKES OF DISPOSITIONISM\--AND OF OUR ARGUMENT

Our point should by now be clear: dispositionism is more than just a
fundamental axiom of law and economics; dispositionism lies at the heart
of our self-conceptions, our political and legal theories, and our laws.
None of what we have said thus far should be surprising. Dispositionism
is, as we have emphasized, the stuff of common sense. Our purpose in
reviewing a parade of dispositionism is to raise the stakes of what
probably will come as a surprise: the dominant attributional schema
informing our self-conceptions, our lay and social theories, and our
laws, is, in important ways and to significant degrees, **\*21** wrong.
We look in the mirrors all around us and we see ourselves pursuing
preferred ends as rational actors or reasonable persons or, at the very
least, agents with determinative control over our cognitions and
behaviors. We see reflections and affirmations of our dispositionist
selves, but those mirrors are distorting.

The stakes of dispositionism are huge\--and they are, in our view,
stakes we are losing and will continue to lose if we persist in ignoring
the extent of our self-deception. Our sense of ourselves is wrong not
just in the details or on average, or in some bounded way.
[[\[FN64\]](#Document1zzFN_F64)]{.underline} Rather, it is monumentally
wrong, or so suggests the best available social science.

Our critical realist purpose in what follows will be to explore a sample
of evidence indicating the flaws and illusions of dispositionism, and to
offer the best alternative conception of the human animal that social
science (rather than intuition, common sense, faith, or tradition) can
provide. We ask our readers to move back with us several steps to a
decisive, though unseen, analytic moment that takes place before most
legal scholarship begins, to the basic assumptions concerning the nature
of the human agent. We ask our readers to focus on the very question
that most legal scholarship\--indeed, most people\--generally treat as
beyond question. Usually, when sound science is applied in
legal-academic writing, it is applied only after dispositionism is
already firmly, implicitly, in place. Our readers should therefore brace
for the kind of elaborate analysis typical of any law and economics text
or other social scientific legal study, but the analysis in this
instance will begin where we believe it always should begin\--at the
beginning.

Many of the studies and findings we report below are as fun as they are
fascinating. Often, though, they can also be quite threatening. The
theories and evidence that we highlight defy our dispositionist
presumptions and thus challenge our most basic expectations and beliefs
about our systems and institutions, about the groups to which we do and
don\'t belong, and about ourselves.

There is still more at stake. In The Situation, we sketched the basic
outlines of a theory that we call \"deep capture.\"
[[\[FN65\]](#Document1zzFN_F65)]{.underline} There and elsewhere we have
argued that a dispositionist conception of the human animal is generally
extremely valuable to large commercial enterprises, which share an
interest in expanding free markets, private property, and contract, in
inhibiting profit-reducing regulation, and in justifying a normative
conception of business enterprises as profit-maximizers. Where behavior
is presumed to be a manifestation of free choice, and where choices are
presumed to reveal dispositional preferences, then markets **\*22** and
free contracting appear to be a far more reliable means of increasing
personal and social welfare than are the best guesses of regulators, and
profit maximization (or shareholder primacy) seems to be similarly
desirable because of its tendency to maximize consumer choice, and thus
social welfare. [[\[FN66\]](#Document1zzFN_F66)]{.underline} If the
depth of our dispositionism can be influenced by situation\--and social
psychology demonstrates that it can be\--then profit-maximizing firms
will exercise their power over situation to promote it. Just as
conventional capture theory predicts that profit-maximizing enterprises
will work to capture the political and regulatory system, \"deep
capture\" theory predicts that they will endeavor to influence the much
broader situation that encourages a dispositionist outlook. We will not
review the arguments concerning \"deep capture\" in any depth here,
though we encourage readers to review our outline of it in The Situation
[[\[FN67\]](#Document1zzFN_F67)]{.underline} and to anticipate further
elaboration of it in other work.
[[\[FN68\]](#Document1zzFN_F68)]{.underline} The purpose of this Article
is to substantiate and elaborate a central premise of critical realism,
that although we think we are dispositional actors, we are better
understood as situational characters. Evidence that human animals are
situational characters implicates and threatens to deligitimate, not
only our favored self-conception, but also our laws, legal theories, and
indeed, most of our social systems. So brace yourself.
[[\[FN69\]](#Document1zzFN_F69)]{.underline}

II\. MISSING THE SITUATION AND SEEING DISPOSITION

Much of the rest of this Article is dedicated to fleshing out the
situational character, who we believe should retire the \"rational
actor\" and its dispositionist brethren in our other conventional legal
theories, social policies, and common **\*23** sense.
[[\[FN70\]](#Document1zzFN_F70)]{.underline}

A. TWO SOURCES OF DISPOSITIONISM

1\. A Basic Source of Dispositionism

\"\[C\]ompare the effect of education and the lack of it upon our human
nature to a situation like this: imagine men \[and women\] to be living
in an underground cave-like dwelling place \.... The \[women and\] men
have been there from childhood, with their neck and legs in fetters, so
their bonds remain in the same place and they can only see ahead of
them, as their bonds prevent them from turning their heads. \.... Do you
think, in the first place, that such men \[and women\] could see
anything of themselves and each other except the shadows which the fire
casts upon the wall of the cave in front of them?\--How could they, if
they have to keep their heads still throughout life?\" \~ PLATO
[[\[FN71\]](#Document1zzFN_F71)]{.underline}

In a sense, we are living in Plato\'s cave. We perceive in our world
people acting, and we presume that we are seeing the whole of what\'s
happening. In fact, we are looking at merely a shadow of the vast world
of situational influence occurring outside our narrow purview. A basic
explanation of the fundamental pattern that is at the root of
dispositionism is that we are, so to speak, only human\--we have limited
perceptual and cognitive capacity, and a limited time in which to do our
thinking. Because of those human limitations we are \"cognitive
misers,\" getting by on the conceptual cheap\--making use, in most
contexts, of that which is palpable, focused, and easy to understand. We
see disposition in part because it is salient and easy. Conversely, we
miss situation because it is neither.
[[\[FN72\]](#Document1zzFN_F72)]{.underline} In short, seeing and not
appreciating unseen situation is dispositionist believing.

**\*24** The cognitive limitations explanation of the fundamental
attribution error is evidenced also by the fact that it is true of
people across cultures. And yet, the depth of its grasp on our
imagination of ourselves\--the extent of the tendency to emphasize
disposition and overlook situation\--varies across situations. In some
ways, it is more pronounced in the West than it is in the East.
[[\[FN73\]](#Document1zzFN_F73)]{.underline} Moreover, dispositionism
deepens intergenerationally among immigrants to a new, more
dispositionist culture. [[\[FN74\]](#Document1zzFN_F74)]{.underline} Our
dispositionism is thus, to a significant degree, culturally contingent.
[[\[FN75\]](#Document1zzFN_F75)]{.underline} It is, in our terms, highly
situational. [[\[FN76\]](#Document1zzFN_F76)]{.underline} Those
variations notwithstanding, the fundamental attribution error appears to
wield significant influence across all cultures.
[[\[FN77\]](#Document1zzFN_F77)]{.underline} We are all, in some sense,
in the same cave.

2\. A Deeper Source of Dispositionism

Beyond our perceptions of the world, there is another, deeper source of
dispositionism that helps to explain its power within us.
[[\[FN78\]](#Document1zzFN_F78)]{.underline} To see it, we would like to
distinguish between two types of fundamental attribution errors. The
first is the sort that we have focused on thus far and is what social
psychologists have meant by the term. We will call that the exterior
fundamental attribution **\*25** error. When humans look at any external
setting and make causal attributions, certain key features of that
setting\--most importantly the observable actions of individuals\--exert
disproportionate influence over their evaluations. We see what \"pops
out\" at us and tend to miss most everything else. The second
fundamental attribution error concerns what we see of ourselves or, more
precisely, what we see of our interiors. This interior fundamental
attribution error is subtler, but, as we have suggested, is often true
and no less important than the first.

B. THE INTERIOR FUNDAMENTAL ATTRIBUTION ERROR

\"The inner world cannot be observed with the aid of our sensory organs.
Our thoughts, wishes, feelings, and fantasies cannot be seen, smelled,
heard, or touched. They have no existence in physical space, and yet
they are real, and we can observe them as they occur in time: through
introspection in ourselves, and through empathy (i.e., vicarious
introspection) in others.\" \~ Heinz Kohut
[[\[FN79\]](#Document1zzFN_F79)]{.underline}

\"There\'s an old story about two men on a train. One of them, seeing
some naked-looking sheep in a field, said, \'Those sheep have just been
sheared.\' The other looked a moment longer, and then said, \'They seem
to be\--on this side.\' It is in such a cautious spirit that we should
say whatever we have to say about the workings of the mind \....\"

\~ John Holt [[\[FN80\]](#Document1zzFN_F80)]{.underline}

The primacy of dispositionism reflects what we call the \"interior\"
[[\[FN81\]](#Document1zzFN_F81)]{.underline} fundamental attribution
error. That error, which is analogous to its exterior counterpart, is
the tendency to \"see,\" and to attribute a powerful causal role to
certain salient features of our interior lives that actually wield
little or no causal influence over our behavior, while simultaneously
failing to see those features of our interiors that are in fact highly
influential. Those elements of our interior experience that are clearly
felt help to make possible, if not likely, a theory of ourselves in
which dispositions play the dominant role in our behavior. We are primed
by our felt interior experience and the resultant pre-theoretic axioms
to see dispositions **\*26** and to overlook potentially more
significant influences. In other words, the interior fundamental
attribution error contributes significantly to the exterior fundamental
attribution error. Below, we will summarize some of the unappreciated,
but highly influential, interior forces that social psychologists have
identified. But the remainder of this section will describe those
familiar aspects of our interiors that, while ultimately a woefully
incomplete picture, are the most readily \"observed\" aspects of our
interiors.

When we seek\--consciously or not\--to understand what we are or why we
behave as we do, we tend to attribute a vast majority of the causal
weight to certain key mechanisms. As with the exterior, we see\--or, as
Heinz Kohut describes it, introspect\--only a small part of what moves
us. [[\[FN82\]](#Document1zzFN_F82)]{.underline} Only a fraction of our
interior setting seems vivid and abiding, while the greater portion is
pallid and evanescent. Indeed, there are facets of our perceived
interior experience that are so prominent that our sense of ourselves is
completely dominated by them, and our existence apart from them is
difficult to conceive. These basic features can be roughly described in
four categories of felt inner experience: thinking (that is,
self-conscious, articulable evaluation); preferring (which includes a
variety of perceived interior sources of choice proclivities, such as
our dispositions, wishes, goals, values, feelings, attitudes, and
tastes); willing (the experience of consciously choosing or intending);
and, the most visible of all, acting (our sense of the culmination of
our thoughts, preferences and will, in our behavior).
[[\[FN83\]](#Document1zzFN_F83)]{.underline}

That basic schema, which, if we are right, should be more or less
familiar to readers from their own experience of their own inner lives,
is loosely depicted in Figure 1:

**Figure 1.**

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Social psychologists who have studied self-conceptions across cultures
summarize this Western person schema as follows:

**\*27** The person is believed to consist of a set of \"internal,\"
\"personal\" attributes such as \... personality traits, preferences,
subjective feeling states, beliefs, and attitudes. These attributes are
thought to be internal and personal in the sense that they come from
within and characterize the person regardless of the situation (that is,
a person\'s attributes are not generated by or relative to current
social context). Taken together, these attributes define each person as
an autonomous, freely choosing, special individual. Within this social
system, a human being is a person by virtue of being distinguishable
from others on the basis of these attributes, which collectively
constitute the person\'s social identity.

The independent cultural model that prevails in North America and in
much of Europe emphasizes certain features of the person as natural,
necessary, \"healthy,\" and good. The person

• is a bounded, coherent, stable, autonomous, \"free\" entity.

• \"possesses\" a set of characteristic identifying attributes\--
preferences, motives, goals, attitudes, beliefs, and abilities\--that
are the primary forces that enable, guide, or constrain actions.
[[\[FN84\]](#Document1zzFN_F84)]{.underline}

And, as Daniel Wegner writes, \"\[w\]e each have a profound sense that
we consciously will much of what we do, and we experience ourselves
willing our actions many times a day.\"
[[\[FN85\]](#Document1zzFN_F85)]{.underline}

The four basic, salient elements of our interior\--thinking, preferring,
willing, and choosing (or acting) \--significantly shape the parameters,
the building blocks, and the pre-theoretic axioms of our
self-conceptions and our theories and, in turn, shape how we construe
and evaluate our environs. [[\[FN86\]](#Document1zzFN_F86)]{.underline}
Those features **\*28** are especially \"visible\" and influential,
because they themselves can be, and typically are, understood as
causally connected. [[\[FN87\]](#Document1zzFN_F87)]{.underline} We
\"know\" that we have preferences, which we \"know\" are revealed and
informed through our thinking and acting; we \"know\" that we think
about our options and decide according to our preferences and will our
acts accordingly. [[\[FN88\]](#Document1zzFN_F88)]{.underline} Those
known features and their connections are, we suspect, too common, too
self-evident, too salient, and too widely shared to be discounted in
favor of the many interior features, explored below, that are less
easily seen or experienced.

1\. Thinking and Being

Take thinking. Most of us understand thinking\--that is, the thinking
that we are conscious of\--as one of the primary occupations of life. As
a species, we have designated ourselves \"homo sapiens\" (Latin for
\"thinking beings\") for a reason. The story of Adam and Eve\'s eating
of the apple from the forbidden Tree of Knowledge can be understood as a
story about how we humans gained our characteristic ability (or curse)
of reflective thinking. When Descartes announced the seemingly
incontestable \"I think therefore I am\" as the foundation of human
understanding, he was beginning the modern philosophical project with
our most basic experience of ourselves. He was articulating, among other
things, a widely shared sense of what it means to be alive (as a human,
at least):

From this I knew that I was a substance whose whole essence or nature is
solely to think, and which does not require any place, or depend on any
**\*29** material thing, in order to exist. Accordingly, this
\"I\"\--that is, the soul, by which I am what I am\--is entirely
distinct from the body \....
[[\[FN89\]](#Document1zzFN_F89)]{.underline}

The Cartesian insight is so powerful because, at some level, it seems
obviously right. Thinking seems pretty good evidence of being. Thinking
about thinking seems better still. And there is little meaning in
(human) being without thinking. Everyone reading this article knows what
it means to be and to think, and probably understands each as a key,
perhaps necessary, feature of the other.

2\. Preferences and Identity

Similarly, most of us know what it means to prefer oranges to apples
(or, perhaps, apples and self-awareness to a heavenly garden of
ignorance) and to choose one or the other, even if we have trouble
comparing them. Much of our thinking experience pertains to being struck
by, and reacting to, the things, people, and experiences that we like
and those that we do not. While our Cartesian experience of thought
assures us of our existence, our perceived preferences help inform us
about our particular identity in the broader backdrop of being. That
which we like and do not like, or value and disvalue, and our relative
rankings of the particulars among them, go far, it seems, in creating
our identities. Our perceived similarities to, and dissimilarities from,
those people around us are based significantly, though by no means
solely, on our perceptions of our shared and distinct tastes, values,
preferences, [[\[FN90\]](#Document1zzFN_F90)]{.underline} and
dispositions. And those identities are commonly, perhaps increasingly,
\"expressed\" through our choices\--work choices, if such are available,
and particularly these days our consumption choices.
[[\[FN91\]](#Document1zzFN_F91)]{.underline}

**\*30** 3. Willing, Acting, and Freedom

We \"see\" ourselves thinking, we \"see\" our preferences, and perhaps
most decisively to our dispositionist sense of ourselves, we experience
ourselves intentionally willing the tangible result of the whole
process, our resultant actions. As Harvard psychologist Daniel Wegner
puts it, the \"conscious will explanation\" of our own conduct has a
\"deep\[\] grip on our imagination.\"
[[\[FN92\]](#Document1zzFN_F92)]{.underline}

We can\'t possibly know (let alone keep track of) the tremendous number
of mechanical influences on our behavior because we inhabit an
extraordinarily complicated machine. So we develop a shorthand, a belief
in the causal efficacy of our conscious thoughts. We believe in the
magic of our own causal agency.
[[\[FN93\]](#Document1zzFN_F93)]{.underline}

Thus, \"\[w\]e have a profound sense that we consciously will much of
what we do, and we experience ourselves willing our actions many times a
day.\" [[\[FN94\]](#Document1zzFN_F94)]{.underline}

Saying much more about this sense of our own will is especially hard,
and the challenge of its fuller elaboration has occupied artists and
writers for generations. [[\[FN95\]](#Document1zzFN_F95)]{.underline} In
the interest of making explicit our common-sense experience of the human
interior, it suffices to say that we feel within ourselves, associated
with our own behaviors, \"a kind of internal \'oomph\' that somehow
certifies authentically that one has done the action.\"
[[\[FN96\]](#Document1zzFN_F96)]{.underline} And so it is that \"most
people believe that their conscious feelings and judgments control their
actions.\" [[\[FN97\]](#Document1zzFN_F97)]{.underline} We see ourselves
making choices among options, and the choices reflect our particular
identity as against the rest of the world and the options not taken.
Thus our actions, to the extent that they are perceived as freely taken,
are seen as manifestations of our thinking, preferring, and willing. We
often experience such actions as exercised freedom, our ability actually
to manifest in the world the being and identity that we otherwise know
makes us who we are in our **\*31** minds.

4\. Summary of the Interior Fundamental Attribution Error

\"A man need not, it is true, do this or that act,\--the term act
implies a choice,\--but he must act somehow.\" \~ Oliver Wendell Holmes,
Jr. [[\[FN98\]](#Document1zzFN_F98)]{.underline}

Just as the availability of human activity tends to overwhelm our causal
understandings of our exteriors, the availability of thinking,
preferring, willing, and acting (and perhaps some other similarly
salient, conscious features) over-whelms our causal understandings of
our interiors. We perceive ourselves thinking, we perceive our own
dispositions or preferences, and we perceive ourselves acting freely in
accordance with our cognitions, tastes, and free will. So it is that
certain assumptions about our psychological processes are said to be
\"axiomatic, though generally implicit, in many modern Western
cultures\": [[\[FN99\]](#Document1zzFN_F99)]{.underline}

• Actions are freely chosen.

• Choices imply a preference.

• Preferences are stable over time.

• Preferences implicate the identity of the self.

• Outcomes are mostly controllable.

• People are responsible for (and hence the self is implicated in) the
choices they make and the resultant outcomes.

• Smart (good) people make good choices, whose outcomes they are happy
with. [[\[FN100\]](#Document1zzFN_F100)]{.underline}

We assume, then, that actions reflect something within us\--our choices.
Those choices reflect a stable set of preferences, which themselves
determine and reflect our \"personality\" or identity. Because our
behavior reflects such choices, most of what happens is
controllable\--simply a matter of choice. And because outcomes are
subject to a person\'s control, each person is responsible for the
outcomes that define her circumstances. Furthermore, outcomes reflect
something about the person making the choices: Good people enjoy good
outcomes, and bad outcomes tend to happen to bad people.

With that schema of the human animal in place, we are easily convinced
that we are who we claim ourselves to be\--free, autonomous, thinking,
preferring actors\--and there is very little cognitive space for
considering the role of **\*32** influences within us and around us.
[[\[FN101\]](#Document1zzFN_F101)]{.underline} In other words, what we
\"see\" gives rise to fundamental attribution errors both externally and
internally. [[\[FN102\]](#Document1zzFN_F102)]{.underline}

These are the clichés of our self-understanding: seeing is believing,
and out of sight, out of mind.

5\. The Situation of Our Interiors

\"The more we examine the mechanism of thought, the more we shall see
that the automatic, unconscious action of the mind enters largely into
all its processes. Our definite ideas are stepping-stones; how we get
from one to the other, we do not know: something carries us; we do not
take the step.\" \~ Oliver Wendell Holmes, Sr.
[[\[FN103\]](#Document1zzFN_F103)]{.underline}

Our concern here is less with what so many of us, laypeople and
theorists alike, find self-evident and more with what we do not. As was
true exteriorly, it is the unavailable or less salient features of our
interiors that often wield the most influence over us. It is, in the
words of the elder Holmes, something \"we do not know\" that \"carries
us.\" Even Descartes\' terse proposition about the unity of thinking and
being is flawed in an illustrative way. The Cartesian insight imagines
thinking as that cognitive process that we are aware of and that is
independent from all else, including even the body in which that
thinking occurs. That is the flaw that neuroscientist Antonio Damasio
has dubbed \"Descartes\' Error\" in his book of the same title.
[[\[FN104\]](#Document1zzFN_F104)]{.underline} Human cognitive
processing is not simply the stuff of conscious thinking. Our thinking
is situational, and is influenced outside of our awareness and control
by everything from our bodies to our social environments:
\"Consciousness, the feature at the center of what makes humans unique,
is the culprit \[of our dispositionism\], for it permits a view of who
we are and what we are capable of that is independent of the knowledge
and feelings that may drive beliefs, attitudes, and behavior.\"
[[\[FN105\]](#Document1zzFN_F105)]{.underline} But, **\*33** as Damasio
states:

\[T\]he comprehensive understanding of the human mind requires an
organismic perspective; that not only must the mind move from a
nonphysical cogitum to the realm of biological tissue, but it must also
be related to a whole organism possessed of integrated body proper and
brain and fully interactive with a physical and social environment.
[[\[FN106\]](#Document1zzFN_F106)]{.underline}

Thinking may imply being, but our thinking is not what we experience it
to be. The problem is, again, one of perceiving disposition and
overlooking situation. That partial vision is, as we\'ve argued, a key
feature of being human and may be part of what Augustine was suggesting
when he wrote: \"Fallor ergo sum\" (I am deceived, therefore I am)
[[\[FN107\]](#Document1zzFN_F107)]{.underline} or, in any event, it is
what we mean when we write \"I think dispositionally, therefore I am
deceived.\"

Our point in this discussion has been that there is more to the
\"situation\" than what occurs outside of the human actor. Just as there
is an unseen exterior situation that gives rise to the exterior
fundamental attribution error, there is an interior
situation\--undetected but incredibly powerful\--that gives rise to the
interior fundamental attribution error. Our experiences are wrapped in
two layers of situational influences. To better understand what moves us
requires understanding them both; and to better understand the power of
either requires understanding its relationship with the other.

6\. Situation Defined

The bulk of this Article is dedicated to providing a more thorough
examination of interior situation. Before proceeding with that, however,
it may be helpful to offer a slightly more encompassing definition of
situation. Situation, as we mean it, includes anything that influences
our attitudes, memories, cognitions, emotions, behaviors, and the like
in ways that we tend not fully to appreciate or control. The situation,
then, is part of the human predicament: it is in and around us, it is
influencing us, and it is doing so in ways that we do not appreciate, do
not understand, do not have a place for in our theories, and do not
**\*34** individually or dispositionally control. Although that may
strike many as an unorthodox understanding of situation,
[[\[FN108\]](#Document1zzFN_F108)]{.underline} it is designed to upend
the unexamined orthodoxy by emphasizing not just that we humans are
blind, but that we are blind to our blindness.
[[\[FN109\]](#Document1zzFN_F109)]{.underline}

III\. GETTING TO KNOW THE SITUATIONAL CHARACTER

A. INSIDE THE SITUATIONAL CHARACTER

\"Consciousness of the mind is precisely the same as consciousness of
kidney function. Both the brain and the kidney are organs that result in
bodily processes\.... For both, we can observe the states that result
from activity in the system, but we have no special access to how either
works. We have only the evident products of each to consider and from
which to fabricate models of process. Naïve theoretical models result
from observations of the products of the system and scientific models
(right or wrong) result from scientific methods.\" \~ Robert Crowder
[[\[FN110\]](#Document1zzFN_F110)]{.underline}

1\. Flies, Rats, and Science

Where do flies come from? What about rats? Fish? Microorganisms? \"From
the time of the ancient Greeks until well into the 19th century, it was
common \'knowledge\' that life could arise from nonliving matter.\"
[[\[FN111\]](#Document1zzFN_F111)]{.underline} This was the idea of
\"spontaneous generation.\" Flies were born of rotting meat, rats from
stinking rubbish, fish from water-covered mud, and microorganisms from
almost anything. The theory was intuitive and seemed consistent with the
evidence. Get rid of the rotting meat, the flies disappear. Clean up the
trash, no more rats.

There was really no reason to reject what seemed so obvious. Then, in
the late Renaissance, Italian scientist Francesco Redi noted a
connection between **\*35** squirming white maggots and flies and
decided to try to test the theory of spontaneous generation. He cleverly
placed meat in two jars in the open air with a mesh cover over one to
allow air in, but not flies. We can skip the particulars of the
\"discovery,\" because, today, spontaneous generation is so obviously
wrong, so inconsistent with our intuitions and the evidence, that there
is no need to review them. Redi\'s findings put a fly in the ointment of
spontaneous generation, but still the idea persisted\--indeed,
thrived\--among scientists and lay people well into the 1800s. At last,
in the midst of intense scientific controversy, Louis Pasteur settled
the matter in an award winning set of experiments, which, again, we
needn\'t review for our audience.
[[\[FN112\]](#Document1zzFN_F112)]{.underline}

But little of what Redi and Pasteur showed reduces the predictive power
of spontaneous generation. It remained, one might say, a powerful
positive theory of fly genesis: flies act as if they spontaneously
generate from old meat. If you don\'t believe us, leave some out. And
the hold of spontaneous generation as an explanatory theory comes from
the fact that it is true that we find flies where we find rotting
animals, it is true that we find fish where we find mud, and it is true
that we find rats where we find garbage. The associations are accurate.
It is just that those associations do not explain the phenomena. There
is more to the situation.

The point is a general one. In attempting to understand our worlds, we
commonly create theories from the features of our environment that we
observe or to which we have comparatively easy access. Good science
allows (sometimes forces) us to look again and more closely at that
environment. It permits us to see illusion where we once saw truth and
inspires a search for a new truth (and, if possible, a broader truth
that also explains the associations underlying the illusion).

The purpose of this section\--and the bulk of this Article\--is to
demonstrate how social psychology, social cognition theory, cognitive
psychology, and cognitive neuroscience have shattered the illusions that
most of us experience as truths about ourselves and what moves us. This
science has been necessary to pierce our self-illusions precisely
because while it is true that we experience ourselves thinking, true
that we experience ourselves preferring, true that we **\*36**
experience ourselves willing, and true that we experience ourselves
choosing, there is, in fact, more to the situation.

2\. A Closer Look at the Interior Situation

What many people describe as \"thinking,\" social psychologists would
call \"cognitions.\" Cognitions, succinctly defined, are the mental
activities associated with acquiring and processing information and are
associated with some forms of perceiving, conceiving, reasoning,
judging, remembering, and imagining. What we experience as
\"preferences,\" social psychologists would label \"attitudes\"
[[\[FN113\]](#Document1zzFN_F113)]{.underline}\--\"a categorization of a
stimulus along an evaluative dimension\"
[[\[FN114\]](#Document1zzFN_F114)]{.underline} or \"\[a\] learned
predisposition to react to a given situation, person, or other set of
cues in a consistent way.\"
[[\[FN115\]](#Document1zzFN_F115)]{.underline} Social psychologists
would label what we commonly see as choices as \"behavior.\" Behavior
refers to actions that individuals take, such as voting, buying,
shocking, and doing legal theory. It also refers, less obviously, to
actions that individuals do not take.
[[\[FN116\]](#Document1zzFN_F116)]{.underline}

Social psychology thus recognizes the self-evident features of our
interiors, though it uses slightly different terms to represent them.
[[\[FN117\]](#Document1zzFN_F117)]{.underline} But social psychology and
its sister disciplines have not been satisfied with our intuitive
self-understandings. Social psychology has attempted to understand the
nature of our interior situations\--the aspects of our experience that
elude our conscious awareness.
[[\[FN118\]](#Document1zzFN_F118)]{.underline} And it has discovered a
great deal about our interior situations that is both surprising and
troubling. [[\[FN119\]](#Document1zzFN_F119)]{.underline} Among other
things, it has found that \"\[o\]ur minds contain knowledge of which we
are unaware. Our feelings can be impervious to the assertion of
conscious will. Our behaviors subsume acts that are unintended, even
opposed to those that are intended or consciously desired.\"
[[\[FN120\]](#Document1zzFN_F120)]{.underline}

**\*37** **Figure 2.**

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

Although we may find intuitive the bold boxes and bold causal
connections depicted in Figure 2, it is the effect of less salient
features of our interiors (the ovals in Figure 2) on our interiors and
the effect of our largely unseen exterior on those interior attributes
that are more responsible for our behavior.

The balance of this Part will employ the lessons of social psychology to
turn dispositionism on its head. To do so, it will highlight some of the
many ways in which we are moved by what we do not see and in which what
we do see is illusion. Section B summarizes what social science has
revealed about the unseen features of our \"thinking\" or cognitions.
Section C reviews key unseen aspects of our \"preferences\" or
attitudes. Section D examines some surprising evidence of how our
\"choices\" do not always follow from our thinking, preferring, and
willing. And Section E reviews evidence that our \"will\" can itself be
illusion. Not only does each section demonstrate the fallacies of our
self-schemas, [[\[FN121\]](#Document1zzFN_F121)]{.underline} it also
helps to make clear how each element of our interior situation renders
us vulnerable to exterior situational manipulation.

B. UNSEEN COGNITIONS (VS. \"THINKING\")

Take thinking. There is an immense gulf between the way we think and the
way we think we think. [[\[FN122\]](#Document1zzFN_F122)]{.underline}
Our cognitions are often not conscious, and, of **\*38** course, we tend
to have very little sense of what we are thinking when it is not
conscious. Just as we are at any given moment in tune with none or, with
the help of some electronic device, just a tiny fraction of the
broadcast signals and electromagnetic frequencies enveloping our
exteriors, so it is with the cognitive signals enveloping our interiors.
And often even our attempts to tune in one single wavelength are likely
to meet with some crossed signals and iffy reception.

Do you doubt this? If so, can you avoid thinking of a chocolate chip
cookie right now? [[\[FN123\]](#Document1zzFN_F123)]{.underline} And if
you are not thinking of a chocolate chip cookie, what devices are you
using to avoid it? [[\[FN124\]](#Document1zzFN_F124)]{.underline} How
strong are those devices? How do you explain your occasional inability
to rid your mind of a song or advertising jingle? And, when that
happens, do you ever remember the moment in which that hard-to-shake
ditty quits playing in your head or does it just fade away without your
knowing? Has your mind snagged on something you have read in this
article so far? Did it blanch, for instance, when it came to the phrase
\"squirming white maggots?\" If so, were you aware of it as it happened,
or did it take our question now to \"remind\" you that, yes, it had
happened. Have you ever arrived at work not remembering anything about
your trip to get there\--even when you were driving? More seriously,
consider the thoughts about the desires, images, or worries moving in
your mind that you try to silence but sometimes cannot, the thoughts
that distract you, occupy you, or leave you restless. Conversely,
consider the times when you want to focus on a topic or idea, perhaps
our argument here, or something about your life, but find it difficult
or impossible to do so.

In short, a little casual empiricism, in the form of introspection,
makes fairly obvious something of which most of us tend usually to be
unaware. Even the most central features of our interior seem at times
recalcitrant and at other times uncontrollable. Regardless of whether we
are cognizant of or whether we can control our cognitions, social
psychologists have identified a plethora of interior situational
features that bias or influence those cognitions and, in turn, our
attitudes. We will focus on two general types of cognitive biases:
choice biases and process biases.

**\*39** 1. Choice Biases

We begin with \"choice biases\" because, of the innumerable interior
situational features that social psychologists have discovered, these
have received the most attention from economists and legal theorists. As
we will explain below, the reason for this situational foot in the door
of economics stems from the fact that these biases most clearly
influence (and challenge economists\' typical assumptions regarding)
people\'s choices; and to economists and legal economists, choices are
the most significant of dispositional interior features.
[[\[FN125\]](#Document1zzFN_F125)]{.underline} Thus, by \"choice
biases,\" we are referring to the growing body of evidence of
\"heuristics\" and \"biases\" that, according to economic
behavioralists, lead to systematic anomalies to the basic \"rational
actor model.\" Partially because they are now quite fashionable in
academic policy literatures, we can spare the reader a substantial
review of choice biases. [[\[FN126\]](#Document1zzFN_F126)]{.underline}
We briefly describe a sample of two types of choice biases:
intra-temporal biases (of which we will highlight three) and
inter-temporal biases.

a\. Intratemporal Effects

Most of the best-known choice biases occur within a precise time period
and largely without relation to temporal considerations. In this
subsection, we briefly consider three of them: heuristics, endowment
effects, and framing effects.

i\. Heuristics

People, for good reason, are cognitively frugal. Some say, as we noted
earlier, that humans are cognitive misers.
[[\[FN127\]](#Document1zzFN_F127)]{.underline} Because cognitive
capacity is scarce, comer cutting is not just useful, it is necessary.
People engaging in inferential tasks \"virtually always\" rely on
judgmental strategies\--termed heuristics\--that help them reduce
complex problems into manageable ones.
[[\[FN128\]](#Document1zzFN_F128)]{.underline} Such strategies
\"probably produce vastly more correct or partially correct inferences
than erroneous ones, and they do so with great speed and little
effort.\" [[\[FN129\]](#Document1zzFN_F129)]{.underline} Still, there
are significant problems with such mental rules of thumb. First,
\"\[a\]lthough these heuristics often lead to effective reasoning, they
also **\*40** lead to systematic biases and errors.\"
[[\[FN130\]](#Document1zzFN_F130)]{.underline} Second, we normally do
not realize we have these biases, leaving us undefended against their
harmful effects. [[\[FN131\]](#Document1zzFN_F131)]{.underline} And,
third, for the same reasons, our cognitive shortcuts leave us
susceptible to exterior situational manipulation.
[[\[FN132\]](#Document1zzFN_F132)]{.underline}

Availability, for example, \"is a heuristic that is used to evaluate the
frequency or likelihood of an event on the basis of how quickly
instances or associations come to mind.\"
[[\[FN133\]](#Document1zzFN_F133)]{.underline} This shortcut may not
mislead us, but it often does. \"There are many factors uncorrelated
with frequency \... \[that\] can influence an event\'s immediate
perceptual salience, the vividness or completeness with which it is
recalled, or the ease with which it is imagined.\"
[[\[FN134\]](#Document1zzFN_F134)]{.underline} So it is that in
experimental surveys people have evaluated the risk of homicide as
greater than the risk of death by stomach cancer, when, in fact, the
reverse is true. Indeed, the latter is \"17 times more common.\"
[[\[FN135\]](#Document1zzFN_F135)]{.underline} This heuristic can thus
have tragic social consequences. And so, \"\[b\]ecause members of
minority groups who perform unusual behaviors are especially
distinctive, people may form illusory correlations between group
membership and the unusual behavior\"
[[\[FN136\]](#Document1zzFN_F136)]{.underline}\--that is, incorrect
stereotypes.

Mentioning or asking about an event can itself increase its
availability\-- just as mentioning \"chocolate chip cookie\" can
increase the extent to which people visualize such a delight.
[[\[FN137\]](#Document1zzFN_F137)]{.underline} And like the jingle that
has overstayed its welcome, when something is on our mind, it can be
hard to get it off. For instance, \"random and irrelevant starting
points can have a dramatic impact on judgment.\"
[[\[FN138\]](#Document1zzFN_F138)]{.underline} Tversky and Kahneman,
seminal authorities on heuristics, identified what they term the
anchoring bias based on a series of experiments demonstrating that
\"\[i\]nitial starting points, even totally irrelevant ones, seem to
serve as **\*41** anchors.\"
[[\[FN139\]](#Document1zzFN_F139)]{.underline} \"\[O\]nce we have made
an intuitive estimate, even if we are told that we are wrong, we still
keep the initial rough estimate as an implicit baseline. We are anchored
to it. We are unwilling to neglect it completely and start afresh.\"
[[\[FN140\]](#Document1zzFN_F140)]{.underline}

Similarly, we cannot seem to shake what we know did happen when
estimating what we would have predicted would happen. As Baruch
Fischhoff discovered, \"\[r\]eporting an outcome\'s occurrence increases
its perceived probability of occurrence; and \... people who have
received outcome knowledge are largely unaware of its having changed
their peceptions \....\" [[\[FN141\]](#Document1zzFN_F141)]{.underline}
And on top of this, people even overestimate the accuracy of predictions
that they actually made. [[\[FN142\]](#Document1zzFN_F142)]{.underline}
This hindsight bias, which has been demonstrated for a wide range of
events, is one of the interior situational influences that we observe in
others (but not in ourselves) often enough to give rise to the common
phrase \"hindsight is 20/20.\"

ii\. Endowment Effects

Another interior situational influence that profoundly affects our
thinking outside our awareness is a phenomenon social psychologists have
dubbed the endowment effect.
[[\[FN143\]](#Document1zzFN_F143)]{.underline} This term stands for the
well-documented tendency of humans to value things they have (or believe
they have) already, over that which they do not have (or do not believe
they have). An early study demonstrating this pattern has become
somewhat familiar in legal-theoretic references to the lessons of
\"behavioralism\"\--the Cornell coffee mug study.
[[\[FN144\]](#Document1zzFN_F144)]{.underline} In that study, subjects,
who were given a coffee mug, valued the mug more than did students who
were not given the mug. The subjects\' willingness to pay and
willingness to accept money for the same item was influenced
significantly by the initial endowments.

Beyond demonstrating the basic contours of the endowment effect, the
coffee mug studies also nicely show how this bias operates in a
seemingly automatic fashion; subjects valued what they had more than
what they did not have even when the item was relatively meaningless and
had only been \"theirs\" for a very **\*42** short time. Other
variations of the coffee mug experiment highlight the unconscious nature
of the effect by showing that subjects in an ex ante perspective
underestimate the effect that a hypothetical endowment would have on
their valuation of an item.
[[\[FN145\]](#Document1zzFN_F145)]{.underline} Still other studies have
demonstrated the presence of the endowment effect in more important
areas of social life, such as in the patterns of workers\' valuation of
health care benefits. Research indicates that workers will value
particular health benefits more when they are mandated, and thus
presented as an endowment, than they do when the same benefits are not
presumptively endowed. [[\[FN146\]](#Document1zzFN_F146)]{.underline}

The robust findings concerning the influence of the endowment effect
thus should undermine our confidence in the reality of the
thinking-preferring-choosing model of human thinking. What is perhaps
even more troubling about this cognitive pattern, however, is not just
that it happens, but that like other interior situational influences,
the operation of the endowment effect is subject to exterior situational
influences that can frame our sense of what we presently have and do not
have. Cues in the environment can, without anyone noticing, orient the
burdens of proof, persuasion, and negotiation.

iii\. Framing Effects

And more generally, the way in which an issue is presented to us
significantly influences how we perceive it. Psychologists have dubbed
this the framing effect. Even minor alterations in the presentation of
options that are substantively identical seem to influence our
perceptions and attitudes regarding the options.
[[\[FN147\]](#Document1zzFN_F147)]{.underline} Kahneman and Tversky, the
cognitive psychologists who identified and named the phenomenon,
describe it as \"both pervasive and robust.\" It is \"as common among
sophisticated respondents as among naïve ones \.... In their stubborn
appeal, framing effects resemble perceptual illusions more than
computational **\*43** errors.\"
[[\[FN148\]](#Document1zzFN_F148)]{.underline} As another decision
theorist has explained, the power of the phenomenon results from our
\"tendency to accept problem formulations as they are given \... \[to\]
remain, so to speak, mental prisoners of the frame provided to us by the
experimentalist, or by the \'expert,\' or by a certain situation.\"
[[\[FN149\]](#Document1zzFN_F149)]{.underline} More succinctly,
\"framing\" is one identified piece of the manipulable situation.

iv\. Summary

There is something familiar about the source of these well-documented
heuristics. They are different ways of talking about the same basic
phenomenon. They are all just manifestations in different contexts of
what we have been describing throughout this Article and its companion:
we see the vivid and we miss the pallid. Small pieces of the picture
tend to dominate our assessment of the whole image. We readily see what
is available, anchored, and presently normal, all according to how it
had been framed, and we find it difficult to see much else. As Ziva
Kunda puts it, these choice biases \"may be viewed as a kind of mental
contamination \.... Even though we do not want our judgments to be
contaminated in this manner, it is very difficult to eliminate the
contamination.\" [[\[FN150\]](#Document1zzFN_F150)]{.underline}

That difficulty, we believe, is largely the consequence of our interior
situations. We do not see these biases at work. We do not see, in other
words, that we do not see. This inability to see our interior situation
is the source of the interior fundamental attribution error. And our
interior myopia helps give rise to the exterior fundamental attribution
error. People\'s behavior, like news of a homicide, is available. Their
situation, like statistics on stomach cancer, generally is not. We are
dispositionists because of what comes to mind most easily\--and, once in
our minds, anchors our attributions.
[[\[FN151\]](#Document1zzFN_F151)]{.underline} Interiorly and
exteriorly, we humans miss the situational forest for the dispositional
trees.

In part because our exterior dispositionism is causally related to our
interior dispositionism, our interior situation can be easily exploited
through the manipulation of our exterior situation. Each study
demonstrating a choice bias is itself indirect proof of that fact.
Scientists were able to manipulate cognitions by manipulating the
exterior situation. And the interior situation leaves open and unguarded
the gates through which the Trojan horse of exterior situation freely
enters, not as a trophy of our dispositional triumph, but as a hidden
means of influencing our behavior.
[[\[FN152\]](#Document1zzFN_F152)]{.underline}

**\*44** b. Intertemporal Effects

Psychologists and economic behavioralists have discerned a general
category of choice bias that results from the effect of time. Consider
the following thought experiment. Would you rather receive a prize of
\$100 today or a prize of \$200 two years from now? If you are like most
people, you opted for the smaller amount of money today. And even those
who choose to wait for the bigger prize find the choice a tough one.
[[\[FN153\]](#Document1zzFN_F153)]{.underline}

Now, which would you choose if the options were \$100 in six years or
\$200 in eight years? That\'s an easy one, even for people who have just
answered the first question. Almost everyone we ask unhesitatingly opts
for the larger, delayed prize. Some are struck (even embarrassed) to
realize that the choices are exactly the same, except for the time
frame. The second pair of options is just the first pair, six years
later. [[\[FN154\]](#Document1zzFN_F154)]{.underline} So, are you
willing to wait two years for an extra \$100 or not? Somehow the choices
in the two proposals seem different. There is considerable evidence that
people find it difficult to delay gratification and very easy to delay
displeasure. [[\[FN155\]](#Document1zzFN_F155)]{.underline} More
generally, people attach greater significance to outcomes\--good or
bad\--that are close by than those that are far away.
[[\[FN156\]](#Document1zzFN_F156)]{.underline}

If you want \$100 today instead of \$200 in two years, but would prefer
\$200 in eight years to \$100 in six, you are probably responding to the
exterior situational salience of money today, in your pocket, ready to
spend on all the items that likewise are comparatively available. Any of
the other sums at future times are far less immediate, as are the items
you might purchase. Thus, when faced with the second pair of options,
the options are fungible in availability terms, making the larger sum
more attractive. In other words, money is not fungible where the
situational frame is not. [[\[FN157\]](#Document1zzFN_F157)]{.underline}
That people do not anticipate those differences and that theorists have
difficulty explaining that tendency **\*45** illustrates the power of
our interior situation. [[\[FN158\]](#Document1zzFN_F158)]{.underline}
And that we humans are unaware of this power renders us especially
vulnerable to manipulation through external situation.

Although social psychologists have not recently focused closely on this
particular choice bias, their general findings about our cognitive
processes predict and explain it. Time variations are really just
variations on the theme that we have been developing and that social
psychologists discovered decades ago\--situation matters. And temporal
proximity is part of the situation.
[[\[FN159\]](#Document1zzFN_F159)]{.underline}

One does not need to be terribly well-versed in social psychology to
find examples of broader phenomena that would include the time effects
that economic behavioralists have highlighted. In addition to the many
studies discussed elsewhere in this Article, consider, for example, a
Wilson and Nisbett experiment in which subjects were asked in a bargain
store to judge which one of four nylon stocking pantyhose was the best
quality. [[\[FN160\]](#Document1zzFN_F160)]{.underline} The subjects
were not told that the stockings were in fact identical. Wilson and
Nisbett presented the stockings to the subjects hanging on racks spaced
equal distances apart. As situation would have it, the position of the
stockings had a significant effect on the subjects\' quality judgments.
In particular, moving from left to right, 12% of the subjects judged the
first stockings as being the best quality, 17% of the subjects chose the
second pair of stockings, 31% of the subjects chose the third pair of
stockings, and 40% of the subjects chose the fourth\--the most recently
viewed pair of stockings. [[\[FN161\]](#Document1zzFN_F161)]{.underline}
When asked about their respective judgments, most of the subjects
attributed their decision to the knit, weave, sheerness, elasticity, or
workmanship of the stockings that they chose to be of the best quality.
[[\[FN162\]](#Document1zzFN_F162)]{.underline} Dispositional qualities
of the stocking, if you will. Subjects provided a total of eighty
different reasons for their choices.
[[\[FN163\]](#Document1zzFN_F163)]{.underline} Not one, however,
mentioned the position of the stockings, or the relative recency with
which the pairs were viewed.
[[\[FN164\]](#Document1zzFN_F164)]{.underline} None, that is, saw the
situation. In fact, when asked whether the position of the stockings
could have influenced their judgments, only one subject admitted that
position could have been influential.
[[\[FN165\]](#Document1zzFN_F165)]{.underline} Thus, Wilson and Nisbett
conclude that \"\[w\]hat matters \... is not why the \[position\] effect
occurs but that it occurs and that subjects do not report it or
recognize it when it is **\*46** pointed out to them.\"
[[\[FN166\]](#Document1zzFN_F166)]{.underline}

Consider, again, Stanley Milgram\'s classic studies. Social psychologist
Roger Brown reanalyzed the twenty-one variations of Milgram\'s studies
in terms of the concept of immediacy, which he defines as \"proximity in
space or time and presence or absence of barriers.\"
[[\[FN167\]](#Document1zzFN_F167)]{.underline} Brown appreciated that
there were two people exerting a situational force on the subject (the
\"teacher\"): the \"experimenter\" and the \"learner.\" Brown then
ranked the experiments according to the \"net immediacy\" of those two
forces and identified seven variations along a spectrum of immediacy.
[[\[FN168\]](#Document1zzFN_F168)]{.underline}

At one extreme, the experimenter was present as described in our summary
above, [[\[FN169\]](#Document1zzFN_F169)]{.underline} but the
\"learner\" was in another room and could neither be seen nor heard.
Thus the experimenter was, relative to the \"learner,\" very immediate
to the subject. Under that design, one hundred percent of the subjects
shocked to the limit of 450 volts. At the other extreme, the \"learner\"
pounded the wall and screamed as we described earlier but the
experimenter gave no orders at all, leaving the teacher free to choose
shocking levels. In that variation, then, the suffering \"learner\" was,
relative to the experimenter, very immediate. There, only one of forty
teachers shocked to the limit and the mean maximum shock was only
forty-five volts.

In between those extremes, Brown analyzed the immediacy effects of
bringing **\*47** the \"learner\" into the same room with the teacher
and even of requiring the teacher to force the victim\'s hand down onto
a shock plate. He found that the net immediacy of the various
manipulations perfectly explained the variance in the percentage of
teachers who shocked to the limit. The \"willingness to shock a victim,
though always the same in its supposed ultimate effect, declines \... as
the person administering the shock becomes more immediately and
intimately acquainted with the suffering he believes he is producing.\"
[[\[FN170\]](#Document1zzFN_F170)]{.underline}

Thus, the Milgram experiments reveal the same tendency\--more broadly
understood as immediacy\--that economic behavioralists have struggled to
explain under the heading of intertemporal dynamics. But even that
description understates the narrowness of economic behavioralists\'
theorizing. Immediacy is thus another manifestation of the far more
general phenomenon that we have been describing: the human tendency to
see the accessible, vivid, and immediate, and to miss all else, the
situation. [[\[FN171\]](#Document1zzFN_F171)]{.underline} Often, the
obvious eclipses the influential.

Consider another dramatic demonstration of the power of \"recency\" in
the situational character\'s perception of its experience. Many
individuals have experienced the discomfort of routine colonoscopy
examinations. Social psychologists Donald Redelmeier and Daniel Kahneman
conspired with doctors to perform a variation of that routine to help
better understand human memory and perceptions of pain. During and just
after a basic colonoscopy, patients were surveyed about the quality of
the \"unpleasantness.\" [[\[FN172\]](#Document1zzFN_F172)]{.underline}
In the control group, the exam was performed in the usual way, under
routine conditions in which the doctor left the examining instrument,
the source of the discomfort, inside of the body for only as much time
as was needed to safely perform the colonoscopy. With a second group of
subjects, the same routine examination was performed, except that after
the examination was otherwise complete, the doctors left the
spectroscope in the anal sphincter for a short time, without moving it
around, before finally pulling it out.
[[\[FN173\]](#Document1zzFN_F173)]{.underline}

**\*48** Both groups of patients rated the different periods of the
examination the same in terms of the degree of \"unpleasantness\" they
were experiencing when asked\--both rated the height of the examination,
when the spectroscope was moving, as the most painful. Both groups also
rated moments in which the scope was inside the body but not moving as
painful, but far less painful than the moments when the instrument was
moving. Common sense would hold that the second group experienced more
total pain or displeasure than did the control group.
[[\[FN174\]](#Document1zzFN_F174)]{.underline}

But common sense tends to miss the situation: just after the examination
was completed, when the subjects were asked to evaluate the overall
experience on a scale of unpleasantness, the second group rated the
experience as less unpleasant overall than did the first group.
[[\[FN175\]](#Document1zzFN_F175)]{.underline} The additional, but more
recent lower amounts of pain that the experimental group endured
apparently overshadowed their memory of the intense pain (that, again,
they experienced in equal measure with the control group) and altered
their perception of the whole experience.
[[\[FN176\]](#Document1zzFN_F176)]{.underline}

Studies like this one [[\[FN177\]](#Document1zzFN_F177)]{.underline}
demonstrate the situational power of recency in our evaluative process.
What is most recent to us is, other things being equal, closest to us
and most prominent in our minds. While the study seems to contradict
common sense, it resonates easily with the tenets of social psychology.
As the authors point out, \"\[t\]he discrepancy between people\'s
real-time and retrospective evaluations is not surprising given the
limitations of human memory and judgment.\"
[[\[FN178\]](#Document1zzFN_F178)]{.underline}

Like many such studies, the colonoscopy findings can have both
particular and parabolic implications. With respect to medical-care
concerns, Redelmeier and Kahneman explain that their findings do not
counsel a clear policy:

If the objective is to reduce patients\' memory of pain\[,\] \...
\[g\]radual relief may be preferable to abrupt relief if patients retain
a less aversive memory \[through the delayed relief approach\] \.... In
contrast, if the objective is to reduce the amount of pain actually
experienced, conducting the procedure **\*49** swiftly may be
appropriate even if doing so increases the peak pain intensity and
leaves patients with a particularly aversive memory.
[[\[FN179\]](#Document1zzFN_F179)]{.underline}

Their findings nevertheless counsel a clear theoretic prescription to
consider the profound role that situation plays in how humans perceive
their own experience, both immediately and retrospectively. Such
findings present \"complex ethical issue\[s\],\"
[[\[FN180\]](#Document1zzFN_F180)]{.underline} not only for medicine,
but for any enterprise that purports to be devoted to human welfare.
[[\[FN181\]](#Document1zzFN_F181)]{.underline} The \"natural limitations
of human memory\" [[\[FN182\]](#Document1zzFN_F182)]{.underline} are
likely always in play in our assessments. Thus, as another team of
social psychologists noted, Redelmeier and Kahneman\'s \"results have
both humane and Orwellian implications and suggest enormous
possibilities for decision engineering.\"
[[\[FN183\]](#Document1zzFN_F183)]{.underline}

Encouraging lawmakers and legal theorists to confront those
possibilities is, of course, a primary goal of this Article. Before
evaluating the \"Orwellian implications\" of our predicament, however,
legal theorists must first be willing to distrust their own perceptions
and common sense.

2\. Process Biases

While the previous section focused on several choice biases, this
section focuses on a pair of process biases that similarly operate out
of sight within our interiors. The distinction between the two general
types of biases is not in their situational source but in the scope of
their influence over our thinking and behavior. Choice biases are
treated as having only task-specific implications related to instances
of judgment or decisionmaking. Process biases, in contrast, are more
systemic tendencies of human cognition that influence individuals across
a vast range of cognitive experience.

So what are \"process biases\"? Social psychologists have taken to
construing and portraying people as intuitive scientists.
[[\[FN184\]](#Document1zzFN_F184)]{.underline} And for with good reason:
All people, not just those who occupy academic and scientific
institutions, have a deep urge to understand and make sense of
themselves and their worlds.
[[\[FN185\]](#Document1zzFN_F185)]{.underline} Indeed, those
institutions reflect a more general human urge and set of processes.
**\*50**[[\[ FN186\]](#Document1zzFN_F186)]{.underline} And for
now-familiar reasons, those general processes are often biasing for lay
and professional scientists alike. This section summarizes three systems
of information processing and their biasing effects: knowledge
structures, causal attributions, and counterfactual thinking. Because
those systems are being described in detail in contiguous work,
[[\[FN187\]](#Document1zzFN_F187)]{.underline} we can again spare our
readers an extended review.

a\. Knowledge Structures

\"Out of time we cut \'days\' and \'nights,\' \'summers\' and
\'winters.\' We say what each part of the sensible continuum is, and all
these abstract whats are concepts.

The intellectual life of man consists almost wholly in his substitution
of a conceptual order for the perceptual order in which his experience
originally comes.\" \~ William James
[[\[FN188\]](#Document1zzFN_F188)]{.underline}

\"By such mental operations we simplify the world of phenomena, but we
cannot avoid falsifying it in doing so \....\"

\~ Sigmund Freud [[\[FN189\]](#Document1zzFN_F189)]{.underline}

Richard Nisbett and Lee Ross define knowledge structures as the
\"intuitive implements\" that \"allow the individual to define and
interpret the data of physical and social life.\"
[[\[FN190\]](#Document1zzFN_F190)]{.underline} Ziva Kunda has more
recently explained, similarly, that our knowledge structures or concepts
[[\[FN191\]](#Document1zzFN_F191)]{.underline} \"help\[\] us make sense
of our social worlds and guide our social judgments.\"
[[\[FN192\]](#Document1zzFN_F192)]{.underline} They are \"the building
blocks of cognition,\" [[\[FN193\]](#Document1zzFN_F193)]{.underline} or
the \"tools of construal\"
[[\[FN194\]](#Document1zzFN_F194)]{.underline} whose many crucial
functions \"include classification, inferring additional attributes,
guiding attention and **\*51** interpretation, communication, and
reasoning.\" [[\[FN195\]](#Document1zzFN_F195)]{.underline}

When we encounter objects or experiences or ideas or people or behavior,
we classify them, as best we can, within our existing concepts, which
then allow us to obtain understandings that go well beyond those we
would obtain were we forced to rely solely on a present instance alone.
And when we enter any exterior situation, the concepts in our interior
situation\--and the \"wealth of causal information\" they contain
[[\[FN196\]](#Document1zzFN_F196)]{.underline}\--give us a filtering
system for narrowing our focus to the information we will use to make
sense of what we encounter.

By way of analogy, imagine searching for a particular definition in a
dictionary with the sole strategy of reading random sections or of
reading from beginning to end until you encounter the target word.
Knowing to pick up a dictionary is an important start, but more is
needed to make processing the information contained in the dictionary
feasible. The alphabetical arrangement of words in dictionaries is a
schema, and one that is a huge time-saving device. Similarly, imagine
searching web pages for particular information without the aid of search
engines or links \... or even a shared language.

Those exterior schemas, which we tend to take for granted and rarely, if
ever, clearly examine, are analogous to (and sometimes reflect and
influence) our interior schemas, of which we are even less aware and
which we are therefore less likely to scrutinize. We process stimuli
\"through preexisting systems of schematized and abstracted
knowledge\--beliefs, theories, propositions, and schemas. These
knowledge structures label and categorize objects and events quickly
and, for the most part, accurately. They also define a set of
expectations about objects and events and suggest appropriate responses
to them.\" [[\[FN197\]](#Document1zzFN_F197)]{.underline}

Thus, the benefit of such knowledge structures is that they provide us,
often automatically, with a way of understanding our world so that we
can operate reasonably well within it, at the same time that they free
up cognitive capacity to cope with other pressing issues.
[[\[FN198\]](#Document1zzFN_F198)]{.underline} Similarly, the concepts,
insofar as they are shared, allow us to communicate efficiently with
those around us. [[\[FN199\]](#Document1zzFN_F199)]{.underline} In
short, without the knowledge structures \"\[w\]e would be unable to
extract meaning from the huge amount of information that surrounds us,
unable to generalize from one experience to another, and unable to
communicate effectively with each other.\"
[[\[FN200\]](#Document1zzFN_F200)]{.underline}

But those benefits are not without costs: \"A price is paid for this
mental economy.\" [[\[FN201\]](#Document1zzFN_F201)]{.underline} The
alphabetical arrangement of a dictionary is little help when **\*52**
you want to know, precisely, how to spell the word that sounds like
\"siekollojee.\" \"The knowledge structures themselves are not
infallible guides to the nature of physical or social reality.\"
[[\[FN202\]](#Document1zzFN_F202)]{.underline}

Some beliefs, theories, and schemas are relatively poor and inaccurate
representations of the external world. Furthermore, objects and events
are not always labeled accurately and sometimes are processed through
entirely inappropriate knowledge structures.
[[\[FN203\]](#Document1zzFN_F203)]{.underline} \"Without these
structures stored in memory, life would be a buzzing confusion, but the
clarity they offer is helpful only in proportion to their validity and
to the accuracy with which they are applied to the data at hand.\"
[[\[FN204\]](#Document1zzFN_F204)]{.underline} And when that is not the
case, they can be misleading and harmful. Indeed, that is the main point
that this Article is making about the dominant self-schema:
dispositionism. We are not who our knowledge structures tell us we are.

i\. The Stereotypical Knowledge Structure

At a time when the world as a whole suffers from panic induced by the
rival ideologies of the east and west, each corner of the earth has its
own special burdens of animosity. Moslems distrust non-Moslems. Jews who
escaped extermination in Central Europe find themselves in the new state
of Israel surrounded by anti-Semitism. Refugees roam in inhospitable
lands. Many of the colored people of the world suffer indignities at the
hand of whites who invent a fanciful racist doctrine to justify their
condescension. The checkerboard of prejudice in the United States is
perhaps the most intricate of all. While some of this endless antagonism
seems based upon a realistic conflict of interests, most of it, we
suspect, is a product of the fears of the imagination. \~Gordon W.
Allport [[\[FN205\]](#Document1zzFN_F205)]{.underline}

Gordon Allport\'s now-classic description of group stereotypes was an
important step toward explaining the cognitive mechanisms behind the
senseless hatred and prejudice that have reverberated throughout human
history. Although the consequences of such ethnic- and race-based
knowledge structures seem as evident today as they were fifty years ago
when Allport wrote, parts of his message seem to have taken root.

Indeed, the best known\--indeed, for many, the only known\--example of
the operation of interior schemas is the group-based stereotype.
[[\[FN206\]](#Document1zzFN_F206)]{.underline} \"\[S\]tereotypes
**\*53** are typically viewed as cognitive structures that contain our
knowledge, beliefs, and expectations about a social group \....\"
[[\[FN207\]](#Document1zzFN_F207)]{.underline} They are described as
\"culturally shared, indeed hackneyed, notions\"
[[\[FN208\]](#Document1zzFN_F208)]{.underline} about those groups. Here
is where the human tendency to rely on knowledge structures has come to
be understood as an inherently pernicious process, instead of as a
necessary and often helpful one.
[[\[FN209\]](#Document1zzFN_F209)]{.underline} Stereotypes, in other
words, are the stereotype of what we are calling \"knowledge
structures.\"

To see more clearly the role of stereotypes and, more generally,
schemas, consider this classic experiment. White subjects were shown a
videotape of a purportedly unscripted conversation between two men. At
several points during the video a beep sounded, prompting the subjects
to characterize the conduct of the men they were watching into one of
several possible categories (for example, \"dramatizes,\" \"gives
information,\" \"asks for opinion,\" \"playing around,\" \"aggressive
behavior,\" and \"violent behavior\").
[[\[FN210\]](#Document1zzFN_F210)]{.underline} The videotaped
conversation becomes increasingly heated and the men begin to say things
like \"you must be crazy,\" and \"you\'re just too damned
conservative.\" Finally, one man pushes the other, at which point
subjects were beeped again and asked to characterize the push.
[[\[FN211\]](#Document1zzFN_F211)]{.underline}

Different versions of the video were shown to different subjects, using
different combinations of black and white men in the conversation. Where
a black man pushes a white man, seventy-five percent of the subjects
characterized the push as \"violent behavior.\"
[[\[FN212\]](#Document1zzFN_F212)]{.underline} Where a white man pushes
a black man, only seventeen percent of the subjects categorized the push
as \"violent behavior.\" [[\[FN213\]](#Document1zzFN_F213)]{.underline}
Another forty-two percent of the subjects characterized the white man\'s
behavior simply as \"dramatiz\[ing\]\" or \"playing around.\"
[[\[FN214\]](#Document1zzFN_F214)]{.underline}

**\*54** The same subjects were also asked to indicate the extent to
which the action of the pusher should be attributable to situational
forces, to the pusher personally, to the issue discussed in the
conversation between the two men, or to some combination of those
factors. Subjects tended to attribute the black pusher\'s behavior to
his disposition, and the white pusher\'s conduct to his situation,
revealing how motivation can sometimes overcome our dispositionist
presumption. [[\[FN215\]](#Document1zzFN_F215)]{.underline}

The dynamics of our stereotypical thinking are driven by the interaction
of our interior and exterior situation. Stereotypes that are prominent
in our culture meet with a cognitive situation within us that is poised
to confirm them. We tend to test a hypothesis by asking questions about
whether there is evidence to confirm it and forgetting to ask whether
there is evidence that would disconfirm it. That unbalanced
positive-test strategy and the resultant confirmatory bias
[[\[FN216\]](#Document1zzFN_F216)]{.underline} occurs, not only for
hypotheses that we generate ourselves, but also for any hypotheses or
schemas that occupy our interiors. Thus our minds automatically search
for, and disproportionately emphasize, evidence in the world that will
tend to confirm our racial or sexual stereotypes (be they negative or
positive, conscious or implicit).
[[\[FN217\]](#Document1zzFN_F217)]{.underline}

The tendency is heightened by the fact that as a consequence of this
bias in our mental processing, social psychologists have suggested that
encouraging reflection about stereotypes, without more, may perversely
result in the search and location of further confirmatory evidence for
the stereotype under review.
[[\[FN218\]](#Document1zzFN_F218)]{.underline} More attention, in other
words, may not counteract the confirmation bias; it may simply give it
more to work with. [[\[FN219\]](#Document1zzFN_F219)]{.underline} That
pattern, troublingly, suggests other opportunities for the situational
manipulation of our mental process. For instance, those who can
influence what theories are readily available in our cultural situation
can influence what theories we tend to test and seek to confirm.
[[\[FN220\]](#Document1zzFN_F220)]{.underline}

ii\. Cognitive Groupism

These findings about the operation of stereotyping have been replicated
for other group schemas, including those for gender, age, professions,
and social **\*55** class.
[[\[FN221\]](#Document1zzFN_F221)]{.underline} In one experiment, a
group of subjects viewed one of two videotapes of a fourth-grade girl
and then were asked to evaluate her academic ability. One videotape
showed the girl in an urban, low-income setting, and the other showed
her in a middle-class, suburban area. Next, a portion of the subjects
seeing one of those videos was shown another\--this time of the girl
responding to achievement-test problems. The girl\'s performance on
those problems was intentionally ambiguous.

Subjects who saw that last video, but neither of the first two, tended
to rate the child\'s academic ability roughly on a par with her known
school grade level. [[\[FN222\]](#Document1zzFN_F222)]{.underline}
However, those subjects who had viewed the child in either the low or
high socioeconomic setting rated her abilities as appearing to be either
below or well above her grade level, respectively.
[[\[FN223\]](#Document1zzFN_F223)]{.underline} Thus, as Ziva Kunda
summarizes, \"\[i\]t appears that when behaviors are somewhat ambiguous,
the identical behavior will be understood quite differently when
performed by individuals who belong to differently stereotyped groups.\"
[[\[FN224\]](#Document1zzFN_F224)]{.underline} So it is that our
knowledge structures \"color our reality.\"
[[\[FN225\]](#Document1zzFN_F225)]{.underline} As we will review below,
they also can change our reality by coloring the experience and altering
the performance of those being stereotyped, and by reassuring us that
inequalities and outcomes that might otherwise appear illegitimate are,
in fact, just. [[\[FN226\]](#Document1zzFN_F226)]{.underline}

The operation of group schemas need not be related to cultural
stereotypes. Indeed, \"any given \'us\' category is liked better than
any given \'them\' category, under most circumstances.\"
[[\[FN227\]](#Document1zzFN_F227)]{.underline} Muzafer Sherif, in a
classic set of experiments in the 1950s and 1960s, discovered some of
the ways that group schemas are generally created, as well as some of
their basic effects. [[\[FN228\]](#Document1zzFN_F228)]{.underline}
Sherif and his collaborators ran a summer camp
[[\[FN229\]](#Document1zzFN_F229)]{.underline} in which boys, at the
beginning of the summer, were divided into two groups: the Rattlers and
the Eagles. Throughout the summer, the boys were subtly asked to rank
friendships and to make other \"sociometric\" designations about each
other. [[\[FN230\]](#Document1zzFN_F230)]{.underline}

In the first stage of the experiment, the groups were kept apart and
behaved as **\*56** typical campers might behave, with only weak
out-group aversion or in-group solidarity.
[[\[FN231\]](#Document1zzFN_F231)]{.underline} In the second stage, the
groups were pitted against each other in various competitions for
prizes. [[\[FN232\]](#Document1zzFN_F232)]{.underline} In that
situation, each group posed a realistic threat to the other\'s
advantage, [[\[FN233\]](#Document1zzFN_F233)]{.underline} and members of
each group wanted nothing to do with members of the other group. More
specifically, both out-group animosity and in-group solidarity increased
dramatically as the competitions continued, and the resultant
stereotyping, prejudice, and discrimination that followed were robust:
[[\[FN234\]](#Document1zzFN_F234)]{.underline}

\[M\]ere informational campaigns, even those couched in appeals in moral
values, were universally unsuccessful in reducing enmity. Sunday
religious services that interrupted the period of competition with
especially pointed appeals for brotherly love, forgiveness of enemies,
and cooperation had no impact. The campers solemnly departed from the
services and then, within minutes, returned to their preoccupation with
defeating or harassing the detested out-group.
[[\[FN235\]](#Document1zzFN_F235)]{.underline}

Put differently, appeals to dispositional change came up empty.
Similarly, placing the groups in various noncompetitive settings
together\-- taking meals, filling out surveys, shooting off fireworks,
and so on [[\[FN236\]](#Document1zzFN_F236)]{.underline}\--did little to
ameliorate the two groups\' out-group animosity, as subsequent food
fights demonstrated. [[\[FN237\]](#Document1zzFN_F237)]{.underline}

Only after the experimenters placed the campers in numerous situations
of mutual dependence and cooperation did the groups begin to alter their
\"us versus them\" schema. For example, a bus transporting both groups
to dinner \"broke down,\" forcing the hungry campers to cooperate. With
a rope that had once been used in the tug-of-war competition, the groups
worked to jointly push and pull the bus to restart it.
[[\[FN238\]](#Document1zzFN_F238)]{.underline} Operating under such
cooperative (\"common enemy\") conditions over time, the campers changed
their group-based views of one another and intergroup friendships
emerged \"between erstwhile rivals and even former enemies.\"
[[\[FN239\]](#Document1zzFN_F239)]{.underline}

By the end of the summer, \"the twenty boys themselves proposed that
they return to Oklahoma City in a single bus, and the self-chosen
seating did not reflect the Eagles\[\'\] and the Rattlers\[\'\]\" group
identities. [[\[FN240\]](#Document1zzFN_F240)]{.underline} By that time
the old stereotypes between the two groups had dissipated significantly,
as measured by **\*57** Sherif\'s surveys:

Rattlers now thought that almost all Eagles had become like the Rattlers
themselves: brave, tough, and friendly. The Eagles said as much for the
Rattlers. There were no more sneaky, smart-aleck stinkers\.... \[T\]he
boys as observers of one another saw personality change as the cause of
the new order, but Sherif, of course, knew better. He knew that the boys
had changed their thoughts and feelings because of a succession of
situations designed to require cooperative effort.
[[\[FN241\]](#Document1zzFN_F241)]{.underline}

What caused the Rattlers to be \"sneaky, smart-aleck stinkers\" was not
disposition, as prevalent schemas and attributions would have it, but
forces hidden in the situation. Sherif, by manipulating the situation,
was the real \"sneaky \... stinker.\"

Much has been learned since Sherif\'s important work to confirm, refine,
and expand upon what the campers taught about the operation of group
schemas. [[\[FN242\]](#Document1zzFN_F242)]{.underline} For example,
more recent studies have shown that the actual threat that one group
poses to another is unimportant. It is the perception of threat that
generates the intergroup hostility.
[[\[FN243\]](#Document1zzFN_F243)]{.underline} Even merely random group
designations, without any intergroup competition or other distinguishing
features, can elicit in-group and out-group sentiments. \"In other
words, even the most arbitrary and seemingly inconsequential group
classifications can provide a basis for discriminatory behavior.\"
[[\[FN244\]](#Document1zzFN_F244)]{.underline}

We will not review any more of the studies here.
[[\[FN245\]](#Document1zzFN_F245)]{.underline} They prove a point that
all of us, upon reflection, should already see as central and
deep-seated in the human experience. The influences\--good, bad, and
otherwise\-- of the \"us and them\" schema, or what we will call
groupism, are all around us. One needn\'t look beyond the loyalty of
sports fans to their favorite teams and their derision of rival teams to
find these influences in many people\'s daily lives. A favorite
player\--a Roger Clemens\--becomes a hated turncoat (itself a telling
expression) by changing his uniform and moving 250 miles southward. A
ridiculed rival, for those on the other side of the move, becomes a
local hero by so changing his uniform and address. Similarly, a World
Series sweep (Red Sox over Cardinals) is less meaningful and rewarding
than the preceding conference **\*58** series comeback victory over a
long-term and much-despised rival (Red Sox over Yankees).

The \"us and them\" process, and, just as revealingly, its situational
malleability, characterizes all levels of competitive activity. The
phenomenon is not limited in the least to campers and athletes.
Cross-town high-school rivals graduate and end up cheering for the same
college mascot. College rivals move on to become close business
associates, and business competitors merge to become a bigger \"us\" to
out-compete a newly defined \"them.\" And the dynamics and their effects
can be far more serious. As we write this, Boston is experiencing a
re-ignition of neighborhood gang battles. Although the dynamics of the
situation are complex, the group affiliations are strikingly schematic:
\"us\" and \"them\" is defined largely by the happenstance of residence.
[[\[FN246\]](#Document1zzFN_F246)]{.underline} The schema is evident,
too, in the way some groups refer to America as \"Satan\" and the way
that many Americans refer to those groups as \"evil.\" Those labels
dispositionalize the enemies, contributing to and justifying the anger
and desire for retribution that both seem to feel. More generally still,
the in-group and out-group situation is felt in ethnic and national wars
throughout the world and throughout history.
[[\[FN247\]](#Document1zzFN_F247)]{.underline} Every reliance on this
cursory us-them cognitive structure operates to excuse ourselves from
the burden of exploring the much more complex, though more significant,
situational influences behind the circumstances we despise. Put
differently, groupism provides a motive for dispositionism, and
dispositionism encourages groupism.

Finally, the group dynamic can be seen in the legal-theoretic debate we
are joining here. For example, groupism very clearly seems to be behind
Milton Friedman\'s claim, reviewed below, that people who question
markets are all in the same out-group of anti-freedom stinkers as \"a
Galbraith \..., a Nader \..., a Marx or an Engels or a Lenin,\"
[[\[FN248\]](#Document1zzFN_F248)]{.underline} and behind Richard
Posner\'s claim that the \"sociology of law is \... entirely dominated
by scholars of left-liberal bent\" whose politics are \"\[s\]o uniform
\... that they may unconsciously regard liberalism (in its modern,
\'welfare state\' sense) as part of the definition of their field.\"
[[\[FN249\]](#Document1zzFN_F249)]{.underline} And it similarly lies
behind the stereotype of legal economists as right-wing conservatives.
[[\[FN250\]](#Document1zzFN_F250)]{.underline} And then, of course,
there is the \"mushy middle.\"
[[\[FN251\]](#Document1zzFN_F251)]{.underline}

**\*59** (iii) Stereotype Threat and Some Exterior Situational
Consequences of Knowledge Structures

Our attention, thus far, has been on how knowledge structures make up
part of our interior situations without our knowing it. Yet its
influence on our lives is powerful. Consider the issue of standardized
testing\--a subject that provides a vantage from which to view several
of the topics that we have already touched on in this section:
stereotypes, groupism, and interpretation of academic performance.

For several decades, scholars, educators, policymakers, and commentators
have debated the significance, meaning, and possible biases of the
standardized tests that our society routinely and increasingly relies
upon to help determine educational and career opportunities. As a
sorting device, the implications of these exams are undeniably
immense\--and their use only seems to be increasing as politicians push
for inexpensive ways to compare educational curricula and pedagogical
techniques.

One attraction of such tests is that, as their name underscores, they
are standardized\--and thus appear to be objective and fair. Everyone
has to take the same test, which is graded anonymously by computer. That
seems pretty fair. Such a view appears to underlie a general public
acceptance of the exams as the primary, sometimes the sole, means of
measuring intelligence or aptitude.
[[\[FN252\]](#Document1zzFN_F252)]{.underline} The exams and their
widespread use provides some evidence of our dispositionism\--for the
exams are implicitly premised on the notion that we each are born with
or acquire through our academic choices and efforts a stable
dispositional quality called \"intelligence\" which, like the wattage of
a light bulb or the horsepower of an engine, is measurable through
simple tests yielding hard numbers.

Some controversy has emerged over the tests, however, in response to the
fact that the results have tended to vary significantly across different
social groups. Numerous explanations have been offered. The easiest
conclusion\--and the one that many conservative groups tend to
reach\--is that the variation is attributable to dispositional or
essentialist influences, including both genetics and acculturated
dispositions. [[\[FN253\]](#Document1zzFN_F253)]{.underline} But critics
of the exams (or of the weight given to the exams) have attributed the
variations to harder-to-see exterior situational factors, including
social, economic, and environmental conditions and opportunities.
**\*60**[[\[ FN254\]](#Document1zzFN_F254)]{.underline} Yet even those
variables cannot fully explain the disparate performance of different
groups. As Claude Steele recently summarized, \"virtually all aspects of
underperformance\--lower standardized-test scores, lower college grades,
lower graduation rates\--persist among students from the
African-American middle class. This situation forces on us an
uncomfortable recognition: that beyond class, something racial is
depressing the academic performance of these students.\"
[[\[FN255\]](#Document1zzFN_F255)]{.underline}

Professor Steele and numerous other social psychologists have thus begun
looking where we dispositionists have been least apt to look (indeed,
have not, because of our knowledge structures, thought to look): to the
interactive and reinforcing roles of interior and exterior situations.
According to Steele\'s basic thesis, when a person belonging to a
stereotyped group suspects that her performance at some task could
confirm a negative stereotype about that social group, that person
experiences stereotype threat.
[[\[FN256\]](#Document1zzFN_F256)]{.underline} Such a threat is posed to
anyone whose identity is connected to one or another social category or
group (whether that group be defined by age, race, ethnicity,
profession, ideological or political affiliations, religion, sexual
preference, looks, gender, income bracket or whatever).

Put differently, no one\--not even groups or individuals that we tend to
think of as powerful\--is immune to the risk of being negatively
stereotyped or to the behavioral consequences that such a threat poses.
For example, Catholic priests, under the threat of a newly salient
stereotype, have gone to some lengths to avoid providing any indication
that they are pedophiles. Republicans, in the wake of Senator Trent
Lott\'s remarks valorizing the segregationist efforts of the late
Senator Strom Thurmond, went out of their way to avoid being seen as
racist or as supportive of racism.
[[\[FN257\]](#Document1zzFN_F257)]{.underline} And legal scholars, under
the threat of being **\*61** viewed as \"advocates\" or polemicists,
rather than as \"neutral, objective social scientists,\" often avoid
evocative issues or conclusions and seem often to steer for a compromise
or a moderate position, even as their logic would seem to push them
toward a more extreme position.

Now suppose that the stereotype involves not pedophilia, racism, or
polemicism, but intelligence. Few of us want to be perceived as
unintelligent. And many of us know the frustration of being in a
situation in which we want desperately not to \"look dumb\" and of
feeling the resultant anxiety that itself seems to turn us into babbling
fools. Interviewing for that \"perfect job,\" or making conversation
with a celebrity are two scenarios where desire to do well can be
counterproductive. Similarly, calling someone to whom we feel attracted
to ask out on a first date is, stereotypically, an immense hurdle\--we
feel intensely the threat that by our behavior we may confirm what we
fear the recipient suspected all along: that we belong to that class of
those with whom no one in their right mind would want a date.

Social psychologists have shown that when people care about appearing
intelligent and are at risk of being stereotyped as unintelligent, they
tend to react in very much that way.
[[\[FN258\]](#Document1zzFN_F258)]{.underline} A significant and still
growing body of evidence reveals that stereotype threat heightens a
person\'s performance anxiety and, when the task or test is sufficiently
challenging, the presence of stereotype threat causes the person to
perform less well\--thereby confirming the stereotype.

In one of the seminal experiments revealing that tendency, black and
white Stanford students took a challenging, thirty-minute verbal exam
that should have been equally difficult for each group, based on their
common experiences and knowledge bases.
[[\[FN259\]](#Document1zzFN_F259)]{.underline} However, the groups\'
performance turned significantly upon how the test was framed. When the
test was presented to the subjects as a test of ability, white students
performed far better than black students. Yet when the test was
presented as a means of understanding how people solve certain sorts of
problems, and subjects were told that the test was not a measure of a
person\'s intellectual ability, the two groups performed almost
identically. [[\[FN260\]](#Document1zzFN_F260)]{.underline}

This study and many like it reveal how stereotypes\--a feature of our
interior **\*62** situations\--exist \"in the atmosphere\" and thus
influence us as part of the unseen exterior situation. Unlike the
nervous and tongue-tied date-seeker, struggling to find the right words
and to adopt the proper demeanor, neither the anxiety created by
stereotype threat nor its source is likely to register consciously on
the part of the test taker. But stereotype threat does indeed create the
performance-harming anxiety.
[[\[FN261\]](#Document1zzFN_F261)]{.underline}

Black students taking the test under stereotype threat seemed to be
trying too hard rather than not hard enough. They reread the questions,
reread the multiple choices, rechecked their answers, more than when
they were not under stereotype threat. The threat made them inefficient
on a test that, like most standardized tests is set up so that thinking
long often means thinking wrong, especially on difficult items \....
[[\[FN262\]](#Document1zzFN_F262)]{.underline}

Researchers have also discovered that black students engaging in a
challenging task have significantly higher blood pressure when under
stereotype threat than when not under stereotype threat (and have higher
blood pressure under both conditions than do white students).
[[\[FN263\]](#Document1zzFN_F263)]{.underline}

It is important to recognize that this phenomenon is not occurring
because of a person\'s overall level of self-esteem or some other stable
dispositional quality. When mathematically inclined white male students,
a group thought to enjoy high levels of self-esteem, were given a
challenging math test, they performed significantly less well on it when
they were told that Asians generally scored better than whites on the
exam, than they did when not met with such a stereotype threat.
[[\[FN264\]](#Document1zzFN_F264)]{.underline} The phenomenon occurs,
not because of the dispositional qualities of the test-takers, but
rather because of exterior situational influences\--that is, the threat
of being stereotyped.

So it is that we can perceive (and to some extent measure) dispositional
features that may themselves both reflect and obscure the already
hard-to-see situational features that permeate and largely define our
existence. And so it is **\*63** that stereotypes are, in that way among
others, often self-fulfilling.
[[\[FN265\]](#Document1zzFN_F265)]{.underline}

b\. Attributional Processes

i\. Causation, Responsibility, and Blame

There is a second \"fundamental process underlying much of social
perception and action\" that has long been understood by social
psychologists, but not by the rest of us: namely, the process of making
causal attributions. [[\[FN266\]](#Document1zzFN_F266)]{.underline}
People are eager to understand the causes of salient outcomes and
actions in their environs and have fairly deeply ingrained schemas
(using the term broadly [[\[FN267\]](#Document1zzFN_F267)]{.underline})
for identifying those causes. Fritz Heider introduced the concept of
attributions in the middle of the last century, and since then probably
no feature of cognitive process has received more attention from social
and cognitive psychologists.
[[\[FN268\]](#Document1zzFN_F268)]{.underline}

In the late 1960s, Harold Kelley hypothesized that lay scientists rely
on the same inferential mechanisms as professional scientists do for
understanding causation. [[\[FN269\]](#Document1zzFN_F269)]{.underline}
Kelley\'s theory was both normative, regarding how people should make
causal attributions, and descriptive, regarding how people actually do
make causal attributions. [[\[FN270\]](#Document1zzFN_F270)]{.underline}
Particularly early on, the evidence seemed to confirm the theory as a
descriptive matter. [[\[FN271\]](#Document1zzFN_F271)]{.underline} From
those ambitious and promising origins, several important literatures
have since developed. [[\[FN272\]](#Document1zzFN_F272)]{.underline}

First, social psychologists went on to discover a number of systematic
biases in people\'s attributional processes\--including the
actor-observer bias, [[\[FN273\]](#Document1zzFN_F273)]{.underline} the
false consensus effect, [[\[FN274\]](#Document1zzFN_F274)]{.underline}
the self-centered bias, [[\[FN275\]](#Document1zzFN_F275)]{.underline}
attributional schemas, [[\[FN276\]](#Document1zzFN_F276)]{.underline}
**\*64** and, most important, the fundamental attribution error.
[[\[FN277\]](#Document1zzFN_F277)]{.underline} There is little need, in
light of our discussion above (and below), to further describe those
sorts of biases or their sources. They are all manifestations of the
more general phenomena that we are highlighting in this Article: our
perceptions and construals are skewed by what we tend to see, which
tends to be only a small piece of the whole picture. For example,
instead of relying on covariation principles of the sort that Kelley
imagined, people too readily rely more on temporal and spatial
contiguity and salience in making causal attributions.
[[\[FN278\]](#Document1zzFN_F278)]{.underline}

For those sorts of reasons, Kelley\'s preliminary hypothesis is now
understood to have significant shortcomings, at least as a descriptive
model. This leads to the second significant development in attribution
theory. Numerous scholars have worked to develop more successful
descriptive models of people\'s attributional processes.
[[\[FN279\]](#Document1zzFN_F279)]{.underline} For example, Bernard
Weiner, with some of his colleagues, has shown that people tend to focus
on three (or four) causal dimensions: locus, stability, control, (and,
in some models, intent). [[\[FN280\]](#Document1zzFN_F280)]{.underline}
In his early work, which focused on how people made attributions in
terms of these categories with respect to achievement efforts, he
focused on three dimensions: whether the cause was stable or temporary,
whether the locus of the cause was internal or external to the
individual, and whether the person had control over the cause.
[[\[FN281\]](#Document1zzFN_F281)]{.underline}

A little introspection\--or a careful read through the newspaper
headlines\-- should confirm that we humans are indeed focused on those
dimensions when examining causation for all sorts of surprising outcomes
that we encounter. Furthermore, as this line of research shows, our
reactions (affective and behavioral) vary significantly depending on how
we perceive a cause along those dimensions. Thus, the destruction caused
by a forest fire seems different to us when it was caused by a person,
rather than a bolt of lightening (locus). Likewise, it matters if the
person had control over the outcome (controllability), whether the
person has created several such fires in the past (stability), and
whether the person was a careless camper or a profiteering arsonist
(intent). Weiner\'s basic attributional model has enjoyed considerable
empirical support and has been expanded to apply in numerous settings.
[[\[FN282\]](#Document1zzFN_F282)]{.underline}

And that leads to the third major development in attribution theory
since Kelley\'s initial effort. Social psychologists, including Weiner,
have constructed more refined theories to capture not just how people
make causal attributions, but also how they assign responsibility and
blame based on those causal **\*65** attributions. Kelly Shaver has
argued that people tend to assign responsibility for harmful outcomes
when, roughly, the harm was foreseeable and when the person acted
volitionally and without justification.
[[\[FN283\]](#Document1zzFN_F283)]{.underline} And people assign blame,
a more punitive designation, when the harmful outcome was intended.
[[\[FN284\]](#Document1zzFN_F284)]{.underline} In Shaver\'s words, \"An
assignment of blame is \... a particular sort of social explanation. It
is the outcome of a process that begins with an event having negative
consequences, involves judgments about causality, personal
responsibility, and possible mitigation.\"
[[\[FN285\]](#Document1zzFN_F285)]{.underline} Again, there is
considerable evidence to support those attributional theories.
[[\[FN286\]](#Document1zzFN_F286)]{.underline}

ii\. Lay Judges

That leads to the most recent development in attribution theory. There
is significant evidence that many of our legal institutions reflect
people\'s attributional impulses (and not, for example, a means of
promoting efficiency or wealth maximization). Put most simply, just as
people want to identify causation, they likewise want to, when
attributionally appropriate, assign responsibility and blame. Moving
from causal attributions to attributions of responsibility or blame, the
lay scientist turns in her lab coat for a judicial robe. As Bernard
Weiner explains:

In \[such\] situations, an appropriate metaphor to capture the reactions
of the involved observer is that he or she is a judge presiding in a
courtroom. The judge determines whether others are innocent or guilty
and then passes sentences based on these beliefs and experienced
emotions. Indeed, life may be considered a courtroom where dramas
related to transgression are played out. The observer is a scientist in
determining causal judgments, but then acts in a Godlike manner by
reaching moral conclusions regarding right and wrong, good and evil.
[[\[FN287\]](#Document1zzFN_F287)]{.underline}

We would go further. Just as the habits of the professional scientist
reflect the same urges and biases as the habits of the lay scientist,
[[\[FN288\]](#Document1zzFN_F288)]{.underline} so do the judgments and
sentences of the courtroom judge reflect those of the lay judge. And our
legal system appears to reflect and, to a significant degree, satisfy
our impulses to establish causation, assign responsibility, and lay
blame. [[\[FN289\]](#Document1zzFN_F289)]{.underline}

**\*66** iii. The Situation of Attributions

Although attributional processes are situational, when pointed out they
are easier for people to see (or accept) than many of the other interior
situational processes. For example, we are not surprised to learn that
\"control\" and \"foreseeability\" tend to influence our attributions of
causation, responsibility, and blame. In some ways, such insights are
commonsensical. [[\[FN290\]](#Document1zzFN_F290)]{.underline}

But, if they are not pointed out to us, our attributional processes
begin and remain largely automatic and unconscious
[[\[FN291\]](#Document1zzFN_F291)]{.underline}; they are experienced, if
at all, as obvious and natural. In that way, our attributions manifest
themselves more as conclusions than as a process or analysis that yields
a conclusion. Like thinking, preferring and choosing, our attributional
ascriptions appear to us as self-evident and, in a sense, dispositional.
We miss much of the situation out of which they emerge.
[[\[FN292\]](#Document1zzFN_F292)]{.underline} Social psychologist Roger
Brown attempted to capture something of the situational flavor of causal
attributions this way:

It appears to be the case that the rules of the causal \[attributional\]
calculus are known and regularly used by all adults and also by very
young children, by you and me \.... That is to say that you already know
the causal calculus, but you know it tacitly or implicitly rather than
explicitly. You know how to use it but not yet how to conceptualize it,
think about it, and talk about it.
[[\[FN293\]](#Document1zzFN_F293)]{.underline}

A major contribution of attribution theorists has been to make explicit
what Brown describes as tacit and what we call situational.
[[\[FN294\]](#Document1zzFN_F294)]{.underline} That we can see our
attributional conclusions does not mean that understanding their sources
is easy, any more than seeing the effects of gravity implies that
understanding precisely how it works or interacts with other forces is
easy. [[\[FN295\]](#Document1zzFN_F295)]{.underline} As Brown writes:
\"Creating explicit knowledge where there was only tacit knowledge is
far from **\*67** an effortless process. There is something pleasurable
in it but also something difficult.\"
[[\[FN296\]](#Document1zzFN_F296)]{.underline} But social psychologists
help us see, not just the process, but also the biasing influence of
that process\--including, for instance, the fact that our attributions
are often altered by the severity of the harm.
[[\[FN297\]](#Document1zzFN_F297)]{.underline}

Like all interior situational influences, our attributions can be, and
commonly are, influenced by exterior situation. Whether we perceive a
person to be in \"control\" or to have acted \"intentionally\" are
matters that can be framed and promoted.
[[\[FN298\]](#Document1zzFN_F298)]{.underline} Is sexual preference
within the control of gays and lesbians? Do guns kill people or do
people kill people? What did the hierarchical authorities within the
Catholic Church know about the pedophilic conduct of the priests serving
its archdiocese, when did they know it, and what did they do about it
when they knew? Are welfare recipients dispositionally lazy or
situationally disadvantaged? Attributional stereotypes are part of our
cultural landscape, and at the core of many cultural debates. There is
obviously a great deal at stake in attributions. And there are many
interests competing to shape our attributional presumptions and
stereotypes.

c\. Counterfactual Thinking

A small plane crashes in a remote northern province. Two of the
passengers survive the crash and attempt to walk to safety. One of the
two succumbs to the extreme cold seventy-five miles from the nearest
town. The second trudges on but dies when she is just a quarter of a
mile from the town. Tragic. Is the second more tragic than the first?
Many people think so. [[\[FN299\]](#Document1zzFN_F299)]{.underline}
Even though both people died from the cold after a plane crash, we
respond more strongly when someone comes so close to safety. This is an
example of counterfactual thinking, another type of process bias that
plays off of our pre-existing schemas.
[[\[FN300\]](#Document1zzFN_F300)]{.underline}

Our schemas define what we think is \"normal.\" When a bad outcome
appears to stem from abnormal circumstances the emotional impact is
greater than when **\*68** the same outcome results from a familiar
situation. A number of factors can lead us to think an outcome is
abnormal. For example, the closer the distance between the actual
outcome and a potential \"normal\" outcome, the less abnormal an outcome
seems. [[\[FN301\]](#Document1zzFN_F301)]{.underline} Thus, a soldier\'s
accidental death a few days after a war ends, but before news of it
reaches the front lines, seems more regrettable than a combat death two
days before the war ended. Outcomes that follow unusual actions also
stand out as abnormal in our minds.
[[\[FN302\]](#Document1zzFN_F302)]{.underline} So the plight of a plane
crash victim who switched flights minutes before takeoff seems
particularly poignant. When a bad outcome results from events or
behavior that is contrary to our schemas, scripts, or routines, it is
easy for us to imagine a different outcome. The more available our
expectations are, the more salient will be any deviation from them, and
the more painful will be any harm that results from that deviation.
[[\[FN303\]](#Document1zzFN_F303)]{.underline} Indeed, social
psychologists have found that people tend to award greater compensation
to victims of accidents in contexts where the victims\' behavior prior
to the injury had deviated from their normal behavior. Again, the
availability of the easily imagined counterfactual appears to increase
the sense of tragedy in the occurrence.
[[\[FN304\]](#Document1zzFN_F304)]{.underline}

Our counterfactual patterns of thought are related to the same basic
internal situation that drives the fundamental attribution error.
[[\[FN305\]](#Document1zzFN_F305)]{.underline} For instance, both
reflect the more general tendency to focus on what is easy to see and on
what we expect to see. [[\[FN306\]](#Document1zzFN_F306)]{.underline}
Moreover, counterfactual imaginings reflect and further **\*69**
entrench the situational character\'s dispositionism. When we think of
what might have been, we tend to focus on the individual actors and
their actions, rather than on the situation in which they were acting.
Because of our dispositionism, we are better able to imagine people
acting differently than they did than to imagine that the situation
could have been different than it was. Thus, because of the fundamental
attribution error our counterfactuals tend to be dispositionist. And
when we think about something bad that has happened to a person, even
when we the thought is motivated by sympathy, our counterfactual
thoughts tend to be oriented toward undoing or altering actions or
choices on the part of the person.
[[\[FN307\]](#Document1zzFN_F307)]{.underline}

Counterfactuals guide more than our reactions to recent happenings. This
pattern of the mind continues to influence our mental lives long after
an event has transpired. Counterfactuals play a lasting role in our own
self-conceptions. To understand how, it is helpful to understand another
effect of counterfactual thinking\--the omission bias. \"\[T\]he
availability of a close counterfactual\"\--an alternative and familiar
path\--\"can increase the regret and disappointment that one feels after
experiencing a bad outcome.\"
[[\[FN308\]](#Document1zzFN_F308)]{.underline} And we alter our behavior
in order to avoid such disappointment. For example, when choosing among
potentially bad outcomes, people tend to favor the inactive option over
the option that requires action. That is true because \"action is more
regrettable than inaction because it is easier to undo action by
mentally erasing it than it is to undo inaction by mentally adding the
action not taken.\" [[\[FN309\]](#Document1zzFN_F309)]{.underline}

Do not be misled into seeing this as evidence of a stable-preferenced
individual, one that consistently prefers inaction over action. Our
counterfactuals do not reflect a consistent dispositionist outlook;
rather, they change as our situation changes. The basic pattern is this:
we begin by thinking that we will regret **\*70** action more than
inaction. Over time, however, our perceptions and preferences seem to
switch. In the realist words of Ziva Kunda, \"In the short term our
actions seem more regrettable, but in the long run our failures to act
cause us the most grief.\"
[[\[FN310\]](#Document1zzFN_F310)]{.underline} And this again can be
explained by some of the same tendencies underlying the fundamental
attribution error. After a bad outcome, our actions remain cognitively
salient in our memories while any situational constraints that might
have influenced those actions remain faded (or quickly fade).
[[\[FN311\]](#Document1zzFN_F311)]{.underline} It becomes harder to
counterfactually imagine not acting, so we experience less regret about
the outcomes of those actions.
[[\[FN312\]](#Document1zzFN_F312)]{.underline} Similarly, when we
remember a harmful event resulting from our inaction, what remains
starkly available in our minds is our own failure to act. As the
situational constraints grow more distant, so do our reasons for
inaction, and our self-regret is more severe.
[[\[FN313\]](#Document1zzFN_F313)]{.underline} \"In retrospect, we think
we could have handled with ease tasks that at the time seemed all but
impossible.\" [[\[FN314\]](#Document1zzFN_F314)]{.underline} We do not,
therefore, have a single, stable disposition across our changing
evaluation of our own behavior.

Unsurprisingly, social psychologists have found that we are susceptible
to manipulation by those who want to situationally stoke the
counterfactualizing cognitions that give rise to actions or inactions.
[[\[FN315\]](#Document1zzFN_F315)]{.underline} As one social
psychologist, introducing a journal issue dedicated to the topic, put
it:

Pointing out to individuals that they might have done something in the
past that would make their present more desirable may motivate them
toward decisions that would bring about more desirable states in the
future. Or, pointing out how an action might have resulted in a worse
state of affairs might motivate individuals toward a cautious outlook
that minimizes the chances of future undesirable states. The
manipulation of consumer emotions by marketers has long been a stable of
successful advertising\.... \[C\]ounterfactual thinking might be an
effective tool for manipulating emotions \....
[[\[FN316\]](#Document1zzFN_F316)]{.underline}

**\*71** Much has been written about counterfactual thinking,
[[\[FN317\]](#Document1zzFN_F317)]{.underline} its effects, and even its
functionality. [[\[FN318\]](#Document1zzFN_F318)]{.underline} Still, the
relentless part that our \"what ifs,\" \"if onlys,\" \"but fors,\"
\"would\'ves,\" and \"should\'ves\" play in our consciousness remains in
many ways unexplained. Counterfactual imaginings can plague our present
choices with fear and our future evaluations of our present choices with
regret. Still, they \"force themselves upon us with undeniable
strength,\" [[\[FN319\]](#Document1zzFN_F319)]{.underline} making it
difficult to ignore, among other things, how much nicer it would have
been if the milk had not spilled. That strength suggests the power of
our internal situations over our own seemingly dispositional mental
lives, our thinking, and our decisionmaking.

3\. Defending our Knowledge Structures

A later section describes in some detail the influence of \"motivation\"
on our attitudes, cognitions, and behavior.
[[\[FN320\]](#Document1zzFN_F320)]{.underline} This section briefly
discusses the phenomenon as it applies to our knowledge structures.

a\. Where Motive Meets Knowledge Structures

\"If a man is offered a fact which goes against his instincts, he will
scrutinize it closely, and unless the evidence is overwhelming, he will
refuse to believe it. If, on the other hand, he is offered something
which affords a reason for acting in accordance to his instincts, he
will accept it even on the slenderest evidence.\" \~ Bertrand Russell
[[\[FN321\]](#Document1zzFN_F321)]{.underline}

Four stages of adopting new ideas: \"The first is, \'It\'s impossible.\'
The second is, \'Maybe it\'s possible, but it\'s weak and
uninteresting.\' The third is, \'It is true and I told you so.\' The
fourth is, \'I thought of it first.\"\'

\~ Dean Radin [[\[FN322\]](#Document1zzFN_F322)]{.underline}

**\*72** This section returns to the topic of knowledge structures to
further discuss the human tendency to persistently defend our knowledge
structures, even when confronted with significant evidence that calls
them into question. The history and evolution of legal economics
illustrates the distorting loyalty of even social scientists to favored
theories and beliefs. Above, we noted the benefits that result from
using knowledge structures to organize new information in a cognitively
efficient way. [[\[FN323\]](#Document1zzFN_F323)]{.underline} It is
largely because of those benefits that we are motivated to protect our
beliefs and our way of understanding the world and to reject
alternatives. Thus, one can think of our knowledge structures (and
resultant \"knowledge\") as valued cognitive gold\-- which, in a way,
they are. An important question is how do we manage to protect our
wealth from being replaced or debased with fools\' gold? How do we
maintain our knowledge structures and our sense that we have a solid
grasp on the \"truth,\" when the truth is itself so slippery and elusive
and when alternative claims to \"truth\" compete for our allegiance?

We have already indicated one key defense. Because of the unseen or
situational nature of our knowledge structures, we tend to experience
our beliefs as emerging almost entirely from an unbiased assessment of
evidence from reliable sources. Being blind to our interior knowledge
structures allows them to influence our cognitive processes undetected.
If we do not see them, we do not attempt to monitor them or influence
them. [[\[FN324\]](#Document1zzFN_F324)]{.underline}

But our interior defenses are made stronger still by the very
slipperiness of what \"is\"\--the ambiguity of so much of our social
realities. [[\[FN325\]](#Document1zzFN_F325)]{.underline} Insofar as
reality is ungraspable, so too is proof that any one handle on it is
illusory. Around our golden knowledge structures are moats that operate
to keep out threatening evidence and, with drawbridges selectively
lowered, to allow in any evidence **\*73** that reinforces them.
[[\[FN326\]](#Document1zzFN_F326)]{.underline} Confirming features of
ambiguous evidence can be embraced as further support, and disconfirming
elements of that same evidence can be ignored. Given the prevalence of
ambiguity (not to mention our ability and that of others to manufacture
ambiguity), our knowledge structures are generally well-protected.
[[\[FN327\]](#Document1zzFN_F327)]{.underline} As Ziva Kunda explains,
echoing Bertrand Russell, our knowledge structures

may affect not only which memories, beliefs, and rules we access but
also the amount of effort we invest in searching for relevant beliefs
and rules in the first place \.... When we come across evidence that
supports our desired conclusions, we may accept it at face value. But
when we come across comparable evidence that challenges our desired
conclusions, we may evaluate it more critically and work hard to refute
it. [[\[FN328\]](#Document1zzFN_F328)]{.underline}

Social psychologists have given a variety of names to this process\--for
example, confirmatory bias, perseverance bias, hypothesis-based
filtering, elastic justification, and, more generally, motivated
reasoning. [[\[FN329\]](#Document1zzFN_F329)]{.underline} Perhaps
unsurprisingly (given the topic), researchers have found a great deal of
evidence suggesting that such devices are extremely powerful. Richard
Nisbett and Lee Ross summarized the literature in 1980 as follows:

When people already have a theory, before encountering any genuinely
probative evidence, exposure to such evidence (whether it supports the
theory, **\*74** opposes the theory, or is mixed), will tend to result
in more belief in the correctness of the original theory than normative
dictates allow.

\... When people approach a set of evidence without a theory and then
form a theory based on initial evidence, the theory will be resistant to
subsequent evidence\.... \[and\]

\... When people formulate a theory based on some putatively probative
evidence and later discover that the evidence is false, the theory often
survives such total discrediting.
[[\[FN330\]](#Document1zzFN_F330)]{.underline}

The influence of those biases, and others,
[[\[FN331\]](#Document1zzFN_F331)]{.underline} makes clear one of the
great problems with our schemas: we create them too quickly and maintain
them too loyally. And, again, this problem is not limited to the
processes of just lay scientists: \"The tendency of professional
scientists to persist in adhering to theories well past the point at
which such adherence can be justified by the evidence has been observed
by many.\" [[\[FN332\]](#Document1zzFN_F332)]{.underline} We will return
to that point briefly below,
[[\[FN333\]](#Document1zzFN_F333)]{.underline} and more thoroughly in
subsequent articles. [[\[FN334\]](#Document1zzFN_F334)]{.underline} For
now, the crux of our point is that all of us are subject to the same
biasing process that we just do not see.

To be sure, we often see others as biased, prejudiced, vested,
incoherent, inconsistent, or closed-minded.
[[\[FN335\]](#Document1zzFN_F335)]{.underline} But those experiences are
schematized as dispositional quirks, not as a reflection of their deeper
interior situations. [[\[FN336\]](#Document1zzFN_F336)]{.underline} In
ourselves, we see what every person is presumed capable of\--clarity,
objectivity, and open-mindedness.
[[\[FN337\]](#Document1zzFN_F337)]{.underline} And we can maintain that
self-affirming view\--as do those who we feel should not\-- in
significant part because we do not see the interior situation.
[[\[FN338\]](#Document1zzFN_F338)]{.underline}

As with the other biases, there\'s a critical kicker to this analysis:
exterior **\*75** situation, which we began by emphasizing our failure
to appreciate, can wield an immense influence over which schemas we
adopt, which we reject, and how and when we apply them. And that process
is itself guided in part by the operation of interior schemas
functioning below the level of our conscious awareness. Furthermore,
once our schemas are in place, exterior situation can provide us the
evidence and ambiguity we need to sustain them.

b\. Economics: A Preliminary Case Study
[[\[FN339\]](#Document1zzFN_F339)]{.underline}

\"The power of theory to organize information and guide inquiry is great
and is the core of validity in the adage that you can\'t beat a theory
except with a better theory.\" \~ Richard Posner
[[\[FN340\]](#Document1zzFN_F340)]{.underline}

\"New ideas encounter formidable obstacles, the foremost being
indifference, but also the new ideas will often conflict with old ideas
or clash with apparently contradictory experience.\"

\~ George Stigler [[\[FN341\]](#Document1zzFN_F341)]{.underline}

Because, as we argued above, people have a stereotyped view of schemas
(providing further evidence of their power and presence), we have thus
far focused most of our attention on the most salient group concepts and
have virtually ignored most of schemas\' other, more general distorting
effects. (The tendency should now be, we hope, a familiar one.) No human
inference process is without schematic structuring, and none is
insulated from schematic distortions.
[[\[FN342\]](#Document1zzFN_F342)]{.underline} Indeed, there is
significant evidence that the reasoning of professional scientists,
despite their presumed role as purveyors of objective truth, is likewise
distorted. Much of what is known about the structure of scientific
revolutions (to borrow Thomas Kuhn\'s phrase)
[[\[FN343\]](#Document1zzFN_F343)]{.underline} is just one manifestation
of a far more general human tendency to create, defend, and, when forced
to, abandon a favored schema or knowledge structure. Here, we will use
the real-world example at hand\--the schema-driven history of the role
of choice biases in **\*76** economics and legal economics.
[[\[FN344\]](#Document1zzFN_F344)]{.underline} This partial case study
illustrates not only the distorting effects of knowledge structures, but
also how their effects bedevil policy analysts, including legal
economists.

i\. Knowledge Structures in the Analysis of Temporal Effects

Consider the history of social scientific analysis of the effects of
time on judgment\--a history that we already hinted at above. At least
since Adam Smith and well before the emergence of neoclassical
economics, economists have been interested in intertemporal
decisionmaking. The early economists sought to identify and examine the
often-conflicting \"sociological and psychological determinants of these
choices.\" [[\[FN345\]](#Document1zzFN_F345)]{.underline} In the early
nineteenth century, for example, John Rae wrote about the affective
attractiveness of immediate consumption as compared to the displeasure
of saving:

Such pleasures as may now be enjoyed generally awaken a passion strongly
prompting to the partaking of them. The actual presence of the immediate
object of desire in the mind by exciting the attention, seems to rouse
all the faculties, as it were to fix their view on it, and leads them to
a very lively conception of the enjoyments which it offers to their
instant possession. [[\[FN346\]](#Document1zzFN_F346)]{.underline}

And around the same time economic theorist N.W. Senior wrote that
\"\[t\]o abstain from the enjoyment which is in our power, or to seek
distant rather than immediate results, are among the most painful
exertions of the human will.\"
[[\[FN347\]](#Document1zzFN_F347)]{.underline}

Thus, the sort of variability of preferences to which neoclassical
economists have long been blind had not only been identified by
economists a century before, but had also been explained by them.
Strikingly, both Rae and Senior intuited what social psychologists more
than a century later came to call immediacy.
[[\[FN348\]](#Document1zzFN_F348)]{.underline}

Similarly, toward the late 1800s, some economists even began to write
about the effects of heuristics in human cognitions. In 1889, Eugen von
Böhm-Bawerk wrote:

It may be that we possess inadequate power to imagine and to abstract,
or that we are not willing to put forth the necessary effort, but in any
event we limn a more or less incomplete picture of our future wants and
especially of the **\*77** remotely distant ones. And then there are all
those wants that never come to mind at all.
[[\[FN349\]](#Document1zzFN_F349)]{.underline}

Thus, not only were these early economists developing a psychological
theory to explain real human behavior,
[[\[FN350\]](#Document1zzFN_F350)]{.underline} the theory they were
developing\--of a corner-cutting and schema-driven cognitive
process\--anticipated the very sort of interior fundamental attribution
error that we are emphasizing here. In short, economists were beginning
to glimpse something of our interior situation, particularly with
respect to our cognitive miserliness.

But the insight itself makes predictable what would be done with it.
There was then emerging a new brand (or schema) of economics\--the far
more technical, simplistic, and axiomatic (and far less realistic)
approach that came to be known as neoclassical economics. In an effort
to create a simple way of thinking about intertemporal choice that
comported with the emerging economic models, Nobel Laureate Paul
Samuelson, in a five-page article, offered the now-dominant discounted
utility model. [[\[FN351\]](#Document1zzFN_F351)]{.underline} \"\[I\]n
Samuelson\'s simplified model, all the psychological concerns discussed
over the previous century were compressed into a single parameter, the
discount rate.\" [[\[FN352\]](#Document1zzFN_F352)]{.underline} The new
model was based not upon social scientific analysis but on \"little more
than introspection and personal observation\" on the part of several
economists. [[\[FN353\]](#Document1zzFN_F353)]{.underline} As Frederick,
Loewenstein, and O\'Donoghue explain in their recent account, the path
to theoretical dominance was quick and direct, owing not to realism but
to what we would call schematic biases, a retreat from realism to
simplicity:

Samuelson did not endorse the \[discounted utility\] model as a
normative model of intertemporal choice, noting that \"any connection
between utility as discussed here and any welfare concept is disavowed\"
\.... He also made no claims on behalf of its descriptive validity,
stressing, \"It is completely arbitrary to assume that the individual
behaves so as to maximize an integral of the form envisaged in \[the
discounted utility model\]\" \.... However, despite Samuelson\'s
manifest reservations, the simplicity and elegance of this formulation
**\*78** was irresistible, and the \[discounted utility\] model was
rapidly adopted as the framework of choice for analyzing intertemporal
decisions.

The \[discounted utility\] model received a scarcely needed further
boost to its dominance as the standard model for intertemporal choice
when Tjalling C. Koopmans showed that the model could be derived from a
superficially plausible set of axioms. Koopmans, like Samuelson, did not
argue that the \[discounted utility\] model was psychologically or
normatively plausible; his goal was only to show that under some
well-specified (though arguably unrealistic) circumstances, individuals
were logically compelled to possess positive time preference. Producers
of a product, however, cannot dictate how the product will be used, and
Koopmans\' central technical message was largely lost while his
axiomatization of the \[discounted utility\] model helped to cement its
popularity and bolster its perceived legitimacy.
[[\[FN354\]](#Document1zzFN_F354)]{.underline}

The influence of the discounted utility schema continues to be
significant, even among the skeptics and nonbelievers. The theories
offered to compete with the discounted utility model often have been
heavily anchored to that model, although evidence of real human
decisionmaking is forcing them to begin to take into account certain
aspects of the situation. [[\[FN355\]](#Document1zzFN_F355)]{.underline}
As we will detail below, the same is true for the more general
rational-actor model in law and economics.
[[\[FN356\]](#Document1zzFN_F356)]{.underline}

Thus far, we have indicated two general ways in which economists over
the last half-century have responded to evidence of the lack of realism
in the rational-actor-based discounted utility model. The most common
method (and a key reason that Samuelson\'s brief note has become such a
dominant approach to positive and normative theory) has been to adopt
the basic model without regard to its realism. That strategy tends to
work when economists are not confronted with anomalous or falsifying
evidence. A second method is to acknowledge the basic model\'s unrealism
and to accommodate the anomalous evidence with as little violence to the
original model as possible.
[[\[FN357\]](#Document1zzFN_F357)]{.underline} That approach, as we\'ve
noted, reveals the anchoring effect of our knowledge structures.
[[\[FN358\]](#Document1zzFN_F358)]{.underline}

There is at least one more general method, a middle way between those
two, which is to acknowledge the supposedly anomalous evidence, but
construe it in a way that renders it confirmatory of the challenged
model. [[\[FN359\]](#Document1zzFN_F359)]{.underline} This is a
restatement of the confirmatory bias described above.
[[\[FN360\]](#Document1zzFN_F360)]{.underline} The strategy thus takes
what appears to be damaging evidence and transforms it into reinforcing
evidence. But, again, the strategy often reflects not a fair and
accurate interpretation **\*79** of the evidence, but a motivated
attempt to maintain a favored theory.

Richard Posner\'s response to intertemporal inconsistencies exemplifies
that approach. He takes evidence that most economic behavioralists
consider a threat to the rational actor model\'s viability and
reinterprets it as further support for that purported model:

\[T\]he reason for the \[intertemporal choice variations\] may simply be
that I lack a clear conception of my consumption needs a decade hence;
the reason may, in other words, be the imagination cost \.... I cannot
imagine what might make me pay in effect a huge interest rate to
reallocate consumption \[in the distant future, whereas I can imagine it
today\]. The fact that knowledge and imagination are \"bounded\" just
shows, what no rational-choice economist doubts, that information costs
are positive. [[\[FN361\]](#Document1zzFN_F361)]{.underline}

Posner thus cleverly explains the phenomenon in terms of
now-somewhat-theorized information costs, exhibiting what Dean Radin
describes as the \"I thought of it first\" stage of accepting an idea.
[[\[FN362\]](#Document1zzFN_F362)]{.underline} Posner\'s reasoning
reflects the confirmatory bias in its classic form inasmuch as he
interprets selective portions of the ambiguous evidence as consistent
with his favored theory, failing to see that it is also consistent with
competing theories or to examine whether other portions of the evidence
can be similarly construed.
[[\[FN363\]](#Document1zzFN_F363)]{.underline}

But Posner\'s construal goes further and reveals what might be called
counterfeit confirmation bias.
[[\[FN364\]](#Document1zzFN_F364)]{.underline} Posner does more than
just selectively reinterpret evidence to corroborate a favored theory.
He also fundamentally adjusts the underlying theory, while falsely
claiming that its pre-altered version has been confirmed. More
specifically, Posner conflates information costs, a sliver of which
economists have long included in their basic model, with \"imagination
costs,\" which economists conventionally do not have a place for in
their models. [[\[FN365\]](#Document1zzFN_F365)]{.underline}

Of course, we do not dispute that people have trouble imagining or
appreciating factors that are less immediate. To the contrary, as we
have been detailing for 1.5 articles, that difficulty is a fundamental
feature of the situational character\'s interior situation. The problem
is that conventional economics has **\*80** generally meant something
very different when referring to \"information costs\"\--which is
precisely why the insights of behavioralists have been slow in coming
and why the bulk of social psychology and related fields have been
ignored. The conventional assumption regarding the effect of information
costs is not, contrary to Posner\'s version, that people will be unable
to imagine their needs in a future state of the world, but rather that
rational actors will mis-estimate the risks they face in the current
state of the world. Furthermore, economists do not generally assume, as
Posner does here, that individuals will systematically underestimate
risk, but rather that they will mis-estimate randomly such that they are
correct on average. [[\[FN366\]](#Document1zzFN_F366)]{.underline}
Posner himself makes this precise argument when discussing the general
role of information costs on people\'s consumption choices.
[[\[FN367\]](#Document1zzFN_F367)]{.underline} And he makes the same
sort of argument to help defend his rational actor theory when he claims
that the presence of irrational actors may not alter the model\'s
prediction regarding downward-sloping demand curves,
[[\[FN368\]](#Document1zzFN_F368)]{.underline} so long as the irrational
actors behave, on average, like rational actors.
[[\[FN369\]](#Document1zzFN_F369)]{.underline} Even accepting Posner\'s
elastic definition of \"information costs,\" his argument assumes that
our limited imaginations are not a feature of our interiors that we can
adjust for or control; otherwise, individuals would simply make
rule-based (imagination-free) adjustments to help eliminate time effects
on their choices. [[\[FN370\]](#Document1zzFN_F370)]{.underline} Posner
is claiming, not just that \"rational actors\" have limited
imaginations, but also that they do not recognize that they have limited
imaginations. He is, in other words, implicitly positing the existence
of unseen interior situational influences\--a view that we share, but
that he cannot plausibly sustain while remaining otherwise committed to
the rational-choice model that he hopes to defend.
[[\[FN371\]](#Document1zzFN_F371)]{.underline}

In that way, Posner re-fashions the model that he purports to be
defending. This move reveals either the unrealism of the unaltered
rational-choice model or the elasticity and non-falsifiability of that
model. [[\[FN372\]](#Document1zzFN_F372)]{.underline} Relatedly, by
focusing so singlemindedly upon defending the rational actor model
against the challenge at hand, Posner fails to see how his solution
creates bigger problems for that model that were apparently beyond his
imagination (or his cognitive budget) at **\*81** the time.
[[\[FN373\]](#Document1zzFN_F373)]{.underline} But more important for
our purposes, his arguments also exemplify one of the many ways in which
all people selectively, unconsciously stretch their theories in service
of a favored knowledge structure.

To more clearly view the influence of counterfeit confirmatory bias in
this episode, consider again the historical context of this debate. By
pointing to people\'s imperfect imaginations, Posner is unwittingly
restating the basic arguments of the nineteenth-century economists,
particularly those of Böhm-Bawerk.
[[\[FN374\]](#Document1zzFN_F374)]{.underline} Böhm-Bawerk looked to
psychology and sociology in an effort to generate a realistic portrait
of the human agent, untethered to the strictures of the formal
rational-actor model. [[\[FN375\]](#Document1zzFN_F375)]{.underline}

Scholars who, a half-century later, adopted Samuelson and Koopmans\'
discounted utility model for explaining intertemporal decision making
were rejecting the realism undergirding Böhm-Bawerk\'s argument for the
sake of embracing the elegance and simplicity of the rational choice
model. [[\[FN376\]](#Document1zzFN_F376)]{.underline} Thus Posner, in
the name of maintaining the rational-choice model, is falling back on
the very same realism that was rejected in the name of adopting that
model. This is the same Posner who has argued repeatedly in the face of
criticisms that simplicity and elegance are the touchstones of good
science, [[\[FN377\]](#Document1zzFN_F377)]{.underline} and the same
Posner who frequently admonishes that \"\[i\]n theory-making,
descriptive accuracy is purchased at a sacrifice of predictive power.\"
[[\[FN378\]](#Document1zzFN_F378)]{.underline}

But Posner does not maintain the simplicity or predictive power that he
claims to value. At best, he preserves merely the appearance of such
qualities by altering the once-simple theory to house evidence that had
previously been rejected as too cumbersome to accommodate. It is not the
theory\'s capacity for accommodation that has changed, but the weight,
clarity, and prominence of the anomaly. Although Posner provides no
meta-theory to explain when to relinquish reductionism for the sake of
realism, the meta-theory is revealed in his **\*82** practice. The
meta-theory, which is found in the human interior situation, is to take
into account only as much anomalous evidence as one\'s prevailing
knowledge structure must, and to do so in a way that salvages as much of
that knowledge structure as possible.

It is important to recognize a likely effect of\--and, perhaps, motive
behind\--the counterfeit variation of confirmatory bias. Changing a
theory, while pretending not to, in order to explain what would
otherwise be disconfirming or falsifying evidence, allows for the
pre-altered theory to be applied in unexamined form in other contexts.
For example, Posner does not feel compelled at the end of his treatment
of intertemporal judgments to rethink all areas of economic analysis to
determine the possible influence of \"imagination costs.\" He is able to
pretend that the rational-actor model, in unaltered form, has fully
survived the skirmish with realism. The strategy further permits him to
criticize those scholars who, in response to evidence of realism, call
for new theories (with new names). Thus Posner claims that \"behavioral
economists tend to give up on rational-choice economics too soon.\"
[[\[FN379\]](#Document1zzFN_F379)]{.underline} Of course the point is
that Posner, too, has given up on rational-choice economics. It is just
that he has done so in a way that allows him to maintain the
legitimating mantle of a longstanding theory and to fall back on the
simplified model without justification.

In short, by engaging in the confirmatory bias\--in both its classic and
counterfeit forms\--Posner has avoided the implications of the very
\"imagination costs\" that rescued his rational actor model. If Posner
were serious about imagination costs, he would be forced to recognize
what those applying social science have, often to their own surprise,
discovered and demonstrated: The limits of human imagination are not a
factor that kicks in or should be relied on or explained away
selectively. Instead, they are a permanent condition of our interior
situations, an unseen condition that should be at the core of our
understandings of human actors and, in turn, our legal theories.

Economists, spurred by the importuning of economic behavioralists, may
appear to be approaching another revolution (or counter-revolution) in
the spiraling trajectory of their thinking about intertemporal choices.
[[\[FN380\]](#Document1zzFN_F380)]{.underline} It is difficult to read
that history, however, without seeing the economizing and distorting
role of schemas or knowledge structures channeling and shaping that
thinking.

ii\. The Focus on Choice Biases

But there is more to be observed about the silent influence of interior
situational forces over economists\' experiences with choice biases.
There is **\*83** another, more general way in which prevailing
knowledge structures in economic and legal economic theory have evaded
the most threatening implications of social psychology. It is no
coincidence that, as noted in the previous section, it is choice biases
that have been taken relatively seriously
[[\[FN381\]](#Document1zzFN_F381)]{.underline} by economists and legal
economists. New subfields\-- behavioral economics and law and
behavioralism\--have emerged in an effort to incorporate the choice
biases into tractable economic models.
[[\[FN382\]](#Document1zzFN_F382)]{.underline}

Indeed, Daniel Kahneman, one of several founders of behavioral
economics, won the 2002 Nobel Prize in Economics. The economics
establishment celebrated his choice-based work precisely because it was
so directly relevant and easily incorporated into many traditional,
dispositionist economic models.
[[\[FN383\]](#Document1zzFN_F383)]{.underline} Choice biases focus on
choice\--the center of neoclassical economic theory. Thus, the
behavioralist studies revealing choice biases are intended less to
create a new general understanding of how humans think and more to
reveal the flaws in the simple rational-actor and self-interest models
of traditional economics.

The narrowness of choice biases makes them the most straightforward and
accessible means of disproving the predictions of unrehabilitated
economic theory. [[\[FN384\]](#Document1zzFN_F384)]{.underline} With
such discrete, clear anomalies, behavioralists pose the most immediate
challenge to conventional economic models. But such anomalies are also
the least damaging to, or the most easily accommodated by, models that
continue to take preferences and choices as the centerpiece of human
activity. **\*84** By focusing on choice biases, behavioralists do not
investigate, much less challenge, the role of choice in the model, only
the particular version of choice calculus conventionally assumed.
Anomalies have thus been both easy to find and easy to present without
implicating a far more thorough indictment of the entire economic
paradigm that social psychology, taken seriously, would yield.
Economists and economic behavioralists have thus been able to maintain
their assumption about preference-driven, choice-making actors, while
disputing only the extent to which that actor operates according to more
or less rigid rationality assumptions. By focusing on choice biases, in
other words, economists have been able to ignore the situation.
[[\[FN385\]](#Document1zzFN_F385)]{.underline}

But this is not a dispositional critique. We are not saying\--nor do we
believe\--that economists ignore situational influences consciously or
deliberately. They have been ignoring it because of the
situation\--their interior situation (and, arguably, their exterior
situation, which rarely places them in direct contact with individuals
or ideas that would challenge their dispositionist axioms). Their shared
knowledge structures, for example, have distorted what they see and how
they construe what they see.
[[\[FN386\]](#Document1zzFN_F386)]{.underline} And, because their
knowledge structure is itself situational, they have no reason to doubt
what they think they see\--that is, dispositional choice.

As this discussion helps to demonstrate, professional scientists and lay
scientists are bedeviled by the same situation. Knowledge structures and
schemas are all around us, guiding our every, or most every, thought,
and simultaneously assisting and distorting what we \"know.\" The
coloring concepts and theories we employ can lead us to focus on
irrelevant details in our environment, to overlook the relevant details,
and to misunderstand our world.
[[\[FN387\]](#Document1zzFN_F387)]{.underline} As we hope the reader has
already recalled (with the aid of the knowledge structure that we are
attempting to create), that is precisely the mechanism behind the
exterior and interior fundamental attribution errors.

4\. Summary

Where lay people and economists see \"thinking,\" they vastly overstate
its significance and vastly understate the interior situation of our
thinking\-- that is, our unseen cognitions. Social psychology and
related fields make clear that all of our cognitive processes are more
or less influenced by unseen and distorting influences, from heuristics
and framing effects on one hand to schematic and attributional processes
on the other. And all of those unseen cognitions and cognitive processes
render us more or less vulnerable to outside manipulation\--indeed, the
experiments revealing the cognitive phenomena simultaneously **\*85**
reveal the extent to which they can be tapped through exterior
situation.

In short, this section has shown some of the ways in which, although it
is true that we experience ourselves thinking, we do not think the way
we think we think. There is more to the situation. And, as the next
section illustrates, we have barely scratched the surface of our
interior situations.

C. ATTITUDES (VS. \"PREFERRING\")

The previous section focused on the situation of our \"thinking.\" This
section focuses on the situation of our attitudes or \"preferences.\"
This section leads to the same sort of conclusion: although it is true
that we experience ourselves preferring, there is more to the situation
than what we perceive, and thus more to the meaning of preferences than
most of us, legal economists and policy makers included, have
appreciated.

1\. Some Evolution of the Concept

a\. The Traditional View\--Stable and Causal

We begin by reminding our readers of attitudes, the name that social
psychologists have given to the concept that economists have called
preferences. Traditionally, attitudes were as central to the theories of
social psychologists as preferences are to economists\--and their
centrality played a very similar role. In 1954 Gordon Allport claimed,
\"this concept is probably the most distinctive and indispensable
concept in contemporary American social psychology.\"
[[\[FN388\]](#Document1zzFN_F388)]{.underline} More recently, Richard
Eiser claimed that

\[t\]he term \'attitude\' is probably used more frequently than any
other in social psychology. There are few theories in which the concept
is not explicitly or implicitly introduced, and few experiments in which
attitudes are not involved somewhere among the dependent variables.
[[\[FN389\]](#Document1zzFN_F389)]{.underline}

Preferences are similarly central to economic theories.
[[\[FN390\]](#Document1zzFN_F390)]{.underline} One important difference
is that while economists have, for decades, complacently assumed the
actuality of their pre-theoretic concept of preferences, social
psychologists have, for nearly a century,
[[\[FN391\]](#Document1zzFN_F391)]{.underline} painstakingly applied
scientific methods to test and better understand their concept of
attitudes.

Economists assume preferences are stable and exogenous\--by which they
**\*86** essentially mean dispositional.
[[\[FN392\]](#Document1zzFN_F392)]{.underline} What social psychologists
have learned about attitudes by studying them reveals attitudes are
malleable and, for the most part, endogenously determined\--by which we
mean internally and externally situational.

Before describing the situational nature of attitudes, it is worth
highlighting that even social psychologists initially believed or
expected to find that there was a dispositional \"there\" there. For
example, Allport, in 1935, defined \"attitude\" as \"a mental and neural
state of readiness, organized through experience, exerting a directive
and dynamic influence upon the individual\'s response to all objects and
situations with which it is related.\"
[[\[FN393\]](#Document1zzFN_F393)]{.underline} In 1948, Krech and
Crutchfield wrote \"\[a\]n attitude can be defined as an enduring
organization of motivational, emotional, perceptual, and cognitive
processes with respect to some aspect of the individual\'s world.\"
[[\[FN394\]](#Document1zzFN_F394)]{.underline} Those definitions reflect
an old, now largely rejected, version of attitudes\--as \"involving
beliefs, feelings, and dispositions to act.\"
[[\[FN395\]](#Document1zzFN_F395)]{.underline}

b\. The Modern View\--Neither Stable nor Causal

It has only been through extensive social scientific efforts to pin them
down that social psychologists have come to discover just how
situationally contingent attitudes really are:

When one looks at those studies that have attempted directly to compare
verbal expression of attitude towards a group or issue with other
attitude-relevant behaviours, a rather confused picture emerges.
Sometimes the verbal measures provide quite good predictors of the
specific kinds of behaviour under investigation, but very often they
seem to allow no such prediction at all.
[[\[FN396\]](#Document1zzFN_F396)]{.underline}

In response to the \"many examples where measures of attitude and
behaviour fail to correlate, or where correlations are found which are
ambiguous with respect to the direction of causality,\" most social
psychologists have maintained their allegiance to the concept of
attitudes, but changed its definition.
[[\[FN397\]](#Document1zzFN_F397)]{.underline} More specifically,
\"theorists seem to be moving toward a conception of attitudes as
evaluations that are related in complex ways to beliefs, feelings, and
actions. This newer approach allows the question of the relation of
attitudes to behavior, **\*87** for example, to be an empirical rather
than a definitional issue.\"
[[\[FN398\]](#Document1zzFN_F398)]{.underline}

And what the empirical evidence has shown is, first, that \"attitudes\"
as traditionally conceived\--and as they are imagined by most policy
analysts and policymakers\--do not reveal themselves as stable
determinants of human behavior and, second, that exterior situation has
an immense influence over the interior relationship between attitudes
and behavior. As Allan Wicker put it in his summary of the evidence more
than thirty years ago, there exists \"little evidence to support the
postulated existence of stable, underlying attitudes within the
individual which influence both his verbal expressions and his
actions.\" [[\[FN399\]](#Document1zzFN_F399)]{.underline} And, more
recently, Fiske and Taylor summarize the role of situation by asking:

Why should seemingly trivial aspects of a situation have such a clear
impact on people\'s behavior? Why should it matter what you temporarily
access about your past behaviors or beliefs? Situationally induced
salience can put relevant attitudes \... in the mental foreground,
making them more available as guides to action \.... What is salient
defines the situation for the individual, reducing ambiguity and
inconsistency \...; it tells you what should be relevant to your
behavior if you are uncertain of what to do. Finally, when \[your\]
global attitudes \... are made salient, responsibility for behaving
consistently with one\'s attitude will loom large\.... To predict which
cognitions will cohere with behavior, then, one must know which factors
in a situation are salient.
[[\[FN400\]](#Document1zzFN_F400)]{.underline}

Again, the exterior situations interact with our interior
situations\--all outside of our conscious perception and all while we
perceive ourselves to be acting according to our thoughts and
preferences.

To be sure, we have some articulable attitudes. But even those attitudes
are far more situationally contingent than we appreciate. And any
situation in which we report or perceive our attitudes will rarely
correlate with our actual behavior in other situations, or even our
reporting or perception of our attitudes in other situations. Our
failure to appreciate the role of our interior situations further
interferes with our dispositionist expectations that attitudes will
define our behavior. The following subsection offers a more thorough,
though still summary, examination of the interior situation giving shape
to our attitudes.

c\. The Emerging View\--Implicit and Automatic

While social psychologists first believed attitudes to be outside the
reach of **\*88** measurement, they have come to see that
\"attitudes\"\--an individual\'s assessment of an object along a
favorable-unfavorable dimension\--could be measured and did influence
people\'s feelings, cognitions, and behavior. Again, attitudes were long
a cornerstone concept in social psychology, and their measurement,
through a variety of self-report mechanisms such as feeling thermometers
and questionnaires, became one of the major preoccupations of social
psychology. But emerging out of those then-revolutionary views of
attitudes as measurable is what today some describe as \"an orthodoxy,\"
which has made difficult the recognition of a less visible (more
situational), but still measurable, type of attitude.
[[\[FN401\]](#Document1zzFN_F401)]{.underline}

In the last several years, social psychologists have encountered \"new,
previously undetected forms of attitudes\" that \"elude conscious
awareness, seem oblivious to conscious intention, and defy conscious
control.\" [[\[FN402\]](#Document1zzFN_F402)]{.underline} Perhaps
because of the recentness of the findings, they go by a number of names,
including implicit attitudes, \"automatic thoughts and feelings,\"
\"unconscious thoughts,\" \"unconscious social cognition,\"
[[\[FN403\]](#Document1zzFN_F403)]{.underline} and \"automatically
activated attitudes.\" [[\[FN404\]](#Document1zzFN_F404)]{.underline}
Whatever their name, the phenomena are revealed through new methods
that, very loosely, involve measuring the speed and strength with which
people automatically make associations between objects and attitudes.
[[\[FN405\]](#Document1zzFN_F405)]{.underline} Through such work,
psychologists have found that the evidence regarding our worst
tendencies\-- including stereotyping and prejudice\--suggests that they

operate via the routine mechanisms of perception, memory,
categorization, and decision-making. Just as those processes operate
outside awareness, control, intention, and self-reflection, so do their
more value-laden versions concerning stereotypes and attitudes about
individual humans and the social groups to which they belong.
[[\[FN406\]](#Document1zzFN_F406)]{.underline}

The best evidence further indicates that \"our minds contain knowledge
about social groups (stereotypes) and attitudes (prejudice) toward
them\--whether we want to or not.\"
[[\[FN407\]](#Document1zzFN_F407)]{.underline} And that knowledge and
those attitudes are influencing us even if we don\'t want them to, and
despite our best conscious efforts to prevent it.
[[\[FN408\]](#Document1zzFN_F408)]{.underline} The findings are so
disturbing that even social psychologists have strongly resisted them
\"with a passion atypical of the sterility of normal academic **\*89**
exchange.\" [[\[FN409\]](#Document1zzFN_F409)]{.underline}

The work on these newly discovered forms of attitudes is a collaborative
effort among numerous social psychologists at nearly as many
universities. [[\[FN410\]](#Document1zzFN_F410)]{.underline} Rather than
recount that effort here, we will simply highlight some of the key
findings that have come out of the work. First, researchers have found
that people have stronger \"automatic preferences\" for groups with
which they associate themselves\--what social-psychologists call
\"in-groups\"\--than they do for \"out-groups,\" or people with whom
they do not associate. Those findings are not uniform, however, for it
has also been demonstrated that individuals who identify with groups
that are dominant within the larger culture have stronger automatic
in-group preferences than do individuals from less dominant groups. So,
for example, white Americans appear to have a stronger implicit in-group
preference than do African-Americans. Further, stereotypical
\"knowledge\" about different social groups, whether more or less
dominant, is activated automatically\--such that, for example, the terms
\"black\" and \"athlete\" are implicitly associated.
[[\[FN411\]](#Document1zzFN_F411)]{.underline}

Perhaps the most staggering insight of the implicit attitudes research
is that the human mind does all this\--conjuring stereotypical and
dubious associations that give shape to our attitudes\--outside our
conscious awareness. What is more, as is true with every situational
phenomenon, our implicit attitudes are subject to external situational
influence. The very studies evoking implicit attitudes demonstrate that
point. Such studies have also demonstrated that exposure to unfamiliar
or counter-stereotypical associations can temporarily reshape implicit
attitudes; with the right situational manipulations, for example,
subjects begin to automatically associate the terms \"strong\" and
\"female,\" or \"black\" and \"good.\"
[[\[FN412\]](#Document1zzFN_F412)]{.underline} In sum, the important
research indicates some of the ways that our attitudes are formed and
altered by forces beyond our conscious awareness.
[[\[FN413\]](#Document1zzFN_F413)]{.underline}

The scholars working in the burgeoning field of implicit attitudes admit
to being quite \"taken aback\" by many of their own findings.
[[\[FN414\]](#Document1zzFN_F414)]{.underline} And, in reconciling
**\*90** that surprise with their findings, they emphasize, as do we
(though in slightly different terms), the parallel between our inability
to see highly influential features of our exterior situations and our
inability to see such features of our interior situations:

Just as social psychology\'s demonstrations of the power of social
situation revealed something stunning and even jarring about the
ordinary nature of horrific behavior, research on unconscious social
cognition has the potential to nudge us similarly toward unappealing
conclusions about ourselves: that the stuff in our minds about ourselves
and other humans, about our social groups and theirs, can be activated
automatically and that once activated they can potentially produce
psychologically and socially beneficial and harmful effects.
[[\[FN415\]](#Document1zzFN_F415)]{.underline}

That we resist recognizing or accepting such \"stunning and even
jarring\" evidence about \"the stuff in our minds\" is in part the
consequence of another element of our interior situations: motivation.

2\. Motivation

To more completely understand our attitudes, such as they are, it is
necessary to understand the role of motivation. Social psychologist
Bernard Weiner claims that \"motivation lies at the heart, the very
center, of psychology.\" [[\[FN416\]](#Document1zzFN_F416)]{.underline}
In the previous section we cited social psychologists claiming that
\"attitudes\" were at the core of their discipline.
[[\[FN417\]](#Document1zzFN_F417)]{.underline} And, as this section will
help show, the two claims are not necessarily inconsistent, for
motivations may well be at the heart of our attitudes.

We might put the point slightly differently and claim that motivation
lies at the heart of our interior situations. We have already suggested
some of the effects of motivation on our cognitions. For instance, we
argued that people were motivated to construe their world in a way that
confirmed their knowledge structures, theories, or schemas.
[[\[FN418\]](#Document1zzFN_F418)]{.underline} But we can go further.
Motivations influence not only what \"data\" we focus on and how we
interpret ambiguous evidence, but also which knowledge structures,
theories, or schemas we unconsciously embrace to begin with.
[[\[FN419\]](#Document1zzFN_F419)]{.underline} Motivations likewise have
a significant influence on our attitudes\--what our attitudes are at any
given moment and how tenaciously we will resist altering them. And
motives, like attitudes, are easily mistaken as \"preferences\" inasmuch
as they \"are the motor for behavior.\"
[[\[FN420\]](#Document1zzFN_F420)]{.underline}

**\*91** It is not just that our minds have a mind of their own (as the
previous analysis has indicated), it is also that those inner minds have
a motivation\--actually, a whole set of motivations\--of their own.
[[\[FN421\]](#Document1zzFN_F421)]{.underline} In this section, we will
describe a sample of findings concerning those motivations and some of
the interior tensions caused by their coexistence.

Motivations are catalogued and categorized in different ways by
different scholars. In our review of the relevant literatures, four
general types of motivations stand out as particularly significant
aspects of the situational character\'s inner life: (a) the motive to
understand; (b) the motive to self-affirm; (c) the motive to simplify;
and (d) the motive to cohere.
[[\[FN422\]](#Document1zzFN_F422)]{.underline} As our review of more
specific motives will reveal, motivations can be, and often are, in
tension with one another. The motive to understand, for example, is
often in tension with the motives to self-affirm and simplify. The
motive to cohere, then, pushes us to reconcile our conflicting
motivations by altering exteriorly and interiorly our cognitions,
attitudes, or behavior. But we are getting ahead of ourselves. It aids
comprehension to first review one motive at a time.

a\. Motive to Understand

Social psychologists, as indicated above, sometimes describe people as
intuitive scientists because of people\'s strong desire to understand
their worlds. [[\[FN423\]](#Document1zzFN_F423)]{.underline} That motive
makes sense: satisfying it helps people to predict and control their
world (or at least enjoy the comfort that comes from believing they
can). [[\[FN424\]](#Document1zzFN_F424)]{.underline}

In light of that explanation, it may seem more accurate to describe the
motive as one of prediction and control, a motive that reveals itself as
a desire to make sense of the world. To be sure, the motive to control
is a robust one\--though it will get short shrift in this Article. But
social psychologists have not framed it that way, we suspect, because
people\'s desire to understand seems often to exist, **\*92** at least
in muted form, even when their prospect of controlling or even
predicting is remote. [[\[FN425\]](#Document1zzFN_F425)]{.underline}

Consider a pair of experiments providing a pure illustration of the
motive to understand. In one study, subjects were shown from zero to
three pictures of different body parts (hands, feet, and torso) of a man
or woman. After viewing all of the selected pictures, the subjects were
given the choice of either seeing a picture of the entire person or
receiving a small sum of money as a \"bonus payment.\"
[[\[FN426\]](#Document1zzFN_F426)]{.underline} Those subjects who saw
more body parts preferred to see the picture of the entire person.
[[\[FN427\]](#Document1zzFN_F427)]{.underline} To be clear, subjects had
no obvious personal stake in seeing the picture other than a desire to
\"see the full picture\"\--a desire to know.

In the second experiment, subjects in one group were told that they
would be asked ten geography questions.
[[\[FN428\]](#Document1zzFN_F428)]{.underline} Then, prior to hearing
the geography questions, the subjects were asked if they would prefer to
receive, after completing the test, a candy bar or the answers to the
questions. A second group of subjects was first asked the questions, and
then given the choice between the candy bar and the answers. As the
experimenters predicted, three-quarters of the subjects who were offered
the choice before being asked the questions chose the candy
bar\--illustrating the well-known craving for chocolate in the bellies
of the subjects. [[\[FN429\]](#Document1zzFN_F429)]{.underline} However,
in the second group, who actually heard the questions before being
offered the choice, half of the subjects chose to receive the answers
instead. Hearing the questions stimulated the not-so-well-known craving
for understanding in the minds of the subjects.
[[\[FN430\]](#Document1zzFN_F430)]{.underline}

In a quite famous study, Ellen Langer had experimental confederates
approach strangers about to begin making copies at a library copy
machine and ask if they could cut in.
[[\[FN431\]](#Document1zzFN_F431)]{.underline} When the confederates
provided no reason for cutting, saying only \"Excuse me, I have five
pages. May I use the Xerox machine?,\" sixty percent of the subjects
honored the request. When would-be cutters provided a reason, however,
saying \"Excuse me, I have five pages. May **\*93** I use the Xerox
machine because I\'m in a rush?,\" fully ninety-four percent of the
subjects acceded. [[\[FN432\]](#Document1zzFN_F432)]{.underline} Thus,
when subjects were offered a good reason, they were far more willing to
give up their spot. People want reasons.

But what Langer did next revealed even more about our desire to
understand. When her confederates provided a meaningless reason (a
\"placebic\" reason), subjects were just as willing to consent to the
request as they were when the cutters had given a good reason. More
precisely, when asked \"Excuse me, I have five pages. May I use the
Xerox machine because I have to make copies?,\" ninety-three percent of
the subjects acceded. [[\[FN433\]](#Document1zzFN_F433)]{.underline} In
other words, an empty reason can be as effective as a good reason in
situations where both are significantly more influential than no reason.
[[\[FN434\]](#Document1zzFN_F434)]{.underline} People want reasons so
badly that they will sometimes settle for the mere appearance of a
reason. [[\[FN435\]](#Document1zzFN_F435)]{.underline}

Relatedly, the reasons we provide for our own conduct are often
demonstrably inaccurate, even as they seem to confirm our self-concepts
as attitude-driven. [[\[FN436\]](#Document1zzFN_F436)]{.underline} In a
series of experiments, Timothy Wilson and his colleagues have shown
that, far from being stable predictors of behavior, attitudes can be
manipulated simply by prompting people to consider their reasons for
holding them. In a typical study, subjects asked to contemplate their
reasons for liking or disliking a variety of posters (prior to selecting
one to keep) expressed less satisfaction with their choice when
contacted weeks later by phone than did subjects who were not asked to
consider their reasons. [[\[FN437\]](#Document1zzFN_F437)]{.underline}
According to Wilson, that \"introspection effect\" results from the fact
that our reasons are not plucked from a garden of stable attitudes
within us; rather, they emanate from our motive to have reasons, which,
in turn, leads us to focus on the most \"plausible, accessible, and easy
to verbalize\" \"reasons\" available.
[[\[FN438\]](#Document1zzFN_F438)]{.underline}

**\*94** Social psychologists have long recognized that our desire to
make sense of our world is one of our strongest desires. But it does not
operate independently of many other features of our interior situation,
including our other, sometimes-conflicting motives. It is important to
resist the temptation to view those components of the situational
character\'s interior as just discrete and incidental ambivalences in a
dispositional actor\'s preference rankings. After all, the motives we
are discussing here generally operate outside of our conscious
awareness. It is for this reason that we are so easily persuaded by the
illusion of our own articulated reasons, and treat them, unreflectively,
as truly the causal wellspring of our behavior. This habit of
reason-seeking and reason-offering is deeply ingrained in us, running
through unseen canyons of our interior situation, and leaving us
vulnerable to exterior manipulation.

As Ellen Langer\'s simple experiment illustrates, such situational
influences, and the motives behind them, help determine how our motive
to understand is satisfied. There are other interior motives, however,
that also play a role. Our desire for understanding is closely related
to the motive to be correct in our understanding\--the motive to be
accurate (or to perceive ourselves as accurate). That motive can
strongly influence the nature of our mental processes\--for example, the
extent to which we rely on activated knowledge structures.
[[\[FN439\]](#Document1zzFN_F439)]{.underline} When our motive for
accuracy is strong, our minds become more focused, we are more
calculating and diagnostic in our evaluations, and we rely less on
general heuristics. [[\[FN440\]](#Document1zzFN_F440)]{.underline} The
motive to be accurate, however, is not the only thing that drives our
understanding, for our drive for accuracy is often confounded by more
solipsistic ventures supporting a very powerful motive well studied by
social psychology\--the motive for self-affirmation.

b\. Motive to Self-Affirm

At virtually every level of their existence, people tend toward
self-affirming attitudes and cognitions. There are different ways of
describing this motive. Susan Fiske summarizes it by stating that
\"\[a\]ll else being equal, people basically like to feel good about
themselves \...; they like to feel that they are good and lovable.\"
[[\[FN441\]](#Document1zzFN_F441)]{.underline} David Dunning stresses
that \"\[i\]f there is any theme that emerges again and again in social
psychology it is that the \[situational character\] **\*95** is a
prideful one.\" [[\[FN442\]](#Document1zzFN_F442)]{.underline}

This motivation can be at odds with, and often overwhelms, accuracy
motives. Research has shown that our pride is routinely misplaced, and
that the impressions we form and maintain of ourselves have been widely
demonstrated to be more self-affirming than accurate. Our
self-conceptions are thus \"falsely positive.\"
[[\[FN443\]](#Document1zzFN_F443)]{.underline}

The motive for self-affirmation is aided by the confirmatory bias. We
entertain a view of ourselves that is favorable, and in our mental life
we search for and highlight evidence that will tend to confirm rather
than disprove that view. [[\[FN444\]](#Document1zzFN_F444)]{.underline}
And we do that with respect to our individual selves, the groups with
which we identify, and the systems of which we are part.

i\. Individual

On the individual level, \"research \... shows that people\[\] \... are
heavily influenced by the need to feel good about themselves and to
maintain self-esteem \.... \[R\]esearch suggests that the impressions
that people hold of themselves may be falsely positive and somewhat
exaggerated with respect to their actual abilities, talents, and social
skills.\" [[\[FN445\]](#Document1zzFN_F445)]{.underline} People are
\"eager to affirm \... \[that they are\] competent, masterful,
successful, and moral indvidual\[s\].\"
[[\[FN446\]](#Document1zzFN_F446)]{.underline}

As those conclusory statements suggest, there are innumerable studies
revealing people\'s tendency to hold unrealistically rosy
self-conceptions. This is why this motive is described as the motive to
self-affirm\--not a motive to understand oneself accurately, but rather
a desire to feel good about oneself. In one study, researchers led a
group of subjects to believe that extroversion was correlated with
success and a second group to believe that introversion was.
[[\[FN447\]](#Document1zzFN_F447)]{.underline} Later, the first group of
subjects reported themselves to be extroverts, and the second group
claimed to be introverts. No matter the requisite personality trait,
then, people found a way to see (or portray) themselves as poised for
success. The mechanism making those optimistic beliefs possible were, of
course, hidden below the horizon of interior situations. According to
the scholars conducting the experiments, the mechanism is similar to
confirmatory bias, but here the relevant data was found in each
person\'s memory of herself. The motive to be viewed as successful made
salient those memories of extroversion or introversion that could
confirm the desired personality trait.

**\*96** The tendency towards optimism is ubiquitous in human
self-perception. Neil Weinstein has devoted a significant portion of his
impressive career to showing how people perceive themselves to be less
likely than others to experience negative outcomes and more likely than
others to experience positive outcomes.
[[\[FN448\]](#Document1zzFN_F448)]{.underline} College students are six
times more likely to think that they will have above average job
satisfaction than below average and six times more likely to think they
have an above average chance of being homeowners than a below average
chance. [[\[FN449\]](#Document1zzFN_F449)]{.underline} Ninety-seven
percent of consumers think they have a better-than-average ability to
avoid power mower or bicycle accidents.
[[\[FN450\]](#Document1zzFN_F450)]{.underline} And ninety percent of
drivers consider themselves to be better-than-average drivers.
[[\[FN451\]](#Document1zzFN_F451)]{.underline} Our optimism bias and
perception of a just world may even transcend to the heavens\--
literally. Polling shows that while 90% of Americans believe in heaven,
only 73% believe in hell. As Weinstein might predict, even some
believers skew their odds for a positive outcome in the afterlife: a
full 94% of those who believe in heaven think they have
fair-to-excellent chances of going to heaven, while a paltry 6% of those
who believe in hell think they\'ll end up in hell.
[[\[FN452\]](#Document1zzFN_F452)]{.underline} Although proving those
estimates wrong is, at this stage of our research, difficult, they do
seem a bit skewed in the direction that we would predict. Whether in
avoiding accidents or achieving success here or hereafter, we humans
tend to be optimistic souls.

For our purposes, and perhaps for legal theory generally, one of the
most revealing manifestations of our self-affirming tendencies is what
social psychologists call the illusion of control: People believe
themselves to exercise more control over their environments than they
actually do\--an illusion that itself reflects an underlying motive to
exercise control. In one demonstration of that illusion, Ellen Langer
and Jane Roth asked subjects to predict the outcome of a series of
thirty coin tosses. [[\[FN453\]](#Document1zzFN_F453)]{.underline} All
subjects were led to believe that they guessed correctly fifteen times
(half the guesses), but some subjects were led to believe that their
first four guesses were correct, while others were led to believe that
four of their first five were incorrect. Those with early success rated
their own overall performance more highly than did the less initially
successful subjects **\*97** and were similarly biased in predicting
their likely performance in future tosses. Significantly, subjects in
the first group tended to see themselves as good (not lucky) guessers
and subjects in the second group tended to see themselves as bad (not
unlucky) guessers. In other words, subjects in both groups fell easy
prey to the fundamental attribution error\--failing to see the role of
randomness in the situation and wrongly attributing perceived success or
failure to their skill dispositions. The illusion of control is revealed
not only in the tendency to dispositionalize the random event, but also
in the fact that forty percent of all the subjects believed that they
could enhance their performance at guessing random outcomes through
practice, and twenty-five percent felt that their performance would be
hampered by distraction. [[\[FN454\]](#Document1zzFN_F454)]{.underline}

In a second demonstration of the illusion, Langer gave office workers
tickets for a random lottery.
[[\[FN455\]](#Document1zzFN_F455)]{.underline} Some of the workers were
able to choose their ticket, while others had their ticket assigned. All
workers were then given the option of trading their ticket in for
another ticket in a different lottery with better odds. Langer found
that the first group of subjects (those who had chosen their ticket)
were significantly less likely to exchange their ticket than were the
second group of subjects. As she concluded, subjects were apparently
under the illusion that by choosing their tickets they had increased
their chances of winning the first lottery. Put differently, they
believed that their choice had given them some control over what was, in
fact, random\--that is, situational.

Some social psychologists have suggested that such self-affirming
motives may contribute to the exterior and interior situational
blindness that we have been highlighting. Thus, one can interpret
through that lens the situational blindness exhibited in the study
discussed above, [[\[FN456\]](#Document1zzFN_F456)]{.underline} in which
subjects were told about the Milgram experiments and then asked to
estimate how they would have behaved as one of Milgram\'s subjects. Most
individuals believed that they would not have administered powerful
shocks, a result that reveals the hidden influence of both exterior
situation (pressures to conform) and interior situation (motive to
self-affirm). As Mahzarin Banaji recently explained:

\[T\]he discovery that \... the immediate situation may have \[its\]
influence outside consciousness is hard to contend with \.... The
inability to draw the parallel to oneself, to realize the possible lack
of control over one\'s thoughts and actions is stark and, I would add,
psychologically interesting in its own right. It is difficult to see the
power of the situation in oneself when the **\*98** outcome is
unpalatable, just as it is difficult to see the influence of any cause
that is not immediate. [[\[FN457\]](#Document1zzFN_F457)]{.underline}

As with the other elements of our interior situation, the illusion of
control\--and the underlying motive for control\--renders us susceptible
to manipulation through our exterior situations. We tend to accept the
frame of those who tell us we are in control, even when our control is
limited. [[\[FN458\]](#Document1zzFN_F458)]{.underline} The illusion of
control reveals how our motives for self-affirmation often coincide with
our dispositionism. [[\[FN459\]](#Document1zzFN_F459)]{.underline}
Indeed, the view of our \"self\" that we each seem to be attempting to
affirm is very often that of a dispositional actor.
[[\[FN460\]](#Document1zzFN_F460)]{.underline}

Sometimes, though, our self-affirming motives can conflict with our
dispositionism\--that is, there are instances, such as following a
failed or disappointing performance, that we look to situation for
causal attributions in order to avoid the disheartening conclusion that
that failure reflected our own dispositional shortcomings.
[[\[FN461\]](#Document1zzFN_F461)]{.underline} One experimenter
interviewed politicians several months after an election. The winners
attributed their performance largely to dispositional factors such as
hard work, perseverance, skill, planning, and strategy. The losers, on
the other hand, looked to situation, and attributed their performance to
the politics of the district, their opponents\' name recognition, to
their lack of money, and so on.
[[\[FN462\]](#Document1zzFN_F462)]{.underline} The groups thus revealed
the two-sided nature of the self-serving attributions: \"a
\'self-enhancing bias\' (attributing success to internal relative to
external causes) and a \'self-protecting bias\' (attributing failure to
external relative to internal causes).\"
[[\[FN463\]](#Document1zzFN_F463)]{.underline}

Our desire for self-protection is so great that people often engage in
situational **\*99** manipulation in order to \"self-handicap\" prior to
accepting a challenge. [[\[FN464\]](#Document1zzFN_F464)]{.underline} In
one intriguing experiment purportedly about the performance effects of
certain drugs, college students were given a choice to take either
performance-enhancing drugs or performance-inhibiting drugs before
performing either a simple or a difficult task. The group facing the
simple task opted for the performance-enhancing drugs. The group facing
the difficult task tended to prefer the performance inhibiting drugs.
The second group seemed to want an excuse for their anticipated failure.
[[\[FN465\]](#Document1zzFN_F465)]{.underline} In circumstances where we
are uncertain of our own ability to perform well, we will often
unconsciously create situational factors (or the appearance of such
factors) on which we can hang responsibility for our failures.
[[\[FN466\]](#Document1zzFN_F466)]{.underline}

Indeed, one common way of avoiding threats to our self is to avoid the
situation altogether in which such a threat might occur. For instance,
we might avoid the threat posed by an exam that purports to measure our
intelligence by avoiding the test altogether. More subtly, we can temper
the threat by altering our attitudes about its significance. If, for
example, we\'re worried about how well we will perform on such an exam,
we may subconsciously find a way to make \"book smarts\" an unimportant
feature of our identity. [[\[FN467\]](#Document1zzFN_F467)]{.underline}
By such handicapping\--disengagement and disidentification\--we protect
not just the image that others have of us, but also our image of
ourselves. [[\[FN468\]](#Document1zzFN_F468)]{.underline} Indeed, the
subjects in the study discussed above self-handicapped to the same
extent regardless of whether they believed anyone would know how well
they performed the task. [[\[FN469\]](#Document1zzFN_F469)]{.underline}
That we manage to fool even ourselves,
[[\[FN470\]](#Document1zzFN_F470)]{.underline} reveals just how well
hidden our motivations **\*100** are within our interior situations.
[[\[FN471\]](#Document1zzFN_F471)]{.underline}

ii\. Group

Individuals engage in the same kind of motivated reasoning regarding the
institutions, groups, and situations with which they identify as they do
with regard to themselves. This is hardly surprising. Our motivation to
maintain a positive view of ourselves encourages us to maintain a
positive view of the groups with which we are affiliated. And so, as a
general matter, we do. Social psychologists have referred to that
tendency (which is popularly known as everything from \"patriotism\" to
\"racism\") as the \"ethnocentric\" or \"group-serving\" bias.
[[\[FN472\]](#Document1zzFN_F472)]{.underline}

The section on knowledge structures above
[[\[FN473\]](#Document1zzFN_F473)]{.underline} discussed at length
various forms of groupism\--the human \"tendency to view the world in
terms of \'we\' and \'they,\' with at least a working hypothesis that
\'we\' are somehow better and more deserving\" than \"they.\"
[[\[FN474\]](#Document1zzFN_F474)]{.underline} Our emphasis in that
section was on how knowledge structures\--concepts, schemas, categories,
stereotypes, and so on\--influence our cognitive processes and
perceptions. But a review of that section should make clear that coupled
with the \"we-they\" schema was a \"good-bad\" motivation.
[[\[FN475\]](#Document1zzFN_F475)]{.underline} When the Rattlers and
Eagles food-fought with out-group members and uncritically embraced
in-group members, a strikingly powerful and easily activated motivation
was at work. [[\[FN476\]](#Document1zzFN_F476)]{.underline} \"Merely
telling \[people\] that they are now a group leads them to want to
reward their own group more, and to see its members as having better
personalities, nicer looks, less responsibility for any failures, and
more responsibility for successes.\"
[[\[FN477\]](#Document1zzFN_F477)]{.underline} The self-serving
attributional biases of individuals also appear on the group level as
\"in-group members \[tend\] to attribute internal \[or dispositional\]
causes to positive in-group and negative out-group behavior and to
attribute negative in-group behavior and positive out-group behavior to
external \[or situational\] causes.\"
[[\[FN478\]](#Document1zzFN_F478)]{.underline}

**\*101** iii. System (and World)

Our self-affirming motivations extend beyond our self and group
identifications. Just as each of us is motivated to believe that \"I am
good,\" and, with respect to our groups, \"we are good,\" so too are we
motivated to believe that \"our world is good.\"

In a pioneering project within social psychology, Melvin Lerner
demonstrated that people seek to confirm a \"just world hypothesis.\"
Through a series of experiments, Lerner demonstrated that, \"we do not
believe that things just happen in our world; there is a pattern to
events which conveys not only a sense of orderliness or predictability,
but also the compelling experience of appropriateness expressed in the
typically implicit judgment, \'Yes, that is the way it should be.\"\'
[[\[FN479\]](#Document1zzFN_F479)]{.underline} And, yes, \"people get
what they deserve.\" [[\[FN480\]](#Document1zzFN_F480)]{.underline}

In one classic demonstration of the phenomenon,
[[\[FN481\]](#Document1zzFN_F481)]{.underline} subjects watched another
\"subject\" (actually a collaborator on videotape) apparently react with
pain to a series of supposed electric shocks. The Milgramesque shocks
were ostensibly punishments for errors in a human learning experiment.
In one condition, the observers could, in effect, compensate the victim
by reassigning her to a system in which she would earn money rewards for
correct answers instead of continuing to receive electric-shock
punishments for incorrect answers. In a second condition, no alternative
was offered and observers were led to believe that the victims would
continue to be subject to the painful shocks. Thus, in the former
condition observers were able to (and did) restore justice,
[[\[FN482\]](#Document1zzFN_F482)]{.underline} while in the latter
condition they could only observe their cohort\'s suffering.

At the end of the experiment, subjects were asked to evaluate the
victim. In a result that has been replicated in numerous experimental
settings, observers of the second condition, which could not be changed,
tended to disparage the victim, whereas observers of the first
condition, which was subject to improvement, tended to be far more
sympathetic to the victim. According to Lerner and Miller, \"the sight
of an innocent person suffering without the possibility of reward or
compensation motivated people to devalue the attractiveness of the
victim in order to bring about a more appropriate fit between her fate
and her character.\" [[\[FN483\]](#Document1zzFN_F483)]{.underline} In
short, we are motivated to resist a perception of injustice either
**\*102** by restoring the perception of justice or by altering our
perception that an injustice has in fact occurred.

In our effort to maintain our belief in a \"just world\" hypothesis, we
tend to attribute bad outcomes to individual dispositions, because it is
generally more comforting to presume that it is the person who was bad,
rather than the situation. Another chilling, if somewhat dated, study in
this area illustrates that phenomenon.
[[\[FN484\]](#Document1zzFN_F484)]{.underline} Subjects participated in
a simulated jury exercise in which a criminal defendant was said to have
raped one of three victims. The victims had been arrayed along a
continuum of \"respectability\": a virgin (\"most respectable\"), a
married woman (\"respectable\"), or a divorcee (\"least respectable\").
Subjects found the virgin and married woman to be more responsible than
the divorcee for the rape. Presumably, it was easier for subjects to
derogate the divorcee, and to accept that her suffering was compatible
with a just world, than it was for them to accept that the
\"respectable\" married woman and virgin would, in a just world, suffer
such a fate. To maintain their belief in a just world, subjects needed
to find the married woman and the virgin more dispositionally
responsible for the bad outcomes they suffered:

\[T\]he knowledge that innocent, highly respectable females can be raped
was particularly threatening to the subjects\' belief that the world is
just, and to avoid the threat posed by this type of admission, it was
necessary to find fault with the actions of the victim. Thus, the
subjects appear to have tried to convince themselves that the victim was
really not innocent and that she must have contributed, at least in some
small but significant way, to her fate.
[[\[FN485\]](#Document1zzFN_F485)]{.underline}

The same tendency to find fault with the actions of the victim will
exist where the victim is of high social status or personally
attractive. [[\[FN486\]](#Document1zzFN_F486)]{.underline}

Lerner\'s \"just world hypothesis\" has recently been substantially
advanced by contemporary social psychologists who study the operations
and influences of our thinking about the social systems with which we
identify. John T. Jost has, with numerous collaborators, found that
across individuals, and across many **\*103** kinds of social groups,
there is a powerful motive to embrace and justify existing social
systems. [[\[FN487\]](#Document1zzFN_F487)]{.underline} According to the
theory they have developed and tested, people have a strong desire to
\"justify and rationalise the way things are, so that existing social
arrangements are perceived as fair and legitimate, perhaps even natural
and inevitable.\" [[\[FN488\]](#Document1zzFN_F488)]{.underline} The
motive is so strong that it is often pursued even when doing so
conflicts with our other self-affirmation motivations.
[[\[FN489\]](#Document1zzFN_F489)]{.underline}

It is hardly surprising that individuals who enjoy high social status
want to justify the system that supports and maintains that status.
Legitimating the system legitimates their own success. But here is the
surprising part\--low-status individuals also engage in system
justification, particularly when that system is under threat. And doing
so often leads them to hold more positive attitudes towards high-status
individuals than they hold of themselves or members of their own group.
In other words, as strong as our motives may be to affirm ourselves or
our groups, they can take a back seat to our desire to legitimate the
social, political, and economic status quo\--to believe, that is, that
our social situation is just.

There is a significant and growing body of evidence demonstrating
people\'s strong incentive to affirm the status quo. In one experiment,
for example, Jost and his colleagues identified distinct groups of
high-status and low-status Jews in Israel, the former represented by the
politically and economically elite Ashkenazi Jews of European ancestry,
and the latter by the much less powerful and poorer Sephardic Jews of
Middle Eastern and African descent.
[[\[FN490\]](#Document1zzFN_F490)]{.underline} The groups answered
questions about a range of social issues confronting Israel and about
the dispositional qualities of social groups in Israel. Two different
versions of the questionnaire were used. In the first respondents were
primed with a description of the state of Israeli society that was \"low
threat\"\--it described the current state of affairs in Israel as
\"good\" and prospects for the future as **\*104** \"hopeful.\" In that
version, when responding to the questions about social groups, high- and
low-status Jews exhibited mild in-group favoritism. Members of each
group rated their own group more positively on traits such as
intelligence, ambition, responsibility, work-ethic, and open-mindedness.
[[\[FN491\]](#Document1zzFN_F491)]{.underline} In the second version of
the questionnaire, respondents were primed with a \"high-threat\"
description of Israeli society, one in which the present state of
affairs was described as \"precarious\" and prospects for the future as
\"bleak.\" In that version, the high-status Ashkenazi Jews continued to
exhibit an in-group preference. But this time, with the social system
under threat, the low-status Sephardic Jews exhibited an out-group
favoritism, rating Ashkenazi Jews higher than their own group.
[[\[FN492\]](#Document1zzFN_F492)]{.underline} Apparently, where the
social system itself is under threat, the motive to affirm the system
can override the desire to affirm even our own groups.
[[\[FN493\]](#Document1zzFN_F493)]{.underline}

System-justification theory has led to numerous hypotheses. Among them
is the prediction that, under certain circumstances, \"members of
disadvantaged groups should have the strongest system justification
needs.\" [[\[FN494\]](#Document1zzFN_F494)]{.underline} That hypothesis
has found support from several social psychological studies and from
data collected for other purposes. Indeed, \"evidence from five US
national surveys indicat\[es\] that members of disadvantaged groups show
enhanced levels of system justification.\"
[[\[FN495\]](#Document1zzFN_F495)]{.underline} For instance,
\"low-income Latinos were more likely to believe that \'the government
is run for the benefit of all\' than were high-income Latinos\"
[[\[FN496\]](#Document1zzFN_F496)]{.underline} and low-income Americans
and African Americans were both \"more likely than others to believe
that economic inequality is legitimate and necessary.\"
[[\[FN497\]](#Document1zzFN_F497)]{.underline}

What is behind the system-justification motive? Probably the best
explanation at this point stems from the \"dissonance reduction\"
tradition. System affirmation, on this account, serves a palliative
function both for high- and low-status individuals, soothing what would
otherwise be irreconcilable tensions about one\'s social condition:

\[S\]ystem justification, as a set of beliefs and assumptions about the
existing social system, serves a stress-preventing function by allowing
the individual to feel that the social context is stable,
understandable, predictable, consistent, meaningful, and just \.... We
propose that in order to minimize or avoid certain kinds of stress, such
as the stress that comes from perceiving that one is a victim of
discrimination, people are willing to pay other psychological costs,
such as those that follow from blaming themselves for their own
**\*105** misfortune \.... It seem\[s\] to offer some measure of
consolation to those who are disadvantaged as well as advantaged.
[[\[FN498\]](#Document1zzFN_F498)]{.underline}

There is another way of putting this: We dispositionalize, and attribute
injustice to individual dispositional inadequacies or differences, in
order to avoid the disconcerting possibility that our situations are
unjust and, in particular, that our own suffering or disadvantage
reflects system-wide injustice. Thus, in one study, \"poor people
reported more positive emotion, less guilt, and greater satisfaction
when they felt responsible for their situation then when they made
external (system-blame) attributions for their poverty.\"
[[\[FN499\]](#Document1zzFN_F499)]{.underline}

For our purposes, one particularly important finding of
system-justification research concerns the pivotal role of stereotyping
as a legitimating device. Jost and Banaji argue that system
justification theory predicts not only when stereotypes will emerge, but
also what form stereotypes will take.
[[\[FN500\]](#Document1zzFN_F500)]{.underline} Because the motive is to
protect the coherence of the system, the system-justification motive
generates stereotypes of low-status groups that attribute the group\'s
predicament to the group\'s dispositions, rather than to the situation.
The dispositionalizing stereotypes need not be negative. Aaron Kay and
John Jost have identified a series of complementary, positive gender and
class stereotypes (e.g. that women are kind and gentle while men are
assertive and strong, and that poor people are happy and honest while
rich people are miserable and dishonest) that increase support of the
status quo without requiring victim derogation.
[[\[FN501\]](#Document1zzFN_F501)]{.underline} Through negative and
positive dispositionalizing stereotypes, an unjust system can be
plausibly perceived as a meritocracy.
[[\[FN502\]](#Document1zzFN_F502)]{.underline} And thus,
system-affirmation is an additional influence entrenching our
dispositionism. [[\[FN503\]](#Document1zzFN_F503)]{.underline}

**\*106** iv. Summary

In a wide variety of ways, we humans tend to hold self-affirming beliefs
and reach conclusions that at some level we are motivated to hold, while
at the same time we under-appreciate the motives or that tendency,
particularly in ourselves. Each of those motivations reflects and
enhances our dispositionism and our reluctance to appreciate the
situation. In other words, self-affirming motivations, hidden out of
sight and out of \"mind\" in our interior situation, wield tremendous
influence over our sense of ourselves, the groups to which we belong (or
do not belong), and the systems in which we live.

c\. Motive to Simplify

The simpler the better\--it is difficult to think of a context where
that axiom does not apply. Unsurprisingly, the same is true of our
social theories. We prefer hypotheses that are simple, and we are
motivated to bolster such theories and defend them against more complex
alternatives. [[\[FN504\]](#Document1zzFN_F504)]{.underline} We have
already provided substantial evidence of this motive. Our discussions of
heuristics and knowledge structures suggest that such cognitive
tendencies and structures result, at least in significant part, from
that motive\--we seek simple cognitions and schemas because the
situation of our minds is such that they operate under scarce capacity,
cognitively, temporally, and conceptually. People thus generally employ
a kind of lay version of the celebrated principle known among
professional scientists as Occam\'s Razor: causal explanations with
fewer assumptions are to be preferred to those with more. Similarly, we
prefer simple explanations, those that can explain the most with as
little complexity as possible.
[[\[FN505\]](#Document1zzFN_F505)]{.underline} Because we discussed
several manifestations of this motive above, we will, for the sake of
simplicity, offer no more examples. But a few comments about the
interaction of this motive with others seem in order.

The simplification motivation may be congruent with\--and may even
further\-- some of our other motives, such as our motive for
understanding. Yet it is in obvious tension with other basic motives,
such as our motive to be accurate. Our too-simple interpretive and
analytic habits often keep us from accurately assessing much about our
environs and ourselves. Somewhat less obviously, this conflict between
the motive for simplicity and the motive for accuracy may spill over and
cause discord for our motive of self-affirmation. Those basic motives
[[\[FN506\]](#Document1zzFN_F506)]{.underline} then can conflict with
each other. That difficult mixture of motives is **\*107** held together
by a yet another powerful motive\--the motive to cohere.

d\. Motive to Cohere

\"One might say that this paradox\--to be realistic, and at the same
time be guided by high goals\--lies at the heart of the problem of
morale \....\" \~ Kurt Lewin
[[\[FN507\]](#Document1zzFN_F507)]{.underline}

We humans seek explanations that are coherent, that we can make sense
of, and that can be supported by reasons.
[[\[FN508\]](#Document1zzFN_F508)]{.underline} This coherence motive
animates the relationship and tradeoff among motives. Because we value
coherence, the desire to see it in ourselves dovetails with our motive
for self-affirmation. That powerful driving force in our self-conception
has figured prominently in social psychological research. Inquiry into
\"cognitive dissonance,\" for example, has been a mainstay of the field
for decades. [[\[FN509\]](#Document1zzFN_F509)]{.underline} Often it is
the case, as we have already suggested, that our motivations are in
conflict. Though motivated to view ourselves positively, our behavior
can pose problems for that self-conception. There can be many reasons
for such dissonance\--not least of which is the fact that we are
dispositionist situational characters.

While social psychologists debate some of the details of the cognitive
dissonance dynamic, [[\[FN510\]](#Document1zzFN_F510)]{.underline} it is
the basic pattern, about which most agree, that best illustrates the
dispositional illusion. The dispositionist sees behavior as reflecting
little more than thinking, preferring, and willing. From that
conception, the dissonance can be eliminated by bringing behavior into
line with those interior elements. But it can also be, and commonly is,
eliminated, by bringing the latter into line with the former.
[[\[FN511\]](#Document1zzFN_F511)]{.underline} That basic challenge to
dispositionism\--that our behavior influences our beliefs and
attitudes\--has been a recurring theme in the cognitive dissonance
literature: \"Regardless of the exact motivational underpinnings of
dissonance, the evidence clearly indicates that attitudinally discrepant
actions can result in a reanalysis of the reasons why a person engaged
in a certain behavior (or made a certain choice), and cause a person to
rethink the merits of an attitude object.\"
[[\[FN512\]](#Document1zzFN_F512)]{.underline} That subconscious task
can be accomplished in a myriad of ways, from changing our opinions
outright to more subtly trivializing **\*108** a belief that is
incongruent with our behavior.
[[\[FN513\]](#Document1zzFN_F513)]{.underline}

The important critical realist lesson here is not just that behavior may
not reflect a preference or belief. That much we have said before when
describing how situation can powerfully influence behavior\--disposition
notwithstanding. The lesson is also that our preferences, such as they
are, are themselves malleable, constructed, and contingent\--subject to
changes in our behavior and in our situation. The malleability of our
attitudes, combined with our sense that attitudes are stable, assists us
in our motive for coherence. The motive for coherence, like the motive
for affirmation, is manifested at several levels, as we next explore.

i\. Individual

One of the earliest and best-known experiments demonstrating our
willingness to alter our attitudes in service of our self-image involved
manipulating subjects to act in a manner contrary to their belief.
[[\[FN514\]](#Document1zzFN_F514)]{.underline} Subjects were first made
to perform a boring task\--moving pegs on a board\--
[[\[FN515\]](#Document1zzFN_F515)]{.underline} and then were requested
to tell other potential \"subjects\" that the task was actually quite
interesting and fun. One group of subjects was paid \$1 and another,
\$20 (a substantial sum in 1959). After describing the task, the
original subjects were then asked about how they in fact felt about the
experiment. Surprisingly, those who were paid \$1 reported finding the
experiment far more interesting than those who were paid \$20.
[[\[FN516\]](#Document1zzFN_F516)]{.underline} In other words, those who
were paid less changed their beliefs about the tedious task,
internalizing their own efforts to persuade subsequent \"subjects.\"
Those who were paid more maintained their original\--and arguably more
accurate\-- belief.

Simpler (dispositionist) models might predict that the less one was paid
the less one would alter her belief about the activity. After all, a
small amount of money would not offer an external signal to suggest, or
incentive to believe, that the activity was worthwhile and worth
embracing as such\--but such a prediction would ignore the motivational
significance of self-justification. The subjects receiving \$20 had a
ready means of reconciling the dissonance between their beliefs and
their words to the third-party. Subjects receiving just \$1, however,
faced a bigger problem. Given the minimal payment, some other **\*109**
method of reconciliation was needed, and a subconscious alteration of
attitudes provided the necessary consonance.
[[\[FN517\]](#Document1zzFN_F517)]{.underline}

Hundreds of experiments have replicated that basic finding.
[[\[FN518\]](#Document1zzFN_F518)]{.underline} People are generally
averse to being dishonest, and will avoid lying without good reason. One
central lesson of the research on motivated reasoning, however, is that
a ready way to avoid lying is to change beliefs rather than behavior.
Dissonance can be induced or introduced into a circumstance of clarity
and consonance, as it was here when the subject was asked to promote the
experiment to another person. In nonexperimental settings such
manipulation can obviously be more serious, sinister, or exploitative.

As a more recent body of work has demonstrated, a change of attitudes is
just one way to respond to a threat to \"one\'s sense of oneself as an
intelligent and decent person.\"
[[\[FN519\]](#Document1zzFN_F519)]{.underline}

Any thoughts and actions that bring to mind valued aspects of one\'s
self-concept can also serve to reestablish one\'s sense of oneself as a
worthy person, even if these are completely unrelated to the
counterattitudinal behavior. For a scientist, self-worth could be
reaffirmed through reading a scientific journal, for a religious person
through prayer, and for an art-lover through a visit to an art gallery.
If, following a counterattitudinal behavior, one is reminded of these
valued aspects of oneself, this will reaffirm one\'s global self-worth
and, therefore, reduce the need to change one\'s attitude in the service
of self-affirmation. [[\[FN520\]](#Document1zzFN_F520)]{.underline}

Instead of changing beliefs or lowering our self-image we can reduce the
salience of local negative self-perceptions by searching globally for
self-affirming counterexamples.
[[\[FN521\]](#Document1zzFN_F521)]{.underline} Or, as Claude Steele
expresses it, \"\[i\]n ego defense, people are concerned with the big
picture \.... It is the war, not the battle, that orients this system.\"
[[\[FN522\]](#Document1zzFN_F522)]{.underline}

This desire to see ourselves in a positive light is an important motive
behind what Lee Ross and his co-authors have dubbed \"naïve
realism\"\--the name **\*110** given to \"three related convictions
about the relation between \[one\'s\] subjective experience and the
nature of the phenomena that give rise to that subjective experience.\"
[[\[FN523\]](#Document1zzFN_F523)]{.underline} First, we naively believe
that we see the world as it really is\--through objective, unfiltered
lenses. Most of us think that we \"get it\" for the same reason that the
vast majority of us believe that we are above average drivers\--it is
self-affirming. Second, it almost goes without saying that anyone else
who is similarly neutral and intelligent will see the world as we
do\--that is, accurately. At times, though, we are confronted with views
that conflict with our own, an experience that creates a kind of
dissonance. That suggests the third tenet of naïve realism. When our
interpretation of a particular situation apparently conflicts with
someone else\'s, something has to give. Because we presume that we see
things as they are, something must be distorting the perceptions of
those who see things otherwise. Social psychological research shows that
an extremely common means of relieving that dissonance is to attribute
the gap between our outlook and theirs to a lack of objectivity on their
part. We assume that there is some dispositional source of their
bias\--lack of intelligence, or laziness, or corruption. To be sure, we
ourselves will admit to having a particular vantage point and set of
experiences that inform our judgment and perspective\--but as it turns
out, our particular background was the path to authentic insight.
[[\[FN524\]](#Document1zzFN_F524)]{.underline}

This is a key source of our biases: we don\'t believe that we are
subject to them (allowing us to trust our own clear vision) and we are
extremely quick to see them in others (allowing us to distrust others\'
obscured vision). [[\[FN525\]](#Document1zzFN_F525)]{.underline} And so
it is that we are quick to see ideological or political bias on the part
of our adversaries and gullibility or vanity on the part of even our
friends and family when they fail to share our worldview.
[[\[FN526\]](#Document1zzFN_F526)]{.underline} And so it is that even
scholars from one field of study are able to write off other fields of
research writing on the same topic. Thus, Richard Posner writes:

Economic theory itself (including the application of the theory to law),
at least when employed for positive rather than normative analysis, has
no political valence\.... \[T\]he sociology of law is, as far as I am
able to judge, entirely **\*111** dominated by scholars of left-liberal
bent. So uniform are their politics that they may unconsciously regard
liberalism (in its modern \"welfare state\" sense) as part of the
definition of their field, disqualifying economics from contributing to
it. [[\[FN527\]](#Document1zzFN_F527)]{.underline}

They are ideologically motivated. I am not.

Naïve realism, in those ways, helpfully reduces the dissonance that we
might otherwise feel and protects our existing perceptions, including
our positive self-image. Unfortunately, it also is a major part of what
renders us biased and vulnerable to manipulation\--precisely what we
like to believe we are not.

It bears noting that a particularly common means of counteracting
dissonance is to attribute other people\'s \"distorted\" vision to their
self-interest, typically a monetary incentive to a vested interest.
[[\[FN528\]](#Document1zzFN_F528)]{.underline} Indeed, it is that
tendency to dispositionalize people with self-interest that makes the
\"boring task\" experiment described above so counterintuitive. When
people are presumed to \"like\" what they find rewarding, it is jarring
to discover that the poorly paid subjects enjoyed rearranging pegs more
than the well-paid subjects. Experiments directly testing this
phenomenon have shown that even people whose behavior reflects attitudes
toward a social policy that are out of sync with their own self-interest
will assume that the behavior of others will reflect attitudes that
correspond with self-interest.
[[\[FN529\]](#Document1zzFN_F529)]{.underline}

In sum, we see bias there, but not here\--and, in either case,
dispositionism. [[\[FN530\]](#Document1zzFN_F530)]{.underline}

ii\. Group

\"\[S\]ocial man lives constantly outside himself and only knows how to
live in the opinion of other\[s\] \....\" \~ Jean Jacques Rousseau
[[\[FN531\]](#Document1zzFN_F531)]{.underline}

**\*112** The situational character is no island. Our motive for
coherence guides not just our own self-conceptions, but also our
conception of ourselves as beings situated among others in groupings,
which in turn provide a powerful guide to our understanding of ourselves
and our world. [[\[FN532\]](#Document1zzFN_F532)]{.underline} We are, of
course, each a member of myriad groups, some more prominent than others
in our self-conceptions, from families, to workplaces, from nations to
townships, from races to genders, from religions to political parties.
Social psychologists have long studied the relationship between the
individual and her group affiliations, and have been particularly
interested in the influence of group identification on the formation and
conception of the self. In the experimental literature, particular
attention has been paid to the relationship and potential for dissonance
between personally held beliefs and beliefs attributed to the group.

In analyzing the coherence motive as it plays out in groups, social
psychologist Philip Tetlock has proposed a view of what we are calling
the situational character as not so much lay scientists or lay
economists striving\--within our limited cognitive budgets\--to
understand the truth of the world around us or to maximize our own
preferences, but rather as lay politicians, striving to situate
ourselves comfortably and coherently among our relevant identity-group
constituencies. We are motivated not only to make sense of our own
behavior to ourselves, but also by the pervasive \"expectation that
\[we\] will be called on to justify \[our\] opinions or conduct to
others.\" [[\[FN533\]](#Document1zzFN_F533)]{.underline} Social
psychologists have found that where our desire for approval is high,
people predictably \"adjust their public attitudes toward the views of
the anticipated audience.\"
[[\[FN534\]](#Document1zzFN_F534)]{.underline} This is understandable
and perhaps unsurprising for a person motivated to maintain a favorable,
and thus self-bolstering, perception of (and approval by) the groups
with which she affiliates. But our motive for coherence runs deeper; we
are not rationally conspiring dispositional actors, scripting our public
performances of belief while, on the interior, maintaining our own
authentic views. To be sure, such public deceptions do occur, but the
deeper tendency documented by social psychologists is to keep our
private beliefs and our public expressions consonant. Tetlock writes:

Attitude shifting becomes psychologically costly to the degree that it
requires compromising basic convictions and principles (stimulating
dissonance) or back-tracking on past commitments (making decision makers
look duplicitous, hypocritical, or sychophantic)\.... \[E\]vidence \...
indicates that when these obstacles have been removed, and the
facilitative conditions are present, attitude shifting serves as a
cognitively efficient and politically expedient **\*113** means of
gaining approval that does not undermine the decision maker\'s
self-concept as a moral and principled being, or his or her reputation
for integrity in the wider social arena.
[[\[FN535\]](#Document1zzFN_F535)]{.underline}

Again, duplicity is not what drives us, but rather blindness to our
interior situations and the divergence between what we see and what we
do not see.

Social scientists have discovered numerous manifestations of our motive
for group coherence. That motive, combined with the self-affirming faith
we place in our own knowledge structures, contributes, for instance, to
a phenomenon that social psychologists have dubbed the \"false
consensus\" effect. [[\[FN536\]](#Document1zzFN_F536)]{.underline} In a
classic demonstration of that effect, subjects were asked if they would
participate in an experiment on different mediums of expression in which
subjects would be required to walk the streets surrounding the
university wearing a sandwich-board placard emblazoned with the slogan:
\"Eat at Joe\'s.\" [[\[FN537\]](#Document1zzFN_F537)]{.underline} After
indicating their willingness to participate, subjects were then asked to
estimate how other people would respond to the same request. The
experimenters found that those who had agreed to wear the sandwich board
estimated that a strong majority, sixty-two percent, of their peers
would do the same, whereas those subjects who declined predicted that
sixty-seven percent would respond as they did.
[[\[FN538\]](#Document1zzFN_F538)]{.underline} This false consensus
effect, a tendency to regard one\'s own views to be commonly held by
others, has been demonstrated by more than a hundred empirical studies,
over a wide range of topics from particular food preferences to broad
political and social policy views.
[[\[FN539\]](#Document1zzFN_F539)]{.underline}

The group-coherence motive combined with dispositionism can yield some
troubling and otherwise perplexing phenomena. Because we are
dispositionists, our perception that certain behaviors are common (or
uncommon) leads us to perceive that the attitudes, preferences and
beliefs of others correspond to that common (or uncommon) behavior.
Because we do not ourselves subscribe to those attitudes, we infer from
others\' behavior that our attitudes are exceptional. That dynamic
contributes to the tendencies known in social psychology as
\"pluralistic ignorance\" and \"false uniqueness.\" Both illustrate the
power of the group coherence motive.

Consider the illustration of the famous \"Princeton drinking study,\"
the signature **\*114** piece in an influential line of work by Deborah
Prentice and Dale Miller. [[\[FN540\]](#Document1zzFN_F540)]{.underline}
Their studies revealed how students misestimated their cohorts\'
attitudes toward alcohol consumption and the gap between those attitudes
and their own. Specifically, most students actually had a rather
negative view of the state of alcohol consumption on the campus, but
incorrectly assumed their fellow students held more positive views.
Almost sixty-six percent of their sample endorsed the view, the second
strictest of five graded options, that \"\[a\]n occasional \'drunk is
okay, as long as it doesn\'t interfere with grades or
responsibilities.\" Less than twenty percent endorsed the two most
permissive gradations. However, when asked to indicate what they though
their collegiate colleagues\' attitudes were towards alcohol
consumption, more than sixty percent selected one of the two most
permissive gradations\--\"\[a\]n occasional \'drunk\' is okay, even if
it does occasionally interfere with grades or responsibilities,\" and
\"\[a\] frequent \'drunk\' is okay, if that\'s what the individual wants
to do.\" [[\[FN541\]](#Document1zzFN_F541)]{.underline} In other words,
the students exhibited significant pluralistic ignorance.
[[\[FN542\]](#Document1zzFN_F542)]{.underline}

Prentice and Miller\'s study did not end there. They also examined how
pluralistic ignorance might itself influence behavior. The bad news was
that some subjects began to alter their own behavior and beliefs to more
closely correspond with their ignorant perceptions.
[[\[FN543\]](#Document1zzFN_F543)]{.underline} Prentice and Miller
attributed that toubling example of self-fulfilling group perceptions to
a basic motive to avoid dissonance with one\'s key constituencies. Once
again, it is crucial to recognize that the subjects were not faking
their new attitudes. These are not rational actors operating within
stable preferences, altering their conduct through clever performance
while remaining true to their core beliefs. These are situational
characters in whom stable preferences and core beliefs are largely an
illusion. Our behavior and attitudes and the behavior and perceived
attitudes of our groups are all mutually constructed and reconstructed
as the situation requires. As each of us looks out at others seeing
disposition and missing situation, we infer attitudes that do not exist.
But, as these studies reveal, our false perceptions can be tragically
powerful as we each seek to bring our own view and behavior into sync
with shared misperceptions. Prentice and Miller \"believe that group
identification is the root cause for many cases of pluralistic
ignorance\--**\*115** that individuals often act of a desire to be good
group members but interpret others\' similarly motivated behavior as
reflecting personal beliefs and opinions.\"
[[\[FN544\]](#Document1zzFN_F544)]{.underline}

The problem of pluralistic ignorance and the motive for group coherence
distorts many social norms and would seem to have significant
implications for policy and law. The dynamic seems to be at work in
creating and reinforcing gender and sex roles.
[[\[FN545\]](#Document1zzFN_F545)]{.underline} It is also behind the
pervasive, dysfunctional classroom dynamic in which students do not ask
questions because they assume that others\' silence suggests they are
themselves alone in their ignorance, thus contributing to the silence
that encourages others to do the same.
[[\[FN546\]](#Document1zzFN_F546)]{.underline} And so it is that even in
most \"learning\" environments, ignorance begets ignorance. Perhaps most
important, a form of pluralistic ignorance seems to animate the precise
shape that our dispositionism takes in Western cultures\--that is, of
individuals devoted primarily to their own material self-interest.
[[\[FN547\]](#Document1zzFN_F547)]{.underline}

Understanding the cycles of ignorance can help us break them. Prentice
and Miller found that spreading the word about what most people thought
about alcohol was more successful in discouraging heavy drinking than
the notoriously ineffective (perhaps counterproductive) approach of
encouraging students to not be moved by peer pressure.
[[\[FN548\]](#Document1zzFN_F548)]{.underline}

In sum, as these examples demonstrate, our motive for group coherence is
a powerful interior situational influence that, like the others, renders
us subject to manipulation.

3\. Affect

This Section has thus far focused generally on attitudes and motives.
Each, as we\'ve seen, could be mistaken (and has been mistaken
[[\[FN549\]](#Document1zzFN_F549)]{.underline}) for \"preferences\" by
policy analysts. As previous sections illustrate, however, our attitudes
and motives are simply not the well-behaved, stable preferences that
policy analysts and policymakers generally assume. Put differently,
although the intuitive, simplified, preference-based dispositionism that
is foundational to law and policy is attractive to us, particularly
given its simplicity and self-affirming implications, it is nonetheless
wrong.

**\*116** We are more or less unaware of the greater part of our
interiors, and that ignorance plays an immense causal role in our
behavior. Another important aspect of our interiors that gives shape to
the situational character is emotion or \"affect.\"
[[\[FN550\]](#Document1zzFN_F550)]{.underline} Emotion is a topic that
most legal scholars and laws acknowledge, if at all, only when it
manifests itself in a blatant and unmistakable way. We are dispositional
actors, according to this view, except in those rare and unfortunate
instances when we are overwhelmed by emotion.
[[\[FN551\]](#Document1zzFN_F551)]{.underline}

Social psychology reveals that this understanding of \"emotion\" is,
like so much else regarding our self-knowledge, fundamentally wrong.
That bold and broad claim is the topic of future work,
[[\[FN552\]](#Document1zzFN_F552)]{.underline} so we will provide only a
cursory treatment here.

First, emotions are not just those rare overwhelming feelings we have
when we are being \"emotional.\" Emotions are instead a ubiquitous
feature of our interiors, interacting with virtually all interior
situations, including all those we discuss in this Article.
[[\[FN553\]](#Document1zzFN_F553)]{.underline} Thus, our attributions
influence our emotions, and our emotions influence our attributions.
[[\[FN554\]](#Document1zzFN_F554)]{.underline} Similarly, emotions
influence the extent to which we rely on knowledge structures and
precisely which ones we rely on.
[[\[FN555\]](#Document1zzFN_F555)]{.underline} We have affective
responses to virtually everything we see, and those reactions (of which
we are rarely conscious) immensely influence our behavior and
cognitions. [[\[FN556\]](#Document1zzFN_F556)]{.underline}

Thus, emotion plays an immeasurable role in our day-to-day lives, though
we perceive its role only in the most extreme circumstances when the
emotion feels sufficiently intense to manifest itself in an unmistakable
form. It is as though one were standing on Landsdowne Street on the
outside of the \"green monster\" at Boston\'s Fenway Park counting balls
that cleared the wall as our measure of how many times a bat is swung
inside the park. Our nearly blind vantage point leads us to miss the
vast majority of swings, and the vast majority of what is moving the
game.

Just as we fail to consciously sense our affective responses to our
situation, we fail to appreciate just how powerfully the situation moves
us. Few would expect, as social psychologists have demonstrated, that
the stock-market tends **\*117** to go up on a sunny day\--good weather
creating positive affect in human beings, producing an optimistic
expectation of high returns\-- and down on a gray day\--lousy weather
creating a negative affect, producing gloominess.
[[\[FN557\]](#Document1zzFN_F557)]{.underline} Beyond that
market-measured behavioral response to one unseen affect, which has been
observed in twenty-six different stock exchanges around the world,
[[\[FN558\]](#Document1zzFN_F558)]{.underline} social psychologists have
found that our views about our own overall happiness, or satisfaction
with our job, or views of our prospects for future happiness, can be
powerfully influenced by own present emotional state.
[[\[FN559\]](#Document1zzFN_F559)]{.underline}

Additionally, social psychologists have shown that by priming subjects
with negative affective influences, such as stories of war or
poverty\--or by testing them on rainy days\--subjects express far more
negative views of totally unrelated matters, including their own overall
happiness, than they otherwise do.
[[\[FN560\]](#Document1zzFN_F560)]{.underline} Subjects in these
experiments are generally unaware of the situational influences on their
own subjective evaluations.
[[\[FN561\]](#Document1zzFN_F561)]{.underline} Influential research in
this area has shown, for example, that merely being exposed to a
stimulus\--whether the exposure is conscious or unconscious\--can
influence a person\'s positive affect towards that stimulus on
subsequent exposures. [[\[FN562\]](#Document1zzFN_F562)]{.underline}

Thus far, the basic messages of the social psychological research we
have highlighted have been, first, that emotion is omnipresent as an
interior influence; second, that emotion is, whether we are aware of it
or not (and usually we are not), immensely influential over our
cognitions, attitudes, and behavior; and third, that emotion and affect
are highly sensitive to exterior situation, including **\*118** those
elements of the environment of which we are not mindful. Each of those
findings contradicts the basic assumptions of dispositionism.

Still, there is also evidence that in some circumstances our behavior
appears to be controlled by something that looks like careful
deliberation and choice based on the anticipated emotional effect of our
choices. We seem to choose option \"A\" instead of \"B\" or \"C\"
because we expect it to deliver us the greatest amount of happiness or
least amount of displeasure.

The \"happiness\" or \"displeasure\" that we seek or repel in this
dispositional mode are, of course, emotions. And here emerges another
major flaw in the dispositionist model. The best evidence about our
ability to predict (or even remember) our emotional states reveals that
we are often poor judges of our own well-being. The problem is not so
much that we do not know what will bring us pleasure or pain. People
typically are correct to assume that a new car will elicit some
happiness and that a bad accident will generate unhappiness. The problem
is that, owing to our ineffective forecasting, we vastly overestimate
the intensity and duration of our emotional reactions to such
happenings. [[\[FN563\]](#Document1zzFN_F563)]{.underline}

Winning the lottery, landing a good teaching job, and falling in love
all may bring us some joy. Losing a bet, a job, or a lover will
certainly bring sadness. But none of these events will affect us as much
as we tend to imagine. [[\[FN564\]](#Document1zzFN_F564)]{.underline}
Because of this impact bias, \"common events typically influence
people\'s subjective well-being for little more than a few months, and
even uncommon events\--such as losing a child in a car accident, getting
cancer, becoming paralyzed, or being sent to a concentration camp\--seem
to have less impact on long-term happiness than one might naïvely
expect.\" [[\[FN565\]](#Document1zzFN_F565)]{.underline}

In one study, for example, associate professors were asked to estimate
what their overall happiness would be if they made tenure, or were
denied it. The study found that, in the short term, those who received
tenure were less happy than they expected, and those who were denied
tenure were happier than they predicted.
[[\[FN566\]](#Document1zzFN_F566)]{.underline} Another study asked
student respondents who were involved in committed, long-term
relationships to estimate what their happiness levels would be if they
suffered a break-up. Their happiness estimates were far lower than the
actual reported happiness levels of other students who had recently
suffered a break-up. [[\[FN567\]](#Document1zzFN_F567)]{.underline}

Our pattern of poorly forecasting our affective states has been
demonstrated in a number of studies of political events. One version of
the study asked Republicans and Democrats how happy or unhappy they
thought they would be the week following the 1996 presidential election
if Bill Clinton were reelected. **\*119** A week after the election,
Democrats who had predicted that they would be substantially happier if
Clinton won in fact reported overall happiness levels that were no
different than before the election. Republicans were only slightly less
happy overall than they were before the election, although they had
predicted that they would be substantially less happy.
[[\[FN568\]](#Document1zzFN_F568)]{.underline} Even in ordinary
circumstances that we experience repeatedly\--such as consumer or
employment decisions\--we continue to make the same affective
forecasting errors again and again.
[[\[FN569\]](#Document1zzFN_F569)]{.underline} There is apparently too
much working in favor of the maintenance of our dispositionism for it to
be compromised by evidence of it failing us.

The basic lesson of affective forecasting research is clear. Despite our
overly optimistic and overly pessimistic predictions, the truth about
ourselves is, as Daniel Gilbert and his co-authors put it: \"Most people
are reasonably happy most of the time, and most events do little to
change that for long.\" [[\[FN570\]](#Document1zzFN_F570)]{.underline}

So what explains this inability to accurately assess our own emotional
reactions? There are, it seems, numerous causes. But most of them stem
from our dispositionist tendencies and the fact that we miss most of the
effect of our exterior and interior situations. Thus, when people
overestimate just how happy winning a lottery will make them, or just
how unhappy becoming a paraplegic will leave them, they do so largely
because they are incapable of seeing past the salient situational
factor\--a million dollars or life in a wheelchair\--to all the other
situational influences that help determine their overall level of
happiness. Similarly, we vastly underestimate the way our interior
situation is motivated\--well-equipped to make the \"bad outcome\" seem
not so bad\--and to make the opportunities missed appear, like
unreachable grapes, sour. Our affective forecasting, then, responds to
our dispositionist intuitions and tendencies, while our emotions respond
as well to our situations.
[[\[FN571\]](#Document1zzFN_F571)]{.underline}

**\*120** D. BEHAVIOR (VS. \"CHOOSING\")

This Article is now deep into its examination of the situational
character. The contrast with the dispositionist models of the human
actor that now dominate policy, policymaking, and common sense is
becoming clear. We are subject to a fundamental interior attribution
error\--an error that helps explain the fundamental exterior attribution
error and that leaves us vulnerable to many varieties of situational
manipulation. As Parts III.B and III.C make clear, our thinking and our
preferences are not what they seem. Thus, it should by this point be no
surprise that our behavior\--which the dispositionist models assume is
the product of \"thinking + preferring + willing\"\--is likewise not
what it seems. Our behavior, which we tend to attribute to conscious
choices based on stable preferences and given information, is more often
a manifestation of the interior and exterior situational influences to
which we are largely blind. That conclusion is implicit in the evidence
and arguments provided above regarding our cognitions and attitudes.
Many of the experiments, including Milgram\'s, contained a behavioral
component that itself proved the point. This Section supplements that
evidence and highlights several ways in which our behavior is not what
our dispositionist schemas presume.

1\. Visceral Factors

We have already discussed the malleability and implicit aspects of our
attitudes. We have also described the power of situational forces\--in
our interiors and exteriors\--to shape our behavior and, in turn, the
power of our behavior to change our attitudes. According to recent work
by George Loewenstein and several of his co-authors, we are often moved
by interior drive states to act in ways that contradict even our
explicit attitudes, that is, in ways that we actually experience as
counter-attitudinal. Those drive states include hunger, thirst, sexual
desire, sleeplessness, moods, emotions, and physical pain: \"At
sufficient levels of intensity, these, and most other visceral factors,
cause people to behave contrary to their own long-term self-interest,
often with full awareness that they are doing so.\"
[[\[FN572\]](#Document1zzFN_F572)]{.underline}

To be sure, those urges are all manifestations of regulatory processes
\"essential for our survival, but all are also associated with behavior
disorders\--for example, hunger and overeating, fear and phobias, sexual
desire and sexual compulsion, anger and spouse abuse, and craving and
addiction.\" [[\[FN573\]](#Document1zzFN_F573)]{.underline} Thus,
visceral factors are like many of the interior features that we have
been reviewing: generally useful but potentially quite harmful and
capable of dominating those interior elements to which we attribute our
dispositionism.

There are two key reasons why visceral factors lead us to knowingly
behave **\*121** counter-attitudinally. First, they tend to \"crowd
out\" all goals other than that of mitigating the visceral factors
themselves. [[\[FN574\]](#Document1zzFN_F574)]{.underline} They \"focus
attention\" on the present, the self, and on satisfying a single
craving. [[\[FN575\]](#Document1zzFN_F575)]{.underline} If you find that
difficult to understand, try holding your breath for two minutes or
dropping an anvil on your toe, and see what significance your other
goals and attitudes have in your behavior before the pain subsides.

Of course, responding to such intense bodily reactions makes perfect
sense and is not, in itself, problematic. People should prioritize the
acquisition of oxygen when it is scarce. And people should attend to
their acute injuries before checking to make sure the anvil is ok. The
problem stems from the fact that people often behave, in response to
visceral cues, in ways that contradict their view of how they should
behave, and sometimes even their own volition. And that problem occurs,
according to Loewenstein, because of the second key feature of visceral
factors, which is that \"people underestimate the impact on their own
behavior of visceral factors they will experience in the future\":
[[\[FN576\]](#Document1zzFN_F576)]{.underline} \"Unlike currently
experienced visceral factors which have a disproportionate impact on
behavior, delayed visceral factors tend to be ignored or to be severely
underweighted in decision making. Today\'s pain, hunger, anger, and so
on are palpable, but the same sensations anticipated in the future
receive little weight.\" [[\[FN577\]](#Document1zzFN_F577)]{.underline}

In one experiment, for example, two groups of male subjects were shown
photographs and then asked to imagine how they would behave in the
context of a date-rape scenario. The group that had been shown sexually
arousing photographs reported a much greater likelihood of behaving
aggressively than the group that had been shown non-arousing photos.
[[\[FN578\]](#Document1zzFN_F578)]{.underline} Without being aroused by
the photographs, the second group seemed less able to imagine what they
would do when aroused on a date.

Loewenstein explains that this divergence in our ability to appreciate
visceral factors in the present and in the future is probably an
artifact of our interiors, which \"seem\[\] ill suited to storing
information about visceral sensations.\"
[[\[FN579\]](#Document1zzFN_F579)]{.underline} Thus, although \"we can
easily recognize pain, \... few can recall it in the sense of
reexperiencing it in imagination or memory.\"
[[\[FN580\]](#Document1zzFN_F580)]{.underline} Pain, cravings, and
motives in the present wield greater influence than pain, cravings, and
motives in the future because the former are cognitively vivid while the
latter are cognitively pallid.

Put differently, immediate visceral factors are like dispositional
factors that dominate our field of interior vision, while future
visceral factors are like **\*122** situational factors that tend to be
obscured, and their future influence thereby underappreciated. Visceral
factors are yet another manifestation of the interior fundamental
attribution error. And the influence of this error is hardly limited to
the margins of extreme exceptions. \"Visceral factors are a ubiquitous
aspect of everyday life, and they regularly undermine the rationality of
decisionmaking, due to both their underestimation in prospect and their
disproportional force when they operate in the present.\"
[[\[FN581\]](#Document1zzFN_F581)]{.underline}

2\. The Inverted Causal Relationship Between Attitudes and Behavior

The evidence on visceral factors provides further confirmation for our
claim that people fail to see much of their interior situation and that
behavior often reflects that failure as much or more than it reflects a
person\'s stable preferences. But the dispositionist presumption\--that
behavior is more or less caused by preferences or attitudes\--can be
even more fundamentally challenged. Social psychology teaches that,
although we like to believe that such a causal relationship between
attitudes and behavior exists, it is often just the reverse\--that is,
our attitudes reflect our behavior (which, in turn, reflects our
situation). The temptation to see preferences first and behavior as the
consequence is widely shared. When we act, we need to believe that there
exists an attitude or preference behind that act\--our motive for
coherence creates a need for reasons.

But very often reasons do not precede behavior. So, we are motivated to
concoct them\--so motivated that we will often alter pre-existing
attitudes. We have already described some examples of that phenomenon.
In Festinger and Carlsmith\'s classic peg-moving study,
[[\[FN582\]](#Document1zzFN_F582)]{.underline} for instance, subjects
paid \$20 to tell others that the boring subject was interesting felt no
dissonance, and thus did not need to alter their attitudes. On the other
hand, subjects who were paid only \$1 were still situationally moved to
cooperate with the experimenter, though they needed some way to relieve
the dissonance they felt between experience and attitude. That
situational manipulation and their behavior led them to alter their
attitudes toward the peg-moving task.
[[\[FN583\]](#Document1zzFN_F583)]{.underline}

Following up on that \"induced compliance\" study, Philip Zimbardo and
his collaborators asked subjects to participate in a study that
ostensibly was about novel foods.
[[\[FN584\]](#Document1zzFN_F584)]{.underline} More specifically, the
subjects, who included ROTC members, military reservists, and other
college students, were told that the new \"mobile military\" was
interested in determining how much people enjoyed (or did not **\*123**
enjoy) eating fried grasshoppers.
[[\[FN585\]](#Document1zzFN_F585)]{.underline} The supposed taste test
was administered by one of two individuals. Some subjects were warmly
greeted by \"Mr. Nice\"\--a sensitive and gentle person who worked well
with his coworkers. [[\[FN586\]](#Document1zzFN_F586)]{.underline} Other
subjects took instruction from \"Mr. Nasty,\" a cantankerous taskmaster
who berated his coworkers. Many participants ate one or more
grasshoppers, but their assessments varied depending upon who
administered the test. [[\[FN587\]](#Document1zzFN_F587)]{.underline}
Those taking instructions from the gruff \"Mr. Nasty\" reported that
they liked the grasshoppers much more than \"Mr. Nice\'s\" subjects did.
[[\[FN588\]](#Document1zzFN_F588)]{.underline} The experiment thus
situationally induced participants to eat something that they otherwise
would not. Those who were taking instructions from \"Mr. Nice\" had a
good reason for doing so\--after all, \"Mr. Nice\" was asking them to.
But those who were eating grasshoppers under the instruction of \"Mr.
Nasty\" needed to justify complying with the wishes of a jerk. Their
solution, then, was to alter their attitudes toward the grasshoppers.
[[\[FN589\]](#Document1zzFN_F589)]{.underline}

Today there are hundreds of experiments demonstrating the same
phenomenon. [[\[FN590\]](#Document1zzFN_F590)]{.underline} As Claude
Steele puts it:

For nearly 30 years, dissonance researchers have tricked subjects into
\"volunteering\" \... \[such\] self-contradictory actions as writing
public essays against their beliefs, expending effort on meaningless
tasks, and delivering embarrassing speeches in front of prestigious
audiences. Lacking any better means of reducing the distress over these
actions, subjects typically attempt to justify them by changing their
beliefs or attitudes to be more consistent with their actions.
[[\[FN591\]](#Document1zzFN_F591)]{.underline}

Indeed, from evidence that our attitudes tend to be caused by our
behavior rather than the other way around, Daryl Bem developed a
plausible and initially compelling theory that individuals do not
\"know\" their attitudes and other interior dispositions, but rather
infer them from their behavior. As he summarized his self-perception
theory:

Individuals come to \"know\" their own attitudes, emotions, and other
internal states partially by inferring them from observations of their
own overt behavior and/or the circumstances in which this behavior
occurs. Thus, to the extent that internal cues are weak, ambiguous, or
uninterpretable, the individual is functionally in the same position as
an outside observer, an observer who **\*124** must necessarily rely
upon those same external cues to infer the individual\'s inner states.
[[\[FN592\]](#Document1zzFN_F592)]{.underline}

In short, there is considerable evidence that the dispositionist view
that attitudes lead to behavior is, at least at times, backwards. The
cart is often our attitudes; the horse is often our behavior.
[[\[FN593\]](#Document1zzFN_F593)]{.underline}

There is another way of making this point. The cognitive dissonance
literature, which depends so heavily on induced compliance studies, is
actually a demonstration of the fundamental attribution error as much as
it is a demonstration of cognitive dissonance. Subjects are routinely
manipulated through situation to act in ways that are counter to their
attitudes or perceived dispositions. What experimenters call \"induced
compliance,\" then, subjects experience as free choice. Because the
subjects are dispositionists, and experience themselves as acting
according to their own attitudes or preferences, they react to their
counter-attitudinal behavior by feeling a dissonance, a dispositional
dissonance. To maintain their dispositionist self-conception, they
unwittingly alter their attitudes or otherwise adjust their perceptions
to relieve that dissonance.
[[\[FN594\]](#Document1zzFN_F594)]{.underline} Subjects thus see
disposition and free choice based on stable preferences; they miss the
importance of both the exterior situational forces that induced their
compliance, and the interior situational forces that invisibly lead to
their altered attitudes.

E. AUTOMATICITY AND THE ILLUSION OF CONSCIOUS WILL (\"THE WILL\")

\"The whole sting and excitement of our voluntary life \... depends on
our sense that in it things are really being decided from one moment to
another \...\" \~ William James
[[\[FN595\]](#Document1zzFN_F595)]{.underline}

And so we come at last to the conscious will, that inarticulable, yet
unmistakable, inner experience of \"oomph\" that is, in many ways, the
crown jewel of our **\*125** dispositionist self-conception.
[[\[FN596\]](#Document1zzFN_F596)]{.underline} We have been emphasizing
throughout this Article that there is a vast interior situation that
invisibly influences our thoughts, preferences, and actions, and leaves
us vulnerable to exterior situational forces that do the same. What,
then, of the conscious will? Much of the social psychological material
canvassed in this Article has touched on the issue of conscious will
only implicitly, if at all. Nonetheless, such material has quietly
suggested the same conclusion drawn by those researchers who have
examined the issue directly. If we perceive that we consciously will our
actions, even as the best evidence indicates that our behavior is
substantially influenced by interior and exterior situational factors,
then this experience of \"will\" may be a part of our dispositionist
deception. Indeed, as Daniel Wegner concludes in a book that brings
together generations of experimental research on the felt experience of
human will: \"\[C\]onscious will is an illusion. It is an illusion in
the sense that the experience of consciously willing an action is not a
direct indication that the conscious thought has caused the action.\"
[[\[FN597\]](#Document1zzFN_F597)]{.underline} Two other leading
researchers of the will, John Bargh and Tanya Chartrand, have made an
extremely compelling, if unsettling, case that \"most of a person\'s
everyday life is determined not by \[her\] conscious intentions and
deliberate choices but by mental processes that are put into motion by
features of the environment and that operate outside of conscious
awareness and guidance\"\--a thesis that they acknowledge is \"difficult
\... for people to accept.\"
[[\[FN598\]](#Document1zzFN_F598)]{.underline}

In part for that reason, we want to be certain that the claim is not
misconstrued. None of the researchers in this field of social science
have concluded, nor do we, that the \"conscious will\" is purely and
totally an illusion. What is asserted\--and what researchers have
demonstrated\--is that the experience of will is far more widespread
than the reality of will. Wegner calls the latter the empirical will
[[\[FN599\]](#Document1zzFN_F599)]{.underline} and argues that our
perceived will is often an unreliable and misleading basis for
understanding our behavior. The experience of will occurs often without
empirical will, and thus creates the illusion of will. Moreover, it
contributes to the illusions of choice, preference, and, more generally,
dispositionism.

**\*126** 1. Automaticity

Exhibit A in the case that our conscious will is not as central as we
presume is the fact that our conscious attentional capacity is
extraordinarily limited. [[\[FN600\]](#Document1zzFN_F600)]{.underline}
Remember your first attempt at driving a manual transmission
automobile\--before the processes became automatic. If you are like us,
the memory still causes some embarrassment. Images of stalling,
chugging, and squealing evince the limits of our ability to tell our
feet and legs\--much less the car\--precisely how to behave. Now suppose
that, at the same time you were attempting to let the clutch out with
your left foot while depressing the gas pedal with your right, you were
attempting to have a serious phone conversation with a friend about,
say, your love problems. Such multitasking would be all but impossible
given the severe limits on our ability to be consciously attentive. The
point has been demonstrated in numerous experiments.
[[\[FN601\]](#Document1zzFN_F601)]{.underline} For instance, studies
have shown that eating radishes instead of available chocolates depletes
one\'s ability to persist in attempting to solve puzzles, and that
suppressing emotional reactions to a movie depletes one\'s ability to
solve anagrams or to squeeze a handgrip exerciser.
[[\[FN602\]](#Document1zzFN_F602)]{.underline} The unhappy truth is that
because \"even minor acts of self-control, such as making a simple
choice, use up \[one\'s\] limited self-regulatory resource, conscious
acts of self-regulation can occur only rarely in the course of one\'s
day.\" [[\[FN603\]](#Document1zzFN_F603)]{.underline} Social
psychologists studying the phenomenon have concluded that, in our daily
lives, our conscious will \"plays a causal role only \[five percent\] or
so of the time.\" [[\[FN604\]](#Document1zzFN_F604)]{.underline} Little
wonder that the growing popularity of cell phones has made driving
generally more dangerous, even for experienced drivers.
[[\[FN605\]](#Document1zzFN_F605)]{.underline}

Exhibit B in the case for automaticity is the now-cascading evidence
demonstrating the extent to which our choice biases, our schemas, our
memories, our attributions, our affective responses, our motives, our
perceptions, and so on are activated automatically\--outside our
conscious awareness, and often by exterior situational features and
events. [[\[FN606\]](#Document1zzFN_F606)]{.underline} The evidence of
implicit attitudes summarized above is just a small strand of the larger
fabric of automaticity operating within our interiors.
[[\[FN607\]](#Document1zzFN_F607)]{.underline}

There is also mounting evidence that our automatic perceptions are
linked to **\*127** our behavior, also through automatic means.
[[\[FN608\]](#Document1zzFN_F608)]{.underline} Charles Carver and his
colleagues, for instance, found that subjects participating as the
\"teacher\" in a Milgram-esque experiment tended to give longer shocks
when they had been primed with a list of hostility-related words.
[[\[FN609\]](#Document1zzFN_F609)]{.underline} More recently, John Bargh
and his collaborators have made numerous demonstrations of the automatic
perception-behavior link. In one experiment, for example, some subjects
were primed with words related to rudeness, others, with words related
to politeness. [[\[FN610\]](#Document1zzFN_F610)]{.underline} The
subjects were then placed in a situation that presented both an
opportunity and motive to interrupt an ongoing conversation. The first,
rude-primed group interrupted more than sixty percent of the time, while
the second, polite-primed group interrupted less than twenty percent of
the time. [[\[FN611\]](#Document1zzFN_F611)]{.underline} In other
studies, subjects primed with stereotypical qualities of elderly people
(e.g., wrinkles, Florida) behaved more like elderly people\--walked more
slowly, were more forgetful, and so on\--than subjects who were not
similarly primed. [[\[FN612\]](#Document1zzFN_F612)]{.underline} And
Chartrand and Bargh have shown in other experiments that, without being
aware of it, subjects often engage in so-called \"behavior matching,\"
or the \"chameleon effect.\" For instance, when subjects are placed next
to an interaction partner who is either rubbing his or her face or
shaking his or her foot, the subjects tend to engage in behavioral
patterns matching those of their interaction partner.
[[\[FN613\]](#Document1zzFN_F613)]{.underline}

But the automaticity doesn\'t stop there. Although we sometimes
intentionally try to transform our conscious acts into automatic
behavior\--recall how you practiced playing the piano, dribbling a
basketball, or driving that darn stick shift\--much of what becomes
automatic does so automatically. And that includes many of our goals and
motivations. [[\[FN614\]](#Document1zzFN_F614)]{.underline} In one
study, for instance, subjects were asked to rearrange scrambled words to
make a sentence. [[\[FN615\]](#Document1zzFN_F615)]{.underline} Some
subjects were nonconsciously primed to succeed because the words
included items like \"strive,\" \"achieve,\" and \"succeed.\" Others
were given neutral words that would **\*128** not prime the goal to
achieve. [[\[FN616\]](#Document1zzFN_F616)]{.underline} All of the
subjects then were given a second, timed task\--to rearrange letters in
words to create new words. The anagrams ranged from simple to
impossible. [[\[FN617\]](#Document1zzFN_F617)]{.underline} After
completing the anagrams or running out of time, the subjects filled out
questionnaires about their moods. Subjects who were not primed to
succeed reported similar moods whether they performed well or poorly.
The moods of the subjects who were primed to succeed, however, varied
depending on whether they succeeded or failed. That is, they seemed to
care about how well they performed, even though they were unaware of
what caused their moods, much less that it was the success-oriented
words they encountered in the first task.
[[\[FN618\]](#Document1zzFN_F618)]{.underline} Subjects were, beneath
their conscious radars, given a goal that they did not even know they
had, and that goal remained, hidden in their interior situation, shaping
their moods in ways they neither saw nor appreciated.

Our automatic goals are quite pervasive. When we commonly adopt a
particular goal in a given situation\--be it the workplace, the
classroom, or the ping-pong table\--that goal is likely to be triggered
automatically in that situation, whether or not we want it to be
triggered. [[\[FN619\]](#Document1zzFN_F619)]{.underline} As with all
evidence of situational influence, such automatic goal-setting and
mood-affecting evidence further reveals the extent to which we humans
are susceptible to situational manipulation.

2\. The Illusion of Will

If most of what we perceive, feel, and do is driven by automatic
processes, then why is it that most of us perceive our behavior to be
the consequence of our conscious will? There are several reasons. First,
we are rarely conscious of that which is automatic in us\--indeed,
that\'s the point: automaticity frees up for other purposes our
extremely limited capacity for conscious thinking and acting. It is as
if automaticity occurs silently in the dark, whereas conscious thinking
happens noisily beneath a spotlight. The conscious eclipses the
automatic before our introspective eye.

Perhaps more important, when we do experience ourselves consciously
willing our actions, we are often mistaken. Daniel Wegner, in his superb
book The Illusion of Conscious Will, brings together an intriguing array
of direct evidence to make his case that we humans are subject to an
illusion of will (which, again, we think has been circumstantially
implied in evidence of the more general **\*129** illusion of
dispositionism).

Consider the case of \"phantom limbs.\" People who have had an arm or a
leg amputated usually report that they continue to \"feel\" the presence
of the limb long after it is gone. One pair of researchers who studied a
group of three hundred World War II amputees found that ninety-eight
percent experienced the phantom limb phenomenon. But there is more: Many
amputees report that they can voluntarily move their phantom limbs,
especially their fingers and toes. They report having the experience of
consciously willing the movement of the limb, despite the absence of the
limb or any willing movement of it. They perceive themselves willing
something that clearly is not there to will. This is one intriguing
piece of evidence that \"the intention to move can create the experience
of conscious will without any action at all.\"
[[\[FN620\]](#Document1zzFN_F620)]{.underline}

Another intriguing study provides another clue to the puzzle of
conscious will. Researchers used highly sensitive electromyographical
devices to study the patterns of electrical impulses generated during
the performance of a \"willed action.\" Hooked to electrodes, subjects
were asked to move their fingers \"at will.\" The researchers
established a baseline electrical impulse that was witnessed in the
brain shortly before the subjects moved their finger, which preceded a
second impulse that was seen when the finger actually moved. This first
impulse register was dubbed \"readiness potential.\" In a recent version
of the study, subjects were placed before an especially sensitive clock,
and were asked to report for each finger movement the position of the
clock hand at the moment that they experienced a \"conscious awareness
of \'wanting\' to perform the finger movement.\"
[[\[FN621\]](#Document1zzFN_F621)]{.underline} The researchers found
that they were able to identify three distinct blips (to use the
scientific term) in the electrical impulses of the brain throughout the
course of action. The first was the \"readiness potential\" registered
in the baseline. Sometime after the \"readiness potential,\" however,
came the experience of willing the finger. Finally, in a third distinct
moment, there was an impulse associated with the actual movement of the
finger. The researchers discovered that the subject\'s \"readiness
potential\" occurred distinctly before the subjects themselves perceived
a will to move the finger. The experience of conscious will, it appears,
arises at some point after the brain has already begun the action. As
the chief researcher of this study concluded:

\[T\]he initiation of the voluntary act appears to be an unconscious
cerebral process. Clearly, free will or free choice of whether to act
now could not be the initiating agent, contrary to one widely held view.
This is of course also contrary to each individual\'s own introspective
feeling that he/she consciously initiates such voluntary acts; this
provides an important empirical example of the possibility that the
subjective experience of a mental causality need not **\*130**
necessarily reflect the actual causative relationship between mental and
brain events. [[\[FN622\]](#Document1zzFN_F622)]{.underline}

In another fascinating study, researchers put a series of subjects into
a \"transcranial magnetic stimulation\" device, which has been found to
cause\-- through a directed magnetic impulse\--the involuntary movement
of different parts of the human body.
[[\[FN623\]](#Document1zzFN_F623)]{.underline} Without explaining the
operation of the device to subjects, the experimenters asked subjects to
move either their right or their left finger, whichever they chose,
whenever they heard a click. The click was actually the sound of the
device turning on, and forcing the movement of a particular digit.
Although the magnetic impulses led the subjects to move the finger they
moved, the subjects nevertheless perceived that they were choosing which
finger to move, and then moving it.
[[\[FN624\]](#Document1zzFN_F624)]{.underline} \"When asked whether they
had voluntarily chosen which finger to move, participants showed no
inkling that something other than their will was creating their
choice.\" [[\[FN625\]](#Document1zzFN_F625)]{.underline} Findings such
as these suggest that the experience of conscious will may stem from an
internal system that is distinct from both the action itself and the
action\'s true source. Put differently, willing may be different then
acting, and although the experience of both may often be coterminous,
they are not necessarily causally related. Furthermore, even when some
unappreciated situational force\--including the business end of a
transcranial magnetic stimulation device\--is leading us to act in a
particular way, we tend to experience our actions as volitional, willed
choices. Again, we miss situation and see disposition.

Based on his review of many such studies, including his own research,
Wegner concludes that our minds produce the experience of conscious will
through a process that is independent of the actual cause of our
behavior. \"\[W\]e must be careful to distinguish,\" Wegner argues,
\"between \... empirical will\--the causality of the person\'s conscious
thoughts as established by \... their covariation with the person\'s
behavior\--and the phenomenal will\--the person\'s reported experience
of will.\" [[\[FN626\]](#Document1zzFN_F626)]{.underline}

There are, to be sure, times when we experience that we have willed
something when, in fact, we have.
[[\[FN627\]](#Document1zzFN_F627)]{.underline} Foregoing a
just-out-of-the-oven chocolate chip cookie can be, when we succeed,
evidence of the empirical will. But **\*131** the experience of will is
not reliable evidence of the empirical will. The experience of will is
generated by our minds to accompany behaviors whose source may be
unwilled situation. \"The experience of will,\" as Wegner puts it, \"is
the way our minds portray their operations to us, not their actual
operation.\" [[\[FN628\]](#Document1zzFN_F628)]{.underline} Wegner\'s
diagnosis reveals the limited viability of the experience of will as a
last bastion of dispositionism.

Though we perceive will and behave and experience ourselves \"as if\"
our will were controlling our behavior, and though we project will onto
the behavior of others, these intuitive conceptions of the will are
fundamentally unreliable indicators of both the reality of our will and
the source of our behavior. Here again, there is more to the situation:
[[\[FN629\]](#Document1zzFN_F629)]{.underline}

\[T\]he brain structure that provides the experience of will is separate
from the brain source of action. It appears possible to produce
voluntary action through brain stimulation with or without an experience
of conscious will. This, in turn, suggests the interesting possibility
that conscious will is an add-on, an experience that has its own origins
and consequences. The experience of will may not be very firmly
connected to the processes that produce action, in that whatever creates
the experience of will may function in a way that is only loosely
coupled with the mechanisms that yield action itself.
[[\[FN630\]](#Document1zzFN_F630)]{.underline}

A final experiment suggests the extent to which our experience of will
can be subject to situational influence, again without our conscious
awareness. Subjects viewed a computer screen that flashed strings of
letters and were asked to judge whether they saw words in what flashed.
[[\[FN631\]](#Document1zzFN_F631)]{.underline} The screen would go
entirely blank **\*132** once each trial, either after the subject
pressed the response button, or automatically after a very short time
(400-650 milliseconds) if the subject failed to respond. The intervals
were so quick that it was difficult for subjects to tell whether their
response triggered the blank screen, or whether it had automatically
gone blank. One group of subjects, however, was subliminally primed with
a flash of the word \"I\" or \"me\" (subjects reported not recognizing
it) just prior to the flash of letters that they could consciously see
and were to evaluate. The researchers found that subjects primed with
the dispositionist terms \"I\" or \"me\" were more likely to conclude
that they had caused the screen to go blank than were subjects who had
not been so primed. The subjects, it seems, \"were influenced by the
unconscious priming of self to attribute an ambiguous action to their
own will.\" [[\[FN632\]](#Document1zzFN_F632)]{.underline} Our
experience of will then, is not only an internal illusion, it is an
internal illusion that is susceptible to external situational
manipulation.

The will, it turns out, rather than being the trump card in the
dispositionist\'s deck, may be the joker in our dispositional delusion.
[[\[FN633\]](#Document1zzFN_F633)]{.underline} As Wegner summarizes:

The unique human convenience of conscious thoughts that preview our
actions gives us the privilege of feeling we willfully cause what we do.
In fact, however, unconscious and inscrutable mechanisms create both
conscious thought about action and the action, and also produce the
sense of will we experience by perceiving the thought as the cause of
the action. So, while our thoughts may have deep, important, and
unconscious causal connections to our actions, the experience of
conscious will arises from a process that interprets these connections,
not from the connections themselves.
[[\[FN634\]](#Document1zzFN_F634)]{.underline}

We want to emphasize again what we are not claiming, lest our actual
claims be wrongly caricatured and dismissed. We have not argued here, or
elsewhere in this Article, that there is \"no such thing\" as will, or
that everything we seem to will is, to the contrary, determined for us.
We do not doubt the existence of the **\*133** individual human will,
and we do not doubt that there is human genius rightly to be attributed
to it. Our point, rather, is that our experience of will\--our familiar
experience that our will is responsible for our conduct\--is often not a
reliable indicator of the actual cause of our behavior. The felt
experience of will therefore contributes greatly to our dispositionism.
Where we are moved situationally, the phenomenon of will fills out our
stories and helps to eclipse our vision of the situational influences
that move us. When it seems that our \"will\" is doing the moving, it
follows that we must have \"chosen\" our actions. And if we chose our
actions, we must have had reasons or preferences for doing so. Thus, the
illusion of will is a central feature of the illusion of dispositionism.
How, after all, can situation be moving us, when we can \"feel\" the
disposition?

Our point, then, is both subtle and disquieting: The experienced
\"will,\" rather than a mirror and measure of our true selves, may be
another mask in the disguise of dispositionism that keeps us from seeing
what really moves us.

IV\. A FEW POSSIBLE LESSONS FOR LAW AND LEGAL THEORY

Part I of this Article examined the person schema that forms the
foundation of most laws and legal theories. Part III summarized some of
what psychology teaches about what actually moves human beings. What is
now fairly clear is that the dominant lay and legal theories of the
person (or \"personology\") are wrong\--not just \"too simple,\" but
fundamentally wrong. Social science has clearly demonstrated that we are
not who we think we are. It is true that we experience ourselves
thinking, preferring, acting, and willing, but those comforting
perceptions are often illusory, and they obscure the far more
significant influence of our unseen interior situation.

What should also be clear is that every experiment demonstrating the
extent and power of our interior situations likewise indicates just how
incredibly vulnerable we\--our cognitions, attitudes, behavior, and even
our conscious will\--are to exterior situational manipulation. To see
that, one need only go back and note how each experiment discussed above
revealed one or another element of our interior situations by secretly
manipulating the subjects\' exterior situations. Our dispositionist
self-schemas and our perceptions of thinking, preferring, willing, and
choosing lead us to miss the situation, and render us vulnerable to it.
So it is that the hidden situation can be as powerful as a loaded gun.
This, we believe, is the central lesson of our argument. Understanding
its implications generally for law, policy, policymaking, and legal
theory goes well beyond the scope of this Article.
[[\[FN635\]](#Document1zzFN_F635)]{.underline} Still, we will suggest a
few tentative **\*134** implications here.
[[\[FN636\]](#Document1zzFN_F636)]{.underline}

A. THE LAW

Getting to know something about the situational character teaches us
something about how better to understand our laws. The point is taken up
in other work, but some preliminary observations are worth making here.
For instance, we believe that \"law\" itself can be usefully understood
as a kind of dispositionist situational character, reflecting all the
same tendencies of the human variety. That is true, in our view, because
legal systems place judges, juries, legislators, and the like in a
position of resolving disputes between competing interests. Those
decision-makers\--be they individuals, or groups or processes that
conceive of themselves as individuals\--tend to see their institutions
as human-like entities. [[\[FN637\]](#Document1zzFN_F637)]{.underline}
They see themselves and their institutions very much the same way we
humans conceive of ourselves\--as information-gathering, reasonable
thinkers with steady sets of preferences\--and they are subject to the
same sorts of situational influences, such as the various motivations
for coherence, simplicity, system-affirmation, and so on.
[[\[FN638\]](#Document1zzFN_F638)]{.underline}

For lawmakers, such preferences might be identified in various policy
scripts defining the purpose of law or lawmaking.
[[\[FN639\]](#Document1zzFN_F639)]{.underline} In the case of judges,
the preferences might be found in similar scripts in various legal
principles and **\*135** precedents. Judges, being human, understand and
portray their individual decisions as both internally coherent and
coherent across cases, doctrines, and time\--hence the common provision
in written opinions intended to reconcile any given decision with all
previous ones. [[\[FN640\]](#Document1zzFN_F640)]{.underline} The
coherence will be, just as it is with the human version of the
situational character, largely an illusion, but not so obviously an
illusion that the system\'s legitimacy is threatened.
[[\[FN641\]](#Document1zzFN_F641)]{.underline} The patterns behind the
laws will reflect the situational influences of those individuals and
institutions best able to influence lawmakers\' situation.

Furthermore, courts, in making judgments, will operate according to the
same attributional impulses and biases\--assessing causation,
responsibility, and blame\--very much the way we all do.
[[\[FN642\]](#Document1zzFN_F642)]{.underline} Indeed, a major task for
the law is to sort out attributional stories and judge responsibility
based on the disputants\' conflicting versions.
[[\[FN643\]](#Document1zzFN_F643)]{.underline} Because of our biases,
individuals most likely to be held personally responsible are the
salient individuals closest to the injury, particularly when their
behavior was, in some sense, non-normal (encouraging counterfactual
thinking), when they are members of cultural out-groups, or when
attributional stereotypes point in their direction. The legal system
will seek to identify the causes of harm quickly, simply, and in a way
that promotes the perceptions of closure and coherence.
[[\[FN644\]](#Document1zzFN_F644)]{.underline}

For that reason, and many others that we we have highlighted above,
judicial attributions will be far too dispositionist\--a claim for which
we have already provided some evidence.
[[\[FN645\]](#Document1zzFN_F645)]{.underline} Where harms are caused by
situational influences, the law will tend either to seek out and name a
dispositional scapegoat on which to place responsibility, or to deny
that there was a harm (perhaps by derogating the victim)
[[\[FN646\]](#Document1zzFN_F646)]{.underline} or the possibility of a
legal remedy. Furthermore, in an effort to legitimate, not only their
own decisions, but the entire system, lawmakers will ignore, tolerate,
or justify many outcomes that could otherwise be perceived as unjust.
And they will do so by accepting and reinforcing dispositionism and
rejecting situationism. Relatedly, lawmakers and those subject to laws
will be particularly keen to promote and protect individuals\' perceived
rights to be dispositionists\--that is, their ability to choose whatever
options they like without **\*136** the interference of arbitrary or
unfair restrictions by salient actors.
[[\[FN647\]](#Document1zzFN_F647)]{.underline}

In addition, lawmakers will seek to avoid obvious tension or
contradictions between their stated goals and their actions, and they
will likely seek to resolve \"precedential dissonance\" in many of the
same ways individuals do\--from changing their goals to changing their
opinions, and from trivializing the dissonance to emphasizing unrelated
self-enhancing features of the system.
[[\[FN648\]](#Document1zzFN_F648)]{.underline} Their decisions will
ultimately be rationalized as consistent with basic self-affirming and
system-affirming conceptions of justice, fairness, equality, merit,
choice, and the like.

B. LEGAL THEORY

Getting to know the situational character, we have come to know more
than just what moves us. The discussion in Part III teaches us something
about what moves our own theories about what moves us. We are not
referring here to the many exterior situational forces behind the long
and successful \"life\" of the dispositional actor. That is the topic of
other work [[\[FN649\]](#Document1zzFN_F649)]{.underline} (and, less
explicitly, the topic of Part V below). We are referring instead to the
influence that our interior situation tends to have on the shape of the
policy theories likely to be most successful. Legal theory, too, will
share much in common with the law. But, as an outside observer, a legal
theorist is to law something closer to what a social psychologist is to
the human variety of situational characters: an observer attempting to
ascertain what really moves the situational character\--to see, for
example, if the purported attitudes, reasons, and rationalizations of
the situational character square with its behavior. Where apparent
incoherence is identified, legal scholars offer theories intended either
to make sense of the decisions (positive theories, which can be
legitimating or delegitimating) or to show how the law, in practice,
should be (re)formed or (re)structured to achieve a particular goal
(normative theories).

Knowing something more about the situational character, we can better
predict which theories will be most highly valued outside of law
schools, and thus which ones will tend to be advantaged, other things
being equal. First, successful theories will rely on a highly
dispositionist view of the human actor\--one that presumes that humans
will their choices through thought and preferences. The model
actor\--the one that sets the standard for all of us\-- will **\*137**
be a fairly robust version of our widely held, dispositionist
self-conceptions. The model actor therefore will be a thoughtful,
reasoning actor, who approaches questions from a data-driven, bottom-up
perspective, one who is not biased by cognitive shortcuts, distorting
knowledge structures, emotions, or any unseen interior influences. She
will have stable preferences that are consistent over time and with her
behavior. And exceptions to that conception will be narrow and snugly
anchored to that conception.

Legal conclusions and legal-theoretic inclinations will tend to favor
the most powerful groups (and cultural in-groups).
[[\[FN650\]](#Document1zzFN_F650)]{.underline} Various cloaks of
legitimacy will be draped over the law and legal theories.
[[\[FN651\]](#Document1zzFN_F651)]{.underline} Categories and schemas
that tend to favor those groups will be created and perceived as neutral
and natural, even when they are false, incomplete, or biasing. Laws and
legal theories will also, on the whole, tend to be system-affirming. For
all of these reasons, legal theories will, like the laws, tend to
underestimate the role of situation\--too often ignoring or downplaying
the role of unseen forces that move or exploit the situation.
[[\[FN652\]](#Document1zzFN_F652)]{.underline} Similarly, they will
vastly limit our ability to see certain harmful situational forces and
our ability to correct for those that we do see, such as the role of
market manipulation. [[\[FN653\]](#Document1zzFN_F653)]{.underline}

System affirmation will be accomplished in significant part through the
dispositionism that already infects our attributions. Throughout, there
will be little serious attention given to the possibility that people\'s
conduct deviates from that of the model (dispositional) actor. That is,
only the most obvious interior and exterior situational influences will
be acknowledged. [[\[FN654\]](#Document1zzFN_F654)]{.underline} And
those theorists who challenge the dominant conceptions will be viewed
(along with their theories) as members of the same marginal and
threatening out-group(s). [[\[FN655\]](#Document1zzFN_F655)]{.underline}

The above description, we believe, accurately depicts much of
traditional law and economics, and it helps to explain its tremendous
real-world influence. [[\[FN656\]](#Document1zzFN_F656)]{.underline}
Unfortunately, social psychology also strongly suggests that such a
legal theory or legal system will have significant harmful
effects\--even as measured by existing normative theories regarding the
goal or goals of law. As the footnotes in this section suggest, we have
provided evidence for many of these claims in **\*138** related work.

Our point here is that a better understanding of the situational
character helps us to better understand our policy and policymaking
systems. And the lessons of social psychology may be as unsettling and
counterintuitive for our understanding of those systems as they have
been for our understanding of ourselves. The very theories that we use
to legitimate our systems, for example, may in fact be contributing to
injustice\--as defined by those theories. Insofar as we ignore
situation, we ignore the limits of presumed autonomy and many of the
most influential forces in our society\--often far more influential than
personal choice. That situational ignorance, it would seem, likely
advantages those people, groups, and interests with the greatest
autonomy to start with. Thus, situational ignorance helps to
create\--and then legitimate and maintain\--power relationships.
[[\[FN657\]](#Document1zzFN_F657)]{.underline} Power that is reinforced
by the law is legitimated as the acceptable outcome of neutral legal
processes. When those processes are understood as part of the
manipulated, constructed, hidden situation that creates that power, any
claim of neutrality vanishes\--and, with it, the legitimacy that guards
associated inequalities.

Part V will provide some support for many of the assertions in this
Part; it will also demonstrate how legal theorists have dealt with the
dissonance created by the growing social scientific evidence that we are
situational characters.

V. DISPOSITIONISM IN LAW AND ECONOMICS

\"Living in economic science makes economists think a little differently
than other people.\" \~ George Stigler
[[\[FN658\]](#Document1zzFN_F658)]{.underline}

In Part I, we described the generally dispositionist starting place of
legal analysis, laws, lawmakers, and indeed virtually all western
individuals and institutions. As we suggested, no social theory more
formally and explicitly embraces the basic pre-theoretic axioms of lay
dispositionism than neoclassical (law and) economics.
[[\[FN659\]](#Document1zzFN_F659)]{.underline} As we argued in a
previous article, the success of the economic view in policymaking has
likely both depended upon and contributed to a similar commonsense
vision. [[\[FN660\]](#Document1zzFN_F660)]{.underline} But, as we have
argued in this Article, the dominant dispositionist model is, in many
ways, fundamentally flawed.

As evidence of those flaws has gained wider audiences and has begun to
disseminate through academia, that evidence has begun to pose a threat
to the legal theorists and jurists who are committed to dispositionism.
It has created a **\*139** dissonance between their motives to achieve
simplicity and confirm their existing theories, on one hand, and their
motive for accuracy on the other. The threat has been felt most acutely
among (law and) economic theorists because of their field\'s dominance
in modern policymaking, its clear and formal adoption of dispositionism,
and the system-affirming quality of much of their work. There is now an
unmistakable uneasiness among (legal) economists and a great deal of
work attempting to reconcile their theories with the growing evidence
that seems to contradict it. Indeed, much of the most interesting and
important work these days involves applying certain features of social
psychology to the law and economics model.
[[\[FN661\]](#Document1zzFN_F661)]{.underline}

Most economists are, of course, humans, and their strategies for coping
with the theoretic-empiric dissonance are all too human. This section
looks closely at how law and economics has responded, and how seriously
its advocates have taken the insights of social psychology. First, it
reveals that the dispositionist actor has been carefully guarded.
Second, it provides further evidence that even scholars who have devoted
their careers to one or another version of the rational actor remain
situational characters.

A. THE DISPOSITIONIST ACTOR OF LAY AND LEGAL-ECONOMIC THEORIES

\"The theory of consumer demand, as is now widely accepted, is based on
\[the\] \.... proposition \... that wants originate in the personality
of the consumer or, in any case, that they are given data for the
economist.\" \~ John Kenneth Galbraith
[[\[FN662\]](#Document1zzFN_F662)]{.underline}

Economists assume that human agents gather and process information
(think) in order to identify the best method or means of satisfying
their (stable and exogenous) preferences through willed choice. Robert
Cooter and Thomas Ulen, legal economists, summarize this basic starting
place in their classic law and economics text:

The construction of the economic model of consumer choice begins with an
account of the preferences of consumers. Consumers are assumed to know
the things they like and dislike and to be able to rank the available
alternative combinations of goods and services according to their
ability to satisfy the consumer\'s preferences. This involves no more
than ranking the alternatives as better than, worse than, or equally as
good as one another\....

\[T\]he preferences of the consumer are subjective. Different people
have different tastes, and these will be reflected in the fact that they
may have different preference orderings over the same goods and
services. Economists leave to other disciplines, such as psychology and
sociology, the study of the **\*140** source of these preferences. We
take consumer tastes or preferences as given, or, as we sometimes say,
as exogenous, which means that they are determined outside the economic
system. [[\[FN663\]](#Document1zzFN_F663)]{.underline}

From such axioms, it is easy to conclude that each person\'s actions
constitute willed choices reflecting the outcome of that
information-gathering, preference-pursuing process. Or, as economist
David Kreps summarizes, the basic economic approach presumes that
\"choice is induced from preference \....\"
[[\[FN664\]](#Document1zzFN_F664)]{.underline}

That is the lesson of what economists call the \"Generalized Axiom of
Revealed Preference\" (\"GARP\")
[[\[FN665\]](#Document1zzFN_F665)]{.underline}\--the approach that,
since its first articulation sixty-five years ago \"has gradually taken
hold of choice theory in general and demand theory in particular.\"
[[\[FN666\]](#Document1zzFN_F666)]{.underline} According to Nobel
Laureate Paul Samuelson, who first formulated revealed preference
theory, \"\[t\]he individual guineapig, by his market behaviour, reveals
his preference pattern\--if there is such a consistent pattern.\"
[[\[FN667\]](#Document1zzFN_F667)]{.underline} In this world according
to GARP, preferences drive choices; so preferences can be inferred from
(are revealed by) actual choices\--such that there is no need to ask
consumers why they do what they do, because what they do reveals the
story: [[\[FN668\]](#Document1zzFN_F668)]{.underline}

Standard economic theory employs an \"objectivist\" position based on
observable choices made by individuals. Individual utility only depends
on tangible **\*141** goods and services and leisure. It is inferred
from behavior (or revealed preferences), and is in turn used to explain
the choices made. [[\[FN669\]](#Document1zzFN_F669)]{.underline}

In this theory, choices are the means by which individuals satisfy their
preferences and by which policy analysts infer those preferences and
measure social welfare. [[\[FN670\]](#Document1zzFN_F670)]{.underline}
Amartya Sen, yet another Nobel Laureate, insightfully suggests that
\"the popularity of this view \... may be due to a mixture of an
obsessive concern with observability and a \... belief that choice \...
is the only human aspect that can be observed.\"
[[\[FN671\]](#Document1zzFN_F671)]{.underline}

It is worth noting here, briefly, the striking parallel between
\"revealed preferences\" and the fundamental attribution error: both
presume, based largely on observability, that behavior is
dispositionally explained. Moreover, revealed preference theory is
successful, not because it has been shown to be true, but because it is
tractable and comports with our intuitions. Sen (who is an important
exception to this overgeneralized description of economics)
[[\[FN672\]](#Document1zzFN_F672)]{.underline} puts the point this way:

Faith in the axioms of revealed preference arises \... not from
empirical verification, but from the intuitive reasonableness of these
axioms interpreted precisely in terms of preference\....

I would, therefore, argue that the claim of explaining \"behaviour
without reference to anything other than behaviour\" is pure rhetoric
and if the theory of revealed preference makes sense it does so not
because no psychological assumptions are used but because the
psychological assumptions used are sensibly chosen.
[[\[FN673\]](#Document1zzFN_F673)]{.underline}

As we have shown, however, those psychological assumptions are not
sensibly chosen, and thus there would appear to exist a fundamental
attribution error at the heart of revealed preference theory and the
economic analysis that has been built upon it.
[[\[FN674\]](#Document1zzFN_F674)]{.underline}

**\*142** It is unsurprising, given their assumptions and perspectives,
that many economists similarly infer freedom (and happiness or welfare)
[[\[FN675\]](#Document1zzFN_F675)]{.underline} from the perception of
choice and, hence, celebrate markets as the most trustworthy of vehicles
for the actualization of preferences. Thus, Milton Friedman explains:

When you hear people objecting to the market or to capitalism and you
examine their objections, you will find that most of those objections
are objections to freedom itself. What most people are objecting to is
that the market gives people what the people want instead of what the
person talking thinks the people ought to want. That is true whether you
are talking of the objections of a Galbraith to the market, whether you
are talking of the objections of a Nader to the market, whether you are
talking of the objections of a Marx or an Engels or a Lenin to the
market. [[\[FN676\]](#Document1zzFN_F676)]{.underline}

To Friedman and to most economists, a market choice is, absent strong
reason to believe otherwise, a free choice.
[[\[FN677\]](#Document1zzFN_F677)]{.underline} And free choice is, in
light of the other pre-theoretic axioms, the normative standard against
which all laws, policies, and regulations should be measured. Policies
should encourage contracting and market transactions wherever possible,
and should otherwise seek to achieve outcomes that mimic the allocations
that would occur were free markets fully functioning.
[[\[FN678\]](#Document1zzFN_F678)]{.underline} And it is largely because
of those presumptions that many economists have responded to evidence
that their simple model is badly flawed, not by denying the veracity of
the evidence, but by warning that any serious discussion of such
evidence opens the door, or begins us down a slippery slope, **\*143**
to one or another form of totalitarianism.
[[\[FN679\]](#Document1zzFN_F679)]{.underline}

When people perceive a threat to the social system, they tend to see the
world in more dispositionist terms.
[[\[FN680\]](#Document1zzFN_F680)]{.underline} Relatedly, when
dispositionists\--particularly hard-core dispositionists like \"a
Friedman\"\--are confronted with evidence or opinions that situation is
more significant than they believe, they perceive that evidence or
opinion as a threat to the system. And all those who offer such
criticisms\--be they \"a Galbraith \... a Nader a Marx or an Engels or a
Lenin\"\--are themselves dispositionalized into a single out-group of
individuals who pose a threat to our system.
[[\[FN681\]](#Document1zzFN_F681)]{.underline}

We suspect that the interior fundamental attribution error largely
explains\-- or at least makes possible\--both the pre-theoretic axioms
of economic models and the normative social policies that most legal
economists embrace. [[\[FN682\]](#Document1zzFN_F682)]{.underline}
Again, the attraction and success of that approach stems in part from
its consonance with perceived, if unexamined, human experience (and with
its system-affirming effects). And, for similar reasons, we suspect that
the same influence is reflected in the theories underlying many of our
most influential social, cultural, political, and economic
institutions\-- particularly those that, like economics, have not taken
seriously the project of examining our exterior or interior situations.
[[\[FN683\]](#Document1zzFN_F683)]{.underline}

The consonance between economic assumptions and common Western lay
assumptions [[\[FN684\]](#Document1zzFN_F684)]{.underline} goes beyond
merely the pre-theoretic axioms regarding the landscape of our
interiors. Economists share not only the lay intuition that people act
according to their thoughts and preferences, but also (at least loosely)
widely held lay presumptions regarding what those thoughts, preferences,
and acts tend to be. As several social psychologists recently
summarized, \"the model of the ideal person,\" \"especially in the
United States since the 1970s,\" has come to embody the following
characteristics, characteristics that likewise imbue the rational actor:

• oriented primarily toward independent \"success\" and \"achievement.\"

• formulates personal goals derived principally from these attributes
and orientations.

• evaluates life with reference to the achievement of these goals.

• makes (or should make) independent, more or less rational choices in
the pursuit of those goals.

**\*144** • is largely in control of\--and individually responsible
for\-- \"personal\" behavior and its outcomes.

• often regards relationships as competing with personal needs and
regards group pressures as interfering with personal goals\....

• strives first and foremost to feel good about the self.
[[\[FN685\]](#Document1zzFN_F685)]{.underline}

Thus, there is an overlap between economic models and lay institutions,
not only in the interior source of dispositionism, but also in precisely
what those dispositions are generally assumed to be.
[[\[FN686\]](#Document1zzFN_F686)]{.underline} That second overlap, like
the first, is no coincidence, a claim we bolster in other work.
[[\[FN687\]](#Document1zzFN_F687)]{.underline} For now, it is sufficient
to state that the typical assumptions of economic models regarding what
people\'s precise dispositions are both reflect and reinforce common lay
intuitions. Moreover, those dispositions are easily presumed, and
difficult to disprove, given that the shared pre-theoretic axioms have
little or no place for situation. In other words, the presumption that
our interiors are driven primarily by thinking, preferring, and acting
make it difficult to understand how something other than self-interested
goals are behind our behaviors and difficult to understand how people\'s
\"free\" choices could be anything but personally\--and, taken together,
collectively\--satisfying.

B. SCRUTINIZING THE MYTH OF THE RATIONAL ACTOR

\"The notion that humans abide by normative principles dies hard,
especially amongst economists \....\" \~ Philip N. Johnson-Laird & Eldar
Shafir [[\[FN688\]](#Document1zzFN_F688)]{.underline}

After getting to know the situational character and learning that our
assumptions about how we think and why we act are fundamentally flawed,
it is illuminating to look more closely at the most sophisticated
justifications thus far offered for the unrealistic dispositionism of
economics and legal economics. Doing so suggests that there is, in fact,
no compelling justification.

Stanford economist David Kreps, winner of the prestigious John Bates
Clark Medal, and one of the most respected economists and game theorists
in the business, begins his leading graduate-level text by laying out
the basic concepts, schemas, and purpose of microeconomics.
[[\[FN689\]](#Document1zzFN_F689)]{.underline} His treatment illustrates
what today\'s top economists are teaching tomorrow\'s top economists
about how to **\*145** justify their approach, and the fact that
economics, more than any other social science, defines policy analysis
and shapes policy. [[\[FN690\]](#Document1zzFN_F690)]{.underline}

Kreps opens his book by setting forth the basic pre-theoretic axioms of
economics. He explains, for example, that

\[i\]n the standard approach, behavior always takes the form of
constrained maximization. The actor chooses from some specified set of
options, selecting the option that maximizes some objective function. In
orthodox theory, consumers have preferences that are represented by a
utility function, and they choose in a way that maximizes their utility
\.... [[\[FN691\]](#Document1zzFN_F691)]{.underline}

On this view, nothing inside the model other than preferences influences
people\'s behavior, [[\[FN692\]](#Document1zzFN_F692)]{.underline} and
any action reflects a utility maximizing choice among options. In other
words, the standard economic approach assumes that people are both
rational and dispositional actors. Thus, Kreps begins by providing the
basic economic account of human behavior.
[[\[FN693\]](#Document1zzFN_F693)]{.underline}

To his credit, Kreps goes on to admit that people (by whom we suspect he
means \"non-economists\") often find those assumptions to be
counterintuitive or contrary to their own casual empiricism. He writes:

These models of consumer \... behavior typically strike people as fairly
obnoxious. We don\'t find consumers strolling down the aisles consulting
a utility function when making their choices \.... Nonetheless, we will
use the standard model of consumer behavior throughout \... the book.
[[\[FN694\]](#Document1zzFN_F694)]{.underline}

Because of this lack of realism,
[[\[FN695\]](#Document1zzFN_F695)]{.underline} Kreps concedes, it would
\"behoove\" economists to explain \"why \[they\] think such models are
useful,\" a task that he then takes up.
[[\[FN696\]](#Document1zzFN_F696)]{.underline}

According to Kreps, economists typically rely on one or more of several
defenses. The first defense is that

**\*146** economic models don\'t presume that consumers actively
maximize some tangible utility function; the presumption is that
consumers act as if this is what they do. Hence, an important part of
the theory of individual behavior concerns testable restrictions of the
models we use: what behavior, if observed, would clearly falsify our
models? If the models are not falsified by our observations, then our
models are good positive models\-- perhaps not descriptive as to why
things happen, but good in describing what happens.
[[\[FN697\]](#Document1zzFN_F697)]{.underline}

Thus, the first line of defense is to claim that microeconomics theory
is not a normative or causal theory, but a positive theory\--that is, a
theory concerned not with describing \"why\" individuals do what they
do, but with predicting \"what\" individuals will do. According to
Kreps, therefore, so long as the rational actor theory generates
testable predictions, and so long as people do in fact behave \"as if\"
they are rational actors, then microeconomics is justified as a positive
theory, even if the theory does not provide a realistic account of why
people act that way. [[\[FN698\]](#Document1zzFN_F698)]{.underline}

That defense was first offered a half century ago by Milton Friedman in
response to the same basic criticism,
[[\[FN699\]](#Document1zzFN_F699)]{.underline} and it has been refined
very little since. Its longevity notwithstanding, close inspection
reveals some flaws in the logic behind the economists\' Maginot Line.
First, the \"as if\" claim, insofar as it is true, justifies economics
only as a positive theory, and not a causal or normative theory. Thus,
it largely fails as a defense against the criticism it is intended to
repel: How does one justify premising policy goals and policies on an
unrealistic positive theory, except perhaps when the basic model is
relied upon solely to help predict the effects of a policy change?
[[\[FN700\]](#Document1zzFN_F700)]{.underline} We are getting slightly
ahead of ourselves. We should first consider whether economics succeeds
even as a positive theory.

As Kreps partially recognizes, the positive theory has some problems:
\"Unhappily, rather a lot of data has been collected, especially
experimentally, which falsifies the models we will employ.\"
[[\[FN701\]](#Document1zzFN_F701)]{.underline} Presumably, Kreps is here
acknowledging the recent work of economic behavioralists on choice
biases. [[\[FN702\]](#Document1zzFN_F702)]{.underline} Still, according
to Kreps, the game may not be over, because economists still have some
moves:

**\*147** At this \[economists\] fall back to our second line of defense
by saying that such violations may be minor and not amount to much. That
is, the standard models may be good approximations of individual
behavior, and the conclusions of models built from such approximations
may thus be approximately valid. This requires a leap of faith, but it
is still a leap that has some intuitive appeal.
[[\[FN703\]](#Document1zzFN_F703)]{.underline}

That seems right. Economists can claim (and, indeed, have long claimed)
[[\[FN704\]](#Document1zzFN_F704)]{.underline} that the anomalies are
trivial in fact or trivial in effect. According to that defense, the
positive economic model is still a reasonable approximation of
individual behavior. As Kreps acknowledges, however, any such assertion
is just that: an assertion. Such a claim will be convincing only to
those people willing to make the \"leap of faith\" necessary to conclude
that the empirically demonstrated anomalies are minor.
[[\[FN705\]](#Document1zzFN_F705)]{.underline}

Kreps indicates that many people are willing to make such a leap because
of the basic model\'s \"intuitive appeal.\" That also seems right. After
all, the leap appears to have been made by generations of economists and
legal economists. [[\[FN706\]](#Document1zzFN_F706)]{.underline} Still,
it is an assertion that seems somewhat in tension with the observation
that led him to offer these defenses in the first place\-- namely that
(non-economistic) people found the basic model counterintuitive.
[[\[FN707\]](#Document1zzFN_F707)]{.underline} And it is an assertion
that seems rarely tested, and sometimes shown to be sorely mistaken when
it is. [[\[FN708\]](#Document1zzFN_F708)]{.underline}

**\*148** Alternatively, according to Kreps, the positive model may be
salvaged if one changes the level of abstraction from individual
behavior to that of aggregate behavior. That popular defense, too, has
purchase, Kreps admits, only \"if we believe that violations of \[the\]
models \... cancel out at the level of aggregate behavior,\" another
leap of faith, and \"only if all we care about is aggregate behavior.\"
[[\[FN709\]](#Document1zzFN_F709)]{.underline}

Those are two big \"only if\'s,\" which require another leap of faith
that seems contrary to the best available evidence. The problem is that
there have been few testable predictions at that level of abstraction
(\"aggregate behavior\") that have in fact been tested in a way that
provides much significant support for the basic economic assumptions.
Indeed, to the contrary, the behavioral critiques of the rationality
assumption are not aimed just at individual behavior. They reveal
systematic biases that simply do not cancel out on net.
[[\[FN710\]](#Document1zzFN_F710)]{.underline}

It is precisely the assumption that deviations will tend to cancel out
that many economic behavioralists claim to have disproven through
empirical testing. That the Nobel Prize was recently awarded to Daniel
Kahneman for his decades of work identifying tendencies that often do
not cancel out bodes ill for the future of this still-popular defense.
Moreover, as we have already summarized, the evidence that economists do
sometimes offer\--like downward-sloping demand curves\--is of little
value as an empirical defense of the rational actor model inasmuch as it
is consistent with a vast range of possible alternative theories.
[[\[FN711\]](#Document1zzFN_F711)]{.underline} And, finally, even if
behavioral deviations from the rational actor model were to somehow
disappear in the aggregate, it is not clear why that should be any more
comforting to economists than the person with one foot in ice and the
other foot in boiling water would be comforted by the observation that,
on average, his feet are warm.

**\*149** So, it seems, the first line of defense is either not a
defense or has already fallen, and the second line is driven solely by
faith and intuition\--a faith and intuition that not only lacks
empirical support but that is contrary to the best evidence.
[[\[FN712\]](#Document1zzFN_F712)]{.underline}

The weaknesses with those defenses become even more evident when one
looks at how Kreps, in a subsequent section of his book, describes the
purpose of economic theory. The topics are closely related, as Kreps
seems to recognize, given that the defensibility of any theory should
depend in part on the purpose to which it is being put. That the sun
behaves as if activated by a rooster\'s crow may be a useful positive
theory to the farmer for deciding when to rise for morning chores, but
it would be a mistake to use such a theory in attempting to influence or
understand the sun\'s relationship to the earth. So what is the goal or
purpose of economics? According to Kreps, it is to analyze the
efficiency and specific inefficiencies in various institutional
frameworks with a view towards policy.

One tries to see whether a particular institution can, by tinkering or
by drastic change, be made to yield a socially better outcome; the vague
presumption is that changes that improve the social weal might be made
via social and political processes.
[[\[FN713\]](#Document1zzFN_F713)]{.underline}

Notice Kreps\'s dramatic, though only implicit, change in emphasis. When
defending microeconomics, Kreps focused neither on the understanding
that the theory provides nor the fact that microeconomics can tell us
what people want or how policy should be made. Indeed, he explicitly
distanced economics from that ambition. His point was that despite the
unrealism of economic models, they might nonetheless provide useful
positive theories of behavior. In contrast, when discussing the purpose
of microeconomics, Kreps indicates that its primary use is to improve
social welfare through policy prescriptions and to **\*150** provide \"a
better understanding of economic activity and outcomes.\"
[[\[FN714\]](#Document1zzFN_F714)]{.underline} Thus, as we have already
hinted, Kreps is attempting to justify a prescriptive use of economics
by arguing (with little success) that the rational-actor model may be
useful in making predictions. Put differently, Kreps, like most
conventional economists, is looking to the rooster for an understanding
of the sun.

The problem for Kreps\--indeed, for all of microeconomics, including law
and economics [[\[FN715\]](#Document1zzFN_F715)]{.underline}\--is that
even if economic models did provide valuable positive predictions, there
is no reason to believe that those models will help us understand
ourselves or that the policy prescriptions based on those models will
\"improve the social weal.\" To serve such purposes, we would at least
need some reason to believe that the \"as if\" theories of economics are
based on a realistic account of the human experience.

It is one thing to use economics to predict that, say, a tax on an
activity will decrease the amount of that activity. Such a positive
prediction follows from the \"as if\" hypothesis and may indeed be
useful to policymakers, just as a rooster\'s crow is useful to farmers.
[[\[FN716\]](#Document1zzFN_F716)]{.underline} The problem is that
economics is being used to do much more in the policymaking arena. The
notion of choice-based preference satisfaction (and the welfare
maximization presumed to follow from it) provides the normative analytic
for determining which activities should be taxed in the first place.
Indeed, it is the basic person schema that forms the foundation for all
of law and policy. [[\[FN717\]](#Document1zzFN_F717)]{.underline} If the
very notion of choice-based preference satisfaction is a widely shared
myth, then on what grounds should policy be built around it? It is
reliance on the presumption of such dispositionism that appears to
justify Kreps\'s and others\' implicit jump from positive analysis to
normative analysis, and it is that very presumption that we have argued
is mostly myth, rendering the jump unjustified.

Our critique comes into clearer focus by examining more closely what
Kreps means by the sort of theory on which policy makers should rely. He
asks:

\[H\]ow does one know when one has learned something from an exercise in
microeconomic theory? The standard acid test is that the theory should
be (a) testable and (b) tested empirically, either in the real world or
in the lab. But many of the models and theories given in this book have
not been subjected to a rigorous empirical test, and some of them may
never be. Yet, I maintain, **\*151** models untested rigorously may
still lead to better understanding, through a process that combines
casual empiricism and intuition.

By casual empiricism joined with intuition I mean that the reader should
look at any given model or idea and ask: Based on personal experience
and intuition about how things are, does this make sense? Does it help
to put into perspective things that have been observed? Does it help
organize thoughts about a number of \"facts?\" When and if so, the
exercise of theory construction has been useful.
[[\[FN718\]](#Document1zzFN_F718)]{.underline}

In short, Kreps\'s argument seems to be that, although it would be
preferable to have reliable social scientific research to defer to, the
fact that economics tends to rely on far less is not really a concern.
And so Kreps, the pure economist, makes explicit what the work of legal
economists evinces: The best we can hope for from economic models of the
sort that dominate policy analysis is not realism or testable and tested
theories of human behavior, but theory anchored, at bottom, in casual
empiricism and intuition and a theory that seems to \"make sense.\" This
is not to say that economists and legal economists do not construct and
test theories. Clearly they do. The point is that those theories emerge
from models about human behavior that are themselves untested (at least
by economists).

Thus, as we emphasized at the outset, the place where economists decide
to defer to casual empiricism is precisely the place where many critics
claim that their theory is \"obnoxious\" and precisely the place where
social psychology applies its focus.
[[\[FN719\]](#Document1zzFN_F719)]{.underline} Instead of falling back
on casual empiricism or intuition, social psychology relies on testable
hypotheses and testing. What social psychology through such research
teaches\--and what we have reviewed throughout this Article and its
companion\--is that it is precisely at that point where neither our
intuitions nor our casual empiricism can be trusted. As psychologist
Robert Crowder has expressed the point, intuition can no better teach us
about the actual operation of our minds than it can about the operation
of our kidneys. \"To deny this means to accept that the brain is
translucent in process whereas other organs are opaque. Why should this
be the case?\" [[\[FN720\]](#Document1zzFN_F720)]{.underline}

**\*152** The situation that economists, like most humans, have failed
to take into account, is, like renal workings, barely observable through
the lens of consciousness, intuition, or casual empiricism. And so it is
that both the interior and exterior situations combine to lead us toward
the fundamental attribution error, to see relatively weak dispositions,
and to overlook the more powerful situation.

At bottom, despite economists\' claims and aspirations to be social
scientific, their work is based on little more than faith and unreliable
intuitions, motives, and situation. Our best social science tells us not
to trust our intuitions as Kreps urges, but to be suspicious of them.
What \"makes sense\" to us is too often demonstrably wrong. Economics,
while claiming to be the hardest of social sciences is, at its core,
among the softest. Its pre-theoretic axioms are little more than the
appealing products of our constructed perceptions. And, as we argue in
other work, the success of economics is partially the result of the fact
that many people share those intuitions and readily dismiss or disregard
more reliable, but less self-affirming or system-affirming, findings of
social psychology. [[\[FN721\]](#Document1zzFN_F721)]{.underline}

Let us belabor the point with one more metaphor. It is as if economists
are advising pilots flying in poor visibility to ignore altimeters that
warn of rapid descent and to rely instead on intuition about direction
and trajectory. Unfortunately, that practice is the tragic inclination
of many unseasoned pilots. The right advice, of course, is for pilots to
disregard intuition and fly their aircraft based on scientific
instrumentation. Thus, while economists and legal economists urge us to
abide by our shared vertigoes, critical realism urges that we recognize,
understand, and strive to counteract our intuitive but vertiginous
dispositionism.

C. FIVE TYPES OF INADEQUATE \"REALISM\"

\"\[T\]he profession of economics is not lacking in the instinct of
self-preservation. The other bear sees in the threat to her cubs the
ultimate threat to the survival of her kind. She reacts with angry
venom. Nothing is more likely to produce a similar reaction from
defenders of the conventional economic wisdom than an attack on the
edifice which now rationalizes the importance of production and the
urgency of consumer need.

The parallel with maternal instinct is important, for the defense of the
present value system \... is largely intuitive. Few economists in recent
years can have escaped some uneasiness \.... That uneasiness has
reflected the crucial weakness of the literature on this point.\" \~
John Kenneth Galbraith [[\[FN722\]](#Document1zzFN_F722)]{.underline}

**\*153** In response to mounting criticism, legal economists, following
the lead of a burgeoning camp of economists, have gradually sought to
portray their models as based on reasonably realistic accounts of human
actors. [[\[FN723\]](#Document1zzFN_F723)]{.underline} Responses range
from efforts to minimize the problem of unrealism by denying that the
model of humanity in conventional economic analysis is in fact terribly
unreal, to paying lip service to the problem but otherwise ignoring it,
to more elaborate efforts that involve pursuing the limits of the
rational actor model as a research agenda. All of these approaches,
however, share a basic, and often deep, commitment to the basic law and
economics paradigm. They countenance only as much \"realism\" as their
authors believe the paradigm can withstand.

1\. Counterfeit Realism

Some of Richard Posner\'s writings exemplify the minimalist version of
legal economists\' response to the realism challenge. Posner denies that
law and economics is as unreal or reductionist as its critics contend.
In his view,

\[f\]ar from being reductionist, as its detractors believe \.... \[the
project of law and economics\] is not to reduce human behavior to some
biological propensity, some faculty of reason, let alone to prove that
deep within us, pulling the strings, is a nasty little \"economic man.\"
It is to construct and test models of human behavior for the purpose of
predicting and (where appropriate) controlling that behavior. Economics
imagines the individual not as \"economic man,\" but as \... one who
bases decisions not on sunk costs\-- these he treats as bygones
(\"Don\'t cry over spilt milk\")\--but on the costs to be incurred and
the benefits to be reaped from alternative courses of action that remain
open. The individual imagined by economics is not committed to any
narrow, selfish goal such as pecuniary wealth maximazation. Nothing in
economics prescribes an individual\'s goals. But whatever his goal or
goals, some or for that matter all of which may be altruistic, he is
assumed to pursue them in a forward-looking fashion by comparing the
opportunities open to him when he must choose.
[[\[FN724\]](#Document1zzFN_F724)]{.underline}

Posner\'s point here seems to be that law and economics is based not on
a caricatured and reductive rational actor model, but on a far more
realistic and flexible model of humanity\--one that allows for virtually
any goal. Those familiar with much law and economics scholarship may be
scratching their heads. Posner has often celebrated the reductionism of
economic analysis [[\[FN725\]](#Document1zzFN_F725)]{.underline}\--
**\*154** almost as frequently as he has assumed that wealth or some
similarly \"narrow\" and \"selfish\" goal is at the bottom of human
decision-making, [[\[FN726\]](#Document1zzFN_F726)]{.underline} and that
other goals or motivators, such as \"morality\" should play no role in
judicial decisions. [[\[FN727\]](#Document1zzFN_F727)]{.underline} It
was Posner, after all, who based his positive theory of the common law
on \"wealth maximization,\"
[[\[FN728\]](#Document1zzFN_F728)]{.underline} and who informed readers
that economic theory is \"committed to\" the assumptions \"that people
seek to advance their self-interest and do so rationally.\"
[[\[FN729\]](#Document1zzFN_F729)]{.underline} And he is not alone.
Contrary to Posner\'s claim in the block quote above, \"\[t\]he
individual imagined by economics\" is in fact virtually always
\"committed to a\[\] narrow\" goal, almost always a \"selfish\" goal,
and usually that of \"pecuniary wealth maximization.\"
[[\[FN730\]](#Document1zzFN_F730)]{.underline}

Posner thus responds to the realist critique by denying aspects of his
theory that he sometimes embraces, even celebrates. But his denial is in
the form of assertions, not evidence\--assertions about what law and
economics could be, rather than about what it is. He takes refuge in the
(largely unrealized) potential of law and economics to be more
realistic. [[\[FN731\]](#Document1zzFN_F731)]{.underline} So it is that
he claims that \"\[n\]othing in economics prescribes an individual\'s
goals,\" instead of claiming, as he could not, that legal economists
are, in practice, ecumenical in modeling a vast range of possible human
goals. [[\[FN732\]](#Document1zzFN_F732)]{.underline} So it is that he
asserts that the project of law and economics is not \"to prove that
deep within us, pulling the strings, is a nasty little \'economic
man,\"\' instead of asserting, as he could not, that the little monster
does not figure prominently in most of the analyses that legal
economists conduct, and from which they generate their policy
prescriptions. [[\[FN733\]](#Document1zzFN_F733)]{.underline}

**\*155** We are taking the trouble to lay out Posner\'s largely
nonresponsive response\--emphasizing what law and economics could do
rather than what law and economics typically does\--because this type of
defense is extremely common.
[[\[FN734\]](#Document1zzFN_F734)]{.underline} Yet even the potential
version of law and economics, which Posner and other legal economists
believe immunizes the entire approach, is profoundly unrealistic.
[[\[FN735\]](#Document1zzFN_F735)]{.underline} Posner, for example, is
willing to accept that people might be motivated by goals other than
wealth maximization\--such as altruism.
[[\[FN736\]](#Document1zzFN_F736)]{.underline} But he nevertheless
maintains his commitment to the view that whatever the chosen goal, it
is pursued in a prototypically rational way, with costs and benefits
balanced in a forward-looking maximizing manner.
[[\[FN737\]](#Document1zzFN_F737)]{.underline} And, of course, beneath
this assumption is an unstated axiom that it is always one or more
personally held goals\--our dispositions\--that move us. This, too, is a
common response. **\*156** Indeed, it may be one of the few responses
available to those who, like legal economists, are committed to
\"rational actor\" [[\[FN738\]](#Document1zzFN_F738)]{.underline} or
\"rational choice\" models.
[[\[FN739\]](#Document1zzFN_F739)]{.underline}

Although it is certainly realistic to acknowledge that people may have
motives other than wealth maximization, it is not realistic to leave
unexamined and unchallenged the assumption that those ends are pursued
by goal-maximizing, fully autonomous, forward-directed, rational actors.
Who, for example, is this \"man\" who suffers no pause over spilled
milk, if not the \"economic man?\"
[[\[FN740\]](#Document1zzFN_F740)]{.underline} The colloquialism is
itself a signal of the human tendency to be influenced by sunk costs, a
tendency that has been documented as systematic by social psychologists.
[[\[FN741\]](#Document1zzFN_F741)]{.underline} Posner\'s denial of
realism is belied by the fact that even his account of what law and
economics could be simply ignores much of what is in the human
experience. Posner makes no serious attempt to begin legal-economic
analysis with a realistic depiction of how human beings think and
behave. As we have demonstrated, when one begins to look systematically
at broad ranges of what social science has taught us about humanity, the
conventional law and economics model\'s unrealism is revealed as severe
in almost every aspect.

Clinging to a demonstrably unrealistic model of the human actor, Posner
nonetheless goes on to assert that law and economics is comfortable with
the realities of the human mind:

**\*157** Realistic about means as well as ends, economics does not
depend on the idea that human beings are effortless and infallible
calculators. A market may behave rationally, and hence the economic
model of human behavior apply to it, even if most of the individual
buyers (or buys) are irrational. Irrational purchase decisions are
likely to be random and hence cancel each other out, leaving the average
behavior of the market to be determined by the minority of rational
buyers (or purchases). [[\[FN742\]](#Document1zzFN_F742)]{.underline}

While Posner begins here by stating that the economic approach is
\"realistic\" about ends and means, what he actually argues is that
economics does not \"depend\" on realistic assumptions about human
beings. Posner\'s point is that economic theory can predict
downward-sloping demand curves even if \"most\" people are not rational.
In other words, because price increases do lead to quantity decreases in
the number of products purchased by consumers, as basic economic models
predict, Posner suggests that his reliance on the economic model is
fully vindicated, as is his dismissal of other realities that his
approach ignores. In a world where consumer behavior does map a
downward-sloping demand curve, legal economists may, according to this
view, feel confident disregarding factors other than conventional
\"choice\" variables, such as price, that might influence consumer
behavior.

But this is a non sequitur. No one is claiming that the problem with law
and economics is its inability to predict a downward-sloping demand
curve. Neither do critics argue that more realistic views of human
behavior actually predict upward sloping demand-curves. Downward-sloping
demand curves are perfectly consistent with numerous consumer models;
[[\[FN743\]](#Document1zzFN_F743)]{.underline} they are neither the test
of realism, nor the issue under debate.
[[\[FN744\]](#Document1zzFN_F744)]{.underline} Ultimately, Posner falls
back on the **\*158** claim that the rational-actor construct is
intended, not as a realistic model of human behavior, but as a model
whose legitimacy rests in its ability to predict human behavior.
[[\[FN745\]](#Document1zzFN_F745)]{.underline} His assumption that
people often behave as if they are rational actors is, despite the
absence of compelling empirical evidence in support of that belief,
[[\[FN746\]](#Document1zzFN_F746)]{.underline} enough for Posner and
most other economists. [[\[FN747\]](#Document1zzFN_F747)]{.underline}
But even if the rational actor model did generate accurate predictions
of human behavior, the fact that that model is premised on demonstrably
unrealistic assumptions should cut against the wisdom of making it the
basic framework through which to analyze law, not in favor of it. That
the sun rises as if the rooster\'s crow released it from the horizon may
be a useful positive theory for deciding when to awaken; but if the
purpose is one of \"predicting and (where appropriate) controlling\"
[[\[FN748\]](#Document1zzFN_F748)]{.underline} the sun\'s behavior, one
would do well to forget the rooster and to begin with a more realistic
account of celestial dynamics.

In sum, although they claim that economics is committed to realism,
Posner and many scholars applying his basic approach only pretend to be
sensitive to **\*159** realism in order to justify ignoring it. He is
engaging in what we describe as counterfeit realism; it is both token
and false. [[\[FN749\]](#Document1zzFN_F749)]{.underline}

2\. Defensive Realism

Defensive realists, in contrast to counterfeit realists, accept the
notion that more accurate descriptions of human behavior exist, but they
nevertheless resist the implication that the law and economics approach
should therefore be significantly altered. The work of Jennifer Arlen
exemplifies this relatively recent tendency of legal economists to
acknowledge the discoveries of social psychologists with one hand even
as they sweep away its significance with the other.
[[\[FN750\]](#Document1zzFN_F750)]{.underline} Arlen, for example,
agrees that

\[c\]onventional law and economics scholars must take behavioral
research into account in analyzing legal issues, particularly in
analyzing the merits of normative policy prescriptions derived from
standard economic theory. The growing body of literature that enriches
conventional law and economics in this way is an exciting development.
[[\[FN751\]](#Document1zzFN_F751)]{.underline}

But Arlen quickly marginalizes the potential implications of behavioral
research for conventional law and economics. Her treatment, like that of
many other legal economists, appears to reveal defensiveness more than
it does \"excitement\" about the implications of behavioralism. She
examines three salient biases identified by behavioralists\--the
endowment effect, the optimism bias, and the \"fairness\"
preference\--and indicates how \"real world forces \... might cause
these biases to be weaker \[in real life\] than they appear to be in the
laboratory.\" [[\[FN752\]](#Document1zzFN_F752)]{.underline} Arlen
further emphasizes that experts, and lawyers in particular, may be able
to \"reduce\" people\'s tendency to fall prey to the illogical
behavioral patterns mapped by the realist critics of law and economics.
And then she concludes with the observation that a theory that assumes
the presence of certain central specific findings of behavioralists
\"cannot yield clear normative policy implications any more than can
conventional law and economics.\"
[[\[FN753\]](#Document1zzFN_F753)]{.underline}

Re-examining the well-known Cornell coffee mug experiment, for example,
Arlen argues that the implications of the \"endowment effect\" which
that study appears to have demonstrated, may not be as important to
legal analysis as economic behavioralists have proposed.
[[\[FN754\]](#Document1zzFN_F754)]{.underline} She points out that the
endowment **\*160** effect has not been strong when subjects receive,
not a mug, but only a fungible token that may be redeemed for an
assigned value. Most commercial transactions, she notes, involve
currency that is more similar to tokens than coffee mugs. Furthermore,
the endowment effect appears to vanish when people \"do not actually
possess the commodity at the time they are asked to trade it, but
possess only the promise of the commodity.\"
[[\[FN755\]](#Document1zzFN_F755)]{.underline}

Arlen argues that the influence of the \"optimism bias\" is similarly
variable, and would not, without more specification, justify additional
regulatory intervention. [[\[FN756\]](#Document1zzFN_F756)]{.underline}
People overestimate the risk of being hit by lightning, she argues, but
may underestimate \"a whole category of risk, such as the risk of
product defects when some risks in the category are well-publicized and
others are not.\" [[\[FN757\]](#Document1zzFN_F757)]{.underline} People
also increase their ability to assess risk, Arlen contends, in
multiple-play scenarios\--that is, where people repeatedly encounter the
same kind of risk. And again, Arlen suggests that with respect to the
legal system, people will rely on experts and lawyers who have
experience and are thus \"less likely to overestimate the merits of
their case.\" [[\[FN758\]](#Document1zzFN_F758)]{.underline}

Arlen also downplays evidence that people exhibit favorable attitudes
towards \"fairness,\" an attitude that does not seem to comport well
with the basic law and economics approach. The \"fairness bias\" is
revealed in experiments such as the ultimatum game. Typically, a subject
is asked in that experiment to accept or reject another subject\'s
proposed split of a given sum of money. If the first subject accepts the
split they both pocket the money according to their agreement. If the
subject rejects the split, neither party takes home anything. In such
experiments subjects regularly reject inequitable divisions, a result
that does not square easily with the standard conception of the rational
actor, who should be as worried about what the other person gets as she
is about spilled milk. Free money, on this account, is free money.

Arlen again contends that such evidence does not warrant a departure
from the conventional economic approach. Fairness concerns are, she
emphasizes, context-dependent. Indeed, there is \"some evidence \...
that people will obey instructions to ignore fairness concerns.\"
[[\[FN759\]](#Document1zzFN_F759)]{.underline} Relatedly, there is no
way of knowing when fairness will be a factor: \"\[T\]he role of
fairness concerns \... appear\[s\] to depend on many situation-specific
factors such as the background of the person, the context of the
decision, \[and\] the instructions given\....\"
[[\[FN760\]](#Document1zzFN_F760)]{.underline} For this reason, it seems
doubtful to Arlen that that the situation-specific **\*161**
consideration of \"fairness\" will be a helpful concept in the analysis
of law.

Notice that Arlen is not attempting to incorporate social psychology\'s
insights, as she claims to want to do. Nor does she ask about how social
psychological findings might undermine assumptions of law and economics
or how those insights might render individuals and institutions subject
to forces that legal economists have never considered. Instead, hers is
essentially an apology for, and defense of, conventional law and
economics, which systematically disregards those insights. Thus, she
concludes:

\[B\]ehavioral economic analysis of law is likely to remain as a set of
suggestions for amending conventional law and economics, together with
an associated set of problems that require sustained attention. It is
not likely to emerge as an alternative framework for analyzing legal
issues. Behavioral economic analysis of law is unlikely to replace
conventional law and economics unless it can formulate a superior model
of human behavior suitable for making normative decisions about optimal
legal regimes \.... [[\[FN761\]](#Document1zzFN_F761)]{.underline}

Like many legal economists, Arlen seems preoccupied with the possibility
that behavioralist insights might be used to \"justify additional
intervention\" by law into the affairs of the autonomous rational actor
that lies at the core of the legal economist\'s vision of the person,
the economy, and the republic. And it is a possibility that she seems
strongly to oppose. She is by no means unusual in that
regard\--dispositionism and related schemas for markets (as
preference-satisfying) and regulations (as preference-frustrating and
paternalistic) are immensely influential in policymaking and among
dominant policy theorists (particularly legal economists).
[[\[FN762\]](#Document1zzFN_F762)]{.underline} Arlen therefore
emphasizes that insofar as the alleged biases exist, they should be
understood to bedevil and render untrustworthy the decision making of
judges, juries, and other potential governmental intermeddlers.

Samuel Issacharoff has, at times, responded to behavioralism in that
same defensive-realist vein. That is, he is willing to stipulate that
people are subject to specific cognitive biases that are inconsistent,
in theory, with the conventional law and economics model.
[[\[FN763\]](#Document1zzFN_F763)]{.underline} The \"self-serving
bias,\" he recognizes, encourages \"people to integrate information in a
fashion most consistent with their self-interest\" which can obstruct,
for instance, efficient or wealth-maximizing settlements of their
disputes. [[\[FN764\]](#Document1zzFN_F764)]{.underline} And other
decisional heuristics, Issacharoff notes, can lead people to act as if
they have an aversion \"for extreme positions.\"
[[\[FN765\]](#Document1zzFN_F765)]{.underline}

**\*162** Indeed, Issacharoff not only makes these admissions, but he
also correctly places himself among the vanguard of legal scholars
advancing behavioralist insights. He \"has actively participated in
developing the experimental economic literature and \[has sought\] to
apply it in the development of legal norms.\"
[[\[FN766\]](#Document1zzFN_F766)]{.underline} He is, by any measure,
exceptionally open-minded among legal economists and among the vanguard
of behavioralists in legal academia. Nonetheless, Issacharoff, like
Arlen, is unwilling to relinquish law and economics\' basic
presumptions. Before doing so, \"there must \[first\] be a normative
theory of how to assess\" the lessons of behavioral science with respect
to social welfare. [[\[FN767\]](#Document1zzFN_F767)]{.underline}
Furthermore, Issacharoff makes clear that theory must comport with the
basic dispositionist axioms of law and economics:

There is no doubt that in order to perfect its models of rational
conduct, law and economics requires a terribly reductionist account of
human behavior\.... It is certainly the case that the mechanical
simplifications of Homo economicus strongly caution against most forms
of regulatory restraints on the market. It is further true that the
tools of psychology may yet yield a richer understanding of how these
human wants and desires play out in the institutional setting of law.

But this cannot possibly translate into a justification for greater
constraints on individual decision making. Bounded rationality should
not become the pretext for the imposition of an overarching regulatory
structure on individuals\.... \[F\]undamentally, it would indeed be
ironic if greater insight into the complexity of human decision making
became the justification for taking the freedom to decide, even if
imperfectly, from those very individuals.
[[\[FN768\]](#Document1zzFN_F768)]{.underline}

Thus Issacharoff, like Arlen, draws the line at any \"greater insight
into the complexity of human decision making\" that could justify
greater intervention by law into the affairs of autonomous individuals.
Arlen and Isaacharoff are, it seems, more committed to protecting the
appearance of a manageable legal theory than they are to taking
seriously the possibility that that theory is itself deeply threatened
by the sort of evidence they are reviewing. Their realism, in that
sense, is defensive. [[\[FN769\]](#Document1zzFN_F769)]{.underline}

**\*163** In the time since Issacharoff posed the critiques and
reservations that we have described above, he and several coauthors have
embarked on a project that aims to cordon off more precisely those areas
of legal policy where social psychological insights should be brought to
bear, and beyond which the import of such insights can and should be
passed over in favor of the basic rational actor model.
[[\[FN770\]](#Document1zzFN_F770)]{.underline} Two other prominent
behavioralists, Cass Sunstein and Richard Thaler, have been
simultaneously advancing a similar project.
[[\[FN771\]](#Document1zzFN_F771)]{.underline} Both pieces conclude,
roughly, that social psychology\'s teachings about human actors should
be taken into account when doing so would: 1) benefit large groups of
people who are prone to non-rationality, and 2) where doing so would not
unduly burden, or limit the freedom of, those who are not so afflicted
and actually do think rationally.
[[\[FN772\]](#Document1zzFN_F772)]{.underline}

That formulation is quite appealing as an analytical proposition, but it
reckons with only a small and tractable sample of the lessons of social
psychology and affiliated fields. Issacharoff and his co-authors write
as if realism does not pose a significant challenge to the basic law and
economics approach:

\[W\]e argue that in many cases it is possible to have one\'s cake and
eat it too. We propose an approach to evaluating paternalistic
regulations and doctrines that we call \"asymmetric paternalism.\" A
regulation is asymmetrically paternalistic if it creates large benefits
for those who make errors, while imposing little or no harm on those who
are fully rational. Such regulations are relatively harmless to those
who reliably make decisions in their best interest, while at the same
time advantageous to those making suboptimal choices.
[[\[FN773\]](#Document1zzFN_F773)]{.underline}

The explicit goal of this project is to develop a theory that can both
respond to critiques of the conventional rational actor model and also
sustain dispositionism:

**\*164** \[The\] approach we term \"asymmetric paternalism,\" reflects
trepidations shared among all of the authors about the use of behavioral
research to justify paternalistic policies. We have two major concerns.
First, while research in behavioral economics documents commons
mistakes, those mistakes are typically far from universal, and we worry
that paternalistic policies may impose undue burdens on those people who
are behaving rationally in a particular situation. Second, behavioral
economics is in an early stage of development, and therefore its
findings should elicit more caution than those from more \"mature\"
fields (which are by no means themselves invulnerable to revision).
These and related concerns suggest caution in promoting paternalistic
policies at this stage and lead to our more conservative notion of
asymmetric paternalism. [[\[FN774\]](#Document1zzFN_F774)]{.underline}

There are, in our view, several analytic and normative problems with
\"asymmetric paternalism,\"
[[\[FN775\]](#Document1zzFN_F775)]{.underline} but for present purposes
we want only to highlight how strongly it is committed to engaging
social psychology\'s insights in a manner that leaves the basic
dispositionist picture of the human actor in place, unchallenged as the
central starting place for legal theory.
[[\[FN776\]](#Document1zzFN_F776)]{.underline}

One way that it does so is by beginning with a highly schematic view of
human actors as somehow comprised of two basic categories of people:
those who \"make errors\" in their own utility analyses, and those who
are \"fully rational\" in a given situation.
[[\[FN777\]](#Document1zzFN_F777)]{.underline} Those categories are not,
in our view, the fundamental starting places that emerge from the
lessons of social psychology. While it is true that studies focused on
narrowly defined \"choice biases\" show that some people are more prone
to them in narrowly defined choice-contexts than are others, this, as we
have tried to demonstrate in this Article, is just one **\*165** small
part of the situation, and just one aspect of the situational character.
[[\[FN778\]](#Document1zzFN_F778)]{.underline} The absence of evidence
of bias in a particular choice context hardly justifies the conclusion
that legal theory can therefore rest easy relying on the conventional
rational actor model in such contexts. Nor is bias in choice-making the
only relevant situation influencing those who do make \"irrational\"
choices in a given context. We have argued in this Article that we are
all, in virtually all situations, in incredibly powerful ways influenced
by features of our situations that we do not appreciate.
[[\[FN779\]](#Document1zzFN_F779)]{.underline} There remains an ardent
dispositionist presumption **\*166** in back of the whole
asymmetric-paternalism approach, one that never strays from the
presumption that all people\'s preferences are more-or-less stable and
exogenous to their situations. Even among those who have a hard time
rationally pursuing their preferences, the preferences themselves are
mostly taken as given, or are at least not considered a pressing element
of the inquiry.

Asymmetric paternalism is a theory designed to evade rather than to
grapple with the evidence suggesting that we are situational characters.
In so doing it reaches conclusions that are largely uncontroversial, and
not at all threatening to our sense of ourselves. It is hard to take
issue with the claim that defaults should be set in a manner that will
likely engender the most utility for most, but which allows for
individual opt-outs for those who exercise their rationality and can
determine for themselves that a different arrangement will be better for
them personally. Who\'s not for that? The approach bears, by its
authors\' own account, a striking resemblance to conventional ways of
thinking about default rules, to the way legal economists typically
think about default rules, and to how default rules actually work.
[[\[FN780\]](#Document1zzFN_F780)]{.underline} Issacharoff and his
co-authors recognize this and offer it as evidence of the fact that
their approach can contribute to, rather than detract from, the advance
of the basic law and economics approach:

An appealing way to explain how these laws came about \[laws embracing
utility maximizing default rules but allowing for mutability by
individuals\] is that the law reflects what we are calling asymmetric
paternalism and uses it as a cost-benefit standard. In this sense,
asymmetric paternalism complements the basic law and economics belief
that the law tends to move toward efficient solutions. An attentiveness
to minimizing costs to rational actors while maximizing benefits to
boundedly rational actors fits well within a richer conception of
efficiency. [[\[FN781\]](#Document1zzFN_F781)]{.underline}

Issacharoff and his co-authors went looking for a theory that
traditional antipaternalists, and traditional legal economists, could
accept without much quarrel, and that is exactly what they found. It is
no surprise then that their framework, like those in its intended
audience, misses much of the situation and **\*167** promotes a
legal-theoretic focus that guarantees not finding it. As Issacharoff and
his coauthors conclude their article: \"\[Asymmetric paternalism\]
should appeal to everyone across the political spectrum and can
potentially shift the debate from one about whether or not paternalism
is justified, to one about whether the benefits of mistake-prevention
are larger than the harms imposed on rational people. The idea is
designed to focus debates about paternalism on these empirical terms.\"
[[\[FN782\]](#Document1zzFN_F782)]{.underline} Shifting the debate in
this direction, we contend, entrenches an unrealistic dispositionism
more than it offers a response to evidence critiquing it. These scholars
focus the debate on empirical questions that emerge from a theoretical
starting place that is not, we contend, well-steeped in empiricism, much
less critical realism.

3\. Selective Realism

Another category of response to the realist challenge has been what we
call \"selective realism.\" In this approach scholars employ specific
findings from social psychology to justify specific claims or
conclusions, but make no effort to incorporate a full range of evidence
from social psychology, either for the particular claim they are
pursuing or for the basic starting point of their approach to legal
analysis. Selective realism of that sort has already been adequately
described elsewhere. [[\[FN783\]](#Document1zzFN_F783)]{.underline}
Given the length of this article already, therefore, we cannot justify a
proportional discussion here. It is, we hope, sufficient to point out
that product liability scholars have long been tapping into the economic
behavioralism literature to make assertions about how well informed
consumers are. In doing so, they have tended to be quite selective about
what \"cognitive biases\" they emphasize, depending on whether they have
concluded that consumers overestimate risks or underestimate risks.
Essentially, those scholars still employ the rational actor model, with
some selected biases thrown in.

4\. Weak-Form Realism

Other efficiency-oriented scholars have been more willing to get real.
Professors Christine Jolls, Cass Sunstein, and Richard Thaler, for
example, use strands of psychological research in an approach dubbed
\"behavioral economics\" or \"behavioralism,\" to \"explore the
implications of actual (not hypothesized) human behavior for the law.\"
[[\[FN784\]](#Document1zzFN_F784)]{.underline} Although they fall
further from the trunk than **\*168** Posner, and the other
quasi-realists, they do not fall far from the law and economics tree.
They attempt \"to model and predict behavior relevant to law with the
tools of traditional economic analysis, but with more accurate
assumptions about human behavior.\"
[[\[FN785\]](#Document1zzFN_F785)]{.underline} They emphasize that their
project is \"deeply constructive\"
[[\[FN786\]](#Document1zzFN_F786)]{.underline} to the law and economics
paradigm: \"Behavioral economics is a form of economics, and our goal is
to strengthen the predictive and analytic power of law and economics,
not to undermine it.\" [[\[FN787\]](#Document1zzFN_F787)]{.underline} We
describe this as weak-form realism, currently the most common and
fastest growing mode of psychology-based critical engagement with
economics. [[\[FN788\]](#Document1zzFN_F788)]{.underline}

The inadequacy of weak-form realism, though perhaps less acute, has much
in common with the failures of counterfeit realism, defensive realism,
and selective realism. Instead of beginning with a realistic
understanding of human actors, weak-form realists maintain the familiar
and affirming dispositionist actor and engage only \"phenomena that have
reasonably precise implications for legal issues.\"
[[\[FN789\]](#Document1zzFN_F789)]{.underline} They pick and choose
among psychological findings, and select only those that seem directly
applicable to a pre-existing policy debate within the law and economics
paradigm. [[\[FN790\]](#Document1zzFN_F790)]{.underline} And, in doing
so, they operate according to the same \"economics first, realism
second,\" priority rule:

The project of behavioral law and economics \... is to take the core
insights and successes of economics and build upon them by making more
realistic assumptions about human behavior. We wish to retain the power
of the economist\'s approach to social science while offering a better
description of the behavior of the agents in society and the economy.
[[\[FN791\]](#Document1zzFN_F791)]{.underline}

In other words, phenomena that do not \"have reasonably precise
implications for legal issues\" or that may threaten \"the core insights
of economics\" (and, we might add, core conceptions of the human animal)
are off the table. So, for instance, Jolls, Sunstein, and Thaler
maintain the consumer \"choice\" centerpiece **\*169** of basic
economics, in which consumers are presumed to act dispositionally to
serve their own ends. [[\[FN792\]](#Document1zzFN_F792)]{.underline} The
only difference here is that the consumer\'s behavior is \"bounded\" in
ways that influence, in predictable ways, the consumer\'s actual
decisions. The focus remains on the actor\--who is deciding, consuming,
and judging in accordance with her mostly exogenous dispositions and
preferences. The now-bounded actor is simply plugged into the
choice-driven models of conventional law and economics to yield positive
or normative policy conclusions. In short, realism, in the weak-form
variety adopted by Jolls, Sunstein, and Thaler, is bounded.

5\. Strong-Form Realism

A few have gone still further in abandoning the artificiality of
conventional economic modeling. In a set of articles coauthored with
Doug Kysar, one of us has argued that behavioralism should be \"taken
more seriously\" than scholars had previously allowed. It is not enough
to recognize that, say, consumers may be subject to certain biases in
their processing of product information. Rather, a clear implication of
the behavioralist literature is the deeper insight that perceptions, and
even preferences, are manipulable by other actors in the model. That is,
perceptions and preferences are endogenous in the sense that they are
subject to influence by other actors, such as product manufacturers and
sellers. [[\[FN793\]](#Document1zzFN_F793)]{.underline} And, further,
because those actors can influence perceptions and preferences, they
will\--indeed, competitive processes require as much. We call that
approach strong-form realism.
[[\[FN794\]](#Document1zzFN_F794)]{.underline}

But even that form of realism, as two of its critics highlight, may be
unjustifiably shy in holding onto the law and economic approach that it
purports to challenge. Professors Henderson and Rachlinski assert in the
concluding paragraphs of their critique:

\[W\]e cannot help but note that although \[Hanson & Kysar\] claim to
have embraced cognitive psychology and taken it seriously, in truth they
hold **\*170** closely to a conventional economic analysis of
product-related risk. For example, Hanson and Kysar argue that
\"manufacturers\' manipulative practices may inflate consumers\'
perceptions of a product\'s overall desirability,\" and the
\"consumers\' misperception \[that this manipulation creates\] would
result in inefficient purchases.\" If consumer preferences are
completely constructed, then what exactly is supposed to be the
efficient level of consumption? Should the socially optimal demand for
soup be measured with the cans in alphabetical order, or not? On a rainy
day, or sunny? With what kind of music or ambient odors (if any) in the
background? In what section of the store? What should the labels look
like? How big are the cans? Risk is no different\.... The notion that
manufacturers distort consumer risk-perception assumes that there is
some natural and appropriate risk-benefit assessment from which
manufacturers lead consumers astray. If we take seriously the
psychological proposition that all preferences are constructed, then
there is no magical correct level of risk that consumers should endure.

\... A complete, serious assessment of what cognitive psychology means
for products liability has yet to be undertaken.
[[\[FN795\]](#Document1zzFN_F795)]{.underline}

Although we would challenge portions of their description of Hanson and
Kysar\'s work, [[\[FN796\]](#Document1zzFN_F796)]{.underline} we accept
their final point that legal scholars have yet to conduct \"a complete
\... assessment\" of the implications of cognitive psychology for law.
Current strains in the debate all share an unwillingness to relinquish a
demonstrably unrealistic conception of the human animal and to build
instead from a more realistic foundation. It is to introduce that
project\--what we call \"critical realism\"\--that this Article and its
companion are largely directed.

VI\. THE SITUATIONAL CHARACTER\'S SITUATION

Throughout this Article, we have focused on social psychological
findings that reveal the fallacy of the dispositionism that pervades
common sense, law, conventional legal theory, and, as we just reviewed,
the dominant theoretic domains of economics and economic behavioralism.
In depicting the situational character, we have shown how,
dispositionist appearances notwithstanding, much of what moves us is
unseen. We have described some of the countless interior and exterior
situational influences that give shape to our sense of our experience.
We have particularly emphasized the interior situational realities
behind our dispositionist charade\--the unseen biases in our mind,
unseen knowledge structures, and motivations, and many other aspects of
unexamined and often un-examinable interiors. We have illustrated how
our interior situation **\*171** and behavior can be easily influenced
by exterior situational influences. Indeed, virtually every experiment
in social psychology largely depends upon, and thus reveals, that
manipulability.

Of course, it is not just the social psychologists in their labs who are
attempting to move us through the situation. As we explained in The
Situation, the (situational) imperatives of the market, themselves
situational imperatives, provide one common and possibly troubling
source of external situational influence. But there is a lot more to the
situation.

A. SEEING IT

And there are other even simpler ways to demonstrate the role of
situation, our fear of it, and our attempt to ignore or downplay its
existence. It is not just that we are by our nature subject to
situational influences over our thoughts and behavior. Before we ever
think or behave at all, our lives are already powerfully shaped by the
situation of our births in society. There\'s a situational character
born every minute. And each is born into a situation that tremendously
influences what her life will be like, what opportunities she will have,
or not have, and how she will respond to the opportunities she does
have. We are born rich or poor. We are born \"wanted\" or \"unwanted.\"
We are each born with a particular set of talents and limits. We are
each endowed with our looks, our brains, and our bodies. We are born
first among siblings, last, or somewhere in between. We may be part of
one family or another, one community or another, and one culture or
another. Though perhaps none of those situational parameters is
decisive, taken together they provide an immense influence over our
options, our aspirations, our experiences, our memories, our sense of
ourselves, our sense of what is natural and appropriate, and more. And
just as importantly, to further our picture of the situational
character, the situational influences of the \"birth lottery,\" though
in many ways self-evident, remain largely unseen through our
dispositionist lenses.

The power of the birth-lottery belies our dispositionist
self-conceptions, and the dispositionist assumptions at root in so many
of our conventional legal and social theories. For example, there are
approximately 240 million Americans with health insurance, and
approximately 40 million without. Those without it are generally the
working poor, who cannot afford to buy private health insurance and who
are often ineligible for state and federal health insurance programs.
Those forty million suffer higher rates of deaths from treatable
diseases than do the rest of us. Those who live in poor neighborhoods
attend schools with far fewer educational resources available than those
who live in wealthy ones, and consequently find themselves on the short
end of the achievement gap.
[[\[FN797\]](#Document1zzFN_F797)]{.underline}

Those born into an African-American family are three times more likely
to **\*172** find themselves living below the poverty line than are
those born into a white family.
[[\[FN798\]](#Document1zzFN_F798)]{.underline} The average
African-American family\'s net worth is about twelve percent of the
average white family\'s net worth.
[[\[FN799\]](#Document1zzFN_F799)]{.underline} And that huge disparity
is not explained by factors like earnings rates, education, or savings
rates. [[\[FN800\]](#Document1zzFN_F800)]{.underline} More than 25% of
of black households have no positve wealth, while just 14% of white
households are in that situation.
[[\[FN801\]](#Document1zzFN_F801)]{.underline} Similarly, those born
into single parent households are three times more likely to find
themselves living in poverty than are those born to two-parent
households. [[\[FN802\]](#Document1zzFN_F802)]{.underline} Those who
happen to be born in Mississippi are more than twice as likely to find
themselves starting off in poverty than are those lucky enough to be
born in Connecticut. [[\[FN803\]](#Document1zzFN_F803)]{.underline} And
those who are born into poverty tend to end up far poorer than those
born into wealth, with concomitantly lower levels of overall health,
occupational opportunities, consumption patterns, and life-expectancies.
[[\[FN804\]](#Document1zzFN_F804)]{.underline} And, of course, all of
those examples assume a person is born in America\--itself an assumption
with potentially immense situational consequences.

B. MISSING IT

The evidence is all around us, and one need not have read a single
social psychological experiment to see and understand the power of
situation. Even the deepest dispositionists among us can see this
situational elephant in the corner when it is called to our attention.
And yet, we tend to look away and again see only ourselves and other
individuals. Our common, affirming knowledge structures and
self-conceptions do not take account of those situational influences and
manage to keep us a safe distance from \"that corner.\"

In his recent book The Two Percent Solution, Matthew Miller examines the
problem of what he calls \"luck\" in American society. As Miller uses
the term, \"luck is the shorthand that describes those things that shape
our lives that are entirely outside our control. We\'re talking mostly
about the pre-birth lottery, those aspects of a person\'s experience
dictated by the womb from which he or she happens to emerge.\"
[[\[FN805\]](#Document1zzFN_F805)]{.underline} In his chapter \"Taking
Luck Seriously,\" Miller **\*173** points out the elephant to two of the
best-known and most effective proselytizing dispositionists, Milton
Friedman, the Nobel Laureate in economics, and William Bennett, the
conservative moralist. Miller, in a mind-bogglingly simple research
strategy, simply asked them about it.

Bennett, when asked about the bigger picture, could not easily hide
behind reassuring dispositionist anecdotes. Instead, he just admitted
that factors relating to a person\'s birth lottery \"matter hugely\" and
that many people don\'t \"exercise autonomy and make a difference in
their own lives \... because they\'re in crappy families, crappy
schools, crappy neighborhoods.\"
[[\[FN806\]](#Document1zzFN_F806)]{.underline}

Friedman\'s response was even more revealing.
[[\[FN807\]](#Document1zzFN_F807)]{.underline} Friedman, recall, is
among the most influential proponents of the necessary relationship
between freedom and free markets, a view that begins and ends with a
deep dispositionism. Even as a young economist, Friedman was aware of
the problem posed by the situational elephant for the economic theories
he advocated. In an early paper, as Miller describes, Friedman took
pains to show that social inequality may be not just the result of
\"natural endowments or inherited wealth,\" but also the byproduct of
individual work and spending habits:

\[O\]ne cannot rule out the possibility that a large part of the
existing inequality of wealth can be regarded as produced by men to
satisfy their tastes and preferences \... \[that\] the link between
differences in natural endowment or inherited wealth and the realized
distribution of income is less direct and simple than is generally
supposed \.... \[This analysis\] has implications for normative
judgments about the distribution of income and the arrangements
producing it\--inequalities resulting from deliberate decisions \...
clearly raise very different normative issues than do inequalities
imposed on individuals from the outside.
[[\[FN808\]](#Document1zzFN_F808)]{.underline}

Even were Friedman correct that we cannot \"rule out the possibility\"
that individual choice accounts for disparities in poverty,
[[\[FN809\]](#Document1zzFN_F809)]{.underline} that would not suggest
that we should therefore make that possibility the cornerstone
assumption in our theories. Rather it should counsel a further look at
just how \"possible\" this is, and how possible it is that \"outside\"
influences, such as inherited wealth, are actually hugely important. And
of course, as we have been arguing in this Article, the fact that wealth
effects might be attributable to individual choices and behaviors does
not support the dispositionist conclusions that Friedman claims to
deduce from them.

In any event, we are here interested in how scholars and policymakers,
even **\*174** those with no reason to encounter the findings of social
psychology, have managed to miss some seemingly obvious elements of
\"the situation.\" Following that early article, Friedman spent the next
several decades of his career without ever seriously questioning his
early argument. In 1962\'s Capitalism and Freedom, however, he did
supplement it, arguing that there was no more reason to question a
landholder\'s inheritance of property than there was to question a
singer\'s inheritance of her voice. And based on that observation,
Friedman concluded that \"\[m\]ost differences of status or position or
wealth can be regarded as the product of chance at a far enough
remove.\" [[\[FN810\]](#Document1zzFN_F810)]{.underline}

Sensing that there still seemed to be a giant elephant in the room,
Miller pointed out to Friedman that the cases of the lucky property
owner and the lucky vocalist do not nullify the problem of situational
luck. Instead, they exemplify the ubiquity of the problem. Microphone in
hand, Miller pushed Friedman on the point. Friedman revealed that even
after spending most of his Nobel-Prize winning career largely ignoring
it, he could still see, when it was highlighted in this way, that indeed
luck is a powerful situational influence on individuals. \"Society may
want to do something about luck,\" Friedman told Miller, as if he had
just seen the elephant for the first time. \"You\'ve asked a very hard
question. I don\'t know that I have the simple answer to it,\" Friedman
conceded to Miller. [[\[FN811\]](#Document1zzFN_F811)]{.underline}

Yet in book after book and article after article over the course of
decades, Friedman\'s solution to this \"very hard question\" has been to
paper over it. Friedman is like the rest of us. Even the situation that
is in our midst and that should be obvious to us, the most basic
situational influences over our lives, are easily missed or explained
away. Although situational forces can be in plain view, a person, armed
with reassuring knowledge structures, can spend a lifetime not seeing
them. It bears noting that perhaps no American intellectual has had as
much influence over American policy over the last half-century as Milton
Friedman has. [[\[FN812\]](#Document1zzFN_F812)]{.underline}

But, there with Miller in his den, Friedman had a few more moves to
make, which further reveal the lengths to which many of us will go to
ignore powerful situational influences for the sake of maintaining a
simpler, more reassuring dispositionism. Regarding the ubiquity of luck
and its importance as a social factor, Friedman regrouped and retorted:
\"See, the question is, what you\'re really talking about, is
determinism versus free will\": \"But you can\'t really justify free
will\..... You can keep going back. There\'s no first cause. Nobody has
ever solved the argument of determinism versus free will. And you and I
**\*175** aren\'t going to do so either.\"
[[\[FN813\]](#Document1zzFN_F813)]{.underline} Consciously or not,
Friedman sought to escape from the question of luck by jumping down an
unrelated slippery slope. Miller was not claiming, nor would we, that
luck determines outcomes; instead, he was pointing out that luck, as
William Bennett put it, \"matters hugely.\"
[[\[FN814\]](#Document1zzFN_F814)]{.underline} The question still
pending for Friedman was, if you can\'t say that free will is at the
bottom of all relevant human behavior, then why assume it is and why
assume that situation is all but totally irrelevant? Put another way, if
there is an unsolvable philosophical conundrum afoot, or a problem of
empirical uncertainty, then what wisdom is there in shrugging our
shoulders and assuming that it can be left out of our fundamental
theories altogether? There are numerous reasons why individuals tend to
see situationist arguments as determinist claims. One that bears
highlighting here is simply that our general inability to see situation
renders us unable to see either its effects or how it and its effects
might be usefully altered. Situation is treated as given, fixed, and
natural. From that perspective, situationist arguments look like claims
that we are moved by forces over which we have no control\--as
individuals or as a society. That claim seems determinist and, in any
event, is quite threatening to our own sense of ourselves and our
systems. Understandably, those making such a claim\-- that unseen forces
play a major role in our behavior\--are eagerly dismissed as, among
other things, straw-men determinists. But to acknowledge situation is
not to surrender to it, but rather it is to take a necessary step in
gaining some control over it. The situation can be altered\--indeed, is
being altered constantly. It reflects and reinforces those entities or
groups with the power to influence it. The elephant is not just sitting
in the corner; it moves and can be made to move.

C. DENYING WHAT WE CANNOT ADMIT

Friedman, at one point, did answer the question. Acknowledging the
elephant in one breath and then denying it in the next, he said: \"In a
sense we are determinists. In a sense we are and in another sense we
can\'t let ourselves be.\"
[[\[FN815\]](#Document1zzFN_F815)]{.underline} Although it is true that
situation matters hugely, \"we can\'t let ourselves be\" anything but
dispositionists. [[\[FN816\]](#Document1zzFN_F816)]{.underline}

And so the game is up. The theories that we develop for understanding
and predicting and influencing human conduct \-- including (or, perhaps
particularly), the policy theories developed by the most sophisticated
and influential analysts, are not meant to be based on what we know to
be true. It is about maintaining a **\*176** theory that is plausible,
simple, and affirming. Denying the effect of exterior and interior
situation is itself a manifestation of that very situation. Friedman, it
seems, can\'t handle the truth. But, then, who can? Situationism is, for
all the reasons we\'ve provided (and then some), a frightening and
potentially paralyzing vantage point.

There is a long tradition of denying situationism among economists. A
half century ago, for instance, John Kenneth Galbraith lamented the
dispositionism of his fellow economists: \"At least in social
disciplines, obsolescence and irrelevance are a small price to pay for
the privileges of remaining comfortably, even if archaically, with the
familiar, the settled and the safe.\"
[[\[FN817\]](#Document1zzFN_F817)]{.underline} But the fear is by no
means exclusive to economists.

Situationism is widely feared. Even social psychologists who are most
familiar with the power of situation lose sleep over what their evidence
seems to suggest. Susan Fiske, one of the most prominent social
psychologists of her generation, describes her fear this way:

An absence of intent ultimately implies an absence of responsibility for
the effects of categorization\.... It has led me to have the following
nightmare: After testifying for the plaintiff in a case of egregious and
demonstrable discrimination, a cognitive social psychologist faces the
cross-examining attorney. The hostile attorney, who looms taller than
Goliath, says \"Tell us, Professor, do people intend to discriminate?\"
The cognitive social psychologist hedges about not having any hard data
with regard to discrimination, being an expert mainly in stereotyping.
When pressed, the psychologist admits that stereotypic cognitions are
presumed to underlie discriminatory behavior. Pressed still further, the
psychologist reluctantly mumbles that, indeed, a common interpretation
of the cognitive approach is that people do not stereotype
intentionally, whereupon the cross-examining attorney says in a tone of
triumph, \"No further questions, Your Honor.\"
[[\[FN818\]](#Document1zzFN_F818)]{.underline}

Her concern, just like Friedman\'s and our own, is what to do with the
individuals who seem to act unjustly\--those times when we see a victim
and an injurer and we want the injurer to pay and the victim to be
compensated. Are we left with no option but to chalk it up to situation
and send the parties on their way? That seems to be the only alternative
that the dispositionist can imagine. Fiske, as she would go on to
explain, got back to dispositionism by claiming that individuals can
choose to wield some influence over their automatically activated
stereotypes. But as others have pointed out since, although her rescuing
argument was reassuring, the best evidence suggests that it is overly
**\*177** optimistic. [[\[FN819\]](#Document1zzFN_F819)]{.underline}

So, we are stuck with our nightmare. We hold onto our dispositionist
views tenaciously, even well beyond the point where our claims about the
truth of the matter have been abandoned. We are dispositionists, not
because humans are dispositional, but because there is too much that has
already been built upon the dispositionist foundation to begin building
elsewhere, and because dispositionism helps us to sleep.

As Nobel Laureate Isaac Bashevis Singer elegantly expressed the dilemma:
\"Of course I believe in free will. I have no choice.\"
[[\[FN820\]](#Document1zzFN_F820)]{.underline} And so it is that the
illusion of our freedom, our dispositionism, our wills, are forced upon
us by fears and forces in our situation that we do not see, and would
prefer not to. We have no choice but to pretend that we have a choice.

VII\. CONCLUSION

\"None of us enjoys the thought that what we do depends on processes we
do not know; we prefer to attribute our choices to volition, will, or
self-control\.... Perhaps it would be more honest to say, \'My decision
was determined by \... forces I do not understand.\"\' \~ Marvin Minsky
[[\[FN821\]](#Document1zzFN_F821)]{.underline}

Taken together, the social psychological findings we have reviewed here
should shake our self-conception at its foundation. What has been
revealed in the studies we reviewed cannot be considered marginal or
anomalous. Situation, it seems, moves us far more than we suspect in our
slumbering, blissful dispositionism. That conclusion is hard to take,
hard even to get our mind around, because of this very dispositionism,
which sees us as responsible for our situations and not the other way
around.

Our \"situational character\" is clearly incomplete as a model, a
description, or a vision of humanity.
[[\[FN822\]](#Document1zzFN_F822)]{.underline} But our aim has not been
to provide a comprehensive picture. It has been to demonstrate that the
model of human agency we so often **\*178** work with\--as laypeople, as
legal scholars, and as policymakers\--is wrong. And not just wrong, but
clearly and dangerously wrong, in that it drastically understates both
internal and external situational influence over our perceived
cognitions, attitudes, will, and behavior.

Our readers may be asking themselves, or itching to ask us, just exactly
where all this leaves us. How can the situational character be put to
work, as the rational actor, for example, has been? In future writing,
we will have much more to say, and others will too,
[[\[FN823\]](#Document1zzFN_F823)]{.underline} about the implications of
situationism for policymaking and legal theory. In this Article and its
companion, our ambition is to make the case for realism and to reveal
many of the sources of the unreal perceptions and theories that now
dominate.

The situational character is meant to retire the rational actor and its
dispositionist kin, not to fill its shoes and perform in legal theory as
we have come to expect our theories to perform. We have shed light on
why, given that we are situational characters, dispositionist worldviews
have emerged and why many people react as they do to challenges to those
worldviews. Such resistance, in itself, does not rebut the claims we
have made; it simply helps prove them. Social science is not supposed to
be answer-driven, and our system of justice is not supposed to be
appearance-driven, stopping only at convenient and comfortable
conclusions.

When proponents of dispositionism embrace situational blindness in the
name of freedom and responsibility, the untruth on which our systems are
built is laid bare. To relieve the resultant dissonance, requires that
we relinquish **\*179** either the belief that our system is
legitimate\-- meritocratic, fair, democratic, just, freedom-enhancing,
and so on\--or the immense edifice erected upon that dispositionist
bulwark.

We are dispositionists trapped in situational characters. We can\'t
escape our condition through denial\--be it deliberate disregard of what
we know about the human animal or subconscious redoubling of our faith
in the illusion of dispositionism. Any solution is to be located mostly,
like the problem itself, in the situation.

There is a tragic irony in our predicament. By blinding ourselves to the
very forces that impinge upon our freedom, we are surrendering to them.
To be serious about liberty requires that we not unwittingly turn over
the situational strings to whoever has the means and ends to manipulate
them. Indeed, our greatest dispositional act may be to acknowledge that
we are situational characters and to choose to understand and gain some
voice and control over the situation that largely controls us. In that
very important sense, we do have a choice.

[[\[FNa1\]](#Document1zzFN_Ba1)]{.underline}. Professor of Law, Harvard
University.

[[\[FNaa1\]](#Document1zzFN_Baa1)]{.underline}. Visiting Professor of
Law, Rutgers Law School\--Camden.

We are grateful to Tracy Conn, Kemoy Foster, Sam Halabi, Geutam Jois,
Mariko Miki, Susie Rhees, Matt Thompson, Brandon Weiss, and Andrew Woods
for superb research assistance, and to Carol Igoe for outstanding
secretarial assistance. Financing from the Harvard Law School Summer
Research Fund and Rutgers Law School-Camden School provided valuable
research support. We are also grateful for helpful comments to
participants at the Yale Legal Theory Workshop, the University of Texas
Law School Faculty Workshop, and the 2004 Louise D. Brandeis Lecture
Series at Harvard Law School, sponsored by the American Constitution
Society. Finally, we would like to express our love and deepest
gratitude to Kathleen, Emily, Erin and Ian Hanson, and Paula
Noyes\--without these characters in our situation, this Article would
never have been possible.

[[\[FN1\]](#Document1zzFN_B1)]{.underline}. [[152 U. PA. L. REV. 129
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&SerialNum=0296810616)]{.underline}.

[[\[FN2\]](#Document1zzFN_B2)]{.underline}. Robin West, [[Jurisprudence
and Gender, 55 U. CHI. L. REV. 1, 1
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0103847821&ReferencePosition=1)]{.underline}.

[[\[FN3\]](#Document1zzFN_B3)]{.underline}. Oliver Wendell Holmes, The
Path of the Law, 10 HARV. L. REV. 457, 459 (1897), [[reprinted in 78
B.U. L. REV. 699, 701
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3197&FindType=Y&ReferencePositionType=S&SerialNum=0110118903&ReferencePosition=701)]{.underline}.

[[\[FN4\]](#Document1zzFN_B4)]{.underline}. Richard A. Posner,
[[Rational Choice, Behavioral Economics, and the Law, 50 STAN. L. REV.
1551, 1559 n.15
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0108978011&ReferencePosition=1559)]{.underline}.

[[\[FN5\]](#Document1zzFN_B5)]{.underline}. Jon Hanson & David Yosifon,
The [[Situation: An Introduction to
The](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&SerialNum=0296810616)]{.underline}
[[Situational Character, Critical Realism, Power Economics, and Deep
Capture, 152 U. PA. L. REV. 129
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&SerialNum=0296810616)]{.underline}
\[hereinafter Hanson & Yosifon, The Situation\].

[[\[FN6\]](#Document1zzFN_B6)]{.underline}. See LEE ROSS & RICHARD E.
NISBETT, THE PERSON AND THE SITUATION 4 (1983) (\"People\'s inflated
belief in the importance of personality traits and dispositions,
together with their failure to recognize the importance of situational
factors in affecting behavior, has been termed the \'fundamental
attribution error.\"\'); see also Daniel T. Gilbert & Patrick S. Malone,
The Correspondence Bias, 117 PSYCHOL. BULL. 21, 21 (1995) (\"Three
decades of research in social psychology have shown that many of the
mistakes people make are of a kind: When people observe behavior, they
often conclude that the person who performed the behavior was
predisposed to do so\--that the person\'s behavior corresponds to the
person\'s unique dispositions\--and they draw such conclusion even when
a logical analysis suggests they should not.\"). Some more recent
writings in social psychology use the term \"correspondence bias\"
instead of \"fundamental attribution error.\" See ZIVA KUNDA, SOCIAL
COGNITION: MAKING SENSE OF PEOPLE 430 (1999).

[[\[FN7\]](#Document1zzFN_B7)]{.underline}. See Hanson & Yosifon, The
Situation, supra note 5, at 157-79.

[[\[FN8\]](#Document1zzFN_B8)]{.underline}. See generally STANLEY
MILGRAM, OBEDIENCE TO AUTHORITY (1974) (describing and analyzing these
experiments); Hanson & Yosifon, The Situation, supra note 5, at 150-53
(discussing Milgram\'s studies).

[[\[FN9\]](#Document1zzFN_B9)]{.underline}. See MILGRAM, supra note 8,
at 13-26 (describing the experimental design). Two other variations on
the basic experimental design are worth noting. First, a
clipboard-toting \"experimenter\" was to implore the subject to continue
shocking as the experiment continued. Second, the \"learner\" could be
heard yelping, then screaming and kicking, then complaining of heart
irregularities, and, finally, at 300 volts, falling silent. See id. at
55- 72 (desribing variations and controls on the basic experiment).

[[\[FN10\]](#Document1zzFN_B10)]{.underline}. See id. at 28-29.

[[\[FN11\]](#Document1zzFN_B11)]{.underline}. Although this
generalization is less true of some individuals and cultures than
others, it is nonetheless the case that few people (particularly in the
West) come close to appreciating accurately the role that disposition
and situation, as we define those terms, play in moving us. See Hanson &
Yosifon, The Situation, supra note 5, at 250-59.

[[\[FN12\]](#Document1zzFN_B12)]{.underline}. See MILGRAM, supra note 8,
at 60 tbl.3.

[[\[FN13\]](#Document1zzFN_B13)]{.underline}. See id. at 32-43.

[[\[FN14\]](#Document1zzFN_B14)]{.underline}. See Hanson & Yosifon, The
Situation, supra note 5, at 152 n.2.

[[\[FN15\]](#Document1zzFN_B15)]{.underline}. See id. at 139-49
(describing dominance of law and economics in legal scholarship).

[[\[FN16\]](#Document1zzFN_B16)]{.underline}. See id. at 140-41
(reviewing early critiques of the lack of realism in law and economics).

[[\[FN17\]](#Document1zzFN_B17)]{.underline}. See id. at 159-65
(describing the dispositionism of the rational actor model of humanity
that is typically employed by legal economists).

[[\[FN18\]](#Document1zzFN_B18)]{.underline}. RICHARD POSNER, ECONOMIC
ANALYSIS OF LAW 17 (5th ed. 1998).

[[\[FN19\]](#Document1zzFN_B19)]{.underline}. See id.; see also ROBERT
COOTER & THOMAS ULEN, LAW AND ECONOMICS 16-17 (2d. ed. 1997) (\"The
construction of the economic model of consumer choice begins with an
account of the preferences of consumers. Consumers are assumed to know
the things they like and dislike and to be able to rank the available
alternative combinations of goods and services according to their
ability to satisfy the consumer\'s preferences. This involves no more
than ranking the alternatives as better than, worse than, or equally as
good as one another.\").

[[\[FN20\]](#Document1zzFN_B20)]{.underline}. Milton Friedman, The Line
We Dare Not Cross: The Fragility of Freedom at \"60%\", ENCOUNTER, Nov.
1976, at 8, 11. This strong dispositionism enjoys a long pedigree in
economics. John Stuart Mill, for example, had the same starting place:
\"The only freedom which deserves the name is that of pursuing our own
good in our own way, so long as we do not attempt to deprive others of
theirs or impede their efforts to obtain it.\" JOHN STUART MILL, ON
LIBERTY 72 (Penguin Classics 1975) (1859).

[[\[FN21\]](#Document1zzFN_B21)]{.underline}. GARY S. BECKER, THE
ECONOMIC APPROACH TO HUMAN BEHAVIOR 5 (1976). Becker and fellow Nobel
Prize-winning economist George Stigler famously defended these basic
assumptions of the economic approach in George J. Stigler & Gary S.
Becker, De Gustibus Non Est Disputandum, 67 AM. ECON. REV. 76 (1977).
The Latin title summarizes well the basic dispositionist perspective of
economists. Its translation is: \"There\'s no accounting for taste.\"

[[\[FN22\]](#Document1zzFN_B22)]{.underline}. See infra text
accompanying notes 664-675 (summarizing Kreps\'s and Sens\'s arguments
that the dispositionism of economics is based on a leap of faith that
itself is justified, not by the evidence, but by intuitive
plausibility).

[[\[FN23\]](#Document1zzFN_B23)]{.underline}. See Hanson & Yosifon, The
Situation, supra note 5, at 341-42 (discussing how Milgram\'s findings
may, in fact, have hurt his career); see also infra notes 381-87 and
accompanying text (describing how Daniel Kahneman\'s work may have
earned him a Nobel Prize in part because it is dispositionist).

[[\[FN24\]](#Document1zzFN_B24)]{.underline}. JOHN LOCKE, TWO TREATISES
OF GOVERNMENT 101-02 (Ian Shapiro ed., Yale Univ. Press 2003) (1690).

[[\[FN25\]](#Document1zzFN_B25)]{.underline}. JEAN JACQUES ROUSSEAU, THE
SOCIAL CONTRACT 2 (Charles Frankel ed., Hafner Library of Classics 1947)
(1762).

[[\[FN26\]](#Document1zzFN_B26)]{.underline}. Id. at 3.

[[\[FN27\]](#Document1zzFN_B27)]{.underline}. Even in the condition of
slavery, however, where Rousseau seems to recognize the influence of
situation, his recognition still takes the form of a kind of
dispositionism, for although he claims that the qualities of slaves have
been produced by the institution of slavery, he considers those
qualities to have grown stable and part of the slaves\' own
self-conception. As we outlined in The Situation, there were several
dispositionist justifications of slavery\--for example, some assumed
that Africans were a different species and others assumed that they were
at a different developmental stage. See Hanson & Yosifon, The Situation,
supra note 5, at 308-27. Also, Rousseau\'s recognition of the
situational forces of slavery was widespread in Europe, particularly in
France, where there was strong opposition to the international slave
trade. It was partially in response to that opposition that Thomas
Jefferson sought to defend slavery by dispositionalizing slaves as
naturally inferior to whites and therefore appropriate for slavery. See
id. at 312-17 (reviewing Thomas Jefferson\'s writings on the topic). The
tendency to dispositionalize is often exacerbated by the motive to
legitimate one\'s own social system in response to perceived threats to
the system. See infra text accompanying notes 479-503 (summarizing the
influence of \"system threat\" and the widely held motive of system
affirmation).

[[\[FN28\]](#Document1zzFN_B28)]{.underline}. THE DECLARATION OF
INDEPENDENCE para. 2 (U.S. 1776).

[[\[FN29\]](#Document1zzFN_B29)]{.underline}. Thomas Jefferson, First
Inaugural Address (Mar. 4, 1801), reprinted in INAUGURAL ADDRESSES OF
THE PRESIDENTS OF THE UNITED STATES 13, 15-16 (Gov\'t Prtg. Office
1989).

[[\[FN30\]](#Document1zzFN_B30)]{.underline}. RICHARD HOFSTADTER, THE
AMERICAN POLITICAL TRADITION AND THE MEN WHO MADE IT 42 (2d ed. 1973).

[[\[FN31\]](#Document1zzFN_B31)]{.underline}. Id. Hofstadter\'s views
about \"consensus\" in the American political tradition have been
heavily debated by generations of American historians. See, e.g., SAMUEL
HUNTINGTON, AMERICAN POLITICS: THE PROMISE OF DISHARMONY (1981)
(describing some of the limitations of the consensus theory). Our only
interest here is in highlighting the basic dispositionist view of
humanity in the American political tradition, a view that is not
seriously at stake in that historiographical debate.

[[\[FN32\]](#Document1zzFN_B32)]{.underline}. Ronald Reagan, Farewell
Address to the Nation (January 11, 1989), in 2 PUB. PAPERS 1718, 1721.
See generally Ronald Chen & Jon Hanson, The [[Illusion of Law: The
Legitimating Schemas of Modern Policy and Corporate Law, 103 MICH. L.
REV. 1
(2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&SerialNum=0303306375)]{.underline}
\[hereinafter Chen & Hanson, The Illusion of Law\] (describing the
emergence of today\'s similarly dispositionist, pro-market, and
anti-regulatory meta schemas to policymaking).

[[\[FN33\]](#Document1zzFN_B33)]{.underline}. See Hanson & Yosifon, The
Situation, supra note 5, at 288-92 (describing the relationship between
dispositionism and policies advocating laissez-faire social policies).

[[\[FN34\]](#Document1zzFN_B34)]{.underline}. See our discussion of
geocentrism, dispositionism, Galileo, and deep capture in Hanson &
Yosifon, The Situation, supra note 5, at 202-30.

[[\[FN35\]](#Document1zzFN_B35)]{.underline}. See [[Restatement (Second)
of Contracts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289906847)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289906847)[
1
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289906847)]{.underline}
(defining contract as \"a promise or a set of promises for the breach of
which the law gives a remedy, or the performance of which the law in
some way recognizes as a duty.\") There are of course many theories of
what contract law is. The discussion here is a simple positive one that
makes no pretense to nuance, except insofar as we think a more nuanced
exposition would further bear out our point. See Hanson & Yosifon, The
Situation, supra note 5, at 285-97 (examining the dispositionism of
contract law and contract theory, with special reference to Professors
Llewellyn, Fried, and Rakoff).

[[\[FN36\]](#Document1zzFN_B36)]{.underline}. Enforcement may take many
forms (e.g., the required payment of the promisee\'s expected benefit of
the promise, or the requirement of specific performance of the promised
conduct). See E. ALLAN FARNSWORTH, CONTRACTS § 12 (3d ed. 1999)
(discussing different kinds of contract remedies). Of course, some
promises, though freely made in the eyes of the law, are nevertheless
unenforceable (such as a promise to sell oneself into slavery, which is
forbidden by the Thirteenth Amendment to the Constitution); others are
actually illegal to make (such as a promise to sell heroin, which is
forbidden by statute). See generally id. § 5 (discussing unenforceable
contracts). There are many areas of social life that are removed from
the realm of contract altogether (for example, minimum wages for labor,
the adoption of children, the transfer of body parts from one person to
another, etc.). The relative place of disposition and situation in our
self and social conception can be observed quite clearly in the contours
of contract in our social systems.

[[\[FN37\]](#Document1zzFN_B37)]{.underline}. [[Restatement (First) of
Contracts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)[
492(b)
(1932)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)]{.underline}.

[[\[FN38\]](#Document1zzFN_B38)]{.underline}. [[Restatement (First) of
Contracts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)[
492](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)]{.underline}
cmt. a (1932).

[[\[FN39\]](#Document1zzFN_B39)]{.underline}. The Second Restatement
alters the definition of duress to the following: \"If a party\'s
manifestation of assent is induced by an improper threat by the other
party that leaves the victim no reasonable alternative, the contract is
voidable by the victim.\" [[Restatement (Second) of Contracts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289907113)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289907113)[
175(1)
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289907113)]{.underline}.
The revised section attempts to eliminate any mention of will because of
the confusion it induces, but it nevertheless seems clearly to rely on
the notion without naming it:

It is sometimes said that the threat must arouse such fear as precludes
a party from exercising free will and judgment or that it must be such
as would induce assent on the part of a brave man or a man of ordinary
firmness. The rule stated in this Section omits any such requirement
because of its vagueness and impracticability. It is enough if the
threat actually induces assent on the part of one who has no reasonable
alternative\....

In order to constitute duress, the improper threat must induce the
making of the contract\.... No special rule for causation in cases of
duress is stated here because of the infrequency with which the problem
arises. A party\'s manifestation of assent is induced by duress if the
duress substantially contributes to his decision to manifest his
assent\.... All attendant circumstances must be considered, including
such matters as the age, background and relationship of the parties.
Persons of a weak or cowardly nature are the very ones that need
protection; the courageous can usually protect themselves.

[[Restatement (Second) of Contracts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289907113)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289907113)[
175](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289907113)]{.underline}
cmts. b, c (1981) (internal cross-references omitted). In any event, it
appears that many jurisdictions continue to employ the explicit
overbearing of the will language reflected in the First Restatement.
See, e.g., [[Ruane v. Jancsics, 2001 Mass. App. Div. 103, 105
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=524&FindType=Y&ReferencePositionType=S&SerialNum=2001484907&ReferencePosition=105)]{.underline}
(\"To avoid a contract on the basis of duress, a party must show that
conduct by the other party caused him to enter into the contract \'under
the influence of such fear as precludes him from exercising free will
and judgment.\"\') (quoting [[Convey v. President & Tr., Coll. of the
Holy Cross, 445 N.E.2d 136, 140 (Mass.
1983)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=578&FindType=Y&ReferencePositionType=S&SerialNum=1983105340&ReferencePosition=140)]{.underline}).

[[\[FN40\]](#Document1zzFN_B40)]{.underline}. The classic statement of
the reasonable person standard is contained in OLIVER WENDELL HOLMES,
JR., THE COMMON LAW 108 (Little, Brown & Co. 1990) (1881) (\"The law
considers, in other words, what would be blameworthy in the average man,
the man of ordinary intelligence and prudence, and determines liability
by that.\").

[[\[FN41\]](#Document1zzFN_B41)]{.underline}. The tort of negligence
involves four elements: duty, breach, causation, and damages.
[[Restatement (Second) of Torts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290694000)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290694000)[
282
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290694000)]{.underline}.
The reasonable person standard is generally seen as an aspect of the
second element, though it plays a part in the other elements as well.

[[\[FN42\]](#Document1zzFN_B42)]{.underline}. [[Restatement (Second) of
Torts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290694016)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290694016)[
289
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290694016)]{.underline}.

[[\[FN43\]](#Document1zzFN_B43)]{.underline}. Dispositionism influences
tort doctrines, the parties considered relevant in any given case, and
the attributions of the factfinders. That claim and evidence for it are
more fully fleshed out in other work. See, e.g., Jon Hanson, Ana Reyes &
Daniel Schlanger, Attributional Positivism: The Naïve Psychology Behind
Our Laws (2004) (unpublished manuscript, on file with authors)
\[hereinafter Hanson, Reyes & Schlanger, Attributional Positivism\]
(examining how people make attributions of causation, responsibility,
and blame, and describing how attribution theory influences law and
legal theory); Adam Benforado & Jon Hanson, The Costs of Dispositionism:
The Premature Demise of Situationist Law and Economics, 64 U. MD. L.
REV. (forthcoming 2005) \[hereinafter Benforado & Hanson, Costs of
Dispositionism\] (examining history of efficiency-based tort theory and
comparing the relatively situationist approach of Guido Calabresi to the
relatively dispositionist approach of Richard Posner and the influence
of the two approaches).

[[\[FN44\]](#Document1zzFN_B44)]{.underline}. \"One is privileged to
commit an act which would otherwise be a trespass to a chattel or a
conversion if the act is or is reasonably believed to be necessary for
the purpose of avoiding a public disaster.\" [[Restatement (Second) of
Torts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)[
262
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)]{.underline}.

[[\[FN45\]](#Document1zzFN_B45)]{.underline}. Most state courts\'
leading statements on excuse doctrines in tort law, such as duress or
necessity, are voiced in cases where the doctrines are found to be
inapplicable. Cf. Hanson & Yosifon, The Situation, supra note 5, at
300-01 (discussing cases).

[[\[FN46\]](#Document1zzFN_B46)]{.underline}. [[Restatement (Second) of
Torts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)[
262](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)]{.underline}
cmt. b (1981).

[[\[FN47\]](#Document1zzFN_B47)]{.underline}. See [[Restatement (Third)
of Torts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101589&FindType=Y&SerialNum=0290691227)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101589&FindType=Y&SerialNum=0290691227)[
11(b) (Tentative Draft No.
1,](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101589&FindType=Y&SerialNum=0290691227)]{.underline}
[[2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101589&FindType=Y&SerialNum=0290691227)]{.underline}
(\"If an actor engages in substandard conduct because of sudden
incapacitation or loss of consciousness brought about by physical
illness, this conduct constitutes negligence only if the sudden
incapacitation or loss of consciousness was reasonably foreseeable to
the actor\"). \"Sudden incapacitation can be caused by a heart attack, a
stroke, an epileptic seizure, diabetes, or other medical conditions.\"
Id. cmt. d. The epileptic fit is a favorite trope of the torts
restatement, and excuse for conduct performed under such an occurrence
shows up in many settings.

[[\[FN48\]](#Document1zzFN_B48)]{.underline}. Id. cmt. d.

[[\[FN49\]](#Document1zzFN_B49)]{.underline}. See id. (noting that the
cases are agreed that the incapacitation is an affirmative defense to
negligence which must be pled and proved by the defendant).

[[\[FN50\]](#Document1zzFN_B50)]{.underline}. See id. § 11(b).

[[\[FN51\]](#Document1zzFN_B51)]{.underline}. [[Restatement (Second) of
Torts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)[
262](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693976)]{.underline}
cmt. b.

[[\[FN52\]](#Document1zzFN_B52)]{.underline}. [[Pelman v. McDonald\'s
Corp., 237 F. Supp. 2d 512, 533 (S.D.N.Y.
2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=4637&FindType=Y&ReferencePositionType=S&SerialNum=2003096482&ReferencePosition=533)]{.underline}.
The court continued with the punchline: \"Plaintiffs have failed to
allege in the Complaint that their decisions to eat at McDonalds several
times a week were anything but a choice freely made and which now may
not be pinned on McDonalds.\" Id.

[[\[FN53\]](#Document1zzFN_B53)]{.underline}. See infra text
accompanying notes 620-634 (discussing the illusion of conscious will
and the human tendency to dispositionalize even inanimate objects).

[[\[FN54\]](#Document1zzFN_B54)]{.underline}. For a more extended
discussion of the role of dispositionism in the fast-food cases and in
tort law, see Adam Benforado, Jon Hanson, & David Yosifon, [[Broken
Scales: Obesity and Justice in America, 53 EMORY L.J. 1645 (forthcoming
Fall
2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1135&FindType=Y&SerialNum=0303609949)]{.underline}
\[hereinafter Benforado, Hanson & Yosifon, Broken Scales\].

[[\[FN55\]](#Document1zzFN_B55)]{.underline}. Reflecting the law\'s
dispositionism are the principles of voluntary action, and mens rea, the
guilty mind. Just as with tort law, there are areas of criminal law
where liability is strict and mens rea is not particularly relevant. In
those areas, deterrence or other regulatory goals overshadow the
significance of individual guilt, as for example with statutory rape
laws (which in many states are per se, meaning that the perpetrator\'s
perception of the victim\'s age, no matter how reasonable, is
irrelevant). See generally Richard A. Wasserstrom, [[Strict Liability in
the Criminal Law, 12 STAN. L. REV. 731
(1960)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=12STANLREV731&FindType=Y)]{.underline}.
Such cases are not the norm, however, nor do they necessarily represent
a more situationist approach to criminal law (though, depending upon the
justification offered, they do). It is also true that the state of mind
that will satisfy the guilty mind requirement is not always intent.
Often it is recklessness, and sometimes, negligence. As we suggest just
above with respect to tort law, however, all of these liability
standards are committed to a more or less dispositionist view of the
human actor (recklessness, for example, involves a knowing disregard of
a high probability that one will cause harm).

[[\[FN56\]](#Document1zzFN_B56)]{.underline}. For an excellent, and more
complete, discussion of dispositionism in criminal law, see Lee Ross &
Donna Shestowsky, [[Contemporary Psychology\'s Challenges To Legal
Theory and Practice, 97 NW. U. L. REV. 1081
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&SerialNum=0294374782)]{.underline}.

[[\[FN57\]](#Document1zzFN_B57)]{.underline}. [[Model Penal Code
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS2.01&FindType=L)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS2.01&FindType=L)[
2.01
(1962)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS2.01&FindType=L)]{.underline}.

[[\[FN58\]](#Document1zzFN_B58)]{.underline}. Id.

[[\[FN59\]](#Document1zzFN_B59)]{.underline}. [[Model Penal Code
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS2.09&FindType=L)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS2.09&FindType=L)[
2.09(1)
(1962)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS2.09&FindType=L)]{.underline}.

[[\[FN60\]](#Document1zzFN_B60)]{.underline}. [[State v. Fogarty, 607
A.2d 624 (N.J.
1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=162&FindType=Y&SerialNum=1992105867)]{.underline}
(citations omitted).

[[\[FN61\]](#Document1zzFN_B61)]{.underline}. [[Model Penal Code
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS4.01&FindType=L)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS4.01&FindType=L)[
4.01(1)
(1962)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002069&DocName=ULPNCOS4.01&FindType=L)]{.underline}.

[[\[FN62\]](#Document1zzFN_B62)]{.underline}. See Michael L. Perlin,
\"The [[Borderline Which Separated You From Me\": The Insanity Defense,
The Authoritarian Spirit, the Fear of Faking, and the Culture of
Punishment, 82 IOWA L. REV. 1375, 1377
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1168&FindType=Y&ReferencePositionType=S&SerialNum=0108801337&ReferencePosition=1377)]{.underline}.
Professor Perlin recounts that in response to public outrage after
President Ronald Reagan\'s would-be assassin John Hinckley was found not
guilty by reason of insanity, Congress and many states passed
legislation imposing some version of the traditional M\'Naghten rule for
insanity defenses, which is even more unforgiving than the Model Penal
Code\'s approach. [[Id. at
1380-83.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0108801337)]{.underline}
The M\'Naghten rule exonerates a defendant on the basis of mental
illness only if he did not know the nature of his act, or whether the
act was right or wrong. See [[id. at
1376.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0108801337)]{.underline}
The Model Penal Code\'s approach accepts that one might know his act is
wrong but still be unable to stop himself from doing it. The distinction
is not directly relevant to our argument here.

[[\[FN63\]](#Document1zzFN_B63)]{.underline}. Professor Perlin quotes a
Florida judge\'s revealingly dispositionist explanation of his
resistance to allowing social psychological testimony in a case before
him (here concerning evidence of the unreliability of witness
identifications):

\[I\] am no blind partisan of the academic discipline concerned. Indeed,
I should admit to a certain quarrel with the social \"sciences\" in
general and psychology in particular. They are, it seems to me, founded
on an almost indefensible premise: that one can fairly deduce some
truths about an individual by what classes of human beings do in the
aggregate. That seems to me so at odds with the human free will that any
conclusions founded on the premise are intrinsically unreliable.

Id. at 1424 (quoting [[McMullen v. State, 660 So. 2d 340, 342-43 (Fla.
Dist. Ct. App.
1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=735&FindType=Y&ReferencePositionType=S&SerialNum=1995177388&ReferencePosition=342)]{.underline}
(Farmer, J., concurring) (emphasis added)). Notice that the judge is
himself relying on the even more \"indefensible premise\" that one can
ignore what social science teaches about human beings\' behavior \"on
the aggregate\" and that from the unsubstantiated presumption of \"free
will\" \"one can fairly deduce some truths about an individual.\"

[[\[FN64\]](#Document1zzFN_B64)]{.underline}. See Christine Jolls, Cass
R. Sunstein & Richard Thaler, [[A Behavioral Approach to Law and
Economics, 50 STAN. L. REV. 1471
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&SerialNum=0108978010)]{.underline}
(explicating the conception of \"bounded rationality,\" which endeavors
to employ some insights of behavioral economics in a manner which can
improve upon but not fundamentally challenge the conventional law and
economics paradigm). But see infra Part V.C.4 (describing limitations of
Jolls, Sunstein and Thaler\'s approach).

[[\[FN65\]](#Document1zzFN_B65)]{.underline}. See Hanson & Yosifon, The
Situation, supra note 5, at 202-30 (explicating the deep capture
hypothesis).

[[\[FN66\]](#Document1zzFN_B66)]{.underline}. See Chen & Hanson, The
Illusion of Law, supra note 32; see also Jon Hanson & Adam Wright, In
the Driver\'s Seat: Why Promoting Dispositionism Is Good Business
(unpublished manuscript, on file with authors) \[hereinafter Hanson &
Wright, In the Driver\'s Seat\] (providing a more complete description
of the connection between dispositionism and pro-market and
anti-regulation policy presumptions).

[[\[FN67\]](#Document1zzFN_B67)]{.underline}. See Hanson & Yosifon, The
Situation, supra note 5, at 225-68 (briefly describing incentives of
commercial interests to promote dispositionism and providing some
examples).

[[\[FN68\]](#Document1zzFN_B68)]{.underline}. See, e.g., Benforado,
Hanson & Yosifon, Broken Scales, supra note 54 (revealing how
dispositionism has been employed by food, diet, and fitness industries);
Chen & Hanson, The Illusion of Law, supra note 32 (describing how macro
script of corporate law and meta scripts of policymaking both reflect
and reinforce deep capture); Hanson & Wright, In the Driver\'s Seat,
supra note 66 (describing in more detail the value of dispositionism to
business interests generally).

[[\[FN69\]](#Document1zzFN_B69)]{.underline}. Although we believe that
the implications of what follows are dramatic, it is important that we
not be misunderstood as claiming more than we are. We will underscore
this point several times, because some previous readers have mistakenly
placed our arguments into familiar\--though inapposite\-- categories. We
are not arguing that there is no such thing as free will. And we are not
taking a firm position on the age-old determinism debate or embracing a
new form of behaviorism. Our claim is that widely held, Western lay
conceptions of the human animal or attributions regarding human
behavior\--as well as the related legal-theoretic conceptions, including
that of law and economics\--are, in particular ways, largely incorrect.
We are moved far more by forces that we do not appreciate than we
realize and far less by forces to which we attribute behavior than we
realize.

[[\[FN70\]](#Document1zzFN_B70)]{.underline}. There may be some
circumstances in which the rational actor model remains an illuminating
tool. For instance, when an actor\'s situation creates robust pressure
for the actor to behave as if rational, the model may prove useful as a
means of predicting and influencing that actor\'s behavior. As will
become clear below, however, those circumstances are less common than
dispositionists tend to suppose. Moreover, even in such circumstances
the model lacks normative significance.

[[\[FN71\]](#Document1zzFN_B71)]{.underline}. PLATO, THE REPUBLIC
\*514-15 (G.M.A. Grube trans., 1974) (c. 380 B.C.E.).

[[\[FN72\]](#Document1zzFN_B72)]{.underline}. The \"cognitive miser\"
explanatory starting place has been an influential one in social
psychology. See, e.g., HEURISTICS AND BIASES (Daniel Kahneman & Amos
Tversky eds., 1977); KUNDA, supra note 6; SUSAN T. FISKE & SHELLEY E.
TAYLOR, SOCIAL COGNITION (2d ed. 1991); PHILIP ZIMBARDO & MICHAEL
LEIPPE, THE PSYCHOLOGY OF ATTITUDE CHANGE AND SOCIAL INFLUENCE (1991).
The metaphor itself embraces a kind of dispositionism, one is left
almost with the impression, right from the start, of the rational actor
all over again, wily making efficient allocations of resources in the
individual interest. But this impression is mistaken\--as we will
describe, the miserliness of our cognitions is a situational condition,
an interior situational reality, the dynamics of which are not usually
seen in our narrow conscious conception of our own thought processes.
Moreover, interior situation is subject to exterior situational
manipulation; what efficiency there is in our cognitive poverty may not
always yield benefits to ourselves. See Hanson & Yosifon, The Situation,
supra note 5, at 225-32.

[[\[FN73\]](#Document1zzFN_B73)]{.underline}. See RICHARD E. NISBETT,
THE GEOGRAPHY OF THOUGHT: HOW ASIANS AND WESTERNERS THINK DIFFERENTLY
\... AND WHY 40-45 (2003).

[[\[FN74\]](#Document1zzFN_B74)]{.underline}. See id.

[[\[FN75\]](#Document1zzFN_B75)]{.underline}. See Hanson & Yosifon, The
Situation, supra note 5, at 250-60.

[[\[FN76\]](#Document1zzFN_B76)]{.underline}. Indeed, the fact that
dispositionism can be influenced\--promoted\--by situation is an
important premise and piece of evidence for our deep capture thesis,
which was one of the central conclusions of our introductory article and
an important piece of this project. See id. at 157-78.

[[\[FN77\]](#Document1zzFN_B77)]{.underline}. See id. There is
considerable debate within social psychology about the variable patterns
of dispositionism across cultures; it has been a lively area of research
and debate. See NISBETT, supra note 73, at 10-13. Nevertheless, we feel
the claims we make here occupy the heartland of social psychological
thinking, and that our case rests on mostly noncontroversial
propositions about humanity within social psychology. We want to make
clear that the situational character, as we conceive of it through
critical realism, must be subject to constant revision, both because new
evidence will continue to come in from social psychology and related
fields about who we are and because who we are will continue to change
as our situations change over time. There is a vast literature in not
only social and cultural history, but also in cultural anthropology,
addressing how basic ideas of what it means to be human differ across
cultures and over time. See, e.g., Clifford Geertz, On the Nature of
Anthropological Understanding, 63 AM. SCI. 47 (1975); Hazel Rose Markus
& Shinobu Kitayama, Culture and the Self: Implications of Cognition,
Emotion, and Motivation, 98 PSYCHOL. REV. 224 (1991). These are valuable
and robust findings from sophisticated social sciences, and a complete
conception of the situational character\--that is, of ourselves\--should
make use of them. While this situational contingency in the quality of
our dispositionism is, again, absolutely central to our broader thesis,
through much of what follows we will emphasize the deeply wired nature
of our dispositionism, and the basics of its operation in all humans.

[[\[FN78\]](#Document1zzFN_B78)]{.underline}. In that, there are
numerous explanations, all of which contribute to the overall effect.
Several interior situational sources of dispositionism are described
below. See, e.g., infra text accompanying notes 523-29 (naïve realism);
444-71 (self-affirming motive); 472-78 (group-affirming motive); 479-
503 (system-affirming motive); see also Benforado, Hanson & Yosifon,
Broken Scales, supra note 54 (describing numerous sources of
dispositionism); Adam Benforado & Jon Hanson, Naïve Cynicism: Some
Mechanisms of Dispositionism and Other Persistent Attributional Errors
in Policy Debates (unpublished manuscript, on file with authors)
\[hereinafter Benforado & Hanson, Naïve Cynicism\] (summarizing those
situational sources and describing some seemingly dispositional sources
of dispositionism).

[[\[FN79\]](#Document1zzFN_B79)]{.underline}. Heinz Kohut,
Introspection, Empathy, and Psychoanalysis: An Examination of the
Relatinoship Between Mode of Observation and Theory, 7 J. AM.
PSYCHOANALYTIC ASS\'N 459 (1959), reprinted in THE SEARCH FOR THE SELF:
SELECTED WRITINGS OF HEINZ KOHUT, 1950-1978, at 205, 205-06 (Paul H.
Ornstein ed., 1978).

[[\[FN80\]](#Document1zzFN_B80)]{.underline}. JOHN HOLT, HOW CHILDREN
LEARN, at x (1967).

[[\[FN81\]](#Document1zzFN_B81)]{.underline}. Our definition for this
term will become clearer below when we look more closely at some of the
interior situational forces. For now, it is sufficient to understand
\"interior\" as \"inside of us.\" Cf. JOHN SABINI, SOCIAL PSYCHOLOGY 210
(2d ed. 1995) (\"Behaviors that psychologists are interested in are
caused by the interplay of things outside the skin (stimuli) and things
inside the skin (the central nervous system). So all behavior \... has
sources both inside the skin and outside it.\").

[[\[FN82\]](#Document1zzFN_B82)]{.underline}. See supra text
accompanying note 79.

[[\[FN83\]](#Document1zzFN_B83)]{.underline}. One might add one or more
of a number of other features, such as talents or abilities, without
altering the thrust of our point.

[[\[FN84\]](#Document1zzFN_B84)]{.underline}. Alan Page Fiske, Shinobu
Kitayama, Hazel Rose Markus & Richard E. Nisbett, The Cultural Matrix of
Social Psychology, in THE HANDBOOK OF SOCIAL PSYCHOLOGY 915, 920 (Daniel
T. Gilbert, Susan T. Fiske & Gardner Lindzey eds., 4th ed. 1998)
(emphasis added). As that quotation indicates, our description of our
perceived interiors is informed by, and largely consistent with, social
psychological evidence on the \"conceptual self.\" See also Chie
Kanagaw, Susan E. Cross, & Hazel Rose Markus, \"Who am I?\" The Cultural
Psychology of the Conceptual Self, 27 PERSONALITY & SOC. PSYCHOL. BULL.
90, 91 (2001) (summarizing the Western view of the self \"as a
more-or-less integrated whole composed of abilities, values, personality
attributes, preferences, feeling states, and attitudes\"); NISBETT,
supra note 73, at 47-78 (contrasting schemas of the human animal in
\"Western\" and \"Eastern\" cultures); DANIEL M. WEGNER, THE ILLUSION OF
CONSCIOUS WILL 2 (1992) (describing our perception of \"will\"). But our
assertions are also based in part on our own observations of what others
seem to find obvious and incontestable as well as on our own naïve
introspection. As will be detailed throughout this Article, others have
similarly found many of the features we mention to be obvious and
incontestable.

It is important to emphasize that we are\--our thesis is\--not wed to
the details of this already rather stylized description of the interior
fundamental attribution error, but we do stand by our claim that a
process analogous to the exterior fundamental attribution error is
occurring in our interiors (and probably for similar reasons). Our goal
here is simply to sketch a simple account of our oversimplified
perceived interiors. As will become clear in Part V, even if the
description provided in this section oversimplifies the widely held,
oversimplified self-conceptions, there is no disputing that our
interiors remain uncharted mysteries to most of us even as we maintain
the belief that our interiors are well understood.

[[\[FN85\]](#Document1zzFN_B85)]{.underline}. WEGNER, supra note 84, at
2.

[[\[FN86\]](#Document1zzFN_B86)]{.underline}. Cf. Claude M. Steele, The
Psychology of Self-Affirmation: Sustaining the Integrity of the Self, in
21 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 261, 295 (Leonard
Berkowitz ed., 1988) (explaining that the idea \"that the \'self is a
concept about oneself\' \... has taken firm hold in social psychology,
along with the tendency to explain self-phenomena as stemming from the
operations of this knowledge structure. These structures heighten
subjects\' sensitivity to self-relevant stimuli \..., facilitate the
processing and memory of these stimuli \..., foster resistance to
information that is incongruent with the structure \.... and foster
assimilation of congruent information \....\").

[[\[FN87\]](#Document1zzFN_B87)]{.underline}. People tend to embrace
plausible \"causal\" theories even when wrong precisely because they are
plausible causal theories. See generally Timothy De Camp Wilson &
Richard E. Nisbett, The Accuracy of Verbal Reports About the Effects of
Stimuli on Evaluations and Behavior, 41 SOC. PSYCHOL, 118 (1978). For a
more recent and thorough treatment of this tendency and its causes, see
Timothy Wilson\'s fascinating book, Strangers to Ourselves: Discovering
the Adaptive Unconscious (2002).

[[\[FN88\]](#Document1zzFN_B88)]{.underline}. Cf. Philip N.
Johnson-Laird & Eldar Shafir, The Interaction between Reasoning and
Decision Making: An Introduction, 49 COGNITION 1, 1-2 (1993) (describing
the \"folk\" psychology of reasoning and decision making\--\"the view
that most individuals in our culture accept about mental life\"\--as
follows: \"Human beings have desires and needs, and they use their
knowledge to decide what to do and to infer how best to achieve their
goals. They reason in order to make decisions and to justify them both
to themselves and others: they reason in order to determine the
consequences of their beliefs and of their hypothetical actions; they
reason to work out plans of action. They make decisions about what
values to treat as paramount; they make decisions about what actions to
take; and they make decisions about what information to base their
reasoning on.\"); Arthur Lupia, Mathew D. McCubbins & Samuel L. Popkin,
Beyond Rationality: Reason and the Study of Politics, in ELEMENTS OF
REASON: COGNITION, CHOICE, AND THE BOUNDS OF RATIONALITY 1, 1 (Arthur
Lupia et al. eds., 2000) (\"\[C\]hoice is the product of reason, where
reason is the human process of seeking, processing, and draing
inferences from information.\").

[[\[FN89\]](#Document1zzFN_B89)]{.underline}. RENE DESCARTES, DISCOURSE
ON THE METHOD Pt. IV (1637), reprinted in DESCARTES: SELECTED
PHILOSOPHICAL WRITINGS 20, 36 (John Cottingham et al. trans., Cambridge
Univ. Press 1988).

[[\[FN90\]](#Document1zzFN_B90)]{.underline}. As indicated earlier, our
identities depend importantly on all the features of our perceived
interiors, and not just our preferences. And, of course, they depend as
well on aspects of ourselves that have little to do with our perceived
interiors. As William James wrote in 1890:

In its widest possible sense \... a man\'s Self is the sum total of all
that he can call his, not only his body and his psychic powers, but his
clothes and his house, his wife \[or husband, or partner\] and children,
his ancestors and friends, his reputation and works\.... If they wax and
prosper, he feels triumphant, if they dwindle and die away he feels cast
down.

WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY 291-92 (Encyclopaedia
Britannica 1952) (1890). The naïve account of our interiors, it should
be clear now if it wasn\'t before, strongly reflects the cultural (and,
thus, sometimes patriarchal) lens through which we view our interiors.
In addition, our identities turn importantly on features of ourselves
that are often perceived as fixed or given by nature or some larger
external influence: abilities, talents, genetics, race, gender, age,
appearance, health, ethnicity, language, social class, and so on.

[[\[FN91\]](#Document1zzFN_B91)]{.underline}. See generally MARYE C.
THARP, MARKETING AND CONSUMER IDENTITY IN MULTICULTURAL AMERICA (2001)
(describing the disintegration of the \"mass market\" and the
construction of individual identities through distinctive consumption
choices). This vision, like the others, is likely more or less
culturally contingent. See, e.g., id. at 1 (\"In multicultural America,
your age, address, language and accent, skin color, or shape of eyes, as
well as the music you listen to, whom you have sex with, and where you
work, are the tools with which American consumers construct,
communicate, and change social identity. Rather than lifetime, fixed
definitions of ourselves, these self-made, chosen identities are built
upon a constantly changing foundation of personal characteristics and
behaviors. It is a lifetime project, always in flux, never finalized,
but frequently expressed by how we spend our money and time.\" (emphasis
added)); see also Douglas A. Kysar, [[Kids & Cul-de-Sacs: Census 2000
and the Reproduction of Consumer Culture, 87 CORNELL L. REV. 853,
890-94](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1111&FindType=Y&ReferencePositionType=S&SerialNum=0288023296&ReferencePosition=890)]{.underline}
(discussing the role that consumption plays in our self-definition in a
culture that provides few alternatives); [[id. at
891](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0288023296)]{.underline}
(\"Individuals no longer receive their place in the world from
authoritarian dictate or historical happenstance; instead, they must
fashion it themselves from some combination of available cultural and
material resources. The claim of consumer culture theorists is that
individuals in the modern world (and particularly in the United States)
have sought to satisfy this obligation of self-definition through the
medium of consumption.\"); J. McManus, Tapped In, Tapped Out, AM.
DEMOGRAPHICS, Dec. 1988, at 6 (\"The brand is merely a beacon for a set
of values in the broad spectrum of choices.\").

[[\[FN92\]](#Document1zzFN_B92)]{.underline}. WEGNER, supra note 84, at
2.

[[\[FN93\]](#Document1zzFN_B93)]{.underline}. Id.

[[\[FN94\]](#Document1zzFN_B94)]{.underline}. Id.

[[\[FN95\]](#Document1zzFN_B95)]{.underline}. For a great overview of
generations of grappling with the question of will, see DANIEL DENNETT,
CONSCIOUSNESS EXPLAINED (1991).

[[\[FN96\]](#Document1zzFN_B96)]{.underline}. WEGNER, supra note 84, at
4.

[[\[FN97\]](#Document1zzFN_B97)]{.underline}. Johnson-Laird & Shafir,
supra note 88, at 2; cf. id (adding that the \"claim is a legacy of the
Cartesian identification of the mind with consciousness\").

[[\[FN98\]](#Document1zzFN_B98)]{.underline}. OLIVER WENDELL HOLMES,
JR., THE COMMON LAW 80 (Little, Brown & Co. 1990) (1881).

[[\[FN99\]](#Document1zzFN_B99)]{.underline}. Fiske, Kitayama, Markus &
Nisbett, supra note 84, at 939.

[[\[FN100\]](#Document1zzFN_B100)]{.underline}. Id.; see also Claude M.
Steele, Thin Ice: \"Stereotype Threat\" and Black College Students,
ATLANTIC MONTHLY, Aug. 1999, at 44, 47 (\"Ours is an individualistic
culture; forward movement is seen to come from within.\").

[[\[FN101\]](#Document1zzFN_B101)]{.underline}. As we described in The
Situation, the self-conceptions of many people in Eastern cultures
render them less subject to some aspects of the fundamental attribution
error. See Hanson & Yosifon, The Situation, supra note 5, at 250-60.

[[\[FN102\]](#Document1zzFN_B102)]{.underline}. It is worth noting that
what we perceive about ourselves may depend on the perspective that we
have of ourselves. Robert Wicklund, building on the work of George Mead,
argues that we have two selves: the \"I,\" which is the acting, behaving
feature of ourselves that engages our environs according to our desires,
values, and beliefs; and the \"me,\" which is the self-reflective,
self-aware feature of ourselves. The \"me\" emerges, for instance, when
we see ourselves as others might. And \"I\" behavior can change to a
\"me\" experience by placing ourselves in front of a mirror or a video
camera. See Robert A. Wicklund, Objective Self-Awareness, in 8 ADVANCES
IN EXPERIMENTAL SOCIAL PSYCHOLOGY 223 (L. Berkowitz ed., 1975).

[[\[FN103\]](#Document1zzFN_B103)]{.underline}. Oliver Wendell Holmes,
Sr., Mechanism in Thought and Morals: An Address Delivered Before the
Phi Beta Kappa Society of Harvard University (June 29, 1870).

[[\[FN104\]](#Document1zzFN_B104)]{.underline}. ANTONIO R. DAMASIO,
DESCARTES\' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN 249 (1994).

[[\[FN105\]](#Document1zzFN_B105)]{.underline}. Mahzarin R. Banaji,
Ordinary Prejudice, PSYCHOL. SCI. AGENDA, Jan.\--Feb. 2001, at 8, 8
\[hereinafter Banaji, Ordinary Prejudice\]; see also Mahzarin R. Banaji,
Implicit Attitudes Can Be Measured \[hereinafter Banaji, Implicit
Attitudes\], in THE NATURE OF REMEMBERING: ESSAYS IN HONOR OF ROBERT G.
CROWDER 117, 129 (H.L. Roediger, III et al. eds., 2001) (describing the
problem earlier noted by William James in creating psychological
constructs \"that the knower and known are one and the same. For many
constructs like memory, attitude, or consciousness, the knower and known
have a close relationship, a condition ripe for delusions that derive
from intuitive notion of what memory, attitude, or consciousness ought
to be. Among the most invidious of traps when investigating mental
constructs with which one\'s own thinking apparatus has intimate
familiarity is the demand that the constructs ought to feel \'real,\'
even to the scientist.\").

[[\[FN106\]](#Document1zzFN_B106)]{.underline}. DAMASIO, supra note 104,
at 252.

[[\[FN107\]](#Document1zzFN_B107)]{.underline}. Id. at 249. Damasio
quotes St. Augustine but does not make the same point we are making.
Interestingly, Damasio himself, and other neuroscientists, have recently
been criticized for, in effect, replicating the Cartesian error. See
M.R. BENNETT & P.M.S. HACKER, PHILOSOPHICAL FOUNDATIONS OF NEUROSCIENCE
(2003); Dennis Patterson, Book Review, NOTRE DAME PHIL. REVIEWS (Sept.
10, 2003) (reviewing BENNETT & HACKER, supra), at http://
ndpr.icaap.org/content/archives/2003/9/patterson_bennett_hacker.html.

[[\[FN108\]](#Document1zzFN_B108)]{.underline}. Webster\'s defines
situation as \"the way in which something is placed in relation to its
surroundings.\" MERRIAM-WEBSTER\'S COLLEGIATE DICTIONARY 1098 (10th ed.
1998). That is only part of what we mean by the term.

[[\[FN109\]](#Document1zzFN_B109)]{.underline}. To be clear, our
definitions of related concepts are similarly unorthodox. Social
psychologists traditionally use the term \"disposition\" to indicate
something internal, like personality, preferences, desires, moods, and
so on, as opposed to \"situation,\" by which social psychologists often
mean something external, like environmental cues, time constraints,
social pressures, and the like. The \"fundamental attribution error,\"
as social psychologists typically use the term, refers to the tendency
to over-attribute to disposition, thus defined, and under-attribute to
situation, thus defined. When we write of \"dispositionism\" in this
Article, we are mostly referring to the particular causal schema
generally employed by Westerners to explain behavior: that is, stable
(person-specific) preferences combined with some thinking and will. The
\"fundamental attribution error,\" as we use the term, is therefore more
profound (indicating a failure to appreciate the role of both the
exterior situation and the interior situation in explaining behavior)
than that imagined when the phrase is conventionally used. We will
refine that terminology in future work, but those definitions should be
adequate for present purposes.

[[\[FN110\]](#Document1zzFN_B110)]{.underline}. Robert Crowder, The
Brain, the Kidney, and Consciousness (unpublished manuscript, c. 1990),
in Banaji, Implicit Attitudes, supra note 105, at 130.

[[\[FN111\]](#Document1zzFN_B111)]{.underline}. NEIL A. CAMPBELL & JANE
B. REECE, BIOLOGY 516 (6th ed. 2002).

[[\[FN112\]](#Document1zzFN_B112)]{.underline}. See EVELYN FOX KELLER,
MAKING SENSE OF LIFE: EXPLAINING BIOLOGICAL DEVELOPMENT WITH MODELS,
METAPHORS, AND MACHINES 22-49 (2002); Russell Levine & Chris Evers, The
Slow Death of Spontaneous Generation (1668-1859), at http://
www.accessexcellence.org/RC/AB/BC/Spontaneous_Generation.html (last
visited Dec. 27, 2004) (\"The theory of spontaneous generation was
finally laid to rest in 1859 by the young French chemist, Louis Pasteur.
The French Academy of Sciences sponsored a contest for the best
experiment either proving or disproving spontaneous generation.
Pasteur\'s winning experiment \.... boiled meat broth in a flask, heated
the neck of the flask in a flame until it became pliable, and bent it
into the shape of an S. Air could enter the flask, but airborne
microorganisms could not\--they would settle by gravity in the neck. As
Pasteur had expected, no microorganisms grew. When Pasteur tilted the
flask so that the broth reached the lowest point in the neck, where any
airborne particles would have settled, the broth rapidly became cloudy
with life. Pasteur had both refuted the theory of spontaneous generation
and convincingly demonstrated that microorganisms are everywhere\--even
in the air.\").

[[\[FN113\]](#Document1zzFN_B113)]{.underline}. Preferences might also
be labeled \"affective responses,\" a concept we discuss below. See
infra Part III.C.3.

[[\[FN114\]](#Document1zzFN_B114)]{.underline}. FISKE & TAYLOR, supra
note 72, at 463.

[[\[FN115\]](#Document1zzFN_B115)]{.underline}. RAY CORSINI, THE
DICTIONARY OF PSYCHOLOGY 76 (2002).

[[\[FN116\]](#Document1zzFN_B116)]{.underline}. ZIMBARDO & LEIPPE, supra
note 72, at 32.

[[\[FN117\]](#Document1zzFN_B117)]{.underline}. Social psychology has
had somewhat less to say about the felt experience of \"the will,\" but
what work there has been is, we think, incredibly revealing, and we will
turn to it towards the end of this Article. See infra Part III.E.2
(discussing the illusion of conscious will).

[[\[FN118\]](#Document1zzFN_B118)]{.underline}. The distinction between
situational and dispositional is sometimes a difference in degree rather
than a difference in kind. Some interior situational factors, like those
on the exterior, can often be seen\--with some effort. They are
situational because we humans tend not to see them. They are typically
nonreflective and automatic.

[[\[FN119\]](#Document1zzFN_B119)]{.underline}. It is revealing, we
believe, that the assumptions now made by economists resemble those once
made by early social psychologists. See infra Part III.B.2.b
(summarizing early attributionists); infra Part III.C.1.a (discussing
traditional view that attitudes were stable); see also FISKE & TAYLOR,
supra note 72, at 465. It was only through testing those assumptions
that social psychologists came to discover the flaws in their
intuitively appealing theories. The point here is not to criticize
economists for failing to test their pre-theoretic axioms (we will make
that criticism below, see infra Part V.A\--B), but to provide more
evidentiary support for our claim about the naïve view of our interiors
that most of us, including those who set out to study our interiors,
tend to hold, at least initially.

[[\[FN120\]](#Document1zzFN_B120)]{.underline}. Banaji, Ordinary
Prejudice, supra note 105, at 8.

[[\[FN121\]](#Document1zzFN_B121)]{.underline}. See supra text
accompanying notes 84-88 (reviewing the conventional Western schemas for
human behavior).

[[\[FN122\]](#Document1zzFN_B122)]{.underline}. See Johnson-Laird &
Shafir, supra note 88, at 2 (\"Individuals are often not aware of how
they reason, having at best only glimpses of the process. They are aware
of the results, not the mechanism. What they say about their reasoning
does not tally with its real nature \....\"); id. at 3
(\"\[I\]ntrospection is not a direct route to understanding mental
processes, and, as far as we know, there is no direct route.\"); Richard
E. Nisbett & Timothy DeCamp Wilson, Telling More Than We Can Know:
Verbal Reports on Mental Processes, 84 PSYCHOL. REV. 231 (1977); J. St.
B. T. Evans, D.E. Over & K.I Mantelow, Reasoning, Decision Making and
Rationality, 49 COGNITION 165 (1993).

[[\[FN123\]](#Document1zzFN_B123)]{.underline}. In other words, can you
prevent the image or idea of a chocolate chip cookie still warm from the
baking pan, perhaps next to a glass of cold milk, from coming to mind?
There is evidence that our attempts to suppress a thought often
backfire, making the thought more prominent in our consciousness. Daniel
Wegner has labeled this effect the \"ironic reversal.\" WEGNER, supra
note 84, at 4; see also KUNDA, supra note 6, at 299. Kunda refers to
that effect as the \"hyperaccessibility of suppressed thoughts.\" Id. at
300-01.

[[\[FN124\]](#Document1zzFN_B124)]{.underline}. According to Fiske and
Taylor, \"\[t\]he only way out, as successful dieters and practiced
meditators know, is to find a substitute thought,\" a solution that is
harder than it sounds. See FISKE & TAYLOR, supra note 72, at 279-80; see
also KUNDA, supra note 6, at 300.

[[\[FN125\]](#Document1zzFN_B125)]{.underline}. See infra text
accompanying notes 658-87.

[[\[FN126\]](#Document1zzFN_B126)]{.underline}. For a more comprehensive
review, see Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism
Seriously: The Problem of Market Manipulation, 74 N.Y.U. L. REV. 632,
646-67 (1999) \[hereinafter Hanson & Kysar, Taking Behavioralism
Seriously I\]; Jolls, Sunstein, & Thaler, supra note 64, at 1476- 79;
Matthew Rabin, Psychology and Economics, 36 J. ECON. LIT. 11 (1998). For
examples of scholars using choice biases to enhance policy analysis, see
BEHAVIORAL LAW AND ECONOMICS (Cass R. Sunstein ed., 2000). For useful
overviews of choice biases by social psychologists, see JUDGMENT UNDER
UNCERTAINTY: HEURISTICS AND BIASES (Daniel Kahneman, Paul Slovic & Amos
Tversky eds., 1982) \[hereinafter JUDGMENT UNDER UNCERTAINTY\] and SCOTT
PLOUS, THE PSYCHOLOGY OF JUDGMENT AND DECISION MAKING (1993).

[[\[FN127\]](#Document1zzFN_B127)]{.underline}. See supra text
accompanying notes 72-77 (noting cognitive limitations as one cause of
the fundamental attribution error).

[[\[FN128\]](#Document1zzFN_B128)]{.underline}. FISKE & TAYLOR, supra
note 72, at 391.

[[\[FN129\]](#Document1zzFN_B129)]{.underline}. RICHARD NISBETT & LEE
ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT 18
(1980).

[[\[FN130\]](#Document1zzFN_B130)]{.underline}. KUNDA, supra note 6, at
56.

[[\[FN131\]](#Document1zzFN_B131)]{.underline}. See NISBETT & ROSS,
supra note 129, at 18.

[[\[FN132\]](#Document1zzFN_B132)]{.underline}. See Hanson & Kysar,
Taking Behavioralism Seriously I, supra note 126, at 672-87; see also
Jon D. Hanson & Douglas A. Kysar, [[Taking Behavioralism Seriously: Some
Evidence of Market Manipulation, 112 HARV. L. REV. 1420, 1425-27
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&ReferencePositionType=S&SerialNum=0111026739&ReferencePosition=1425)]{.underline}
\[hereinafter Hanson & Kysar, Taking Behavioralism Seriously II\].

[[\[FN133\]](#Document1zzFN_B133)]{.underline}. FISKE & TAYLOR, supra
note 72, at 384.

[[\[FN134\]](#Document1zzFN_B134)]{.underline}. NISBETT & ROSS, supra
note 129, at 19.

[[\[FN135\]](#Document1zzFN_B135)]{.underline}. KUNDA, supra note 6, at
91 (citing P. Slovic et al., Facts Versus Fears: Understanding Perceived
Risk, in JUDGMENT UNDER UNCERTAINTY, supra note 126, at 436).

[[\[FN136\]](#Document1zzFN_B136)]{.underline}. KUNDA, supra note 6, at
159 (emphasis added); see also id. at 130-33 (explaining that we \"see\"
illusory correlations when \"rare and distinctive individuals,\" who
therefore \"capture our attention\" engage in certain behaviors); infra
Part III.B.2.a.i (discussing this and other sources of stereotypes). See
generally Ronald Chen & Jon Hanson, Categorically Biased: The Influence
of Knowledge Structures on Law and Legal Theory, 77 S. CAL. L. REV. 1106
(2004) \[hereinafter Chen & Hanson, Categorically Biased\] (describing
in detail the process by which stereotypes are created and activated).

[[\[FN137\]](#Document1zzFN_B137)]{.underline}. For a review of the
evidence, see Hanson & Kysar, Taking Behavioralism Seriously II, supra
note 132, at 1532-34; see also KUNDA, supra note 6, at 123 (\"Merely
asking participants to analyze the reasons for their behavioral
predictions made them view the behaviors as more likely.\").

[[\[FN138\]](#Document1zzFN_B138)]{.underline}. KUNDA, supra note 6, at
102.

[[\[FN139\]](#Document1zzFN_B139)]{.underline}. Id. (citing Amos Tversky
& Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases,
185 SCIENCE 1124 (1974)). See generally Hanson & Kysar, Taking
Behavioralism Seriously I, supra note 126, at 667-69 (reviewing some of
the experiments).

[[\[FN140\]](#Document1zzFN_B140)]{.underline}. MASSIMO
PIATELLI-PALMARINI, INEVITABLE ILLUSIONS: HOW MISTAKES OF REASON RULE
OUR MINDS 71-72 (1994).

[[\[FN141\]](#Document1zzFN_B141)]{.underline}. Baruch Fischhoff,
Hindsight not= Foresight: The Effect of Outcome Knowledge on Judgment
Under Uncertainty, 1 J. EXPERIMENTAL PSYCHOL.: HUM. PERCEPTION &
PERFORMANCE 288, 288 (1975).

[[\[FN142\]](#Document1zzFN_B142)]{.underline}. See KUNDA, supra note 6,
at 184; Hanson & Kysar, Taking Behavioralism Seriously I, supra note
126, at 660.

[[\[FN143\]](#Document1zzFN_B143)]{.underline}. See Daniel Kahneman,
Jack L. Knetsch & Richard H. Thaler, The Endowment Effect, Loss
Aversion, and Status Quo Bias, 5 J. ECON. PERSP. 193, 197-201 (1991);
see also Hanson & Kysar, Taking Behavioralism Seriously I, supra note
126, at 673-76 (summarizing social psychological findings concerning the
endowment effect).

[[\[FN144\]](#Document1zzFN_B144)]{.underline}. See Daniel Kahneman,
Jack L. Knetsch & Richard H. Thaler, Experimental Tests of the Endowment
Effect and the Coase Theorem, 98 J. POL. ECON. 1325, 1330 (1990)
(describing the Cornell coffee mug study, and several variations of it,
in detail).

[[\[FN145\]](#Document1zzFN_B145)]{.underline}. See George Loewenstein &
Daniel Adler, A Bias in the Prediction of Tastes, 105 ECON. J. 929, 931
(1995).

[[\[FN146\]](#Document1zzFN_B146)]{.underline}. See Jonathan Gruber, The
Incidence of Mandated Maternity Benefits, 84 AM. ECON. REV. 622 (1994).
Gruber\'s study found that the imposition of mandatory maternity
benefits caused the wages of workers to fall by at least the cost of
providing the insurance, but that the hours worked and the probability
of the workers\' being employed did not change or was only slightly
lower with the endowment in place. According to Gruber, \"\[t\]he
findings consistently suggest shifting of the costs of the mandates on
the order of 100 percent, with little effect on net labor input.\" Id.
at 623; see also Jolls, Sunstein & Thaler, supra note 64, at 1506-07
(discussing Gruber\'s findings as inconsistent with conventional
economic analysis but consistent with social psychological studies
concerning the endowment effect). For other \"real world\" findings
concerning the endowment effect that sweep beyond coffee mugs, see Ward
Farnsworth, Do Parties to Nuisance Lawsuits Bargain After Judgment? A
Glimpse Inside the Cathedral, in BEHAVIORAL LAW AND ECONOMICS, supra
note 126, at 302; Kahneman, Knetsch & Thaler, supra note 143.

[[\[FN147\]](#Document1zzFN_B147)]{.underline}. See Hanson & Kysar,
Taking Behavioralism Seriously 1, supra note 126, at 644, 684-87
(reviewing several key studies). Consider, for example, the very
different response supermarkets are likely to elicit from their
customers when they label their beef as being \"eighty-five percent fat
free,\" rather than \"fifteen percent fat,\" or that filling stations
are likely to inspire when they frame their cash-based prices as
\"discounts\" rather than advertising that they charge a premium for
purchases on credit.

[[\[FN148\]](#Document1zzFN_B148)]{.underline}. Daniel Kahneman & Amos
Tversky, Choices, Values, and Frames, 39 AM. PSYCHOL. 341, 343 (1984).

[[\[FN149\]](#Document1zzFN_B149)]{.underline}. PIATELLI-PALMARINI,
supra note 140, at 30.

[[\[FN150\]](#Document1zzFN_B150)]{.underline}. KUNDA, supra note 6, at
106.

[[\[FN151\]](#Document1zzFN_B151)]{.underline}. See KUNDA, supra note 6,
at 104 (discussing George Quattrone\'s work suggesting that \"anchoring
may play a role in producing the \[exterior\] fundamental attribution
error\") (citing George Quattrone, Overattribution and Unit Formation:
When Behavior Engulfs the Person, 42 J. PERSONALITY & SOC. PSYCHOL. 593
(1982)).

[[\[FN152\]](#Document1zzFN_B152)]{.underline}. For a related discussion
of \"the problem of manipulation,\" see Hanson & Kysar, Taking
Behavioralism Seriously I, supra note 126.

[[\[FN153\]](#Document1zzFN_B153)]{.underline}. We have ourselves
conducted this experiment in a number of different settings, and each
time we have seen that the formal renditions of the experiment predicted
the results. For the formal versions of the hyperbolic discounting
experiments, see George Ainslie & Nick Haslam, Hyperbolic Discounting,
in CHOICE OVER TIME 57, 69 (George Loewenstein & Jon Elster eds., 1992);
see also Shane Frederick, George Loewenstein & Ted O\'Donoghue, Time
Discounting and Time Preference: A Critical Review, J. ECON. LIT. 351,
360-61 (2002) (summarizing similar studies including some done on
pigeons).

[[\[FN154\]](#Document1zzFN_B154)]{.underline}. If you didn\'t
experience the apparent reversal in attitudes, try reducing the sums to,
say, \$10 and \$20.

[[\[FN155\]](#Document1zzFN_B155)]{.underline}. See, e.g., Frederick,
Loewenstein & O\'Donoghue, supra note 153, at 361; see also Ted
O\'Donoghue & Matthew Rabin, Doing It Now or Later, 89 AM. ECON. REV.
103, 103 (1999) (\"People are impatient\--they like to experience
rewards soon and to delay costs until later.\"). But see Dan Ariely &
George Loewenstein, When Does Duration Matter in Judgment and Decision
Making?, 129 J. EXPERIMENTAL PSYCHOL. 508 (2000) (describing some
exceptions); Drazen Prelec & George Loewenstein, The Red and the Black:
Mental Accounting of Savings and Debt, 17 MARKETING SCI. 4 (1998)
(same).

[[\[FN156\]](#Document1zzFN_B156)]{.underline}. This evidence
contradicts the conventional discounted utility model of neoclassical
economics that has long been the dominant normative and positive model
of intertemporal decision-making. See infra text accompanying notes
339-80.

[[\[FN157\]](#Document1zzFN_B157)]{.underline}. See generally VIVIANA
ZELIZER, THE SOCIAL MEANING OF MONEY (1997).

[[\[FN158\]](#Document1zzFN_B158)]{.underline}. Even the more creative
explanations that economic behavioralists provide, such as \"mental
accounts,\" are actually just somewhat ad hoc and narrow versions of
highly developed and expansive theories that social psychologists have
long been refining, but the lessons of which go far beyond what
economists recognize in their provisional categories. See, e.g., infra
Part III.B.2.a. (discussing role of knowledge structures).

[[\[FN159\]](#Document1zzFN_B159)]{.underline}. Cf. TODD RAKOFF, TIME
(2002) (analyzing the role of law in structuring people\'s conception
and experience of time).

[[\[FN160\]](#Document1zzFN_B160)]{.underline}. See Wilson & Nisbett,
supra note 87, at 123.

[[\[FN161\]](#Document1zzFN_B161)]{.underline}. Id.

[[\[FN162\]](#Document1zzFN_B162)]{.underline}. Id. at 124.

[[\[FN163\]](#Document1zzFN_B163)]{.underline}. Id.

[[\[FN164\]](#Document1zzFN_B164)]{.underline}. Id.

[[\[FN165\]](#Document1zzFN_B165)]{.underline}. Id.

[[\[FN166\]](#Document1zzFN_B166)]{.underline}. Id. For more examples of
the powerful role of the situational influence of proximity, see Nisbett
& Wilson, supra note 122. Wilson and Nisbett\'s analysis was,
particularly initially, met with considerable criticism. See, e.g.,
Eliot R. Smith & Frederick D. Miller, Limits on Perception of Cognitive
Processes: A Reply to Nisbett and Wilson, 85 PSYCHOL. BULL. 355 (1978)
(asserting that Nisbett and Wilson\'s claim that people have no direct
access to their mental processes is overstated); Peter White,
Limitations on Verbal Reports of Internal Events: A Refutation of
Nisbett and Wilson and of Bem, 87 PSYCHOL. REV. 105-12 (1980)
(criticizing Nisbett and Wilson\'s interpretations and methodologies);
Peter Wright & Peter D. Rip, Retrospective Reports on the Causes of
Decisions, 40 J. PERSONALITY & SOC. PSYCHOL. 601 (1981) (claiming that
Wilson and Nisbett\'s conclusion that people have no awareness or
retrieval abilities of their mental processes is overstated); Robert E.
Kraut & Steven H. Lewis, Person Perception and Self-Awareness: Knowledge
of Influences on One\'s Own Judgments, 42 J. PERSONALITY & SOC. PSYCHOL.
448 (1982) (finding that judges\' self-reports about what influences
their judgments are moderately accurate at estimating the actual
influences on their judgments); George A. Quattrone, On the Congruity
Between Internal States and Action, 98 PSYCHOL. BULL. 3 (1985) (arguing
that self-report effects are significant and congruent with behavior
more frequently than indicated by Wilson and Nisbett). More recently,
however, Nisbett and Wilson\'s arguments and conclusions are enjoying
greater support. See, e.g., Mirjam Sprangers et al., A Constructive
Replication of White\'s Alleged Refutation of Nisbett and Wilson and of
Bem: Limitations on Verbal Reports of Internal Events, 23 J.
EXPERIMENTAL SOC. PSYCHOL. 302 (1987) (finding that observers\' causal
reports are no more accurate than actors\' causal reports on judgment
processes); Charles K. Turner, Don\'t Blame Memory for People\'s Faulty
Reports on What Influences Their Judgments, 14 PERSONALITY & SOC.
PSYCHOL. BULL. 622 (1988) (finding that memory decay is not attributable
to people\'s inability to accurately report on judgment processes);
Banaji, Implicit Attitudes, supra note 105.

[[\[FN167\]](#Document1zzFN_B167)]{.underline}. ROGER BROWN, SOCIAL
PSYCHOLOGY 20 (2d. ed. 1986). The following summary of Brown\'s work
comes from id. at 20-24.

[[\[FN168\]](#Document1zzFN_B168)]{.underline}. Milgram himself adjusted
the experimental setting to examine the effect of the \"closeness of the
victim\" and \"closeness of authority.\" See BROWN, supra note 167, at
21. Brown was therefore just building on Milgram\'s intended design.

[[\[FN169\]](#Document1zzFN_B169)]{.underline}. See supra text
accompanying notes 8-13.

[[\[FN170\]](#Document1zzFN_B170)]{.underline}. BROWN, supra note 167,
at 22.

[[\[FN171\]](#Document1zzFN_B171)]{.underline}. Cf. id. (\"\[I\]t seems
reasonable to extend immediacy so as to give it psychological sense such
as salience in consciousness \....\"); NISBETT & ROSS, supra note 129,
at 62 (\"People give inferential weight to information in proportion to
its vividness. Vividness is defined as the emotional interest of the
information, the concreteness and imaginability of information, and the
sensory, spatial, and temporal proximity of information.\").

[[\[FN172\]](#Document1zzFN_B172)]{.underline}. Donald A. Redelmeier &
Daniel Kahneman, Patients\' Memories of Painful Medical Treatments:
Real-Time and Retrospective Evaluations of Two Minimally Invasive
Procedures, 66 PAIN 3 (1996). Redelemeier and Kahneman\'s study fits
into an extensive body (no pun intended) of social psychological study
of memory. See, e.g., D. Thomas & E. Diener, Memory Accuracy in the
Recall of Emotions, 59 J. PERSONALITY & SOC. PSYCHOL. 1091 (1998)
(finding that people\'s memories of emotional experiences are often
inaccurate).

[[\[FN173\]](#Document1zzFN_B173)]{.underline}. At some level this study
was more invasive than even Stanley Milgrim\'s, in that the
experimenters actually inflicted pain for experimental purposes on the
second group of patients. Without elaboration, Redelmeir and Kahneman
noted that \"\[n\]o colonoscopy \... was performed solely for research
purposes and all patients gave informed consent.\" Redelmeier &
Kahneman, supra note 172, at 4. There is no word on the situation within
which the consent was given. We have already seen from Milgram\'s work
that the question of \"informed consent\" is perhaps just that, a
question, and not one that can be answered in the form of a simple
waiver like the one indicated here. In a later publication in which he
discussed this experiment, Kahneman drops a footnote and writes: \"The
ethical justification for the experiment was the observation of poor
compliance among patients who have had a painful colonoscopy and are
instructed to schedule another.\" See Daniel Kahneman, Experienced
Utility and Objective Happiness: A Moment-Based Approach, in CHOICES,
VALUES AND FRAMES 673, 676 n.2 (Daniel Kahneman & Amos Tversky eds.,
2000).

[[\[FN174\]](#Document1zzFN_B174)]{.underline}. Redelmeier & Kahneman,
supra note 172, at 4-5.

[[\[FN175\]](#Document1zzFN_B175)]{.underline}. Id. at 6.

[[\[FN176\]](#Document1zzFN_B176)]{.underline}. Id. at 6-7.

[[\[FN177\]](#Document1zzFN_B177)]{.underline}. See, e.g., Daniel
Kahneman, Evaluation By Moments, in CHOICES, VALUES AND FRAMES, supra
note 173, at 693, 694-99 & fig.38.1(B) (reporting similar patterns in
overall evaluations by control subjects who hear a sharp unpleasant
sound as compared to the evaluations of a group of subjects who heard
the same sharp unpleasant sound followed by several other somewhat less
sharp but still unpleasant sounds; the latter group rated the overall
experience as less unpleasant than did the first).

[[\[FN178\]](#Document1zzFN_B178)]{.underline}. Redelmeier & Kahneman,
supra note 172, at 7.

[[\[FN179\]](#Document1zzFN_B179)]{.underline}. Id.

[[\[FN180\]](#Document1zzFN_B180)]{.underline}. Id.

[[\[FN181\]](#Document1zzFN_B181)]{.underline}. Kahneman has recently
delved more deeply into providing a utility analysis model that comports
with his and others\' findings about pain and memory. See Kahneman,
supra note 173.

[[\[FN182\]](#Document1zzFN_B182)]{.underline}. Redelmeier & Kahneman,
supra note 172, at 7.

[[\[FN183\]](#Document1zzFN_B183)]{.underline}. See B.A. Mellers, A.
Schwartz & A.D.J. Cooke, Judgment and Decision Making, 49 ANN. REV.
PSYCHOL 447, 455 (1998).

[[\[FN184\]](#Document1zzFN_B184)]{.underline}. See, e.g., BROWN, supra
note 167, at 133-68; FRITZ HEIDER, THE PSYCHOLOGY OF INTERPERSONAL
RELATIONS (1958); KUNDA, supra note 6, at 111-60 (examining how \"we
test particular hypotheses about the world\"); ROSS & NISBETT, supra
note 6, at 2; Harold H. Kelley, Attribution Theory in Social Psychology,
in 15 NEBRASKA SYMPOSIUM ON MOTIVATION 192 (David Levine ed., 1967).

[[\[FN185\]](#Document1zzFN_B185)]{.underline}. See infra Part III.C.2.a
(describing the motive to understand).

[[\[FN186\]](#Document1zzFN_B186)]{.underline}. Cf. Harold H. Kelley,
The Process of Causal Attribution, 28 AM. PSYCHOLOGIST 107 (1973);
Leslie Ann McArthur, The How and What of Why: Some Determinants and
Consequences of Causal Attribution, 22 J. PERSONALITY & SOC. PSYCHOL.
171 (1972).

[[\[FN187\]](#Document1zzFN_B187)]{.underline}. See Chen & Hanson,
Categorically Biased, supra note 136; Hanson, Reyes & Schlanger,
Attributional Positivism, supra note 43 (examining how people make
attributions of causation, responsibility, and blame, and describing the
relevance of attribution theory for law and legal theory).

[[\[FN188\]](#Document1zzFN_B188)]{.underline}. WILLIAM JAMES, SOME
PROBLEMS OF PHILOSOPHY: A BEGINNING OF AN INTRODUCTION TO PHILOSOPHY
(1911), reprinted in WILLIAM JAMES, WRITINGS 1902-1910, at 1008-09
(Bruce Kucklick ed., 1987).

[[\[FN189\]](#Document1zzFN_B189)]{.underline}. SIGMUND FREUD, ANALYSIS
TERMINABLE AND INTERMINABLE (1937), reprinted in 23 THE COMPLETE
PSYCHOLOGICAL WORKS OF SIGMUND FREUD 209, 228 (James Strachey ed.,
1986).

[[\[FN190\]](#Document1zzFN_B190)]{.underline}. NISBETT & ROSS, supra
note 129, at 6-7.

[[\[FN191\]](#Document1zzFN_B191)]{.underline}. Terminology here is a
little up for grabs and somewhat context dependent. What Kunda refers to
as concepts are sometimes referred to as \"mental representations,\"
\"schemas,\" \"theories,\" or \"categories,\" among other names. See
Chen & Hanson, Categorically Biased, supra note 136, at 1131 & n.111.

[[\[FN192\]](#Document1zzFN_B192)]{.underline}. KUNDA, supra note 6, at
15.

[[\[FN193\]](#Document1zzFN_B193)]{.underline}. Id. at 16.

[[\[FN194\]](#Document1zzFN_B194)]{.underline}. ROSS & NISBETT, supra
note 6, at 12.

[[\[FN195\]](#Document1zzFN_B195)]{.underline}. KUNDA, supra note 6, at
17.

[[\[FN196\]](#Document1zzFN_B196)]{.underline}. Id. at 52; see also id.
at 36-41.

[[\[FN197\]](#Document1zzFN_B197)]{.underline}. NISBETT & ROSS, supra
note 129, at 7.

[[\[FN198\]](#Document1zzFN_B198)]{.underline}. See Chen & Hanson,
Categorically Biased, supra note 136, at 1139- 77.

[[\[FN199\]](#Document1zzFN_B199)]{.underline}. KUNDA, supra note 6, at
20. The field of cognitive linguistics demonstrates a similar role for
metaphor. See generally GEORGE LAKOFF, MORAL POLITICS: HOW LIBERALS AND
CONSERVATIVES THINK (2d ed. 2002); GEORGE LAKOFF & MARK JOHNSON,
METAPHORS WE LIVE BY (1980).

[[\[FN200\]](#Document1zzFN_B200)]{.underline}. KUNDA, supra note 6, at
17.

[[\[FN201\]](#Document1zzFN_B201)]{.underline}. NISBETT & ROSS, supra
note 129, at 7.

[[\[FN202\]](#Document1zzFN_B202)]{.underline}. Id.

[[\[FN203\]](#Document1zzFN_B203)]{.underline}. See Chen & Hanson,
Categorically Biased, supra note 136, at 1155- 1218 (detailing the often
distorting effects of our categories and schemas).

[[\[FN204\]](#Document1zzFN_B204)]{.underline}. See NISBETT & ROSS,
supra note 129, at 7.

[[\[FN205\]](#Document1zzFN_B205)]{.underline}. GORDON W. ALLPORT, THE
NATURE OF PREJUDICE, at xiii (1954).

[[\[FN206\]](#Document1zzFN_B206)]{.underline}. It is to avoid the
pejorative associations of \"stereotyping\" with racism that some social
psychologists have adopted different names for the broader tendency to
categorize people in the same way as we categorize all things. See,
e.g., Nisbett & Ross, supra note 129, at 35 (explaining why they prefer
the \"concept of persona\" to the concept of stereotype even though the
two are \"not essentially different\"). In other words, social
psychologists are understandably concerned about the influence of
schemas on our understanding of schemas.

[[\[FN207\]](#Document1zzFN_B207)]{.underline}. KUNDA, supra note 6, at
315.

[[\[FN208\]](#Document1zzFN_B208)]{.underline}. NISBETT & ROSS, supra
note 129, at 35.

[[\[FN209\]](#Document1zzFN_B209)]{.underline}. Through our knowledge
structures, we automatically process new information into familiar
groupings, categories or schemas. Stereotypes are just one of the many
consequences of that interior situational process. See Chen & Hanson,
Categorically Biased, supra note 136, Part II. People form stereotypes
of social groups at a very young age and have difficulty suppressing
their automatic schemas when they encounter a member of the stereotyped
group, even when they do not desire to see that person in a prejudicial
way. See Timothy D. Wilson & Nancy Brekke, Mental Contamination and
Mental Correction: Unwanted Influences on Judgments and Evaluations, 116
PSYCHOL. BULL. 117. 126-27 (1994). Indeed, actively trying to suppress
stereotypic responses can increase the frequency of such responses. See
id. at 127. Those automatic prejudices and stereotypes, therefore,
constitute a form of \"mental contamination\" that affects how people
come to understand and view certain social groups. Id.

[[\[FN210\]](#Document1zzFN_B210)]{.underline}. Birt L. Duncan,
Differential Social Perception and Attribution of Intergroup Violence:
Testing the Lower Limits of Stereotyping of Blacks, 34 J. PERSONALITY &
SOC. PSYCHOL. 590, 593-94 (1976).

[[\[FN211\]](#Document1zzFN_B211)]{.underline}. Id. at 593.

[[\[FN212\]](#Document1zzFN_B212)]{.underline}. Id. at 595.

[[\[FN213\]](#Document1zzFN_B213)]{.underline}. Id.

[[\[FN214\]](#Document1zzFN_B214)]{.underline}. Id.

[[\[FN215\]](#Document1zzFN_B215)]{.underline}. See id. at 596; see also
infra Part III.C.2 (summarizing interior situational motivations and
their influence). See generally Hanson, Reyes & Schlanger, Attributional
Positivism, supra note 43 (summarizing numerous situational sources of
situationism); Benforado & Hanson, Naive Cynicism, supra note 78 (same).

[[\[FN216\]](#Document1zzFN_B216)]{.underline}. See KUNDA, supra note 6,
at 111-15, 123-30.

[[\[FN217\]](#Document1zzFN_B217)]{.underline}. See id.

[[\[FN218\]](#Document1zzFN_B218)]{.underline}. See id.

[[\[FN219\]](#Document1zzFN_B219)]{.underline}. See id. This is an
example of why it is not enough to reduce our calculus of mental
processes simply to the amount of energy or time that is allocated to an
inferential task. There is not a singular correspondence between the
amount of energy given to a question and the accuracy or reliability of
our answer.

[[\[FN220\]](#Document1zzFN_B220)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 5, at 202-31 (describing the problem of deep
capture).

[[\[FN221\]](#Document1zzFN_B221)]{.underline}. See FISKE & TAYLOR,
supra note 72, at 124; KUNDA, supra note 6, at 347.

[[\[FN222\]](#Document1zzFN_B222)]{.underline}. John M. Darley & Paget
H. Gross, A Hypothesis-Confirming Bias in Labeling Effects, 44 J.
PERSONALITY & SOC. PSYCHOL. 20, 25 (1983).

[[\[FN223\]](#Document1zzFN_B223)]{.underline}. Id. at 24-25.

[[\[FN224\]](#Document1zzFN_B224)]{.underline}. KUNDA, supra note 6, at
347.

[[\[FN225\]](#Document1zzFN_B225)]{.underline}. Id. at 19.

[[\[FN226\]](#Document1zzFN_B226)]{.underline}. See infra text
accompanying notes 253-65 (summarizing evidence of stereotype threat and
disidentification).

[[\[FN227\]](#Document1zzFN_B227)]{.underline}. FISKE & TAYLOR, supra
note 72, at 133.

[[\[FN228\]](#Document1zzFN_B228)]{.underline}. See ROSS & NISBETT,
supra note 6, at 39.

[[\[FN229\]](#Document1zzFN_B229)]{.underline}. Yes, they actually ran a
summer camp, and did so for several years, to conduct their
experiments\--these were the Milgram days of social psychology, before
human subjects committees regulated social psychological studies. See
MUZAFER SHERIF ET AL., INTERGROUP CONFLICT AND COOPERATION: THE ROBBERS
CAVE EXPERIMENT 27-68 (1961). Today the federal government has
promulgated extensive regulations governing the use of human subjects in
psychology experiments. See generally Protection of Human Subjects, 45
C.F.R. pt. 46 (2003).

[[\[FN230\]](#Document1zzFN_B230)]{.underline}. See BROWN, supra note
167, at 611 (revisiting Sherif\'s study).

[[\[FN231\]](#Document1zzFN_B231)]{.underline}. See SHERIF ET AL., supra
note 229, at 74-83.

[[\[FN232\]](#Document1zzFN_B232)]{.underline}. See id. at 96-113.

[[\[FN233\]](#Document1zzFN_B233)]{.underline}. Sherif\'s famous
experiments became a favorite example in an early, significant theory of
stereotyping known as realistic group conflict theory. See SUSAN T.
FISKE, SOCIAL BEINGS: A CORE MOTIVES APPROACH TO SOCIAL PSYCHOLOGY 436
(2004).

[[\[FN234\]](#Document1zzFN_B234)]{.underline}. See id. at 117-49.

[[\[FN235\]](#Document1zzFN_B235)]{.underline}. ROSS & NISBETT, supra
note 6, at 40.

[[\[FN236\]](#Document1zzFN_B236)]{.underline}. SHERIF ET AL., supra
note 229, at 151-58.

[[\[FN237\]](#Document1zzFN_B237)]{.underline}. Id. at 158.

[[\[FN238\]](#Document1zzFN_B238)]{.underline}. Id. at 170-71.

[[\[FN239\]](#Document1zzFN_B239)]{.underline}. ROSS & NISBETT, supra
note 6, at 39.

[[\[FN240\]](#Document1zzFN_B240)]{.underline}. BROWN, supra note 167,
at 611; see also SHERIF ET AL., supra note 229, at 182.

[[\[FN241\]](#Document1zzFN_B241)]{.underline}. BROWN, supra note 167,
at 613.

[[\[FN242\]](#Document1zzFN_B242)]{.underline}. For reviews of the more
recent work, see id. at 543-61; FISKE & TAYLOR, supra note 72, at
133-34.

[[\[FN243\]](#Document1zzFN_B243)]{.underline}. Thus, Susan Fiske has
proposed renaming realistic group conflict theory as perceived group
conflict theory. FISKE, supra note 233, at 437.

[[\[FN244\]](#Document1zzFN_B244)]{.underline}. See, e.g., ROSS &
NISBETT, supra note 6, at 40; see also BROWN, supra note 167, at 543-51
(reviewing some of the studies); FISKE, supra note 233, at 437 (same).
For an interesting recent study of how Jewish and Arab subjects reacted
to the acts of Jewish and Arab groups, see Raanan Lipshitz, Ziv Gilad &
Ramzi Suleiman, The One-of-Us Effect in Decision Evaluation, 108 ACTA
PSYCHOLIGICA 53 (2001).

[[\[FN245\]](#Document1zzFN_B245)]{.underline}. See infra Part
III.C.2.b.ii-iii (discussing further various group-serving motivations
and biases).

[[\[FN246\]](#Document1zzFN_B246)]{.underline}. See generally Fox
Butterfield, Killing of Girl, 10, and Increase in Homicides Challenge
Boston\'s Crime-Fighting Model, N.Y. TIMES, July 14, 2002, at A 14.

[[\[FN247\]](#Document1zzFN_B247)]{.underline}. See generally SAM KEEN,
FACES OF THE ENEMY: REFLECTIONS OF THE HOSTILE IMAGINATION (1986)
(collecting hundreds of political cartoons, posters, and artwork showing
how enemies have been depicted in twentieth century war propaganda).

[[\[FN248\]](#Document1zzFN_B248)]{.underline}. See MILTON FRIEDMAN,
BRIGHT PROMISES, DISMAL PERFORMANCE: AN ECONOMIST\'S PROTEST 89 (William
R. Allen ed., 1972).

[[\[FN249\]](#Document1zzFN_B249)]{.underline}. Richard A. Posner, The
Sociology of the Sociology of Law: A View from Economics, 2 EUR. J.L. &
ECON. 265, 274 (1995) (emphasis added).

[[\[FN250\]](#Document1zzFN_B250)]{.underline}. See, e.g., Alex M.
Johnson, Jr., An [[Appeal for the \"Liberal\" Use of Law and Economics:
The Liberals Fight Back, 67 TEX. L. REV. 659, 661
(1989)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1251&FindType=Y&ReferencePositionType=S&SerialNum=0101884791&ReferencePosition=661)]{.underline}
(reviewing ALAN S. BLINDER, HARD HEADS, SOFT HEARTS: TOUGH-MINDED
ECONOMICS FOR A JUST SOCIETY (1987)); Posner, supra note 2499, at 274.

[[\[FN251\]](#Document1zzFN_B251)]{.underline}. For a more complete
discussion of the influence of groupism in academia and across groups
that identify with certain ideas or worldviews, see generally Benforado
& Hanson, Naïve Cynicism, supra note 78.

[[\[FN252\]](#Document1zzFN_B252)]{.underline}. For the best history of
intelligence testing and its cultural, scientific, and political
context, see STEPHEN JAY GOULD, THE MISMEASURE OF MAN (1981).

[[\[FN253\]](#Document1zzFN_B253)]{.underline}. See, e.g., RICHARD J.
HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS
STRUCTURE IN AMERICAN LIFE (1994).

[[\[FN254\]](#Document1zzFN_B254)]{.underline}. Another criticism, of
course, is that the exams measure intelligence and aptitude along, at
best, an extremely narrow dimension\--as a free-throw competition would
measure aptitude for basketball. See Steele, supra note 100, at 54.

[[\[FN255\]](#Document1zzFN_B255)]{.underline}. Steele, supra note 100,
at 46.

[[\[FN256\]](#Document1zzFN_B256)]{.underline}. See id. at 47.

[[\[FN257\]](#Document1zzFN_B257)]{.underline}. See Adam Clymer, Bush
Rebukes Lott Over Remarks on Thurmond: G.O.P.\'s 40 Years of Juggling on
Race, N.Y. TIMES, Dec. 13, 2002, at A1: Adam Nagourney & Carl Hulse,
Bush Rebukes Lott Over Remarks on Thurmond: Sharp Shift in Strategy by
the White House, N.Y. TIMES, Dec. 13, 2002, at A1.

The strong negative reaction to Trent Lott\'s barely ambiguous and
deeply troubling endorsement of Senator Strom Thurmond\'s
(pro-segregationist) presidential platform is pretty unusual and, we
suspect, the consequence of numerous factors, including the fact that
this was by no means the first time that Lott made such comments. See A
Closer Look: A Primer of Senator Lott\'s Quotations, N.Y. TIMES, Dec.
13, 2002, at A22. More typically, in our view, calling someone a
\"racist\" or alleging that they support \"racist\" policies is viewed
as more damaging and inappropriate than doing or saying something that
is ambiguously racist. Though we will not defend this claim here, we
believe that a major force behind the \"politically incorrect\" movement
and the recent widespread use of what we call the \"race card-card\" is
an attempt by individuals and groups attempting to weaken the felt
threat of being stereotyped as racist. Cf. James Boyle, The [[PC
Harangue, 45 STAN. L. REV. 1457
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&SerialNum=0103012542)]{.underline}
(reviewing DEBATING P.C.: THE CONTROVERSY OVER POLITICAL CORRECTNESS ON
COLLEGE CAMPUSES (Paul Berman ed., 1992)). They have done so by. for
instance, reinforcing definitions of racism that ensure that only the
most egregious, intentional, and hate-inspired acts count and by making
the mere mention of \"race\" as a causal factor in social outcomes a
violation of appropriate norms of discourse (except, perhaps, when
\"reverse racism\" is said to be involved).

[[\[FN258\]](#Document1zzFN_B258)]{.underline}. That is, as
unintelligent. The more we care about it the greater the threat. See
Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test
Performance of Academically Successful African Americans, in BLACK-WHITE
TEST SCORE GAP 401 (Christopher Jencks & Meredith Phillips eds., 1998);
cf. KUNDA, supra note 6, at 470-71 (explaining how individuals with
greater numbers of identifying characteristics\--that is, great
\"self-complexity\"\--are less threatened by failures in one area of the
self, because the failure tends to be confined to that one area, while
the other areas of the self, like eggs in other baskets, remain intact).

[[\[FN259\]](#Document1zzFN_B259)]{.underline}. Steele & Aronson, supra
note 258, at 402.

[[\[FN260\]](#Document1zzFN_B260)]{.underline}. More specifically, the
black students performance improved significantly (reflecting stereotype
threat) and the white students\' performance actually worsened
(reflecting the absence of their previously enjoyed stereotype lift),
such that both groups performed at the same level. See id. at 410
fig.11-2.

[[\[FN261\]](#Document1zzFN_B261)]{.underline}. See, e.g., id. at 415 &
fig.11-3 (reporting that black subjects about to take the test in the
\"ability frame\" condition were more likely to fill out blanks in word
fragments to create race-related words and to eschew preferences for
sports and music associated with African-Americans than were black
subjects in the \"unrelated to ability\" frame condition).

[[\[FN262\]](#Document1zzFN_B262)]{.underline}. Steele, supra note 100,
at 51.

[[\[FN263\]](#Document1zzFN_B263)]{.underline}. See J. Blascovich et
al., Racism and Racial Categorization, 72 J. PERSONALITY & SOC. PSYCHOL.
1364 (2003); see also Jim Blascovich & Wendy Berry Mendes, Challenge and
Threat Appraisals: The Role of Affective Cues, in FEELING AND THINKING:
THE ROLE OF AFFECT IN SOCIAL COGNITION 59, 67 (Joseph P. Forgas ed.,
2000) (summarizing studies on physiological responses to threats); Joe
Tomaka et al., Cognitive and Physiological Antecedents of Threat and
Challenge Appraisal, 73 PERSONALITY & SOC. PSYCHOL. 63 (1997).

[[\[FN264\]](#Document1zzFN_B264)]{.underline}. See David M. Marx et
al., Allport\'s Legacy and the Situational Press of Stereotypes, 55 J.
SOC. ISSUES 491, 496 (1999) (citing Joshua Aronson et al., When White
Men Can\'t Do Math: Necessary and Sufficient Factors in Stereotype
Threat, 35 J. EXPERIMENTAL SOC. PSYCH. 29 (1999)).

[[\[FN265\]](#Document1zzFN_B265)]{.underline}. See generally FISKE,
supra note 233, at 421-22 (briefly reviewing studies on
\"self-fulfilling prophecies,\" \"expectancy confirmation,\" and
\"behavioral confirmation\").

[[\[FN266\]](#Document1zzFN_B266)]{.underline}. See NISBETT & ROSS,
supra note 129, at 5. For a much more extensive discussion of the
relevance of attributional process to law and legal theory, see Hanson,
Reyes, & Schlanger, Attributional Positivism, supra note 43.

[[\[FN267\]](#Document1zzFN_B267)]{.underline}. Social psychologists
sometimes indicate that knowledge structures and schematic processes are
inconsistent with attributional processes. But that point is typically
directed at the statistically based normative version of attribution
theory proposed by its early proponents. See, e.g., Edward E. Jones &
Keith E. Davis, From Acts to Dispositions: The Attribution Process in
Person Perception, in 2 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 219
(Leonard Berkowitz ed., 1965); Kelley, supra note 186. It does not apply
to much of the more recent attributional work; indeed, it only stretches
the concept of \"knowledge structures\" a little to claim, as we do,
that common attributional processes reflect a widely held knowledge
structure. The discussion below will help make that clear.

[[\[FN268\]](#Document1zzFN_B268)]{.underline}. See FISKE & TAYLOR,
supra note 72, at 57; Eliot R. Smith, Social Cognition Contributions to
Attribution Theory and Research, in SOCIAL COGNITION: IMPACT ON SOCIAL
PSYCHOLOGY 77, 77-80 (Patricia G. Devine et al. eds., 1994).

[[\[FN269\]](#Document1zzFN_B269)]{.underline}. See generally FISKE &
TAYLOR, supra note 72, at 23-95 (summarizing the origins and evolutions
of attribution theory); Hanson, Reyes & Schlanger, Attributional
Positivism, supra note 43 (same).

[[\[FN270\]](#Document1zzFN_B270)]{.underline}. See PLOUS, supra note
124, at 174.

[[\[FN271\]](#Document1zzFN_B271)]{.underline}. See FISKE & TAYLOR,
supra note 72, at 23-95.

[[\[FN272\]](#Document1zzFN_B272)]{.underline}. See sources cited in
supra note 269.

[[\[FN273\]](#Document1zzFN_B273)]{.underline}. See supra note 188.

[[\[FN274\]](#Document1zzFN_B274)]{.underline}. See infra notes 536-39.

[[\[FN275\]](#Document1zzFN_B275)]{.underline}. See Hanson, Reyes &
Schlanger, Attributional Positivism, supra note 43.

[[\[FN276\]](#Document1zzFN_B276)]{.underline}. See id.; see also FISKE
& TAYLOR, supra note 72, at 60 (noting the role of knowledge structures
in people\'s causal inferences).

[[\[FN277\]](#Document1zzFN_B277)]{.underline}. See supra text
accompanying notes 81-106. For useful summaries of those and other
attributional biases, see BROWN, supra note 167, at 169-94; Hanson,
Reyes & Schlanger, Attributional Positivism, supra note 43.

[[\[FN278\]](#Document1zzFN_B278)]{.underline}. See FISKE & TAYLOR,
supra note 72, at 58-59.

[[\[FN279\]](#Document1zzFN_B279)]{.underline}. See id. at 57-66
(reviewing some examples).

[[\[FN280\]](#Document1zzFN_B280)]{.underline}. See, e.g., Bernard
Weiner, Attribution, Emotion, and Action, in HANDBOOK OF MOTIVATION AND
COGNITION 281 (Richard M. Sorrentino & E. Tory Higgis eds., 1986).

[[\[FN281\]](#Document1zzFN_B281)]{.underline}. See Hanson, Reyes &
Schlanger, Attributional Positivism, supra note 43; see also FISKE &
TAYLOR, supra note 72, at 52-53 (summarizing Weiner\'s work).

[[\[FN282\]](#Document1zzFN_B282)]{.underline}. See FISKE & TAYLOR,
supra note 72, at 53-54.

[[\[FN283\]](#Document1zzFN_B283)]{.underline}. See KELLY SHAVER, THE
ATTRIBUTION OF BLAME: CAUSALITY, RESPONSIBILITY, AND BLAMEWORTHINESS
passim (1985).

[[\[FN284\]](#Document1zzFN_B284)]{.underline}. Id.

[[\[FN285\]](#Document1zzFN_B285)]{.underline}. Id. at 4.

[[\[FN286\]](#Document1zzFN_B286)]{.underline}. See id.

[[\[FN287\]](#Document1zzFN_B287)]{.underline}. Weiner, supra note 280,
at 336-38; see also SABINI, supra note 81, at 174 (discussing \"man the
lawyer\").

[[\[FN288\]](#Document1zzFN_B288)]{.underline}. See supra text
accompanying notes 265-74.

[[\[FN289\]](#Document1zzFN_B289)]{.underline}. See Hanson, Reyes &
Schlanger, Attributional Positivism, supra note 43. For a superbly
executed analysis of the attributional tendencies of jurors in tort
cases, see Neal Feigenson\'s important book, LEGAL BLAME: HOW JURORS
THINK AND TALK ABOUT ACCIDENTS (2000).

[[\[FN290\]](#Document1zzFN_B290)]{.underline}. See G. WEARY ET AL.,
ATTRIBUTION 6 (1989).

[[\[FN291\]](#Document1zzFN_B291)]{.underline}. See generally Peter A.
White, Causal Processing: Origins and Development, 104 PSYCHOL. BULL. 36
(1988) (reviewing research on the origins of causal processing and
describing the function as \"probably automatic\").

[[\[FN292\]](#Document1zzFN_B292)]{.underline}. There may be another
reason why \"seeing\" our attributional process seems fairly easy. We
tend to accept theories about ourselves that resonate with our
institutions and values\--as attribution theory tends to (not merely as
a matter of coincidence). Many aspects of our interior and exterior
situations do not share that advantage, and we are, in some sense,
motivated to remain blind to them. See, e.g., supra text accompanying
notes 227-35 (implicit attitudes) & 258-60 (system justification).

[[\[FN293\]](#Document1zzFN_B293)]{.underline}. BROWN, supra note 167,
at 136; see also id. (\"Explicit knowledge exists when someone can
formulate a rule as well as act in accordance with it. Explicit
knowledge brings new powers\--the power to think and talk about rules.
In the domain of language it is the difference between an untutored
fluent native speaker (tacit knowledge only) and a linguist, a student
of the structure of language; in attribution it is the difference
between any layman and social psychologist who studies every day
attribution.\").

[[\[FN294\]](#Document1zzFN_B294)]{.underline}. Cf. BERNARD WEINER, AN
ATTRIBUTIONAL THEORY OF MOTIVATION AND EMOTION, at xi (1986) (\"I now
identify myself simply as someone who arranges, classifies, and
systematizes common sense. In doing so, I attempt to develop as broad
and as parsimonious a conceptual system as possible to explain everyday
social conduct.\").

[[\[FN295\]](#Document1zzFN_B295)]{.underline}. See infra Part VI.B.

[[\[FN296\]](#Document1zzFN_B296)]{.underline}. BROWN, supra note 167,
at 136; see also WEARY ET AL., supra note 290, at 6.

[[\[FN297\]](#Document1zzFN_B297)]{.underline}. See FISKE, supra note
233, at 117 (summarizing evidence regarding \"defensive attribution,\"
which is the tendency to increasingly \"perceive the individual actor to
be responsible\" as the seriousness of a harm or offense increases).

[[\[FN298\]](#Document1zzFN_B298)]{.underline}. For a brief discussion
of how the tobacco industry manipulated attributions, see Hanson &
Kysar, Taking Behavioralism Seriously II, supra note 132, at 1524-27,
and Jon D. Hanson and Douglas A. Kysar, The Joint Failure of Economic
Theory and Legal Regulation \[hereinafter Hanson & Kysar, The Joint
Failure\], in SMOKING: RISK, PERCEPTION, AND POLICY 229 (Paul Slovic
ed., 2001). For a discussion of how our \"policy scripts\" tend to be
influenced by outside sources, see generally Chen & Hanson, The Illusion
of Law, supra note 32, and Hanson & Yosifon, The Situation, supra note
5, at 230-84.

[[\[FN299\]](#Document1zzFN_B299)]{.underline}. See Dale T. Miller &
Cathy McFarland, Counterfactual Thinking and Victim Compensation: A Test
of Norm Theory, 12 PERSONALITY & SOC. PSYCHOL. BULL. 513, 516-17 (1986)
(finding that subjects recommended greater compensation for the family
of the victim who died one quarter of a mile from town than for the
survivors of the victim who died seventy-five miles away).

[[\[FN300\]](#Document1zzFN_B300)]{.underline}. See generally NEAL J.
ROESE & JAMES N. OLSON, WHAT MIGHT HAVE BEEN: THE SOCIAL PSYCHOLOGY OF
COUNTERFACTUAL THINKING (1995) (bringing together recent research and
theory on counterfactual thinking).

[[\[FN301\]](#Document1zzFN_B301)]{.underline}. Miller & McFarland,
supra note 299, at 514.

[[\[FN302\]](#Document1zzFN_B302)]{.underline}. Id.

[[\[FN303\]](#Document1zzFN_B303)]{.underline}. See id.

[[\[FN304\]](#Document1zzFN_B304)]{.underline}. See KUNDA, supra note 6,
at 149. For a sample of both laboratory and real-world evidence of that
tendency, see Robert K. Bothwell & Kermit W. Duhon, Counterfactual
Thinking and Plaintiff Compensation, 134 J. SOC. PSYCHOL. 705, 705
(1994) (citing Miller & McFarland, supra note 299, but finding that the
sense of tragedy decreased when blame was attributed to the victim);
Patrizia Catellani & Patrizia Milesi, Counterfactuals and Roles: Mock
Victims\' and Perpetrators\' Accounts of Judicial Cases, 31 EUR. J. SOC.
PSYCHOL. 247 (2001); Barbara A. Spellman & Alexandra Kincannon, The
[[Relation Between Counterfactual (\"But For\") And Causal Reasoning:
Experimental Findings and Implications for Jurors\' Decisions, 64 L. &
CONTEMP. PROBS. 241
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1464&FindType=Y&SerialNum=0284397076)]{.underline};
Richard L. Wiener et. al., Counterfactual Thinking in Mock Juror
Assessments of Negligence: A Preliminary Investigation, 12 BEHAV. SCI. &
L. 89 (1994).

[[\[FN305\]](#Document1zzFN_B305)]{.underline}. Individual behavior is
usually easier to see. It is more readily available to our minds than
are the myriad of situational influences that give rise to the behavior,
and so we focus on individuals in explaining behavior. See supra text
accompanying notes 72-102 (discussing the fundamental attribution
error).

[[\[FN306\]](#Document1zzFN_B306)]{.underline}. When we encounter an
event or an experience we do so through a particular conceptual
framework (schema or script), comprised of event and norm expectations.
When we encounter an event or an experience, that framework helps
provide the meaning. When the new circumstance is seen, it is set
against the norm expectation framework. Striving to make sense of a new
circumstance, we \"see\" through the norms that we bring to the
circumstance, and are relatively blind to those that we are not
expecting. We give a meaning to the new circumstance based on our norms.
The closer an experience approximates our schema-based expectations, the
more normal it seems to us and, hence, the more difficult it is to
imagine that the experience could have come out any other way.
Counterfactual thinking is driven by the availability of imagined
alternatives. The more abnormal an event is, the easier it is for us to
cognitively undo what happened. See KUNDA, supra note 6, at 145.
Exceptional situations are more mutable in our imagination than our
normal ones, because of the greater availability of the normal
situation. See id. at 150. Counterfactuals, however, not only guide our
approach to our new happening, they linger and take new forms in our
mental lives after the event as well. See infra text accompanying notes
308-19.

[[\[FN307\]](#Document1zzFN_B307)]{.underline}. See KUNDA, supra note 6,
at 151 (\"A disturbing implication of these findings is that the more
one identifies and emphasizes \[sic\] with a victim, the more likely one
is to contemplate how the victim might have behaved otherwise and
therefore to blame the victim.\"); see also Nyla R. Branscombe et al.,
Rape and Accident Counterfactuals: Who Might Have Done Otherwise and
Would It Have Changed the Outcome?, 26 J. APPLIED SOC. PSYCHOL. 1042
(1996); Christopher T. Burris & Nyla R. Branscombe, Racism,
Counterfactual Thinking, and Judgment Severity, 23 J. APPLIED SOC.
PSYCHOL. 980 (1993); Christopher G. Davis et al., Self-Blame Following a
Traumatic Event: The Role of Perceived Avoidability, 22 PERSONALITY &
SOC. PSYCHOL. BULL. 557 (1996) (attributing respondents\' self-blame for
spinal cord injury to perceptions of avoidability); Michael W. Morris
et. al., Choosing Remedies After Accidents: Counterfactual Thoughts and
the Focus on Fixing \"Human Error\", 6 PSYCHONOMIC BULL. & REV. 579
(1999).

[[\[FN308\]](#Document1zzFN_B308)]{.underline}. KUNDA, supra note 6, at
145; see also, e.g., Victoria Husted Medvec, Scott F. Madey & Thomas
Gilovich, When Less Is More: Counterfactual Thinking and Satisfaction
Among Olympic Athletes, 69 J. PERSONALITY & SOC. PSYCHOL. 603 (1995).

[[\[FN309\]](#Document1zzFN_B309)]{.underline}. KUNDA, supra note 6, at
152 (discussing D. Kahneman & D.T. Miller, Norm Theory, Comparing
Reality to Its Alternatives, 93 PSYCHOL. REV. 136 (1986)); see also
Robert A. Baron, Counterfactual Thinking and Venture Formation: The
Potential Effects of Thinking about \"What Might Have Been,\" 15 J. BUS.
VENTURING 79 (1999) (summarizing some of the causes and effects of
omission bias).

[[\[FN310\]](#Document1zzFN_B310)]{.underline}. KUNDA, supra note 6, at
154; see also JANET LANDMAN, REGRET: THE PERSISTENCE OF THE POSSIBLE
(1993); Abigail J. Stewart & Elizabeth A. Vandewater, \"If I Had It to
Do Over Again \...\": Midlife Review, Midcourse Corrections, and
Women\'s Well-Being in Midlife, 76 J. PERSONALITY & SOC. PSYCHOL. 270
(1999).

[[\[FN311\]](#Document1zzFN_B311)]{.underline}. See ROBERT A. BARON &
DON BYRNE, SOCIAL PSYCHOLOGY 95 (10th ed. 2004).

[[\[FN312\]](#Document1zzFN_B312)]{.underline}. See id.

[[\[FN313\]](#Document1zzFN_B313)]{.underline}. See Thomas Gilovich &
Victoria Husted Medvec, The Experience of Regret: What, When, and Why,
102 PSYCHOL. REV. 379 (1994); Thomas Gilovich & Victoria Husted Medvec,
The Temporal Pattern to the Experience of Regret, 67 J. PERSONALITY &
SOC. PSYCHOL. 357 (1994).

[[\[FN314\]](#Document1zzFN_B314)]{.underline}. KUNDA, supra note 6, at
155. This phenomenon is undoubtedly related to our tendency to generate
counterfactuals with respect to other behavioral choices that other
people could have made, rather than envisioning alternative situations
that they might have faced when choosing.

[[\[FN315\]](#Document1zzFN_B315)]{.underline}. See, e.g., John J. Hetts
et al., The Influence of Anticipated Counterfactual Regret on Behavior,
17 PSYCHOL. & MARKETING 345 (2000); Janet Landman & Ross Petty, \"It
Could Have Been You\": How States Exploit Counterfactual Thought to
Market Lotteries, 17 PSYCHOL. & MARKETING 299 (2000); Ann L. McGill,
Counterfactual Reasoning in Causal Judgments: Implications for
Marketing, 17 PSYCHOL. & MARKETING 281 (2000); Michael Tsiros & Vikas
Mittal, Regret: A Model of Its Antecedents and Consequences in Consumer
Decision Making, 26 J. CONSUMER RES. 401 (2000).

[[\[FN316\]](#Document1zzFN_B316)]{.underline}. Neal J. Roese,
Counterfactual Thinking and Marketing: Introduction to the Special
Issue, 17 PSYCHOL. & MARKETING 277, 278-79 (2000) (citations omitted).

[[\[FN317\]](#Document1zzFN_B317)]{.underline}. See, e.g., THE CENTER
FOR COUNTERFACTUAL STUDIES, at http://
www.sfu.ca/counterfactual/cfbib.htm (last visited Sept. 30, 2004)
(collecting papers on this topic); Dale T. Miller & W. Turnbull, The
Counterfactual Fallacy: Confusing What Might Have Been With What Ought
To Have Been, in LIFE CRISES AND EXPERIENCES OF LOSS IN ADULTHOOD (L.
Montada et al. eds., 1992).

[[\[FN318\]](#Document1zzFN_B318)]{.underline}. The commentary ranges
from a solidly felt sense of \"how immeasurably poorer our mental lives
would be if we didn\'t have this creative capacity for flipping out of
the midst of reaility into soft \'what ifs!,\" DOUGLAS HOFSTADTER,
GODEL, ESCHER, BACH: AN ETERNAL GOLDEN BRAID 643 (1979), to a more sober
rationalization of this mode of thinking in our lives (anticipatory
regret, for example, may lead us to closely scrutinize important choices
rather than make decisions willy-nilly). There also appears to be
evidence that some mental diseases are associated with an inability to
engage in counterfactual thought.

[[\[FN319\]](#Document1zzFN_B319)]{.underline}. KUNDA, supra note 6, at
157.

[[\[FN320\]](#Document1zzFN_B320)]{.underline}. See infra Part III.C.2
(discussing the assumption in economics that rational actors would
ignore sunk costs).

[[\[FN321\]](#Document1zzFN_B321)]{.underline}. BERTRAND RUSSELL,
PROPOSED ROADS TO FREEDOM: SOCIALISM, ANARCHISM AND SYNDICALISM 147
(1919).

[[\[FN322\]](#Document1zzFN_B322)]{.underline}. Dean Radin is quoted in
Chip Brown, They Laughed at Galileo Too, N.Y. TIMES, Aug. 11, 1996, § 6
(Magazine), at 16.

[[\[FN323\]](#Document1zzFN_B323)]{.underline}. See supra text
accompanying notes 189-203.

[[\[FN324\]](#Document1zzFN_B324)]{.underline}. And that tendency is,
again, a symptom of the interior fundamental attribution error: we
\"consistently fail to make sufficient allowance for the role that
construal plays in determining behavior, a failure with profound
personal and social consequences.\" ROSS & NISBETT, supra note 6, at 12.
For instance, we do not \"recognize the degree to which \[our\]
understanding of stimuli is a result of an active, constructive process,
rather than a passive reception and registering of some external
reality.\" Id. Similarly, we tend to underestimate the variability of
situational construal across time and across people, and thus tend to be
overconfident in our behavioral predictions regarding ourselves and
others. See id.

When this Article was in press, we came across some fascinating work by
Professor Dan Simon and his colleagues on what they call
\"coherence-based reasoning.\" See, e.g., Dan Simon, The [[Third View of
the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI.
L. REV. 511, 520-49
(2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0299905204&ReferencePosition=520)]{.underline}
(summarizing the automatic cognitive mechanisms that help provide
decisionmakers a sense of confidence in their reasoning); Dan Simon,
Chadwick J. Snow, & Stephen J. Read, The Redux of Cognitive Consistency
Theories: Evidence Judgments by Constraint Satisfaction, 86 J.
PERSONALITY & SOC. PSYCHOL. 814 (2004) (reviewing experiments indicating
the bidirectionality of reasoning between evidence and conclusion).

[[\[FN325\]](#Document1zzFN_B325)]{.underline}. Cf. KUNDA, supra note 6,
at 159 (\"Because information about the social world is typically mixed
and inconsistent, we may often be biased toward confirming any
hypothesis we entertain about our own or other people\'s attributes.\").

[[\[FN326\]](#Document1zzFN_B326)]{.underline}. See Peter H. Ditto &
David F. Lopez, Motivated Skepticism: Use of Differentiated Decision
Criteria for Preferred and Non-Preferred Conclusions, 63 J. PERSONALITY
& SOC. PSYCHOL. 568 (1992); Dieter Frey, Recent Research on Selective
Exposure to Information, in 19 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOL.
41 (Leonard Berkowitz ed., 1986).

[[\[FN327\]](#Document1zzFN_B327)]{.underline}. For studies revealing
the important role of ambiguity, see, for example, Darley & Gross, supra
note 222; Jason Dana, Roberto A. Weber & Jason Xi Kuang, Exploiting
Moral Wiggle Room: Behavior Inconsistent with a Preference for Fair
Outcomes (Working Paper, June 24, 2003), at http://
emlab.berkeley.edu/users/webfac/dellavigna/e218_f03/Fair.pdf;
Christopher K. Hsee, Elastic Justification: How Tempting but
Task-Irrelevant Factors Influence Decisions, 62 ORG. BEHAV. & HUM.
DECISION PROCESSES 330 (1995); Christopher K. Hsee, Elastic
Justification: How Unjustifiable Factors Influence Judgments, 66 ORG.
BEHAV. & HUM. DECISION PROCESSES 122 (1996); William M. Klein & Ziva
Kunda, Motivated Person Perception: Constructing Justifications for
Desired Beliefs, 28 J. EXPERIMENTAL SOC. PSYCHOL. 145 (1992); Henry
Montgomery, From Cognition to Action: The Search for Dominance in
Decision Making, in PROCESS AND STRUCTURE IN HUMAN DECISION MAKING 23
(Henry Montgomery & Ola Svenson eds., 1989); Melvin L. Synder et al.,
Avoidance of the Handicapped: An Attributional Ambiguity Analsyis, 37 J.
PERSONALITY & SOC. PSYCHOL. 2297 (1979); Philip E. Tetlock & Jae II Kim,
Accountability and Judgment Processes in Personality Prediction Task, 52
J. PERSONALITY & SOC. PSYCHOL. 700 (1987).

[[\[FN328\]](#Document1zzFN_B328)]{.underline}. KUNDA, supra note 6, at
230.

[[\[FN329\]](#Document1zzFN_B329)]{.underline}. For more thorough
discussions of the biases and of the evidence, see KUNDA, supra note 6,
at 111-60 & 223-32; NISBETT & ROSS, supra note 129, at 67-89; Chen &
Hanson, Categorically Biased, supra note 136, at 1195-1211 (describing
various facets of the \"schema-protection\" motive); Hanson & Kysar,
Taking Behavioralism Seriously I, supra note 126, at 646-54; Raymond S.
Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2
REV. GEN. PSYCHOL. 175 (1998). For a more thorough discussion of the
role of motivation, see infra Part III.C.2.

[[\[FN330\]](#Document1zzFN_B330)]{.underline}. NISBETT & ROSS, supra
note 127, at 169.

[[\[FN331\]](#Document1zzFN_B331)]{.underline}. See, e.g., Mark Snyder &
William B. Swann, Jr., Hypothesis-Testing Process in Interaction, 36 J.
PERSONALITY & SOC. PSYCHOL. 1202 (1978) (showing how people investigate
a hypothesis in a way that tends to confirm it); see also KUNDA, supra
note 6, at 111-60 (discussing how humans test hypotheses); SABINI, supra
note 81, at 169-70 (contending that the choice of hypothesis may be
subject to irrational or nonsensical forces).

[[\[FN332\]](#Document1zzFN_B332)]{.underline}. NISBETT & ROSS, supra
note 129, at 168 (citing sources).

[[\[FN333\]](#Document1zzFN_B333)]{.underline}. See infra text
accompanying notes 339-380.

[[\[FN334\]](#Document1zzFN_B334)]{.underline}. See. e.g., Chen &
Hanson, Categorically Biased, supra note 136, at 1239-52 (laying out
some basic predictions about this effect on legal theory); Chen &
Hanson, The Illusion of Law, supra note 32 (providing evidence
confirming those predictions in the basic schemas of legal theory).

[[\[FN335\]](#Document1zzFN_B335)]{.underline}. Cf. Lee Ross & Andrew
Ward, Naive Realism: Implications for Social Conflict and
Misunderstanding, in VALUES AND KNOWLEDGE 103 (Edward S. Reed et al.
eds., 1997) (arguing that individuals ascribe differences of opinion in
others to reliance upon conflicting data, incompetence, or bias).

[[\[FN336\]](#Document1zzFN_B336)]{.underline}. See Emily Pronin, Thomas
Gilovich, & Lee Ross, Objectivity in the Eye of the Beholder: Divergent
Perceptions of Bias in Self Versus Others, 111 PSYCHOL. REV. 781 (2004).

[[\[FN337\]](#Document1zzFN_B337)]{.underline}. Cf. Emily Pronin et al.,
The Bias Blind Spot: Perceptions of Bias in Self Versus Others, 28
PERSONALITY & SOC. PSYCHOL. BULL. 369, 374-76 (2002) (reporting that
survey respondents had difficulty recognizing their own susceptibility
to biases and claimed to possess more positive characteristics\-- such
as objectivity\--than the average person).

[[\[FN338\]](#Document1zzFN_B338)]{.underline}. See generally Pronin,
Gilovich & Ross, supra note 336 (describing our unseen mechanisms for
responding to evidence or arguments that conflict with our own schemas).

[[\[FN339\]](#Document1zzFN_B339)]{.underline}. In a related project,
one of us, with Ronald Chen, is exploring some fundamental ways in which
knowledge structures are distorting law and legal theory. See Chen &
Hanson, Categorically Biased, supra note 136; Ronald Chen & Jon Hanson,
Distribution Versus Efficiency: Missing the Taste of the Pie
(unpublished manuscript, on file with the authors) \[hereinafter Chen &
Hanson, Taste of the Pie\].

[[\[FN340\]](#Document1zzFN_B340)]{.underline}. Posner, supra note 249,
at 278.

[[\[FN341\]](#Document1zzFN_B341)]{.underline}. GEORGE J. STIGLER,
MEMOIRS OF AN UNREGULATED ECONOMIST 8 (1988).

[[\[FN342\]](#Document1zzFN_B342)]{.underline}. See C. Neil Macrae, Alan
B. Milne & Galen V. Bodenhausen, Stereotypes as Energy-Saving Devices: A
Peek Inside the Cognitive Toolbox, 66 J. PERSONALITY & SOC. PSYCHOL. 37
(1994).

[[\[FN343\]](#Document1zzFN_B343)]{.underline}. THOMAS S. KUHN, THE
STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970).

[[\[FN344\]](#Document1zzFN_B344)]{.underline}. For a related and more
complete examination of the influence of knowledge structures on law and
economic analysis of policy, see Chen & Hanson, Categorically Biased,
supra note 136; Chen & Hanson, The Illusion of Law, supra note 32; Chen
& Hanson, Taste of the Pie, supra note 339.

[[\[FN345\]](#Document1zzFN_B345)]{.underline}. Frederick, Loewenstein &
O\'Donoghue, supra note 153, at 351.

[[\[FN346\]](#Document1zzFN_B346)]{.underline}. JOHN RAE, THE
SOCIOLOGICAL THEORY OF CAPITAL 120 (1834), quoted in Frederick,
Loewenstein & O\'Donoghue, supra note 153, at 353.

[[\[FN347\]](#Document1zzFN_B347)]{.underline}. NASSAU W. SENIOR,
OUTLINE OF THE SCIENCE OF POLITICAL ECONOMY 60 (1836), quoted in
Frederick, Loewenstein & O\'Donaghue, supra note 153, at 353.

[[\[FN348\]](#Document1zzFN_B348)]{.underline}. See supra text
accompanying notes 166-70.

[[\[FN349\]](#Document1zzFN_B349)]{.underline}. EUGEN VON BOHM-BAWERK,
CAPITAL AND INTEREST 268-69 (1889), quoted in Frederick, Loewenstein &
O\'Donoghue, supra note 153, at 354. Similarly, in 1920 Arthur Pigou,
the economist to whom Ronald Coase was responding in his famous The
Problem of Social Cost, explained that variation of time preferences
resulted from the fact that \"our telescopic faculty is defective, and
we, therefore, see future pleasures, as it were, on a diminished
scale.\" ARTHUR C. PIGOU, THE ECONOMICS OF WELFARE (1920), quoted in
Frederick, Loewenstein & O\'Donoghue, supra note 153, at 354 n.2.

[[\[FN350\]](#Document1zzFN_B350)]{.underline}. Cf. Frederick,
Loewenstein & O\'Donoghue, supra note 153, at 355 (\"In the early part
of the twentieth century, \'time preference\' was viewed as an
amalgamation of various intertemporal motives.\").

[[\[FN351\]](#Document1zzFN_B351)]{.underline}. Paul A. Samuelson, A
Note on Measurement of Utility, 4 REV. ECON. STUD. 155 (1937). Samuelson
did most of his pathbreaking work in very short articles, typically
styled \"notes.\" It is telling, we believe, that that the efficiency of
his ideas is evident in both their substance and form, qualities that
our readers are likely craving about now.

[[\[FN352\]](#Document1zzFN_B352)]{.underline}. Frederick, Loewenstein &
O\'Donoghue, supra note 153, at 355.

[[\[FN353\]](#Document1zzFN_B353)]{.underline}. Id. at 352.

[[\[FN354\]](#Document1zzFN_B354)]{.underline}. Id. at 355-56 (citations
omitted).

[[\[FN355\]](#Document1zzFN_B355)]{.underline}. See id. at 365-73
(discussing alternative models that remain true to the discounted
utility model).

[[\[FN356\]](#Document1zzFN_B356)]{.underline}. See infra Part V.

[[\[FN357\]](#Document1zzFN_B357)]{.underline}. See Frederick,
Loewenstein & O\'Donoghue, supra note 153, at 373.

[[\[FN358\]](#Document1zzFN_B358)]{.underline}. See supra text
accompanying notes 201-20.

[[\[FN359\]](#Document1zzFN_B359)]{.underline}. There are, of course,
more extreme strategies\--such as abandoning the original model in its
entirety. Such alternatives are as rare in practice as they are
revolutionary in theory.

[[\[FN360\]](#Document1zzFN_B360)]{.underline}. See supra text
accompanying notes 216-17.

[[\[FN361\]](#Document1zzFN_B361)]{.underline}. RICHARD A. POSNER,
FRONTIERS OF LEGAL THEORY 259 (2001).

[[\[FN362\]](#Document1zzFN_B362)]{.underline}. See supra note 322 and
accompanying text.

[[\[FN363\]](#Document1zzFN_B363)]{.underline}. Posner, like all of us,
makes a habit of this. For example, he interprets evidence of
downward-sloping demand curves as a valid basis for preferring the
rational-actor model over alternative models (such as the situational
character), though it isn\'t. See Hanson & Yosifon. The Situation, supra
note 5, at 161-63; infra notes 724-30 and accompanying text.

[[\[FN364\]](#Document1zzFN_B364)]{.underline}. This is an unsurprising
symptom of what we describe below, as counterfeit realism, one of
several inadequate responses by legal economists to the challenge of
realism. See infra Part V.C (describing and addressing economists\'
responses).

[[\[FN365\]](#Document1zzFN_B365)]{.underline}. See Joseph E. Stiglitz,
Information and the Change in the Paradigm in Economics, 92 AM. ECON.
REV. 460, 461-63 (2002) (describing in his Nobel lecture the reluctance
and narrowness with which economists generally took information costs
into account\--for the same sorts of reasons that we describe in this
Article).

[[\[FN366\]](#Document1zzFN_B366)]{.underline}. See, e.g., George J.
Stigler, Economists and Public Policy, REGULATION, May-June 1982, at 13,
16 (\"\[P\]eople act efficiently in their own interests\.... \[They\]
learn all the presently knowable things it pays them to know\--always on
average\--and act with due regard for this knowledge.\").

[[\[FN367\]](#Document1zzFN_B367)]{.underline}. See WILLIAM M. LANDES &
RICHARD A. POSNER, ECONOMIC STRUCTURE OF TORT LAW 273-311 (1987).

[[\[FN368\]](#Document1zzFN_B368)]{.underline}. Downward-sloping demand
curves represent the basic economic axiom that \"when the price of x
goes up, the amount of x that the consumer will purchase goes down, and
vice versa.\" ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 23 (3d ed.
2000).

[[\[FN369\]](#Document1zzFN_B369)]{.underline}. POSNER, supra note 361,
at 261.

[[\[FN370\]](#Document1zzFN_B370)]{.underline}. They could do so simply
by rejecting today\'s preferences that, without obvious reasons,
contradict the preferences that would exist were the same choice
postponed until tomorrow. Thus, in our example above, see supra text
accompanying notes 153-56, a person could simply re-pose any choice in a
hypothetical future time frame, and make more reliable judgments.

[[\[FN371\]](#Document1zzFN_B371)]{.underline}. See infra Part V.C.1.

[[\[FN372\]](#Document1zzFN_B372)]{.underline}. See infra text
accompanying notes 724-49.

[[\[FN373\]](#Document1zzFN_B373)]{.underline}. For other criticisms of
the nonfalsifiability of Posner\'s theoretical commitments, see
Christine Jolls, Cass R. Sunstein, & Richard Thaler, [[Theories and
Tropes: A Reply to Posner and Kelman, 50 STAN. L. REV. 1593, 1595
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0108978013&ReferencePosition=1595)]{.underline}
(\"Throughout Posner\'s commentary, he goes through the following
ritual. He discussses one of the phenomena we identify as problematic
for economic theory; he offers a modification or elaboration on the
standard theory that could, in principle, be consistent with this
phenomenon; and then he declares victory. Posner seems to think that the
fact that it is possible to tell a rational choice story consistent with
the data is sufficient to establish that this explanation is the correct
one. This is obviously a fallacy. In no case does he offer evidence to
suggest that his preferred explanation is correct, nor even a test that
would, in principle, discriminate between his explanation and ours. For
those of us who believe in falsifiability, this is an unfortunate
omission.\"); Hanson, Reyes, & Schlanger, supra note 43 (arguing that
Posner\'s positive theory of tort law is non-falsifiable).

[[\[FN374\]](#Document1zzFN_B374)]{.underline}. See supra text
accompanying notes 345-50.

[[\[FN375\]](#Document1zzFN_B375)]{.underline}. See supra text
accompanying note 349. See generally Benforado & Hanson, The Costs of
Dispositionism, supra note 47 (comparing and contrasting Posner\'s
narrow, dispositionist approach to legal theory with Guido Calabresi\'s
relatively situationist approach).

[[\[FN376\]](#Document1zzFN_B376)]{.underline}. See George Loewenstein,
The Fall and Rise of Psychological Explanations in the Economics of
Intertemporal Choice, in CHOICE OVER TIME 3 (George Loewenstein & Jon
Elster eds., 1992).

[[\[FN377\]](#Document1zzFN_B377)]{.underline}. See infra text
accompanying note 725.

[[\[FN378\]](#Document1zzFN_B378)]{.underline}. POSNER, supra note 361,
at 263; see also id. at 264 (\"Explanation and prediction must not be
confused.\").

[[\[FN379\]](#Document1zzFN_B379)]{.underline}. See id. at 260.

[[\[FN380\]](#Document1zzFN_B380)]{.underline}. Frederick, Loewenstein,
and O\'Donoghue argue compellingly that the old \"idea that
intertemporal choices reflect an interplay of disparate and often
competing psychological motives \... should be resurrected,\" because
doing so \"will help us to better understand and better explain the
intertemporal choices we observe in the real world.\" Frederick,
Loewenstein & O\'Donoghue, supra note 153, at 393. Put differently,
they, like us. are calling for a critical realist scientific
revolution\--though theirs is a far narrower agenda.

[[\[FN381\]](#Document1zzFN_B381)]{.underline}. Though not very
seriously and not without substantial resistance. See infra Part IV.

[[\[FN382\]](#Document1zzFN_B382)]{.underline}. See infra Part V; see
also Daniel Altman, A Nobel that Bridges Economics and Psychology,
N.Y.TIMES, Oct. 10, 2002, at C1 (\"Behavioral economics and experimental
methods have become hot topics for graduate students in some of the
nation\'s top economics departments. \'Many of the best and the
brightest young graduate students are interested in these issues, and
they\'re getting good jobs.\' \[University of Chicago\] Professor
\[Richard\] Thaler said. Universities in the United States, Europe,
Israel and Japan have opened centers dedicated to behavioral and
experimental economics in the last few years. David I. Laibson at
Harvard credited the rapidly rising interest in the subject to the
strength of its science. \'The field is based primarily on work that
reflects real people\'s choices,\' he said. \'In that sense, the
findings have an inherent validity.\"\').

[[\[FN383\]](#Document1zzFN_B383)]{.underline}. See Jon E. Hilsenrath,
Nobel Winners For Economics Are New Breed, WALL ST. J., Oct. 10, 2002,
at B1 (noting that \"\[t\]he Nobel committee praised the 68-year-old
professor for \'having integrated insights from psychological research
into economic science, especially concerning human judgment and
decision-making.\"\'). Kahneman\'s \"prospect theory\"\--the work that
many believe led to the Nobel Prize\--is itself a dispositionist method
of predicting consumer choices. It is, in other words, an important and
seminal contribution to weak-form realism. See infra Part V.C.4
(discussing weak-form realism).

[[\[FN384\]](#Document1zzFN_B384)]{.underline}. So it is that Richard
Thaler, one of the most prominent of economic behavioralists, has based
his important work on producing \"convincing anomal \[ies\]\" by finding
\"facts that contradict\" the crisp predictions that flow from
economics\' \"two key assumptions \[of\] rationality and
self-interest.\" RICHARD THALER, WINNER\'S CURSE 2 (1992); see also
POSNER, supra note 361, at 264 (behavioralism \"is defined by its
subject rather than by its method and its subject is merely the set of
phenomena that rational-choice models (or at least the simplest of them)
do not explain\"); Andreas Ortmann & Gerd Gigerenzer, Reasoning in
Economics and Psychology: Why Social Context Matters, in COGNITION,
RATIONALITY, AND INSTITUTIONS 131, 133-34 (Manfred E. Streit et al.
eds., 2000) (emphasizing the significance of \"heuristics-and-biases\"
research for \"identifying ever new anomalies, or systematic deviations
from predictions of standard economic (game-theoretic) models\").

[[\[FN385\]](#Document1zzFN_B385)]{.underline}. See infra Part V
(providing a more general critique of this type).

[[\[FN386\]](#Document1zzFN_B386)]{.underline}. As we have already
hinted, other interior situational features\-- such as motivation\--may
have also contributed to this tendency.

[[\[FN387\]](#Document1zzFN_B387)]{.underline}. See KUNDA, supra note 6,
at 20. See generally Chen & Hanson, Categorically Biased, supra note
136, at 1155-1216 (describing those and many other distorting influences
of knowledge schemas and categories).

[[\[FN388\]](#Document1zzFN_B388)]{.underline}. Gordon W. Allport, The
Historical Background of Modern Social Psychology, in HANDBOOK OF SOCIAL
PSYCHOLOGY 3, 43 (Gardner Lindzey ed., 1954).

[[\[FN389\]](#Document1zzFN_B389)]{.underline}. J. RICHARD EISER, SOCIAL
PSYCHOLOGY: ATTITUDE, COGNITION, AND SOCIAL BEHAVIOR 11 (1986).

[[\[FN390\]](#Document1zzFN_B390)]{.underline}. See infra Part V.

[[\[FN391\]](#Document1zzFN_B391)]{.underline}. For a description of
some of the earlier, classic studies on the relationship (or surprising
lack of relationship) between attitudes and behavior, see EISER, supra
note 389, at 52-53; FISKE & TAYLOR, supra note 72, at 530-32.

[[\[FN392\]](#Document1zzFN_B392)]{.underline}. See infra Part V.A.

[[\[FN393\]](#Document1zzFN_B393)]{.underline}. Gordon W. Allport,
Attitudes, in HANDBOOK OF SOCIAL PSYCHOLOGY 810 (Carl Murchison ed.,
1935).

[[\[FN394\]](#Document1zzFN_B394)]{.underline}. DAVID KRECH & RICHARD S.
CRUTCHFIELD, THEORY AND PROBLEMS OF SOCIAL PSYCHOLOGY 152 (1948).

[[\[FN395\]](#Document1zzFN_B395)]{.underline}. SABINI. supra note 81,
at 527.

[[\[FN396\]](#Document1zzFN_B396)]{.underline}. EISER, supra note 389,
at 52.

[[\[FN397\]](#Document1zzFN_B397)]{.underline}. Id. at 53.

[[\[FN398\]](#Document1zzFN_B398)]{.underline}. SABINI, supra note 81,
at 527-28. This newer approach to attitudes helps to illustrate the
contribution that social cognition has made to its primary antecedent,
social psychology. See FISKE & TAYLOR, supra note 72, at 464 (\"Social
cognition\'s main contribution to the field of attitude research has
been a fine-grained analysis of the mediating processes involved in
attitude formation and change.\").

[[\[FN399\]](#Document1zzFN_B399)]{.underline}. Allan W. Wicker,
Attitudes Versus Action: The Relationship of Verbal and Overt Behavioral
Responses to Attitude Objects, 25 J. SOC. ISSUES 41, 75 (1969).

[[\[FN400\]](#Document1zzFN_B400)]{.underline}. FISKE & TAYLOR, supra
note 72, at 531-32.

[[\[FN401\]](#Document1zzFN_B401)]{.underline}. See Banaji, Implicit
Attitudes, supra note 105, at 117, 118. For a discussion of whether
implicit attitudes are indeed attitudes or are something else, see id.
at 120-31.

[[\[FN402\]](#Document1zzFN_B402)]{.underline}. Id. at 118.

[[\[FN403\]](#Document1zzFN_B403)]{.underline}. Banaji, Ordinary
Prejudice, supra note 105, at 8.

[[\[FN404\]](#Document1zzFN_B404)]{.underline}. Banaji, Implicit
Attitudes, supra note 105, at 119.

[[\[FN405\]](#Document1zzFN_B405)]{.underline}. See William A.
Cunningham, Kristopher J. Preacher & Mahzarin R. Banaji, Implicit
Attitude Measures, 12 AM. PSYCHOL. SOC. 163 (2001) (describing and
assessing the various related techniques).

[[\[FN406\]](#Document1zzFN_B406)]{.underline}. Banaji, Ordinary
Prejudice, supra note 105, at 9.

[[\[FN407\]](#Document1zzFN_B407)]{.underline}. Id.

[[\[FN408\]](#Document1zzFN_B408)]{.underline}. See id.

[[\[FN409\]](#Document1zzFN_B409)]{.underline}. Banaji, Implicit
Attitudes, supra note 105, at 118; see also id. at 119 (explaining that
\"issues and questions raised by experts and lay audiences appear to be
equal in sophistication\"); John A. Bargh, The Cognitive Monster: The
Law Against the Controllability of Automatic Stereotype Effects, in
DUAL-PROCESS THEORIES IN SOCIAL PSYCHOLOGY 361 (Shelly Chaiken & Yaacov
Trope eds., 1999).

[[\[FN410\]](#Document1zzFN_B410)]{.underline}. A useful description of
the work, as well as a collection of the relevant evidence, is available
at http://projectimplicit.net (last visited Nov. 16, 2004).

[[\[FN411\]](#Document1zzFN_B411)]{.underline}. Those implicit patterns
are evident in both individuals who are members of the group that is
automatically associated with some quality, and for individuals who are
outside the group. For an illuminating review of the evidence of a
\"pro-white preference,\" see Banaji, Implicit Attitudes, supra note
105, at 137-45.

[[\[FN412\]](#Document1zzFN_B412)]{.underline}. See Banaji, Ordinary
Prejudice, supra note 105, at 9-10.

[[\[FN413\]](#Document1zzFN_B413)]{.underline}. For more extensive
discussions of that research, see Jason Mitchell, Brian Nosek & Mahzarin
Banaji, Category Salience Determines Implicit Attitudes Toward Black
Female and White Male Targets (Paper presented at the First Annual
Meeting of the Society for Personality and Social Psychology, Nashville,
Tenn., 2000), available at http://
projectimplicit.net/nosek/talk/SPSP.mitchell.handout.2000.doc.

[[\[FN414\]](#Document1zzFN_B414)]{.underline}. See, e.g., Banaji,
Implicit Attitudes, supra note 105, at 136.

[[\[FN415\]](#Document1zzFN_B415)]{.underline}. Banaji, Ordinary
Prejudice, supra note 105, at 10.

[[\[FN416\]](#Document1zzFN_B416)]{.underline}. BERNARD WEINER, HUMAN
MOTIVATION: METAPHORS, THEORIES, AND RESEARCH 1 (1992).

[[\[FN417\]](#Document1zzFN_B417)]{.underline}. See, e.g., supra note
384 and accompanying text.

[[\[FN418\]](#Document1zzFN_B418)]{.underline}. See supra Part
III.B.1.a.

[[\[FN419\]](#Document1zzFN_B419)]{.underline}. See Chen & Hanson,
Categorically Biased, supra note 136, at 1139- 1218 (describing those
effects).

[[\[FN420\]](#Document1zzFN_B420)]{.underline}. FISKE, supra note 233,
at 14.

[[\[FN421\]](#Document1zzFN_B421)]{.underline}. We have chosen to place
the topic of motivation under the larger heading of attitude not because
the effect of motivations is limited to our attitudes, but because there
is no clear limit and they needed to go somewhere. We are motivated to
include motivations but our schema\--which, necessarily, cannot be up to
the task of representing our interior situations\--does not have a
definite place for them. So, to include them, we will force our schema
to accommodate our motive. The difficulty of categorizing motivation is
not unique to us\--nor is our reaction. Cf. SABINI, supra note 81, at
167 (noting that the classification of motivations is \"not so
obvious\[\]\"). In any event, our main thesis regarding the impact and
importance of the situation is not harmed\-- indeed, it is probably
advanced\--by evidence that the situation is actually more complex than
our construct suggests.

[[\[FN422\]](#Document1zzFN_B422)]{.underline}. Cf. FISKE, supra note
233, at 15 (dividing motive into \"belonging, understanding,
controlling, enhancing self, and trusting others\" (emphasis omitted));
FISKE & TAYLOR, supra note 72, at 211-26 (breaking down motivational
processes into the motives for \"accuracy,\" \"self-enhancement,\" and
consistency); David A. Dunning, On the Motives Underlying Social
Cognition, in EMOTION AND MOTIVATION 137, 154 (Marilynn B. Brewer &
Miles Hewstone eds., 2004) (similarly dividing the motivational
processes into the desires for \"knowledge,\" \"affirm\[ation\],\" and
\"coherence\").

[[\[FN423\]](#Document1zzFN_B423)]{.underline}. See supra text
accompanying notes 184-86; see also KUNDA, supra note 6, at 141
(describing our motive to understand our world and to find an
understanding grounded in reasons).

[[\[FN424\]](#Document1zzFN_B424)]{.underline}. See FISKE, supra note
233, at 17-18. For an early rendition of this explanation for the
motive, see HEIDER, supra note 184. See generally Hanson, Reyes, &
Schlanger, Attributional Positivism, supra note 43 (reviewing that and
subsequent explanations).

[[\[FN425\]](#Document1zzFN_B425)]{.underline}. We want to be careful
not to overstate our point. The perceived inability to control a force,
event, or outcome may sometimes weaken our interest in understanding it.
Indeed, a major source of dispositionism is, we believe, the widely held
sense that situation is, insofar as it is recognized at all, presumed
immune to any individual\'s choices. People tend to accept that which
they perceive as fixed, and the belief that people should simply accept
and make the most of their situation is a cultural truism.

[[\[FN426\]](#Document1zzFN_B426)]{.underline}. George Loewenstein, The
Psychology of Curiosity: A Review and Reinterpretation, 116 PSYCHOL.
BULL. 75, 90 (1994).

[[\[FN427\]](#Document1zzFN_B427)]{.underline}. Id.

[[\[FN428\]](#Document1zzFN_B428)]{.underline}. See George Loewenstein,
Drazen Prelec, & Catherine Shatto, Hot/Cold Intrapersonal Empathy Gaps
and the Under-Prediction of Curiosity 1, 10 (1997) (unpublished
manuscript, on file with authors).

[[\[FN429\]](#Document1zzFN_B429)]{.underline}. Id.

[[\[FN430\]](#Document1zzFN_B430)]{.underline}. See id. As stated by the
authors, \"people have limited introspective access to the factors that
influence judgment and decisions \... and, consequently\... they cannot
\'undo\' the effects of information received.\" Id. at 16.

[[\[FN431\]](#Document1zzFN_B431)]{.underline}. For a full account of
the study, see Ellen Langer et al., The Mindlessness of Ostensibly
Thoughtful Action: The Role of \"Placebic\" Information in Interpersonal
Interaction, 36 J. PERSONALITY & SOC. PSYCHOL. 635 (1978).

[[\[FN432\]](#Document1zzFN_B432)]{.underline}. Id. at 637 & tbl. 1.

[[\[FN433\]](#Document1zzFN_B433)]{.underline}. Id.

[[\[FN434\]](#Document1zzFN_B434)]{.underline}. The results of this
study have been somewhat controversial. Compare Valerie S. Folkes,
Mindlessness or Mindfulness: A Partial Replication and Extension of
Langer, Blank, and Chanowitz, 48 J. PERSONALITY & SOC. PSYCHOL. 600
(1985), with Ellen Langer et al., Mindlessness-Mindfulness in
Perspective: A Reply to Valerie Folkes, 48 J. PERSONALITY & SOC.
PSYCHOL. 605 (1985).

[[\[FN435\]](#Document1zzFN_B435)]{.underline}. See Jonathan St. B.T.
Evans & P.C. Wason, Rationalization in a Reasoning Task, 67 BRIT. J.
PSCHOL. 479 (1976) (describing and demonstrating how people\'s account
of their own thought processes reveal little about their actual thought
processes\--and instead reveal our motive to cohere).

[[\[FN436\]](#Document1zzFN_B436)]{.underline}. As we\'ll see below,
this experiment reveals more motives beyond just a desire to understand.
See infra Part III.E.1.

[[\[FN437\]](#Document1zzFN_B437)]{.underline}. See Timothy DeCamp
Wilson et al., Introspecting About Reasons Can Reduce Post-Choice
Satisfaction, 19 PERSONALITY & SOC. PSYCHOL. BULL. 331 (1993).

[[\[FN438\]](#Document1zzFN_B438)]{.underline}. See Timothy D. Wilson,
Sarah D. Hodges & Susan J. LaFleur, Effects of Introspecting About
Reasons: Inferring Attitudes from Accessible Thoughts, 69 J. PERSONALITY
& SOC. PSYCHOL. 16, 16 (1995).

That desire for reasons, and the tendency to focus on the salient and
simplistic, reflects and helps to reinforce dispositionist schemas in
Western cultures. The need for \"reasons\" would seem to be heightened
by dispositionism, inasmuch as people are presumed to act according to
the \"reasons\" generated by the interplay between their thinking, their
preferences, and their will. In a dispositionist culture, we need to
make sense of our behavior in a way that our fellows and we ourselves
can understand. We need dispositionist reasons. The desire to have
reasons also reinforces dispositionism, because dispositionism is the
most salient and simplistic place to begin when creating reasons. That
is, because the notion that human behavior reflects thinking,
preferring, and willing is so widely accepted, and because that notion
so easily explains (albeit tautologically) most behavior, dispositionism
also quite naturally becomes the \"reason\" people settle on when they
seek to explain, understand, predict, or control human behavior. Absent
that schema, the goals of explaining behavior, assigning responsibility,
and altering conduct seem complex and intractable. Similar dynamics help
to explain why the dispositionist reasons offered for individual conduct
in this culture tend to boil down to simple, often materialistic,
notions of self-interest. See Dale T. Miller. The Norm of Self-Interest,
54 AM. PSYCHOLOGIST 1053 (1999) (describing ways in which the schemas or
norms of self-interest are self-fulfilling).

[[\[FN439\]](#Document1zzFN_B439)]{.underline}. See Chen & Hanson,
Categorically Biased, supra note 136, at 1182- 1211.

[[\[FN440\]](#Document1zzFN_B440)]{.underline}. See Ziva Kunda, The Case
for Motivated Reasoning, 108 PSYCHOL. BULL. 480, 481-82 (1990).

[[\[FN441\]](#Document1zzFN_B441)]{.underline}. FISKE, supra note 233,
at 22.

[[\[FN442\]](#Document1zzFN_B442)]{.underline}. David Dunning, On the
Motives Underlying Social Cognition, in BLACKWELL HANDBOOK OF SOCIAL
PSYCHOLOGY: INTRAINDIVIDUAL PROCESS 348, 352 (Abraham Tesser & Norbert
Schwarz eds., 2001).

[[\[FN443\]](#Document1zzFN_B443)]{.underline}. See FISKE & TAYLOR,
supra note 72, at 212-16; see also A.G. Greenwald, F.S. Bellezza, & M.R.
Banaji, Is Self-Esteem a Central Ingredient of the Self-Concept?, 14
PERSONALITY & SOC. PSYCHOL. BULL. 34 (1988); Kunda, supra note 440, at
485-86.

[[\[FN444\]](#Document1zzFN_B444)]{.underline}. See KUNDA, supra note 6,
at 119.

[[\[FN445\]](#Document1zzFN_B445)]{.underline}. FISKE & TAYLOR, supra
note 72, at 212-13.

[[\[FN446\]](#Document1zzFN_B446)]{.underline}. Dunning, supra note 442,
at 352.

[[\[FN447\]](#Document1zzFN_B447)]{.underline}. Rasyid Sanitioso, Ziva
Kunda & Geoffrey Fong. Motivated Recall of Autobiographical Memory, 59
J. PERSONALITY & SOC. PSYCHOL. 229 (1990).

[[\[FN448\]](#Document1zzFN_B448)]{.underline}. See, e.g., Neil D.
Weinstein, Unrealistic Optimism About Susceptibility to Heath Problems:
Conclusions from a Community-Wide Sample 10 J. BEHAV. MED. 481 (1987).

[[\[FN449\]](#Document1zzFN_B449)]{.underline}. Neil D. Weinstein,
Unrealistic Optimism About Future Life Events, 39 J. PERSONALITY & SOC.
PSYCHOL. 806, 810 (1980).

[[\[FN450\]](#Document1zzFN_B450)]{.underline}. W. KIP VISCUSI & WESLEY
A. MAGAT. LEARNING ABOUT RISK: CONSUMER AND WORKER RESPONSES TO HAZARD
INFORMATION 95 (1987).

[[\[FN451\]](#Document1zzFN_B451)]{.underline}. Ola Svenson, Are We All
Less Risky and More Skillful than our Fellow Drivers?, 47 ACTA
PSYCHOLOGICA 143, 146 (1981). Retrospectively, too, we tend to be
optimistic in our contributions to joint products. See Michael Ross &
Fiore Sicoly, Egocentric Bias in Availability and Attribution, 37 J.
PERSONALITY & SOC. PSYCHOL. 322 (1979).

[[\[FN452\]](#Document1zzFN_B452)]{.underline}. Russell Shorto, Belief
by the Numbers, N.Y. TIMES, Dec. 7, 1997 § 6, at 60 (Magazine)
(summarizing poll data).

[[\[FN453\]](#Document1zzFN_B453)]{.underline}. See Ellen J. Langer &
Jane Roth, Heads I Win, Tails It\'s Chance: The Illusion of Control as a
Function of the Sequence of Outcomes in a Purely Chance Task, 32 J.
PERSONALITY & SOC. PSYCHOL. 951 (1975).

[[\[FN454\]](#Document1zzFN_B454)]{.underline}. Id. at 956.

[[\[FN455\]](#Document1zzFN_B455)]{.underline}. Ellen J. Langer, The
Illusion of Control, 32 J. PERSONALITY & SOC. PSYCHOL. 311 (1975).

[[\[FN456\]](#Document1zzFN_B456)]{.underline}. See supra text
accompanying notes 166-70. But see Robert J. Wolosin et al., Predictions
of Own and Other\'s Conformity, 43 J. PERSONALITY 357, 376 (1975)
(reporting that oberserver subjects were not only able to preduct the
degree to which participant subjects would conform to bogus estimates of
how many times they had heard and auditory tone but were also able to
predict their own degree of conformity if they were the participants).

[[\[FN457\]](#Document1zzFN_B457)]{.underline}. Banaji, Ordinary
Prejudice, supra note 105, at 8.

[[\[FN458\]](#Document1zzFN_B458)]{.underline}. See Hanson & Kysar, The
Joint Failure, supra note 298 (describing the ways in which cigarette
manufacturers tapped into consumers\' illusion of control); Benforado,
Hanson & Yosifon. Broken Scales, supra note 54 (making a similar point
with respect to restaurant industry); Hanson & Yosifon, The Situation,
supra note 5, at 285-99 (describing how scholars recognize only the most
palpable situational restrictions on volition); see also Chen & Hanson,
The Illusion of Law, supra note 32, at 99-105 (describing the market\'s
\"illusion of freedom\").

[[\[FN459\]](#Document1zzFN_B459)]{.underline}. Or perhaps it is as
accurate to say that our dispositionism is partially a reflection of our
motive for control, or that our self-affirming illusion of control
partially reflects our dispositionism. The causal relationships are, we
suspect, multidirectional.

[[\[FN460\]](#Document1zzFN_B460)]{.underline}. See Steele, supra note
86, at 262 (describing our motive \"to maintain a phenomenal experience
of the self\--self-conceptions and images\--as adaptively and morally
adequate\--that is, as competent, good, coherent, unitary, stable,
capable of free choice, capable of controlling important outcomes, and
so on\").

[[\[FN461\]](#Document1zzFN_B461)]{.underline}. See SABINI, supra note
81, at 167.

[[\[FN462\]](#Document1zzFN_B462)]{.underline}. John W. Kingdon,
Politicians\' Beliefs About Voters, 61 AM. POL. SCI. REV. 137, 141
(1967), cited in MILES HEWSTONE, CAUSAL ATTRIBUTION: FROM COGNITIVE
PROCESSES TO COLLECTIVE BELIEFS 57-58 (1989).

[[\[FN463\]](#Document1zzFN_B463)]{.underline}. HEWSTONE, supra note
462, at 58. These self-serving biases exemplify two occasions\--and
there are others\--in which individuals are particularly likely to make
situationist attributions. Even in those circumstances the attribution
will be limited to only a tiny portion of the situation, as we have
defined that concept, and is prone to inaccuracy inasmuch as it is
motivated by the motive to self-affirm and not the motive for accuracy.
See generally Hanson, Reyes, & Schlanger, Attributional Positivism,
supra note 43.

[[\[FN464\]](#Document1zzFN_B464)]{.underline}. See, e.g., Dunning,
supra note 442, at 357.

[[\[FN465\]](#Document1zzFN_B465)]{.underline}. See Steven Berglas &
Edward E. Jones, Drug Choice as a Self-Handicapping Strategy as a
Response to Non-Contingent Success, 36 J. PERSONALITY & SOC. PSYCHOL.
405 (1978). For a review of other studies of self-handicapping, see
FISKE & TAYLOR, supra note 72, at 235-38; SABINI, supra note 81, at
205-07.

[[\[FN466\]](#Document1zzFN_B466)]{.underline}. The example in the text
arguably involves not situational manipulation, but manipulation of
attributions from the stable disposition of intelligence to the
non-stable disposition of intoxication. Those attributions are less
threatening to the self, because they are ostensibly temporary.
Similarly, individuals might want to attribute some embarrassing
behavior to temporary dispositions (for example, choice)\--\"I meant to
do that\"\--rather than to stable dispositions (for example, ignorance
or dimwittedness). In any event, the basic motive is the same, and
social psychologists have shown that we adopt the same handicapping
strategy by manipulating attributions from dispositions to situation.
See, e.g., James A. Shepperd & Robert M. Arkin, Behavioral
Other-Enhancement: Strategically Obscuring the Link Between Performance
and Evaluation, 60 J. PERSONALITY & SOC. PSYCHOL. 79 (1991).

[[\[FN467\]](#Document1zzFN_B467)]{.underline}. Cf. Steele, supra note
100, at 50 (explaining and reviewing evidence that one way to protect
against stereotype threat, see supra text accompanying notes 252-65, is
\"by ceasing to care about the domain in which the stereotype
applies\"). For a more complete discussion of disidentification
strategies including domain and group disidentification and less drastic
types of selective disidentification, see Emily Pronin, Claude M. Steele
& Lee Ross, Identity Bifurcation in Response to Stereotype Threat: Women
and Mathematics, 40 J. EXPERIMENTAL SOC. PSYCHOL. 152 (2004).

[[\[FN468\]](#Document1zzFN_B468)]{.underline}. See Berglas & Jones,
supra note 465.

[[\[FN469\]](#Document1zzFN_B469)]{.underline}. See id.

[[\[FN470\]](#Document1zzFN_B470)]{.underline}. Another possible
explanation for such behavior is, not so much that people are attempting
to trick themselves, but that people have, through the course of
experience, generally pursued a goal that has become habituated. Social
psychologists call those habituated motives nonconscious goals or
automatic goals. See Tanya L. Chartrand & Clara M. Cheng, The Role of
Nonconscious Goal Pursuit in Hope, 13 PSYCHOL. INQUIRY 290 (2002).
Interestingly, there is research suggesting that such nonconscious goals
can be primed through exterior situation. See id.; Clara M. Cheng &
Tanya L. Chartrand, Self-Monitoring Without Awareness: Using Mimicry as
a Nonconscious Affiliation Strategy, 85 J. PERSONALITY & SOC. PSYCHOL.
1170 (2003). We discuss the role of automaticity in greater detail
below. See infra Part III.E.1.

[[\[FN471\]](#Document1zzFN_B471)]{.underline}. See also supra text
accompanying notes 256-57 (discussing methods of coping with stereotype
threat).

[[\[FN472\]](#Document1zzFN_B472)]{.underline}. FISKE & TAYLOR, supra
note 72, at 80-81.

[[\[FN473\]](#Document1zzFN_B473)]{.underline}. See supra Part
III.B.2.a.

[[\[FN474\]](#Document1zzFN_B474)]{.underline}. ROSS & NISBETT, supra
note 6, at 40.

[[\[FN475\]](#Document1zzFN_B475)]{.underline}. See supra Part
III.B.2.a.

[[\[FN476\]](#Document1zzFN_B476)]{.underline}. See supra text
accompanying notes 221-51.

[[\[FN477\]](#Document1zzFN_B477)]{.underline}. FISKE & TAYLOR, supra
note 72, at 134.

[[\[FN478\]](#Document1zzFN_B478)]{.underline}. FISKE & TAYLOR, supra
note 72, at 80-81 (citing Miles Hewstone & J.M.F. Jaspars, Intergroup
Relations and Attribution Processes, in SOCIAL IDENTITY AND INTERGROUP
RELATIONS 99 (H. Tajfel ed., 1982)).

[[\[FN479\]](#Document1zzFN_B479)]{.underline}. MELVIN J. LERNER, THE
BELIEF IN A JUST WORLD: A FUNDAMENTAL DELUSION, at vii (1980).

[[\[FN480\]](#Document1zzFN_B480)]{.underline}. Melvin J. Lerner & Dale
T. Miller, The Attribution Process: Looking Back and Ahead, 85 PSYCHOL.
BULL. 1030, 1030 (1978).

[[\[FN481\]](#Document1zzFN_B481)]{.underline}. See Melvin J. Lerner &
C.H. Simmons, The Observer\'s Reaction to the \"Innocent Victim\":
Compassion or Rejection, 4 J. PERSONALITY & SOC. PSYCHOL 203 (1966). Our
account of the experiment comes from the summary provided in Lerner &
Miller, supra note 480, at 1031-32.

[[\[FN482\]](#Document1zzFN_B482)]{.underline}. See Lerner & Miller,
supra note 480, at 1031 (\"\[M\]ost subjects took advantage of this
opportunity to compensate the victim.\").

[[\[FN483\]](#Document1zzFN_B483)]{.underline}. Lerner & Miller, supra
note 480, at 1032. Lerner and Miller also cite numerous studies
replicating those results with diverse populations. See id. As with all
motives, this motive is neither total nor omnipotent. The motive to
believe in a just world may be fairly anemic when the perceived
injustice does not implicate the observer. See Isabel Correia, Jorge
Vala, & Patricia Aguiar. The Effects of Belief in a Just World and
Victim\'s Innocence on Secondary Victimization, Judgments of Justice and
Deservingness, 14 SOC. JUSTICE RES. 327 (2002). Suffering in another
part of the world, even if the victims might seem undeserving, can be
attributed to forces well outside of our control and unthreatening to
us. On the other hand, there are times when an injustice does implicate
us and cannot simply be laid on the victim. The Oklahoma bombing and the
terrorist acts of 9/11 are good examples. Indeed, that may well be part
of what makes those events so horrifying. Our suspicion is that the word
\"evil\" is invoked particularly when the events leave us with no way of
alleviating or avoiding the harm and no way of believing that it is
deserved.

[[\[FN484\]](#Document1zzFN_B484)]{.underline}. E. Jones & E. Aronson,
Attribution of Fault to a Rape Victim as a Function of Respectability of
the Victim, 26 J. PERSONALITY & SOC. PSYCHOL. 415 (1973). This summary
of Jones\'s and Aronson\'s research comes from Lerner & Miller, supra
note 480, at 1034-35.

[[\[FN485\]](#Document1zzFN_B485)]{.underline}. Lerner & Miller, supra
note 480, at 1035.

[[\[FN486\]](#Document1zzFN_B486)]{.underline}. Id. at 1041. It is
important to recall here, as always, that while group and system
affirmation may be evident in some manner in all people, its strength
and the nature of its manifestations may also differ widely across
individuals and across societies. With respect to cross-cultural
distinctions in the situational character, see Hanson & Yosifon, The
Situation, supra note 5, at 250-59.

[[\[FN487\]](#Document1zzFN_B487)]{.underline}. See John T. Jost &
Orsolya Hunyady, The Psychology of System Justification and the
Palliative Function of Ideology, 13 EUR. REV. SOC. PSYCHOL. 111 (2002);
John T. Jost et al., Non-Conscious Forms of System Justification:
Implicit and Behavioral Preferences for Higher Status Groups, 38 J.
EXPERIMENTAL SOC. PSYCHOL. 586 (2002); John T. Jost, Outgroup Favoritism
and the Theory of System Justification, in FUTURE DIRECTIONS IN SOCIAL
COGNITION 86 (G. Moskowitz ed., 2001); John T. Jost & Diana Burgess,
Attitudinal Ambivalence and the Conflict Between Group and System
Justification Motives in Low Status Groups, 26 PERSONALITY & SOC.
PSYCHOL. BULL. 293 (2000); John T. Jost & Mahzarin R. Banaji, The Role
of Stereotyping in System Justification and the Production of False
Consciousness, 33 BRIT. J. SOC. PSYCHOL. 1 (1994).

[[\[FN488\]](#Document1zzFN_B488)]{.underline}. Jost & Hunyady, supra
note 487, at 119 (emphasis omitted).

[[\[FN489\]](#Document1zzFN_B489)]{.underline}. The concept of system
justification has many theoretical forbearers, from Lerner\'s \"just
world\" hypothesis in social psychology to the theory of \"false
consciousness\" and dominant ideology in political economy to the
concept of ideology in critical theory, race studies, and feminism. Jost
and his co-authors acknowledge the influence of this work on the
development of system justification theory and argue that the new
approach provides a more coherent\--and scientifically
supported\--picture of this widely recognized reality of our interior
situations operates. See, e.g., id. at 111-19. For one, system
justification theory is itself not focused on any particular nexus of
in- and out-groups (like class or race or gender), but is meant to
provide an explanatory framework that is instructive across, and within,
various situations. See Jost & Banaji, supra note 487, at 11.

[[\[FN490\]](#Document1zzFN_B490)]{.underline}. Jost & Hunyady, supra
note 487, at 126-28.

[[\[FN491\]](#Document1zzFN_B491)]{.underline}. See id. at 126-28.

[[\[FN492\]](#Document1zzFN_B492)]{.underline}. Id.

[[\[FN493\]](#Document1zzFN_B493)]{.underline}. See id.

[[\[FN494\]](#Document1zzFN_B494)]{.underline}. Id. at 122.

[[\[FN495\]](#Document1zzFN_B495)]{.underline}. Id. at 142.

[[\[FN496\]](#Document1zzFN_B496)]{.underline}. Id. at 142-43.

[[\[FN497\]](#Document1zzFN_B497)]{.underline}. Id. at 143.

[[\[FN498\]](#Document1zzFN_B498)]{.underline}. Id. at 147 (citations
omitted).

[[\[FN499\]](#Document1zzFN_B499)]{.underline}. Id. at 145 (citing JAMES
R. KLUEGEL & ELIOT R. SMITH, BELIEFS ABOUT INEQUALITY: AMERICANS\' VIEW
OF WHAT IS AND WHAT OUGHT TO BE 280-83 (1986)).

[[\[FN500\]](#Document1zzFN_B500)]{.underline}. See Jost & Banaji, supra
note 487.

[[\[FN501\]](#Document1zzFN_B501)]{.underline}. See Aaron C. Kay & John
T. Jost, Complementary Justice: Effects of \"Poor but Happy\" and \"Poor
but Honest\" Stereotype Exemplars on System Justification and Implicit
Activation of the Justice Motive, 85 J. PERSONALITY & SOC. PSYCHOL. 823
(2003).

[[\[FN502\]](#Document1zzFN_B502)]{.underline}. Evidence further
suggests that the stereotypes enabling us to justify the situation are
activated automatically\--\"implicitly\"\--and influence even those of
us who reject the explicit renditions. See Mahzarin R. Banaji & A. G.
Greenwald, Implicit Stereotyping and Prejudice, in THE PSYCHOLOGY OF
PREJUDICE 7 (Mark P. Zanna & James M. Olson eds., 1994); Jost & Banaji,
supra note 487, at 15-16 (citing Patricia G. Devine, Stereotypes and
Prejudice: Their Automatic and Controlled Components, 56 J. PERSONALITY
& SOC. PSYCH. 5 (1983)).

[[\[FN503\]](#Document1zzFN_B503)]{.underline}. A possible lesson of
system justification theory is that, to combat stereotyping and its
status-quo-supporting effects, it may be wise to aim less at changing
individual dispositions and to focus more on changing the situation that
produces the dispositionalizing impulse. Thus, Jost and Banaji conclude
that an important implication of the system-justification approach \"is
that a most expedient way of changing stereotypes is to change material
reality\"\--that is, by altering the situation. See Jost & Banaji, supra
note 487, at 18; Alice H. Eagly & Valerie J. Steffen, Gender Stereotypes
Stem from the Distribution of Women and Men into Social Roles, 46 J.
PERSONALITY & SOC. PSYCHOL. 735 (1984); Curt Hoffman & Nancy Hurst,
Gender Stereotypes: Perception or Rationalization?, 58 J. PERSONALITY &
SOC. PSYCHOL. 197 (1990).

[[\[FN504\]](#Document1zzFN_B504)]{.underline}. See KUNDA, supra note 6,
at 141 (discussing the motive to simplify).

[[\[FN505\]](#Document1zzFN_B505)]{.underline}. We believe that this
motivation, taken together with our deep capture thesis, suggests
something about the kinds of ideas that will be successfully employed in
deep capture efforts. More particularly it suggests a reason for the
success of law and economics as compared with more complicated legal
theories.

[[\[FN506\]](#Document1zzFN_B506)]{.underline}. There are of course
other motives that have been identified by social psychology, and
refinements of these motives, that we are not reviewing here. Our
treatment is meant only to provide an overview of this area of social
psychology, and its implications for the situational character that we
are here attempting to sketch. For a more exhaustive treatment, see
Kunda, supra note 440.

[[\[FN507\]](#Document1zzFN_B507)]{.underline}. Kurt Lewin, Time
Perspective and Morale, in KURT LEWIN, RESOLVING SOCIAL CONFLICTS:
SELECTED PAPERS ON GROUP DYNAMICS 103 (1948).

[[\[FN508\]](#Document1zzFN_B508)]{.underline}. See KUNDA, supra note 6,
at 140.

[[\[FN509\]](#Document1zzFN_B509)]{.underline}. See, e.g., LEON
FESTINGER, A THEORY OF COGNITIVE DISSONANCE (1957).

[[\[FN510\]](#Document1zzFN_B510)]{.underline}. For an overview of
disputes in the cognitive dissonance literature, see THE HANDBOOK OF
SOCIAL PSYCHOLOGY 335-37 (Daniel T. Gilbert, Susan T. Fiske & Gardner
Lindzey eds., 1998).

[[\[FN511\]](#Document1zzFN_B511)]{.underline}. See generally Paul
Thagard & Ziva Kunda, Making Sense of People: Coherence Mechanisms, in
1998 CONNECTIONIST MODELS OF SOCIAL REASONING AND SOCIAL BEHAVIOR 3;
Paul Thagard, Explanatory Coherence, 12 BEHAVIORAL & BRAIN SCI. 435
(1989).

[[\[FN512\]](#Document1zzFN_B512)]{.underline}. THE HANDBOOK OF SOCIAL
PSYCHOLOGY, supra note 510, at 337.

[[\[FN513\]](#Document1zzFN_B513)]{.underline}. See J.W. BREHM & A.R.
COHEN, EXPLORATIONS IN COGNITIVE DISSONANCE (1966); Linda Simon et al.,
Trivialization: The Forgotten Mode of Dissonance Reduction, 68 J.
PERSONALITY & SOC. PSYCHOL. 247 (1995); cf. THE HANDBOOK OF SOCIAL
PSYCHOLOGY, supra note 510, at 336 (\"\[T\]he accumulated research of
dissonance suggests that the negative feelings associated with
dissonance can be reduced not only directly by modifying one of the
cognitions involved, but indirectly by virtually any other means that
would make a person feel less unpleasant.\").

[[\[FN514\]](#Document1zzFN_B514)]{.underline}. See Leon Festinger &
James M. Carlsmith, Cognitive Consequences of Forced Compliance, 58 J.
ABNORMAL & SOC. PSYCHOL. 203 (1959), available at
http://psychclassics.yorku.ca/Festinger.

[[\[FN515\]](#Document1zzFN_B515)]{.underline}. Subjects were, for
instance, told to carefully turn each peg on a board a quarter turn.
After turning all the pegs once, they were told to turn them another
quarter turn. Later they were asked to remove each peg carefully, and
then put them all back. After an hour, they were told they were done.

[[\[FN516\]](#Document1zzFN_B516)]{.underline}. See Festinger &
Carlsmith, supra note 514, at 203.

[[\[FN517\]](#Document1zzFN_B517)]{.underline}. Social psychologists
often refer to this as the less-leads-to-more effect: the less obvious
the explanation for one\'s behavior, the more one will tend to alter
one\'s attitudes to make sense of it. See BARON & BYRNE, supra note 311,
at 150.

[[\[FN518\]](#Document1zzFN_B518)]{.underline}. See EISER, supra note
389, at 92-99; ROSS & NISBETT, supra note 6, at 66; M. Riess & B.R.
Schlenker, Attitude Change and Responsibility Avoidance as Modes of
Dilemma Resolution in Forced-Compliance Situations, 35 J. PERSONALITY &
SOC. PSYCHOL. 21 (1977); see also EISER, supra note 389, at 84- 89
(reviewing portions of the literature on \"intrinsic and extrinsic
motivation\" and the process of \"overjustification\").

[[\[FN519\]](#Document1zzFN_B519)]{.underline}. KUNDA, supra note 6, at
221; see also BARON & BYRNE, supra note 311, at 145-46 (describing other
responses, including the more \"direct\" methods of \"acquiring new
information that supports our attitudes or our behavior,\" trivializing
the inconsistency by \"concluding that the attitudes or behaviors in
question are not important ones,\" and the \"indirect\" tactics of
focusing on \"positive self-attributes\" or distracting oneself from the
dissonance through some activity or even by drinking alcohol).

[[\[FN520\]](#Document1zzFN_B520)]{.underline}. KUNDA, supra note 6, at
221.

[[\[FN521\]](#Document1zzFN_B521)]{.underline}. See generally Steele,
supra note 86.

[[\[FN522\]](#Document1zzFN_B522)]{.underline}. Id. at 289.

[[\[FN523\]](#Document1zzFN_B523)]{.underline}. See, e.g., Lee Ross &
Andrew Ward, Naïve Realism: Implications for Social Conflict and
Misunderstanding, in VALUES AND KNOWLEDGE (Edward Reed et al. eds.,
1997).

[[\[FN524\]](#Document1zzFN_B524)]{.underline}. See id.; see also Robert
J. Robinson, Dacher Kettner, Andrew Ward, & Lee Ross, Actual Versus
Assumed Differences in Construal: \"Naïve Realism\" in Intergroup
Perception and Conflict, 68 J. PERSONALITY & SOC. PSYCHOL. 404, 405
(1995) (describing naïve realism as one\'s \"unshakeable conviction that
he or she is somehow privy to an invariant, knowable, objective
reality\--a reality that others will also perceive faithfully, provided
that they are reasonable and rational, a reality that others are apt to
misperceive only to the extent that they (in contrast to oneself) view
the world through a prism of self-interest, ideological bias, or
personal perversity\").

[[\[FN525\]](#Document1zzFN_B525)]{.underline}. That asymmetry of
attributions is what leads virtually all of us to believe that we are,
ourselves, immune to the manipulative influences of marketing and
advertising even as we acknowledge that advertising does work and that
many people are easily manipulated. See JEAN KILBOURNE, CAN\'T BUY MY
LOVE: HOW ADVERTISING CHANGES THE WAY WE THINK AND FEEL 27 (1999).

[[\[FN526\]](#Document1zzFN_B526)]{.underline}. See Pronin et al., supra
note 337.

[[\[FN527\]](#Document1zzFN_B527)]{.underline}. Posner, supra note 249,
at 274 (emphasis omitted).

[[\[FN528\]](#Document1zzFN_B528)]{.underline}. See Dale T. Miller &
Rebecca K. Ratner, The Disparity Between the Actual and Assumed Power of
Self-Interest, 74 J. PERSONALITY & SOC. PSYCHOL. 53 (1998) \[hereinafter
Miller & Ratner, The Disparity\]; Dale T. Miller & Rebecca K. Ratner,
The Power of the Myth of Self-Interest, in CURRENT SOCIETAL ISSUES IN
JUSTICE 25-48 (Leo Montada & Melvin J. Lerner eds., 1996).

[[\[FN529\]](#Document1zzFN_B529)]{.underline}. Miller & Ratner, The
Disparity, supra note 528, at 58. And this is true despite evidence that
the actual link between social attitudes and self-interest is often much
weaker than we suppose. See David O. Sears & Carolyn L. Funk,
Self-Interest in Americans\' Political Opinions, in BEYOND SELF-INTEREST
147 (Jane Mansbridge ed., 1990); David O. Sears & Carolyn L. Funk, The
Role of Self-Interest in Social and Political Attitudes, in 24 ADVANCES
IN EXPERIMENTAL SOCIAL PSYCHOLOGY 2 (1991).

[[\[FN530\]](#Document1zzFN_B530)]{.underline}. The tendency of
dispositionists to dismiss situational accounts has been dubbed \"naïve
cynicism.\" See Benforado & Hanson, Naïve Cynicism, supra note 78. Much
of the tort reform movement and the anti-PC backlash can be understood
as a manifestation of naïve cynicism. Id. More generally, naïve cynicism
influences\--and is currently dominating\--virtually all significant
public policy debates.

[[\[FN531\]](#Document1zzFN_B531)]{.underline}. JEAN JACQUES ROUSSEAU, A
DISCOURSE ON THE ORIGIN OF INEQUALITY (1754), reprinted in JEAN JACQUES
ROUSSEAU, THE SOCIAL CONTRACT AND DISCOURSES 31, 116 (G.D.H. Cole
trans., Everyman 1993).

[[\[FN532\]](#Document1zzFN_B532)]{.underline}. For a more general
discussion of our motive for \"belonging,\" see FISKE, supra note 233,
at 16-17.

[[\[FN533\]](#Document1zzFN_B533)]{.underline}. Phillip E. Tetlock,
Intuitive Politicians, Theologians, and Prosecutors: Exploring the
Empirical Implications of Deviant Functionalist Metaphors, in HEURISTICS
AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 582, 583 (Thomas
Gilovich, Dale Griffin & Daniel Kahneman eds., 2002).

[[\[FN534\]](#Document1zzFN_B534)]{.underline}. Id. at 585.

[[\[FN535\]](#Document1zzFN_B535)]{.underline}. Id.

[[\[FN536\]](#Document1zzFN_B536)]{.underline}. For discussion of the
mechanisms behind the false consensus effect see KUNDA, supra note 6, at
399; Steven J. Sherman et al., Mechanisms Underlying the False Consensus
Effect: The Special Role of Threats to the Self, 10 PERSONALITY & SOC.
PSYCHOL. BULL. 127 (1984).

[[\[FN537\]](#Document1zzFN_B537)]{.underline}. See Lee Ross et al., The
\"False Consensus Effect\": An Ego-centric Bias in Social Perception and
Attribution Processes, 35 J. PERSONALITY & SOC. PSYCHOL. 880 (1977)
(first reporting this study).

[[\[FN538\]](#Document1zzFN_B538)]{.underline}. Id.

[[\[FN539\]](#Document1zzFN_B539)]{.underline}. For reviews of these
studies, see Joachim Krueger, On the Perception of Social Consensus, in
30 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 163 (Mark P. Zanna ed.,
1998); Gary Marks & Norman Miller, Ten Years of Research on the
False-Consensus Effect: An Empirical and Theoretical Review, 102
PSYCHOL. BULL. 72 (1987); Brian Mullen et al., The False Consensus
Effect: A Meta-Analysis of 115 Hypothesis Tests, 21 J. EXPERIMENTAL SOC.
PSYCHOL. 262 (1985).

[[\[FN540\]](#Document1zzFN_B540)]{.underline}. See Deborah A. Prentice
& Dale T. Miller, Pluralistic Ignorance and the Perpetuation of Social
Norms by Unwitting Actors, in 28 ADVANCES IN EXPERIMENTAL SOCIAL
PSYCHOLOGY 161 (Mark P. Zanna ed., 1996).

[[\[FN541\]](#Document1zzFN_B541)]{.underline}. Id. at 169.

[[\[FN542\]](#Document1zzFN_B542)]{.underline}. Prentice and Miller
point out that the phrase \"pluralistic ignorance\" is an unfortunate
one, not only because it is somewhat inelegant, but also because it does
not actually describe the phenomena well. More than being \"ignorant\"
about others\' beliefs, for example, we are actually mistaken about
them. Prentice and Miller stuck with the term, however, because, by the
time they were writing, it had been around in social psychology for more
than fifty years. Using the somewhat wrongheaded phrase helped to
illustrate Prentice and Miller\'s point: \"\[W\]e are simply conceding
the well-known social fact that it is much easier to abide by an
established convention than to change it. Moreover, it is precisely this
concession that often gives rise to pluralistic ignorance.\" Id. at
161-62.

[[\[FN543\]](#Document1zzFN_B543)]{.underline}. Id. at 188.

[[\[FN544\]](#Document1zzFN_B544)]{.underline}. Id. at 163.

[[\[FN545\]](#Document1zzFN_B545)]{.underline}. In addition to their
famous drinking experiments, Prentice and Miller also pursued important
studies of the role of pluralistic ignorance in the formation and
internalization of gender stereotypes by children. See id. at 188-96;
see also Chen & Hanson, Categorically Biased, supra note 135, at 1207-11
(discussing the self-fulfulling effect of schemas, including gender
stereotypes).

[[\[FN546\]](#Document1zzFN_B546)]{.underline}. See Dale T. Miller &
Cathy McFarland, Pluralistic Ignorance: When Similarity is Interpreted
as Dissimilarity, 53 J. PERSONALITY & SOC. PSYCHOL. 298 (1987). Some
social psychologists have referred to the self-perpetuating nature of
the pluralistic ignorance phenomena as the \"spiral of silence.\" See
ELISABETH NOELLE-NEUMANN, THE SPIRAL OF SILENCE, PUBLIC OPINION\--OUR
SOCIAL SKIN (1984).

[[\[FN547\]](#Document1zzFN_B547)]{.underline}. That claim is the topic
of future work. For a fascinating review of social psychological
evidence supporting that claim, see Dale T. Miller, The Norm of
Self-Interest, 54 AM. PSYCHOLOGIST 1053 (1999).

[[\[FN548\]](#Document1zzFN_B548)]{.underline}. Prentice & Miller, supra
note 540.

[[\[FN549\]](#Document1zzFN_B549)]{.underline}. See infra Part IV.

[[\[FN550\]](#Document1zzFN_B550)]{.underline}. The study of affect has
produced an extensive, and growing, literature. See, e.g., Daniel
Gilbert et al., Durability Bias in Affective Forecasting, in HEURISTICS
AND BIASES, supra note 72, at 292; Norbert Schwarz, Feelings as
Information: Mood Influence Judgments and Processing Strategies, in
HEURISTICS AND BIASES, supra note 72, at 534; Paul Slovic et al., The
Affect Heuristic, in HEURISTICS AND BIASES, supra note 72, at 397.

[[\[FN551\]](#Document1zzFN_B551)]{.underline}. In fact, the treatment
of interior situation is quite analogous to the general treatment of
exterior situation. We acknowledge the \"heat of passion,\" like we do
\"a gun to the head,\" but little else. See David Arkush & Jon Hanson,
Situating Emotions (unpublished manuscript, on file with authors).

[[\[FN552\]](#Document1zzFN_B552)]{.underline}. See id.

[[\[FN553\]](#Document1zzFN_B553)]{.underline}. See Robert B. Zajonc,
Closing the Debate Over the Independence of Affect, in FEELING AND
THINKING: THE ROLE OF AFFECT IN SOCIAL COGNITION 31 (Joseph P. Forgas
ed., 2000).

[[\[FN554\]](#Document1zzFN_B554)]{.underline}. See Hanson, Reyes, &
Schlanger, Attributional Positivism, supra note 43.

[[\[FN555\]](#Document1zzFN_B555)]{.underline}. For a description of
that interaction, see Chen & Hanson, Categorically Biased, supra note
135.

[[\[FN556\]](#Document1zzFN_B556)]{.underline}. See Antoine Bechara,
Hanna Damasio, Daniel Tranel, & Antonio R. Damasio, Deciding
Advantageously Before Knowing the Advantageous Strategy, 275 SCIENCE
1293 (1997).

[[\[FN557\]](#Document1zzFN_B557)]{.underline}. See Edward M. Saunders,
Stock Prices and Wall Street Weather, 83 AM. ECON. REV. 1337, 1344
(1993).

[[\[FN558\]](#Document1zzFN_B558)]{.underline}. David Hirshleifer &
Tyler Shumway, Good Day Sunshine: Stock Returns and the Weather 2-3
(unpublished manuscript), available at
http://www.cob.ohio-state.edu/fin/dice/papers/2001/2001-3.pdf (last
visited Sept. 11, 2003).

[[\[FN559\]](#Document1zzFN_B559)]{.underline}. For a summary of
studies, see Schwarz, supra note 550, at 534-36.

[[\[FN560\]](#Document1zzFN_B560)]{.underline}. Id. The importance of
nonconscious situational influences on affect was discovered and
elaborated in a series of studies by Robert Zajonc and his colleagues.
See Robert B. Zajonc, Attitudinal Effects of Mere Exposure, 9 J.
PERSONALITY & SOC. PSYCHOL. MONOGRAPH 1 (1968); Robert B. Zajonc,
Feeling and Thinking: Preferences Need No Inferences, 35 AM.
PSYCHOLOGIST 151 (1980); Robert B. Zajonc & Hazel Markus, Affective and
Cognitive Factors in Preferences, 9 J. CONSUMER RES. 123 (1982).

[[\[FN561\]](#Document1zzFN_B561)]{.underline}. Schwarz, supra note 550,
at 536-38. Such findings about the nature of situational influences on
our emotional lives obviously have important implications with respect
to the potential for the situational manipulation of affective
responses. See Paul Slovic et al., supra note 530, at 417 (\"As Epstein
observes, \'Cigarette advertising agencies and their clients are willing
to bet millions of dollars in advertising costs that the \... appeal of
their messages to the experiential system will prevail over the verbal
message of the Surgeon General that smoking can endanger one\'s life, an
appeal directed at the rational system.\' Through the workings of the
affect heuristic \... we now have evidence suggesting that cigarette
advertising designed to increase the positive affect associated with
smoking will quite likely depress perceptions of risk.\" (citing Seymour
Epstein, Integration of the Cognitive and Psychodynamic Unconscious, 49
AM. PSYCHOLOGIST 709, 712 (1994))). See generally Hanson & Kysar, Taking
Behavioralism Seriously II, supra note 132.

[[\[FN562\]](#Document1zzFN_B562)]{.underline}. See Robert F. Bornstein,
Exposure and Affect: Overview and Meta-Analysis of Research, 106
PSYCHOL. BULL. 265 (1989); Robert F. Bornstein & Paul R. D\'Agostino,
Stimulus Recognition and the Mere Exposure Effect, 63 J. PERSONALITY &
SOC. PSYCHOL. 545 (1992).

[[\[FN563\]](#Document1zzFN_B563)]{.underline}. See generally Gilbert et
al., supra note 550.

[[\[FN564\]](#Document1zzFN_B564)]{.underline}. This tendency reflects,
in part, a problem we highlighted above: the failure of our imaginations
to see beyond the salient. We see the imagined event plainly, but it
eclipses other events that will serve to counteract it.

[[\[FN565\]](#Document1zzFN_B565)]{.underline}. Gilbert et al., supra
note 550, at 292 (collecting studies) (citations omitted).

[[\[FN566\]](#Document1zzFN_B566)]{.underline}. Id. at 299-300.

[[\[FN567\]](#Document1zzFN_B567)]{.underline}. Id. at 297-99.

[[\[FN568\]](#Document1zzFN_B568)]{.underline}. See Timothy D. Wilson et
al., Focalism: A Source of Durability Bias in Affective Forecasting, 78
J. PERSONALITY & SOC. PSYCHOL. 821, 822 (2000).

[[\[FN569\]](#Document1zzFN_B569)]{.underline}. See B.L. Fredrickson &
Daniel Kahneman, Duration Neglect in Retrospective Evaluations of
Affective Episodes, 65 J. PERSONALITY & SOC. PSYCHOL. 45 (1993); Terence
R. Mitchell et al., Temporal Adjustments in the Evaluation of Events:
The \"Rosy View,\" 33 J. EXPERIMENTAL SOC. PSYCHOL. 421 (1994).

[[\[FN570\]](#Document1zzFN_B570)]{.underline}. Gilbert et al., supra
note 550, at 293.

[[\[FN571\]](#Document1zzFN_B571)]{.underline}. Social psychologists
have offered a number of explanations for the affective forecasting
phenomenon, including that we misconstrue the nature of future events,
that we are motivated to distort our affective predictions, that the
process of predicting focuses our imagination to the exclusion of other
aspects of our future lives that will influence our affect
(\"focalism\"), and that our interior situations immunize us from being
emotionally subsumed by bad outcomes in our lives. See Gilbert et al.,
supra note 550, at 293-97 (summarizing explanations of affective
forecasting findings). These explanations are consonant with our own
analysis in this Article, which, in turn, draws on them.

We should point out that affective (mis)forecasting, like so many
features of our situational character, can have a very positive or
adaptive part to play in our lives. Like the heuristics and knowledge
structures that enable us to make decisions with our limited brainpower,
our poor affective forecasting is no quirk; rather, it is central to our
psychological makeup. Affective reactions can give us a basis for acting
and a means of recovering from the disappointment of bad outcomes. In
that way, our interior situation protects us from ourselves.

[[\[FN572\]](#Document1zzFN_B572)]{.underline}. George Loewenstein, Out
of Control: Visceral Influences on Behavior, 65 J. ORG. BEHAV. & HUM.
DECISION PROCESSES 272, 272-73 (1996).

[[\[FN573\]](#Document1zzFN_B573)]{.underline}. George Loewenstein, A
Visceral Account of Addiction, in SMOKING: RISK, PERCEPTION, & POLICY,
supra note 298, at 188, 188-89.

[[\[FN574\]](#Document1zzFN_B574)]{.underline}. Id. at 189.

[[\[FN575\]](#Document1zzFN_B575)]{.underline}. Id. at 191-92.

[[\[FN576\]](#Document1zzFN_B576)]{.underline}. Id. at 189.

[[\[FN577\]](#Document1zzFN_B577)]{.underline}. Id. at 193.

[[\[FN578\]](#Document1zzFN_B578)]{.underline}. George Loewenstein et
al., The Effect of Sexual Arousal on Expectations of Sexual
Forcefulness, 34 J. RES. CRIME & DELINQ. 443, 455-56 & tbl.1 (1997).

[[\[FN579\]](#Document1zzFN_B579)]{.underline}. Loewenstein, supra note
573, at 194.

[[\[FN580\]](#Document1zzFN_B580)]{.underline}. Id.

[[\[FN581\]](#Document1zzFN_B581)]{.underline}. Id. at 213.

[[\[FN582\]](#Document1zzFN_B582)]{.underline}. See Festinger &
Carlsmith, supra note 514.

[[\[FN583\]](#Document1zzFN_B583)]{.underline}. Other examples of this
phenomenon include disidentification and self-handicapping. See supra
Part III.C.2.b.i. We alter our behavior to protect either cherished
views of ourselves or our self-esteem; we try to trick ourselves in the
same way that we trick, or are tricked by, others.

[[\[FN584\]](#Document1zzFN_B584)]{.underline}. See Philip G. Zimbardo
et al., Communicator Effectiveness in Producing Public Conformity and
Private Attitude Change, 33 J. PERSONALITY 233 (1965).

[[\[FN585\]](#Document1zzFN_B585)]{.underline}. Id. at 237-41.

[[\[FN586\]](#Document1zzFN_B586)]{.underline}. Id.

[[\[FN587\]](#Document1zzFN_B587)]{.underline}. Id. at 241-54.

[[\[FN588\]](#Document1zzFN_B588)]{.underline}. Id.

[[\[FN589\]](#Document1zzFN_B589)]{.underline}. See id.

[[\[FN590\]](#Document1zzFN_B590)]{.underline}. See generally Steele,
supra note 86.

[[\[FN591\]](#Document1zzFN_B591)]{.underline}. Id. at 269.

[[\[FN592\]](#Document1zzFN_B592)]{.underline}. Daryl J. Bem,
Self-Perception Theory, in 6 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY
1, 2 (L. Berkowitz ed., 1972). For a discussion of the history of Bem\'s
theory and the challenge it posed to cognitive dissonance theory, see
KUNDA, supra note 6, at 217-20.

[[\[FN593\]](#Document1zzFN_B593)]{.underline}. Our claim is not that
our attitudes are always giving way in response to our behavior. In
fact, there are other ways to reduce dissonance, including changing our
behavior. See supra text accompanying notes 510-513 (summarizing
alternatives); see also Joel Cooper & Steven J. Scher, Actions and
Attitudes: The Role of Responsibility and Aversive Consequences in
Persuasion, in PERSUASION 95, 95-111 (Timothy C. Brock & Sharon Shavitt
eds., 1994) (explaining when attitude change is most likely to change in
response to dissonant behavior). Our point is that the one-way causal
relationship presumed by lay and legal-theoretic dispositionist models
is missing what social psychology has demonstrated about our interior
situations.

[[\[FN594\]](#Document1zzFN_B594)]{.underline}. See supra notes 510-548
and accompanying text (summarizing some of the ways that cognitive
dissonance is reduced and citing authorities).

[[\[FN595\]](#Document1zzFN_B595)]{.underline}. WILLIAM JAMES, THE
PRINCIPLES OF PSYCHOLOGY 453 (1890).

[[\[FN596\]](#Document1zzFN_B596)]{.underline}. It is worth noting that
economists do not often speak of, or have a place in their models for,
\"the will.\" Furthermore, they generally have no need for the concept,
inasmuch as they assume that behavior reflects preference-satisfying
choices and that those underlying preferences are exogenous and stable.
In that sense, economists embrace a form of determinism. Individuals
have no real choice but to act as their preferences dictate. We focus on
\"the will\" in this Article because it is important in lay conceptions
of the interior situation and many other influential conceptions of the
human animal in law and legal theory. (Furthermore, we suspect that most
legal economists do not conceive of themselves as determinists or their
theories as based on such a determinist conception.)

[[\[FN597\]](#Document1zzFN_B597)]{.underline}. WEGNER, supra note 84,
at 2.

[[\[FN598\]](#Document1zzFN_B598)]{.underline}. John A. Bargh & Tanya L.
Chartrand, The Unbearable Automaticity of Being, 54 AM. PSYCHOLOGIST
462, 462 (1999).

[[\[FN599\]](#Document1zzFN_B599)]{.underline}. WEGNER, supra note 84,
at 14.

[[\[FN600\]](#Document1zzFN_B600)]{.underline}. See supra text
accompanying notes 72-78.

[[\[FN601\]](#Document1zzFN_B601)]{.underline}. For an illuminating
summary, see Wendy Wood et al., Habits in Everyday Life: Thought,
Emotion, and Action, 83 J. PERSONALITY & SOC. PSYCHOL. 1281 (2002).

[[\[FN602\]](#Document1zzFN_B602)]{.underline}. See Roy F. Baumeister et
al., Ego Depletion: Is the Active Self a Limited Resource?, 74 J.
PERSONALITY & SOC. PSYCHOL. 1252 (1998); Mark Muraven et al.,
Self-Control as Limited Resource: Regulatory Depletion Patterns, 74 J.
PERSONALITY & SOC. PSYCHOL. 774 (1998).

[[\[FN603\]](#Document1zzFN_B603)]{.underline}. Bargh & Chartrand, supra
note 598, at 464.

[[\[FN604\]](#Document1zzFN_B604)]{.underline}. Id.

[[\[FN605\]](#Document1zzFN_B605)]{.underline}. See, e.g., Consumer
Reports, New studies define cell-phone hazards, at
http://www.consumerreports.org/main/content/display_report.jsp?FOLDER%3C%
3Efolder_id=334665&bmUID=1105999597136 (describing research on role of
cell phone use in accidents) (last visited Jan. 17, 2005).

[[\[FN606\]](#Document1zzFN_B606)]{.underline}. See Bargh & Chartrand,
supra note 598, at 465.

[[\[FN607\]](#Document1zzFN_B607)]{.underline}. See supra text
accompanying notes 401-415.

[[\[FN608\]](#Document1zzFN_B608)]{.underline}. See Bargh & Chartrand,
supra note 598, at 466 (describing and summarizing evidence of the
\"perception-behavior link\").

[[\[FN609\]](#Document1zzFN_B609)]{.underline}. Charles S. Carver et
al., Modeling: An Analysis in Terms of Category Accessibility, 19 J.
EXPERIMENTAL SOC. PSYCHOL. 403 (1983).

[[\[FN610\]](#Document1zzFN_B610)]{.underline}. John A. Bargh et al.,
Automaticity of Social Behavior: Direct Effects of Trait Construct and
Stereotype Activation on Action, 71 J. PERSONALITY & SOC. PSYCHOL. 230,
233 (1996).

[[\[FN611\]](#Document1zzFN_B611)]{.underline}. See id. at 235 fig.1. A
control group, which was primed with neither type of word, interrupted
thirty-eight percent of the time. See id.

[[\[FN612\]](#Document1zzFN_B612)]{.underline}. See Ap Dijksterhuis et
al., Of Men and Mackerels: Attention, Subjective Experience, and
Automatic Social Behavior, in THE MESSAGE WITHIN: THE ROLE OF SUBJECTIVE
EXPERIENCE IN SOCIAL COGNITION AND BEHAVIOR 37, 39 (Herbert Bless &
Joseph P. Forgas eds., 2000) (citing Bargh et al., supra note 610, at
236).

[[\[FN613\]](#Document1zzFN_B613)]{.underline}. See Tanya L. Chartrand &
John A. Bargh. The Chameleon Effect: The Perception-Behavior Link and
Social Interaction, 76 J. PERSONALITY & SOC. PSYCHOL. 893, 897-900
(1999).

[[\[FN614\]](#Document1zzFN_B614)]{.underline}. See Bargh & Chartrand,
supra note 598, at 468-73.

[[\[FN615\]](#Document1zzFN_B615)]{.underline}. Tanya L. Chartrand &
John A. Bargh, Nonconscious Motivations: Their Activation, Operation,
and Consequences, in SELF AND MOTIVATION: EMERGING PSYCHOLOGICAL
PERSPECTIVES 13 (Abraham Tesser et al. eds., 2002).

[[\[FN616\]](#Document1zzFN_B616)]{.underline}. Id. at 30.

[[\[FN617\]](#Document1zzFN_B617)]{.underline}. Id.

[[\[FN618\]](#Document1zzFN_B618)]{.underline}. Id.

[[\[FN619\]](#Document1zzFN_B619)]{.underline}. See Tanya L. Chartrand &
Clara M. Cheng, The Role of Nonconscious Goal Pursuit in Hope, 13
PSYCHOL. INQUIRY 290 (2002). This and related work also demonstrate how
nonconscious goals can affect not only our moods, but also the way we
perform and the judgments we make about others. See, e.g., Tanya L.
Chartrand & Valerie Jefferis, Consequences of Automatic Goal Pursuit and
the Case of Nonconscious Mimicry, in RESPONDING TO THE SOCIAL WORLD:
IMPLICIT AND EXPLICIT PROCESSES IN SOCIAL JUDGMENTS AND DECISIONS 290
(Joseph P. Forgas et al. eds., 2003).

[[\[FN620\]](#Document1zzFN_B620)]{.underline}. WEGNER, supra note 84,
at 40 (referring to original study by Henderson & Smyth (1948)).

[[\[FN621\]](#Document1zzFN_B621)]{.underline}. Id. at 50-52 (referring
to original study by Kornhuber & Deecke (1965)).

[[\[FN622\]](#Document1zzFN_B622)]{.underline}. B. Libet, The Neural
Time-Factor in Perception, Volition and Free Will, 97 REVUE DE
METAPHYSIQUE ET DE MORALE 255 (1992), quoted in WEGNER, supra note 84,
at 54. As often occurs in social science, the significance and
implications of this line of research are not without controversy. Our
treatment here is based largely on Wegner\'s analysis, which is, in our
view, as balanced and reliable account in this developing field as is
presently available for use in legal theory.

[[\[FN623\]](#Document1zzFN_B623)]{.underline}. See WEGNER, supra note
84, at 47 (citing Joaquim P. Brasil-Neto et al., Focal Transcranial
Magnetic Stimulation and Response Bias in a Forced-Choice Task, 55 J.
NEUROLOGY, NEUROSURGERY & PSYCHIATRY 964 (1992)). Apparently this one
slipped by the human subjects committee.

[[\[FN624\]](#Document1zzFN_B624)]{.underline}. WEGNER, supra note 84,
at 48.

[[\[FN625\]](#Document1zzFN_B625)]{.underline}. Id.

[[\[FN626\]](#Document1zzFN_B626)]{.underline}. Id. at 14.

[[\[FN627\]](#Document1zzFN_B627)]{.underline}. See id. at 15. Wegner
writes:

In psychology, clear indications of the empirical will can be found
whenever causal relationships are observed between people\'s thoughts,
beliefs, intentions, plans, or other conscious psychological states and
their subsequent actions. The feeling of consciously willing our
actions, in contrast, is not a direct readout of such scientifically
verifiable will power.

Id. (emphasis added); see also id. at 327 (observing that there often is
a correlation between our felt experience of will and scientifically
verifiable empirical will power).

[[\[FN628\]](#Document1zzFN_B628)]{.underline}. Id. at 96.

[[\[FN629\]](#Document1zzFN_B629)]{.underline}. Cf. id. at 66
(\"Although day always precedes night, for example, it is a mistake to
say that day causes night, because of course both are caused in this
sequence by the rotation of the earth in the presence of the sun.\"). We
perceive ourselves consciously thinking and willing our actions, and
wrongly believe that we perceive all there is. In part, we perceive our
conscious will because any time we look for it, we find it. The problem
is that when we are not looking for it, it is rarely there. See
generally Bargh & Chartrand, supra note 598 (finding that much of human
behavior is nonconscious and situational). It is as though we conclude
from the fact that every time we look into the mirror we see ourselves
looking back, that our reflection is always in that mirror, looking out.
It is not, but when we look, it is\--and, so, what we see when we look
gives us a false sense of what is happening when we are not looking.

[[\[FN630\]](#Document1zzFN_B630)]{.underline}. WEGNER, supra note 84,
at 47; see also id. at 64 (\"The theory of apparent mental causation,
then, is this: People experience conscious will when they interpret
their own thought as the cause of their action. This means that people
experience conscious will quite independently of any actual causal
connection between their thoughts and their actions.\").

[[\[FN631\]](#Document1zzFN_B631)]{.underline}. Ap Dijksterhuis et al.,
Unconscious Priming of Conscious Will (2001) (unpublished manuscript, on
file with authors).

[[\[FN632\]](#Document1zzFN_B632)]{.underline}. See WEGNER, supra note
84, at 209. For a related discussion of how sellers attempt to attribute
consumer behavior to the free exercise of consumers\' wills, informed by
stable preferences, see Hanson, Yosifon, & Benforado, Broken Scales,
supra note 54.

[[\[FN633\]](#Document1zzFN_B633)]{.underline}. See WEGNER, supra note
84, at 28 (\"The mind has a self-explanation mechanism that produces a
roughly continuous sense that what is in consciousness is the cause of
action\--the phenomenal will\--whereas in fact the mind can\'t ever know
itself well enough to be able to say what the causes of its actions
are.\").

[[\[FN634\]](#Document1zzFN_B634)]{.underline}. Id. at 98. Wegner adds:

We must remember that this analysis suggests that the real causal
mechanisms underlying behavior are never present in consciousness.
Rather, the engines of causation operate without revealing themselves to
us and so may be unconscious mechanisms of mind. Much of the recent
research suggesting a fundamental role for automatic processes in
everyday behavior \... can be understood in this light. The real causes
of human action are unconscious, so it is not surprising that behavior
could often arise\--as in automaticity experiments\--without the
person\'s having conscious insight into its causation. Conscious will
itself arises from a set of processes that are not the same processes as
those that cause the behavior to which the experience of will pertains,
however.

[[\[FN635\]](#Document1zzFN_B635)]{.underline}. This Part offers a few
positive predictions about the contours of the law and legal theory.
Beyond what we can describe here, there is much to learn about the legal
institutions (indeed all institutions) when one begins with a more
realistic conception of the human animal. And, for now, we are concerned
in this project primarily with pursuing such positive questions about
why the huamn animal and its institutions behave as they do.

When we have presented this paper in various settings, our most
vociferous and incredulous questioners have tended to disregard the
positive implications of our work and to press on us the possible
normative questions raised by critical realist situationism. Oftentimes
(though certainly not always), those individuals seemt to suggest that,
absent a clear normative description of what goal the law should serve
and how the law should be reformed to better serve that goal, we have
said little of interest to legal theorists.

Needless to say, we disagree. Some conception of the human animal\--be
it explicit or implicit, realistic or farcical\--forms the foundation of
all legal theories\--positive or normative. Positive theories are
important for understanding, predicting, and influencing the law and
legal institutions. And a positive theory, particularly one that is
committed to a realistic account of the human animal, can be significant
for both assessing existing normative and prescriptive theories and for
developing or shaping such theories. Put differently, we believe that
the sort of evidence that we are reviewing, and the positivist arguments
we are making in this Article and elsewhere, have immense normative
implications. And we look forward to exploring these implications in the
future. In the meantime, we believe that, in light of the evidence, the
burden is not on us to develop a new situationist-based normative
theory, but on those who embrace some form of dispositionism to justify
their normative theories or to join in the effort of trying to
understand the normative implications of situationism.

[[\[FN636\]](#Document1zzFN_B636)]{.underline}. Id. at 97. In related
work, we hope to elaborate these and other implications. See, e.g., Chen
& Hanson, Categorically Biased, supra note 136; Chen & Hanson, The
Illusion of Law, supra note 32; Hanson & Kysar, Taking Behavioralism
Seriously II, supra note 132; Hanson & Yosifon, The Situation, supra
note 5. Other scholars have also made important strides in considering
the implications of social psychology (and related fields) for law,
legal theory, and legal institutions. See, e.g., Ross & Shestowsky,
supra note 56.

[[\[FN637\]](#Document1zzFN_B637)]{.underline}. See FISKE, supra note
233, at 460-63 (describing the perceived \"entativity\" of groups).

[[\[FN638\]](#Document1zzFN_B638)]{.underline}. See Wendy Wood, Attitude
Change: Persuasion and Social Influence, 51 ANN. REV. PSYCHOL. 539
(2000) (summarizing much of the recent evidence on individual and group
decision-making\--private and public).

[[\[FN639\]](#Document1zzFN_B639)]{.underline}. See generally Chen &
Hanson, Categorically Biased, supra note 136, at 1239-52 (offering a set
of predictions about the role of knowledge structures on legal theories
and law); Chen & Hanson, The Illusion of Law, supra note 33 (providing
evidence consistent with those predictions with regard to the
now-dominant general schemas of policymaking and corporate law).

[[\[FN640\]](#Document1zzFN_B640)]{.underline}. See generally Phoebe
Ellsworth, Legal Reasoning, in THE CAMBRIDGE HANDBOOK OF THINKING AND
REASONING (forthcoming 2005) (on file with authors).

[[\[FN641\]](#Document1zzFN_B641)]{.underline}. See generally Chen &
Hanson, The Illusion of Law, supra note 32.

[[\[FN642\]](#Document1zzFN_B642)]{.underline}. See generally Hanson,
Reyes & Schlanger, Attributional Positivism, supra note 43.

[[\[FN643\]](#Document1zzFN_B643)]{.underline}. See id.

[[\[FN644\]](#Document1zzFN_B644)]{.underline}. See generally Benforado,
Hanson & Yosifon, Broken Scales, supra note 54. This helps explain the
attraction of Langdellian positivism in early academic theories and the
fact that, to this day, jurists continue to claim to be simply applying
the law. See Ellsworth, supra note 640.

[[\[FN645\]](#Document1zzFN_B645)]{.underline}. See supra text
accompanying notes 35-63.

[[\[FN646\]](#Document1zzFN_B646)]{.underline}. See supra Part
III.C.2.b.iii (summarizing evidence of people\'s tendency to derogate
victims in order to perserve their perception of a \"just world\").

[[\[FN647\]](#Document1zzFN_B647)]{.underline}. That prediction is
connected to the illusion of control (and associated motive for
control). Numerous experiments testing \"reactance theory\" have
demonstrated that people (particularly in this culture, we suspect) do
not like to be told what they can or cannot do. Broadly speaking, when
individuals perceive an unfair restriction of their conduct, they often
experience a strong motivational state (\"reactance\") to remove the
perceived restriction or reject it. For thorough discussions of
reactance theory and evidence supporting it, see JACK W. BREHM, A THEORY
OF PSYCHOLOGICAL REACTANCE (1966) and SHARON BREHM & JACK W. BREHM,
PSYCHOLOGICAL REACTANCE: A THEORY OF FREEDOM AND CONTROL (1981).

[[\[FN648\]](#Document1zzFN_B648)]{.underline}. See supra notes 472-503
and accompanying text.

[[\[FN649\]](#Document1zzFN_B649)]{.underline}. See, e.g., Chen &
Hanson, The Illusion of Law, supra note 32; Hanson & Yosifon, The
Situation, supra note 5.

[[\[FN650\]](#Document1zzFN_B650)]{.underline}. See Hanson & Yosifon.
The Situation, supra note 5, at 230-84.

[[\[FN651\]](#Document1zzFN_B651)]{.underline}. See generally Chen &
Hanson, The Illusion of Law, supra note 32.

[[\[FN652\]](#Document1zzFN_B652)]{.underline}. See supra text
accompanying notes 472-503 (discussing the role of dispositionism in
system affirmation).

[[\[FN653\]](#Document1zzFN_B653)]{.underline}. See Hanson & Kysar, The
Failure, supra note 132 (describing the failure of existing laws to
recognize and counteract the market manipulation techniques of the
tobacco industry); Hanson, Yosifron, & Benforado, Broken Scales, supra
note 54 (same with respect to situational sources of obesity epidemic).

[[\[FN654\]](#Document1zzFN_B654)]{.underline}. See supra text
accompanying notes 15-62.

[[\[FN655\]](#Document1zzFN_B655)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 5, at 157-66; Chen & Hanson, The Illusion of
Law, supra note 32.

[[\[FN656\]](#Document1zzFN_B656)]{.underline}. For a description of
both, see Hanson & Yosifon, The Situation, supra note 5; Jon Hanson &
Melissa Hart, Law and Economics, in BLACKWELL\'S COMPANION TO PHILOSOPHY
OF LAW AND LEGAL THEORY 311-31 (Dennis Patterson ed., 1996).

[[\[FN657\]](#Document1zzFN_B657)]{.underline}. Dominant dispositionist
theories thus are most valuable to the very groups who have the greatest
ability to promote such theories through situational influence.

[[\[FN658\]](#Document1zzFN_B658)]{.underline}. GEORGE J. STIGLER,
MEMOIRS OF AN UNREGULATED ECONOMIST 8 (1988).

[[\[FN659\]](#Document1zzFN_B659)]{.underline}. We view law and
economics as a subgenre of neoclassical economics.

[[\[FN660\]](#Document1zzFN_B660)]{.underline}. Hanson & Yosifon, The
Situation, supra note 5.

[[\[FN661\]](#Document1zzFN_B661)]{.underline}. See infra Part V.C.

[[\[FN662\]](#Document1zzFN_B662)]{.underline}. JOHN KENNETH GALBRAITH,
THE AFFLUENT SOCIETY 2-3 (1958).

[[\[FN663\]](#Document1zzFN_B663)]{.underline}. COOTER & ULEN, supra
note 19, at 17; see also id. at 17 n.3 (\"\[W\]e hold to the view that
economics per se is about how \[the\] alteration \[of consumer tastes\]
takes place.\"); Martha Nussbaum, [[Flawed Foundations: The
Philosophical Critique of (a Particular Type of) Economics, 64 U. CHI.
L. REV. 1197, 1197-98
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0108527884&ReferencePosition=1197)]{.underline}
(\"Law and Economics has been built on a particular set of conceptual
foundations. These involve at least the following ideas: that rational
agents are self-interested maximizers of utility; that utility can best
be understood (for explanatory/predictive purposes) as a single item
varying only in quantity; that utility is best analyzed in terms of the
satisfaction of preferences; that preferences are exogenous, i.e., not
significantly shaped by laws and institutions; and that the ends adopted
by an agent cannot themselves be the subject of rational deliberation,
although agents may deliberate about instrumental means to ends.\").

[[\[FN664\]](#Document1zzFN_B664)]{.underline}. DAVID M. KREPS, A COURSE
IN MICROECONOMIC THEORY 25 (1990).

[[\[FN665\]](#Document1zzFN_B665)]{.underline}. Id. at 41-45.

[[\[FN666\]](#Document1zzFN_B666)]{.underline}. Amartya K. Sen,
Behaviour and the Concept of Preference, 40 ECONOMICA 241, 241 (1973);
see also id. at 242 (explaining that the revealed preference approach is
not limited to market choices \"and indeed \... has been used in
studying preferences revealed by non-market behaviour such as government
decisions, choices of public bodies and political acts like voting\").

[[\[FN667\]](#Document1zzFN_B667)]{.underline}. Paul A. Samuelson, A
Note on the Pure Theory of Consumer\'s Behaviour, 5 ECONOMICA 61 (1938);
see also Paul A. Samuelson, A Note on the Pure Theory of Consumer\'s
Behaviour: An Addendum, 5 ECONOMICA 353 (1938).

[[\[FN668\]](#Document1zzFN_B668)]{.underline}. PAUL A. SAMUELSON,
FOUNDATIONS OF ECONOMIC ANALYSIS 90-113 (1947); see also KREPS, supra
note 664, at 27, 29-30; EDWIN MANSFIELD, ECONOMICS 71-72 (7th ed. 1992);
Sen, supra note 666, at 241 (\"From the point of view of introspection
of the person in question, the process runs from his preference to his
choice, but from the point of view of the scientific observer the arrow
runs in the opposite direction: choices are observed first and
preferences are then presumed from these observations.\").

[[\[FN669\]](#Document1zzFN_B669)]{.underline}. Bruno S. Frey & Alois
Stutzer, What Can Economists Learn from Happiness Research?, 40 J. ECON.
LITERATURE 402, 404 (2002).

[[\[FN670\]](#Document1zzFN_B670)]{.underline}. See, e.g., J.R. HICKS,
REVISION OF DEMAND THEORY 6 (1956) (\"The economic theory of demand does
study human beings, but only as entities having certain patterns of
market behaviour; it makes no claim, no pretence, to be able to see
inside their heads.\"); I.M.D. Little, A Reformulation of the Theory of
Consumer\'s Behaviour, 1 OXFORD ECON. PAPERS 90, 97 (1949) (\"\[T\]he
new formulation is scientifically more respectable \[because\] \[i\]f an
individual\'s behaviour is consistent, then it must be possible to
explain that behaviour without reference to anything other than
behaviour.\").

[[\[FN671\]](#Document1zzFN_B671)]{.underline}. Amartya K. Sen, The
Standard of Living, in 7 TANNER LECTURES ON HUMAN VALUES 18 (1986).

[[\[FN672\]](#Document1zzFN_B672)]{.underline}. Sen is particularly
sensitive to what we would call situational considerations. Very
loosely, Sen argues that, in addition to a person\'s choices,
policymakers should be concerned with a person\'s situation, or range of
alternatives or \"capabilities.\" See generally AMARTYA SEN, DEVELOPMENT
AS FREEDOM (2000); AMARTYA SEN, COMMODITIES AND CAPABILITIES (1985).

[[\[FN673\]](#Document1zzFN_B673)]{.underline}. Sen, supra note 666, at
243-44 (citation omitted) (emphasis added); see also id. at 254
(indicating that the dominant theory \"makes the analysis simpler\").

[[\[FN674\]](#Document1zzFN_B674)]{.underline}. Again, Sen himself
believes that there is more to the situation than most economists assume
or their theories allow. For instance, in one article, Sen offered the
following speculation:

I would argue that the philosophy of the revealed preference approach
essentially underestimates the fact that man is a social animal and his
choices are not rigidly bound to his own preferences only. I do not find
it difficult to believe that birds and bees and dogs and cats do reveal
their preferences by their choice; it is with human beings that the
proposition is not particularly persuasive. An act of choice for this
social animal is, in a fundamental sense, always a social act. He may be
only dimly aware of the immense problems of interdependence that
characterize a society, of which the problem under discussion is only
one. But his behaviour is something more than a mere translation of his
personal preferences.

Id. at 252-53.

Professor Jerry Green, in his graduate-level introduction to
microeconomics at Harvard University, makes a similar admission. He
notes that, in attempting to infer people\'s preferences, economists
tend to concentrate on \"operationaliz \[ing\] a quantitative
description of their observed actions,\" despite the fact that questions
about the \"context in which we think the people are operating\" are
just as important. Jerry R. Green, Lecture Notes: Lecture 1, Economics
2010a (Fall 2002) (unpublished manuscript, on file with authors).

[[\[FN675\]](#Document1zzFN_B675)]{.underline}. See Sen, supra note 666,
at 244 (\"\'\[A\] person is, on the whole, likely to be happier the more
he is able to have what he would choose.\"\') (quoting Little, supra
note 670, at 98); Sen, supra note 666, at 254 (discussing the \"rigid
correspondence between choice, preference and welfare assumed in
traditional economic theory\").

[[\[FN676\]](#Document1zzFN_B676)]{.underline}. MILTON FRIEDMAN, BRIGHT
PROMISES, DISMAL PERFORMANCE 89 (1983) (emphasis added).

[[\[FN677\]](#Document1zzFN_B677)]{.underline}. See, e.g., Hanson &
Yosifon, The Situation, supra note 5, at 157-165 (discussing the extent
of economists\' dispositionism).

[[\[FN678\]](#Document1zzFN_B678)]{.underline}. See generally FRANK H.
EASTERBROOK & DANIEL R. FISCHEL, THE ECONOMIC STRUCTURE OF CORPORATE LAW
(1991).

[[\[FN679\]](#Document1zzFN_B679)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 5, at 190-91 (discussing \"the totalitarian
bogeyman\").

[[\[FN680\]](#Document1zzFN_B680)]{.underline}. See supra text
accompanying notes 472-503 (describing motive to affirm system through
dispositionalizing stereotypes).

[[\[FN681\]](#Document1zzFN_B681)]{.underline}. FRIEDMAN, supra note
660, at 89.

[[\[FN682\]](#Document1zzFN_B682)]{.underline}. See supra text
accompanying notes 15-23 (describing legal economists\' failure to
account for situation).

[[\[FN683\]](#Document1zzFN_B683)]{.underline}. See supra text
accompanying notes 24-63.

[[\[FN684\]](#Document1zzFN_B684)]{.underline}. See supra text
accompanying notes 79-102.

[[\[FN685\]](#Document1zzFN_B685)]{.underline}. Fiske et al., supra note
84, at 920.

[[\[FN686\]](#Document1zzFN_B686)]{.underline}. See supra text
accompanying note 548 (explaining that economists, like most
non-economists in this culture, typically assume that individuals pursue
narrow material ends in self-interested ways).

[[\[FN687\]](#Document1zzFN_B687)]{.underline}. See, e.g., Chen &
Hanson, The Illusion of Law, supra note 32; Hanson & Yosifon, The
Situation, supra note 5, at 230-84.

[[\[FN688\]](#Document1zzFN_B688)]{.underline}. Johnson-Laird & Shafir,
supra note 88, at 6.

[[\[FN689\]](#Document1zzFN_B689)]{.underline}. He calls them the
\"basic categories: Actors, behavior, institutions, and equilibrium.\"
KREPS, supra note 664, at 4.

[[\[FN690\]](#Document1zzFN_B690)]{.underline}. Kreps\'s description of
and justifications for the basic economic approach are fairly
conventional\--and, unsurprisingly, they resemble the descriptions and
justifications provided by legal economists for their approach. See
supra text accompanying note 664.

[[\[FN691\]](#Document1zzFN_B691)]{.underline}. KREPS, supra note 664,
at 4.

[[\[FN692\]](#Document1zzFN_B692)]{.underline}. The only allowance made
for the role of situation is in recognizing the exogenous (that is,
outside the model and unexamined) constraints of limited budget and
limited set of available options.

[[\[FN693\]](#Document1zzFN_B693)]{.underline}. See supra text
accompanying note 664.

[[\[FN694\]](#Document1zzFN_B694)]{.underline}. KREPS, supra note 664,
at 4.

[[\[FN695\]](#Document1zzFN_B695)]{.underline}. Kreps is not any more
specific in describing the common criticism of the economist\'s model.
Perhaps he believes, as seems plausible, that people find obnoxious only
the hyper-rational actors assumed in economics (those who are assumed to
\"stroll down the aisles of grocery stores of supermarkets consulting a
utility function\"), but not the less extreme versions of economists\'
key assumptions that people act by choosing among options based on
preferences. See id.

[[\[FN696\]](#Document1zzFN_B696)]{.underline}. Id.

[[\[FN697\]](#Document1zzFN_B697)]{.underline}. Id. at 4-5.

[[\[FN698\]](#Document1zzFN_B698)]{.underline}. See id. at 5 (concluding
that \"the ultimate test of \[a positive economic\] theory is its
ability to predict real-world events\").

[[\[FN699\]](#Document1zzFN_B699)]{.underline}. See MILTON FRIEDMAN,
ESSAYS IN POSITIVE ECONOMICS passim (1953).

[[\[FN700\]](#Document1zzFN_B700)]{.underline}. Cf. Sen, supra note 666,
at 254 (\"People\'s behaviour may still correspond to some consistent as
if preference but a numerical representation of the as if preference
cannot be interpreted as individual welfare. In particular, basing
normative criteria \... on these as if preferences poses immense
difficulties.\").

[[\[FN701\]](#Document1zzFN_B701)]{.underline}. KREPS, supra note 664,
at 5.

[[\[FN702\]](#Document1zzFN_B702)]{.underline}. See generally infra Part
III.B.1.

[[\[FN703\]](#Document1zzFN_B703)]{.underline}. KREPS, supra note 664,
at 4.

[[\[FN704\]](#Document1zzFN_B704)]{.underline}. See Gary S. Becker,
Irrational Behavior and Economic Theory, 70 J. POL. ECON. 1, 1-2 (1962).

[[\[FN705\]](#Document1zzFN_B705)]{.underline}. Robert Cooter and Thomas
Ulen are similarly nonplussed by the disjunction between conventional
economic assumptions and realistic criticisms of those assumptions. See
COOTER & ULEN, supra note 20, at 12 (\"While these criticisms sometimes
have merit, the fact remains that the three basic economic concepts\[,
maximization, equilibrium, and efficiency,\] have wide application to
law.\").

[[\[FN706\]](#Document1zzFN_B706)]{.underline}. See Samuel Issacharoff,
[[Can There Be a Behavioral Law and Economics?, 51 VAND. L. REV. 1729,
1730
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1277&FindType=Y&ReferencePositionType=S&SerialNum=0110399532&ReferencePosition=1730)]{.underline}
(stating that \"virtually all law and economics scholarship exists at
the theoretical plane, turning on formal models rather than observed
behavior\").

[[\[FN707\]](#Document1zzFN_B707)]{.underline}. See supra text
accompanying note 694.

[[\[FN708\]](#Document1zzFN_B708)]{.underline}. For instance, in his
recent Nobel Prize lecture. Joseph Stiglitz recounted how the standard
defenses of the perfect-information assumption of neoclassical economics
failed to withstand frontal challenges:

For more than 100 years, formal modeling in economics had focused on
models in which information was assumed to be perfect. Of course,
everyone recognized that information was in fact imperfect, but the
hope, following Marshall\'s dictum \"Natura non facit saltum,\" was that
economies in which information was not too imperfect would look very
much like economics in which information was perfect.

Stiglitz, supra note 365, at 461. \"The standard proofs of \[several\]
fundamental theorems of welfare economics did not even list in their
enumerated assumptions those concerning information: the perfect
information assumption was so ingrained it did not have to be explicitly
stated\.... \[The market failures that were taken seriously\] were
highly circumscribed by assumption.\" Id. at 466. As it turned out,
however, \"\[o\]ne of the main results of \[Stiglitz\'s\] research was
to show that this was not true; that even a small amount of information
imperfection could have a profound effect on the nature of the
equilibrium.\" Id. at 461; see also id. at 463 (\"\[E\]ven slight
departures from the underlying assumption of perfect information had
large consequences.\"). Stiglitz goes on to suggest what might have
motivated this long-term unwillingness to embrace the realism of
imperfect information, suggestions that resonate with our more general
realist critique:

The creators of the neoclassical model, the reigning economic paradigm
of the twentieth century, ignored the warnings of nineteenth-century and
still earlier masters about how information concerns might alter their
analyses\-- perhaps because they could not see how to embrace them in
their seemingly precise models, perhaps because doing so would have led
to uncomfortable conclusions about the efficiency of markets.

Id. at 461. The appearance of precision, the motive to reach certain
conclusions, we believe, has implications far beyond merely, the
question of whether economists take into account the reality that
information is rarely perfect.

[[\[FN709\]](#Document1zzFN_B709)]{.underline}. KREPS, supra note 664,
at 5.

[[\[FN710\]](#Document1zzFN_B710)]{.underline}. See generally Hanson &
Kysar, Taking Behavioralism Seriously I, supra note 126 (reviewing the
economic behavioralism literature, which demonstrates systematic biases
of human decisionmaking); see also Robert A. Prentice, [[Chicago Man,
K-T Man, and the Future of Behavioral Law and Economics, 56 VAND. L.
REV. 1663, 166-67
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1277&FindType=Y&SerialNum=0297929824)]{.underline}
(\"A \'mountain of experiments\' performed in psychology and related
disciplines, much of it in the \'heuristics and biases\' tradition
founded by psychologists Daniel Kahneman andn Amos Tverksy, demonstrate
that people tend to deviate systematically from rational norms when they
make decisions.\").

[[\[FN711\]](#Document1zzFN_B711)]{.underline}. See Hanson and Yosifron,
The Situation, supra note 5, at 198- 202 (describing how the
dispositional, profit-maximization assumption about firms is premised
ultimately on situational market forces).

[[\[FN712\]](#Document1zzFN_B712)]{.underline}. That leaves the third
and \"most subtle\" \"line of defense,\" which, roughly, is that
economists are able to control the unrealism of economic models:

Even if we know that there are systematic violations of our models by
individuals, violations that do not cancel out, we can still gain
insight into questions of interest by studying models where we assume
away those violations. This line of defense is delicate because it
requires the theorist to have a deep understanding of which assumptions
drive the conclusions that are generated by the theory \....

KREPS, supra note 664, at 5. The point is indeed subtle, and we are not
sure we understand it. But Kreps seems to be suggesting that economists
can and do, in conducting their efficiency analyses, ignore their
models\' biases, no matter how major and systematic they may be, and
then adjust the conclusions appropriately in light of what the
economists know about the sources and sizes of those biases. That third
defense requires its own leap of faith\-- specifically, that economists
generating conclusions can and do make such \"delicate\" adjustments. If
ours is an accurate interpretation of Kreps\'s point, we can see no
reason or evidence to support making such a leap.

[[\[FN713\]](#Document1zzFN_B713)]{.underline}. Id. at 7.

[[\[FN714\]](#Document1zzFN_B714)]{.underline}. Id. at 7. Kreps also
mentions the purposes of satisfying intellectual curiosity and giving
market participants a better way of making \"markets work better for
themselves.\" Id.

[[\[FN715\]](#Document1zzFN_B715)]{.underline}. See, e.g., COOTER &
ULEN, supra note 19, at 3-4 (describing the use of economics on positive
grounds, \"a scientific theory of behavior,\" and on prescriptive
grounds, \"a useful normative standard for evaluating law and policy\").

[[\[FN716\]](#Document1zzFN_B716)]{.underline}. As we have already
explained, however, the fact that behavior may comport with the
dispositional theory does not imply that the behavior is not in fact a
consequence of situational constraints. See generally Hanson & Yosifon,
The Situation, supra note 5.

[[\[FN717\]](#Document1zzFN_B717)]{.underline}. See Chen & Hanson, The
Illusion of Law, supra note 32, passim; Hanson & Yosifon, The Situation,
supra note 5, at 230-336; supra Part I.

[[\[FN718\]](#Document1zzFN_B718)]{.underline}. KREPS, supra note 664,
at 7. Kreps adds, by way of example:

Imagine that you are trying to explain a particular phenomenon with one
of two competing theories. Neither fits the data perfectly, but the
first does a somewhat better job according to standard statistical
measures. At the same time, the first theory is built on some hypotheses
about behavior by individuals that are entirely ad hoc, whereas the
second is based on a model of behavior that appeals to your intuition
about how people act in this sort of situation. I assert that trying to
decide which model does a better job of \"explaining\" is not simply a
matter of looking at which fits better statistically. The second model
should gain credence because of its greater face validity, which brings
to bear, in an informal sense, other data.

Id. at 8.

[[\[FN719\]](#Document1zzFN_B719)]{.underline}. See supra text
accompanying notes 694.

[[\[FN720\]](#Document1zzFN_B720)]{.underline}. Robert Crowder, The
Brain, the Kidney, and the Consciousness (unpublished manuscript, c.
1990), in Banaji, Implicit Attitudes, supra note 105, at 130. We would
go further than Crowder\--for unlike our kidneys, our mind may be
sending us misleading signals and may itself be subject to distorting
motivations and manipulations.

[[\[FN721\]](#Document1zzFN_B721)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 5; Benforado, Hanson & Yosifon, Broken Scales,
supra note 54.

[[\[FN722\]](#Document1zzFN_B722)]{.underline}. GALBRAITH, supra note
662, at 2-3.

[[\[FN723\]](#Document1zzFN_B723)]{.underline}. See, e.g., W. KIP
VISCUSI, SMOKE AND MIRRORS: MAKING THE RISKY DECISION (1992); see also
Hanson & Kysar, Taking Behavioralism Seriously II, supra note 132, at
1548-51. The criticism is actually an old one, but only recently has it
built up enough weight and legitimacy to get much attention from the
legal economists themselves.

[[\[FN724\]](#Document1zzFN_B724)]{.underline}. RICHARD A. POSNER,
OVERCOMING LAW 16 (1995).

[[\[FN725\]](#Document1zzFN_B725)]{.underline}. See, e.g., RICHARD A.
POSNER, ECONOMIC ANALYSIS OF LAW 16 (3d ed. 1986) (\"\[R\]ationality may
be a reductionist notion, but reductionism is inherent in scientific
inquiry.\"); POSNER, supra note 18, at 17-18 (\"The reader who lacks
previous acquaintance with economics may be troubled by what appear to
be severely unrealistic assumptions that underlie economic theory\....
But abstraction is of the essence of scientific inquiry, and economics
aspires to be scientific.\"). See generally Posner, supra note 4
(responding to Jolls, Sunstein & Thaler, supra note 64).

[[\[FN726\]](#Document1zzFN_B726)]{.underline}. See, e.g., RICHARD A.
POSNER, THE ECONOMICS OF JUSTICE (1981) (explicating Posner\'s theory
that the goal of \"wealth maximization\" best explains the development
of the common law).

[[\[FN727\]](#Document1zzFN_B727)]{.underline}. See generally RICHARD A.
POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 107-44 (1999).

[[\[FN728\]](#Document1zzFN_B728)]{.underline}. See POSNER, supra note
18, passim.

[[\[FN729\]](#Document1zzFN_B729)]{.underline}. Richard A. Posner,
Theories of Economic Regulation, 5 BELL J. ECON. & MGMT. SCI. 335, 343
(1974).

[[\[FN730\]](#Document1zzFN_B730)]{.underline}. See, e.g., supra text
accompanying notes 690-97 (quoting economist David Kreps\'s admissions
regarding the unrealistic nature of conventional economic analysis).

[[\[FN731\]](#Document1zzFN_B731)]{.underline}. A \"real\" account of
law and economics, taken generally, would never claim that the field
existed simply to \"construct and test models of human behavior for the
purpose of predicting \... that behavior.\" See supra text accompanying
note 724. There are, as we have seen, social sciences devoted to that
purpose\--though Posner and other legal economists have routinely
disregarded or disparaged them. See supra text accompanying note 587. In
any event, law and economics has not been such a field.

[[\[FN732\]](#Document1zzFN_B732)]{.underline}. See W. Bradley Wendel,
Mixed Signals: Rational-Choice Theories of Social Norms and the
Pragmatics of Explanation, 77 IND. L.J. 13 (2002) (\"The economic mode
of analysis has an almost pathological aversion to explanations that
appeal to values, commitments, loyalties, relationships, or
emotions.\").

[[\[FN733\]](#Document1zzFN_B733)]{.underline}. See DONALD P. GREEN &
IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF
APPLICATIONS IN POLITICAL SCIENCE 18 (1994); Gregory S. Crespi, Does the
Chicago School Need to Expand its Curriculum?, 22 L. & SOC. INQUIRY 149,
150-51 (1997). See generally A. MITCHELL POLINSKY. AN INTRODUCTION TO
LAW AND ECONOMICS 10 (2d ed. 1989).

[[\[FN734\]](#Document1zzFN_B734)]{.underline}. As Gary Becker
highlighted in his Nobel lecture, rationality \"assumes that individuals
maximize welfare as they conceive it, whether they be selfish,
altruistic, loyal, spiteful, or masochistic.\" GARY BECKER, ACCOUNTING
FOR TASTES 139 (1996). Becker is not alone among Nobel Laureates to
emphasize the point. See, e.g., KENNETH ARROW, THE LIMITS OF
ORGANIZATION 17 (1974) ( \"Rationality, after all, has to do with means
and ends and their relation. It does not specify what the ends are.\").
Moreover, \"\[t\] here is no general principle that prevents the
creation of an economic theory based on other hypotheses than that of
rationality\.... \[A\]ny coherent theory of reactions to the stimuli
appropriate in an economic context \... could in principle lead to a
theory of the economy.\" Jolls, Sunstein & Thaler, supra note 64, at
1478 n. 13 (citing Kenneth J. Arrow, Rationality of Self and Others in
an Economic System, in RATIONAL CHOICE: THE CONTRAST BETWEEN ECONOMICS
AND PSYCHOLOGY 201, 202 (Robin M. Hogarth & Melvin W. Reder eds.,
1987)).

[[\[FN735\]](#Document1zzFN_B735)]{.underline}. Moreover, it risks
sacrificing one of the core values of legal economists\--namely that
their theories be falsifiable, and thus amenable to social scientific
methodologies. See Hanson, Reyes, & Schlanger, supra note 43.

[[\[FN736\]](#Document1zzFN_B736)]{.underline}. \"Altruism\" is a
popular concept for economists to turn to when their rational maximizing
model is challenged. We suspect that \"altruism\" is so frequently
raised because it appears to be on the opposite end of the relevant
spectrum from \"self-interest,\" suggesting that economists are entirely
open-minded about possible \"rational\" motivations. For a couple of
reasons, however, that appearance is, particularly as economists define
\"altruism,\" an illusion. Altruism is typically treated as motivated
ultimately by some form of self-interest. Thus, the underlying motive
never changes, just its manifestation. See Lynn A. Stout, [[Judges As
Altruistic Hierarchs, 43 WM. & MARY L. REV. 1605, 1610
n.17](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=2984&FindType=Y&ReferencePositionType=S&SerialNum=0288699295&ReferencePosition=1610)]{.underline}
(\"It is something of a standard move for rational choice theorists to
suggest that if people behave altruistically this must mean that they
get pleasure (utility) from helping others, so altruism remains
consistent with self-interest. This move has a tautological flavor: it
presumes that people are selfish and so anything they do, they must do
to make themselves better off.\"); see, e.g., Posner, supra note 4, at
1557 (\"All that is required to understand altruism as a form of
rational self-interest is the assumption of interdependent
utilities.\"). The beauty of \"altruism\" as an acceptable, rational
motive is that it renders explicable behavior that otherwise seems to
contradict narrower models of rational action. Altruism, thus
understood, is an escape hatch for hard-core rationalists. But it also
raises significant questions about the falsifiability of those models,
suggesting that the hard-core rationalists are not hard-core social
scientists. See Jolls, Sunstein, & Thaler, supra note 64, at 1488-89;
cf. Amartya K. Sen, Rational Fools: A Critique of the Behavioral
Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317, 326-44 (1977).
A second problem with the altruism out is that it maintains the focus on
dispositions, a point to which we\'ll return.

[[\[FN737\]](#Document1zzFN_B737)]{.underline}. See, e.g., Richard A.
Posner, The Economic Approach to Law, 53 TEX. L. REV. 757, 761 (1974)
(\"The basis of an economic approach to law is the assumption that the
people involved with the legal system act as rational maximizers of
their satisfactions.\"); Richard A. Posner, Values and Consequences: An
Introduction to Economic Analysis of Law, in CHICAGO LECTURES IN LAW AND
ECONOMICS 189, 191 (Eric A. Posner ed., 2000) (\"Most economic analysis
consists of tracing out the consequences of assuming that people are
more or less rational in their social interactions.\").

[[\[FN738\]](#Document1zzFN_B738)]{.underline}. See infra Part I.C.1
(describing the rational-actor assumption and its significance).

[[\[FN739\]](#Document1zzFN_B739)]{.underline}. The term \"rational
choice\" assumes a dispositional causal attribution for an actor\'s
behavior. Indeed, the inability to identify a maximand or tractable
number of maximands has often delayed the application of rational choice
models to certain actors. See Robert D. Cooter, The Objectives of
Private and Public Judges, 41 PUB. CHOICE 107, 107 (1983)
(\"\[E\]conomists have not had much success in creating a theory to
explain the objectives of public judges.\"); David A. Skeel, Jr.,
[[Public Choice and the Future of Public-Choice-Influenced Legal
Scholarship, 50 VAND. L. REV. 647, 653 n.19
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1277&FindType=Y&ReferencePositionType=S&SerialNum=0108564767&ReferencePosition=653)]{.underline}
(reviewing MAXWELL L. STEARNS, PUBLIC CHOICE AND PUBLIC LAW: READINGS
AND COMMENTARY (1997)) (\"Public choice theorists have had far more
difficulty modeling \... judges\' behavior, as compared to \... private
economic actors, due to the absence of a compelling theory as to what
\... judges maximize.\"). That hurdle, however, has not stopped the most
resolute economic \"modelers.\" See, e.g., Cooter, supra (arguing that
judges seek to maximize their prestige among litigants and lawyers);
Richard A. Posner. [[What Do Judges and Justices Maximize? (The Same
Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112999&FindType=Y&SerialNum=0108534422)]{.underline}
(indicating that judges self-interestedly pursue numerous ends,
including their reputations, prestige, and leisure). And,
unsurprisingly, \"most rational choice analysis of the judiciary rests
implicitly on the assumption that judges and other people look out only
for their own interests, narrowly defined.\" Stout, supra note 736, at
1610 n.17.

[[\[FN740\]](#Document1zzFN_B740)]{.underline}. See, e.g., Posner, supra
note 729, at 343 (\"The economic theory \[of regulation\] is committed
to the strong assumptions of economic theory generally, notably that
people seek to advance their self-interest and do so rationally\.... The
economist \[unlike the non-economist\] is reluctant to accept \....
\[the distinction\] between a profit foregone and a loss incurred\-- the
former is a cost too, indeed the same kind of cost.\"); POSNER, supra
note 18, at 7-8 (describing the rational actor as one who ignores sunk
costs).

[[\[FN741\]](#Document1zzFN_B741)]{.underline}. E.g., Jolls, Sunstein, &
Thaler, supra note 64, at 1489-93. In light of such evidence, Posner has
very recently revamped his \"rational actor model\" to \"predict\" this
phenomenon\--the absence of which he once indicated was the defining
feature of that rational actor model. POSNER, supra note 361, at 257-58.

[[\[FN742\]](#Document1zzFN_B742)]{.underline}. POSNER, supra note 725,
at 16-17.

[[\[FN743\]](#Document1zzFN_B743)]{.underline}. See, e.g., Dan Ariely,
George Loewenstein, & Drazan Prelec, Coherent Arbitrariness: Stable
Demand Curves Without Stable Preferences, 118 Q.J. ECON. 73-106 (2003)
(demonstrating how the illusion of stable, ordered preferences can be
created with arbitrary anchors, and considering the effects of that
possibility for conventional economic assumptions); Gary Becker,
Irrational Behavior and Economic Theory, 70 J. POL. ECON. 1, 4 (showing
that \"negatively inclined market demand curves result not so much from
rational behavior per se as from a general principle which includes a
wide class of irrational behavior as well\"). For discussions of those
insights for policy purposes, see Jon D. Hanson & Kyle D. Logue, The
[[Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based
Regulation, 107 YALE L.J. 1163, 1219 n.254
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&ReferencePositionType=S&SerialNum=0108889501&ReferencePosition=1219)]{.underline};
Jolls, Sunstein. & Thaler, supra note 64, at 1481-82; Loewenstein, supra
note 573, at 212 (\"Sensitivity to price and other costs and benefits is
a prediction of purely rational theories of addiction, but almost any
decision-theoretic model of addiction, including \[a visceral account of
addiction\], would predict responsiveness to price.\").

[[\[FN744\]](#Document1zzFN_B744)]{.underline}. Posner emphasizes in a
recent book that, although Gary Becker did show that a downward-sloping
demand curve is not evidence that people are behaving as rational
actors, Becker

did not suggest that most consumers are irrational \... or that
well-attested economic phenomena other than the downward-sloping market
demand curve, such as the tendency of the prices of the same good to be
equalized, could be explained without assuming rationality. Buyers do
not in fact choose randomly. Rationality is the only reasonable
explanation for their reactions to changes in relative prices.

POSNER, supra note 361, at 261. Posner misses the point. First, Becker
did not set out to show that consumers are irrational; he would have
been unjustified in claiming as much, given that his was a theoretical
argument. What Becker did show is that the key piece of evidence that
Posner and other economists have relied on as proof of the rationality
of consumers does not, in fact, provide such a demonstration. As Becker
explained, a vast range of (non-rational) models are consistent with
downward-sloping demand curves, including even the extreme model in
which people make purchases randomly. But no scholar has claimed, as
Posner seems to suggest, that people behave totally randomly. And again,
we have yet to see any scholar propose a model that would predict
upward-sloping demand curves. Posner is thus knocking down a straw man.
The point is that downward-sloping demand curves reveal very little
about what moves consumers, and Posner offers little else by way of
evidence to suggest that the rational actor model has had much
predictive success.

Similarly, the fact that Becker said nothing explicitly about \"the
tendency of the prices of the same good to be equalized,\" see id., is
no help to Posner. First, we are not sure that Becker\'s insight about
downward-sloping demand curves does not apply as well to the tendency
for prices of the same good to be equalized. The fact that people have
limited resources and will not buy as many of the higher-priced versions
of the same good, even if they make their purchases randomly, may itself
lead sellers to push prices toward equality. Second, we again know of no
one who has argued that their model of human behavior predicts that the
prices of the same good should tend toward vast disparities. Indeed, we
cannot even imagine what such a model would look like.

Couple all that with the vast amount of evidence indicating that people
do not behave according to the rational actor model and the
justification for maintaining the model appears to lie in something
other than the logic of the argument itself can express.

Finally, if all that economists mean by \"rational\" is that a person
about to buy a widget will choose the lower priced of two otherwise
identical widgets, then we hereby accept the claim that people are,
other things (including the situation) equal, rational. But by so
describing humanity we would not have described much that is meaningful
about them, and we would hardly have provided a useful theory of the
human animal for making or reforming (or even just explaining) law.

[[\[FN745\]](#Document1zzFN_B745)]{.underline}. POSNER, supra note 361,
at 263 (Although \"\'economic man\' is unrecognizable in real life,\"
\"a psychologically realistic picture of the average person \.... has
methodological problems. In theory-making, descriptive accuracy is
purchased at a sacrifice of predictive power.\").

[[\[FN746\]](#Document1zzFN_B746)]{.underline}. Cf. Banaji, Implicit
Attitudes, supra note 105, at 131 (\"The stronger the assumption that a
concept has already earned admission to the mansion of science, the
lower may be the demand to immediately prove just what the particular
procedure and construct it presumably captures really predict.\").

[[\[FN747\]](#Document1zzFN_B747)]{.underline}. See supra text
accompanying notes 688-721.

[[\[FN748\]](#Document1zzFN_B748)]{.underline}. See supra text
accompanying note 725.

[[\[FN749\]](#Document1zzFN_B749)]{.underline}. Posner deserves credit,
though, for at least responding to the critique that law and economics
is based fundamentally on unrealistic assumptions about the human actor.
The more common response has, until recently, largely been to ignore
such criticisms.

[[\[FN750\]](#Document1zzFN_B750)]{.underline}. Jennifer Arlen,
[[Comment: The Future of Behavioral Economic Analysis of Law, 51 VAND.
L. REV. 1765
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1277&FindType=Y&SerialNum=0110399534)]{.underline}.

[[\[FN751\]](#Document1zzFN_B751)]{.underline}. [[Id. at
1787.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0110399534)]{.underline}

[[\[FN752\]](#Document1zzFN_B752)]{.underline}. [[Id. at
1770.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0110399534)]{.underline}

[[\[FN753\]](#Document1zzFN_B753)]{.underline}. [[Id. at
1780.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0110399534)]{.underline}

[[\[FN754\]](#Document1zzFN_B754)]{.underline}. See supra notes 143-46
and accompanying text; Hanson & Kysar, Taking Behavioralism Seriously I,
supra note 126, at 674-75 (reviewing experiments).

[[\[FN755\]](#Document1zzFN_B755)]{.underline}. Arlen, supra note 750,
at 1778-79. She also emphasizes findings that the endowment effect may
not apply if a liability rule rather than a property rule protects the
entitlement. Id.

[[\[FN756\]](#Document1zzFN_B756)]{.underline}. The optimism bias refers
to the well-documented finding that people tend to think that their own
chances of obtaining a good outcome from a set of circumstances is
greater than the chances of people in general of obtaining a good
outcome from the same circumstances. See Hanson and Kysar, Taking
Behavioralism Seriously I, supra note 126, at 654-58 (reviewing
studies).

[[\[FN757\]](#Document1zzFN_B757)]{.underline}. Arlen, supra note 750,
at 1783.

[[\[FN758\]](#Document1zzFN_B758)]{.underline}. Id. at 1784.

[[\[FN759\]](#Document1zzFN_B759)]{.underline}. Id. at 1786.

[[\[FN760\]](#Document1zzFN_B760)]{.underline}. Id. at 1787.

[[\[FN761\]](#Document1zzFN_B761)]{.underline}. Id. at 1787-88.

[[\[FN762\]](#Document1zzFN_B762)]{.underline}. See generally Chen &
Hanson, The Illusion of Law, supra note 32, at 6-32 (describing some of
the history and effects of the \"markets good\" and \"regulation bad\"
policy schemas).

[[\[FN763\]](#Document1zzFN_B763)]{.underline}. Issacharoff, supra note
706, at 1735.

[[\[FN764\]](#Document1zzFN_B764)]{.underline}. Id. at 1738.

[[\[FN765\]](#Document1zzFN_B765)]{.underline}. Id. at 1740.

[[\[FN766\]](#Document1zzFN_B766)]{.underline}. Id. at 1731.

[[\[FN767\]](#Document1zzFN_B767)]{.underline}. Id. at 1736. The point
seems to assume, among other things, that (1) law and economics provides
such a normative theory, (2) the positive implications of behavioralist
findings do not have prescriptive implications for policy, and (3) any
general normative theory of law is not itself undermined by those
findings.

[[\[FN768\]](#Document1zzFN_B768)]{.underline}. Id. at 1745 (footnotes
omitted).

[[\[FN769\]](#Document1zzFN_B769)]{.underline}. The key difference
between counterfeit realism and defensive realism is that defensive
realists, unlike counterfeit realists, do not claim to be realists in
fact. Rather, they seek to justify their commitment to unrealistic
models. In other respects counterfeit realism and defensive realism
share much in common. In both, the conversation about social
psychology\'s implications for the rational actor model is extremely
narrow. Biases and heuristics are singled out and flips are made
concerning their applications in specific doctrinal areas. In a way,
this positions behavioralism in a familiar trope of legal-theoretic
dispute, mirroring the contours of the debate witnessed in many of the
critical legal studies critiques of law and economics. In any event, it
is ironic that this indeterminacy charge is now employed by legal
economists against the newer threat of behavioralism. Part of our larger
project is to show that social psychology is not so indeterminate in its
lessons for law. But for now we simply want to emphasize the shallow
level at which the question of realism is evaluated by legal economists
responding to behavioral critiques of their approach.

[[\[FN770\]](#Document1zzFN_B770)]{.underline}. Colin Camerer, Samuel
Issacharoff, George Loewenstein, Ted O\'Donoghue & Matthew Rabin,
[[Regulation for Conservatives: Behavioral Economics and the Case for
\"Asymmetric Paternalism\", 151 U. PA. L. REV. 1211
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&SerialNum=0294339065)]{.underline}.
For other writings in which Issacharoff has repeated and extended his
call for a conservative use of the insights of social psychology in
legal analysis, see Samuel Issacharoff, [[Behavioral Decision Theory in
the Court of Public Opinion, 87 CORNELL L. REV. 671
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1111&FindType=Y&SerialNum=0287703133)]{.underline};
Samuel Issacharoff, The [[Difficult Path from Observation to
Prescription, 77 N.Y.U. L. REV. 36
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&SerialNum=0288275355)]{.underline}.

[[\[FN771\]](#Document1zzFN_B771)]{.underline}. Professors Sunstein and
Thaler have written an article with a very similar purpose, and which
tracks Issacharoff and his colleagues\' arguments fairly closely. Both
sets of authors apparently developed the idea independently and at about
the same time. See Cass R. Sunstein & Richard H. Thaler, [[Libertarian
Paternalism Is Not an Oxymoron, 70 U. CHI. L. REV. 1159
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&SerialNum=0297271746)]{.underline}.
We will not review the Sunstein and Thaler piece here, but we believe
that our analysis is appropriate to it no less than to Issacharoff and
his coauthors.

[[\[FN772\]](#Document1zzFN_B772)]{.underline}. Camerer et al., supra
note 770, at 1212; Sunstein & Thaler, supra note 771, at 1162.

[[\[FN773\]](#Document1zzFN_B773)]{.underline}. Camerer et al., supra
note 770, at 1212 (footnote omitted).

[[\[FN774\]](#Document1zzFN_B774)]{.underline}. Id. at 1215. Sunstein
and Thaler are similarly explicit about their pre-analytic allegiance:
\"Our only qualification is that the general presumption should be in
favor of freedom of choice, and that the presumption should be rejected
only when individual choice is demonstrably inconsistent with individual
welfare.\" Sunstein & Thaler, supra note 771, at 24.

[[\[FN775\]](#Document1zzFN_B775)]{.underline}. Not the least of these
problems is framing the debate in terms of paternalism and
anti-paternalism. We have not used those terms throughout this Article,
reflecting our serious misgivings regarding the definitions,
connotations, and schematic associations of those categories in policy
debates. As we have previously argued, a situationist or critical
realist perspective requires a reconceptu-alization of the idea of
paternalism. See Hanson & Yosifon, The Situation, supra note 5, at
336-40 (grappling with \"the paternalism bogeyman\").

[[\[FN776\]](#Document1zzFN_B776)]{.underline}. It may be worth
highlighting again that, while the \"behavioral economics\" work that
Issacharoff and his co-authors refer to here might fairly be described
as new (indeed, it is new to economists), social sciences other than
economics have long been interested in studying and theorizing about why
humans behave as they do and how they make sense of themselves and their
environs. Put differently, the fields that we are summarizing in this
Article seem quite \"mature\"\--at least as compared to law and
economics which, though influential, seems more the boisterous
adolescent.

[[\[FN777\]](#Document1zzFN_B777)]{.underline}. Issacharoff and his
co-authors simply assert that these are the findings of social
psychology that are relevant to a paternalism inquiry: \"Recent
developments in the social sciences have provided new foundations for
paternalism. The latest entrant into the paternalism debate comes from
the introduction into legal analysis of developments in behavioral
economics. By cataloging a list of common decision-making errors that
even highly competent, well-functioning people make in predictable
situations, this research potentially broadens the scope of situations
in which paternalistic policies could usefully be developed.\" Camerer
et al., supra note 770, at 1214.

[[\[FN778\]](#Document1zzFN_B778)]{.underline}. See supra Part III.B.1.a
(describing legal scholars\' tendency to focus on \"choice biases\" in
their efforts to incorporate social psychology into legal analysis).

[[\[FN779\]](#Document1zzFN_B779)]{.underline}. Readers and commentators
have occasionally suggested that we have overstated the extent to which
individuals are moved by situation. They point out that roughly
one-third of the subjects in Milgram\'s first set of experiments, in
which \"teachers\" were told to shock \"students\" up to 450 volts,
actually declined to do so. They claim that such evidence is in tension
with our thesis that people are situational characters. Some critics go
further and suggest that, in light of such dispositionist heroes, this
project should be devoted, not to describing the situational character,
but to encouraging people to be more successful dispositional actors. To
those observations, we have several responses.

First, the social psychology experiments, such as Milgram\'s, do not
actually indicate that some subjects were not significantly influenced
by external situation. To begin with, all of the subjects in Milgram\'s
first experiment \"shocked\" the \"teacher\" up to at least 300
volts\--a greater shock than most people would predict they themselves
would inflict in such a setting. Moreover, Milgram\'s experiment was set
up to be a \"situation\" in which people would not be induced to inflict
much harm on the \"students.\" That is, the design and protocol were
intended and predicted to lead most subjects to \"choose\" against
inflicting significant shocks: after all, there was a fellow subject
(with heart trouble!), screaming and kicking the wall and asking to be
set free in the next room. There were, in other words, extremely strong
(and obvious) situational forces encouraging people to not shock or to
stop at low levels. That is what is so amazing about the experiment: it
revealed features of the environment that seemed irrelevant but that
were far more powerful than the more visible and seemingly more powerful
features. The fact that some subjects opted to stop shocking between 300
volts and 450 volts doesn\'t necessarily prove the strength of their
disposition; it may simply reveal the growing force of other elements of
their situation. Put differently, all of the behavior in that experiment
is consistent with our situational account of human behavior\-- and much
of it is inconsistent with the dominant dispositional account. (The
dispositionist actor should beware Occam\'s Razor.)

Second, our definition of \"situation\" is not limited to merely
underappreciated or unseen \"external\" influences. This is an important
point, because some confusion may result from the fact that when social
psychologists were first discovering the power of situation, they were
focused on environmental influences. Advances in social psychology
revealing just how mysterious our own interiors are to even
ourselves\--dispositionist schemas, notwithstanding\--help make clear
that our interiors, too, are \"situational,\" as we have defined that
term. Thus, even when people behave in ways that seem inconsistent with
the pressures of external forces, that does not imply that they are
making \"choices\" in response to their \"will,\" conscious thinking,
and stable preferences. As we have argued at length, although the
concepts of thinking, preferring, willing, and choosing may give us an
affirming story, narrative, or schema for understanding our behavior and
that of others, they are more or less illusory. And that is a major part
of what we mean by \"situational.\"

We have occasionally heard the related objection that we are ignoring
evidence that people often do attribute their behavior to situational
forces. For instance, when students perform poorly on an exam, they are
more inclined to attribute the outcome to some situational force (\"That
test was unfair!\") than they are when they perform well (\"I\'m a
genius!\"). We acknowledge that tendency and others like it, as well as
the cultural influences that can make individuals more or less inclined
to attribute conduct to external influences. And we believe those
exceptions are important for a number of reasons that we hope in future
work to get to examine. We pay them scant attention here because they do
not pose an exception to dispositionism, as we define that term: The
situationist attributions that do sometimes occur are typically limited
to only the most obvious or affirming elements of situation, a fact that
itself reveals the otherwise unseen power of our interior situation
(such as the role of motivation), and are often subject to the very same
criticisms that we make of the dispositionist default.

All that being said, we do not disagree with those who suggest people
should learn how better to control or determine their own behavior. Our
problem is with the assumption that the means to that end is by
continuing to promote dispositionism and ignore the more powerful role
of situation. As this Article should suggest, we believe it is important
for individuals (citizens, consumers, lawmakers, legal theorists, and
others) to become far more aware than they are of the extent to which we
are all moved by forces within us and around us that are more or less
unseen. Such an understanding will not transform them from situational
characters to dispositional actors; rather, it will reduce the effect of
the dispositionist illusion and give them greater awareness of and
control (perhaps even dispositional control) over their situations.

[[\[FN780\]](#Document1zzFN_B780)]{.underline}. Cf. Sunstein & Thaler,
supra note 771, at 1199 (\"The argument for libertarian paternalism
seems compelling to us, even obvious.\").

[[\[FN781\]](#Document1zzFN_B781)]{.underline}. Camerer et al., supra
note 770, at 1223.

[[\[FN782\]](#Document1zzFN_B782)]{.underline}. Id. at 1254.

[[\[FN783\]](#Document1zzFN_B783)]{.underline}. See, e.g., Hanson &
Kysar, Taking Behavioralism Seriously I, supra note 126, at 693-723
(describing and providing examples of selective realism in products
liability debate); Hanson & Kysar, Taking Behavioralism Seriously II,
supra note 132, at 1548-53 (describing Kip Viscusi\'s selective realism
in analyzing cigarette markets, smoking, and the need for regulation);
Jon D. Hanson & Douglas A. Kysar, [[Taking Behavioralism Seriously: A
Response to Market Maniuplation, 6 ROGER WILLIAMS U. L. REV. 259, 370-80
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112965&FindType=Y&SerialNum=0283474040)]{.underline}
(describing James Henderson and Jeffrey Rachlinski\'s selective realism
in their critique of enterprise liability).

[[\[FN784\]](#Document1zzFN_B784)]{.underline}. See Jolls, Sunstein &
Thaler, supra note 64, at 1476. Weak-form realism is distinguished from
selective realism, as we have defined the terms, in that it is not
limited to a particular policy question or issue. Weak-form realism, in
other words, attempts to provide a general theory (a revised law and
economics) to be applied across all settings. Weak-form realism, as we
will describe, is nonetheless selective in the sense that it considers
only a small fraction of tractable choice biases.

[[\[FN785\]](#Document1zzFN_B785)]{.underline}. Id.

[[\[FN786\]](#Document1zzFN_B786)]{.underline}. Id.

[[\[FN787\]](#Document1zzFN_B787)]{.underline}. Id.

[[\[FN788\]](#Document1zzFN_B788)]{.underline}. For other excellent work
adopting what we describe as the weak-form realist approach, see Russell
B. Korobkin & Thomas S. Ulen, [[Law
and](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&SerialNum=0280311434)]{.underline}
[[Behavioral Science: Removing the Rationality Assumption from Law and
Economics, 88 CAL. L. REV. 1051
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1107&FindType=Y&SerialNum=0280311434)]{.underline};
Jeffrey J. Rachlinski, The \"[[New\" Law and Psychology: A Reply to
Critics, Skeptics, and Cautious Supporters, 85 CORNELL L. REV. 739
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1111&FindType=Y&SerialNum=0115776155)]{.underline}
(arguing that the new approach provides a \"more accurate description of
human choice than the law otherwise has available, which in turn should
improve both positive and normative legal analysis\").

[[\[FN789\]](#Document1zzFN_B789)]{.underline}. See Jolls, Sunstein, &
Thaler, supra note 64, at 1481.

[[\[FN790\]](#Document1zzFN_B790)]{.underline}. As Richard Posner
complains in his defense against weak-form realism, \"Behavioral
economics is defined by its subject rather than by its method and its
subject is merely the set of phenomena that rational-choice models (or
at least the simplest of them) do not explain.\" POSNER, supra note 361,
at 264.

[[\[FN791\]](#Document1zzFN_B791)]{.underline}. Jolls, Sunstein, &
Thaler, supra note 64, at 1487.

[[\[FN792\]](#Document1zzFN_B792)]{.underline}. And that view is common
among economic behavioralists. See, e.g., Thomas S. Ulen, [[Evolution,
Human Behavior, and Law: A Response to Owen Jones\'s Dunwoody Lecture,
53 FLA. L. REV. 931, 933-34
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100174&FindType=Y&ReferencePositionType=S&SerialNum=0287457089&ReferencePosition=933)]{.underline}
(\"The central distinguishing contention of this emerging emendation of
rational choice theory is that human beings are imperfectly rational. In
the pursuit of their ends people make systematic, predictable mistakes
that the law can take into account in its attempts to regulate human
behavior.\").

[[\[FN793\]](#Document1zzFN_B793)]{.underline}. See Hanson & Kysar,
Taking Behavioralism Seriously I, supra note 126 (identifying the
problem); Hanson& Kysar, Taking Behavioralism Seriously II, supra note
132 (providing market evidence); Hanson & Kysar, Taking Behavioralism
Seriously III, supra note 786 (discussing possible solutions); Hanson &
Kysar, The Failure, supra note 403.

[[\[FN794\]](#Document1zzFN_B794)]{.underline}. One author has recently
lumped Hanson and Kysar\'s work in with the weak-form behavioralists and
interpreted it as assuming that \"irrational behavior\" is stable, in
the sense that it is insensitive to the role of context. See Gregory
Mitchell, [[Taking Behavioralism Too Seriously? The Unwarranted
Pessimism of the New Behavioral Analysis of Law, 43 WM. & MARY L. REV.
1907
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=2984&FindType=Y&SerialNum=0289341138)]{.underline}.
We can only assume that Professor Mitchell somehow missed those sections
of the Hanson and Kysar trilogy that emphasized \"market manipulation.\"

[[\[FN795\]](#Document1zzFN_B795)]{.underline}. James A. Henderson, Jr.
& Jeffrey J. Rachlinski, [[Product-Related Risk and Cognitive Biases:
The Shortcomings of Enterprise Liability, 6
ROGER](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112965&FindType=Y&ReferencePositionType=S&SerialNum=0283474039&ReferencePosition=258)]{.underline}
[[WILLIAMS U. L. REV. 213, 258
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112965&FindType=Y&ReferencePositionType=S&SerialNum=0283474039&ReferencePosition=258)]{.underline}.

[[\[FN796\]](#Document1zzFN_B796)]{.underline}. Among other things, it
understates the extent to which Hanson and Kysar challenge the
conventional economic model, overstates the extent to which they argue
that preferences are constructed, and significantly misstates the source
of \"distortion.\"

[[\[FN797\]](#Document1zzFN_B797)]{.underline}. See MATTHEW MILLER, THE
TWO PERCENT SOLUTION 7-11 (2003) (\"Every free-market fan knows that you
get what you pay for. When the affluent suburb of Scarsdale, New York,
pays teachers with a masters degree and five years of teaching more than
\$60,000, and New York City pays her counterpart in the 40s, is there
really a question about where most of the top talent goes?\").

[[\[FN798\]](#Document1zzFN_B798)]{.underline}. See U.S. CENSUS BUREAU,
U.S. DEP\'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 447
(121st ed. 2001).

[[\[FN799\]](#Document1zzFN_B799)]{.underline}. See DALTON CONLEY, BEING
BLACK, LIVING IN THE RED: RACE, WEALTH, AND SOCIAL POLICY IN AMERICA 1
(1999).

[[\[FN800\]](#Document1zzFN_B800)]{.underline}. See generally id.

[[\[FN801\]](#Document1zzFN_B801)]{.underline}. See EDWARD N. WOLFF, TOP
HEAVY: THE INCREASING INEQUALITY OF WEALTH IN AMERICA AND WHAT CAN BE
DONE ABOUT IT 3 (2002).

[[\[FN802\]](#Document1zzFN_B802)]{.underline}. See U.S. CENSUS BUREAU,
supra note 798, at 447.

[[\[FN803\]](#Document1zzFN_B803)]{.underline}. See A STATISTICAL
PORTRAIT OF THE UNITED STATES: SOCIAL CONDITIONS AND TRENDS 80 (Mark S.
Litman ed., 1998).

[[\[FN804\]](#Document1zzFN_B804)]{.underline}. See generally ROBERT M.
HAUSER, INTERGENERATIONAL ECONOMIC MOBILITY IN THE UNITED STATES:
MEASURES, DIFFERENTIALS, AND TRENDS (Ctr. For Demography and Ecology,
Univ. of Wis.-Madison, CDE Working Paper No. 98-12, 1998).

[[\[FN805\]](#Document1zzFN_B805)]{.underline}. MILLER, supra note 797,
at 70.

[[\[FN806\]](#Document1zzFN_B806)]{.underline}. See id. at 84.

[[\[FN807\]](#Document1zzFN_B807)]{.underline}. See id. at 69-92.

[[\[FN808\]](#Document1zzFN_B808)]{.underline}. See id. at 73 (quoting
Milton Friedman, Chance, Choice and the Distribution of Income, 61 J.
POL. ECON. 277, 290 (1953) (third alteration in original)).

[[\[FN809\]](#Document1zzFN_B809)]{.underline}. More recent scholarship,
by the way, suggests that we can rule out that possibility. See, e.g.,
CONLEY, supra note 799.

[[\[FN810\]](#Document1zzFN_B810)]{.underline}. See MILLER, supra note
797, at 75 (quoting MILTON FRIEDMAN, CAPITALISM AND FREEDOM (1962)).

[[\[FN811\]](#Document1zzFN_B811)]{.underline}. Id. at 85.

[[\[FN812\]](#Document1zzFN_B812)]{.underline}. For a review of
Friedman\'s career and influence, see Chen & Hanson, The Illusion of
Law, supra note 32, at 14-23; see also George W. Bush, Remarks in a
Tribute to Milton Friedman, 38 WEEKLY COMP. PRES. DOC. 782 (May 9, 2002)
(proclaiming that Friedman\'s \"vision has changed America, and it is
changing the world\").

[[\[FN813\]](#Document1zzFN_B813)]{.underline}. MILLER, supra note 797,
at 86-87. Note that economists generally have no place for the \"will\"
in their models; instead, their models tend to be deteriminist in the
sense that preferences are treated as fixed and exogenous, and behavior
is treated as responsive to those preferences.

[[\[FN814\]](#Document1zzFN_B814)]{.underline}. See supra note 806.
Ironically, Milton and Rose Friedman\'s memoirs are entitled, Two Lucky
People, an irony that did not escape Milton.

[[\[FN815\]](#Document1zzFN_B815)]{.underline}. MILLER, supra note 797,
at 86-87.

[[\[FN816\]](#Document1zzFN_B816)]{.underline}. This reaction is not
unlike the sort of reaction that many of us undergo when experiencing
cognitive dissonance. See supra notes 461-71 and accompanying text
(describing how we seek to trivialize the dissonance or to highlight
other affirming features of ourselves or our beliefs).

[[\[FN817\]](#Document1zzFN_B817)]{.underline}. JOHN KENNETH GALBRAITH,
THE AGE OF UNCERTAINTY 2 (1977).

[[\[FN818\]](#Document1zzFN_B818)]{.underline}. Susan T. Fiske,
Examining the Role of Intent: Toward Understanding Its Role in
Stereotyping and Prejudice, in UNINTENDED THOUGHT 253, 254 (James S.
Uleman & John A. Bargh eds., 1989) (citation omitted).

[[\[FN819\]](#Document1zzFN_B819)]{.underline}. See Bargh & Chartrand,
supra note 598; see also supra text accompanying notes 595-619
(discussing automaticity).

[[\[FN820\]](#Document1zzFN_B820)]{.underline}. See Norman Green, The
Salon Interview\--Isaac Bashevis Singer, SALON.COM, Apr. 28, 1998, at
http://dir.salon.com/books/int/1998/04/cov_si\_ 28int.html.

[[\[FN821\]](#Document1zzFN_B821)]{.underline}. MARVIN MINSKY, THE
SOCIETY OF MIND 306 (1985).

[[\[FN822\]](#Document1zzFN_B822)]{.underline}. There are no doubt many
influences to which we are susceptible that are not visible through the
lens that we have offered, either because of their complexity, or
because they are as yet undiscovered by the social science on which we
draw. And, although we have certainly privileged social psychology and
related fields in this Article, our focus reflects our own situational
and cognitive limitations and not a belief that other social sciences or
ways of understanding ourselves don\'t have much to offer. To the
contrary, we believe that there is a great deal to learn about what
moves us from anthropology, sociology, history, other subfields of
psychology, various critical theories, and market practices (such as
marketing and public relations). If that is correct, then it should only
heighten concern about the flaws of dispositionism, rather than weigh
against adopting a situationist approach.

[[\[FN823\]](#Document1zzFN_B823)]{.underline}. In fact, some scholars
are more situational than others. Outside of law and economics, some
scholars have been quite sensitive to one or more element of situation.
See, e.g., Katharine T. Bartlett, [[Feminist Legal Methods, 103 HARV. L.
REV. 829
(1990)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&SerialNum=0103240576)]{.underline}
(synthesizing fundamental elements of feminist legal scholarship,
including the concept of \"positionality,\" which parallels in
significant ways our notion of \"situationism\"); GERALD E. FRUG, CITY
MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS (2000) (analyzing
the ways in which government policies and the built environment, rather
than individual personal choice, give shape to lived experience within
different communities); LANI GUINIER ET AL., BECOMING GENTLEMEN: LAW
SCHOOL AND INSTITUTIONAL CHANGE (1997) (arguing that traditional legal
pedagogy is often alienating to women, forcing women to abandon values
and perspectives brought with them to law school in order to conform to
the law school environment); Duncan Kennedy, Legal Education as Training
for Hierarchy, in THE POLITICS OF THE LAW: A PROGRESSIVE CRITIQUE 40
(David Kairys ed., 1982) (exploring the ways in which the structure of
legal education channels students career choices in definite ways, but
which nevertheless provide a plausible account of student complicity in
the process); TODD D. RAKOFF, A TIME FOR EVERY PURPOSE: LAW AND THE
BALANCE OF LIFE (2002) (arguing, among other things, that the structure
of our days and nights is changing under the influence of unseen but
powerful influences over the management of time); ELIZABETH WARREN &
AMELIA WARREN TYAGI, THE TWO-INCOME TRAP: WHY MIDDLE-CLASS MOTHERS AND
FATHERS ARE GOING BROKE (2003) (arguing that, contrary to widespread
belief, two-income families typically spend nearly all of their income
on situational necessities rather than on choice-driven luxuries,
leaving most families on the brink of bankruptcy should they encounter
unforeseen expenses such as illness or unemployment). And some social
psychologists have begun to write, as we have, explicitly about the
distortions of dispositionism and the power of situation. Our hope is
that by identifying some of the sources of our dispositionism, and
detailing the extent to which we are situational characters, we have
buttressed that work by connecting it to a firm social-scientific,
general foundation and by revealing the unreal foundations of
now-dominant theories.

END OF DOCUMENT