Southern California Law Review

September, 2004

**Articles**

**\*1103** CATEGORICALLY BIASED: THE INFLUENCE OF KNOWLEDGE STRUCTURES
ON LAW AND

LEGAL THEORY

Ronald Chen [[\[FNa1\]](#Document1zzFN_Fa1)]{.underline}

Jon Hanson [[\[FNaa1\]](#Document1zzFN_Faa1)]{.underline}

Copyright © 2004 University of Southern California; Ronald Chen; Jon
Hanson

TABLE OF CONTENTS

I. INTRODUCTION
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1106

A. Five Exemplars
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1\. The Punch Line
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2\. A Riddle
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1113

3\. The Category of \"Woman\"
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4\. Hitler\'s \"Jews\"
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5\. The Economic Approach to Law
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B. Cognitive Themes
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C. This Article in Context
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II\. SCHEMAS, CATEGORIES, AND HUMAN COGNITION
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A. Introduction
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B. Schemas Categorized
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1\. Self Schemas
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2\. Person Schemas
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3\. Role Schemas
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4\. Event Schemas (Scripts)
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C. Schemas Schematized
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1\. Schemas and the Processing of Information \...\...\...\...\...\....
1139

a\. Schemas and the Attention and Categorization Process \...\... 1144

i\. The Process of Categorization \...\...\...\...\...\...\...\...\...
1145

\(a\) The Classical View of Categorization \...\...\...\...\..... 1149

\(b\) The Prototype View of Categorization \...\...\...\...\..... 1150

\(c\) Other Theories of Categorization \...\...\...\...\...\...\... 1154

ii\. Category Organization \...\...\...\...\...\...\...\...\...\...\....
1155

iii\. The Effects of Schemas on the Attention and

Categorization Processes
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iv\. The Effects of Categorization \...\...\...\...\...\...\...\.....
1160

b\. Schema Effects on the Inference and Problem Solving

Process
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1164

c\. Schema Effects on Memory and the Retrieval Process \...\..... 1168

2\. The Process of Schema Application\--Determinants and

Conditions of Schema Use
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a\. Influences on Schema Choice and Application \...\...\...\...\...
1175

i\. Primacy and Salience
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ii\. Priming
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iii\. Affect
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iv\. Motivations
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\(a\) The Motive for Accuracy \...\...\...\...\...\...\...\...\...\...
1183

\(b\) The Motive to Self-Affirm \...\...\...\...\...\...\...\...\....
1184

\(c\) The Accountability Motive \...\...\...\...\...\...\...\...\....
1185

\(d\) The Motive to Conform \...\...\...\...\...\...\...\...\...\.....
1186

\(e\) Positional Motivations \...\...\...\...\...\...\...\...\...\....
1187

\(f\) The Motive for Closure \...\...\...\...\...\...\...\...\...\....
1189

\(g\) The Schema-Protection Motive \...\...\...\...\...\...\...\....
1195

(i.) Evading Challenging Information (and Altering

Cognitive Effort)
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(ii.) Avoiding Conflicting Schemas \...\...\...\...\...\...\... 1199

(iii.) The Role of Ambiguity and Conflicting

Motivations
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1201

(iv.) Subtyping \...\...\...\...\...\...\...\...\...\...\...\...\....
1204

(v.) Self-Fulfilling Schemas \...\...\...\...\...\...\...\...\... 1207

\(h\) Summary
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b\. A Note on the Role of Language and Metaphor \...\...\...\...\...
1211

3\. Summary
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1216

III\. APPLICATIONS
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1218

A. Categories and Schemas in Current Legal Scholarship \...\...\.....
1218

1\. Two Legal-Academic Applications
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a\. Linda Hamilton Krieger
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b\. Martha Chamallas
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2\. Extensions: Beyond Stereotypes and the Citizen and Lawmaker

Views
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1222

B. Controlling for the Bias in Our Schema-Driven Cognitions? \..... 1228

1\. Conditions of Decreased Schema Reliance \...\...\...\...\...\...\...
1228

2\. General Debiasing Literature
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3\. Summary
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1238

C. Categories, Schemas, and Legal Theory
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1\. Selected Predictions
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a\. Assuming Knowledge Structures Are Given \...\...\...\...\...\....
1239

i\. Predictions About Attention and Memory \...\...\...\...\...\... 1240

ii\. Predictions About Inferences \...\...\...\...\...\...\...\...\...
1240

iii\. Predictions About Schema Choice and Application \...\.... 1241

b\. Recognizing the Situational Sources of Knowledge

Structures
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1243

2\. Summary and Preview of Future Work
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IV\. CONCLUSION
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1252

**\*1106** \"The real voyage of discovery consists not in seeking new
landscapes but in having new eyes.\"

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

\"We do not see things as they are. We see things as we are.\"

\~ The Talmud [[\[FN2\]](#Document1zzFN_F2)]{.underline}

\"A man receives only what he is ready to receive, whether physically or
intellectually or morally, as animals conceive at certain times their
kind only. We hear and apprehend only what we already half know . . . .
The phenomenon or fact that cannot in any wise be linked with the rest
of what he has observed, he does not observe.\"

\~ Henry David Thoreau [[\[FN3\]](#Document1zzFN_F3)]{.underline}

\"The social sciences are not staked out like real estate. Even in law
the sanctions for harmless trespass are not heavy.\"

\~ Karl N. Llewellyn [[\[FN4\]](#Document1zzFN_F4)]{.underline}

I. INTRODUCTION

You can spot a law review article a mile away. They\'re the book-like
bricks that no one reads and that have been famously likened to a \"row
of stiffs in a morgue.\" [[\[FN5\]](#Document1zzFN_F5)]{.underline} Open
them up and breathe in, with the dust, clever titles on sober and
obscure topics. The better part of each page is weighed down by tens of
footnotes showcasing, in barely readable size, elaborate font tricks
that just cannot be found elsewhere. Look a little closer, and you can
detect a common structure. Law review articles lead off with a
quotation, sometimes two (and never four). They are divided clearly into
distinct \"parts\" [[\[FN6\]](#Document1zzFN_F6)]{.underline} with roman
numerals, names, and added spacing to be sure that, from the other side
of the room, the reader understands that a transition is underway. The
first part is usually titled, \"Introduction\" and, true to its name,
introduces \"the author\'s theme and hypothesis.\"
[[\[FN7\]](#Document1zzFN_F7)]{.underline} The final **\*1107** \"part\"
is often titled \"Conclusion,\" a promising indicator to the reader that
the end is near. The Conclusion, like the Introduction, summarizes the
author\'s argument. And in between these two \"parts\" are several
others containing the argument in full\-- many pages of text of the sort
that Yale\'s Fred Rodell once described as filled with \"\[l\]ong
sentences, awkward constructions, and fuzzy-wuzzy words.\"
[[\[FN8\]](#Document1zzFN_F8)]{.underline} And it is in these middle
parts, of course, where the footnotes grow thickest.

Another key identifying characteristic is what the law review article
does not contain\--namely, any sense of informality and any glimpse of
humor. [[\[FN9\]](#Document1zzFN_F9)]{.underline} As Rodell noted, \"it
seems to be a cardinal principle of law review writing and editing that
nothing may be said forcefully and nothing may be said amusingly. This,
I take it, is in the interest of something called dignity.\"
[[\[FN10\]](#Document1zzFN_F10)]{.underline}

Many others have complained about the basic form and shape of law
reviews. Indeed, a cottage industry of Bluebook critics has recently
emerged to argue that, in its mission to encourage efficiency,
[[\[FN11\]](#Document1zzFN_F11)]{.underline} it has failed.
[[\[FN12\]](#Document1zzFN_F12)]{.underline} Judge Richard Posner has
likened the Bluebook to the pyramids of Egypt\--both are \"mindless
elaboration\[s\] of social practices,\" making the Bluebook the
\"hypertrophy of law.\" [[\[FN13\]](#Document1zzFN_F13)]{.underline}
Worse than mindless, the Bluebook has, according to Judge Posner,
encouraged lawyers in their law review \"larval stages\" to \"cultivate
a most dismal sameness of style, a lowest-common-denominator style,\"
and fostered \"an atmosphere of formality and redundancy in which the
drab, Latinate, plethoric, euphemistic style . . . flourishes.\"
[[\[FN14\]](#Document1zzFN_F14)]{.underline}

As indefensible as conventional practices, rules, and categories may be,
their power is, as Judge Posner\'s lament assumes, significant\--a power
that seems to emanate in part from the psyches of those who practice
them. **\*1108** One critic observes that \"a challenger to the Bluebook
faces a monumental battle because the psychological barriers to entry
are so high.\" [[\[FN15\]](#Document1zzFN_F15)]{.underline} That
influence extends beyond citation form to include the entire practice of
footnoting. Judge Abner Mikva\'s description of his relationship with
footnotes, his renunciation of them, and the reaction he received is
illustrative of that power:

I think footnotes are an abomination. If God had intended the use of
footnotes to be a norm, He would have put our eyes in vertically instead
of horizontally. When I was on law review, I think I was persuaded that
an important measure of the scholarly worth of an article was the number
of footnotes that it contained. I think some judges and law review
editors still believe that. . . . I do believe that the footnote virus
first attacks law review members. It hits them the hardest, and they are
the most difficult to cure.

I got rid of my virus when then-Judge Stephen G. Breyer, now Justice
Breyer, and I were having lunch with . . . Justice Arthur J. Goldberg. .
. . Justice Goldberg was telling us that footnotes are terrible things,
and we ought to get rid of them. We should not use them. And as we
walked out after lunch, Judge Breyer said to me, \"You know, I think
that is a good idea. We should just stop using them.\" So we made a
pact. From then on, we would not use footnotes in our opinions.

I went back to my chambers and told my clerks we would not be using
footnotes in opinions. They went out of the chambers, and they caucused,
obviously, and came back and said, \"Judge, you cannot do this.\" I
said, \"Why? Where does it say in the commission or in the law that I
have to use footnotes?\" They said, \"Well, you do not understand. You
are still a new judge, and you are still being measured by law schools
and other places where they look at what judges write, and you are not
going to be perceived as being a very scholarly judge if you do not use
footnotes.\"

I said, \"That is ridiculous. Judge Breyer is not going to use them
either.\" And they said, \"Yes, but he is a schol \--,\" and they
stopped one syllable short. [[\[FN16\]](#Document1zzFN_F16)]{.underline}

As for \"scholars\" writing scholarship, the virus may be tougher to
kill. The concept of \"legal scholarship\" includes footnotes, and to
foreswear eight-point font risks having one\'s work categorized as
something else, something worse. Indeed, even the bold Judge Mikva
acknowledges that he **\*1109** may not have had \"the courage to write
\[his\] first law review note without footnotes.\"
[[\[FN17\]](#Document1zzFN_F17)]{.underline}

Most budding law professors know the experience of learning the
categories and schemas of legal scholarship. But none has captured the
power of those knowledge structures and the disorienting effects of
operating outside of them more vividly than Robert A. Williams, Jr. In
his recent virus-free article,
[[\[FN18\]](#Document1zzFN_F18)]{.underline} Williams recounts his
initiation into academia as \"a marginally qualified American Indian
with a Harvard Law School degree\" on a faculty motivated by \"the idea
that every law school had to have at least one affirmative action
baby\": [[\[FN19\]](#Document1zzFN_F19)]{.underline}

The way for me to \[get tenure\], as I soon came to learn, was to
publish three 100-page law review articles with 400 footnotes.

. . . .

These three articles . . . couldn\'t appear in just any old law review
to count toward tenure. They had to be published in a select group of
\"Top Ten\" law reviews.

Convincing my senior colleagues even further that I didn\'t belong at
their law school, I asked several of them embarrassing questions like,
\"Could you please list for me the Top Ten law reviews?\" As if anyone
needed to actually ask to see the list. You found it in your head,
stupid. It was like natural law\--a universal, objective form of truth
and knowledge that non-affirmatively actioned law professors unlike
myself were just born with.

. . . .

The crazy thing is, I bought into it. Don\'t ask me why. My first
article was 99 pages long (close enough, I thought), with 409 footnotes.
I felt it was really something. It had to be, because I learned from a
senior colleague that the Three Rules of Acquisition followed by
Articles Editors at the Top Six or So law reviews were:

Rule 1) Something by Someone.

Rule 2) Nothing by Someone.

Rule 3) Something by No One.

I was No One . . . . [[\[FN20\]](#Document1zzFN_F20)]{.underline}
Williams continues his account:

**\*1110** When one of the Old Farts finally read my article, and then
told all the other Old Farts about it, they were shocked, absolutely
shocked.

First of all, my article had only been accepted at the Southern
California Law Review. Second, it really didn\'t meet the formal
standards in terms of publication length\--it was only 99 pages; even if
it did have 409 footnotes. But, third\--and I heard that this is what
really pissed off all the Old Farts . . .\--they couldn\'t understand my
footnotes. How could I have done all those footnotes and cite to less
than ten cases total in the whole damn article? A \"big article\" should
cite at least a hundred cases, maybe even two hundred, at least, to be
considered tenure-worthy, they hrumphed-rumphed to each other. They told
me what I had done wasn\'t \"legal scholarship.\" It was revisionist
\"history,\" or something scurrilous like that. What business did I have
doing \"that type of thing\" without a Ph.D. in the discipline? Here\'s
a dime, go call the History Department across campus and see if they
want you. That type of thing.
[[\[FN21\]](#Document1zzFN_F21)]{.underline}

To most of us, shared knowledge structures feel, as Williams notes,
\"like natural law\--a universal, objective form of truth and knowledge
that \[we are all\] just born with.\"
[[\[FN22\]](#Document1zzFN_F22)]{.underline} But, as we will explore,
that perception is an illusion. And whether we are conscious of them or
not\--and mostly, we are not\-- our categories and stereotypes define
who we are and what we are doing, be it legal scholarship, history, or
something else.

This Article conforms to some of the stereotypes of legal scholarship.
We believe in both the legitimating effect and \"trashcan function\"
[[\[FN23\]](#Document1zzFN_F23)]{.underline} of footnotes, and so use
them excessively. [[\[FN24\]](#Document1zzFN_F24)]{.underline} At the
same time, this Article abandons some of the typical features of law
reviews, in part to advance through example our larger purpose: to
examine the very subject of stereotypes, categories, schemas, and
knowledge structures more broadly, and their potential relevance for law
and legal scholarship. [[\[FN25\]](#Document1zzFN_F25)]{.underline}

This Article is the beginning of our attempt to understand better not
only those who respond to the laws and those who make the laws, but also
those who devise the theories on which those laws are based. Knowledge
**\*1111** structures, as we shall see, influence virtually every
feature of our cognitive processes and every thought we have\--from the
trivial and humorous to the profound and horrific.
[[\[FN26\]](#Document1zzFN_F26)]{.underline} Let us begin, then, with a
bit of humor.

A. Five Exemplars

1\. The Punch Line

A lawyer was approached by a tall, bearded, mystical gentleman, who
announced, \"I\'m about to make you very happy.\"

\"Oh?\" said the lawyer.

\"Yes,\" said the bearded stranger.

\"I\'m going to grant you any three wishes you choose.\"

\"You mean if I ask you to turn me into the number one rainmaker at my
firm, you could do it?\"

\"Easy,\" said the stranger.

\"And you could fix it so I win all my cases?\"

\"Nothing to it.\"

\"How about getting clients never to complain about bills any more?\"

\"It\'s as good as done,\" said the stranger. \"And all you have to do
is sell me your soul.\"

The lawyer hesitated. \"Alright,\" he said suspiciously. \"What\'s the
catch?\"

What makes for a good joke? There are no doubt many ingredients, and, of
course, picking on lawyers is always a good starting point. But the most
important element of any good joke is its punch line. Punch lines are
the ticklish manipulations of the categories and schemas in our minds. A
joke leads us in one direction mentally, often through the use of
stereotypical images of a particular group, and then jolts us with an
unexpected twist. [[\[FN27\]](#Document1zzFN_F27)]{.underline} The
lawyer joke is funny because we assume that no **\*1112** individuals
would consciously sell their souls. The punch comes from the lawyer\'s
obvious eagerness to do so, and the humor comes from remembering that
this is a lawyer who, according to stereotypes, is too willing to make
that trade. In this way, jokes often employ and toy with the way our
thinking is organized. [[\[FN28\]](#Document1zzFN_F28)]{.underline} When
it comes to understanding (and taking advantage of) the way we think,
there are perhaps few people more expert at it than paid professionals.

Take the work of Wendy Liebman, one of the most successful comics
currently on the circuit. In one routine about her personal life,
Liebman begins, \"Younger guys have been approaching me . . . and asking
me to buy \[them\] alcohol.\"
[[\[FN29\]](#Document1zzFN_F29)]{.underline} This method of suggestion
demonstrates how the following jokes, also Liebman\'s, play on our
expectations:

\"Like a lot of women, I like to shop . . . lift.\"
[[\[FN30\]](#Document1zzFN_F30)]{.underline}

\"I can\'t have kids. They\'re not in my lease.\"
[[\[FN31\]](#Document1zzFN_F31)]{.underline}

\"Is there a doctor in the house? Because my mother wants me to marry
you.\" [[\[FN32\]](#Document1zzFN_F32)]{.underline}

\"I would spend all day filing, filing . . . my nails.\"
[[\[FN33\]](#Document1zzFN_F33)]{.underline}

\"My last boyfriend had no trouble committing. Adultery.\"
[[\[FN34\]](#Document1zzFN_F34)]{.underline}

\"My love life is like a fairy tale. Grimm.\"
[[\[FN35\]](#Document1zzFN_F35)]{.underline}

Indeed, some of Liebman\'s lines contain several twists:

**\*1113** \"I was flying back, and there was this guy sitting next to
me, and I could tell he really wanted me . . . to shut up . . . because
I\'m chatting and chatting, and he\'s busy . . . flying the plane.\"
[[\[FN36\]](#Document1zzFN_F36)]{.underline}

\"It was a very messy divorce . . . because there was a baby involved .
. . Him . . . And I didn\'t want custody.\"
[[\[FN37\]](#Document1zzFN_F37)]{.underline}

\"I like it when a man cries . . . when I hit him. No, I would never hit
a man . . . if he were awake.\"
[[\[FN38\]](#Document1zzFN_F38)]{.underline}

\"I\'m a writer . . . I write checks . . . mostly fiction.\"
[[\[FN39\]](#Document1zzFN_F39)]{.underline}

That Liebman\'s zingers are manipulations of our mental categories and
schemas\--processes of which we are not consciously aware\--is not
missed by the more discerning members of her audience. As a critic from
the New York Daily News wrote, \"It\'s the typical set-up and punch line
delivery, but followed by an almost subliminal afterthought.\"
[[\[FN40\]](#Document1zzFN_F40)]{.underline} Similarly, a critic from
the Dallas Morning News noted, \"One of \[Liebman\'s\] best tools was
her ability to take a familiar expression or scenario and give it an
offbeat spin.\" [[\[FN41\]](#Document1zzFN_F41)]{.underline} The Los
Angeles Times critic writes of Liebman, \"She\'s a master of the
throwaway line, of making a perfectly rational observation, then adding,
almost subliminally, the punch line, which skews everything she has said
before.\" [[\[FN42\]](#Document1zzFN_F42)]{.underline}

2\. A Riddle

In an episode of the popular 1970s television series, All in the Family,
Archie Bunker [[\[FN43\]](#Document1zzFN_F43)]{.underline} was presented
with a riddle:

A father and his son are out driving. They are involved in an accident.
The father is killed, and the son is in critical condition. The son is
rushed **\*1114** to the hospital and prepared for the operation. The
doctor comes in, sees the patient, and exclaims, \"I can\'t operate,
it\'s my son!\" [[\[FN44\]](#Document1zzFN_F44)]{.underline}

To Archie and much of his 1970s audience, the riddle was insuperable. A
1972 study by Larry Gorkin found that only eighteen percent of the
subjects, almost all of who held feminism as an important value, could
solve the riddle. [[\[FN45\]](#Document1zzFN_F45)]{.underline} The rest,
it seems, were unable to overcome the gendered knowledge that defined
their categorization of surgeons. Although more individuals than that
would likely solve the riddle today, the mental phenomenon that fueled
our inability to solve this riddle in the 1970s persists.
[[\[FN46\]](#Document1zzFN_F46)]{.underline} Most riddles, like most
jokes, depend on exploiting unseen features of our minds\--features that
in other circumstances can have significant social consequences.

3\. The Category of \"Woman\"

Gender categories of the sort that stumped Archie Bunker are likely at
least as old as our species\--though they have varied significantly
across cultures and times. The category of \"woman\" has long been
understood (though less today than in the past) to be quite separate and
in many ways inferior to the category of \"man\": women were fragile,
emotional creatures that lacked wisdom and were unfit for many \"manly\"
tasks and vocations. As Plato, with all his putative wisdom, wrote in
The Republic,

There is no special faculty of administration in a state which a woman
has because she is a woman, or which a man has by virtue of his sex, but
the gifts of nature are alike diffused in both; all the pursuits of men
are the pursuits of women also, but in all of them a woman is inferior
to a man. [[\[FN47\]](#Document1zzFN_F47)]{.underline}

Plato was not alone in this view. Indeed, Aristotle went further and
urged that we \"look upon the female state as being as it were a
deformity, though one which occurs in the ordinary course of nature\"
[[\[FN48\]](#Document1zzFN_F48)]{.underline} since \"the male is by
nature superior, and the female inferior; and the one rules, and the
other is ruled; this principle, of necessity, extends to all mankind.\"
[[\[FN49\]](#Document1zzFN_F49)]{.underline}

**\*1115** For those individuals with the natural \"deformity\" of
womanhood, the opportunity to demonstrate equality or superiority to men
was, at the time, rare. History demonstrates that similar categories,
categorical assumptions, and categorical chains have been the rule\--at
least in most Western cultures. In 1792, in A Vindication of the Rights
of Woman, the pioneering feminist Mary Wollstonecraft criticized the
prevailing belief that the minds of women were not \"of a healthy
state\":

The conduct and manners of women, in fact, evidently prove that their
minds are not in a healthy state; for, like the flowers which are
planted in too rich a soil, strength and usefulness are sacrificed to
beauty; and the flaunting leaves, after having pleased a fastidious eye,
fade, disregarded on the stalk, long before the season when they ought
to have arrived at maturity. One cause of this barren blooming I
attribute to a false system of education, gathered from the books
written on this subject by men who, considering females rather as women
than human creatures, have been more anxious to make them alluring
mistresses than rational wives; and the understanding of the sex has
been so bubbled by this specious homage, that the civilized women of the
present century, with a few exceptions, are only anxious to inspire
love, when they ought to cherish a nobler ambition, and by their
abilities and virtues exact respect.
[[\[FN50\]](#Document1zzFN_F50)]{.underline}

The education system not only reflected a certain conception of women,
it also served to perpetuate that conception. Similarly, in A Room of
One\'s Own, Virginia Woolf muses about the lack of female authors,
attributing it to reasons other than a lack of ability: \"a woman must
have money and a room of her own if she is to write fiction.\"
[[\[FN51\]](#Document1zzFN_F51)]{.underline} \"Intellectual freedom,\"
Woolf concludes,

depends upon material things. Poetry depends upon intellectual freedom.
And women have always been poor, not for two hundred years merely, but
from the beginning of time. Women have had less intellectual **\*1116**
freedom than the sons of Athenian slaves. Women, then, have not had a
dog\'s chance of writing poetry.
[[\[FN52\]](#Document1zzFN_F52)]{.underline}

Even when women seized upon opportunities to defy expectations of their
category, those accomplishments were often overlooked, ignored, or
quickly forgotten. For instance, a historian of women\'s education at
Cambridge University described the \"successes\" of a female student:

In 1880, a Girton \[Cambridge\] student, Charlotte A. Scott, was
informally bracketed with the Eighth Wrangler \[eighth in order of
merit\] in the first part of the Mathematics Tripos. This was a great
success for the women, more especially as it had come in a subject that
was supposedly beyond their mental capacity. But Charlotte Scott
received no recognition of her success from the University. Unlike her
co-Wranglers, her name was not published in the class list and she could
never look forward to the day when she could write the initials \'BA\'
after her name. [[\[FN53\]](#Document1zzFN_F53)]{.underline}

Unwilling to formally categorize a woman as successful in intellectual
pursuits (and math, at that!), the university was able to ignore the
reality that a factual assessment\--independent of the schemas that they
had long held\-- might reveal. Men in the university were able to
maintain that denial of admission to women was for their own sake; it
was to prevent harm to the \"female constitution,\" which was poorly
equipped for such things as education\-- including, of course, law
school education. [[\[FN54\]](#Document1zzFN_F54)]{.underline}

The Supreme Court\'s decision in Bradwell v. Illinois,
[[\[FN55\]](#Document1zzFN_F55)]{.underline} a case in which a female
applicant sued to be admitted to law school, reflects the well-accepted
categorization of women in 1872 and the general understanding of the
nature of the \"female constitution.\" Concurring with the Court\'s
conclusion that the guarantees of the Fourteenth Amendment did not
extend to women, Justice Bradley reasoned:

On the contrary, the civil law, as well as nature herself, has always
recognized a wide difference in the respective spheres and destinies of
man and woman. Man is, or should be, woman\'s protector and defender.
The natural and proper timidity and delicacy which belongs to the female
sex evidently unfits it for many of the occupations of civil life. The
constitution of the family organization, which is founded in the divine
ordinance, as well as in the nature of things, indicates the domestic
**\*1117** sphere as that which properly belongs to the domain and
functions of womanhood . . . .

It is true that many women are unmarried and not affected by any of the
duties, complications, and incapacities arising out of the married
state, but these are exceptions to the general rule. The paramount
destiny and mission of woman are to fulfill the noble and benign offices
of wife and mother. This is the law of the Creator. And the rules of
civil society must be adapted to the general constitution of things, and
cannot be based upon exceptional cases.
[[\[FN56\]](#Document1zzFN_F56)]{.underline}

The acceptance of the man\'s sphere and the woman\'s sphere in the law,
justified by the \"timidity\" and \"delicacy\" of the female sex, only
helped to perpetuate such justifications. Laws, Justice Bradley
reasoned, must be adapted to the \"general constitution of things\";
human laws must comport with \"natural laws.\" Bradley never recognized
the ways that this seemingly natural constitution of women might be as
much the consequence as the cause of the laws themselves.
[[\[FN57\]](#Document1zzFN_F57)]{.underline}

It was a long time before women were afforded opportunities that enabled
them to trigger a questioning of many attributes long attached to their
category, whether it was a lack of education, money, a room of one\'s
own, or the many other factors that stood and stand as obstacles to
women. [[\[FN58\]](#Document1zzFN_F58)]{.underline}

Laws, written and unwritten, made attempts to defy categorizations
extremely difficult, thus reinforcing stereotypes and reproducing the
legal and social pressures on women to conform to these stereotypes.
Without **\*1118** the opportunity to demonstrate their mental
capacities or, when they did, without the recognition that would help to
alter the stereotypes, the belief in Plato or Aristotle\'s description
of women triggered little critical reflection in most. Elizabeth Cady
Stanton thus observed that

\[m\]an\'s intellectual superiority cannot be a question until woman has
had a fair trial. When we shall have had our freedom to find out our own
sphere, when we shall have had our colleges, our professions, our
trades, for a century, a comparison then may be justly instituted. When
woman, instead of being taxed to endow colleges where she is forbidden
to enter\--instead of forming sewing societies to educate \"poor, but
pious,\" young men, shall first educate herself, when she shall be just
to herself before she is generous to others; improving the talents God
has given her, and leaving her neighbor to do the same for himself, we
shall not hear so much about this boasted superiority.
[[\[FN59\]](#Document1zzFN_F59)]{.underline}

And, similarly, Wollstonecraft challenged, \"Let men become more chaste
and modest, and if women do not grow wiser in the same ratio, it will be
clear that they have weaker understandings.\"
[[\[FN60\]](#Document1zzFN_F60)]{.underline}

4\. Hitler\'s \"Jews\"

While Hitler\'s hatred of Jews was monstrously intense, it would be a
mistake to assume that he did not occasionally struggle to spare certain
Jews by manipulating categories. This occurred particularly for Jews who
served important functions within his military hierarchy. In a recent
analysis of that topic, Bryan Mark Rigg writes,

Some of his actions suggest that Hitler believed Jewish \"blood,\" even
in minute amounts, could ruin a person. Other actions suggest that
Hitler believed Mendel\'s theory of genetics by which a Mischling \[men
of partial Jewish descent\] could be 100 percent Aryan if he inherited
all his blood from the Aryan parent. But Hitler consistently wavered on
facts about race. Some of his own decisions did not reflect the pure
categories of race so central to Nazi rhetoric and philosophy.
[[\[FN61\]](#Document1zzFN_F61)]{.underline}

Hitler was not the only one who found the need to adjust his categories.
At the same time many soldiers worked toward the extermination of Jewish
people, they fought alongside Jewish comrades.

**\*1119** These generals could make exceptions for Mischlinge they
viewed as Germans and comrades-in-arms . . . . Although they felt
certain Mischlinge were worth saving, they agreed that Jews should be
exterminated, especially the \'Asiatic\' and Communist Ostjuden. One
must not forget that even Hitler helped many Mischlinge at the same time
he ordered Jews to be exterminated.
[[\[FN62\]](#Document1zzFN_F62)]{.underline}

Such exceptions are especially remarkable in light of the fact that
Hitler\'s anti-Semitism was race-based\--rather than religion or
culture-based\--and thus relatively inflexible.
[[\[FN63\]](#Document1zzFN_F63)]{.underline} Nonetheless, some Jews
managed to defy the stereotypes promulgated by Hitler and avoid or
postpone the fate he eventually directed for them. Even less well-known
are the formal exceptions that Hitler made for Jews who he deemed should
be considered of German blood, or deutschbluetig.
[[\[FN64\]](#Document1zzFN_F64)]{.underline} One colonel advocating in
support of a half-Jewish Unteroffizier\'s application for
recategorization as deutschbluetig wrote, \"\[He\] has an irreproachable
character and he\'s altogether German with soldierly values . . . and
\[he\'s\] the opposite (Gegentyp) of the typical Jew who served in the
offices . . . during World War I\--he\'s honorable, dutiful, German and
thoroughly a militarist.\" [[\[FN65\]](#Document1zzFN_F65)]{.underline}

Yet, as that example illustrates, the exceptions that Hitler made for
Jews may have reinforced the stereotypes undergirding anti-Semitism, and
may have been exceptions only because of other crosscutting, salient
categories and schemas (for example, the good German soldier).
Furthermore, the exceptions were not very stable. Hitler was relatively
lenient in the early days of his consolidation of power, but his
categories became less elastic as his war effort began to falter.
[[\[FN66\]](#Document1zzFN_F66)]{.underline} This phenomenon of strange
trench-fellows is surprisingly common:

**\*1120** The predicament of people fighting for a regime that did not
recognize their basic human rights is not new. Throughout the American
Civil War, thousands of free blacks and slaves, as well as some
mulattoes . . . fought for the Confederate States of America. A few
mulattoes even served as Confederate officers. Some of these
African-Americans were slave owners \'willing to fight for the
protection of their slave property.\' Historians estimate that some
forty thousand African-Americans served in the Confederate armed forces.
These men fought to preserve a social order that sought to keep the
majority of southern African-Americans as slaves. African-Americans also
fought in the armed forces during World War I and II, long before the
civil rights movement gained popular support in the United States. Japan
conscripted Koreans for the Japanese army during World War II. A few
hundred Japanese-Americans . . . served in the American armed forces in
World War II, although the U.S. government interned some of their
families. Many returned home in 1945 to find their property sold and
anti-Japanese sentiment rampant.
[[\[FN67\]](#Document1zzFN_F67)]{.underline}

These examples are only a few of the many instances in which people,
even in their daily lives, defy stereotypes. But Rigg\'s analysis of
Hitler and his soldiers\' reactions to their Jewish cohorts also
demonstrates how ambiguities in category boundaries and in the
characteristics and behaviors of those being categorized enable
individuals to manipulate their assessments in self-serving ways.
Despite a desire to classify all people of partial Jewish descent as
Jewish and therefore as members of an evil or contaminated category of
people, [[\[FN68\]](#Document1zzFN_F68)]{.underline} Hitler found
himself making exceptions for certain Mischlinge who demonstrated what
he considered to be Aryan characteristics\-- \"soldierly values,\"
honor, duty, and militarism\--in part because he very much wanted such
people on his side of the war effort. Because such characteristics
belied the attributes that his Jewish category was thought to contain,
he was willing to recategorize those soldiers and sometimes even declare
them of German blood.

The extent to which our categories are manipulable is often obscured by
the appearance of \"natural\" categories, or categories into which
people or things naturally fall. Yet, as the example above illustrates,
even seemingly clear or natural categories may be susceptible to our own
biases. In a recent book, geneticist Joseph Graves has argued that
racial categorizations have no biological foundations\--\"that there is
no biological basis for separation of human beings into races\"\--and
racial categorizations should be viewed as a \"relatively recent social
and political **\*1121** construction.\"
[[\[FN69\]](#Document1zzFN_F69)]{.underline} \"There is more genetic
variability,\" Graves observes, \"in one tribe of East African
chimpanzees than in the entire human species!\"
[[\[FN70\]](#Document1zzFN_F70)]{.underline} Indeed, genetic variability
within racialized groups, which is far greater than that between
racialized groups, is magnified by external influences that make the
variability seem an acceptable and even obvious dimension of
categorization. [[\[FN71\]](#Document1zzFN_F71)]{.underline} As a basis
for further action, racial categorizations have served to highlight the
differences between groups of individuals and obscure the fact that
these individuals are much more similar than they are different. Rather
than natural, these categories are largely created and maintained by
society and, as with Hitler\'s ability to define and redefine the Jewish
category, may be heavily influenced\--consciously or unconsciously\--by
our biased motivations. [[\[FN72\]](#Document1zzFN_F72)]{.underline}

Just as Jews with soldierly virtues found a haven in their perceived
dignity, those perceived as \"economically useful\" were often excepted
from the regime\'s gamut of discrimination. The extermination efforts
often were limited explicitly by an effort to prevent the execution of
\"craftsmen\" or otherwise economically useful Jews.
[[\[FN73\]](#Document1zzFN_F73)]{.underline} In one situation, a
commanding officer \"emphasized that a liquidation of the Jews could not
take place arbitrarily. The larger portion of Jews still present in
\[one\] city consisted of craftsmen and their families. One simply could
not do without the Jewish craftsmen.\"
[[\[FN74\]](#Document1zzFN_F74)]{.underline} Something about the
craftsmen made them simply indispensable despite a competing category,
Jewishness, that called for instant disposal.

Likewise, even though many private German citizens\--that is, the
non-Nazi, nonmilitary population of the Third Reich\--increasingly
tolerated the schematic Jew as a subject of official discrimination,
[[\[FN75\]](#Document1zzFN_F75)]{.underline} when the salient schema and
motivating factor of economic gain came into conflict with this racial
schema, the population and the regime responded. In the Spring of 1933,
the Nazi party sponsored a boycott of Jewish **\*1122** businesses, but
other businesses and consumers simply did not follow along, and the
boycott failed. Various other anti-Jewish laws passed around the same
time with no opposition, leading historians to agree that anti-Semitic
policy that interfered with \"pragmatic-economic motives\" would arouse
opposition in a unique way. [[\[FN76\]](#Document1zzFN_F76)]{.underline}
Economic usefulness provided some immunity to an otherwise doomed
category of people.

Understanding economic (and other) motivations is therefore critical to
understanding our use of schemas and categories. At the same time, as
our next example illustrates, understanding our schemas and categories
also may help us to understand economic analysis better.

5\. The Economic Approach to Law

In his popular primer, An Introduction to Law and Economics, legal
economist A. Mitchell Polinsky provides a guide to evaluating policy
decisions \"in the form of three questions that should be considered in
every economic analysis of a legal problem.\"
[[\[FN77\]](#Document1zzFN_F77)]{.underline} Polinksy\'s approach,
illustrative of the general economic approach, relies on the
categorization of considerations and the analysis of those categories.
\"The first question,\" Polinsky writes, \"is concerned with choosing
the criterion for evaluating legal rules. The second and third questions
are concerned with determining the effectiveness of legal rules in
satisfying the criterion.\" [[\[FN78\]](#Document1zzFN_F78)]{.underline}

According to Polinsky, policymakers must first ask themselves the
following question: \"Should efficiency be the sole criterion used to
evaluate legal rules, or should equity be taken into account as well?\"
[[\[FN79\]](#Document1zzFN_F79)]{.underline} Reflecting and advancing a
long tradition of economic analysis, Polinsky\'s conclusion is clear:
\"efficiency generally should be the primary criterion for evaluating
legal rules.\" [[\[FN80\]](#Document1zzFN_F80)]{.underline}

This answer is often described in terms of a familiar pie-baking
metaphor. As conceived by legal economists, the law is able to pursue
either (or both) of two categories of objectives: maximizing the size of
the pie, or dividing the slices of the pie more equally.
[[\[FN81\]](#Document1zzFN_F81)]{.underline} Laws, legal economists
**\*1123** generally conclude, should seek to maximize the size of the
pie, leaving to other institutions the responsibility for slicing it up
more equally. [[\[FN82\]](#Document1zzFN_F82)]{.underline}

Accepting this, policymakers should then ask a second question: \"Does
the legal rule create incentives for the relevant individuals or firms
to behave efficiently?\" [[\[FN83\]](#Document1zzFN_F83)]{.underline} In
considering the answer to that question, policymakers should analyze two
aspects of behavior, the \"care decision\" and the \"activity-level
decision.\" [[\[FN84\]](#Document1zzFN_F84)]{.underline} Evaluating
those decisions will help policymakers ensure that the rule provides the
efficient deterrence-related incentives.

Finally, policymakers should ask a third question: \"Does the legal rule
efficiently allocate risk among the relevant individuals or firms?\"
[[\[FN85\]](#Document1zzFN_F85)]{.underline} Having established that the
sole focus should be on efficiency considerations, and having chosen a
policy that creates efficient behavioral incentives, the final step is
to ensure efficient insurance arrangements.

Polinsky\'s three-step guide\--by breaking the policy issues into basic
categories such as efficiency and equity, insurance and deterrence, and
activity-level deterrence and care-level deterrence\--has been the basic
template used by legal economists and, increasingly, policymakers in
approaching and analyzing all policy problems. This three-step approach
occurs against a background desire to generate clear policymaking advice
by minimizing the number of issues considered and avoiding particularly
complex, value-laden issues. As such, a traditional justification for a
focus on efficiency, rather than equity, was legal economists\'
self-professed inability to consider difficult issues that required
value judgments. [[\[FN86\]](#Document1zzFN_F86)]{.underline}

The set of relevant policy considerations has been even more narrowly
tailored for certain areas of law. In tort theory, for example,
conventional wisdom has it that insurance considerations can be
virtually eliminated from any efficiency analysis because it will
generally be true that either market-provided insurance is cheaper than
tort-provided **\*1124** insurance or that no insurance is desired (no
matter its source). [[\[FN87\]](#Document1zzFN_F87)]{.underline} And one
leading tort scholar has argued further that activity-level deterrence
considerations should be ignored in the efficiency analysis, owing to
the difficulty and costliness of making meaningful activity-level
determinations. [[\[FN88\]](#Document1zzFN_F88)]{.underline} Because of
this perspective, the bulk of law and economics analysis of tort law in
recent years has focused predominantly on the deterrence effects of
various liability and damage rules.
[[\[FN89\]](#Document1zzFN_F89)]{.underline}

Similarly, the dominant theoretical approach to corporate law has
adopted and refined the categorical contours of the general law and
economics approach. Like other substantive areas, corporate theorists
first make the problem tractable by limiting the focus of the law to one
constituency\--shareholders\-- on the ground that other constituencies
enjoy adequate protection through other institutions.
[[\[FN90\]](#Document1zzFN_F90)]{.underline} And for shareholders, legal
economists focus on maximizing the size of the pie, a theoretical focus
that is said to maximize the pie for all constituencies.
[[\[FN91\]](#Document1zzFN_F91)]{.underline} This basic analysis,
according to legal economists, is the foundation for the shape of
corporate law today. [[\[FN92\]](#Document1zzFN_F92)]{.underline}

As these examples help to illustrate, the economic approach relies at
its basic level on the creation of categories of considerations and on
the search for the \"best\" institution to bear responsibility for each
category. This categorization of norms and appropriate institutional
venues renders many of the most complex social problems tractable and
thus renders the categories themselves extremely attractive.

With that insight in mind, we end this section, as we began it\--with a
joke. Only this one is not about lawyers, but economists:

A shipwreck has left a physicist, a chemist, and an economist without
food on a deserted island. A few days later a can of beans is washed up
**\*1125** on the shore. The physicist proposes the following method of
opening the can:

I\'ve calculated that the terminal velocity of a one-pound object\--the
weight of the can\--thrown to a height of twenty feet is 183 feet per
second. If we place a rock under the can the impact should just burst
the seams without spilling the beans.

The chemist\'s response is:

That\'s risky since we can\'t be sure we will throw it to the correct
height. I\'ve got a better idea. Let\'s start a fire and heat the can on
the coals for one minute, thirty-seven seconds. I\'ve calculated that
this should just burst the seams. This method is less risky since we can
always push the can off the fire if it starts to burst sooner \[plus we
get hot beans\].

The economist\'s reaction is:

Both of your methods may work, but they are too complicated. My approach
is much simpler: Assume a can opener.
[[\[FN93\]](#Document1zzFN_F93)]{.underline}

The aspiration of the economic and legal economic approach is, as this
now-tired joke emphasizes, to reduce complex problems to simple
questions (with simple answers). Although economists are the butt of
this joke, this tendency is, in fact, a general human tendency. As this
Article will highlight, it is a tendency that likely biases all of legal
theoretic analysis, and not just law and economics analysis, far more
than we legal theorists care to admit.

B. Cognitive Themes

The examples above, ranging from the comedic to the tragic to the
seemingly academic, might appear to have little in common, and some
might appear to have even less to do with the law. In our view, however,
they share an important characteristic: they all reveal and reflect the
human tendency to create and rely on knowledge structures\--and in
particular on categories and schemas\--in processing information,
drawing conclusions, and in making sense of the world around us. This
common tendency reveals itself not only in the minds and behaviors of
those who face the laws, but also in the minds and behaviors of those
who make the laws and of those who grapple with the theories on which
those laws are based.

The examples above are only a few illustrations, some common and some
not, of how helpful and harmful categories and schemas can be.
**\*1126** Liebman\'s stand-up comedy is based on her ability to
manipulate our commonly held schemas. When she delivers a punch line
that skews everything she has previously said, Liebman is simply adding
the few words that she knows will jolt our minds\--signaling to us that
the schema we have been applying is completely wrong. Archie Bunker is
victim to the same cognitive biases as Hitler and the rest of us; we all
use categories and schemas to help make sense of our worlds. The problem
for Archie is a familiar one even outside of social cognition
research\--the problem of stereotypes. Stereotypes are one of the topics
in social cognition that has been applied most broadly, partly due to
the general interest in stereotypes as a source of discrimination.
[[\[FN94\]](#Document1zzFN_F94)]{.underline} The problem for Hitler was
also partially one of stereotypes\--what to make of evidence that some
members of the stereotyped group behaved in nonstereotypical ways.

Recent Supreme Court decisions provide further evidence of the
centrality of stereotypes to the law. In its decision allowing parties
to sue states for violations of the Family and Medical Leave Act, Chief
Justice Rehnquist noted that \"states continue to rely on invalid gender
stereotypes in the employment context, specifically in the
administration of leave benefits\" and argued that \"\[r\]eliance on
such stereotypes cannot justify the States\' gender discrimination in
this area.\" [[\[FN95\]](#Document1zzFN_F95)]{.underline} Similarly,
Justice O\'Connor, writing for the majority in the case affirming the
University of Michigan Law School\'s admissions policy, grounded her
decision in the importance of breaking down stereotypes. She noted that
\"the law school\'s admissions policy promotes \'cross-racial
understanding,\' helps to break down racial stereotypes, and \'enables
students to better understand persons of different races.\"\'
[[\[FN96\]](#Document1zzFN_F96)]{.underline} As influential as
stereotypes are, however, they are merely the best known example of a
far broader phenomenon documented by social psychologists.

The importance of knowledge structures more generally in understanding
the way we view the world is well demonstrated in the Court\'s decision
in Lawrence v. Texas. [[\[FN97\]](#Document1zzFN_F97)]{.underline}
Justice Kennedy observed that the absence of laws directed solely
against homosexual conduct historically \"may be explained in part by
noting that . . . the concept of the homosexual as a distinct category
of person did not emerge until the late **\*1127** 19th century.\"
[[\[FN98\]](#Document1zzFN_F98)]{.underline} Until that categorization
occurred, Justice Kennedy claims, conduct between homosexuals was not
distinguished from that between heterosexuals. The category is part of
what makes discrimination possible\--part of the \"power of naming.\"
[[\[FN99\]](#Document1zzFN_F99)]{.underline} The same is true, as we
indicated, of racial categories.
[[\[FN100\]](#Document1zzFN_F100)]{.underline} Similarly, the category
of \"woman\" (and less evidently, that of \"man\") has itself been\--and
continues to be\--a necessary ingredient of sexual discrimination and an
unfortunate example of how our schemas help shape our reality. Thus, an
education system created within a society in which women were thought
intellectually inferior to men excluded women based on that schema, and
thereby served to reinforce it. Our schemas and the practices they
\"make sense\" of are mutually constitutive.

Scripts, another type of schema that helps us process information
efficiently, give us a handle for understanding, remembering, and
drawing inferences about salient events. When we see people in a
restaurant paying their bills, we need not have witnessed them eating in
order to surmise that they have eaten. So too when legal economists
encounter efficiency-based policy analysis, they require no explanation
for why that analysis excludes numerous considerations.
[[\[FN101\]](#Document1zzFN_F101)]{.underline} The ability of scripts to
guide and often constrain our thinking was identified with concern as a
justification for approving Michigan Law School\'s admissions policy.
The plaintiff\'s brief noted that

\[s\]tudents learn more and think in deeper, more complex ways in a
diverse educational environment. Extensive research in social psychology
demonstrates that active engagement in learning cannot be taken for
granted . . . . Complex thinking occurs when people encounter a novel
situation for which, by definition, they have no script, or when the
environment demands more than their current scripts provide. Racial
diversity in a college or university student body provides the very
features that research has determined are central to producing the
conscious mode of thought educators demand from their students.
[[\[FN102\]](#Document1zzFN_F102)]{.underline} **\*1128** Schemas do
much more than simply constrain or bias our thinking in humorous or
harmful ways. The human system of processing information is, in many
cases, an efficient means of understanding our worlds and ourselves.
Classification of people, objects, and other stimuli is often both
indispensable and ineluctable. Like Polinsky\'s economic schema, our
day-to-day schemas can be very useful in providing us a workable
procedure for solving complex problems.

Still, as social psychologists have demonstrated, \"virtually any of the
properties of schematic functioning that are useful under some
circumstances will be liabilities under others.\"
[[\[FN103\]](#Document1zzFN_F103)]{.underline} The categories and
schemas that operate, usually automatically, influence all aspects of
information processing\--from what information we focus on, to how we
encode that information, to which features of that information we later
retrieve and remember, and to how we draw inferences and solve problems
based on that information. Given the unconscious and biasing influence
of our schemas, combined with the fact that our schemas themselves will
often reflect our unconscious motives, we should be mindful, even
distrustful, of our schemas and the conclusions that they generate.

These effects, the processes that drive them, and the biases they
engender are the primary subject of this Article. A central goal is to
offer a broad understanding of how individuals utilize categories,
schemas, and scripts to help make sense of their worlds. In doing so, we
serve another main objective: to provide a comprehensive (yet
manageable) synthesis of a vast body of social psychology literature.
[[\[FN104\]](#Document1zzFN_F104)]{.underline} This overview should
transform how we make sense of our laws and legal-theoretic world.

As will become clear, few of us are any better equipped than Archie
Bunker was at recognizing or understanding the role that categories and
schemas play in guiding our judgments. Indeed, this is what makes these
social psychology insights important for legal theory: even the
seemingly most sophisticated of legal scholars are, like the law,
categorically biased. The influence of our categories is tantamount to
the influence of the can in the joke about the marooned academics. The
categories, like cans, have an important place in containing, labeling,
arranging, and storing what would otherwise be, like spilled beans, an
intractably messy world. The **\*1129** (widespread, implicit)
assumption that the categories do not sometimes constrain us, like an
impenetrable can, is preventing us from achieving our purported end. We
will not get to the beans by merely assuming a can opener.

C. This Article in Context

This Article is part of a larger project or legal-theoretic approach\--
dubbed \"critical realism\" \--intended to bring to legal theory and the
law the best evidence available on how real humans behave, on how they
make sense of their worlds, and on what moves them. This project,
described at length elsewhere,
[[\[FN105\]](#Document1zzFN_F105)]{.underline} rejects the tendency of
most legal theories\--including most prominently law and economics\--to
assume that human actors behave according to unrealistic intuitions or
falsified models. Critical realism, therefore, rejects various
\"rational actor\" constructs and embraces instead a view of the human
animal as a \"situational character.\" The human animal, unlike the
actors that most of us see and presume ourselves to be, does not act
mostly in response to a stable set of preferences informed by
well-ordered cognitions. Instead, the human animal behaves largely in
response to a set of largely unseen situational influences in its
environs or within its skin\--that is, exterior and interior situations.
In that sense, the human animal behaves less as the choice-making,
autonomous agent so commonly and self-affirmingly assumed in laws and
legal theories and more as

an individual who does not act with total freedom (even if she does
sometimes act extemporaneously) and who does not often choose her stage.
She instead finds herself, and we as legal scholars find her, already in
action on a given stage, among other characters, with dialogue and plot
proceeding apace around her, and subject to the powerful (if less
visible) influence of scripts, props, backdrops, and directors.
[[\[FN106\]](#Document1zzFN_F106)]{.underline}

This situational character is as unfamiliar in legal literatures as she
is demonstrated in, among other places, the social psychology
literature. The focus of this Article is on one key interior attribute
of the situational character. In other words, we will focus primarily on
one slice of social psychology research, namely the vast and vibrant
field examining the integral role that knowledge structures play in the
way we attend to, **\*1130** remember, and draw inferences about
information we encounter and, more generally, the way we make sense of
our world. [[\[FN107\]](#Document1zzFN_F107)]{.underline}

Part II of this Article is devoted to describing the significance of
knowledge structures. At times, our synthesis of the related literatures
will be challenging to the uninitiated: existing knowledge structures,
as we will highlight, can be a hindrance as much as a help when
encountering new concepts and theories. But the biggest hurdle for
readers may be in fully appreciating the relevance of knowledge
structures for legal-academic scholarship. Unfortunately, readers
initially must take somewhat on faith our assertion that such an
overview provides an extremely valuable foundation for better
understanding legal theories and laws.
[[\[FN108\]](#Document1zzFN_F108)]{.underline} We will introduce social
scientific research and findings that, viewed in isolation or even
within the threads of our larger synthesis, may seem unrelated to what
people think about when they think about law.

The good news is that Part III is devoted to providing a sample of
evidence that begins to vindicate our assertion. And our related work,
which builds on this foundation, will, we believe, fully vindicate it.
Part III briefly summarizes how legal scholars have thus far applied
insights about knowledge structures and argues that their most profound
implications have yet to be appreciated. Part III then provides a set of
predictions regarding the influence of knowledge structures and the
biases they likely engender for legal theories and laws. It will also
preview our related articles that test those predictions in several of
the most prominent legal-theoretic debates of the last half century,
including disagreements over the role of distributional considerations
in legal rulemaking and over the goal of corporate law and many of its
numerous doctrinal applications. The relevance of knowledge structures
and the foundational overview that the next section provides will, we
expect, be important not just for our own work, but for the work of all
legal scholars who share our commitment to better understanding laws,
legal theories, and ourselves.

**\*1131** II. SCHEMAS, CATEGORIES, AND HUMAN COGNITION

A. Introduction

Categories and schemas are critical building blocks of the human
cognitive process. [[\[FN109\]](#Document1zzFN_F109)]{.underline} They
allow humans to process or at least cope with the infinite amount of
information in their environs. Categories and schemas influence every
feature of human cognition, affecting not only what information receives
attention, but also how that information is categorized, what inferences
are drawn from it, and what is or is not remembered.
[[\[FN110\]](#Document1zzFN_F110)]{.underline}

Unfortunately, before we can elaborate on those effects, we face a small
schematic hurdle. The definitions of, and the dividing line between,
categories, schemas, and similar concepts are somewhat ambiguous in the
social psychology literature, with the terms used in often quite
different ways by different scholars.
[[\[FN111\]](#Document1zzFN_F111)]{.underline} This conceptual ambiguity
is somewhat **\*1132** ironic: as we will describe below, one of the key
findings of social cognition literature is that the absence of clear
concepts and categories increases the cognitive energies required to
process information and thus deters individuals from learning new ideas
or processing new information. The lack of shared knowledge structures
inhibits clear discussion about difficult ideas. Thus, of all social
scientific inquiries, social cognition research should be most sensitive
to the drawbacks of ambiguity, complexity, and uncertainty. (These
insights may help explain both the relatively meager application of such
research to disciplines such as the law and the relative prominence of
legal theories with seemingly robust categories, schemas, and
scripts\--topics to which we return.)

To render the relevant literatures more cognitively digestible we will
begin by clearly defining our terminology, although we do not expect our
definitions to take on much meaning right away. Social psychologists
sometimes treat the processes of categorization and application of
schemas as one and the same.
[[\[FN112\]](#Document1zzFN_F112)]{.underline} Here, categorization and
the use of categories will refer only to the classification of elements,
experiences, instances, or arguments into groups. Once an element is
categorized, an individual can apply a schema to it in order to draw
inferences and derive predictions.
[[\[FN113\]](#Document1zzFN_F113)]{.underline} Where categorization
focuses on the classification of instances, schemas represent knowledge
about the categories [[\[FN114\]](#Document1zzFN_F114)]{.underline} and
focus on the \"application of organized generic prior knowledge to the
understanding of new information.\"
[[\[FN115\]](#Document1zzFN_F115)]{.underline} Put slightly differently,
where categories are the **\*1133** classifications into which we place
the information we encounter, schemas refer to the embodiment of \"our
knowledge about the category and its members.\"
[[\[FN116\]](#Document1zzFN_F116)]{.underline}

That distinction between categories and schemas helps make clear what
role schemas play in our thinking. Social psychologists Shelley Taylor
and Jennifer Crocker describe a schema as

a cognitive structure that consists in part of the representation of
some defined stimulus domain. The schema contains general knowledge
about that domain, including a specification of the relationships among
its attributes, as well as specific examples or instances of the
stimulus domain. As such, one of the chief functions of a schema is to
provide an answer to the question. \[sic\] \"what is it?\" The schema
provides hypotheses about incoming stimuli, which include plans for
interpreting and gathering schema-related information.
[[\[FN117\]](#Document1zzFN_F117)]{.underline}

Schemas can answer other questions, too, such as \"How does it work?,\"
\"Why is it here?,\" and \"What will it do?\" Martha Augoustinos and
Iain Walker explain that \"\[a\] schema is conceptualized as a mental
structure which contains general expectations and knowledge of the
world.\" [[\[FN118\]](#Document1zzFN_F118)]{.underline} Individuals
utilize these mental structures \"to select and process incoming
information from the social environment.\"
[[\[FN119\]](#Document1zzFN_F119)]{.underline} Schemas \"guide what we
attend to, what we perceive, what we remember and what we infer.\"
[[\[FN120\]](#Document1zzFN_F120)]{.underline}

B. Schemas Categorized

People have schemas for everything (from places to arguments to
objects), including schemas that are \"content-free.\"
[[\[FN121\]](#Document1zzFN_F121)]{.underline} An example of
content-free schemas are processing rules that specify \"the links among
elements but not much rich informational content,\"
[[\[FN122\]](#Document1zzFN_F122)]{.underline} such as the rule of
transitivity that underlies rules of logic. Yet, most empirical social
cognition research focuses on schemas for ourselves (self schemas), for
other people (person schemas), and for the roles that people assume or
are born into (role schemas). In addition, a considerable amount of
social **\*1134** cognition research has focused on the event schema,
or, as it is more commonly called, the script.

1\. Self Schemas

Self schemas, as their name suggests, contain our knowledge and
expectations about ourselves, including the traits, dispositions, and
characteristics we possess. Individuals can be either schematic or
aschematic with regard to particular traits. People are said to be
schematic on a trait if the trait is important to them and if they
believe that they embody and exhibit one or another form of the trait.
[[\[FN123\]](#Document1zzFN_F123)]{.underline} People are said to be
aschematic on a trait if they \"are not invested in, involved with, or
concerned about a particular attribute\" and they believe it is not
self-descriptive. [[\[FN124\]](#Document1zzFN_F124)]{.underline} For
example, if we think intelligence is an important attribute and we have
a clear sense of where we fit along or within the intelligence domain,
then we are schematic on intelligence. Such self schemas, as mentioned
above, have effects on categorization, memory, and inference about all
types of information regarding ourselves.

Self schemas can range from ideological labels, such as conservative and
liberal, to distinctions commonly made according to race, gender, and
sexual preference. Our Introduction provides several examples of self
schemas. At the same time that the pioneering feminists of their day
might be schematic on traits that would shock Aristotle and Plato (not
to mention Justice Bradley), those very men probably held self schemas
of open-mindedness. Similarly, some soldiers in Hitler\'s army could be
termed schematic on their \"patriotism\" and aschematic on their
\"Jewishness,\" for they saw themselves along one characteristic rather
than another. In addition, many women, internalizing the norms (that is,
the role and person schemas) of society that highlighted and
essentialized differences in women and men, might have found themselves
holding strong self schemas of attributes that were thought to comprise
the \"female constitution.\" Notice that the self schemas individuals
rely on are not necessarily accurate. Archie Bunker might consider
himself a clear-thinking, unbiased observer, even as his thoughts and
responses might suggest otherwise. And legal economists who approach
problems through the economist\'s script outlined earlier would
certainly hold self schemas in which traits such as \"rigorous,\"
\"scientifically minded,\" and \"unbiased\" would be prominent.
**\*1135** As we argued before and in other work, however, the
economists\' scripts have themselves been a major source of bias.
[[\[FN125\]](#Document1zzFN_F125)]{.underline}

2\. Person Schemas

Person schemas represent knowledge structures about other
individuals\--their characteristics, behaviors, and goals.
[[\[FN126\]](#Document1zzFN_F126)]{.underline} We use the information
contained in those schemas to help guide our categorization, inference,
and memory processes with respect to the people we encounter. Two
popular types of person schemas include trait schemas and goal schemas.
The trait schema focuses on the classification of individuals based on
characteristics they hold and on the inferences that we are able to draw
based on those traits. \"In the language of the lay person . . . trait
terms are used to describe important ingredients of a personality that
provide explanations of a person\'s behavior, influence our evaluation
of the person, and guide our decisions about how to interact with this
person.\" [[\[FN127\]](#Document1zzFN_F127)]{.underline} Thus, \"we are
more apt to accept a blind date with someone who is described as
attractive, friendly, and intelligent than with someone who is described
as domineering, humorless, and provincial.\"
[[\[FN128\]](#Document1zzFN_F128)]{.underline} And on that blind date,
we are more likely to see our dates as \"attractive, friendly, and
intelligent\" because our expectations direct our attention (at the time
and in retrospect) to the features of our dates\' behavior that
demonstrate these qualities. Of course, as many who have been on blind
dates will attest, even favorable pre-date descriptions are often
insufficient to make the experience a good one (a result that itself may
be partially the result of event schemas, discussed below).
[[\[FN129\]](#Document1zzFN_F129)]{.underline}

In our earlier examples, Archie might have a difficult time applying a
doctor schema to a woman, even if she exhibits traits that might suggest
to most others that such a schema would be accurate\--even obvious. Like
Archie, Aristotle and Plato might have their own apparently sound person
schemas that explain a particular woman\'s behavior and guide their
interactions with her. Similarly, the traits of Jewish soldiers enabled
Hitler **\*1136** to generate separate classifications so that he could
understand their behaviors.

Goal schemas are simply schemas that we use to guide our
categorizations, memories, and inferences based on what we know about a
person\'s goals. For example, in one experiment, subjects watched as a
student entered a room in order to register for classes. As the student
approached the registration desk, he appeared to accidentally drop some
books and papers, pick them up, and successfully register for his
classes. [[\[FN130\]](#Document1zzFN_F130)]{.underline} Some of the
subjects were told that the student\'s goal was to complete a chemistry
degree while others were told that the student\'s goal was to finish a
music degree. [[\[FN131\]](#Document1zzFN_F131)]{.underline} Depending
on what the subjects were told, they tended to create schema-consistent
memories. For instance, subjects who believed the goal of the student
was to complete a music degree recollected that the student dropped
sheet music and also that he registered in a few music classes.
[[\[FN132\]](#Document1zzFN_F132)]{.underline}

Told that the surgeon in the riddle cannot achieve the goal of operating
on the patient because the patient is a son, Archie\'s goal schema is
unable to guide him to the correct answer; told that a Jew\'s goal is to
fight for his army, Hitler construes him to be sympathetic to his cause
and may infer additional \"militaristic\" characteristics about the
individual. Person schemas help us to categorize, remember, and draw
inferences about the characteristics of the people we observe, though
(as the examples above suggest) the person schema may result in very
misleading conclusions. [[\[FN133\]](#Document1zzFN_F133)]{.underline}

As the examples in this section indicate, person schemas can be applied
at various levels, from a single individual to groups, classes,
categories of persons, and all humans. Indeed, the tendency to see
people according to traits and goal schemas is itself a manifestation of
a more general (and often quite biasing) tendency to attribute behavior
to dispositions rather than situation.
[[\[FN134\]](#Document1zzFN_F134)]{.underline}

**\*1137** 3. Role Schemas

Role schemas help to organize our knowledge about \"the set of behaviors
expected of a person in a particular social position.\"
[[\[FN135\]](#Document1zzFN_F135)]{.underline} Such schemas can apply to
roles that are, for instance, achieved, ascribed, or acquired at birth.
[[\[FN136\]](#Document1zzFN_F136)]{.underline} Like self and person
schemas, role schemas help us to make sense of and predict people\'s
characteristics and behaviors. Role schemas aid us in knowing what to
expect and what not to expect from, for example, a doctor. From what
other stranger would we be unsurprised to be asked to \"say
\'ahhhhhhh\"\' or to disrobe? And yet most of us would be shocked to
have a doctor ask to see our tax returns, forms that we would eagerly
turn over to an accountant.
[[\[FN137\]](#Document1zzFN_F137)]{.underline} Archie is as befuddled by
the idea of a women surgeon as Justice Bradley is by the idea of a women
lawyer.

Role schemas and person schemas have been the subject of extensive study
due to a general interest in stereotypes. Stereotypes organize
\"people\'s expectations about other people who fall into certain social
categories.\" [[\[FN138\]](#Document1zzFN_F138)]{.underline} Our schemas
for surgeon and women yield(ed) categories\-- stereotypes\--of each that
are mutually exclusive. The stereotypical surgeon is (was), among other
things, a man, and the stereotypical woman is (was) not a surgeon. Role
schemas and person schemas are by no means applied only to humans. The
same sorts of schemas apply to all sorts of institutions and entities
that we tend to dispositionalize, from corporations to nations, and from
administrative agencies to interest groups. Thus, just as Justice
Bradley\'s schemas clearly separate the roles of men and women, most
policy analysts have equally robust role schemas for market actors and
regulators. [[\[FN139\]](#Document1zzFN_F139)]{.underline}

4\. Event Schemas (Scripts)

A fourth type of schema is an event schema or, alternatively, a script.
Scripts help us to understand the different steps or sequence of events
involved in a given process. Thus, readers are struck by a law review
article devoid of footnotes, and law review writers buck that script at
their peril. Similarly, there is a three-step schema for doing law and
economics scholarship\--no matter how many footnotes may be involved.
[[\[FN140\]](#Document1zzFN_F140)]{.underline} Outside **\*1138** legal
academia, most of us would be pleasantly surprised by a doctor who
greeted us in the waiting room and invited us back personally to the
examination room and would be taken aback by a doctor who began the
examination in the waiting room\--even if unoccupied.

Similarly, people are generally familiar with a restaurant script, which
contains information that helps us predict and understand the sequence
of events. In one experiment, subjects were asked to list the twenty
most important events in going to a restaurant.
[[\[FN141\]](#Document1zzFN_F141)]{.underline} Although there was
variation in the answers, over seventy percent of the subjects included
the following common steps: sit down, look at the menu, order, eat, pay
the bill, and leave. [[\[FN142\]](#Document1zzFN_F142)]{.underline} Such
a finding is unsurprising, indicating the extent to which the restaurant
script is ingrained in all of us. Those familiar with the restaurant
industry know that one of the initial challenges for fast food chains
eager to lower labor costs was to train customers to bus their own
tables. Doing so was difficult because of the well-established script
that left busing to restaurant employees or, more specifically, to
\"busboys.\" [[\[FN143\]](#Document1zzFN_F143)]{.underline}

An understanding of scripts may enable us to understand better the
things we see. Scripts may help us understand which jokes will be funny
and which ones will fall flat. For not only do good jokes, such as
Liebman\'s, often rely on a sudden shift of schemas, good jokes may
themselves follow a particular script. Jennifer Cooper finds evidence
that jokes that people find especially funny will often follow their own
schema, including three elements: premise distancing, in which listeners
are introduced to \"obviously fictitious characters, times or locales\";
setup parsimony, in which an \"incongruity is apparent and remains
unresolved long enough to build up tension in the listener\"; and,
finally, punch line closure.
[[\[FN144\]](#Document1zzFN_F144)]{.underline} As Cooper describes,
\"The punchline must unambiguously deliver the specific information
needed to resolve the incongruity or **\*1139** conflict.\"
[[\[FN145\]](#Document1zzFN_F145)]{.underline} Jokes following scripts
that include the three elements are judged to be more humorous than
those that do not. [[\[FN146\]](#Document1zzFN_F146)]{.underline}

Scripts are in some ways like recipes\--helping us interpret both the
things we see and the things we do not see. If we observe a person
paying a bill and leaving a restaurant, the familiar restaurant script
triggers a knowledge of earlier events that have happened: the customer
has ordered, been served, and eaten food. When an economist presents a
theory, those who are familiar with the economist\'s script need not
have seen its analysis of distributional considerations: our script
fills in the blanks.

Yet, like recipes we know well, we sometimes find ourselves applying or
following our most ingrained scripts without thinking.
[[\[FN147\]](#Document1zzFN_F147)]{.underline} In her analysis of
\"mindful\" thinking, Ellen Langer explains,

The grooves of mindlessness run deep. We know our scripts by heart. In
the routine of daily life we do not notice what we are doing unless
there is a problem. Locking ourselves out of a car or throwing socks in
the garbage instead of the laundry basket jolts us awake.
[[\[FN148\]](#Document1zzFN_F148)]{.underline} Thus, at the same time
that scripts can help us ignore what we do not see, they also may lead
us to ignore things that we should see. Langer observes that

in cooking we tend to follow recipes with dutiful precision. We add
ingredients as though by official decree. If the recipe calls for a
pinch of salt and four pinches fall in, panic strikes, as though the
bowl might now explode. Thinking of a recipe only as a rule, we often do
not consider how people\'s tastes vary, or what fun it might be to make
up a new dish. [[\[FN149\]](#Document1zzFN_F149)]{.underline}

C. Schemas Schematized

1\. Schemas and the Processing of Information

As we have been asserting, schemas have powerful effects. They help us
organize, find meaning in, and make predictions about our environs
**\*1140** including the actions and behaviors of others.
[[\[FN150\]](#Document1zzFN_F150)]{.underline} In doing so, schemas
\"influence the encoding of new information, memory for old information,
and inferences where information is missing.\"
[[\[FN151\]](#Document1zzFN_F151)]{.underline} Indeed, as Hazel Markus
and Robert Zajonc explain, the influence of schemas on our systems for
processing information is ubiquitous:

In general, information processing may be seen as consisting of schema
formation or activation, of the integration of input with these schemas,
and of the updating or revision of these schemas to accommodate new
input. Accordingly, it should be \[and is\] possible to observe the
influence of schemas at every stage of information processing (e.g.,
encoding, storage, retrieval, inference), at all levels of processing
(conscious, preconscious), and on all parameters of the response (speed,
confidence, accuracy, etc.).
[[\[FN152\]](#Document1zzFN_F152)]{.underline} In short, schemas
interact with our information processing at every step, at all levels,
and on every parameter.

To better appreciate those interactions, it may be helpful to view the
various stages of information processing with the aid of the following
visual schematic.

Figure 1. Information Processing Flow
[[\[FN153\]](#Document1zzFN_F153)]{.underline}

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

Figure 1 illustrates various steps in information processing, beginning
with the search for, or acquisition of, new information based on
individuals\' attention. After focusing on particular pieces of
information, individuals then categorize the information. Once it has
been attended to and categorized, they can then apply a schema to the
information, enabling them to draw inferences and store the information
and related inferences in short- and long-term memory.

**\*1141** Of course, this is just a rough schematic and thus may at
times be more misleading than it is illuminating. For example, the first
box, labeled \"Information,\" might suggest, wrongly, that the
information we select to focus on and process is nicely packaged and
finite (inside the box); yet information is all around us, coming from
every direction and through a variety of mediums. That we tend to see
only a finite portion of it (as the box indicates) reflects more the
operation of our mind than it does the operation of the world that our
mind is attempting to understand. Indeed, narrowing the field of
information to a tractable and revealing subset is one of the most
important functions of the attention and categorization stage.

Also misleading is the diagram\'s suggestion that schemas play a role in
only one stage of information processing. As we shall see, although
individuals often rely on categories to activate schemas, the method of
categorization and the choice of categories is significantly influenced
by the schemas that are available and active in people\'s minds. In that
way, schemas affect each step of the process.

The shaded arrow surrounding the information processing flow depicted in
Figure 1 is meant to illustrate a cognitive phenomenon we term
\"cognitive inertia\"\--the tendency or motive to move forward through
the cognitive process in the direction indicated. As we describe later
in more detail, there are many factors that can slow down this process
or even cause an individual to embark on a separate process. But the
shaded arrow is a reminder that individuals, depending on a variety of
factors\--such as their cognitive load, motivations, and affect\--will
generally process the information as efficiently and quickly as
possible, choosing the cognitive path of least resistance. More
specifically, individuals will, wherever possible, apply active schemas
and categories that do not require them to search their inactive stores
for more appropriate schemas or generate new schemas that are more
appropriate for the information before them.

You can gain a sense of the effect of this tendency in your own mind by
taking a simplified (and black-and-white) version of the famous \"Stroop
test.\" [[\[FN154\]](#Document1zzFN_F154)]{.underline} When most of us
see words in print, we cannot help but read them. **\*1142** Our reading
of familiar words is quite automatic and, to some degree, involuntary.
(If you doubt this, try focusing on a word without reading it.) The
ability to name colors\--or, in this case, name font effects\--is also
fairly automatic, but not as automatic as reading simple words. The
Stroop Test helps reveal the power of automaticity and make evident the
sort of cognitive energy that must be expended to resist it.

Ready? While timing yourself, read out loud the words by column in the
table below.

Table 1. The Stroop Test I

CAPS Underline Italic Bold

CAPS Italic Bold Underline

Bold Underline Underline Italic

Italic Underline Italic CAPS

Italic CAPS Underline Bold

Now, if you are still playing, record your time and prepare to do
something quite similar in the following table. Only this time, say out
loud the font effect in which each word is written and not the words
themselves.

Table 2. The Stroop Test II

Cat WISH Shoe Screen

Mail Italic Hat FACE

FISH Mouse Hand Card

Watch Phone BAG Wire

DESK Ear Pin Dog

Again, write down your time. Finally, say out loud the effect applied to
each word\'s font in the following table. Do not say the font effect
that the word spells.

Table 3. The Stroop Test III

Caps UNDERLINE Italic Bold

Caps Red Bold UNDERLINE

BOLD Italic Underline Italic

Underline Underline ITALIC Caps

ITALIC Underline Underline Bold

Compare your time on the last task to the two previous times. If you are
like most people, you slowed down a little for the second table and
**\*1143** slowed down further, and even found somewhat challenging, the
seemingly simple task in the third table.
[[\[FN155\]](#Document1zzFN_F155)]{.underline} Reading familiar words
takes less cognitive effort than naming font effects. Indeed, it is so
effortless that our mind does it even when we would prefer that it not.
In the last table, that more automatic process of reading has the effect
of interfering with our goal of naming font effects. And to get through
the list, many people have to actively resist the \"top-down\" process
of reading and work hard to do the more cognitively taxing \"bottom-up\"
process of identifying the font effect.
[[\[FN156\]](#Document1zzFN_F156)]{.underline}

Schemas are often associated with top-down or theory-driven cognitive
processes, or \"processes heavily influenced by one\'s organized prior
knowledge, as opposed to processes that are more bottom-up or
data-driven.\" [[\[FN157\]](#Document1zzFN_F157)]{.underline}
Theory-driven processes rely on \"prior expectations, preconceptions and
knowledge about the social world in order to make sense of new
situations and encounters.\"
[[\[FN158\]](#Document1zzFN_F158)]{.underline} In this way, schemas have
the useful effect of making more automatic what would otherwise be
cognitively effortful. Unfortunately, though, they also interfere often
with what we are seeing and lead to significant judgmental biases. We do
not just see our world; we see our world through a distorting filter of
what we want and expect to see. Like rose-tinted glasses and a jaundiced
eye or even a closed mind, schemas color our reality\-- and applying
different schemas to the same events typically transforms the construals
and memories of those events.

In the sections that follow, we analyze in more detail the effects of
schemas on each of the key steps of information processing: (1)
attention and categorization, (2) inference and problem solving, and (3)
memory and retrieval. [[\[FN159\]](#Document1zzFN_F159)]{.underline}

**\*1144** a. Schemas and the Attention and Categorization Process

One of the first things most of us do when entering a room (or any
setting) is to focus on a subset of objects, features, and movements
that occupy or characterize that room. As with the graduate student\'s
office depicted below, there are typically an innumerable, perhaps
infinite, number of things that we might focus on or attend to, making
an examination of all of them impossible. Thus, our focus is\--and must
be\--limited.

Once we have focused on certain things, we begin to categorize and
encode them into our minds.
[[\[FN160\]](#Document1zzFN_F160)]{.underline} Because this
categorization plays a pivotal role in the subsequent application of
schemas, understanding this stage of the process as well as the
influence that our active schemas will have on this stage is critical.
We will first provide some background about the categorization process
itself and a brief summary of the competing theories purporting to
explain how the process actually works.

Figure 2. A Graduate Student\'s Office
[[\[FN161\]](#Document1zzFN_F161)]{.underline}

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

**\*1145** i. The Process of Categorization

Central to the effects of schemas is the process of categorization,
which is often thought to precede the application of schemas. Before
individuals can draw inferences (that is, before they can apply a chosen
schema to the concepts before them), they generally need to categorize
or label the subjects, people, situations, objects, or arguments. Such
categories enable us to classify information so that we can access and
utilize that information effectively and efficiently. The process of
categorization, in other words, enables individuals to impose an initial
order on the information with which they are confronted. \"To categorize
is to render discriminably different things equivalent, to group the
objects and events and people around us into classes, and to respond to
them in terms of their class membership rather than their uniqueness.\"
[[\[FN162\]](#Document1zzFN_F162)]{.underline}

And so, when viewing the following image, most of us have categories
that activate spontaneously. We see a \"car\" or \"truck\" or \"SUV,\"
even when the particular size and contours of this instantiation of
\"automobile\" may be unfamiliar.

Figure 3. A Car?

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

Similarly, instead of an infinite set of names for colors to identify
the infinite gradations in the spectrum, we rely on a dozen or two
categories to gather the variation into meaningful, manageable
groupings\--red, yellow, green, tan, purple, khaki, and so on. What we
might call green could include a wide range of colors that in most
instances makes no sense to **\*1146** distinguish. Green is close
enough. Thus, we view even our colors through tinted glasses.

The categorization process, which is generally considered an automatic
(or unconscious) cognitive process, affects how we see (or do not see)
colors or shades of gray and virtually all types of information that we
encounter:

In moving about the world, we automatically categorize people, animals,
and physical objects, both natural and man-made. This sometimes leads to
the impression that we just categorize things as they are, that things
come in natural kinds, and that our categories of mind naturally fit the
kinds of things there are in the world. But a large proportion of our
categories are not categories of things; they are categories of abstract
entities. We categorize events, actions, emotions, spatial
relationships, social relationships, and abstract entities of an
enormous range: governments, illnesses, and entities in both scientific
and folk theories, like electrons and colds. Any adequate account of
human thought must provide an accurate theory for all our categories,
both concrete and abstract.
[[\[FN163\]](#Document1zzFN_F163)]{.underline}

As Ziva Kunda explains, \"\[c\]lassification is important,\" not just
\"because it allows us to treat different objects as the same,\" but
also because \"it enables us to use our knowledge about categories to
make sense of individual members of these categories.\"
[[\[FN164\]](#Document1zzFN_F164)]{.underline} In that way,
categorization helps to give \"meaning to the environment,\" facilitate
\"communication between individuals sharing the same system of
categories,\" [[\[FN165\]](#Document1zzFN_F165)]{.underline} \"integrate
new information with older information,\" and **\*1147** make the world
more predictable. [[\[FN166\]](#Document1zzFN_F166)]{.underline} The
process of categorization is a critical step in the cognitive process,
for \"\[c\]ategories activate schematic knowledge.\"
[[\[FN167\]](#Document1zzFN_F167)]{.underline}

Before we know how to interact with a man in a jump suit and an oily rag
in his pocket, for example, we might categorize him as a gas station
attendant\--an increasingly rare sight.
[[\[FN168\]](#Document1zzFN_F168)]{.underline} Upon such a
categorization, we can apply our knowledge about gas station attendants
to gain a better understanding of what he is good at doing, what he will
do, and how to interact with him.
[[\[FN169\]](#Document1zzFN_F169)]{.underline} Similarly, once we
categorize the item in the Figure 3 above as a \"car\" or \"SUV,\"
[[\[FN170\]](#Document1zzFN_F170)]{.underline} we will then have a good
idea of how to **\*1148** operate it and where to begin looking for the
gas tank, glove compartment, and ignition, for example. And we will not
be surprised to find the glove compartment gloveless. The initial
process of categorization is thus critical to the subsequent application
of schemas. Categorization is therefore understood as the central
function in the first step of our information process.

In the categorization process, depicted in Figure 4 below, individuals
strike a balance between less cognitively taxing reliance on active
categories versus the more cognitively demanding task of incorporating
individuating attributes. [[\[FN171\]](#Document1zzFN_F171)]{.underline}
Once individuals have performed an initial categorization of the
information before them, they will seek to confirm that initial
categorization; if they are unable to do so, then they may search for a
new and more appropriate category or rely on a subcategory.
[[\[FN172\]](#Document1zzFN_F172)]{.underline} If this recategorization
fails also, then the individual will utilize \"fully individuated,
attribute-by-attribute, piecemeal integration processes.\"
[[\[FN173\]](#Document1zzFN_F173)]{.underline} At the heart of this
process lies the particular means by which an individual categorizes
information, the subject of the next sections.

**\*1149** Figure 4. The Categorization Process
[[\[FN174\]](#Document1zzFN_F174)]{.underline}

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

\(a\) The Classical View of Categorization

Social psychologists have long been developing, testing, and altering
their theories of categorization. Beginning with what is now called the
\"classical\" view of categorization, the process seemed so obvious and
logical that it was taken as true with little evidence to support it.
This classical view assumed that categories were clearly defined and
shared common attributes that were \"necessary and sufficient\" to
determine inclusion or exclusion.
[[\[FN175\]](#Document1zzFN_F175)]{.underline} Most psychologists
considered the categories to be real\--often natural\--and valid group
entities in the social world.
[[\[FN176\]](#Document1zzFN_F176)]{.underline} Thus, for example, just
as something might be classified as a bird if it had wings, a beak and
feathers, Justice Bradley might naturally categorize an individual who
is \"timid\" and \"delicate\" as a woman, and Hitler naturally would
categorize someone who is \"militaristic\" as a German.

**\*1150** Later research uncovered much evidence to undermine the
classical view, including evidence that the clarity suggested by the
classical view simply does not exist.
[[\[FN177\]](#Document1zzFN_F177)]{.underline} Category boundaries are
\"fuzzy,\" and it is \"not always clear which instances belong in the
category.\" [[\[FN178\]](#Document1zzFN_F178)]{.underline}

Indeed, that is the sort of fuzziness that Honda is attempting to create
in the vehicle pictured in Figure 3 above. Instead of falling clearly
within a single category of vehicle, it was designed to, and is being
marketed as, having elements of several. As one review puts it:

Sort of like a traditional pickup and somewhat like a sport-utility
vehicle, the Honda Element is an all-new model that applies an
innovative approach to functionality. The Element aims to accommodate a
bit of every demographic with a pickup\'s hard flat floor, an enclosed
rear area like an SUV, fuel economy and handling performance like a car,
available 4-wheel-drive and a price starting around \$16,000.
[[\[FN179\]](#Document1zzFN_F179)]{.underline}

Social psychologists have discovered, as Honda has demonstrated, the
socially constructed nature of most categories: our categories are not,
as has been assumed, entirely naturally occurring groups. Instead,
external factors play a large role in the categorizations themselves
(not simply in the information that is attached to these categories).
[[\[FN180\]](#Document1zzFN_F180)]{.underline} As each criticism
undermined the classical view, other theories began to gain currency.

\(b\) The Prototype View of Categorization

In the 1970s, Eleanor Rosch pioneered the first major alternative theory
and full challenge to the classical view: prototype theory.
[[\[FN181\]](#Document1zzFN_F181)]{.underline} Rosch tested and largely
rejected two implications of the classical theory: first, that all the
members of categories are equally good examples of the category, since
they all share the same attributes; and second, that

categories \[are\] independent of the peculiarities of any beings doing
the categorizing; that is, they . . . \[do\] not involve such matters as
human neurophysiology, human body movement, and specific human
capacities to perceive, to form mental images, to learn and remember, to
organize the things learned, and to communicate efficiently.
[[\[FN182\]](#Document1zzFN_F182)]{.underline} **\*1151** Rosch found,
among other things, evidence that some things were more
\"representative\" of a category than others, a conclusion that seemed
inconsistent with the idea that a category\'s members either do or do
not meet particular criteria for membership.
[[\[FN183\]](#Document1zzFN_F183)]{.underline}

The prototype view suggested that category members do not have necessary
and sufficient attributes, but that categorization is an inexact
process, in which elements of concepts often fall within \"fuzzy
boundaries.\" [[\[FN184\]](#Document1zzFN_F184)]{.underline} The
prototype theory hypothesized that people think not in terms of clear
categories, but in terms of an average category member against which
potential members were then compared. Rosch\'s research suggested that
people use the most typical or prototypical instance\--the central
tendency\--to represent the category.
[[\[FN185\]](#Document1zzFN_F185)]{.underline} Under this new view,
\"\[p\]eople . . . decide if a new instance fits the category by
assessing its similarity to the prototype.\"
[[\[FN186\]](#Document1zzFN_F186)]{.underline} \"The more features an
instance shares with other category members, the more consistently,
consensually, and quickly it is identified as a category member.\"
[[\[FN187\]](#Document1zzFN_F187)]{.underline} As Susan Fiske and
Shelley Taylor summarize,

The perception that some instances are more typical than others led to
the idea that instances range from being quite typical to atypical, with
a most typical or prototypical instance best representing the category.
The prototype is the \'central tendency\' or average of the category
members.

. . . People then decide if a new instance fits the category by
assessing its similarity to the prototype.
[[\[FN188\]](#Document1zzFN_F188)]{.underline}

Thus, the prototype view is based on the idea that individuals rely on
abstract representations of categories\--for example, the average
student, **\*1152** the average bird, the average woman, or the average
Jew\--to guide their attempts to categorize the information before them.
[[\[FN189\]](#Document1zzFN_F189)]{.underline}

Rosch and others found support for the prototype view of categorization
in a number of experiments in which subjects appeared to categorize
based on typicality rather than on meeting certain criteria.
[[\[FN190\]](#Document1zzFN_F190)]{.underline} In one experiment, Rosch
asked subjects to rate things based on their typicality to a specific
category on a scale of 1 to 7, with 1 being very typical and 7 being
very atypical. [[\[FN191\]](#Document1zzFN_F191)]{.underline} Consistent
with the theory, some items were rated more typical than others. For
example, a gun was considered a very typical weapon (with an average
ranking of 1.03), while a pitchfork was not (4.67); comparatively, a
robin was considered a very typical bird (1.02) while a chicken was not
(4.02). [[\[FN192\]](#Document1zzFN_F192)]{.underline} Similarly,
subjects in a study by Lance Rips, Edward Shoben, and Edward Smith
viewed robins as more bird-like than chickens, as detailed in Table 4
below. [[\[FN193\]](#Document1zzFN_F193)]{.underline}

Table 4. Typicality Ratings for Birds and Mammals
[[\[FN194\]](#Document1zzFN_F194)]{.underline}

Instance Rating Instance Rating

Robin 3.00 Deer 2.83

Sparrow 3.00 Horse 2.76

Bluejay 2.92 Goat 2.75

Parakeet 2.83 Cat 2.67

Pigeon 2.83 Dog 2.67

Eagle 2.75 Lion 2.67

Cardinal 2.67 Bear 2.58

Hawk 2.67 Rabbit 2.58

Parrot 2.58 Mouse 2.25

Chicken 2.00 Pig 2.17

Goose 2.00

In another experiment, Rosch provided a category to subjects and then
asked them to compose a sentence including the category. After sentences
**\*1153** were created, a second group of subjects were asked to rate
how sensible or \"natural\" the resulting sentences were when the
category name was replaced with a specific member of that category.
[[\[FN195\]](#Document1zzFN_F195)]{.underline} For example, when
provided with the category of \"bird,\" the first group of subjects
composed sentences like the following: \"Twenty or so birds often perch
on the telephone wires outside my window and twitter in the morning.\"
[[\[FN196\]](#Document1zzFN_F196)]{.underline} More typical members of
the categories\--such as, in Table 4 above, a sparrow\--received higher
\"sensible\" ratings than less typical members, such as a turkey.
[[\[FN197\]](#Document1zzFN_F197)]{.underline}

Lila and Henry Gleitman have similarly discovered that people believe
that \"7 is a better \'odd number\' than, say, \'51\' and that \'4\' is
a more typical (hence better) even number than, say, \'196,\"\' even
though people understand that 63 is an odd number and 184 is an even
number. [[\[FN198\]](#Document1zzFN_F198)]{.underline}

One important way in which items can be more or less similar to a
categorical prototype has to do with whether the boundaries of
categories are more or less fuzzy. For many less typical members, there
is often disagreement not only on the degree of typicality of the item,
but also on whether the item belongs in another category altogether.
Michael McCloskey and Sam Glucksberg found significant disagreement
about category membership\--from whether a stroke is a disease to
whether pumpkin is a fruit.
[[\[FN199\]](#Document1zzFN_F199)]{.underline} The fuzziness of category
boundaries is also well illustrated in an experiment conducted by
William Labov. Labov presented subjects with illustrations of a cup in
which the width of the cup was gradually increased.
[[\[FN200\]](#Document1zzFN_F200)]{.underline} People had a difficult
time agreeing when the category of \"cup\" gave way to the category
\"bowl.\" Moreover, when people were asked to imagine that the cup/bowl
was filled with mashed potatoes and placed on a table, there was a
dramatic shift in perception across all subjects, with fewer percentages
responding that it was a cup at all widths.
[[\[FN201\]](#Document1zzFN_F201)]{.underline} Context, it is clear,
matters a great deal, particularly when category boundaries are
ambiguous. [[\[FN202\]](#Document1zzFN_F202)]{.underline}

**\*1154** (c) Other Theories of Categorization

Some recent critics of the prototype view have advanced two alternative
theories for the categorization process\--the \"ideals or extremes
theory\" and the \"exemplar theory\"\--both of which are gaining some
ground. [[\[FN203\]](#Document1zzFN_F203)]{.underline} The theories
share some common characteristics. The ideals or extremes theory assumes
that categories are defined not by some average or central tendency, but
either by ideal cases or by extreme cases.
[[\[FN204\]](#Document1zzFN_F204)]{.underline} According to the exemplar
theory, categorization can best be described as represented by specific
and often varying instances rather than some average or typical
prototype. [[\[FN205\]](#Document1zzFN_F205)]{.underline} The exemplar
view of categorization differs from the prototype view in its focus on a
set of examples that together help guide categorization, rather than a
single, typical member. To decide whether an item fits into a particular
category, a person will compare and contrast the item to the full set of
the categorical examples or exemplars.
[[\[FN206\]](#Document1zzFN_F206)]{.underline}

While there remains disagreement over the exact process of
categorization, most researchers agree that the classical view is
lacking. In its place, the prototype view has claimed the most
proponents. In general, however, there is likely to be some truth to all
of the alternatives to the classical theory\--individuals likely rely on
some combination of the prototype, extremes or ideals, and exemplars
categorization processes. [[\[FN207\]](#Document1zzFN_F207)]{.underline}

Archie Bunker, puzzled by how the patient could be the surgeon\'s son
since his father was killed in the car accident, is relying on
categories developed in a world where all of the surgeons Archie has
encountered in life and in the media have been male. The prototypical
surgeon, as well as the ideals, extremes, and exemplars, are, when
viewed from Archie\'s chair, all male. The power of the category, then,
is not just in the way that it simplifies Archie\'s thinking within the
categories, but also in the way that it renders more difficult his
thinking outside of these categories. And, of course, categories have
the same general effects on us all.

**\*1155** ii. Category Organization

Social cognition indicates that in addition to relying on categories to
classify incoming information, people often organize these categories
hierarchically, \"with categories becoming more inclusive as they become
broader.\" [[\[FN208\]](#Document1zzFN_F208)]{.underline} As depicted in
Figure 5, the more specific categories of our hierarchical organization
contain characteristics in common with their more general counterparts,
but not necessarily the other way around.
[[\[FN209\]](#Document1zzFN_F209)]{.underline}

Figure 5. Example of Hierarchical Category Organization
[[\[FN210\]](#Document1zzFN_F210)]{.underline}

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Thus, the characteristics inherent in the religious devotee would be
reasonably true of Buddhist monks, Catholic nuns, or Hasidic Jews. But
what is true for Hasidic Jews is not necessarily true of all religious
devotees: a yarmulke has little in common with a habit or a shaven head,
other than its location.

iii\. The Effects of Schemas on the Attention and Categorization
Processes

While the categorization process discussed above plays a central role in
subsequent schema application, the influence is not only one-way.
Schemas and, in particular, our active schemas, exert an important
influence on categorization and the overall attention process, as
depicted in Figure 6.

**\*1156** Figure 6. Schema Effects on Attention and Categorization
[[\[FN211\]](#Document1zzFN_F211)]{.underline}

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In this section, we consider primarily the effects of schemas on
attention, though it should be clear that by influencing the attention
process, they exert an influence on the categorization function.
According to Markus and Zajonc, \"\[s\]chemas influence what information
will receive attention and how it will be encoded and organized.\"
[[\[FN212\]](#Document1zzFN_F212)]{.underline} The attention step occurs
when individuals enter a crowded room and, depending on what they are
looking for\--a friend or something to drink, for instance\--their
attention is guided in different ways.
[[\[FN213\]](#Document1zzFN_F213)]{.underline} The categorization step
occurs at the same time that the individuals\' attention is moving
around the room, settling on some things and not others. Each thing that
the individuals focus attention on, they categorize and encode.
[[\[FN214\]](#Document1zzFN_F214)]{.underline}

Schemas play a significant role in the attention step as well as the
categorization step. In the attention step, according to David
Rumelhart, \"schema\[s\] guide our information seeking. Not only do
schema\[s\] tell us what to see, but they also tell us where to see
it.\" [[\[FN215\]](#Document1zzFN_F215)]{.underline} We look for things
where our schemas tell us they should be found. More generally, we are
more likely to attend to information that is more relevant and ignore
information that is less relevant, as determined by our schemas.
[[\[FN216\]](#Document1zzFN_F216)]{.underline} As Kunda puts it, \"We
may notice, for example, that Alex pushed John but not notice what Alex
was wearing at the time or where exactly he touched **\*1157** John.\"
[[\[FN217\]](#Document1zzFN_F217)]{.underline} And, similarly, Ulric
Neisser explains that \"\[p\]erceivers pick up only what they have
schemata for, and willy-nilly ignore the rest.\"
[[\[FN218\]](#Document1zzFN_F218)]{.underline}

Figure 7. The Coffee Shop [[\[FN219\]](#Document1zzFN_F219)]{.underline}

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Figure 7 helps illustrate the phenomenon. Take a look at it. If you are
like most people who have looked at the photograph, you see a \"coffee
shop\" or \"diner\" and a \"hotel.\" You might also have noticed the
\"barber pole\" and the person entering the building. Fewer than
one-quarter of the subjects saw something animate in the center of the
photo. And only about four percent noticed the suicidal woman plummeting
in the middle of the picture. A photo of that sort does not tend to
activate a schema for such a horrible possibility.
[[\[FN220\]](#Document1zzFN_F220)]{.underline}

**\*1158** In a famous experiment demonstrating these effects, John
Bransford and Marcia Johnson asked subjects to read the following
description of a widely experienced process:

The procedure is actually quite simple. First you arrange things into
different groups. Of course, one pile may be sufficient depending on how
much there is to do. If you have to go somewhere else due to lack of
facilities that is the next step, otherwise you are pretty well set. It
is important not to overdo things. That is, it is better to do too few
things at once than too many. In the short run this may not seem
important but complications can easily arise. A mistake can be expensive
as well. At first the whole procedure will seem complicated. Soon,
however, it will become just another facet of life. It is difficult to
foresee any end to the necessity for this task in the immediate future,
but then one can never tell. After the procedure is completed one
arranges the materials into different groups again. Then they can be put
into their appropriate places. Eventually they will be used once more
and the whole cycle will then have to be repeated. However, that is part
of life. [[\[FN221\]](#Document1zzFN_F221)]{.underline}

Subjects who were given the schema \"washing clothes\" before reading
the paragraph processed the information much differently\--and made
sense of the paragraph far more easily\--than people who were provided
with no schema. And those in the former group were better able to recall
the various steps described in the passage.
[[\[FN222\]](#Document1zzFN_F222)]{.underline}

**\*1159** Social psychologists have found that schemas will influence
not just our attention, but also the process of categorizing the
information to which we attend. For instance, our race schemas may lead
us to categorize people differently even if their behavior is the same.
A child who grabs an eraser and runs off may be categorized as a thief
if the child is black and as a prankster if the child is white.
[[\[FN223\]](#Document1zzFN_F223)]{.underline}

In light of the significant role that schemas play in attention and
categorization, their dangers become more evident. William von Hippel
described the good and the bad of schemas this way:

Schema\[s\] clearly serve an important conceptual and organizational
role in information processing, and they provide insight into what is
likely to occur and what has probably occurred. For these reasons, they
seem to allow perceivers to process more information with less effort.
Yet herein lies their fault. . . . \[Very often\] schema\[s\] do not
really allow more information processing with less effort. Rather,
schema\[s\] simply allow the perceiver to quickly encode the gist of an
event, thereby causing the perceiver not to attend to the available
perceptual information. So the gist is stored, but the original
perceptual event is lost. In such a fashion, the momentary facilitation
in understanding that schema\[s\] bring about can **\*1160** be
outweighed by the long-term loss to memory of the complex, perceptual
world. [[\[FN224\]](#Document1zzFN_F224)]{.underline} More tersely,
Kunda explains that \"the seemingly irrelevant details that \[schemas\]
lead us to ignore may actually be important.\"
[[\[FN225\]](#Document1zzFN_F225)]{.underline}

Such dangers\--created by the fact that our categories and schemas may
bias our understanding of the world in numerous ways\--are one of the
key concerns of this Article.

iv\. The Effects of Categorization

The previous section considered some of the effects of schemas on
attention and categorization. In this section, we focus on how
categorization influences our perceptions,
[[\[FN226\]](#Document1zzFN_F226)]{.underline} regarding the way it
enhances or diminishes the perceived similarities and differences
between items, beliefs, people, and other information.

In one well-known experiment, Henri Tajfel and A.L. Wilkes showed that
items within a category were perceived by individuals to be more similar
than they actually were and that items in different categories were
perceived to be more different than they actually were.
[[\[FN227\]](#Document1zzFN_F227)]{.underline} As in Figure 8, subjects
were presented with two sets of lines of different lengths and asked to
make judgments about the lengths of the lines.
[[\[FN228\]](#Document1zzFN_F228)]{.underline} Adding nothing other than
category labels (mere letters) for each set of lines led one group of
subjects to estimate that the lines within each set were more similar in
length to one another than they were in reality.
[[\[FN229\]](#Document1zzFN_F229)]{.underline} A second control group
**\*1161** of subjects was shown the lines without the labels and did
not make the same categorical mistake.
[[\[FN230\]](#Document1zzFN_F230)]{.underline} In addition, individuals
who were shown the labeled sets estimated that the differences between
the two sets of lines were greater than the differences that the control
group (which was shown unlabeled sets) estimated.
[[\[FN231\]](#Document1zzFN_F231)]{.underline}

Figure 8. Tajfel & Wilkes\'s Categorization Experiment

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Numerous experiments have demonstrated that the effects of
categorization for people are identical to those for lines.
[[\[FN232\]](#Document1zzFN_F232)]{.underline} As Fiske and Taylor
summarize, \"categorizing and labeling makes the person seem even more
like other category members than would otherwise be true.\"
[[\[FN233\]](#Document1zzFN_F233)]{.underline} \"Simply categorizing
people into groups minimizes within-group variability and maximizes
between-group differences:\"
[[\[FN234\]](#Document1zzFN_F234)]{.underline}

**\*1162** Categorization\'s effect of reducing perceived variability is
even stronger when people are considering groups to which they do not
belong. A group of outsiders (an outgroup) appears less variable than
one\'s own group (ingroup) . . . . Minimizing the variability of members
within an outgroup means that they are not being recognized as distinct
individuals as much as they would be if they were perceived as ingroup
members. [[\[FN235\]](#Document1zzFN_F235)]{.underline}

Relatedly, social psychologists have learned that outgroup members are
characterized by less complex conceptualizations than ingroup members.
[[\[FN236\]](#Document1zzFN_F236)]{.underline} Members of the male
category, for example, might think about members of the category of
\"woman\" along fewer dimensions than they would judge themselves.
[[\[FN237\]](#Document1zzFN_F237)]{.underline} The expression \"They all
look alike\" is one of the better-known and more offensive
manifestations of this tendency.
[[\[FN238\]](#Document1zzFN_F238)]{.underline}

These findings have implications for the perceived legitimacy of our
categories. The act of categorization may reinforce the initial sense
that the elements categorized together are appropriately categorized
together. If two lines or two people look more alike because of a
category label, the label will seem more correct, logical, or natural.
Thus, categorization may create its own vicious cycle.

**\*1163** The effects of mere categorization may go far in explaining
the sort of gender, ethnicity, and race \"differences\" so long \"seen\"
among humans. [[\[FN239\]](#Document1zzFN_F239)]{.underline} For
instance, Justice Bradley\'s ability to see the \"natural constitution\"
of women so clearly is likely to result, in part, from lumping all women
into the same category. Even as he recognizes exceptions to the general
rule, he sees more similarities between women as a whole than
differences. And Aristotle and Plato\'s perceptions of the outgroup were
similarly invariable and uncomplex and perhaps seemed more accurately
categorized with each day that the category persisted. The creation and
maintenance of racial classifications
[[\[FN240\]](#Document1zzFN_F240)]{.underline} may increase the sense
that those categorizations exist and are natural even when biological
differences may suggest otherwise.
[[\[FN241\]](#Document1zzFN_F241)]{.underline}

The effects of categorization do not end here. In her analysis of the
role of categorization in the creation and maintenance of difference,
Martha Minow applies an understanding of categories to the way that law
treats differences and boundaries between people, and emphasizes that
categorization, while it may seem a relatively benign process, can have
dangerous effects. [[\[FN242\]](#Document1zzFN_F242)]{.underline} The
process of categorization, Minow argues, is a process in which we are
not only classifying information, but \"we are investing particular
classifications with consequences and positioning ourselves in relation
to those meanings.\" [[\[FN243\]](#Document1zzFN_F243)]{.underline} We
divide the world into groups, distinguish among the groups, and
discriminate accordingly. Such categorization effects can play an
important role in creating and perpetuating all forms of prejudice or
intolerance for difference, including racism, sexism, heterosexism,
anti-Semitism, ageism, lookism, ableism, and so on.

This section has summarized some of the effects of the categorization
process viewed in isolation. There are a number of other effects that
are related to, and that find their roots in, the categorization
process, but that results in part from the application of schemas to
categories, the topic of the following two sections.

**\*1164** b. Schema Effects on the Inference and Problem Solving
Process

We turn now to the influences of schemas on our inferences. In addition
to guiding our attention and influencing our perceptions of variability
within and between groups, the categories that emerge from initial
stages of information processing interact with our knowledge base and
schemas to help us draw inferences that go well beyond what we observe.
[[\[FN244\]](#Document1zzFN_F244)]{.underline} Thus, while the last
section reviewed the effect of schemas on categorization, the following
sections describe their effect on subsequent processes of inference and
memory. The use of schemas to infer additional information, as depicted
in Figure 9, makes the categorization function even more significant
than the previous section indicated. When our construal of information
turns on our schemas and categories, the schemas and categories
themselves can figure more prominently in our beliefs, attitudes, and
actions than does the information itself. For example, as Ziva Kunda
writes, \"It is this function of going beyond the information given that
makes \[categories\] often the subject of heated political debates: A
person classified as a freedom fighter is also assumed to be noble and
heroic, whereas a terrorist is assumed to be despicable and murderous.\"
[[\[FN245\]](#Document1zzFN_F245)]{.underline}

As will become clear, the interaction between our categories and our
preexisting knowledge, as embedded in the schemas we apply, influences
every aspect of our \"inference\" process\--including interpretation,
evaluation, judgment, prediction, and problem solving.

Figure 9. Schema Effects on Inference and Problem Solving
[[\[FN246\]](#Document1zzFN_F246)]{.underline}

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Walter Crockett has identified three types
[[\[FN247\]](#Document1zzFN_F247)]{.underline} of inferences that
individuals make based on the schemas that they apply: default
inferences, inferences about future events, and inferences to other
schemas. [[\[FN248\]](#Document1zzFN_F248)]{.underline} The **\*1165**
first type, default inferences, refers to the phenomenon of filling in
unobserved default information based on a schema. Default inferences
describe much of the more common situations in which we apply our prior
knowledge to the information we have categorized. When we only observe a
person entering a diner and exiting it forty-five minutes later, we will
infer, from the restaurant script, that the person ordered food from a
waiter, the waiter brought the food, the person ate much of the food,
and paid for the food on the way out.
[[\[FN249\]](#Document1zzFN_F249)]{.underline} And, although we can see
only three wheels in the photograph of the Honda Element, we can be
pretty confident that the vehicle actually has a fourth wheel that looks
much like the others.

The second type of inference, inferences about future events, is closely
related to the first: it refers to our tendency to base predictions (to
fill in a type of missing information) on our schemas. So, for instance,
if we were to observe a person entering a diner, we would again tend to
rely on our restaurant script to predict what that person was about to
do, even without witnessing that person\'s exit forty-five minutes
later. [[\[FN250\]](#Document1zzFN_F250)]{.underline} Crockett provides
the example of how our categorization of someone as \"helpful\" will
lead us to predict, with our helpful person schema, how that person will
behave in future situations in which help is called for.
[[\[FN251\]](#Document1zzFN_F251)]{.underline} Thus, considering those
two types of inferences, when we designate a person as a \"freedom
fighter\" or a \"terrorist,\" we can more easily fill in default details
about, for example, what motivates that person, what activities that
person engages in, and what policies\--reward or punishment\--that
person will respond to in the future. Such inferences provide us
important cues for our own behavior and a valuable sense of control over
our futures. [[\[FN252\]](#Document1zzFN_F252)]{.underline}

A subset of predictive inferences are causal inferences that schemas,
particularly stereotypes, make possible. In one of the seminal
demonstrations of this phenomenon, subjects watched either an African
American or a European American push another person. Where the former
**\*1166** was an African American, subjects were more likely to
attribute the behavior to internal or dispositional factors and not to
situational factors. Subjects made the reverse attribution where the
former was a European American.
[[\[FN253\]](#Document1zzFN_F253)]{.underline} Bernd Wittenbrink, James
Hilton, and Pamela Gist have shown more recently how stereotyping
contributes to the tendency to dispositionalize bad outcomes to
outgroups. [[\[FN254\]](#Document1zzFN_F254)]{.underline} Stereotypes
contain not simply a list of attributes for a particular group, but a
fairly elaborate set of presumptions about the causal relationships
among those attributes.

The final type of inference, inferences to other schemas, refers to the
ability of one schema to enable broad inferences based on its
relationship to another schema. If, for instance, a helpful person is
often conscientious, then activation of the helpful schema will enable
us also to apply the conscientious schema and to make default and
predictive inferences based on that schema.
[[\[FN255\]](#Document1zzFN_F255)]{.underline} That sort of schema
jumping can influence our inferences in numerous ways. Indeed,
categorization that activates one schema can cut off other possible
categorizations associated with other schemas. Thus, when Justice
Bradley in Bradwell v. Illinois
[[\[FN256\]](#Document1zzFN_F256)]{.underline} determined, based on his
schemas regarding women and lawyers, that women should not be admitted
to law schools, [[\[FN257\]](#Document1zzFN_F257)]{.underline} he was
drawing inferences not solely from the information at hand, but from his
interpretation of that information and the relationships and interaction
between the schemas that the case activated in him. In his mind, the
women\'s sphere (or the then-dominant schema regarding women) could not
be reconciled with the rough and tumble sphere of aggressive,
adversarial attorneys.

**\*1167** The influence of our schemas goes beyond the inferential
processes of individuals. When two or more people perceive information
through the same schemas, collective inferences are easier to reach
because perceptions, judgments, and conclusions (indeed all aspects of
our inferential process) are shared and easier to communicate. Thus,
shared schemas allow a speaker to omit many details inasmuch as the
audience will automatically fill in the same default and predictive
inferences and will engage in the same schema jumping as the speaker
does. Absent shared schemas, potential disagreement or confusion shadows
a speaker\'s every utterance.
[[\[FN258\]](#Document1zzFN_F258)]{.underline} When the speaker and
audience have different categories and schemas in mind when conversing
about a particular issue, greater effort is necessary to ensure
meaningful dialogue.

There are other potential risks associated with our reliance on schemas
and categories in our inferential processes. David Rumelhart suggests
three situations in which schemas are most likely to bias our
inferences: first, when a person does not have the appropriate schema;
second, when the person has the appropriate schema but does not have
enough \"clues\" to activate the schema; and finally, when the person is
able to arrive at a consistent interpretation based on an activated
schema, even when the schema is not an appropriate one.
[[\[FN259\]](#Document1zzFN_F259)]{.underline}

Applying Rumelhart\'s warnings, the \"washing clothes\" scenario
discussed above [[\[FN260\]](#Document1zzFN_F260)]{.underline} may make
these sources of bias easier to grasp. The first potential source of
bias is not applicable in this case, because most of us generally do
have access to the \"washing clothes\" schema. The second source of bias
is actually the one that the experiment best illustrates. That is, the
information in the passage was so vague that it failed to trigger any
schema in most subjects. The third source of bias is exemplified in a
person, described by Rumelhart, who was convinced that the passage
described the person\'s day-to-day job: \"pushing papers,\" an activated
schema that seemed consistent with the information, yet was quite wrong.
[[\[FN261\]](#Document1zzFN_F261)]{.underline}

**\*1168** In sum, although schemas and categories save us a tremendous
amount of cognitive energy, they do not ensure that our inferences are
trustworthy and, at times, may actually ensure that they are not.

c\. Schema Effects on Memory and the Retrieval Process

As an additional related danger of our schema- and category-based
inference process, we often fail to recognize or recall what information
was inferred, through default and prediction inferences and through
schema jumping, and what information was actually observed.
[[\[FN262\]](#Document1zzFN_F262)]{.underline} We describe this and
other memory effects in more detail in this section.

Finally, as we just indicated, and as depicted in Figure 10, schemas may
have a significant effect not just on what we see and infer about what
we see, but also on what we remember.

Figure 10. Schema Effects on Memory and Retrieval
[[\[FN263\]](#Document1zzFN_F263)]{.underline}

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

Social psychologists have found that schemas generally facilitate our
recall by providing us with a cognitive handle for retaining
information. [[\[FN264\]](#Document1zzFN_F264)]{.underline} Nancy Cantor
and Walter Mischel tested subjects\' memories of various people, some of
whose characteristics would tend to activate a particular schema (for
example, a person might be described as extroverted), and some of whose
characteristics did not tend to activate that schema (for example, a
person might be described as having both introverted and extroverted
characteristics). [[\[FN265\]](#Document1zzFN_F265)]{.underline} Memory
of the attributes of these individuals who triggered a particular schema
was higher than those whose characteristics did not clearly fall into a
familiar schema. [[\[FN266\]](#Document1zzFN_F266)]{.underline} As Fiske
and **\*1169** Taylor summarize this line of research, individuals\'
memories \"\[are\] superior whenever \[they\] are given an appropriate
organizing theme.\" [[\[FN267\]](#Document1zzFN_F267)]{.underline}

But schemas do not facilitate recall of all information equally; schemas
are particularly influential in aiding our memories for schema-relevant
information. [[\[FN268\]](#Document1zzFN_F268)]{.underline} For example,
in one experiment, subjects were asked to watch a videotape of a woman
celebrating her birthday over dinner with her husband.
[[\[FN269\]](#Document1zzFN_F269)]{.underline} Before watching the
videotape, some individuals were told that the woman was a waitress and
other subjects were told that she was a librarian.
[[\[FN270\]](#Document1zzFN_F270)]{.underline} Consistent with the
hypothesis that schemas will influence retrieval of relevant
information, participants who were told that the woman was a librarian
later recalled seeing characteristics that were prototypical of
librarians\--such as \"wears glasses\" and owns \"classical records.\"
Those told that the woman was a waitress recalled characteristics that
might be prototypical of waitresses\--such as recalling that she drank
beer during the dinner and that she had a television.
[[\[FN271\]](#Document1zzFN_F271)]{.underline}

Mark Snyder and Seymour Uranowitz conducted a similar experiment in
which subjects were read a woman\'s life history.
[[\[FN272\]](#Document1zzFN_F272)]{.underline} One group of subjects was
told that the woman was a lesbian, a second group was told that she was
a heterosexual, and a control group was not told anything about her
sexual preference. [[\[FN273\]](#Document1zzFN_F273)]{.underline} After
being read the passage, subjects were asked to recall information about
the passage. Subjects in the first group were more likely to recall
information that fit the lesbian stereotype than either of the other two
groups. [[\[FN274\]](#Document1zzFN_F274)]{.underline}

**\*1170** To test this influence on yourself, think back to the
photograph of the graduate student\'s office provided in Figure 2. Think
about the contents of that room. Write down as much as you recall.

In 1981, William Brewer and James Treyens conducted an experiment
resembling the one in which we have just asked you to participate.
[[\[FN275\]](#Document1zzFN_F275)]{.underline} In the actual study,
subjects believed that they were about to take part in an experiment in
another room. But before entering that other room, they were told that
the graduate student experimenter needed to make sure that the previous
subject was finished, and they were asked to wait in his office, the
very office pictured in Figure 2, for thirty-five seconds. As soon as
the subjects exited that room, they were then told that the real
experiment had been underway, and that they were participating in a
memory test. Subjects were asked to recall as much as they could about
the office that they had just waited in. The results revealed that
\"memory\" was infused as much or more with expectation and experience
(that is, the graduate student office schemas) than with accurate
perceptions. The subjects did not remember well items that were present
in the room but were aschematic. Very few remembered the wine bottle,
the coffee pot, the skull, or the picnic basket, for example. Expected
items, such as chairs and the desk, were most frequently recalled. And
items that were absent but expected were commonly remembered. For
instance, approximately one-third of the subjects confidently
\"remembered\" books on the shelves. But the book shelves contained
virtually everything except books. As Brewer and Treyens explained these
bibliographic fantasies, information slots that were not filled with
perceptual information were filled nonetheless with expectation-based
schematic defaults.

Those studies and many like them indicate the way in which people recall
schema-relevant information that is consistent with the schema.
[[\[FN276\]](#Document1zzFN_F276)]{.underline} Yet the evidence
indicates that even if the schema-relevant information is inconsistent
with the schema, it tends to be recalled more readily than information
that is irrelevant. [[\[FN277\]](#Document1zzFN_F277)]{.underline} Reid
Hastie and Purohit Kumar conducted early research into the effect of
schema-inconsistent attributes on subsequent recall.
[[\[FN278\]](#Document1zzFN_F278)]{.underline} In their research, they
first provided individuals with an expectation about a person and then
provided information about the **\*1171** person\'s behavior.
Individuals were able to recall more easily behaviors that were
inconsistent with the expectation.
[[\[FN279\]](#Document1zzFN_F279)]{.underline} For example, if Archie
Bunker were to come face to face with a woman surgeon, he would no doubt
take notice, even if he did not like what he saw. Hastie found that both
consistent and inconsistent information was recalled better than
irrelevant information, suggesting a U-shaped curve plotting the amount
of recall by the consistency of information (with ambiguous or
irrelevant information being in the middle).
[[\[FN280\]](#Document1zzFN_F280)]{.underline} Given the schemas
regarding women\'s attributes discussed in our initial examples, a
woman\'s ability might be recalled more easily than, for example, a
woman\'s height.

Perhaps most interesting, there is evidence that in some cases
individuals will exhibit a tendency to recall schema-inconsistent
information to be schema-consistent. For example, in one experiment,
subjects\--in this case, children\-- watched a video of a female doctor
and a male nurse and then were asked about the genders of the doctor and
nurse. [[\[FN281\]](#Document1zzFN_F281)]{.underline} Over half of the
subjects incorrectly recalled that the doctor was male. In a slightly
more complicated experiment, subjects were told one of two versions of a
story about an engaged couple.
[[\[FN282\]](#Document1zzFN_F282)]{.underline} Both versions described a
man who did not want to have children, a preference that he was
reluctant to reveal to his fiancée. Upon telling his fiancée, some
subjects learned that she felt the same about having children and that
they were both relieved. [[\[FN283\]](#Document1zzFN_F283)]{.underline}
A different outcome, told to some subjects, was that the woman was
\"horrified\" by what her fiancée told her \"since having children
\[was\] very important to her.\"
[[\[FN284\]](#Document1zzFN_F284)]{.underline} A bitter discussion
ensued, and the story ended there.

After being told one version of that story, subjects were given some
administrative tasks, such as filling out consent forms. While doing so,
the experimenter casually mentioned to some subjects either that the man
and woman eventually got married and were still happily together, or
that they broke off the engagement. Other subjects were told nothing.
Subjects were **\*1172** asked later to recall the story.
[[\[FN285\]](#Document1zzFN_F285)]{.underline} Those who were given
schema consistent information following the story (for example, the
\"relieved\" couple got married) recalled the story with a high degree
of accuracy. Those given inconsistent information, however (for example,
the \"relieved\" couple broke off their engagement), tended to recall
information \"erroneous in the direction of producing reconciliation of
the conflicting elements.\"
[[\[FN286\]](#Document1zzFN_F286)]{.underline} For example, subjects
might recall less disagreement in the original story if told that they
eventually got married and remained happily married. Subjects similarly
attempted to reconcile the information by offering responses such as the
following: \"They discussed it and decided they could agree on a
compromise: adoption,\" or \"She was only a little upset at the
disagreement.\" [[\[FN287\]](#Document1zzFN_F287)]{.underline} In
addition, the longer the subjects had to wait between the time they were
provided with the schema and the test of their recall, the greater the
tendency to distort the story to be consistent with the schema.
[[\[FN288\]](#Document1zzFN_F288)]{.underline}

Based on such results, David Schneider concludes that \"we often
remember information as particularly consistent with the schema\[s\] we
used to understand and process that information.\"
[[\[FN289\]](#Document1zzFN_F289)]{.underline} Memory

leaves out many details that were never recorded or which have been
forgotten. Beyond that . . . our memories are influenced by assumptions
we make and inferences we draw. Having decided that the man before me is
a criminal, I may remember him as bigger and more muscular than he
really is. [[\[FN290\]](#Document1zzFN_F290)]{.underline}

A simpler version of the same phenomenon is demonstrated by an
experiment in which subjects were read a list of words: \"mad, fear,
hate, rage, temper, fury, ire, wrath, happy, fight, hatred, mean, calm,
emotion, \[and\] enrage.\"
[[\[FN291\]](#Document1zzFN_F291)]{.underline} When asked to recall
words that they had been read, experimenters found a large tendency to
recall a highly associated word that had been left out of the list: in
this case, a large percentage of subjects recalled being read the word
\"anger.\" [[\[FN292\]](#Document1zzFN_F292)]{.underline} The list of
words activated a **\*1173** schema that triggered memory for elements
that were not included in the list.
[[\[FN293\]](#Document1zzFN_F293)]{.underline}

Given our discussion of categories and schemas thus far, it should be
clear that while the use of categories and schemas as tools to help us
manage the information and situations with which we are presented may be
necessary and often invaluable, they are also potentially quite
inaccurate and at times dangerous. \"Categories and schemas allow us the
comforting sense that we understand our world, and often they are
accurate enough, although sometimes they are sadly mistaken.\"
[[\[FN294\]](#Document1zzFN_F294)]{.underline} As Ziva Kunda explains,
\"When we observe our social world, we do not merely watch an objective
reality unfold before our eyes. Rather, we take part in shaping our own
reality; the \[schemas\] we impose on events determine the meaning we
extract from them.\" [[\[FN295\]](#Document1zzFN_F295)]{.underline}

We end this section where we ended the last section, with a reminder of
the unseen power of schemas over our cognitive processes. Schemas
operate silently to influence what we see, what inferences we draw, and
what we remember. There is nothing particularly puzzling about Archie
Bunker\'s inability to solve the riddle posed earlier. Even if, as is
likely, Archie has met surgeons who fall into the \"woman\" category,
his memory might deceive him, preventing him from recalling that
information or from recalling it in that form. Indeed, as we just
reviewed, the same tendency has been demonstrated in subjects asked to
recall whether a doctor or nurse was a man or woman. And, unfortunately,
there is nothing particularly unusual or deviant about the unseen habits
of mind that lead us to \"see,\" infer, and remember differences across
categories, differences that may not in fact exist.
[[\[FN296\]](#Document1zzFN_F296)]{.underline}

**\*1174** 2. The Process of Schema Application\--Determinants and
Conditions of Schema Use

In this section, to expand our understanding of the ways in which
categories and schemas may bias our cognitive processes, we examine the
determinants of schema use, with a particular focus on one key question:
what determines which schemas or categories, among the possible options,
we rely on?

Figure 11. Categorization and Schema Application
[[\[FN297\]](#Document1zzFN_F297)]{.underline}

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

Researchers have varying theories about the process of schema
application. [[\[FN298\]](#Document1zzFN_F298)]{.underline} This
process, depicted in Figure 11 above, is reminiscent of the
categorization process discussed as a part of the attention and
categorization step outlined above.
[[\[FN299\]](#Document1zzFN_F299)]{.underline} Once information has been
satisfactorily categorized, individuals will attempt to apply an active
schema to the classified information. Sometimes these active schemas
will be obviously appropriate; other times, individuals might find it
necessary to \"tune\" their active schemas to make them more consistent
with **\*1175** information before them.
[[\[FN300\]](#Document1zzFN_F300)]{.underline} Individuals might apply
one of their active schemas, but if none seem appropriate, then they
will search through their stores of inactive schemas for a better match.
Only if no such schema exists will they invest the cognitive energies
required to create new schemas.
[[\[FN301\]](#Document1zzFN_F301)]{.underline} Rumelhart terms this the
\"restructuring phase.\" [[\[FN302\]](#Document1zzFN_F302)]{.underline}
Similar to the processes by which the initial schema was developed, any
new schemas that an individual generates will undergo refinement (or
what Rumelhart terms \"tuning\"
[[\[FN303\]](#Document1zzFN_F303)]{.underline}) before it is deemed
appropriate for application, and will continue to be tuned over time to
be more consistent with the individual\'s actual experiences.
[[\[FN304\]](#Document1zzFN_F304)]{.underline}

Later, we discuss related factors that may cause individuals to exhibit
a tendency to rely more readily on the active schemas and resist the
search for inactive schemas or creation of new schemas that might be
more appropriate to the information at hand.
[[\[FN305\]](#Document1zzFN_F305)]{.underline} Such factors contribute
to the \"cognitive inertia\" that enables individuals to stay in the
gray area in Figure 11. First, however, we explore the determinants of
schema choice.

It should be clear that, like the categorization process outlined
earlier, the schematization process enables varying degrees of attention
to the individual attributes of the information at hand. Indeed, from
Figure 11 above, a finding of \"appropriateness\" of the active schema
is a process that we may find easier or more difficult to confirm
depending on a large number of cognitive factors. Those factors we begin
to describe in the next section and continue to illuminate in later
sections.

a\. Influences on Schema Choice and Application

Almost any object can be categorized along a number of dimensions and
will be consistent with numerous schemas. As we have already seen, an
individual may, for instance, apply a person schema or a role schema to
understand and predict a person\'s behavior. But that distinction vastly
understates the variety of dimensions that might define our schemas. The
**\*1176** same thing can be described, for example, as an animal, a
human, a doctor, a woman, a geriatric, a Jew, a heterosexual, a giant,
an African American, a lover, a runner, a mother, a third aunt, a wet
blanket, a breath of fresh air, or even a breather of air. In this way,
most objects have numerous\-- no, innumerable\--attributes and thus can
potentially activate a wide variety of schemas, each of which will
generate its own set of inferences. Consequently, for most objects or
instances, individuals can conceivably choose any of those features to
focus on in determining which schema to apply.
[[\[FN306\]](#Document1zzFN_F306)]{.underline} To better understand the
biasing effect of schemas, it is useful to understand why we might tend
to focus on only a subset of those dimensions for any given object at
any given time.

Liebman\'s stand-up comedy routine is a vivid illustration of the biases
that may occur as a result of the numerous schemas at work in our minds
and the automatic process through which we may latch on to any one of
those schemas, sometimes wrongly, to interpret the events before us. For
example, Liebman\'s joke, \"Is there a doctor in the house? Because my
mother wants me to marry you,\"
[[\[FN307\]](#Document1zzFN_F307)]{.underline} begins by triggering the
doctor-emergency schema before the second sentence presents
incongruities that **\*1177** force us unexpectedly to shift to a very
different schema. Indeed, jokes may be understood simply as a deft
attempt to trigger a particular schema only to reveal, with the punch
line, how very wrong that schema is. Similarly, in his study of humor,
Victor Raskin provides an example of a typical joke: \"\'Is the doctor
at home?\' the patient asked in his bronchial whisper. \'No,\' the
doctor\'s young and pretty wife whispered in reply. \'Come right in.\"\'
[[\[FN308\]](#Document1zzFN_F308)]{.underline}

Like Liebman\'s punch lines, it should be clear that Raskin\'s joke is
successful, if at all, because it triggers the doctor-visit schema only
to surprise us by shifting to the extramarital-affair schema. The first
schema is triggered by the words \"doctor,\" \"patient\" and
\"bronchial\" as well as the fact that the question seems a most natural
one, as does the answer. [[\[FN309\]](#Document1zzFN_F309)]{.underline}
\"The fact that the doctor\'s wife turns out to be young and pretty does
not seem to be relevant to the situation and to the script it
unambiguously evokes but there is certainly no contradiction or
incongruity between this fact and the situation.\"
[[\[FN310\]](#Document1zzFN_F310)]{.underline} Yet the response catches
us off guard, suggesting that the schema we applied is not correct, and
triggering another schema that better fits the information presented.
That is, now the patient\'s \"whisper,\" which initially seemed
irrelevant, takes on particular relevance in the extramarital-affair
schema. [[\[FN311\]](#Document1zzFN_F311)]{.underline} Effective jokes
are only one example of the many situations in which different objects,
instances, or events may be understood through the lens of multiple
schemas, with very different interpretations. As the examples
illustrate, the schemas we choose to apply will have important effects
on the way we interpret the information before us.

Although the biases that those effects cause may sometimes be humorous,
they may also at times be quite dangerous or oppressive. In this section
we discuss a number of factors that influence this schema-choice
process, including primacy, salience, priming, motivations, and affect
as illustrated in Figure 12 below.

**\*1178** Figure 12. Factors Affecting Schema Choice
[[\[FN312\]](#Document1zzFN_F312)]{.underline}

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

i\. Primacy and Salience

Two important characteristics of the information that will play a role
in determining which of the many available schemas an individual
ultimately applies are primacy
[[\[FN313\]](#Document1zzFN_F313)]{.underline} and salience.

One commonly used example provides an illustration of how primacy of
information may affect schema choice. Read the following sentence:

FINAL FOLIOS SEEM TO RESULT FROM YEARS OF DUTIFUL STUDY OF TEXTS ALONG
WITH YEARS OF SCIENTIFIC EXPERIENCE.
[[\[FN314\]](#Document1zzFN_F314)]{.underline}

Now read the sentence again quickly and count the number of F\'s in the
sentence as you read. Many individuals find that they seriously
undercount the number of F\'s (the correct answer is eight), due to the
first two words that trigger a particular schema, which they then try to
match while reading the remainder of the paragraph. The F\'s that appear
in the middle and at the ends of words are more difficult to identify.

In their analysis of scripts, Robert Wyer and Donal Carlston highlight
the importance of the order of presentation of information in
influencing schema choice.
[[\[FN315\]](#Document1zzFN_F315)]{.underline} The same information
presented in different order may activate different schemas. One study
examined people\'s reactions to a **\*1179** woman who approached them
in a shopping center. [[\[FN316\]](#Document1zzFN_F316)]{.underline} The
woman asked the people for help, altering only the order and not the
content of her remarks. In one instance, she remarked, \"Would you do
something for me? Please do me a favor and call my husband and ask him
to pick me up? My knee is killing me, I think I sprained it.\" To
others, the woman remarked, \"My knee is killing me, I think I sprained
it. Would you do something for me? Please do me a favor . . . .\"
[[\[FN317\]](#Document1zzFN_F317)]{.underline} Differences in the simple
ordering of the remarks caused the activation of different schemas (the
\"target-oriented\" schema in the first instance, and the
\"victim-oriented\" schema in the second) with resulting differences in
effects: the second solicitation was more effective than the first when
the request seemed legitimate.
[[\[FN318\]](#Document1zzFN_F318)]{.underline}

In addition, cues that are prominent or catch our attention are more
likely to activate associated categories and schemas. Salience can arise
from characteristics that are novel, that is, unusual for a person or
category, because they are noticeable or goal-relevant.
[[\[FN319\]](#Document1zzFN_F319)]{.underline} With salience, context is
key. As any font maven understands, in one setting, bolded words catch
our attention. In another setting, the occasional unbolded word stands
out, particularly if it is italicized, underlined, and Capitalized.
Langer explains that

\[i\]n the midst of a rough skirmish on the football field, bruises are
hardly noticed. Similarly, cutting oneself while rushing to prepare
dinner for ten people who will be arriving any minute might also be
something one would hardly notice. In contrast, a paper cut suffered
while reading a dull magazine article quickly becomes the focus of
attention\[,\] [[\[FN320\]](#Document1zzFN_F320)]{.underline} not to
mention the source of considerable pain.

Social salience occurs as well when a person is the \"sole heterosexual,
homosexual, youngster, oldster, male, female, black, white, or whatever,
in an otherwise homogenous group.\"
[[\[FN321\]](#Document1zzFN_F321)]{.underline} Kunda writes, \"A person
who differs from everyone else present on a particular dimension may be
especially likely to activate that dimension.\"
[[\[FN322\]](#Document1zzFN_F322)]{.underline} For example,
\"\[c\]hildren are particularly likely to describe themselves as having
attributes that make **\*1180** them relatively distinctive from their
classmates.\" [[\[FN323\]](#Document1zzFN_F323)]{.underline} Where boys
are a minority in a classroom, they are more likely to describe
themselves as \"boys\" than where they are a majority.
[[\[FN324\]](#Document1zzFN_F324)]{.underline} It may be for such
reasons that we have words like \"bald\" but not \"haired,\" and why
Tiger Woods was long described as an African American golfer, while his
cohorts were referred to just as golfers. And if Archie had encountered
a doctor who was a woman, he would have, we strongly suspect, seen her
and referred to her as a \"lady doctor,\"
[[\[FN325\]](#Document1zzFN_F325)]{.underline} if not a nurse.

ii\. Priming

Another significant determinant of which categories or schemas we will
rely on are recency or frequency with which we have relied on them in
the past. [[\[FN326\]](#Document1zzFN_F326)]{.underline} Social
psychologists sometimes refer to this as the \"priming effect.\" \"The
term priming refers to any experiences or procedures that bring a
particular concept (or any other knowledge structure) to mind.\"
[[\[FN327\]](#Document1zzFN_F327)]{.underline} If, for example, an
individual has just been reading an article on a topic that activates a
particular category or schema, they will be more likely to classify an
object or piece of information, unassociated with that article, based on
dimensions associated with that category or schema.
[[\[FN328\]](#Document1zzFN_F328)]{.underline}

It is also possible to prime people\'s attitudes or feelings toward a
concept, and this too will make them more likely to use this concept in
judgment. For example, under normal circumstances, people are equally
likely to classify Mother Teresa as a humanitarian as they are to
classify her as a Catholic nun. However, if they have just been asked to
contemplate how much they like Catholic nuns, they become more likely to
classify her as a nun than as a humanitarian.
[[\[FN329\]](#Document1zzFN_F329)]{.underline} **\*1181** For different
people, different categories and schemas are often chronically primed,
or easily accessible and relied on often. \"Concepts tend to be
chronically accessible if they are viewed as self-defining and important
or if they figure prominently in many of one\'s descriptions of other
people.\" [[\[FN330\]](#Document1zzFN_F330)]{.underline} And, of course,
\"\[b\]ecause different concepts are chronically accessible to different
people, two people entering identical social situations may extract very
different meanings from these situations.\"
[[\[FN331\]](#Document1zzFN_F331)]{.underline} Thus, a feminist scholar
might see oppressive patriarchy where a legal economist might see
efficient customs and legitimate responses to economic cost
differentials. [[\[FN332\]](#Document1zzFN_F332)]{.underline}

Priming can occur through a wide variety of mechanisms, from recent
exposure in a newspaper article, to one\'s educational background, to
the culture and environment in which an individual grew up. For example,
legal economists more quickly apply the economist\'s script than those
unschooled in the economic approach, for the script has been primed over
many years of training. [[\[FN333\]](#Document1zzFN_F333)]{.underline}
Similarly, the process of teaching law students to think like lawyers,
is, at least in part, a process of training them how to fall reflexively
into the categories, schemas, and scripts of the law. Cultural factors
can similarly prime particular schemas: in most Western countries,
individuals have been found to exhibit a natural tendency to categorize
others based on marital or parental status, whereas in other cultures,
people pay more attention to whether the individual has parents who are
still alive. [[\[FN334\]](#Document1zzFN_F334)]{.underline} Such
tendencies may arise due to differences in the importance that different
cultures ascribe various family bonds and forms of hierarchy.

iii\. Affect

Particularly over the last two decades, social psychologists have
documented an important role for affect, or an individual\'s mood or
**\*1182** emotional state of mind, in cognition.
[[\[FN335\]](#Document1zzFN_F335)]{.underline} Thus, it should come as
no surprise that there are important connections between affect and the
application and choice of schemas. For example, Fiske has found evidence
of schema-triggered affect\--or emotions and moods that are stored
within schemas. The activation of those schemas automatically trigger a
corresponding affect. [[\[FN336\]](#Document1zzFN_F336)]{.underline}
Thus, the schema for a lawyer or politician might trigger a feeling of
distrust; the schema for Hitler might trigger a feeling of disgust and
perhaps hatred.

While the choice and application of schemas appear to have significant
direct and indirect influences on affect,
[[\[FN337\]](#Document1zzFN_F337)]{.underline} we are concerned in this
Article equally with the reverse phenomenon\--the potential for affect
to influence an individual\'s choice of schema. In psycho-speak,

\[w\]hen a particular emotion is activated, subthreshold activation will
occur at its associated nodes; among the nodes receiving such activation
will be those representing the schemas and events associated with that
emotion node. Thus, schemas and other cognitive materials that are
tagged with that emotion will be primed for both the identification of
mood-congruent stimulus material and for the recall of congruent
material from memory. [[\[FN338\]](#Document1zzFN_F338)]{.underline} In
other words, affect influences the schemas people apply to interpret
events. Individuals who feel happy will describe ambiguous scenes in
more positive terms than those who are angry or depressed; they also are
more likely to recall particular positive or negative events based on
their affect. [[\[FN339\]](#Document1zzFN_F339)]{.underline} Similarly,
individuals in a good mood are more likely to apply positive schemas in
their evaluations of other people.
[[\[FN340\]](#Document1zzFN_F340)]{.underline}

iv\. Motivations

It is well established that motivations, too, play a significant role
both in determining what schemas we select or rely on in a given
situation and **\*1183** the extent to which we rely on schemas in our
judgments. [[\[FN341\]](#Document1zzFN_F341)]{.underline} But the
influence of our motivations is far greater than that: they influence
also what evidence we look to and remember, and how we interpret or
scrutinize the evidence that we encounter. Indeed, \"people\'s goals are
perhaps the most important determinants of schema use.\"
[[\[FN342\]](#Document1zzFN_F342)]{.underline}

In this section, we will highlight several types of goals that influence
schema use. While we survey a number of influential and common motives,
we will focus primarily on what we call the \"schema-protection\" motive
and the particular mechanisms by which individuals pursue that
motivation. We do this for three reasons: first, the schema-protection
motive stems in part from the same underlying motive that encourages our
use of schemas in the first place; second, the other motives are
discussed more fully in other work;
[[\[FN343\]](#Document1zzFN_F343)]{.underline} third, and most
important, the schema-protection motive is the most relevant for
understanding how we are categorically biased and how those biases may
adversely influence the reasoning of legal scholars and policymakers.

\(a\) The Motive for Accuracy

One of the most obvious (though not necessarily influential) motives is
the motive to be or seem accurate in one\'s beliefs. It would seem that
virtually everyone, to some extent, wants to be accurate in the
inferences that they draw.
[[\[FN344\]](#Document1zzFN_F344)]{.underline} Experimenters have found
that the presence of an accuracy motive will affect the extent to which
individuals rely on schemas to draw conclusions rather than on more
data-driven attention to the individual attributes of the information at
hand. For example, in one experiment in which individuals were provided
with profiles of patients, those individuals given an explicit
instruction \"to form an accurate impression\" paid more attention to
individuating conditions than did subjects that were not given that
explicit goal. [[\[FN345\]](#Document1zzFN_F345)]{.underline} Of course,
an explicit instruction need not be present for individuals to possess a
motive for accuracy. [[\[FN346\]](#Document1zzFN_F346)]{.underline} We
will have more to say about this motive below and **\*1184** especially
as it is limited by the schema-protection motive.
[[\[FN347\]](#Document1zzFN_F347)]{.underline} First, though, we want to
discuss a sample of the other types of motives that tend to be less
obvious and that, as we will describe, are somewhat constrained by the
motive for accuracy.

\(b\) The Motive to Self-Affirm

In virtually every way imaginable, most people tend toward
self-affirming or self-enhancing attitudes and cognitions.
[[\[FN348\]](#Document1zzFN_F348)]{.underline} Indeed, \"\[i\]f there is
any theme that emerges again and again in social psychology it is that
the \[situational character\] is a prideful one.\"
[[\[FN349\]](#Document1zzFN_F349)]{.underline} On an individual level,
people tend to hold an exaggerated sense of their own abilities,
talents, intelligence, morality, and social skills, among other things.
Similarly, the same type of motivated reasoning is typical with regard
to people\'s assessments of the groups, institutions, and situations
with which they identify. [[\[FN350\]](#Document1zzFN_F350)]{.underline}
In addition to believing that we are good and that the groups to which
we belong are good, we also tend to believe that our world, and the
larger systems within it, are good and just. Thus, we are inclined to
presume that, on the whole, people get what they deserve and deserve
what they get. [[\[FN351\]](#Document1zzFN_F351)]{.underline} In these
ways and others, people are self-affirming in construing their environs.

In several ways, this general motive appears to be directly connected to
people\'s reliance on stereotypes. People\'s desire to see themselves as
more desirable leads them to see their ingroups as more desirable and
outgroups as less desirable.
[[\[FN352\]](#Document1zzFN_F352)]{.underline} And when people\'s self
esteem is threatened **\*1185** or the system is criticized, their
tendency to rely on negative stereotypes of others increases.
[[\[FN353\]](#Document1zzFN_F353)]{.underline}

\(c\) The Accountability Motive

The accountability motive\--\"the implicit or explicit expectation that
one may be called on to justify one\'s beliefs, feelings, and actions to
others\" [[\[FN354\]](#Document1zzFN_F354)]{.underline}\--overlaps
significantly with the accuracy motive, though few of us are as
conscious of it in ourselves, as the evidence suggests that we should
be. In their review of the psychological research on accountability,
Jennifer Lerner and Philip Tetlock found (among other results) that
individuals are more likely to adjust their views to those of their
audience [[\[FN355\]](#Document1zzFN_F355)]{.underline} and that, when
the views of the audience are not known, individuals will engage in
\"preemptive self-criticism,\" thinking in \"more self-critical,
integratively complex ways in which they consider multiple perspectives
on the issue and try to anticipate the objections\" that others might
raise. [[\[FN356\]](#Document1zzFN_F356)]{.underline}

When people know that they will be accountable for their views on
certain topics, they are likely to devote more cognitive resources to
evaluating those topics. The fear of invalidity rests on people\'s
desire, revealed also in the accuracy motive, to not be perceived as
wrong or inconsistent. [[\[FN357\]](#Document1zzFN_F357)]{.underline}
When accountability is an important objective, people tend to muster the
additional cognitive resources required for data-driven processes,
utilizing those processes rather than the schematic processes that are
more prone to error yet conserve valuable resources.
[[\[FN358\]](#Document1zzFN_F358)]{.underline} Subjects in this
condition will

actively try to anticipate the objections or counter-arguments that
might be raised against their positions. If people anticipate having to
justify their positions or judgments, they should pay close attention to
the **\*1186** available evidence, they should avoid judgments based on
insufficient information, and they should try to integrate inconsistent
data. [[\[FN359\]](#Document1zzFN_F359)]{.underline}

Thus, in experiments where subjects are told that they will be
interviewed about their inference processes after they have made a
judgment, those subjects are more likely to invest more cognitive energy
toward being accurate and to forming more complex impressions.
[[\[FN360\]](#Document1zzFN_F360)]{.underline}

\(d\) The Motive to Conform

Perhaps in part to avoid the cognitive costs of accountability and
certainly in part because we are social beings, we face a strong
interior motive to conform our attitudes and perceptions with those
around us\--particularly those with whom we identify. And that motive
influences the schemas we employ as well as the way we construe
information through those schemas. That motive is demonstrated extremely
well in one of the first experiments to identify it.

Solomon Asch believed that individuals were quite willing to buck the
crowd when confronted with perceptions or attitudes that differed from
their own. He began with what should have been an easy demonstration of
that belief. [[\[FN361\]](#Document1zzFN_F361)]{.underline} Asch showed
a group of eight individuals\--seven of who were confederates with Asch,
and one of who was the subject\--cards with lines on them, such as those
in Figure 13, below. [[\[FN362\]](#Document1zzFN_F362)]{.underline}

Figure 13. Asch\'s Experiment

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**\*1187** The eight individuals were asked which line on the right was
the same length as the line on the left (\"X\").

Take a look. Is there any doubt that the correct answer is \"B\" ? It
seems pretty obvious and presumably that is the answer that we would all
give no matter what other people thought. That was Asch\'s expectation.
And yet when subjects were asked as part of a group, and the other
members of the group unanimously agreed that the correct answer was
\"A,\" many subjects answered \"A.\"
[[\[FN363\]](#Document1zzFN_F363)]{.underline} The numbers varied
depending on the experiment, but the basic lesson of the experiment is
that what we perceive can be influenced very much by what those around
us perceive. These results might simply be seen as another manifestation
of the accountability motive. In part, they are, but Asch\'s experiments
also demonstrate that some subjects (including those who were not
required to announce their answers to the group and thus were not
obviously accountable to it) tended to construe the lines as the group
seemed to. That is, they were not simply saying what they thought the
group wanted to hear, they actually began to believe that \"X\" and
\"A\" were matches and that \"X\" and \"B\" were not.

\(e\) Positional Motivations

As we have already hinted, people tend to rely on schemas that help
justify or legitimate their positional goals, needs, or beliefs.
[[\[FN364\]](#Document1zzFN_F364)]{.underline} By \"positional,\" we
mean to emphasize our placement, as compared to others, along any number
of dimensions\--including wealth, power, and influence. We mean the set
of motives or goals that people typically think of when they speak of
the prototypical motives or goals influencing people\'s views\--vested
interests and the like. It is not uncommon, for instance, to suspect
that people with financial ties to an outcome will be motivated to
choose arguments that encourage that outcome. More broadly, our desire
to protect or advance our positions along various dimensions often plays
a significant role in our thinking, and it does so largely through the
use of schemas. [[\[FN365\]](#Document1zzFN_F365)]{.underline}

A person who benefits from, and is motivated to maintain, a cultural
power advantage will tend to adopt, maintain, and rely on schemas that
reinforce the belief that, for instance, he is somehow superior or
otherwise deserving of that advantage. Margaret Wetherell and Jonathan
Potter **\*1188** examine the ways in which white majority \"Pakeha\"
New Zealanders used categories of race, culture, and nation as
\"contrastive categories to define the Maori people \[indigenous New
Zealanders\] as a distinct biological group of people who shared similar
physical characteristics, values and personality characteristics.\"
[[\[FN366\]](#Document1zzFN_F366)]{.underline} Classifying the people by
these categories created a false or exaggerated distinction between the
Pakeha majority and the Maori people.
[[\[FN367\]](#Document1zzFN_F367)]{.underline} Thus, what appeared to be
an automatic and natural process was driven largely by underlying
motivations to retain a superior position in society.

History is full of such examples, many of which fall closer to home
(making them much more difficult to see or accept).
[[\[FN368\]](#Document1zzFN_F368)]{.underline} The tendency to
dehumanize oppressed groups\--which can be thought of as a motivated
categorization process\--is a significant historical theme.
[[\[FN369\]](#Document1zzFN_F369)]{.underline} The historical
categorizations and the related schemas for groups such as women,
slaves, and Jews are rife with evidence that those schemas were far from
natural but were created and maintained for particular purposes. Indeed,
Hitler\'s **\*1189** mixed motives\--on one hand wanting to maximize the
strength of his military, and on the other hand hoping to eliminate
those humans who he considered inferior\--provide horrific evidence of
the nimbleness of our self-serving categories and schemas.
[[\[FN370\]](#Document1zzFN_F370)]{.underline} Similarly, there are
numerous examples in which stereotypes have changed as circumstances
have changed in order to maintain the underlying power structures.
[[\[FN371\]](#Document1zzFN_F371)]{.underline}

This is not as much a historical phenomenon as it is a human one and a
major reason that history keeps repeating itself. Thus, the positional
motive seems to play a major role in most policy debates today.
[[\[FN372\]](#Document1zzFN_F372)]{.underline} Most individuals tend to
be fairly sensitive to this motive, but only selectively. Unfortunately,
it is a motive that we tend to see in those with whom we disagree and
not in ourselves. In other words the vested interest schema is itself
motive sensitive. [[\[FN373\]](#Document1zzFN_F373)]{.underline}

\(f\) The Motive for Closure

There are other motives that influence our schema choice and use that
are not as noticeable. Social psychologists have demonstrated, for
instance, that in many circumstances we are subject to a strong (though
usually unconscious) need to draw a conclusion and to resolve
uncertainty\--even if that means limiting our search for information
that could undermine our initial hypothesis.
[[\[FN374\]](#Document1zzFN_F374)]{.underline} In terms familiar to
economists, this \"need for closure\" increases the \"cost\[\] of being
indecisive\" [[\[FN375\]](#Document1zzFN_F375)]{.underline} and pushes
people to find and maintain clear answers.
[[\[FN376\]](#Document1zzFN_F376)]{.underline}

The phenomenon may be demonstrable visually. There is considerable
evidence that we tend to want to \"connect the dots,\" to create a
simple, closed image. That we humans have been, for at least the last
6000 years, seeing and naming imaginary constellations such as the Big
and Little Dippers, not to mention the far more elaborate Orion and his
hunting dogs, evinces that tendency. But the tendency is one that we do
not reserve solely **\*1190** for the heavens or solely for the sake of
making tractable our astronomical window. The tendency occurs for
relatively mundane and manageable images. Look at the following
night-sky-like image.

Figure 14. The Night Sky

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Do you see anything besides eight dots on a dark background? Chances are
you perceive a circle. If this were a constellation, it might be named
the \"Big O\":

Figure 15. The Night Sky II

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The \"O,\" however would probably not stand for \"Overlapping Squares.\"
Most of us do not see, though we could, overlapping squares or an
eight-pointed star.

**\*1191** Figure 16. The Night Sky III

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As this example helps illustrate, it is not just that we seek
\"closure,\" it is also that we seek simplistic closure.

The Kanizsa Triangle is one of the oldest and best-known examples of
this. [[\[FN377\]](#Document1zzFN_F377)]{.underline} How many triangles
do you see in the following image?

Figure 17. The Kanizsa Triangle
[[\[FN378\]](#Document1zzFN_F378)]{.underline}

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Many people see two equally sized equilateral triangles. And when they
look long enough at the upright triangle, they actually begin to \"see\"
the lines connecting the three pac men and separating the inside of the
triangle from its context.

**\*1192** Again, even when there is not closure, our minds are eager to
see it. [[\[FN379\]](#Document1zzFN_F379)]{.underline} Here is the worst
part: our attempts to connect the dots often lead us astray for we are
often \"seeing\" what is not there.

To gain a better sense of how our vision can mislead us, look at the
following illustration. If you were to create a long diagonal line in
the figure below, [[\[FN380\]](#Document1zzFN_F380)]{.underline} to
which line segment, A or B, would you connect line segment C?

Figure 18. Lines

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Many guess \"A.\" And to many others, the answer is not obvious. The
correct answer is \"B\"\--as a well-placed straight edge will verify.
Similarly, when asked to identify the tallest figure in the following
illustration, the answer to many (who have not seen this illusion
before) is obvious: the humanoid on the right.

**\*1193** Figure 19. The Humanoid

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In fact, they are all three the same height. We find it nearly
impossible to avoid construing the lines as indicating linear
perspective. [[\[FN381\]](#Document1zzFN_F381)]{.underline}

Figure 20. Herman\'s Grid [[\[FN382\]](#Document1zzFN_F382)]{.underline}

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In the above rendition of Herman\'s Grid, the flashing dots that you may
be seeing at the intersections between the black squares are not
actually there. Thus, not only do we connect dots unreliably, we
sometimes even see dots that do not exist.

As we have been stressing, these sorts of illusions and errors are not
merely optical. We see and connect dots and create closure\--whether it
is there are not\--in all aspects of our thinking. Studies have found,
for instance, that when individuals are asked to watch a person deliver
a **\*1194** speech, they tend to infer that the speaker believed the
content of her speech, despite knowing that the speaker had not chosen
to read the speech or its subject.
[[\[FN383\]](#Document1zzFN_F383)]{.underline} For subjects who are more
motivated to reach closure, however, the \"correspondence bias\"\--or
the increased likelihood of estimating that the speaker\'s attitude
corresponds to the speaker\'s behavior\--is even higher.
[[\[FN384\]](#Document1zzFN_F384)]{.underline} Thus, individuals are
less likely to invest greater cognitive energies in evaluating the
situation and more likely to rely on schematic processes (in this case,
dispositionism) when there are incentives for producing determinate
answers.

The need for closure wields more or less influence depending on the
setting. Numerous experiments demonstrate that this need is more intense
the greater the time pressures or the more cognitively busy we are.
[[\[FN385\]](#Document1zzFN_F385)]{.underline} And this contributes to
our desire, not just for closure, but also for simplicity. It may be
helpful to think of our brains as computers capable of some, but not
much, multitasking. Think Intel 386, not Pentium 4, and certainly not
Itanium2. The more tasks underway and the more complex an individual
task, the slower and sometimes less effectively any one of them can be
carried out\--leading us to (sometimes by choice and sometimes by error
message) close one or more operations. In human terms, the tendency is
often expressed in common phrases such as the following: \"I can\'t
think about that right now\"; \"One thing at a time\"; \"Bracket that\";
and in more jargonistic, legal-economic phrases such as \"everything
else equal,\" \"ceteris paribus,\" \"partial equilibrium analysis,\" and
\"second-best analysis.\" [[\[FN386\]](#Document1zzFN_F386)]{.underline}

**\*1195** The desire for closure should not be understood solely in
terms of a desire to avoid overtaxing the capacities of our organic
processors. There are \"psychic\" benefits to closure as well (perhaps
these are simply another version of the same benefit). In a world in
which ambiguity is the rule and actions and decisions are inevitable,
closure enables people to move forward (or at least believe they are
moving forward), free of the debilitating shadow of counterfactualizing
uncertainty. This tendency is popularly recognized as the need for
finality or the tendency to avoid complex, ambiguous \"gray\"
conclusions and to embrace more \"black and white\" answers. It thus may
also help partially explain the attractiveness of fundamentalist belief
systems\-- including \"knee-jerk liberalism\"\--and of mathematical
\"proofs\" of social scientific claims.

In short, people tend, \"other things equal,\" to prefer schemas that
lead to closure and to apply any given schema in a way that generates
more closure.

\(g\) The Schema-Protection Motive

A different type of motive\--one that we rarely see, particularly in
ourselves\--also plays a powerful influence on schema function. We are
motivated to protect our schemas. And that is true not just because they
serve our positional goals and facilitate our desire for closure.
Understanding the motive for schema protection is critical to an
understanding of the ways in which all forms of motivation affect the
choice and application of schemas. The schema-protection motive can be
thought of as a \"metamotive\":
[[\[FN387\]](#Document1zzFN_F387)]{.underline} its end result is to
protect schemas that are, in turn, driven by other motives.

Given the array of motivations, it should come as no surprise that, in
addition to the times in which any one schema can be challenged by
information that is inconsistent with that schema, there will be times
in which multiple schemas will oppose one another. The motive to protect
our schemas includes a motive to resolve those tensions or to reduce the
dissonance that our conflicting motives can create. In this section, we
want to shed some light on the mechanisms employed to mitigate such
cognitive crises.

**\*1196** The motive of schema protection follows simply from the
purpose that schemas serve. As we noted at the outset, we use schemas to
focus our attention and allow us to make reasonably reliable inferences
with comparatively little data. They render comprehensible, predictable,
and consequently manageable our complex worlds. They help give us what
we crave\-- control, or at least the illusion of control.
[[\[FN388\]](#Document1zzFN_F388)]{.underline} For these reasons, our
schemas are often valuable to us, and we are motivated to preserve them,
lest we be forced to negotiate our surroundings without them.

One manifestation of the schema-protection motive has come to be called
confirmation bias. [[\[FN389\]](#Document1zzFN_F389)]{.underline}
Roughly, people will focus on or highlight evidence that tends to
support their schemas, theories, and beliefs and ignore or downplay
disconfirming facts. [[\[FN390\]](#Document1zzFN_F390)]{.underline}
Doing otherwise would render their schemas vulnerable to frequent,
perhaps constant, reevaluation, thus defeating one of their chief
benefits. The phenomenon noted above, that individuals will sometimes
\"remember\" facts that do not even exist simply to support the
conclusions they desire\--can be understood as an extreme form of
confirmation bias. [[\[FN391\]](#Document1zzFN_F391)]{.underline}

Our motive to protect our schemas is often stronger than it might
initially appear. This is true because the threat to a schema is rarely
limited to the single issue and schema in which the threat emerges.
Behind our view of any one issue are often one or more schemas that are
connected to our view of many other issues and our more general,
comforting sense that we have a reasonably reliable understanding of the
world. When our view on a single issue is challenged, our reaction will
often be more or less connected to the need to protect the schema or
schemas that helped generate that view. In that sense, there can be a
slippery slope effect, as cognitive compromises in one context may
threaten the stability of many other beliefs and attitudes.

Although our schemas do need some protection, the resilience with which
our most biased schemas persist is quite impressive. There are many
strategies (most of them automatic) that our cognitive processes employ
to apply the schemas that our other motivations might encourage, and to
**\*1197** avoid the need for schema refinement, restructuring, or
abandonment. Augoustinos and Walker summarize the evidence with the
observation \"that well developed schemas generally resist change and
continue to exist even in the face of inconsistent and contradictory
evidence.\" [[\[FN392\]](#Document1zzFN_F392)]{.underline} There are
many ways by which we may protect our biased schemas, and, in the
upcoming subsections, we focus on five of these processes: the cognitive
evasion of (1) inconsistent information or (2) inconsistent schemas, the
creation and exploitation of (3) ambiguity or (4) subtypes, and (5) the
effect of self-fulfilling schemas.

(i.) Evading Challenging Information (and Altering Cognitive Effort)

Given our motive to protect our schemas, and given how schemas influence
the information that we acquire and how we construe it, perhaps the most
obvious means of defending our schemas against challenging information
is simply, if unconsciously, to ignore that information.
[[\[FN393\]](#Document1zzFN_F393)]{.underline} Just as we can sometimes
steer our car around a traffic jam, we can sometimes manage to steer our
cognitive processes around a cognitive crisis. For example, various
societies, including ours, found an easy strategy to protect the
predominant schema for women\'s abilities: simply ignore women\'s
educational achievements\--do not award degrees, do not codify
achievements. [[\[FN394\]](#Document1zzFN_F394)]{.underline} But
ignoring information is only the most obvious strategy. Evasion of such
information can be subtler than simply ignoring any information that may
cause doubt in the appropriateness of schemas; more often, as we discuss
in this section, individuals will evade such information by varying the
amount of cognitive effort that they invest in examining the
inconsistent information. [[\[FN395\]](#Document1zzFN_F395)]{.underline}

Motivation \"may also influence our mode of processing information,
determining whether we rely on quick and easy inferential shortcuts
\[such as schemas or heuristics\] or rely on elaborate, systematic
reasoning.\" [[\[FN396\]](#Document1zzFN_F396)]{.underline} In a way
that contributes to confirmation bias,
[[\[FN397\]](#Document1zzFN_F397)]{.underline} motivations influence the
**\*1198** amount of cognitive energy an individual will invest.
[[\[FN398\]](#Document1zzFN_F398)]{.underline} To protect their schemas,
individuals will often vary their cognitive efforts depending on the
supportiveness of the evidence before them, scrutinizing disconfirming
evidence and embracing confirming evidence. As several experiments have
demonstrated, individuals are more likely to overlook the problem of
small sample sizes when the findings based on the samples suit their
goals, yet apply a much more stringent rule regarding sample sizes when
the data suggests a contradictory conclusion.
[[\[FN399\]](#Document1zzFN_F399)]{.underline}

We are not aware, however, that our burdens of persuasion and proof are
shifting depending on our motives and our existing schemas. \"We don\'t
realize that both the evidence that we have recruited and the rules we
have used to evaluate it are biased by motivation. If our goals had been
different, we might have recruited different evidence and used different
rules.\" [[\[FN400\]](#Document1zzFN_F400)]{.underline} As Kunda
summarizes,

Motivation 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. [[\[FN401\]](#Document1zzFN_F401)]{.underline}

Social psychologists have discovered that the efforts we marshal in
pursuit of our schema-protection motive vary according to how firmly
established or secure the schema is in our cognitive processing.
Evidence of these variations can be observed in the \"life cycles\" of
schemas. [[\[FN402\]](#Document1zzFN_F402)]{.underline} In the early
stages of schema development, people will somewhat zealously ignore
inconsistent information. In the later stages, once a schema has matured
and become firmly rooted in our cognitive landscape, we are more willing
to consider and attempt to explain inconsistent information. Fiske and
Taylor describe this process as follows:

Initially, people do not have much of a schema, so incongruencies may
not even be perceived as such. As people form schematic hypotheses, they
focus on reconciling inconsistencies and so remember them . . . .
**\*1199** Once formed, people attempt to validate their schemas,
focusing at this stage on consistent information . . . . When schemas
are firmly in place, people who are particularly expert have the
capacity and so the option to notice and use inconsistent information,
in addition to consistent information. In short, it may take some
minimal experience for people to notice inconsistencies, and then they
tend to focus on the inconsistent material, but when they are validating
the schemas, they focus on the consistent material. Experts are more
flexible, able to use inconsistent material because of their increased
capacity. [[\[FN403\]](#Document1zzFN_F403)]{.underline}

One implication of this multiple-stage view of schema development is
that inconsistent information will tend to be considered when and to the
extent that the schema can accommodate the information. That
\"converts\" are sometimes perceived as close-minded may, if true,
reflect the fact that a schema is a mere sapling on the cognitive
landscape. That experts appear open-minded, seemingly independent of the
influence of their schemas, is only partially correct. While they are
often willing to consider inconsistent evidence, this may sometimes be
because of the deep roots of their schema and the resultant confidence
in their ability to brave the high winds of conflicting information.

It is important to emphasize before moving on that the human tendency to
see only schema-confirming features of the environment may result not
only from our own motives, but also from the motives of those around us.
Often it is other people who can activate our schemas and thereby
influence what we do or do not see.
[[\[FN404\]](#Document1zzFN_F404)]{.underline}

(ii.) Avoiding Conflicting Schemas

Another way in which we defend our schemas results from their
operation\-- automatically, outside of our awareness and, roughly, one
at a time. Because different schemas are often not simultaneously
activated, contradictions across schemas may be avoided and may tend to
go unnoticed. [[\[FN405\]](#Document1zzFN_F405)]{.underline} So it was
that the antebellum plantation owner believed that his slaves were
mentally inferior at the same time that he understood that his own
children\'s mental development depended importantly on the very
education that his slaves were prohibited by law and custom from
obtaining. Kunda explains that

**\*1200** people have an enduring network of knowledge and associations
and . . . they selectively bring to mind different subsets of this
knowledge base on different occasions. Different configurations of
self-conceptions, beliefs, and affective reactions may be activated in
different situations, resulting in different, often inconsistent
self-conceptions and behavior.
[[\[FN406\]](#Document1zzFN_F406)]{.underline}

In that way, it is often possible to protect one schema from another
potentially conflicting schema. While individuals may schema-jump,
schemas are generally considered to be independent of each other, and
therefore there is no reason to believe that conflicting schemas would
necessarily be problematic for an individual. \"Unlike nodes in an
associative network model, \[schemas\] are not interlinked. Thus, if one
schema becomes active this has no necessary implications for other,
related schema\[s\].\" [[\[FN407\]](#Document1zzFN_F407)]{.underline}

In circumstances that force people to reconcile conflicting schemas,
researchers have found evidence that individuals will resort to causal
reasoning to make sense of the schemas.
[[\[FN408\]](#Document1zzFN_F408)]{.underline} To reconcile conflicting
concepts such as \"blind lawyer\" or \"Harvard-educated carpenter,\"
individuals generated logical reasons behind the conflicting
stereotypes\--the blind lawyer was described also as hard working,
because she had overcome the obstacles of law school; the
Harvard-educated carpenter was also \"nonmaterialistic and a
nonconformist, even though neither of these attributes was used to
describe someone identified only as a Harvard-educated person or only as
a carpenter.\" [[\[FN409\]](#Document1zzFN_F409)]{.underline} When
forced to reconcile the concepts, individuals relied upon their
knowledge of the world, accurate or not\--and not simply of the
categories before them\--to make sense of the seemingly inconsistent
concepts. [[\[FN410\]](#Document1zzFN_F410)]{.underline}

We have seen evidence of this sort of cognitive behavior before. For
instance, the tendency to misremember information in order to reconcile
conflicting information, [[\[FN411\]](#Document1zzFN_F411)]{.underline}
just like the tendency to see a triangle where none exists,
[[\[FN412\]](#Document1zzFN_F412)]{.underline} are both instances of the
same desire to alleviate schematic tensions. Generally, however,
individuals will be able to avoid such **\*1201** conflicts by
activating schemas one at a time, and thereby protecting the schema they
desire without need for reconciliation.

(iii.) The Role of Ambiguity and Conflicting Motivations

Avoidance or evasion is not, however, always possible or necessary.
There are numerous means of more or less confronting challenging or
conflicting information in a way that avoids cognitive crises. In this
section, we will focus on the liberating role of ambiguity.

The schema-protection motive is famously illustrated by the voyages of
Christopher Columbus. [[\[FN413\]](#Document1zzFN_F413)]{.underline}
Columbus made four voyages to the \"New World,\" always believing that
he had made it to Cathay (Asia). The islands that he \"discovered\" did
not meet all of his expectations, but descriptions by Marco Polo did not
necessarily conflict with what Columbus was observing.
[[\[FN414\]](#Document1zzFN_F414)]{.underline} Indeed, Marco Polo had
described thousands of islands in the Indies, where Columbus believed he
was; thus, there was enough ambiguity to enable Columbus to maintain his
theory.

Why did Columbus think that he had found Asia? Because that is what he
expected and wanted to find, and that was almost the only thing he had
reason to believe there was to find. Bartolome de las Casas, historian
and friend of Columbus, wrote, \"When \[Columbus\] had made up his mind
. . . he was as sure he would discover what he did discover, and find
what he did find, as if he held it in a chamber under lock and key.\"
[[\[FN415\]](#Document1zzFN_F415)]{.underline} Columbus\'s schemas had
no place for another continent\--much less a pair. Once European
explorers discovered that they were exploring not Asia, but a land they
had not expected, that did not prevent them from discovering and
rediscovering what their schemas told them to expect to find\--for
example, the Northwest Passage.
[[\[FN416\]](#Document1zzFN_F416)]{.underline}

History is full of examples of people interpreting ambiguous evidence in
self-affirming ways, a phenomenon that has been borne out in social
psychology research. Consider an experiment by H. Andrew Sagar and
**\*1202** Janet Ward Schofield demonstrating how stereotypes bias the
interpretation of ambiguous events.
[[\[FN417\]](#Document1zzFN_F417)]{.underline} Subjects were presented
with four ambiguous drawings in which one person was either bumping
another person, poking another person, taking a pencil from another
person, or requesting food. They rated the actor in each scene as either
mean, threatening, playful, or friendly. Revealing the influence of
schemas over interpretations of ambiguous events, white and African
American subjects rated identical behavior as more mean and threatening
when the actor was African American.
[[\[FN418\]](#Document1zzFN_F418)]{.underline} Similarly, in an
experiment conducted by David Dunning and David Sherman, subjects made
stereotype-consistent inferences about women and men participating in
gender-ambiguous activity.
[[\[FN419\]](#Document1zzFN_F419)]{.underline} For instance, in response
to the statement \"When Jill (Jack) found out that her friend had been
murdered, she (he) became very upset,\" subjects who read the sentence
with Jill in it incorrectly \"remembered\" that she had been very sad,
while those who read the sentence with Jack in it \"recalled\" that he
had been angry. [[\[FN420\]](#Document1zzFN_F420)]{.underline}

Consider also an experiment in which subjects were asked to rate
themselves according to such concepts as \"sensitive,\" \"idealistic,\"
\"well read,\" and \"punctual.\"
[[\[FN421\]](#Document1zzFN_F421)]{.underline} In the more ambiguous
characteristics\--sensitive and idealistic\--individuals rated
themselves more extraordinary than they did on the more clearly defined
traits\--well-read and punctual.
[[\[FN422\]](#Document1zzFN_F422)]{.underline} The experiment
illustrates well the role of ambiguity in easing potential tension
between motivations. Where the characteristic is muddy or difficult to
measure, subjects could more easily view themselves in self-affirming
terms, without implicating the motive for accuracy. Recent experiments
by Jason Dana, Roberto Weber, and Jason Kuang demonstrate a similar role
for ambiguity in helping individuals maintain a self-affirming view of
themselves as \"fair.\" [[\[FN423\]](#Document1zzFN_F423)]{.underline}

**\*1203** Research indicates that confirmation bias will be stronger
when the evidence is ambiguous or more complex.
[[\[FN424\]](#Document1zzFN_F424)]{.underline} Christopher Hsee\'s work
on \"elastic justification\" suggests the importance of ambiguity in
unleashing motivated reasoning.
[[\[FN425\]](#Document1zzFN_F425)]{.underline} In one experiment, Hsee
found that when a salesman who must find the most buyers for a product
is faced with the choice of traveling to two possible cities, one with
thirty to ninety buyers and one with forty buyers, the uncertainty will
lead him to justify either choice in the name of his stated purpose of
selling. [[\[FN426\]](#Document1zzFN_F426)]{.underline} For example, if
the city with forty buyers is a more enjoyable city, the ambiguity will
lead him to estimate the expected value of the buyers in the less
desirable city as being less than forty,
[[\[FN427\]](#Document1zzFN_F427)]{.underline} and vice versa if he sees
the other city as more enjoyable.

Just as ambiguity can ease the tension between conflicting motives or
the problem of inconsistent evidence, the absence of ambiguity can
heighten it. As a result, accuracy goals would seem to temper the
influence of other motivations. But given that most situations are open
to interpretation, the motive for accuracy will rarely totally dominate
other motives. As we reviewed above, people do not confront
disconfirming evidence openly; they often find ways to interpret it as
confirmatory, to disqualify it as flawed, or to distract themselves from
scrutinizing it closely.

Still, people are unreasonable within reason. Although they manage to
maintain stereotypes by ignoring inconsistent information,
[[\[FN428\]](#Document1zzFN_F428)]{.underline} the adherence to these
stereotypes has limits. When inconsistencies are significant\--too
significant to ignore\--individuals are more likely to incorporate the
inconsistent information into their cognitive processes.
[[\[FN429\]](#Document1zzFN_F429)]{.underline} This, however, is
**\*1204** \"most likely to occur when the data are unambiguous\--when
there is no room for interpretation.\"
[[\[FN430\]](#Document1zzFN_F430)]{.underline} As Peter Gollwitzer and
Gordon Moskowitz write, \"Diagnostic information can overpower what
waits at the top of the head by \'hitting us over the head\' with its
clarity.\" [[\[FN431\]](#Document1zzFN_F431)]{.underline} Similarly,
Kunda clarifies that

\[m\]otivation can color our judgments, but we are not at liberty to
conclude whatever we want to conclude simply because we want to. Even
when we are motivated to arrive at a particular conclusion, we are also
motivated to be rational and to construct a justification for our
desired conclusion that would persuade a dispassionate observer. We will
draw our desired conclusion only if we can come up with enough evidence
to support it. But despite our best efforts to be objective and
rational, motivation may nevertheless color our judgment because the
process of justification construction can itself be biased by our goals.
[[\[FN432\]](#Document1zzFN_F432)]{.underline}

Even if strongly motivated to reach particular conclusions, we sometimes
find ourselves challenged by opposing evidence. When the evidence is
overwhelming, when we are left with no wriggle room, we are forced to
relinquish our favored beliefs in deference to our motive for accuracy.
[[\[FN433\]](#Document1zzFN_F433)]{.underline}

(iv.) Subtyping

For Columbus, South America posed a particular problem because it did
not entirely fit his schemas\--it did not seem like a mainland, but he
knew it was too far south to be China. Rather than relinquish his
schema-driven conclusion that he had found the short route to Cathay,
Columbus\--drawing upon the schemas primed for him by his religious and
educational **\*1205** upbringing
[[\[FN434\]](#Document1zzFN_F434)]{.underline}\--determined that South
America was the Garden of Eden. The brilliantly colored birds and
flowers that he encountered in South America seemed consistent with the
paradise that he and others assumed had to exist somewhere. Accordingly,
Columbus was able to absorb the information before him and to preserve
his schema for the New World.

We have seen this sort of schema manipulation before. In our earlier
examples, Hitler\'s ability to maintain a schema for the broad Jewish
category even while he treated particular Jewish soldiers differently
illustrates that process of subtyping. Rather than allow his
re-categorizations of soldiers to undermine his overall schema, his
ability to subtype enabled him to view a consistency in his schemas that
his actions seemed to belie.

Similarly, when Justice Bradley had to acknowledge that there were many
women who remain \"unmarried and not affected by any of the duties,
complications, and incapacities arising out of the married state,\"
[[\[FN435\]](#Document1zzFN_F435)]{.underline} he was quick to describe
these women as

exceptions to the general rule. The paramount destiny and mission of
woman are to fulfill the noble and benign offices of wife and mother.
This is the law of the Creator. And the rules of civil society must be
adapted to the general constitution of things, and cannot be based upon
exceptional cases. [[\[FN436\]](#Document1zzFN_F436)]{.underline}

These historical accounts exemplify a fairly common schema-protection
process: subtyping. When confronted with disconfirming information
individuals can carve out a special subschema for that evidence in a way
that preserves more general schema\--like an \"exception that proves the
rule.\"

Reneé Weber and Jennifer Crocker conducted a number of experiments in
which they tested individuals\' reactions to disconfirming evidence of
stereotypes and found the tendency to subtype to be quite strong.
[[\[FN437\]](#Document1zzFN_F437)]{.underline} In their experiment,
designed to test the resiliency of the lawyer stereotype as
well-dressed, industrious, and intelligent, subjects were given
descriptions of thirty lawyers. Each of those descriptions was three
**\*1206** sentences, making ninety total descriptive sentences. Of
those ninety sentences, thirty sentences were inconsistent with the
lawyer stereotype (fifteen were consistent, and forty-five were
irrelevant). Subjects who were presented with descriptions in which the
thirty inconsistent sentences were concentrated on ten of the sample
lawyers were less likely to generalize these characteristics and
therefore less likely to change their stereotype than those subjects for
who the thirty inconsistent sentences were distributed over each of the
thirty sample lawyers. [[\[FN438\]](#Document1zzFN_F438)]{.underline}
When individuals were able to subtype and thereby maintain their
stereotypes, they did so; only when they were presented with examples,
all of which defied the stereotype, did they exhibit a tendency to
change their stereotypes. [[\[FN439\]](#Document1zzFN_F439)]{.underline}

Weber and Crocker\'s findings regarding the propensity to subtype was
supported by Miles Hewstone, Nicholas Hopkins and David Routh\'s
evaluation of stereotypes of police. In that study, an attempt to
improve relations between police and students through a liaison program
led students simply to recategorize the police that they had interacted
with as being more similar to teachers and social workers, while
retaining their overall stereotype of police.
[[\[FN440\]](#Document1zzFN_F440)]{.underline}

Kunda concludes, \"When we can, we subtype counterstereotypic
individuals, and this enables us to maintain our global stereotypes.\"
[[\[FN441\]](#Document1zzFN_F441)]{.underline} In this way, subtyping
can give life to schemas even as those who hold them are faced with
schema-threatening evidence.
[[\[FN442\]](#Document1zzFN_F442)]{.underline} And so, it is those
hearing \"You are not like the others\" that are often offended when
those saying it intend a compliment.
[[\[FN443\]](#Document1zzFN_F443)]{.underline}

**\*1207** (v.) Self-Fulfilling Schemas

So far, we have discussed ways that people may protect their schemas in
the way they deal with schema-disconfirming evidence. There is another
way in which our schemas are protected that, in some ways, is the mirror
image of that general technique. Schemas do not simply shape the way
that we interpret the world; they actually shape the world that we
interpret. Our schemas can find confirmation in the information we
encounter because they play a role in creating that information.
[[\[FN444\]](#Document1zzFN_F444)]{.underline}

Above we briefly discussed experiments in which individuals appeared to
recall schema-inconsistent information as being consistent with schemas.
Similarly, individuals acting on schemas can help to shape external
factors so that they generate schema-consistent information, such that
one person\'s expectations about another become reality by eliciting
behaviors that confirm those expectations. This phenomenon is a major
obstacle to good social scientific research since the scientists
themselves may influence the behaviors of their subjects.
[[\[FN445\]](#Document1zzFN_F445)]{.underline}

Experiments have shown, for instance, that a teacher\'s expectations of
a student often have significant effects on the student\'s performance.
In a seminal study on this topic, teachers were given fake \"Harvard
Test of Infected Intelligence\" scores for their students.
[[\[FN446\]](#Document1zzFN_F446)]{.underline} A randomly selected
portion (twenty percent) of the class was, by that score, labeled
\"bloomers.\" [[\[FN447\]](#Document1zzFN_F447)]{.underline} (Neither
the students themselves nor their parents were aware of the
designations; only the teachers were.) Owing to the teachers\' falsely
induced expectations and the resultant classroom dynamics, the IQ tests
of the bloomers at the end of the school year actually did increase.
[[\[FN448\]](#Document1zzFN_F448)]{.underline}

Mark Snyder and William Swann conducted a number of experiments
demonstrating that individuals faced with the task of testing a
hypothesis **\*1208** will tend to elicit hypothesis-confirming
evidence. [[\[FN449\]](#Document1zzFN_F449)]{.underline} In one
experiment, individuals were given twenty-six possible questions by
which to evaluate a stranger. Asked to choose twelve of those questions
to ask the stranger, individuals tended to choose questions that
confirmed the question they had been asked to answer. For example,
subjects who were asked to test whether another person was an extrovert
tended to ask questions that would be asked of people already known to
be extroverts. [[\[FN450\]](#Document1zzFN_F450)]{.underline} Snyder and
Swann further discovered that this line of questioning was
hypothesis-confirming not only in the minds of the questioner, but also
in the eyes of impartial observers.
[[\[FN451\]](#Document1zzFN_F451)]{.underline} When individuals unaware
of the experiment were asked to listen to audiotapes of the
question-and-answer sessions, they judged the subjects to have
characteristics consistent with those that the questioner was told to
evaluate. [[\[FN452\]](#Document1zzFN_F452)]{.underline} Being asked
\"Do you enjoy parties?\" does not give a person a chance to reveal that
she enjoys reading at home on Friday nights. The \"one-sided\"
questioning \"constrained the impressions that respondents were able to
convey\" [[\[FN453\]](#Document1zzFN_F453)]{.underline} and thereby
created conditions in which the subjects actually appeared to display
characteristics consistent with the hypothesis.
[[\[FN454\]](#Document1zzFN_F454)]{.underline}

The use of stereotypes provides additional evidence of the persistence
and reinforcement of potentially misleading schemas, as schemas create
apparent truths where none may have existed in the first place. Kunda
provides the example of the stereotype of aggressiveness in African
Americans. If, for instance, individuals expect an African American
individual to act aggressively toward them, then they may more quickly
behave aggressively toward the African American, which, in turn, incites
a more aggressive response and reinforces a stereotype.
[[\[FN455\]](#Document1zzFN_F455)]{.underline}

In experiments testing differences in the treatment of African American
and white interviewees, Carl Word, Mark Zanna, and Joel Cooper found
significant differences in the way the subject interviewers behaved:
[[\[FN456\]](#Document1zzFN_F456)]{.underline} \"subjects spend about 35
percent more time interviewing white applicants than black applicants,
made about 50 percent more speech errors **\*1209** interviewing blacks
than whites, and positioned their chairs about 7 percent further away
from blacks than whites.\"
[[\[FN457\]](#Document1zzFN_F457)]{.underline} Moreover, they found that
subjecting white interviewees to those same conditions elicited poor
performances from them. [[\[FN458\]](#Document1zzFN_F458)]{.underline}

Even without those external influences, however, schemas may exert a
significant and unseen influence on actual behavior. For example, Claude
Steele and his colleagues have found important evidence for what they
call \"stereotype threat\" \--or the behavioral effects that result from
an individual\'s belief and fear that his or her actions will confirm a
negative stereotype of the group to which he or she belongs.
[[\[FN459\]](#Document1zzFN_F459)]{.underline} Steele\'s research, which
arose as part of his effort to better \"understand the nature of race
and how race might affect academic performance in general,\"
[[\[FN460\]](#Document1zzFN_F460)]{.underline} demonstrated that
stereotype threat could help to explain the fact that black students
underachieved relative to white students in college, even controlling
for preparation levels. [[\[FN461\]](#Document1zzFN_F461)]{.underline}
In one experiment, black and white students were told either that a test
was diagnostic of intellectual ability or that it did not measure
intellectual ability. [[\[FN462\]](#Document1zzFN_F462)]{.underline} In
cases where the students were told that the test measured intellectual
ability, black students performed significantly worse than equally
prepared white students. When the test was said to be nondiagnostic,
however, the gap disappeared completely.
[[\[FN463\]](#Document1zzFN_F463)]{.underline} Steele and Aronson
concluded that \"when the test was portrayed as diagnostic of ability,
Black participants were reminded of the negative stereotype of Blacks
that put them under suspicion of inferiority, and the anxiety provoked
by this stereotype threat undermined their performance.\"
[[\[FN464\]](#Document1zzFN_F464)]{.underline} Concern about confirming
a stereotype can alone cause a person to behave in stereotypical
fashion, giving a new twist to the phrase **\*1210** that the only thing
to fear is fear itself. In these ways, automatically activated
stereotypes may play a significant role in developing and perpetuating
stereotypes of all types. [[\[FN465\]](#Document1zzFN_F465)]{.underline}

Consider again the category of \"woman,\" which, together with an entire
set of schemas, seemed to peak in the nineteenth century:

An entire theory of human personality evolved, based on the belief that
men and women were polar opposites, two separate branches of human kind
with opposing characteristics. The idea that men and women were very
different\-- that women, for example were dependent and soft while men
were independent and tough\--had existed in the 1700s also. But in that
epoch ideas about the qualities that men and women shared had been
balanced against the perceived differences. In the 1800s the attributes
shared by both sexes were more or less forgotten. Qualities of mind and
character were seen as applying to one sex or the other\--almost never
to both. [[\[FN466\]](#Document1zzFN_F466)]{.underline}

As the categories and schemas of \"true womanhood\"
[[\[FN467\]](#Document1zzFN_F467)]{.underline} took shape, customs and
laws adapted to reflect and reinforce them.
[[\[FN468\]](#Document1zzFN_F468)]{.underline} It was that
self-fulfilling nature of the schemas that early feminists began to
challenge. [[\[FN469\]](#Document1zzFN_F469)]{.underline} So it was that
Wollstonecraft \"blamed society\" for the fact that women were treated
as children and \"were subject to a \'false system of education,\' which
taught them \'manners before morals.\"\'
[[\[FN470\]](#Document1zzFN_F470)]{.underline} And so it was that
Elizabeth Cady Stanton objected to the absence of comparable educational
opportunities for women.

Later generations of feminists have emphasized and debated the
essentializing quality of gender categories. At bottom, the concern
focuses on the idea that recognizing difference
[[\[FN471\]](#Document1zzFN_F471)]{.underline} might create culturally
constructed difference\--and categories and schemas that constrain those
**\*1211** subject to them.
[[\[FN472\]](#Document1zzFN_F472)]{.underline} Thus, the phenomenon of
self-fulfilling schemas has endured.

As these examples help to illustrate, our schemas are not just in our
minds. They have real-world, tangible effects that help convince us that
what we see is what reality, and that what is reality ought to be, as
what ought to be is generated seemingly independent in our minds based
on what we see. This helps explain how individuals can come to believe
that a woman \"should not behave as a man,\" based significantly on the
fact that the women they observe generally behave as \"women,\" a
perception that reverses the dominant causal flow.
[[\[FN473\]](#Document1zzFN_F473)]{.underline}

\(h\) Summary

These are only some of the ways that individuals protect their active
schemas. In the next section, we step back from our motivations and
discuss briefly the central role of language and metaphor in schema
choice and application.

b\. A Note on the Role of Language and Metaphor

Like cues that catch our attention, the power of language and metaphor
cannot be underestimated in our attempt to understand the knowledge
embodied in our schemas as well as in their activation and application.
The power of language lies not only in the labels we assign to things,
but also in the metaphors that we use to describe them. Such metaphors
carry enormous power in their ability to remain in our memory and to
guide our thinking. The metaphors prime us, keeping categories and
knowledge structures accessible in our mind, clear and easy to activate
and apply. Language and metaphor are critical factors in schema choice,
in triggering certain schemas, and in making schemas more or less
memorable and accessible.

For example, the familiar metaphor of \"the pie\" in the economic
tradition enables an effective visual reminder of the choice between
efficiency and distributional objectives in policy analysis\--a
categorization that any student of economics cannot easily forget.
According to the conventional script, policy analysts must make a choice
**\*1212** between maximizing the size of the pie or slicing up the pie
more equally. The simple metaphor has served as an effective guide for
solving policy problems. [[\[FN474\]](#Document1zzFN_F474)]{.underline}

Beyond the activation of schemas, language and metaphor can also shape
the meaning of the things we describe and, in such a way, serve as a
schema for understanding our world. In her examination of categorization
and discrimination, Minow emphasizes the \"power of our language, which
embeds unstated points of comparison inside categories that falsely
imply a natural fit with the world.\"
[[\[FN475\]](#Document1zzFN_F475)]{.underline} She provides the example
of the term \"working mother\" to show how language contains meaning by
suggesting that the word \"mother\" is the common, general term and
\"working\" is required to modify it.
[[\[FN476\]](#Document1zzFN_F476)]{.underline} Such a desire to
distinguish from the common and traditional is the source of other
phrases like \"microbrewed beer\" and \"organic vegetables.\" Sometimes
what is exceptional becomes conventional. We suspect that, as more women
have entered the workforce in recent decades and as more families have
become \"dual-career\" or \"dual-income\" families, the \"working mom\"
appellation has become less common, and \"stay-at-home mom\" has become
more common. The baggage that these labels contain is hard to see
inasmuch as it relies on and reinforces the schemas already in place,
but it is unmistakable and revealing when highlighted.

The use of dehumanizing language to facilitate the atrocities against
Jews\-- that is, the \"final solution\" to the \"Jewish problem\"\--is
yet another example of the power of language in triggering particular
schemas and not others. For the German physicians who performed
\"selections\" (choosing which prisoners would be killed with poison
gas) in the concentration camps, the \"unifying principle of the
biomedical ideology was that of a deadly racial disease, the sickness of
the Aryan race; the cure, the killing of all Jews.\"
[[\[FN477\]](#Document1zzFN_F477)]{.underline} Such language, activating
and reinforcing the schema of sickness, was common. A camp doctor
commented on the need to \"remove a gangrenous appendix from a diseased
body\"; [[\[FN478\]](#Document1zzFN_F478)]{.underline} another
commented, \"There is a resemblance between Jews and tubercle bacilli,\"
an \"infection\" that could \"only be cured with difficulty.\"
[[\[FN479\]](#Document1zzFN_F479)]{.underline} A 1943 speech by Heinrich
**\*1213** Himmler contained similar language: \"Anti-Semitism is
exactly like delousing. The removal of lice is not an ideological
question, but a matter of hygiene. . . . We are almost deloused, we have
only some 20,000 lice left, and then it will be ended in all of
Germany.\" [[\[FN480\]](#Document1zzFN_F480)]{.underline} The language
enabled a shift of schemas\--from executioner to surgeon\--changing the
perception and nature of the practices within concentration camps.
[[\[FN481\]](#Document1zzFN_F481)]{.underline}

Perhaps to resist such dehumanization, early American feminists
humanized themselves by relying on the revolutionary rhetoric of others
in framing their movement. As Carol Hymowitz and Michaele Weissman
explain,

The same ideas by which the Founding Fathers justified the American
Revolution were used in the following century by the nation\'s first
feminists to legitimize their sexual revolution. . . . Mary
Wollstonecraft believed the much-discussed rights of man should be
extended to include women.

Just as it was not God\'s intention for men to be enslaved by tyrants,
so too, Wollstonecraft claimed, it was not God\'s intention for women to
be enslaved by men. Furthermore, she concluded, just as French and
American men were justified in rising up against unjust monarchs, so
women were justified in revolting against the tyranny of husbands,
fathers, and brothers. [[\[FN482\]](#Document1zzFN_F482)]{.underline}

Stanton came to feminism out of her outrage at the many gender-exclusive
rights and privileges of men and made one of her first major
contributions to the movement by persuading her cohorts to model the
\"Declaration of Rights and Sentiments\" after the Declaration of
**\*1214** Independence. [[\[FN483\]](#Document1zzFN_F483)]{.underline}
The latter was chosen as a model after the women concluded upon
examining the \"Peace, Temperance and Anti-Slavery\" conventions that
these were \"too tame and pacific for the inauguration of a rebellion
such as the world had never before seen.\"
[[\[FN484\]](#Document1zzFN_F484)]{.underline} The former, which was
endorsed at the Seneca Falls Woman\'s Rights Convention, began thus:
\"We hold these truths to be self-evident: that all men and women are
created equal; that they are endowed by their creator with certain
inalienable rights; that among these are life, liberty, and the pursuit
of happiness.\" [[\[FN485\]](#Document1zzFN_F485)]{.underline} And so it
was that Sojourner Truth moved her audience when she, accepting some
conventional schemas for the sake of challenging others, asked,

\"What\'s \[intellect\] got to do wid womin\'s rights or nigger\'s
rights? If my cup won\'t hold but a pint, and yourn holds a quart,
wouldn\'t ye be mean not to let me have my little half-measure full?\" .
. .

\"Den dat little man in black dar, he say women can\'t have as much
rights as men, \'cause Christ wan\'t a woman! Whar did your Christ come
from? . . . From God and a woman! Man had nothin\' to do wid Him.\"

. . . \"If de fust woman God ever made was strong enough to turn de
world upside down all alone, dese women togedder ought to be able to
turn it back, and get it right side up again! And now dey is asking to
do it, de men better let \'em.\"
[[\[FN486\]](#Document1zzFN_F486)]{.underline}

Of course, the same claim to such basic rights has been a rallying cry
for several major social movements, including the abolition and civil
rights movements. [[\[FN487\]](#Document1zzFN_F487)]{.underline} The
revolutionary schema is in place and, so long as it **\*1215** remains a
source of pride for the powerful, it will be a source of leverage for
the oppressed.

Given its close relation to the schemas we apply, it should come as no
surprise that language and metaphor also can have an important influence
over what we see and what we ignore. At the same time they focus our
attention on certain features of our world, they distract us from
others. [[\[FN488\]](#Document1zzFN_F488)]{.underline} Metaphors both
highlight and hide information.
[[\[FN489\]](#Document1zzFN_F489)]{.underline} George Lakoff and Mark
Johnson have discovered that individuals unconsciously liken arguments
to war and employ battle-related language to describe and understand
debates. [[\[FN490\]](#Document1zzFN_F490)]{.underline} The metaphor
influences not only the way we talk about argument (using terms like
\"defending,\" \"our position,\" \"shooting down,\" and \"our
opponents\"), but also the way we view the argument itself. When we
internalize the metaphor of argument as battle, we more easily lose
sight of \"the cooperative aspects of arguing,\" interpreting others as
opponents rather than as someone who is giving you \"his time, a
valuable commodity, in an effort at mutual understanding.\"
[[\[FN491\]](#Document1zzFN_F491)]{.underline} In such ways, according
to Lakoff and Johnson, metaphors have a significant influence on the
world we know:

Metaphors may create realities for us, especially social realities. A
metaphor may thus be a guide for future action. Such actions will, of
course, fit the metaphor. This will, in turn, reinforce the power of the
metaphor to make experience coherent. In this sense metaphors can be
self-fulfilling prophecies.
[[\[FN492\]](#Document1zzFN_F492)]{.underline}

We think a more general way to express the point is to say that language
and metaphor profoundly shape schemas, categories, and their
application\--and therefore can wield all the hidden, ingrained,
schema-triggering, reality-coloring, and situation-altering influences
that social psychologists have found with regard to schemas and
categories.

**\*1216** 3. Summary

We have described many of the critical findings of social cognition
research on the effect of categories and schemas on human cognition.
Figure 21 attempts to summarize the information flow process, augmenting
the simple schematic displayed in Figure 1 by illustrating both the
effects of schemas throughout the attention, categorization, retrieval,
and inference processes, as well as the effects of priming, motivation,
and affect on the choice and application of schemas.

Figure 21. Schematic Overview
[[\[FN493\]](#Document1zzFN_F493)]{.underline}

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

The figure above is, as we noted at the outset, necessarily a
simplification of the process. For instance, motivations, affect, and
priming are not the only factors that will shape the choice and
application of **\*1217** schemas. Moreover, the effect of motivations,
affect, priming, and other factors, which the diagram illustrates as
mediated through the schema function, will also have direct effects on
the different stages of information processing. Similarly, the
information we attend to and process will influence, through the priming
function, our active schemas. Still, the diagram does, we hope, usefully
depict some important, well-demonstrated elements of the process.

In light of the power of categories and schemas to guide our thoughts
and, more generally, to shape the way we view the world, it would
behoove scholars attempting to understand the world to be mindful of the
biased origins and effects of their knowledge structures. The evidence
regarding how our schemas and categories are chosen and applied should
be disquieting for those who assume that we are reasoning animals,
relying on neutral, perhaps natural, cognitive processes. Unexamined and
often unseen schemas and categories, combined with similarly
underappreciated influences, such as motivation and affect, are at the
heart of what we too often experience as careful, neutral, logical
reasoning.

In light of those largely hidden influences, legal scholars and
lawmakers, who are at the center of creating many of our society\'s most
influential categories and schemas, should be worried. We should worry,
among other things, about what categories and schemas are being applied,
how they are being applied, where they came from, who is able to
challenge them and under what circumstances, and which factors give rise
to their application. And, in light of the fact that owing to these
influences we sometimes \"come to believe what we want to believe
because we want to believe it,\"
[[\[FN494\]](#Document1zzFN_F494)]{.underline} we should all be
vigilantly suspicious of what we believe. \"Faulty, but initially
plausible medical diagnoses may go unrejected, possibly leading to fatal
medical errors.\" [[\[FN495\]](#Document1zzFN_F495)]{.underline} Initial
beliefs of guilt or innocence can, under some circumstances, prejudice
jury members. [[\[FN496\]](#Document1zzFN_F496)]{.underline}
\"Scientific theories may persist long after there is enough data
available to discredit them.\"
[[\[FN497\]](#Document1zzFN_F497)]{.underline} And, most relevant for
the subject of our analysis, \"\[p\]olicy-level decision-makers may
incorporate only evidence that **\*1218** supports their position into
their decisions and fail to utilize important information favoring
another alternative as a result.\"
[[\[FN498\]](#Document1zzFN_F498)]{.underline}

III\. APPLICATIONS

A. Categories and Schemas in Current Legal Scholarship

Although this Article is by no means the first to recognize the
potential significance of schemas and knowledge structures, we believe
that it is one of the first in legal scholarship (and perhaps even in
the social psychology literature) to provide such a thorough synthesis
of that literature\--what we hope will be a broad yet manageable
schematic of schemas. [[\[FN499\]](#Document1zzFN_F499)]{.underline}

There is another way in which our project differs from that of other
legal scholars who have borrowed from the social psychology literature
on knowledge structures. To understand how, it is necessary to recognize
that there are a variety of groups to which one might apply the insights
of social psychology. At one extreme, one can assume that the only
people who are subject to the sorts of tendencies that we have detailed
above are the individuals who are subject to the laws and policies that
legal scholars analyze. We call this view the \"consumer\" or \"citizen
view.\" A second deeper, level, the \"lawmaker view,\" would assume that
the insights have relevance as well for the legislators, judges, and
juries (including any of their constituencies) who create and apply the
law. And, at the other extreme, one could assume that legal theorists
and legal academics\--we ourselves\--are subject to the influences. That
is the \"critical realist view,\" a level of analysis that includes the
previous two levels as well.
[[\[FN500\]](#Document1zzFN_F500)]{.underline}

**\*1219** While there are excellent examples of legal scholarship that
recognize the importance of categories and schemas,
[[\[FN501\]](#Document1zzFN_F501)]{.underline} the literature thus far
has been limited in several ways. First, most of the articles have
provided only a very superficial explication of the social psychology
concepts or have relied on that research only tangentially in their
analyses. [[\[FN502\]](#Document1zzFN_F502)]{.underline} Second, the
legal topics analyzed using the schema research have been quite narrow,
focusing typically on one doctrine or judicial opinion and remaining at
the citizen or lawmaker levels of analysis.
[[\[FN503\]](#Document1zzFN_F503)]{.underline} Third, the efforts have
not had the effect of encouraging broader application of the research,
owing largely to the first two limitations.
[[\[FN504\]](#Document1zzFN_F504)]{.underline} And finally, none of the
research to date has taken a critical realist perspective. That is, none
have considered the implications of knowledge structures for
understanding not just citizens or the effect of laws, but also the
legal academics and legal theories behind those laws. And none have done
much to explore the origins and sources of dominant knowledge
structures. As we will explain below, only by taking **\*1220** the
critical realist approach will legal scholars begin to glimpse the
significant and broad effects of how we legal scholars think on what we
(and our audiences, including lawmakers) think. But first, it may be
illuminating to summarize briefly two articles that draw upon the schema
research and are fairly representative of the best attempts to apply the
social psychology insights of knowledge structures.

1\. Two Legal-Academic Applications

It stands to reason that\--from within the broader area of knowledge
structures\--legal scholars have tended to focus mostly on the influence
of stereotypes on citizens or on lawmakers.

a\. Linda Hamilton Krieger

Krieger, for example, has applied that research to elucidate issues in
many Title VII cases. She argues that \"the way in which Title VII
jurisprudence constructs discrimination, while sufficient to address the
deliberate discrimination prevalent in an earlier age, is inadequate to
address the subtle, often unconscious forms of bias that Title VII was
also intended to remedy.\"
[[\[FN505\]](#Document1zzFN_F505)]{.underline}

As she explains, much of the most potent discrimination or bias occurs
unintentionally and unconsciously (owing to knowledge structures and
other unseen cognitive influences) such that \"at the moment of
decision, an employer may be entirely unaware of the effect of an
employee\'s group membership on the decisionmaking process.\"
[[\[FN506\]](#Document1zzFN_F506)]{.underline} She summarizes the way
that stereotypes operate as \"social schemas\" that \"function as
implicit theories, biasing in predictable ways the perception,
interpretation, encoding, retention, and recall of information about
other people.\" [[\[FN507\]](#Document1zzFN_F507)]{.underline} Krieger
focuses on Tajfel and Wilkes\'s research on the effects of
categorization on perceived similarity and difference as well as on the
process of categorization by prototype, both of which we discussed
earlier, [[\[FN508\]](#Document1zzFN_F508)]{.underline} as the starting
points for her argument. [[\[FN509\]](#Document1zzFN_F509)]{.underline}

Her thesis is that the inclination to revert automatically to such
categories makes Title VII\'s discriminatory intent requirement unduly
**\*1221** burdensome. [[\[FN510\]](#Document1zzFN_F510)]{.underline} In
her view, Title VII, and presumably other laws intended to address the
effects of discrimination,
[[\[FN511\]](#Document1zzFN_F511)]{.underline} should take into account
the way that discrimination often occurs, that is, unintentionally. Even
a manager who honestly professes ignorance of any racial or ethnic
differences in the workplace may have been subject to unconscious biases
resulting in discriminatory actions. Thus, the search for discriminatory
intent or motive will often be either misguided or inadequate.
[[\[FN512\]](#Document1zzFN_F512)]{.underline}

b\. Martha Chamallas

Chamallas extends the application of schemas to the thinking of
lawmakers (or their constituents). She argues that the lawmaking process
has been biased by inaccurate prototypes.
[[\[FN513\]](#Document1zzFN_F513)]{.underline} More specifically,
Chamallas argues that common views of \"rape\" have been shaped largely
by the prototype of stranger-rape, leading society and its lawmakers to
exclude date- and acquaintance-rape from the category of \"real rape.\"
[[\[FN514\]](#Document1zzFN_F514)]{.underline} Similarly, Chamallas
argues that the prototype of the \"welfare mother\"\--triggering visions
of \"single, black and young\" women\--has shaped a policy that applies
to all welfare recipients no matter how distinct their experience and
situation. [[\[FN515\]](#Document1zzFN_F515)]{.underline} That
prototype, Chamallas argues, has facilitated public support for the
passage of stricter workfare requirements, as it triggers an **\*1222**
emphasis on the disposition of the welfare mother rather than on the
contextual and background factors that contribute to her status.
[[\[FN516\]](#Document1zzFN_F516)]{.underline} Finally, Chamallas argues
that the prototype of the \"hate crime\" is a narrow one and prevents
many instances of hate crimes from being properly classified.
[[\[FN517\]](#Document1zzFN_F517)]{.underline} \"Over time,\" Chamallas
writes,

the existence of the prototype may actually operate to narrow or to
alter the legal category if legal commentators and actors within the
legal system treat the legal category as if it were bounded by the
attributes of the prototype and go on to construct models and rationales
centered on the biased prototype.
[[\[FN518\]](#Document1zzFN_F518)]{.underline}

Chamallas points to three commonalities that she identifies in her
examples: a lack of representativeness of the prototype;
[[\[FN519\]](#Document1zzFN_F519)]{.underline} the prototype\'s tendency
to \"reflect or carry with \[it\] a theory about the causation of social
events\"; [[\[FN520\]](#Document1zzFN_F520)]{.underline} and the
prototype\'s tendency to lead to dichotomous categories\--as either
fitting within the prototype or as departing from it.
[[\[FN521\]](#Document1zzFN_F521)]{.underline} More generally, Chamallas
identifies three of the dangers that stem from our discussion above:
first, the possibility that a prototype may not represent a category
satisfactorily; second, the fact that individuals apply schemas to
categorized information (and, therefore, if the information is
miscategorized due to biased prototypes, then the subsequent application
of the wrong schemas will likely compound any judgment biases); and,
third, the cognitive tendency of individuals to classify information as
either a member of the category or as outside the category being
considered.

2\. Extensions: Beyond Stereotypes and the Citizen and Lawmaker Views

This Article has in common with those important contributions a belief
in the centrality and significance of categories and schemas in
affecting the way we think at all times about all things. While the work
described above illustrates some of the sorts of insights that an
understanding of the power of categories and schemas can bring to legal
scholarship, [[\[FN522\]](#Document1zzFN_F522)]{.underline} that
literature has only scratched the surface in identifying **\*1223** the
relevance of research on knowledge structures. As we have already
indicated, knowledge structures influence all humans\--not only
individuals whose behaviors the law seeks to evaluate or direct, and not
just lawyers, judges, and juries who help to implement the law, but also
those whose work sometimes shape and create the law.

Perhaps one reason that legal theorists have not previously turned the
insights of social psychology on themselves (ourselves) is that lawyers
and legal scholars (we) tend not to perceive themselves (ourselves) to
be operating according to, much less biased by, knowledge structures. Of
course, that is not unusual. One of the messages of the social
psychology literature is that people tend not to be aware of their own
knowledge structures or the influence of those knowledge structures.
Knowing what we know about the human animal, and knowing that law and
legal theory are both promulgated by humans, the general presumption of
legal scholars should be reversed, and legal theorists should assume,
absent reason to believe otherwise, that the biasing effects of schemas
are always in play.

Indeed, the legal system itself, with all of its categories, schemas,
scripts, metaphors, and analogies, is nothing if not an elaborate set of
knowledge structures. And learning to think like a lawyer often means
learning to operate within the law\'s existing schemas and categories.
That, at least, is the testimony of many legal scholars. For example,
Edward Levi, in his classic An Introduction to Legal Reasoning, writes
that the legal process

is a system of rules; the rules are discovered in the process of
determining similarity or difference. . . . The problem for the law is:
When will it be just to treat different cases as though they were the
same? A working legal system must therefore be willing to pick out key
similarities and to reason from them to the justice of applying a common
classification. The existence of some facts in common brings into play
the general rule. [[\[FN523\]](#Document1zzFN_F523)]{.underline}

More recently, Steven Burton has described the relationship of \"law\"
and \"facts\" very much the way that social psychologists describe the
relationship of schemas and information:
[[\[FN524\]](#Document1zzFN_F524)]{.underline} \"the law determines what
facts are relevant while, at the same time, the facts determine what law
is relevant.\" [[\[FN525\]](#Document1zzFN_F525)]{.underline} Minow
adds: \"much of legal reasoning demands familiarity with legal terms,
practice in perceiving problems through categories, and **\*1224**
acceptance of the consequences assigned to particular legal
categories.\" [[\[FN526\]](#Document1zzFN_F526)]{.underline} As Anthony
Amsterdam and Jerome Bruner write, \"Where there be law, so too must
there be categories. For law defines categorically the limits of the
permissible or, more often, of the impermissible. Since human
imagination cannot conceive of the full variety of possible
transgressions, law requires a system of categories to reduce that
variety.\" [[\[FN527\]](#Document1zzFN_F527)]{.underline}

It is not just lawyers who have made the point. In an illuminating
overview of \"legal reasoning,\"
[[\[FN528\]](#Document1zzFN_F528)]{.underline} social psychologist (and
legal scholar) Phoebe Ellsworth is slightly more explicit
[[\[FN529\]](#Document1zzFN_F529)]{.underline} in describing laws and
legal theories as knowledge structures. Echoing the lawyers above, she
explains that American legal education is primarily about providing
students

the ability to spot the factual and legal similarities and (more
important) differences between the case under study and previous cases
that may be relevant. This entails defining the universe of relevant
cases, and deciding which ones match the current case most closely and
which, although apparently similar, do not apply.
[[\[FN530\]](#Document1zzFN_F530)]{.underline}

In that way, the \"analogical\" reasoning so central to legal reasoning
is really just \"prototype search\" by another name.
[[\[FN531\]](#Document1zzFN_F531)]{.underline}

Her analysis reveals much more about legal reasoning as knowledge
structures. Indeed, as she suggests, even the expression legal
reasoning\--that is, the reasoning of judges and not jurors, lawyers, or
legal scholars\--reflects a contestable categorical distinction that is
part of larger legal-theoretic schema.
[[\[FN532\]](#Document1zzFN_F532)]{.underline} According to Ellsworth,
the challenge in legal reasoning is not unlike the challenge for any
form of reasoning: \"That there are often numerous interpretations of
the facts and numerous possible legal precedents to draw on is the
central problem of legal reasoning.\"
[[\[FN533\]](#Document1zzFN_F533)]{.underline} It is knowledge
structures that help resolve those challenges in
interpretation\--knowledge structures of which the judges themselves are
usually not conscious. As Ellsworth points out, the (all-too-human)
judges **\*1225** tend not to focus much on how they reason.
[[\[FN534\]](#Document1zzFN_F534)]{.underline} Instead, judges tend to
accept whatever \"common-sense background theory \[is\] prevalent in the
legal culture of their era.\"
[[\[FN535\]](#Document1zzFN_F535)]{.underline} Most judges, that is,
typically perceive or theorize themselves as reasoning and deciding
according to a conventional schema for appropriate judicial behavior.

And, further revealing the role and dynamics of knowledge structures,
Ellsworth traces the major schema-generating schools of thought or
movements and the types of reasoning that they endorse. She usefully
highlights all the \"biggies\"\--formalism, legal realism, law and
economics, law and society, and critical legal studies\--and traces the
varying ways and degrees to which these approaches rely on rigid
categories. For instance, Ellsworth describes \"\[t\]he essence of legal
formalism\" as

the idea that \"a few basic top-level categories and principles formed a
conceptually ordered system above a large number of bottom-level rules.
The rules themselves were, ideally, the holdings of established
precedents, which upon analysis could be seen to be discovered from the
principles.\" In other words there is a pyramid of rules, with a very
few fundamental \"first principles\" at the top, from which mid-level
and finally a large number of specific rules could be derived. The legal
decision-maker, faced with a case to be decided, would look to the body
of law and discover the rule that determined the correct result.
[[\[FN536\]](#Document1zzFN_F536)]{.underline}

As somewhat of an aside, we find noteworthy the historical similarity
between the legal formalists and the social psychologists who offered
the classical view of categorization. The classical view, recall,
assumed that categories were rigid, real, and well-defined
[[\[FN537\]](#Document1zzFN_F537)]{.underline}\--in other words, the
classical view is formal. Just as the classical view in social
psychology was soon confronted by evidence of how real humans
categorized objects and was challenged by competing social psychology
theories (including the prototype theory of categorization
[[\[FN538\]](#Document1zzFN_F538)]{.underline}), so did legal formalism
yield to mounting aschematic evidence of how real judges decided cases.
To the most astute observers, the practice of judging revealed that the
legal categories purporting to carry the weight of reasoning were not so
much **\*1226** foundation as façade\--an illusion that most judges
themselves accepted as real. Describing this key moment in the turn away
from formalism toward legal realism, Ellsworth writes,

As time goes by and the legal landscape becomes dense with more and more
intermediate cases, the failures of formalism become increasingly
apparent. As Holmes put it, \"Two widely different cases suggest a
general distinction which is a clear one when stated broadly. But as new
cases cluster around the opposite poles, and begin to approach each
other, the distinction becomes more difficult to trace; the
determinations are made one way or the other on a very slight
preponderance of feeling, rather than articulate reason; and at last a
mathematical line is arrived at by the contact of contrary decisions,
which is so far arbitrary that it might equally well have been drawn a
little further to one side or the other.\"
[[\[FN539\]](#Document1zzFN_F539)]{.underline}

Holmes, in other words, was confronting the same fuzzy boundaries
problem that led social psychologists to prototype theory. Prompted by
such observations and insights, the last century or so has witnessed a
sporadically paced disintegration of formalism\'s categories\--at least
in scholarly circles. Indeed, demonstrating the inadequacies of
formalism was a defining motive for most legal realists,
[[\[FN540\]](#Document1zzFN_F540)]{.underline} who \"rejected the
formalist ideas that the law was a self-contained logical system,
providing for the scientific, deductive derivation of the right answer
in all new cases. They regarded this view as a vain daydream,
disconnected from the real-world influences on legal decision
makers\--hence the label \'legal realism.\"\'
[[\[FN541\]](#Document1zzFN_F541)]{.underline}

There the parallel histories of law and social psychology end. In social
psychology, the formalism of the classical view of categories has been
all but fully eclipsed by more nimble alternative theories.
[[\[FN542\]](#Document1zzFN_F542)]{.underline} But in law, the legacy of
formalism, despite the scholarly revelations, is still quite robust,
particularly in judicial opinions.
[[\[FN543\]](#Document1zzFN_F543)]{.underline} As Ellsworth summarizes,

Typically decisions are presented as the inevitable consequence of a
careful analysis of the facts and the applicable law. The correct
decision and the governing principles are described as discovered, not
created, by the judge . . . and are expressed with great certainty, as
though there were no room for doubt. \"It seems that this neo-formalist
form of jurisprudence\-- typified by a self-reported experience of
constraint, high **\*1227** confidence and singular correctness, all
couched in the rhetoric of closure\--is the predominant, albeit
unofficial, mode of judicial reasoning in current American legal
culture.\" [[\[FN544\]](#Document1zzFN_F544)]{.underline}

There may be several reasons why simplistic categories remain largely
intact, including the fact that judges are engaged not in science, but
in the resolution of disputes between adversaries.
[[\[FN545\]](#Document1zzFN_F545)]{.underline} Among other things, that
means that most observers and practitioners do not recognize the
inadequacies of the categories and are typically more focused on
obtaining closure\--a decision in a particular dispute\--than they are
in ensuring categorical coherence across all cases. Whatever the
explanations, legal reasoning and much of legal theory seems heavily
laden with the same sort of uncontested knowledge structures that typify
human cognitions.

At first blush, therefore, one might imagine that the knowledge
structures behind law and legal theory are not immune to all of the
biasing influences that typically bedevil other less formal and less
important knowledge structures. Our modern understanding of the ways in
which anti-Semitism and patriarchy were well ensconced in a legal system
that for a long period did not appear illegitimate to the majority of
people subject to those laws lends credence to the belief that the
unseen influence of knowledge structures permeates the law. As that
experience suggests, the law may reflect and reinforce knowledge
structures that may be dangerously biased.
[[\[FN546\]](#Document1zzFN_F546)]{.underline}

Similarly, it might be presumed that legal theory that purports to make
sense of the law through the generation and application of knowledge
structures would also suffer from the same sorts of biases. But such
conclusions about the power of categories and schemas in legal
scholarship may be unwarranted. The social psychology literature does
contain some evidence that under certain circumstances people can avoid
at least some of the distorting effects of knowledge structures. Before
we can confidently presume that what is true for humans in most
situations is true also for lawyers and legal scholars, we should ask
whether there is anything special about the way in which law and legal
theory is generated that inoculates it against such effects.

**\*1228** In the next section, we review the literature on possible
debiasing factors to determine whether these factors might ever be
robust enough to counterbalance fully the otherwise distorting influence
of knowledge structures and to examine the extent to which such factors,
no matter their strength, might be present in the institutions and
processes underlying law and legal theory. In the process, our
discussion provides additional evidence for the unconscious and
automatic nature of schematic processes.

B. Controlling for the Bias in Our Schema-Driven Cognitions?

Social psychologists have identified conditions in which some of the
potentially biasing effects of our schemas can be mitigated. The
evidence indicates that, although it is possible to find instances in
which schemas will be less influential, those instances require the
confluence of a number of rare conditions. Unfortunately, therefore, our
attempts to debias our schema-based thinking will be less successful
than we would hope and might expect, leaving little reason to suspect
that legal scholars are any less subject to schema-driven biases. In
fact, there is some reason to expect that the conditions surrounding
legal scholarship would exacerbate these biases.

1\. Conditions of Decreased Schema Reliance

As noted at the outset, the use of categories and schemas is automatic
and generally energy-conserving. Still, the cognitive energy expended in
creating, utilizing, and maintaining categories and schemas can vary
significantly. At times, inferences follow immediately and effortlessly
from our schemas, but at other times significant cognitive capacity is
utilized, for example, to scrutinize evidence and incorporate it into
our schemas or to adjust our schemas in light of the evidence. As
described above, a primary function of schemas is to simplify our
complex environments and to make manageable the cognitive processes
required to negotiate it. Thus, while we will sometimes shift toward
more data-sensitive information processes, or (as depicted in Figure 11)
expend the cognitive resources to create and tune new schemas that are
more appropriate to the information at hand, the default is to rely
heavily on active schemas and categories.
[[\[FN547\]](#Document1zzFN_F547)]{.underline} Again, doing so allows us
to utilize our scarce cognitive resources more efficiently.
[[\[FN548\]](#Document1zzFN_F548)]{.underline}

**\*1229** Because the biases caused by our categories and schemas may
be tempered or even eliminated by relying less mindlessly on a given
schema and scrutinizing more thoroughly the available data, it is useful
to examine the conditions in which our minds opt out, even if only
unconsciously, of that default process. It appears that at least three
necessary conditions must be met before a person will venture from the
path of least resistance encouraged by the cognitive inertia depicted in
Figure 11 (though, even taken together, they may not always be
sufficient).

First, a person must not already be too cognitively busy or occupied
when confronted with new information or evidence. The fact that our
cognitive resources are scarce explains why the more cognitively busy
individuals are, the more they must conserve remaining resources by
relying more completely on schemas to guide judgment. This is analogous
to the fact that on a purely physical plane, most of us would find it
difficult to juggle, drive, and chew gum at the same time. The same
basic tendency is true on a cognitive plane.
[[\[FN549\]](#Document1zzFN_F549)]{.underline} We have already
highlighted a classic demonstration of that in our discussion of the
Stroop Test illustrated in Tables 1 through 3.
[[\[FN550\]](#Document1zzFN_F550)]{.underline} Similarly, subjects in
one experiment were better able to resist stereotypical inferences (that
is, inferences based purely on gender schemas, race schemas, age
schemas, and the like) when they were asked to perform cognitively
undemanding tasks than when they are given complex tasks.
[[\[FN551\]](#Document1zzFN_F551)]{.underline}

The second necessary condition is that the information we encounter must
be relevant as defined by our activated schemas.
[[\[FN552\]](#Document1zzFN_F552)]{.underline} As discussed above, the
fact that schemas and categories enable us, for better or worse, to
ignore irrelevant information is a fundamental source of their
economizing effects. [[\[FN553\]](#Document1zzFN_F553)]{.underline}
Irrelevant information need not be attended to, **\*1230** encoded, or
remembered, and thus poses no tax or friction on our cognitive
processes. The example of the falling woman in the photograph was one
example of how people can be blind to schema-irrelevant information.

Third, for relevant information to encourage greater sensitivity to the
data and, perhaps, weaken the biasing effects of our schemas and
categories, that data must be inconsistent with the expectations or
default inferences created by those schemas and categories. If the
relevant information is consistent, little beyond our attention would be
required of us to accommodate it; it would fit readily in our
preexisting cognitive filing system.
[[\[FN554\]](#Document1zzFN_F554)]{.underline} Inconsistent information,
in contrast, takes effort. As Fiske and Taylor write, \"One way to think
about this is that encoding inconsistent information requires creating
an acceptable niche for it, whereas for consistent information the
schema provides a ready-made niche.\"
[[\[FN555\]](#Document1zzFN_F555)]{.underline} It is only when the
information is inconsistent that it may force us to diverge from the
most efficient cognitive path and to perhaps modify the schema, choose
or search for an alternative, existing schema, or create an entirely new
schema that is consistent with the data presented (as depicted in Figure
11). [[\[FN556\]](#Document1zzFN_F556)]{.underline}

Those are three of the necessary conditions for limiting the biasing
effect of schemas. As is implied in subsequent sections, we believe
there are more than three,
[[\[FN557\]](#Document1zzFN_F557)]{.underline} but these three are
sufficient to make our point. Only when the evidence available to us is
relevant and inconsistent with our schema, and only when we are
otherwise not too cognitively busy, is there any potential that our
schemas and their biasing effects will be challenged.

**\*1231** With respect to that potential, social psychologists have
shown that there is good news and bad news. The good news is that,
occasionally, that potential is partially realized\--as noted earlier,
there are indeed times in which we do take inconsistent information into
account when applying our schemas.
[[\[FN558\]](#Document1zzFN_F558)]{.underline} The bad news is that
those occasions are rare and, when they do occur, their debiasing impact
is generally slight. Our schemas and categories wield tremendous
influence\--often a biasing influence\--over how we view ourselves and
our world, and our unconscious (and sometimes even conscious) cognitive
efforts to counteract that influence are uncommon and ineffective.

Stereotypes nicely illustrate the difficulty of resisting the potential
biases that schemas present. Although the research on stereotypes is not
irrefutable evidence that all schemas will be difficult to counter, it
does suggest that the power of schemas will influence even those with
the best of intentions. Research has shown that stereotypes may be
activated automatically and unintentionally,
[[\[FN559\]](#Document1zzFN_F559)]{.underline} even with neutral
reminders, [[\[FN560\]](#Document1zzFN_F560)]{.underline} and can have
significant effects on thoughts and behavior, even when we desire them
not to do so. [[\[FN561\]](#Document1zzFN_F561)]{.underline} When
individuals consciously refuse to subscribe to particular stereotypes,
research suggests that these individuals, being human, will still
typically rely on cognitive processes that depend on stereotypes to make
sense of information, so that they, in turn, can act on that
information. Thus, when stereotypes have developed, activation of the
stereotypes will be automatic and inevitable. Those who do not subscribe
to the stereotype may have some success in suppressing it, but only if
time and cognitive resources permit.
[[\[FN562\]](#Document1zzFN_F562)]{.underline} Because categories that
have been primed will be more easily activated, it is more likely in
such cases that judgments will be \"biased toward category-level
information\" and away from \"individuating characteristics.\"
[[\[FN563\]](#Document1zzFN_F563)]{.underline}

**\*1232** Ziva Kunda, for example, describes an experiment isolating
automatic processes in which low-prejudice individuals (as measured by
explicit attitude tests) were primed subliminally with words related to
the African American stereotype. Those subjects were just as likely as
high-prejudice individuals to activate the stereotype. When tested under
full awareness and afforded more time to process the information,
low-prejudice individuals exhibited quite different behavior.
[[\[FN564\]](#Document1zzFN_F564)]{.underline} With more time to
consider their inferences (and thus less cognitive busyness),
low-prejudice individuals tended to correct their inferences.
[[\[FN565\]](#Document1zzFN_F565)]{.underline} Still, the experiment
suggests that once a schema (in this case, a stereotype) has been
activated, it is \"difficult\" and \"attentionally demanding\" to
prevent oneself from succumbing to the inferences that the schema
entails. [[\[FN566\]](#Document1zzFN_F566)]{.underline} Just as we read
the word \"black\" before we name the color white in the Stroop Test, we
often access the racial stereotype well before we can succeed in
reminding ourselves that the stereotype is just that.

Few experiments demonstrate the self-propelled power of our schemas and
categories as clearly or dishearteningly as the ongoing research of
Mahzarin Banaji, Tony Greenwald, Brian Nosek, and others among their
collaborators. [[\[FN567\]](#Document1zzFN_F567)]{.underline} That
research on \"implicit attitudes\" strongly indicates, among other
things, that \"our minds contain knowledge about social groups
(stereotypes \[or schemas\]) and attitudes (prejudice) toward
them\--whether we want \[them\] to or not.\"
[[\[FN568\]](#Document1zzFN_F568)]{.underline} In other words, the
prejudicial schemas that many of us reject and abhor \"elude conscious
awareness, seem oblivious to conscious intention, and defy conscious
control.\" [[\[FN569\]](#Document1zzFN_F569)]{.underline} This is not to
say, consistent with the good news reviewed above, that our schemas do
not wield less influence when we actively challenge or reject them.
People\'s explicit attitudes, often based on conscious efforts to reject
common stereotypes, do correlate with their implicit attitudes.
[[\[FN570\]](#Document1zzFN_F570)]{.underline} The point is that
explicit attitudes are far from **\*1233** controlling, and the workings
of our schemas that we don\'t see continue to wield surprising influence
even as we consciously seek to disarm them. Individuals\' simple
knowledge of a stereotype, without subscription to its veracity, is
enough to activate it in them; they need only be primed or cued with
stereotype-related material to experience the influence.

This work on stereotypes suggests something about the power of all
categories and schemas. Whether or not we experience them consciously,
we are thinking categorically, and we are\--because our categories and
schemas are sometimes misleading, inaccurate, and inconsistent with the
evidence\--more or less categorically biased.

2\. General Debiasing Literature

The biases that categories and schemas engender are, in some ways, not
unique; they stem partially from the same cognitive miserliness that
leads to a wide range of heuristics and biases. As such, psychological
research into methods of debiasing perceptions may illuminate the
challenges inherent in counteracting schema-based biases.

Psychologist Scott Plous surveyed research and suggested a focus on
motivational factors as a strategy to avoid cognitive biases ranging
from confirmation biases to self-fulfilling prophecies.
[[\[FN571\]](#Document1zzFN_F571)]{.underline} For instance, Plous
suggests that when eliciting the opinions of others, one way to help
avoid biases is to frame the question so that it encourages
disconfirming answers. [[\[FN572\]](#Document1zzFN_F572)]{.underline}
Individuals who actively solicit evidence that is inconsistent with
their schemas before drawing inferences will, perhaps not surprisingly,
be more likely to reach unbiased conclusions.
[[\[FN573\]](#Document1zzFN_F573)]{.underline} Actively ensuring a
consideration of \"the other side\" is perhaps the most sure-fire way to
reduce biases that result from our automatic cognitive processes,
[[\[FN574\]](#Document1zzFN_F574)]{.underline} though the efficacy of
even such direct strategies have yet to be confirmed, **\*1234** perhaps
revealing the difficulty of avoiding the biases that categories and
schemas are likely to engender.

There are a number of factors that may cause individuals to be more
likely to consider \"the other side.\" For instance, one study found
that if experimental interviewers were informed that the interviewees
would be sensitive to questions that were asked, viewing particular
questions as being discriminatory, the interviewers were more likely to
uncover equal amounts of confirming and disconfirming evidence.
[[\[FN575\]](#Document1zzFN_F575)]{.underline} Such findings are
consistent with research by Lerner and Tetlock, described earlier, on
the tendency of individuals to engage in preemptive self-criticism
[[\[FN576\]](#Document1zzFN_F576)]{.underline} when the views of an
audience are unknown. [[\[FN577\]](#Document1zzFN_F577)]{.underline}

Like Plous, other researchers (such as Thomas Gilovich) have outlined
\"compensatory mental habits\" designed to counteract the automatic and
often faulty processes that we are unable to suppress.
[[\[FN578\]](#Document1zzFN_F578)]{.underline} Gilovich emphasizes the
need to instill an awareness of the biases, to \"step back\" and \"to
develop the habit of thinking more broadly.\"
[[\[FN579\]](#Document1zzFN_F579)]{.underline} Both theists and
atheists, Gilovich writes, \"must consider the number of times their
hopes have been realized when they have prayed and when they have not,
as well the number of times their hopes have been dashed when they have
prayed and when they have not.\"
[[\[FN580\]](#Document1zzFN_F580)]{.underline} Because we know that some
information is more likely to be ignored than other information,
individuals who seek to remove biases must be particularly attentive to
the potentially elusive nature of certain types of information. If the
research on schemas is correct, for instance, individuals must make
extra efforts to focus on seemingly irrelevant schema-inconsistent
information. Gilovich suggests a \"greater familiarity with the
scientific enterprise\" can contribute to \"a healthy skepticism toward
claims about how things are or should be.\"
[[\[FN581\]](#Document1zzFN_F581)]{.underline}

Such strategies seem quite simple\--learning, for example, to ask
ourselves questions such as, \"How would someone who does not believe
**\*1235** the way I do explain this result?\" or \"What alternative
theory could account for it?\"
[[\[FN582\]](#Document1zzFN_F582)]{.underline} But, unfortunately, and
here is the rub, they depend almost entirely on the individual\'s desire
or motivation to remove biases.

In a similar vein, Gollwitzer & Moskowitz outline research suggesting
that

stereotype use can be defeated by requiring the target of the
stereotypes, the victim of one\'s perceptual biases, to act in a manner
that is somehow diagnostic enough, consistent enough, and salient enough
to hit the stereotyped person over the head and awaken the ability to
individuate. If strengthening the data is one method to delimit
stereotype use, then perhaps even in the presence of weak data (i.e.,
ambiguous and nondiagnostic information) a challenge to stereotype use
can come from strengthening another factor in active perception\--the
goals of the perceiver. [[\[FN583\]](#Document1zzFN_F583)]{.underline}

Langer\'s analysis of mindful thinking is also helpful for understanding
the conditions in which reliance on categories and schemas are
mitigated. [[\[FN584\]](#Document1zzFN_F584)]{.underline} Langer\'s
notion of mindful thinking is to avoid reliance on our ingrained
categories: \"Mindlessness sets in when we rely too rigidly on
categories and distinctions created in the past (masculine/feminine,
old/young, success/failure),\"
[[\[FN585\]](#Document1zzFN_F585)]{.underline} on our scripts, or on any
of our automatic, unthinking behaviors. Langer suggests that the
critical components of mindful thinking are, in particular, the
\"creation of new categories,\" \"openness to new information,\" and
\"awareness of more than one perspective.\"
[[\[FN586\]](#Document1zzFN_F586)]{.underline} To think mindfully\--that
is, to weaken the biasing effects of existing knowledge
structures\--adults must invoke the processes that **\*1236** are
natural to children, constantly recategorizing and relabeling
information, paying close attention to situation and context.
[[\[FN587\]](#Document1zzFN_F587)]{.underline}

So, perhaps it is possible to teach old dogs new tricks.
[[\[FN588\]](#Document1zzFN_F588)]{.underline} It is important to note,
however, that the suggestions outlined above depend in large part on
some recognition by people that their thinking may be biased and must
include a desire or motive to correct those biases.
[[\[FN589\]](#Document1zzFN_F589)]{.underline} The old dogs, in other
words, need to want to learn new tricks, which, like making horses drink
water, may be the biggest trick of all. This is part of what Elizabeth
Cady Stanton was getting at when she so eloquently wrote,

It is impossible to make the Southern planter believe that his slave
feels and reasons just as he does\--that injustice and subjection are as
galling as to him\--that the degradation of living by the will of
another, the more dependent on his caprice, at the mercy of his
passions, is as keenly felt by him as his master. If you can force on
his unwilling vision a vivid picture of the negro\'s wrongs, and for a
moment touch his soul, his logic brings him instant consolation. He
says, the slave does not feel this as I would.
[[\[FN590\]](#Document1zzFN_F590)]{.underline}

Stanton understood that many of the widely held race and gender
categories and schemas were neither random nor natural, though they may
have seemed that way to those holding them. She understood that those
categories and schemas were largely constructed by those motivated to
maintain the then-existing power relationships.

**\*1237** Stanton also well understood, consistent with our thesis,
that the laws both reflected and reinforced those categories and
schemas. As she explained:

Here, gentlemen, is our difficulty: When we plead our cause before the
law-makers and savants of the republic, they can not take in the idea
that men and women are alike; and so long as the mass rest in this
delusion, the public mind will not be so much startled by the
revelations made of the injustice and degradation of woman\'s position
as by the fact that she would at length wake up to a sense of it. . . .
[[\[FN591\]](#Document1zzFN_F591)]{.underline}

And thus, \"\[t\]he nobleman can not make just laws for the peasant; the
slaveholder for the slave; neither can man make and execute just laws
for woman, because in each case, the one in power fails to apply the
immutable principles of right to any grade but his own.\"
[[\[FN592\]](#Document1zzFN_F592)]{.underline}

Our discussion of motivation in the choice of schema is thus relevant to
our discussion here of the reliance on schemas. While this section
discusses how we may be pushed\--motivations held constant\--to change
our schemas, motivations may also come from inside of us. The extent to
which we rely on biasing schemas will depend in large part on the
motivations to alter our schemas. Sometimes that motivation will come
from a conflict between relevant, challenging evidence in situations in
which we possess both the time and cognitive energy to pay attention, on
the one hand, and the desire to be accurate and feel honest, on the
other. But occasionally our changing situations will create motives to
alter our schemas or to create subschemas.

As we discussed earlier, Hitler was motivated to see some Jews, in
effect, as non-Jews. And the motive to see women as in their proper
sphere at home was changed, or at least temporarily relaxed, when women
were needed in the work force during the war effort. Schemas quickly
readjusted following World War II when women, now not needed in the
workplace, were again theorized, particularly by men, as wives,
homemakers, and mothers to returning soldiers.

If the motivation for accuracy described earlier were the only motive,
the simple solution might be as easy as ensuring that people are
informed about the potential biases and asking them to consciously
counteract those biases. The problem, of course, is that many
motivations are at work in addition to the motive for accuracy\--motives
as different as the motive for closure, the motive for power, and the
motive to protect our schemas, each **\*1238** of which may be in
conflict with the motive for accuracy.
[[\[FN593\]](#Document1zzFN_F593)]{.underline} Quite simply, the very
motives that lead us to develop and rely on particular knowledge
structures in the first place seem likely to wield significant influence
over whether and to what extent we are willing to abandon these
knowledge structures\--particularly because those motives themselves are
rarely appreciated by those who hold them.

3\. Summary

Based on the research outlined above, we can envision that there might
be some situations in which the biasing role of categories and schemas
is neutralized. Yet a review of the debiasing literature suggests that
even with the best of intentions and best of efforts, there will be much
room left for categories and schemas to exert their influences, whether
those influences are helpful or hurtful. The optimal conditions, both
internal and external, that help to reduce the influence of schemas are
rarely present.

As the research suggests, situational or process influences will play
critical roles in fostering more conducive conditions. While the
adversarial process in the legal system might seem a well-suited
mechanism for encouraging individuals to see alternative perspectives,
its efficacy will be limited by the extent to which the law at issue
permits variation, not to mention unseen reliance on shared knowledge
structures.

Similarly, the idealized scientific process or the so-called marketplace
of ideas might have the same potential for increased attention to
alternative viewpoints. Unfortunately, the scientific process in
practice does not approximate the process as often imagined.
[[\[FN594\]](#Document1zzFN_F594)]{.underline} Still, the efficacy of
the dynamics of social science in debiasing the knowledge produced
through social science is, ultimately, an empirical question. Evidence
that a social science is tethered to biasing knowledge structures will
be evidence of failures in the marketplace of ideas.

This Article alone is not meant to settle the question once and for all
regarding the need of legal scholars and policy analysts to take
schematic biases more seriously. We intend it only as a means of
establishing possible presumptions, or better yet, falsifiable empirical
predictions, **\*1239** which we describe in the next section, and which
themselves can be tested\--a project highlighted below that is being
taken up in earnest.

C. Categories, Schemas, and Legal Theory

The evidence in this Article suggests that, at the same time we rely on
schemas to create laws, the laws themselves are schemas that influence
us\--they give us categories and schemas and create realities. Indeed,
many of the most significant legal battles (if that is the right
metaphor [[\[FN595\]](#Document1zzFN_F595)]{.underline}) are, at bottom,
disputes about whether a person or action or object falls into one or
another category or whether the categories themselves are appropriate.
Is a business a partnership? Is a person a public figure? Is an employee
a servant? Is a work environment hostile? Is a corporation a person? Is
a fetus a human being? Is separate equal?

These categories are the building blocks of the legal system and the
categorical disputes are its lifeblood. The legal system is itself
comprised of a set of schemas and scripts that build on and
operationalize these categories. As such, the research documented in
this Article suggests a number of predictions for law and legal
scholarship.

1\. Selected Predictions

The review of the literature above allows us to offer a sample of
phenomena that should be apparent, at least upon careful scrutiny, in
every person\'s cognitive process, including that of legal theorists. As
a sample, the following list will be both under- and overinclusive. It
will be underinclusive in that many other schema-driven phenomena will
often be apparent in people\'s cognitions. The sample will be
overinclusive in that many of the phenomena will not be observable in
any individual legal-theoretic debate. Our prediction, a critical
realist prediction, is that legal theory will at one time or another
reflect all of the schema-driven influences\--both good and bad\--that
characterize all human thinking.

a\. Assuming Knowledge Structures Are Given

There are two general types of predictions that might be made about the
influence of categories and schemas upon our laws and legal theories.
The first type, which we take up presently, assumes that the knowledge
structures reflected and reinforced by laws and theories are given. The
basic question that this sort of prediction seeks to address is whether
those **\*1240** existing knowledge structures will influence policy and
the scholarly analysis of policy.

But focusing on only what is reflects a standard schematic error: the
tempting and simplifying, but typically false, presumption that the
familiar and existing elements of our environment and interiors are more
or less fixed and natural. A more sophisticated set of predictions would
consider, as we attempt to do briefly below, the situational dynamics
that might lead some knowledge structures to gain prominence in the
first place.

i\. Predictions About Attention and Memory

Individuals will categorize and schematize information in an effort to
make a complex situation tractable (among other motives).
[[\[FN596\]](#Document1zzFN_F596)]{.underline} People will tend to focus
on elements, ideas, or situations that are clear and easily categorized
at the expense of those that are complex and require greater amounts of
cognitive effort. [[\[FN597\]](#Document1zzFN_F597)]{.underline} The
ease with which information is categorized will depend on the settled
prototypes for the categories we access.
[[\[FN598\]](#Document1zzFN_F598)]{.underline} When individuals are
unable to classify something into a familiar category, it will be more
difficult for them to take it into account in their cognitive processes.
[[\[FN599\]](#Document1zzFN_F599)]{.underline}

Similarly, individuals\' reliance on their active schemas will cause
them to attend to particular types of information and may cause them to
ignore critical information.
[[\[FN600\]](#Document1zzFN_F600)]{.underline} Individuals will, for
instance, attend to schema-relevant information (whether consistent or
inconsistent with their schema).
[[\[FN601\]](#Document1zzFN_F601)]{.underline} That information will, in
turn, be construed in a way that is consistent with the schemas that
they employ. [[\[FN602\]](#Document1zzFN_F602)]{.underline}

In short, because of various elements of our knowledge structures, we
will look, within limits, where our schemas tell us to look and see what
our schemas tell us to see.

ii\. Predictions About Inferences

In addition to the effects on attention, different categories and
schemas will lead people to draw different inferences from the same
information. For instance, elements within a given category will appear
to be more similar than they are in reality, as will elements of
different **\*1241** categories appear more different than they are in
reality. [[\[FN603\]](#Document1zzFN_F603)]{.underline} This
self-fulfilling categorization effect may partially explain the tendency
to see categories as natural and obvious when in fact they are
cognitively constructed. [[\[FN604\]](#Document1zzFN_F604)]{.underline}

Furthermore, schemas will enable default inferences in which individuals
will find themselves drawing conclusions even without reliable empirical
evidence to support them. [[\[FN605\]](#Document1zzFN_F605)]{.underline}
Schemas and scripts will create presumptions and establish burdens of
proof. Once a particular schema is triggered, there will be a strong
tendency to fill in gaps based on our prior knowledge in ways that
confirm the activated schema.
[[\[FN606\]](#Document1zzFN_F606)]{.underline} We will, in other words,
draw inferences that often only contrary, unambiguous and unavoidable
evidence can controvert. [[\[FN607\]](#Document1zzFN_F607)]{.underline}

In drawing those inferences, individuals will slide easily across schema
bridges and be unable to scale schema fences.
[[\[FN608\]](#Document1zzFN_F608)]{.underline} They will often jump
quickly from one schema to another: for example, \"that is a woman, and
that person is a bad driver.\" Additionally, our cognitions may prevent
us from making connections between schemas: for example, \"that person
is a surgeon; that person cannot be a woman.\" Because of this, the
choice of schema will be critical in influencing our inferences.

Finally, given the role of schemas in generating inferences, the
presence or absence of shared schemas will have an important influence
on our ability to communicate effectively.
[[\[FN609\]](#Document1zzFN_F609)]{.underline} Without shared schemas,
there will be greater potential for confusion or
misunderstanding\--often leading groups to talk past each other or to
avoid engaging each other at all.

iii\. Predictions About Schema Choice and Application

Social cognition research not only helps us to understand the effects of
categories and schemas, but it also helps us to understand what
categories and schemas we are likely to apply and how we are likely to
apply them across different circumstances. Schema choice will be
flexible, affected by factors such as language, primacy, salience, and
priming. [[\[FN610\]](#Document1zzFN_F610)]{.underline} The language and
metaphors that individuals use will reflect and help determine the
categories and schemas that are activated and applied. In **\*1242**
doing so, they will play an important role in giving meaning to the
information at hand. [[\[FN611\]](#Document1zzFN_F611)]{.underline}
Similarly, individuals who are primed with particular categories or
schemas will tend to rely more readily on those categories and schemas,
often \"crowding out\" other schemas, even when inappropriate.
[[\[FN612\]](#Document1zzFN_F612)]{.underline} Chronically accessible
schemas will influence an individual\'s analysis of virtually all
issues.

In addition, motivations and affect will play a critical role in schema
choice as well as in the way that individuals apply the schemas they
choose. [[\[FN613\]](#Document1zzFN_F613)]{.underline} Various motives
may lead a person to construe disconfirming information as confirming,
[[\[FN614\]](#Document1zzFN_F614)]{.underline} to absorb potentially
significant disconfirming evidence by employing subtypes,
[[\[FN615\]](#Document1zzFN_F615)]{.underline} and to create external
conditions that will generate schema-consistent responses.
[[\[FN616\]](#Document1zzFN_F616)]{.underline} As the description of
Hitler\'s reactions to his Jewish soldiers indicates, if individuals
find incongruencies in the categories they attempt to apply, their
motivations may lead them to adjust the categories in ways that
facilitate their preferred conclusions. The more that is at stake with
any given schema, as measured by an individual\'s various motives, the
greater will be an individual\'s allegiance to that schema.

Moreover, when information is ambiguous, individuals will have greater
opportunity to protect and apply biased schemas in accordance with their
motives. [[\[FN617\]](#Document1zzFN_F617)]{.underline} In addition to
exploiting ambiguity (or as a possible means of exploiting ambiguity),
individuals can employ a variety of cognitive strategies; for instance,
they might moderate cognitive effort or avoid evidence of conflicting
schemas. [[\[FN618\]](#Document1zzFN_F618)]{.underline} When the
information is unambiguously inconsistent\--when an individual is simply
unable to ignore challenging information or conflicting
schemas\--individuals will tend to adopt other defenses before
conceding, in the extreme case, that a new schema must be developed.
These defenses include the use of subtyping or subcategorization, or
actions that result in self-fulfilling schemas.
[[\[FN619\]](#Document1zzFN_F619)]{.underline} Only when these cognitive
strategies fail to reconcile the information at hand with the preferred
schemas does the individual embark **\*1243** on the more cognitively
difficult task of developing a new and more accurate schema.
[[\[FN620\]](#Document1zzFN_F620)]{.underline}

b\. Recognizing the Situational Sources of Knowledge Structures
[[\[FN621\]](#Document1zzFN_F621)]{.underline}

As we noted at the outset, this Article is part of a larger
legal-theoretic approach\--critical realism\--which assumes that human
behavior is largely the consequence of unseen situational influences,
both within us and around us.
[[\[FN622\]](#Document1zzFN_F622)]{.underline}

This Article has focused primarily on a single interior situational
factor\-- the mostly unappreciated influence of knowledge structures on
how we humans make sense of our world.

In other work in the larger critical realist project, the case has been
made that all of our interior situational features leave us vulnerable
to situational manipulation and subject to illusion. In that sense, we
humans are \"situational characters.\" The social psychology research on
the operation of knowledge structures very much reinforces this claim.
As we demonstrated above, for instance, our schemas reflect numerous
motives that we do not recognize (particularly in ourselves); they are
often primed and activated beneath the radar of our consciousness and
have a significant effect on other situational features of our interior,
from our moods to our memories. They also are guarded and protected in
ways that we rarely appreciate (particularly in ourselves). With
knowledge structures constituting unseen situational forces that are
themselves subject to and interacting with other unseen forces, the
basic predictions of the previous section can be expanded and refined.

Other pieces of the critical realist project predict and have begun to
demonstrate that large commercial interests, among other things, will
wield disproportionate influence over our situation. This is due to a
number of factors: (1) we are situational characters (moved largely by
unseen situational forces); (2) as moving people, we can be extremely
valuable or profitable to some individuals, groups, institutions, or
interests in our society; (3) that value will lead to a competition over
our situation among these individuals, groups, institutions, or
interests; (4) those individuals, groups, institutions, or interests
with the greatest incentive and ability to **\*1244** influence our
situation will be advantaged in that competition; and finally, (5) large
commercial interests constitute just such a group.

For our purposes, the significance of these insights is that many of our
knowledge structures\--and their constituent schemas, scripts,
categories, and metaphors\--will disproportionately advance shared
commercial interests. To be effective, of course, these schemas will be
constrained by the need to comport with the various common motives we
discussed above. Thus, although the schemas will serve commercial
interests, they will also be cognitively simple, self-affirming, and
reasonably defensible.

The case is already being made in other work that our legal system and
most of our institutions are built on a vision of the human actor\--a
person schema\-- that satisfies these motives and that generally
advances the interests of those with the greatest power to influence
situation, particularly large commercial interests. More specifically,
the underlying person schemas and attributional schemas of law and legal
institutions reflect strong dispositionist presumptions. Social science
indicates that such dispositionism, though appealing and initially
plausible, is badly flawed.

The success of that flawed attributional schema is a reflection of
interior and exterior situational forces. Within our interiors, miserly
cognitive processes and our motives for simplicity, closure,
self-affirmation, group-affirmation, and system-affirmation combine to
make dispositionism the presumptive default person schema. Outside of us
(at least those of us in the United States), our culture of
individualism, classical liberal ideals, shared metaphors, and the
interests of those with the greatest power to shape our situations all
combine to reinforce our dispositionist schemas. Our laws and legal
theories reflect and further reinforce that largely misleading illusion
of dispositionism.

There is no reason to believe that the process of deep capture, as it
has been dubbed, is limited only to the person-schemas of our laws.
Quite the contrary, those with the ability and incentive to do so will
promote, through various forms of situational manipulation, certain
schemas; they will prime and activate schemas in appropriate contexts,
promote various defenses for these schemas, and so on. Therefore, in
addition to the more static predictions we made above, we predict that
our laws and the schemas that legitimate our laws are likewise subject
to deeply captured illusion.

**\*1245** 2. Summary and Preview of Future Work

These are a few of the predictions of tendencies that we might expect to
observe in lawmaking and legal theorizing. This Article has already
highlighted some evidence, including the creation and maintenance of
gendered spheres in America and ethnic spheres in Nazi Germany, that
lends support to our predictions. These examples may be suggestive; they
may also be mere historical aberrations, as one would hope. Testing
whether knowledge structures are having a similar effect today requires
a far more thorough examination of our current legal theories,
categories, and schemas than this Article can provide.

But, of course, we are here presented with a problem\--the basic problem
facing all humans attempting to better understand their worlds: What
part of the infinite information before us should we focus on and
attempt to encode, categorize, and construe, given that we must attend
to only a small subset? The risks, as we have made clear above, are
many, not least of which is the probability that we will choose to focus
on legal-theoretic insights that confirm our predictions. Faced with
both that cognitive imperative and that threat of bias, we hope here to
schematize the legal-theoretic literature in a way that makes testing
our hypothesis in future work tractable and meaningful.

Thus, instead of drawing randomly from law reviews, we will look to
selected areas of legal scholarship in which, at least at first blush,
one would expect either that the predictions would not be confirmed, or
that any confirmation of the predictions would be a telling revelation
of the power and pervasiveness of the biasing influence of knowledge
structures. That is, we will look at areas of legal theory that are most
significant or influential (in theoretical or real-world terms). These
are the answers in which robust debates have taken place, in which any
consensus or resolution of the debates has been framed as the outcome of
a well-functioning social-scientific dynamic, and in which proponents of
the conventional perspective and most of their critics do not perceive
that categories and schemas have exerted considerable influence on the
debate. In short, we will look to areas of legal theory in which
knowledge structures appear, at least to the participants, not to have
harmed the debates. Our primary focus, therefore, will be on law and
economics and legal-theoretic debates that have been more or less
dominated by efficiency analysis.

To help ensure that we have examined a reasonably diverse sample of
scholarship, we first specify the categorical distinctions that are
evident in **\*1246** our legal system, in legal practice, and in legal
education. These categorical distinctions, which we lay out more clearly
in related papers, [[\[FN623\]](#Document1zzFN_F623)]{.underline} not
only help us to select the areas that we will use to test our
predictions, but also reveal some of the little-noticed biasing
influences of categories over how laws are conceived and operate.

Roughly speaking, legal theory appears to generate insights at three
levels of abstraction. The first and broadest level of legal theory
involves metatheoretical insights, which purport to apply to all legal
rules across all doctrinal categories.
[[\[FN624\]](#Document1zzFN_F624)]{.underline} We will examine in a
separate article the metatheoretical approaches of various legal
theories, arguing that those theories share in common a belief that law
is, to some extent, an illusion.
[[\[FN625\]](#Document1zzFN_F625)]{.underline} While legal theories as
diverse as law and economics and critical race theory agree on that
much, little attention is given to the mechanics of illusion. Illusion
is more or less presumed and rarely theorized. The creation and
perpetuation of the law of illusion, we argue, finds its source in the
manipulability of our knowledge structures.

At the metatheoretic level, we scrutinize in another article what may be
the most general and significant policy-categorical statement extant
regarding the role of legal rules: that efficiency concerns, not
distributional concerns, should inform their design and implementation.
[[\[FN626\]](#Document1zzFN_F626)]{.underline} We believe the debate
surrounding \"distribution versus efficiency\" to be a particularly
challenging test of our predictions. Although the literature is robust
and the debate at times intense, there is little sense among its
participants that the categories and schemas employed in the debate are
carrying independent weight or otherwise influencing how the debate is
framed or resolved. As we will demonstrate, however, categories and
schemas have played a critical (and unappreciated) role in the creation,
propagation, and criticism of the normative assertion that legal rules
should be concerned solely with efficiency. The underlying notion that
there exists a trade-off between **\*1247** \"maximizing the size of the
pie\" and \"equalizing the share of its slices\" has been an immensely
biasing schema. As we argue in other work, the debate has largely
omitted any consideration of what might be the most important
categorical concern in any pie-baking contest: the difficult to measure,
compare, categorize, and schematize but all-important \"taste of the
pie.\" [[\[FN627\]](#Document1zzFN_F627)]{.underline}

In a series of other articles,
[[\[FN628\]](#Document1zzFN_F628)]{.underline} we extend the test of our
predictions to two other levels of legal-theoretical abstraction. That
is, we examine the role of knowledge structures over what we call macro-
and microlevel theoretical insights. \"Macrotheoretical insights\" are
those that legal theoreticians employ to guide their understanding of an
entire doctrinal area. Brief reflection should reveal that most
doctrinal areas, as categorized in the curricula of law schools and the
departments of major law firms, have one or more (sometimes competing)
positive and normative macrotheories. Indeed, these macrotheories often
define as much as reflect the parameters of those doctrinal areas. Thus,
tort law is said by some to be about correcting injustices and by others
to be about minimizing the sum of accident costs where contracting costs
are high. Criminal law is described by some as motivated by a desire to
ensure retributive justice and by others as an attempt to prevent
individuals from skipping contractual solutions when contracting costs
are low. These macrotheories help define a doctrinal area of law and
can, furthermore, inform how judges decide individual cases within any
given doctrinal area. If our law-as-illusion hypothesis\--that the
schemas and categories of law and policy will be deeply captured by
those best able to influence a situation\--is correct, then one means of
searching for that illusion is to contrast the schemas at different
levels of policy. These schemas should be consistent with each other, if
the law is truly serving the ends that it claims to serve. If there
exists unexplored tensions between schemas, however, then there may be
an illusion in place. As argued above, the disconnect between categories
and schemas is one of the ways that we all managed to maintain
conflicting attitudes or beliefs.
[[\[FN629\]](#Document1zzFN_F629)]{.underline} Separate schemas are a
means of separating the two beliefs that might otherwise do violence to
one another. A strategy for discovering illusion, then, is to scrutinize
the schemas together. Doing so can be highly revealing. That, at least,
is the approach taken and the **\*1248** conclusion reached in several
other papers in this project.
[[\[FN630\]](#Document1zzFN_F630)]{.underline} In one article, for
instance, we demonstrate significant tensions between the metaschemas of
policy and the macroscript of corporate law. The tensions appear neither
random nor harmless; instead, they reveal a bias that favors the shared
interests of corporations at the expense of the rest of society.
[[\[FN631\]](#Document1zzFN_F631)]{.underline}

There is yet another layer of policy schemas. \"Microtheoretical
schemas\" are those that legal scholars and jurists develop and employ
to guide their understanding of specific doctrinal subcategories. Those
subcategories are easily observed in the tables of contents of
casebooks, course syllabi, and in the specialties of legal
practitioners. Hence, tort law is commonly divided into subcategories as
disparate as products liability and defamation. Corporate law deals with
subfields that span a range from shareholder distributions to
self-dealing to control transactions. For each of those subcategories,
there is typically an established schema (or two) that courts rely on
(or that scholars urge courts to rely on) to resolve particular
disputes. These microtheoretical schemas also shape the frame that
lawyers use in developing and presenting their case within a given area.
As we show in articles in progress devoted to analyzing the details of
corporate law doctrine, [[\[FN632\]](#Document1zzFN_F632)]{.underline}
the macro- and microschemas of corporate theory and the way that these
schemas are generally biasing provides strong support for our
law-as-illusion hypothesis.

**\*1249** Figure 22. Schematization of Legal Categories
[[\[FN633\]](#Document1zzFN_F633)]{.underline}

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

Our related in-progress articles (charted in gray in the legal-theory
schematic depicted in above) will illustrate dangerous biases at all
levels of legal-theoretic analysis. Because of its dominance on the
legal-theoretic landscape and in corporate law, law and economics will
figure most centrally in our analyses. Although we have attempted to
sample particularly influential and salient examples of legal theory and
legal-theoretic debates, the fact that law and economics seems to wield
disproportionate influence over the areas we examine may mean that our
sample is biased in favor of confirming our predictions. It may be, in
other words, that the connection between the scientific self-perception
of economic scholars and a schema-biased reality is no coincidence. The
former may simply be a manifestation of an unquestioning faith in their
own schemas\--a faith that social psychology reveals is both common and
hazardous. [[\[FN634\]](#Document1zzFN_F634)]{.underline}

Law and economics theory, some might say, has a critical mass of
scholars who are somewhat insulated from external criticism, who share a
common and highly schematized theory, and who have not seriously
**\*1250** considered the biasing influences of these schemas.
[[\[FN635\]](#Document1zzFN_F635)]{.underline} In just such a context,
we might expect the underlying schemas to be most biasing. Thus, while
legal economists certainly view themselves as participating in the most
scientifically rigorous and unbiased of legal scholarly traditions,
there is reason to worry that that self-affirming view is exactly wrong.
Rather than reduce the potential for bias, it seems possible that the
constraining law-and-economics schema heightens it.

In other work, a case has been made that the dominance of law and
economics is attributable in large measure to the fact that it
successfully provides scientific cover for a highly
dispositionist\--that is, unscientific\-- approach to law and policy.
[[\[FN636\]](#Document1zzFN_F636)]{.underline} Law and economics has
been so overwhelmingly successful not because it has a corner on the
truth or because it is more scientifically rigorous, but because it best
advances the interests of shared commercial interests while satisfying
the motives of its audience. Dispositionism, by that account, is a
deeply captured schema. Our forthcoming work on the meta-, macro-, and
microschemas of law provide further evidence for this Article\'s
prediction that the dominant law and policy schemas are deeply captured.
While purporting to serve the public interest (or to increase social
welfare), the schemas and scripts of law and policy tend, in fact, to
advance the welfare of those individuals, groups, institutions, or
interests with the greatest ability and incentive to shape the
situation. The law is, in that sense, an illusion. Our critical-realist
research suggests that legal scholars should become acutely aware of
this strong human tendency to rely on categories, schemas, and scripts
that can render us the victims of and participants in an illusion,
particularly if left unquestioned.

Although we are confident that the same tendencies will wield some
influence over the work of all legal scholars, including ourselves in
this very Article, we also suspect that the tendencies can be more or
less intense depending on the approach, mindset, and situation of
individual practitioners. So, for instance, we suspect that much of the
\"critical\" theory that legal economists might tend to dismiss or
ignore and that tends often to lack a coherent core theory may come much
closer to identifying, understanding, and reducing the role of knowledge
structures in our laws and legal theories. We all need to remain mindful
of the hard-to-see influences of knowledge structures and on guard
against their distortions.

**\*1251** Like Stanton\'s critique of the dominant mode of thought,
critical theorists more readily scrutinize the prevailing justifications
for existing customs, laws, and institutions. Indeed, the act of
\"deconstruction,\" a defining metatheoretic process among critical
scholars, is largely a practice of identifying knowledge structures and
their influence. But even these critics cannot escape the tendencies
entirely, despite a perspective that leaves them less susceptible to
schema biases. As Stanton and her cohorts discovered in preparing for
the Seneca Falls Convention, even a desire to reject existing knowledge
structures does not necessarily free oneself from their influence:

As the convention was to assemble in three days, the time was short for
such productions; but having no experience in the modus operandi of
getting up conventions, nor in that kind of literature, they were quite
innocent of the herculean labors they proposed. On the first attempt to
frame a resolution; to crowd a complete thought, clearly and concisely,
into three lines; they felt as helpless and hopeless as if they had been
suddenly asked to construct a steam engine. And the humiliating fact may
as well now be recorded that before taking the initiative step, those
ladies resigned themselves to a faithful perusal of various masculine
productions. [[\[FN637\]](#Document1zzFN_F637)]{.underline}

While Stanton and her compatriots may have looked to the dominant,
biased institutions for guidance, they ultimately determined that those
productions\--in this case, the \"Peace, Temperance, and Anti-Slavery
conventions\"\--were \"too tame and pacific\" for their purposes.
[[\[FN638\]](#Document1zzFN_F638)]{.underline} In attacking the
prevailing schemas for the place of women in society, they resolved to
discard the conventional, masculine schemas for the \"productions\" of
the day. But such a resolution did not free them from the biasing
influence of the then-dominant (masculine) knowledge structures, much
less of knowledge structures more generally. They were, after all,
seeking the freedoms of men, including the rights to vote and own
property. Their demands were framed according to the then-conventional
(masculine) scripts of protest. Stanton, in her speech to the
delegation, complained of \"a form of government, existing without the
consent of the governed\" and urged her confederates to join her in
securing their \"right to be free as man is free.\"
[[\[FN639\]](#Document1zzFN_F639)]{.underline} Freedom, as Stanton
understood it, was freedom as men had conceived it. And even as
feminists like Stanton challenged some biasing and unjust categories of
their day, they also accepted others. **\*1252** When, for instance,
Stanton advocated for women\'s suffrage before the New York State
Legislature, she reminded the lawmakers that women \"are moral,
virtuous, and intelligent, and in all respects quite equal to the proud
white man himself, and yet by our laws we are classed with idiots,
lunatics, and Negroes . . . .\"
[[\[FN640\]](#Document1zzFN_F640)]{.underline}

By drawing on the research outlined in this Article and testing the
predictions that stem from our understanding of categories and schemas,
we can begin to part ways not just with Archie Bunker and Hitler, but
also with Stanton and many of today\'s legal scholars and lawmakers who
have yet to engage in careful and thorough examination of their own
knowledge structures and the biasing influences that these structures
likely engender.

Understanding and eliminating these biases is offered here as an
aspiration, not an expectation. Our aim should be to raise our
consciousness and develop a more accurate understanding of laws, legal
theory, and the world that they help to shape, not to free ourselves
entirely of our knowledge structures or their influence. The message of
social psychology is not simply that we humans are categorically biased.
It is also, unfortunately, that we are categorically categorically
biased.

IV\. CONCLUSION

In this Article, we have attempted to provide a broad yet manageable
synthesis of the current research on categories and schemas and to
present it in a way that will trigger and assist further application in
legal scholarship. We have attempted to do more than that, however, and
more than meets the eye. We have also sought to illustrate\--though only
implicitly until now\--an important parallel script that joins critical
realism with legal realism. The latter, of course, is the
legal-theoretic project that arguably led to, and was soon-enough
eclipsed by, the more efficient schemas and categories of law and
economics and the more radical methods of critical legal studies.
[[\[FN641\]](#Document1zzFN_F641)]{.underline} To make the parallel
between the two realism-based approaches explicit, we will give the
penultimate word to the late Karl Llewellyn who, three-quarters of a
century ago, intuited and occasionally worried about the fact that we
humans are categorically biased:

Like rules, concepts are not to be eliminated; it cannot be done.
Behavior is too heterogeneous to be dealt with except after some
**\*1253** artificial ordering. The sense impressions which make up what
we call observation are useless unless gathered into some arrangement.
Nor can thought go on without categories.

A realistic approach would, however, . . . \[recognize\] that to
classify is to disturb. It is to build emphases, to create stresses,
which obscure some of the data under observation and give fictitious
value to others. . . . \[A\] realistic approach to any new problem would
begin by scepticism as to the adequacy of the received categories for
ordering the phenomena effectively toward a solution of the new problem.
It is quite possible that the received categories as they already stand
are perfect for the purpose. It is, however, altogether unlikely. . . .

. . . \[A\] realistic approach rests on the observation that categories
and concepts, once formulated and once they have entered into thought
processes, tend to take on an appearance of solidity, reality and
inherent value which has no foundation in experience. More than this . .
. they tend, once they have entered into the organization of thinking,
both to suggest the presence of corresponding data when these data are
not in fact present, and to twist any fresh observation of data into
conformity with the terms of the categories. . . . The counsel of the
realistic approach . . . would be the constant back-checking of the
category against the data, to see whether the data are still present in
the form suggested by the category-name. This slows up thinking. But it
makes for results which mean\[\] something when one gets them.
[[\[FN642\]](#Document1zzFN_F642)]{.underline}

Llewellyn made his observations about the categories of law and legal
theory without the benefit of current social psychology research and
based them on, it seems, little more than his introspections. Those
insights\--like his commitment to realism\--have been as prescient, in
our view, as they have been ignored by dominant legal theories since.

As we have argued, a recognition of the power of schemas to shape the
way people think has important implications for all individuals, from
those who face the laws, to those who make and apply them, and finally,
to those who advance the theories that explain, legitimate, or critique
them. That is, at least, one major thesis that this project seeks to
test. In doing so we heed Llewellyn\'s forgotten call for realism as we
help make the case for a new brand of realism\--a realism that may well
slow up our thinking but that will more often lead us to results that
mean something

[[\[FNa1\]](#Document1zzFN_Ba1)]{.underline}. Law Clerk to the Honorable
Robert D. Sack, United States Court of Appeals for the Second Circuit;
Charles Hamilton Houston Fellow, Harvard Law School, 2003-04.

[[\[FNaa1\]](#Document1zzFN_Baa1)]{.underline}. Professor, Harvard Law
School. We are grateful to Derek Bambauer, Sam Halabi, Natasha Kim, Jith
Meganathan, Yoni Rosenzweig, Lena Salaymeh, Allen Wong, and Andrew Woods
for excellent research assistance, and to Carol Igoe for outstanding
secretarial assistance. Financing from the Harvard Law School Summer
Research Fund, the Charles Hamilton Houston Fellowship, the Program on
Justice, Welfare & Economics, and the Paul & Daisy Soros Fellowship
provided valuable research support. We also want to thank Honey Lou
Bonar, Phoebe Ellsworth, Sam Fraidin, Helen Jacupke, Jerry Kang, and
David Tabak for encouragement and helpful comments. Finally, we would
like to express our love and deepest gratitude to Yud-Ren, Jing-Jy,
Irene, and Albert Chen; Fiona Griffiths; and Kathleen, Emily, Erin, and
Ian Hanson.

[[\[FN1\]](#Document1zzFN_B1)]{.underline}. Marcel Proust, Remembrance
of Things Past (C.K. Scott Moncrieff & Terence Kilmartin eds., Vintage
Books 1982) (1934).

[[\[FN2\]](#Document1zzFN_B2)]{.underline}. The Talmud.

[[\[FN3\]](#Document1zzFN_B3)]{.underline}. Henry D. Thoreau, Journal
Volume 13 (1981).

[[\[FN4\]](#Document1zzFN_B4)]{.underline}. Karl N. Llewellyn, A
Realistic Jurisprudence\--The Next Step, 30 Colum. L. Rev. 431, 465
(1930).

[[\[FN5\]](#Document1zzFN_B5)]{.underline}. Fred Rodell, Goodbye to Law
Reviews, 23 Va. L. Rev. 38, 44 (1937).

[[\[FN6\]](#Document1zzFN_B6)]{.underline}. See Reinhard Zimmermann,
[[Law Reviews: A Foray Through a Strange World, 47 Emory L.J. 659, 678
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1135&FindType=Y&ReferencePositionType=S&SerialNum=0109236681&ReferencePosition=678)]{.underline}.

[[\[FN7\]](#Document1zzFN_B7)]{.underline}. See [[id. at
679.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0109236681)]{.underline}
And only in a law review article would this proposition be cited.

[[\[FN8\]](#Document1zzFN_B8)]{.underline}. See Rodell, supra note 5, at
39.

[[\[FN9\]](#Document1zzFN_B9)]{.underline}. See id. at 38-39. See also
Zimmermann, supra note 6, at 679 (describing the prototypical law review
as \"abstract, colorless, and long-winded\" and noting that \"\[h\]umor
and pithy formulations are obviously regarded as unacademic\").

[[\[FN10\]](#Document1zzFN_B10)]{.underline}. Rodell, supra note 5, at
38-39.

[[\[FN11\]](#Document1zzFN_B11)]{.underline}. The Bluebook: A Uniform
System of Citation I.2, at 4 (Columbia Law Review Ass\'n et al. eds.,
17th ed. 2000) (\"The basic purpose of a legal citation is to allow the
reader to locate a cited source accurately and efficiently.\").

[[\[FN12\]](#Document1zzFN_B12)]{.underline}. See, e.g., Christine Hurt,
[[Network Effects and Legal Citation: How Antitrust Theory Predicts Who
Will Build a Better Bluebook Mousetrap in the Age of Electronic Mice, 87
Iowa L. Rev. 1257, 1267-68
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1168&FindType=Y&ReferencePositionType=S&SerialNum=0289517556&ReferencePosition=1267)]{.underline};
Warren D. Rees, Review Article, The [[Bluebook in the New
Millennium\--Same Old Story?, 93 Law Libr. J. 335, 335-36
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100332&FindType=Y&ReferencePositionType=S&SerialNum=0283840626&ReferencePosition=335)]{.underline};
Michael Bacchus, Comment, [[Strung Out:
Legal](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&ReferencePositionType=S&SerialNum=0291457457&ReferencePosition=247)]{.underline}
[[Citation, the Bluebook, and the Anxiety of Authority, 151 U. Pa. L.
Rev. 245, 247-48
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&ReferencePositionType=S&SerialNum=0291457457&ReferencePosition=247)]{.underline}.

[[\[FN13\]](#Document1zzFN_B13)]{.underline}. Richard A. Posner,
[[Goodbye to the Bluebook, 53 U. Chi. L. Rev. 1343,1343
(1986)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0101628632&ReferencePosition=1343)]{.underline}.

[[\[FN14\]](#Document1zzFN_B14)]{.underline}. [[Id. at
1349.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0101628632)]{.underline}

[[\[FN15\]](#Document1zzFN_B15)]{.underline}. Hurt, supra note 12, at
1280.

[[\[FN16\]](#Document1zzFN_B16)]{.underline}. Abner J. Mikva, [[Law
Reviews, Judicial Opinions, and Their Relationship to Writing, 30
Stetson L. Rev. 521, 524-25
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1240&FindType=Y&ReferencePositionType=S&SerialNum=0284412950&ReferencePosition=524)]{.underline}.

[[\[FN17\]](#Document1zzFN_B17)]{.underline}. [[Id. at
526.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0284412950)]{.underline}

[[\[FN18\]](#Document1zzFN_B18)]{.underline}. It has no footnotes and it
is published in a \"Top Six or So\" law review!

[[\[FN19\]](#Document1zzFN_B19)]{.underline}. Robert A. Williams Jr.,
[[Vampires Anonymous and Critical Race Practice, 95 Mich. L. Rev. 741,
744
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&ReferencePositionType=S&SerialNum=0107628011&ReferencePosition=744)]{.underline}.

[[\[FN20\]](#Document1zzFN_B20)]{.underline}. [[Id. at
744-45.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0107628011)]{.underline}

[[\[FN21\]](#Document1zzFN_B21)]{.underline}. [[Id. at
749-50.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0107628011)]{.underline}
Today, of course, the prototypical law review article should contain,
after publication inflation, approximately 143 pages with 642 footnotes,
and the Southern California Law Review clearly makes the top ten list
(or will soon).

[[\[FN22\]](#Document1zzFN_B22)]{.underline}. [[Id. at
744.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0107628011)]{.underline}

[[\[FN23\]](#Document1zzFN_B23)]{.underline}. Mikva, supra note 16, at
524 (arguing that footnotes are \"like having a trash can for\...
semirelevant material\").

[[\[FN24\]](#Document1zzFN_B24)]{.underline}. See infra page 1253\--this
Article contains 642 footnotes.

[[\[FN25\]](#Document1zzFN_B25)]{.underline}. This Article\'s bulkish
length and copious footnotes help demonstrate another important lesson
of this Article, namely, the power and self-fulfilling nature of our
schemas.

[[\[FN26\]](#Document1zzFN_B26)]{.underline}. Do not worry: we provide
more complete definitions below, after first indicating some of the
broad and profound influences of schemas and categories.

[[\[FN27\]](#Document1zzFN_B27)]{.underline}. This twist is often either
an incongruity that we are forced to resolve by drawing on our prior
knowledge or is itself the unexpected resolution of an already
incongruous set of information. See Jerry M. Suls, Cognitive Processes
in Humor Appreciation, in 1 Handbook of Humor Research 39, 41-42 (Paul
E. McGhee & Jeffrey H. Goldstein eds., 1983).

[[\[FN28\]](#Document1zzFN_B28)]{.underline}. The lawyer joke follows
the \"incongruity-resolution\" pattern of humor where the resolution of
the incongruous information comes from a punch line that draws upon our
stereotypes of lawyers. The incongruity-resolution model, as Jerry Suls
writes,

is that humor results when the perceiver meets with an incongruity
(usually in the form of a punch line or a cartoon) and then is motivated
to resolve the incongruity either by retrieval of information in the
joke or cartoon or from his/her own storehouse of information. According
to this account, humor results when the incongruity is resolved; that
is, the punch line is seen to make sense at some level with the earlier
information in the joke.

See id. at 42.

[[\[FN29\]](#Document1zzFN_B29)]{.underline}. Allan Johnson, Never at a
Loss for Jokes: Wendy Liebman Fires One-Liner after One-Liner at Improv,
Chi. Trib., June 2, 1995, at News 20.

[[\[FN30\]](#Document1zzFN_B30)]{.underline}. Teresa Gubbins, Ham on
Wry, Dallas Morning News, June 27, 1997, at 37A.

[[\[FN31\]](#Document1zzFN_B31)]{.underline}. Comedy Goddess Liebman a
Real Laugh Machine, Harv. Crimson, Feb. 20, 1998 \[hereinafter Comedy
Goddess\].

[[\[FN32\]](#Document1zzFN_B32)]{.underline}. Johnson, supra note 29.

[[\[FN33\]](#Document1zzFN_B33)]{.underline}. Id.

[[\[FN34\]](#Document1zzFN_B34)]{.underline}. Mike McDaniel, Liebman\'s
Dreams May Be Closer to Reality after Tonight\'s Special, Houston
Chron., Apr. 22, 1998, at Houston 1.

[[\[FN35\]](#Document1zzFN_B35)]{.underline}. Id.

[[\[FN36\]](#Document1zzFN_B36)]{.underline}. Heidi Siegmond Cuda, An
Act to Dye for, Ent. Wkly., Aug. 9, 1996.

[[\[FN37\]](#Document1zzFN_B37)]{.underline}. Johnson, supra note 29.

[[\[FN38\]](#Document1zzFN_B38)]{.underline}. Comedy Goddess, supra note
31.

[[\[FN39\]](#Document1zzFN_B39)]{.underline}. Donna Coe, She Usually
Gets the Last Laugh, N.Y. Daily News, Apr. 20, 1997.

[[\[FN40\]](#Document1zzFN_B40)]{.underline}. Id.

[[\[FN41\]](#Document1zzFN_B41)]{.underline}. Gubbins, supra note 30.

[[\[FN42\]](#Document1zzFN_B42)]{.underline}. David Kronke, Next on the
Stand-Up to TV Circuit?, L.A. Times, May 27, 1995, at F1.

[[\[FN43\]](#Document1zzFN_B43)]{.underline}. This was broadcast in the
episode \"Gloria and The Riddle,\" which first aired October 7, 1972. As
Hal Erickson summarizes:

A riddle posed by Gloria sparks a major brouhaha on the topic of
Women\'s Lib. Gloria knows the answer to the riddle, and so does Edith,
but Mike and Archie are stumped. Archie, of course, reacts with his
usual bombast, while Mike begins to question the validity of his own
liberal sentiments.

Hal Erickson, All Movie Guide, at http://
entertainment.msn.com/movies/movie.aspx?m=96384 (Aug. 9, 2004).

[[\[FN44\]](#Document1zzFN_B44)]{.underline}. Steven J. Sherman & Larry
Gorkin, Attitude Bolstering When Behavior Is Inconsistent with Central
Attitudes, 16 J. Experimental Soc. Psychol. 388, 391 (1980).

[[\[FN45\]](#Document1zzFN_B45)]{.underline}. See Larry Gorkin, The
Sensuous Doctor: The Response to Sex-Role Logic Problems (1972)
(unpublished manuscript, State University of New York at Stony Brook),
cited in Sherman & Gorkin, supra note 44, at 391.

[[\[FN46\]](#Document1zzFN_B46)]{.underline}. For example, the same
riddle is used in current Mensa tests.

[[\[FN47\]](#Document1zzFN_B47)]{.underline}. Plato, The Republic, in
The Dialogues of Plato 148 (Benjamin Jowett trans., 1990).

[[\[FN48\]](#Document1zzFN_B48)]{.underline}. Aristotle, Generation of
Animals 459 (A.L. Peck trans., 1943).

[[\[FN49\]](#Document1zzFN_B49)]{.underline}. Aristotle, The Politics
1254b14-b16 (Stephen Everson ed., Cambridge Univ. Press 1988). Aristotle
disagreed with Socrates\' more positive characterization of women:
\"\[T\]he temperance of a man and of a woman, or the courage and justice
of a man and of a woman, are not, as Socrates maintained, the same; the
courage of a man is shown in commanding, of a woman in obeying.\" Id. at
1260a21-a24.

[[\[FN50\]](#Document1zzFN_B50)]{.underline}. Mary Wollstonecraft, A
Vindication of the Rights of Woman 15 (Source Book Press 1972) (1792).

[[\[FN51\]](#Document1zzFN_B51)]{.underline}. Virginia Woolf, A Room of
One\'s Own 2 (Harcourt Brace & Co. 1991) (1929). These feminists were,
in effect, arguing that gender distinctions were more likely the
consequence of the situations of men and women than the dispositions of
men and women. The tendency to mistake situation for disposition is
extremely common and tends to reinforce existing power imbalances. See
Jon Hanson & David Yosifon, The [[Situation: An Introduction to the
Situational Character, Critical Realism, Power Economics, and Deep
Capture, 152 U. Pa. L. Rev. 129, 136-37
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&ReferencePositionType=S&SerialNum=0296810616&ReferencePosition=136)]{.underline}
\[hereinafter The Situation\]; Jon Hanson & David Yosifon, The
Situational Character: A Critical Realist Perspective on the Human
Animal, 93 Geo. L.J. 1 (forthcoming Fall 2004) \[hereinafter The
Situational Character\].

[[\[FN52\]](#Document1zzFN_B52)]{.underline}. Woolf, supra note 51, at
118.

[[\[FN53\]](#Document1zzFN_B53)]{.underline}. Rita McWilliams Tullberg,
Women at Cambridge 58 (1998).

[[\[FN54\]](#Document1zzFN_B54)]{.underline}. See id. at 84.

[[\[FN55\]](#Document1zzFN_B55)]{.underline}. [[Bradwell v. Illinois, 83
U.S. 130
(1872)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1872196969)]{.underline}.

[[\[FN56\]](#Document1zzFN_B56)]{.underline}. [[Id. at
141-42.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1872196969)]{.underline}

[[\[FN57\]](#Document1zzFN_B57)]{.underline}. For a compelling account
of the separate spheres of men and women, including some of the
benefits, see generally Nancy F. Cott, The Bonds of Womanhood:
\"Woman\'s Sphere\" in New England, 1780-1835 (1977).

[[\[FN58\]](#Document1zzFN_B58)]{.underline}. See generally Phyllis
Stock, Better than Rubies: A History of Women\'s Education (1978)
(describing inequality in education and other obstacles to women\'s
advancement).

Debates about the relevance of the category of \"woman\" in lawmaking
continue to this day. For example, in a recent decision opening the
states to lawsuits over violations of the Family and Medical Leave Act,
the Court determined that Congress was justified in attempting to combat
state laws that reflected and reinforced stereotypes of women. Justice
Rehnquist criticized the practice of offering different leave policies
for men and women as \"not attributable to any differential physical
needs of men and women, but rather to the pervasive sex-role stereotype
that caring for family members is women\'s work.\" [[Nev. Dep\'t of
Human Res. v. Hibbs, 538 U.S. 721, 731
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=2003378344&ReferencePosition=731)]{.underline}.
Some commentators have suggested that Rehnquist\'s sensitivity to
stereotypes in this instance reflect his own nonprototypical life
experiences of late. See, e.g., Linda Greenhouse, Ideas & Trends:
Evolving Opinions; Heartfelt Words from the Rehnquist Court, N.Y. Times,
July 6, 2003, § 4 (Magazine), at 3 (\"His daughter, Janet, is a single
mother who until recently held a high-pressure job and sometimes had
child-care problems. Several times this term, the 78-year-old Chief
Justice of the United States left work early to pick up his
granddaughters from school.\").

[[\[FN59\]](#Document1zzFN_B59)]{.underline}. Elizabeth Cady Stanton,
Address Delivered at Seneca Falls (July 19, 1848), in The Elizabeth Cady
Stanton Susan B. Anthony Reader 29, 31 (Ellen Carol DuBois ed., 1992)
\[hereinafter Elizabeth Cady Stanton\].

[[\[FN60\]](#Document1zzFN_B60)]{.underline}. Wollstonecraft, supra note
50, at 20.

[[\[FN61\]](#Document1zzFN_B61)]{.underline}. Bryan Mark Rigg, Hitler\'s
Jewish Soldiers 270 (2002).

[[\[FN62\]](#Document1zzFN_B62)]{.underline}. Id. at 269.

[[\[FN63\]](#Document1zzFN_B63)]{.underline}. See Michael Burleigh &
Wolfgang Wippermann, The Racial State 35-36 (1991) (overviewing theories
of anti-Semitism).

[[\[FN64\]](#Document1zzFN_B64)]{.underline}. Rigg, supra note 61, at
211.

[[\[FN65\]](#Document1zzFN_B65)]{.underline}. Id. This practice of
enveloping into one\'s stereotypical fold those who do not conform to
some or all of the fold\'s features, but who are willing to assimilate
in other ways, has been referred to as \"passing.\" See, e.g., Derrick
Bell, Race, Racism and American Law 9 (4th ed. 2004) (referencing the
practice of seeking to avoid racial oppression through assimilation);
Passing and the Fictions of Identity (Elaine K. Ginsberg ed., 1996)
(containing a collection of essays discussing the politics of passing
and the construction of identity).

[[\[FN66\]](#Document1zzFN_B66)]{.underline}. Rigg writes that

\[t\]he number of exemptions granted to Mischling soldiers between 1941
and 1943 sharply decreased from what it had been between 1938 and 1940.
By 1944, Hitler regretted having treated Mischling soldiers leniently.
He expressed his change of heart by discharging many who had exemptions
and deporting them and other half-Jewish veterans to OT forced labor
camps.

Rigg, supra note 61, at 272.

[[\[FN67\]](#Document1zzFN_B67)]{.underline}. Id. at 267.

[[\[FN68\]](#Document1zzFN_B68)]{.underline}. Id. at 16.

[[\[FN69\]](#Document1zzFN_B69)]{.underline}. Joseph L. Graves, The
Emperor\'s New Clothes 1 (2001).

[[\[FN70\]](#Document1zzFN_B70)]{.underline}. Id. at 9.

[[\[FN71\]](#Document1zzFN_B71)]{.underline}. Id. at 168.

[[\[FN72\]](#Document1zzFN_B72)]{.underline}. To say that race is not
biological is not to say that it does not matter. As we will see,
categories and schemas can have an immense influence, even when they are
more or less socially constructed.

[[\[FN73\]](#Document1zzFN_B73)]{.underline}. Christopher Browning,
Ordinary Men 19-25 (1992).

[[\[FN74\]](#Document1zzFN_B74)]{.underline}. Id. at 20.

[[\[FN75\]](#Document1zzFN_B75)]{.underline}. Robert Gellately, Backing
Hitler 7 (2001). Recently, this has famously been called society\'s
\"escalating indifference.\" Ulrich Herbert, Extermination Policy: New
Answers and Questions About the History of the \"Holocaust\" in German
Histiogrpahy, in National Socialist Extermination Policies: Contemporary
German Perspectives and Controversies 1, 27 (Ulrich Herbert ed., 2000).

[[\[FN76\]](#Document1zzFN_B76)]{.underline}. Otto Dov Kulka, Public
Opinion in Nazi Germany and the Jewish Question, The Jerusalem Q.,
Winter 1982. See also 4 Nazism 1919-1945: The German Home Front in World
War II 247 (Jeremy Noakes ed., 1998) (describing how the Nazi war
economy exploited specialized labor\--including Jews, Poles, and
Slavs\--for war production).

[[\[FN77\]](#Document1zzFN_B77)]{.underline}. A. Mitchell Polinsky, An
Introduction to Law and Economics 115 (1983).

[[\[FN78\]](#Document1zzFN_B78)]{.underline}. Id.

[[\[FN79\]](#Document1zzFN_B79)]{.underline}. Id.

[[\[FN80\]](#Document1zzFN_B80)]{.underline}. Id. at 117.

[[\[FN81\]](#Document1zzFN_B81)]{.underline}. Id. at 7.

[[\[FN82\]](#Document1zzFN_B82)]{.underline}. Id.

[[\[FN83\]](#Document1zzFN_B83)]{.underline}. Id. at 117.

[[\[FN84\]](#Document1zzFN_B84)]{.underline}. Id. The care decision has
to do with how much care individuals take when engaging in the activity,
and the activity-level decision has to do with how much activity the
individual engages in at a given level of care.

[[\[FN85\]](#Document1zzFN_B85)]{.underline}. Id . at 119.

[[\[FN86\]](#Document1zzFN_B86)]{.underline}. See Ronald Chen & Jon
Hanson, Distribution Versus Efficiency: Missing the Taste of the Pie
(Working Paper 2004, on file with authors). This institutional
competence argument was soon supplemented and surpassed by another
institutional competence argument, this time based on the supposed
relative competencies of the legal system and the tax-and-transfer
system. For a more thorough review and analysis of this point, see id.

[[\[FN87\]](#Document1zzFN_B87)]{.underline}. For a review of the
conventional wisdom, see Steven P. Croley & Jon D. Hanson, The
Nonpecuniary Costs of Accidents: Pain-and-Suffering Damages in Tort Law,
108 Harv. L. Rev. 1787, 1797-1804 (1995).

[[\[FN88\]](#Document1zzFN_B88)]{.underline}. See, e.g., George L.
Priest, Modern Tort Law and Its Reform, 22 Val. U. L. Rev. 1, 14-20
(1987). But see Steven P. Croley & Jon D. Hanson, [[What Liability
Crisis?: An Alternative Explanation for Recent Events
in](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=101266&FindType=Y&ReferencePositionType=S&SerialNum=0101446303&ReferencePosition=67)]{.underline}
[[Products Liability, 8 Yale J. on Reg. 1, 67-75
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=101266&FindType=Y&ReferencePositionType=S&SerialNum=0101446303&ReferencePosition=67)]{.underline}
(criticizing Priest\'s activity-level argument).

[[\[FN89\]](#Document1zzFN_B89)]{.underline}. See, e.g., A. Mitchell
Polinsky & Steven Shavell, [[Punitive Damages: An Economic Analysis, 111
Harv. L. Rev. 869
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&SerialNum=0108657254)]{.underline}.

[[\[FN90\]](#Document1zzFN_B90)]{.underline}. See [[Ronald Chen & Jon
Hanson, The Illusion of Law: The Legitimating Schemas of Modern Policy
and Corporate Law, 103 Mich. L. Rev. 1 (forthcoming Oct.
2004)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=103MILR1&FindType=Y)]{.underline}.

[[\[FN91\]](#Document1zzFN_B91)]{.underline}. See Henry Hansmann &
Reinier Kraakman, The [[End of History for Corporate Law, 89 Geo. L.J.
439, 441-42
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1146&FindType=Y&ReferencePositionType=S&SerialNum=0283051329&ReferencePosition=441)]{.underline}.

[[\[FN92\]](#Document1zzFN_B92)]{.underline}. See, e.g., [[id. at
440-41.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0283051329)]{.underline}

[[\[FN93\]](#Document1zzFN_B93)]{.underline}. Polinsky, supra note 77,
at 1.

[[\[FN94\]](#Document1zzFN_B94)]{.underline}. See infra text
accompanying notes 505-21 (discussing several examples of legal
scholarship devoted to this topic).

[[\[FN95\]](#Document1zzFN_B95)]{.underline}. [[Nev. Dep\'t of Human
Res. v. Hibbs, 538 U.S. 721, 730
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=2003378344&ReferencePosition=730)]{.underline}.

[[\[FN96\]](#Document1zzFN_B96)]{.underline}. [[Grutter v. Bollinger,
539 U.S. 306, 330
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=2003444559&ReferencePosition=330)]{.underline}.
The policy required admissions officers to examine all elements of an
applicant\'s admission file with a view to encouraging \"diversity\"
within the student body.

[[\[FN97\]](#Document1zzFN_B97)]{.underline}. [[Lawrence v. Texas, 539
U.S. 558, 576-78
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=2003452259&ReferencePosition=576)]{.underline}.

[[\[FN98\]](#Document1zzFN_B98)]{.underline}. [[Id. at
578.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=2003452259)]{.underline}

[[\[FN99\]](#Document1zzFN_B99)]{.underline}. See Andrea Dworkin,
Pornography: Men Possessing Women 17 (1979) ( \"This power of naming
enables men to define experience, to articulate boundaries and values,
to designate each thing its realm and qualities, to determine what can
and cannot be expressed, to control perception itself.\").

[[\[FN100\]](#Document1zzFN_B100)]{.underline}. See supra text
accompanying notes 69-72.

[[\[FN101\]](#Document1zzFN_B101)]{.underline}. See supra text
accompanying notes 77-86.

[[\[FN102\]](#Document1zzFN_B102)]{.underline}. [[Grutter v. Bollinger,
288 F.3d 732, 760
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=2002300353&ReferencePosition=760)]{.underline}
(quoting [[\[FN103\]](#Document1zzFN_B103)]{.underline}. Shelley E.
Taylor & Jennifer Crocker, Schematic Bases of Social Information
Processing, in 1 Social Cognition: The Ontario Symposium 89, 114- 15 (E.
Tory Higgins et al. eds., 1981) \[hereinafter Ontario Symposium\].

[[\[FN104\]](#Document1zzFN_B104)]{.underline}. Even in social
psychology literature, the various features of knowledge structures that
we synthesize in this Article have not been given the compendious
treatment that we offer. As we hint below, that may reflect an absence
of shared knowledge structures about knowledge structures.

[[\[FN105\]](#Document1zzFN_B105)]{.underline}. For more complete
introductions to critical realism and the assertions we make about it in
this section, see Hanson & Yosifon, The Situation, supra note 51, at
179-91; Hanson & Yosifon, The Situational Character, supra note 51.

[[\[FN106\]](#Document1zzFN_B106)]{.underline}. Hanson & Yosifon, The
Situation, supra note 51, at 155.

[[\[FN107\]](#Document1zzFN_B107)]{.underline}. For other interior
attributes of the situational character, see Hanson & Yosifon, The
Situational Character, supra note 51.

[[\[FN108\]](#Document1zzFN_B108)]{.underline}. But such an assertion
should not be surprising, unless there is some reason to believe that
today\'s lawmakers and legal scholars do not rely on knowledge
structures or somehow manage to immunize themselves from the sometimes
dangerous influences to which social psychology and history have
demonstrated them to be subject. As we will argue here and in other
articles, there is no evidence to support such an optimistic belief and
much evidence to the contrary.

[[\[FN109\]](#Document1zzFN_B109)]{.underline}. Richard Nisbett and Lee
Ross describe knowledge structures as \"intuitive implements\" that
\"allow the individual to define and interpret the data of physical and
social life.\" See Richard E. Nisbett & Lee D. Ross, Human Inference:
Strategies and Shortcomings of Social Judgment 6-7 (1990).

[[\[FN110\]](#Document1zzFN_B110)]{.underline}. See David Schneider,
Attribution and Social Cognition, in Social Psychology 49, 49-54
(Michael Argyle & Andrew M. Colman eds., 1994).

[[\[FN111\]](#Document1zzFN_B111)]{.underline}. Although the definition
of a schema may be, in comparison to that of a category, somewhat
confusing, this stems more from the occasional variance in the
terminology used than from a disagreement over the concept itself. The
definitions used by social psychologists vary, beginning with F.C.
Bartlett\'s definition, which inspired modern schema theory: he defined
a schema as \"an active organization of past reactions, or of past
experiences, which must always be supposed to be operating in any
well-adapted organic response.\" F.C. Bartlett, Remembering: A Study in
Experimental & Social Psychology 201 (1932). Susan Fiske and Shelley
Taylor describe a schema as \"a cognitive structure that represents
knowledge about a concept or type of stimulus, including its attributes
and the relations among those attributes.\" See Susan T. Fiske & Shelley
E. Taylor, Social Cognition 98 (1991). By comparison, Reid Hastie
chooses a broad definition of a schema\--including \"almost any of the
abstract hypotheses, expectations, organizing principles, frames,
implicational molecules, scripts, plans, or prototypes that have been
proposed as abstract mental organizing systems or memory structures.\"
Reid Hastie, Schematic Principles in Human Memory, in Ontario Symposium,
supra note 103, at 39, 39. William Brewer and Glenn Nakamura define
schemas to be \"unconscious mental structures and processes that
underlie the molar aspects of human knowledge and skill,\" see William
F. Brewer & Glenn V. Nakamura, The Nature and Functions of Schemas, in 1
Handbook of Social Cognition 119, 140 (Robert S. Wyer, Jr. & Thomas K.
Srull eds., 1984), while David Rumelhart and Andrew Ortony define
schemas as \"data structures for representing the generic concepts
stored in memory\.... A schema contains, as part of its specification,
the network of interrelations that is believed to generally hold among
the constituents of the concept in question.\" David E. Rumelhart &
Andrew Ortony, The Representation of Knowledge in Memory, in Schooling
and the Acquisition of Knowledge 99, 101 (Richard C. Anderson et al.
eds., 1977). Ziva Kunda refers to \"concepts\" as a general term that
includes both categories and schemas. Kunda writes, \"A concept is a
mental representation of a category\... a class of objects that we
believe belong together\.... It embodies our knowledge about the
category and its members\.... Psychologists have used many different
terms to refer to concepts. Some of these are general enough to refer to
just about any concept. These include mental representations, knowledge
structures, and schemas.\" See Ziva Kunda, Making Sense of People,
Social Cognition 16-17 (1999). Thus, Kunda does not really address the
idea of categorization at all, but focuses on categories with the
knowledge that we attach to them (or what we call schemas in this
Article).

[[\[FN112\]](#Document1zzFN_B112)]{.underline}. See, e.g., Hazel Markus
& R.B. Zajonc, The Cognitive Perspective in Social Psychology, in 1 The
Handbook of Social Psychology 137, 143 (Gardner Lindzey & Elliot Aronson
eds., 3d ed. 1985) (citing both categories and schemas as different
names given to similar internal cognitive structures).

[[\[FN113\]](#Document1zzFN_B113)]{.underline}. Fiske & Taylor, supra
note 111, at 105. As we will explain, the categorization process is
generally influenced itself by the schemas active in our minds, which is
one important reason why scholars often conflate the processes.

[[\[FN114\]](#Document1zzFN_B114)]{.underline}. Id. at 117. While this
division is helpful in understanding the cognitive process, it is only a
heuristic. As will become clear, the effects of categorization and of
the application of schemas are often difficult to disentangle, and,
hence, there is necessarily some overlap and repetition in the research
attempting to document their effects. Authors often treat categories and
schemas as interchangeable for just that reason. Again, however, we will
adhere to Fiske and Taylor\'s attempt to model them as distinct. See
Martha Augoustinos & Iain Walker, Social Cognition: An Integrated
Introduction 34 (1995).

[[\[FN115\]](#Document1zzFN_B115)]{.underline}. Fiske & Taylor, supra
note 111, at 117.

[[\[FN116\]](#Document1zzFN_B116)]{.underline}. Kunda, supra note 111,
at 16.

[[\[FN117\]](#Document1zzFN_B117)]{.underline}. Taylor & Crocker, supra
note 103, at 91.

[[\[FN118\]](#Document1zzFN_B118)]{.underline}. Augoustinos & Walker,
supra note 114, at 32.

[[\[FN119\]](#Document1zzFN_B119)]{.underline}. Id.

[[\[FN120\]](#Document1zzFN_B120)]{.underline}. Id. at 33.

[[\[FN121\]](#Document1zzFN_B121)]{.underline}. Id. at 36; Fiske &
Taylor, supra note 111, at 120.

[[\[FN122\]](#Document1zzFN_B122)]{.underline}. Fiske & Taylor, supra
note 111, at 120.

[[\[FN123\]](#Document1zzFN_B123)]{.underline}. Id. at 183. See also
Hazel Markus, Self-Schemata and Processing Information About the Self,
35 J. Personality & Soc. Psychol. 63, 75-76 (1977).

[[\[FN124\]](#Document1zzFN_B124)]{.underline}. Fiske & Taylor, supra
note 111, at 184.

[[\[FN125\]](#Document1zzFN_B125)]{.underline}. See supra text
accompanying notes 92-93. This tendency to see ourselves as unbiased
processors of reality is ubiquitous and is itself a bias. Hanson &
Yosifon, The Situational Character, supra note 51 (discussing naïve
realism).

[[\[FN126\]](#Document1zzFN_B126)]{.underline}. Fiske & Taylor, supra
note 111, at 118.

[[\[FN127\]](#Document1zzFN_B127)]{.underline}. Robert S. Wyer, Jr. &
Alan J. Lambert, The Role of Trait Constructs in Person Perception: An
Historical Perspective, in Social Cognition: Impact on Social Psychology
109, 109 (Patricia G. Devine et al. eds., 1994).

[[\[FN128\]](#Document1zzFN_B128)]{.underline}. Id.

[[\[FN129\]](#Document1zzFN_B129)]{.underline}. See infra Part II.B.4.

[[\[FN130\]](#Document1zzFN_B130)]{.underline}. See Jerry Zadny & Harold
B. Gerard, Attributed Intentions and Informational Selectivity, 10 J.
Experimental Soc. Psychol. 34, 37-38 (1974).

[[\[FN131\]](#Document1zzFN_B131)]{.underline}. See id. at 38.

[[\[FN132\]](#Document1zzFN_B132)]{.underline}. See id. at 38-39.

[[\[FN133\]](#Document1zzFN_B133)]{.underline}. Nancy Cantor & Walter
Mischel, Prototypes in Person Perception, in 12 Advances in Experimental
Social Psychology 3, 6 (Leonard Berkowitz ed., 1979).

[[\[FN134\]](#Document1zzFN_B134)]{.underline}. See supra note 51.

[[\[FN135\]](#Document1zzFN_B135)]{.underline}. Fiske & Taylor, supra
note 111, at 119.

[[\[FN136\]](#Document1zzFN_B136)]{.underline}. See id.

[[\[FN137\]](#Document1zzFN_B137)]{.underline}. See id.

[[\[FN138\]](#Document1zzFN_B138)]{.underline}. Id.

[[\[FN139\]](#Document1zzFN_B139)]{.underline}. Chen & Hanson, supra
note 90, at Part II (describing the market and regulatory schemas in
detail).

[[\[FN140\]](#Document1zzFN_B140)]{.underline}. See supra text
accompanying notes 77-85.

[[\[FN141\]](#Document1zzFN_B141)]{.underline}. See John R. Anderson,
Cognitive Psychology and Its Implications 141-43 (3d ed. 1990).

[[\[FN142\]](#Document1zzFN_B142)]{.underline}. See Gordon H. Bower,
John B. Black & Terrence J. Turner, Scripts in Memory for Text, 11
Cognitive Psychol. 177, 181-83 (1979).

[[\[FN143\]](#Document1zzFN_B143)]{.underline}. See Eric Schlosser, Fast
Food Nation 20 (2001). Another challenge was to get customers to the
restaurant in the first place. Post World War II schemas saw women in
the kitchens of their suburban homes, doing what women do: cooking
nutritious meals for their families. According to folk wisdom, McDonalds
was successfully chipping away at those schemas through its early ad
campaign slogan: \"You deserve a break today.\"

[[\[FN144\]](#Document1zzFN_B144)]{.underline}. Jennifer L. Cooper,
It\'s All in the Delivery: A Schema for the Joke Narrative 25 (1991)
(unpublished honors thesis, on file with the Harvard University
Library).

[[\[FN145\]](#Document1zzFN_B145)]{.underline}. See id.

[[\[FN146\]](#Document1zzFN_B146)]{.underline}. See id.

[[\[FN147\]](#Document1zzFN_B147)]{.underline}. Ellen Langer,
Mindfulness 43 (1989).

[[\[FN148\]](#Document1zzFN_B148)]{.underline}. See id. Langer describes
one incident of mindfulness:

Once, in a small department store, I gave a cashier a new credit card.
Noticing that I hadn\'t signed it, she handed it back to me to sign.
Then she took my card, passed it through her machine, handed me the
resulting form, and asked me to sign it. I did as I was told. The
cashier then held the form next to the newly signed card to see if the
signatures matched.

Id. at 12-13.

[[\[FN149\]](#Document1zzFN_B149)]{.underline}. Id. at 16.

[[\[FN150\]](#Document1zzFN_B150)]{.underline}. See Markus & Zajonc,
supra note 112, at 150.

[[\[FN151\]](#Document1zzFN_B151)]{.underline}. Fiske & Taylor, supra
note 111, at 121.

[[\[FN152\]](#Document1zzFN_B152)]{.underline}. Markus & Zajonc, supra
note 112, at 150. See also Fiske & Taylor, supra note 111, at 122
(\"Once cued, schemas affect how quickly we perceive, what we notice,
how we interpret what we notice, and what we perceive as similar and
different. Thus, another principle of schematic encoding is its
operation from the earliest moments of perception.\").

[[\[FN153\]](#Document1zzFN_B153)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45.

[[\[FN154\]](#Document1zzFN_B154)]{.underline}. John Ridley Stroop
identified and made famous this phenomenon in 1935. See J. Ridely
Stroop, Studies of Interference in Serial Verbal Reactions, 18 J.
Experimental Psychol. 643 (1935), available at http://
www.psychclassics.yorku.ca/Stroop/ (last visited Sept. 20, 2004). See
also Stanley Coren & Lawrence M. Ward, Sensation and Perception (1989)
(providing an accessible introduction to basic physiology and sensory
responses). We have had to adapt the traditional colorized version of
the Stroop test for this noncolorized publication. Our version captures
the power of automaticity pretty well, but readers interested in the
more colorful version of the classic test and some additional
explanation for the effect can find it on the internet. See, e.g.,
Stroop Task, http:// www.snre.umich.edu/eplab/demos/st0/stroopdesc.html
(last updated May 24, 2001).

[[\[FN155\]](#Document1zzFN_B155)]{.underline}. Stroop found that his
subjects\' mean response times rose by seventy-four percent when they
were presented with the last category. See Stroop Test, at
http://psychclassics.yorkuca/Stroop (last visited Sept. 25, 2004).

[[\[FN156\]](#Document1zzFN_B156)]{.underline}. Bottom-up processes look
to the particular features of the underlying stimuli, while top-down
processes rely on the activated schemas informed by experience and
expectations. The former is analogous to assembling a puzzle without the
box top (that is, without knowing what the puzzle will look like in
final form), and the latter is like assembling the same puzzle with the
box top.

[[\[FN157\]](#Document1zzFN_B157)]{.underline}. Fiske & Taylor, supra
note 111, at 98.

[[\[FN158\]](#Document1zzFN_B158)]{.underline}. Augoustinos & Walker,
supra note 114, at 43.

[[\[FN159\]](#Document1zzFN_B159)]{.underline}. Although authors
generally separate out the effects of schemas on attention and
retrieval, the same experiments are sometimes used to help understand
both of the stages. Thus, researchers such as Taylor and Crocker simply
distinguish schema effects on the attention/encoding and memory
functions from the effects on inference. See Taylor & Crocker, supra
note 103, at 93-102. We will distinguish between attention and memory
effects, but overlaps are inevitable.

[[\[FN160\]](#Document1zzFN_B160)]{.underline}. Encoding is a process by
which an \"external stimulus\" is converted into an \"internal
representation.\" See Fiske & Taylor, supra note 111, at 245. In this
Article, we focus on the categorization function of the encoding
process, since it is central to the subsequent application of schemas.
See id. at 246.

[[\[FN161\]](#Document1zzFN_B161)]{.underline}. This photograph
originally appeared in William F. Brewer & James C. Treyens, Role of
Schemata in Memory for Places, 13 Cognitive Psychol. 207 (1981). For a
description of William Brewer and James Treyens\'s experiment using this
office, see infra text accompanying notes 275-76.

[[\[FN162\]](#Document1zzFN_B162)]{.underline}. Jerome S. Bruner,
Jacqueline J. Goodnow & George A. Austin, A Study of Thinking 1 (1956).
See Douglas L. Medin & Cynthia Aguilar, Categorization, in The MIT
Encyclopedia of the Cognitive Sciences 104-06 (Robert A. Wilson & Frank
C. Keil eds., 1999).

[[\[FN163\]](#Document1zzFN_B163)]{.underline}. George Lakoff, Women,
Fire, and Dangerous Things: What Categories Reveal About the Mind 6
(1987).

[[\[FN164\]](#Document1zzFN_B164)]{.underline}. Kunda, supra note 111,
at 18.

[[\[FN165\]](#Document1zzFN_B165)]{.underline}. This benefit is
difficult to overestimate. Shared schemas are a pivotal part of our
shared experiences\--from our architecture to our language, we are
surrounded by the interaction of shared categories, schemas, and
scripts. Our survival may well depend upon them. To gain some sense of
their importance, consider the layout and categories of typical book
stores, designed to assist customers to find the books they are looking
for, or to come across books they did not know they wanted, but now do:
New Releases, Best Sellers, History, Biography, Children\'s Books,
Literature, and so forth. Of course, there are many other ways of
potentially categorizing books. They might be arranged by size or weight
or by the number of syllables they contain. These categories would often
be quite unhelpful, though, because they do not correspond well with the
reasons why people want to purchase particular books. But there are
other categories that, while they do nicely capture what moves people to
select a book, are not shared and thus would not work well for arranging
a bookstore. Italo Calvino, in If on a Winter\'s Night a Traveler, has
imagined just such a categorical system in his description of how a
person found a particular book:

In the shop window you have promptly identified the cover with the title
you were looking for. Following this visual trail, you have forced your
way through the shop past the thick barricade of Books You Haven\'t
Read, which were frowning at you from the tables and shelves, trying to
cow you. But you know you must never allow yourself to be awed, that
among them there extend for acres and acres the Books You Needn\'t Read,
the Books Made For Purposes Other Than Reading, Books Read Even Before
You Open Them Since They Belong To The Category Of Books Read Before
Being Written. And thus you pass the outer girdle of ramparts, but then
you are attacked by the infantry of the Books That If You Had More Than
One Life You Would Certainly Also Read But Unfortunately Your Days Are
Numbered. With a rapid maneuver you bypass them and move into the
phalanxes of the Books You Mean To Read But There Are Others You Must
Read First, The Books Too Expensive Now And You\'ll Wait Till They\'re
Remaindered, The Books ditto When They Come Out In Paperback, Books You
Can Borrow From Somebody, Books That Everybody\'s Read So It\'s As If
You Had Read Them, Too. Eluding these assaults, you come up beneath the
towers of the fortress, where other troops are holding out:

the Books You\'ve Been Planning To Read For Ages,

the Books You\'ve Been Hunting For Years Without Success,

the Books Dealing With Something You\'re Working On At The Moment,

the Books You Want To Own So They\'ll Be Handy Just In Case,

the Books You Could Put Aside Maybe To Read This Summer,

the Books You Need To Go With Other Books On Your Shelves,

the Books That Fill You With Sudden, Inexplicable Curiosity, Not Easily
Justified.

Now you have been able to reduce the countless embattled troops to an
array that is, to be sure, very large but still calculable in a finite
number; but this relative relief is then undermined by the ambush of the
Books Read Long Ago Which It\'s Now Time To Reread and the Books You\'ve
Always Pretended To Have Read And Now It\'s Time To Sit Down And Really
Read Them.

With a zigzag dash you shake them off and leap straight into the citadel
of the New Books Whose Author Or Subject Appeals To You. Even inside
this stronghold you can make some breaches in the ranks of the
defenders, dividing them into New Books By Authors Or On Subjects Not
New (for you or in general) and New Books By Authors Or On Subjects
Completely Unknown (at least to you)\....

Italo Calvino, If on a Winter\'s Night a Traveler 5-6 (1979). Amazon.com
and other Internet booksellers seek to come closer to Calvino\'s
fantasy. See, e.g., Ralph F. Wilson, Making People Want to Buy in Your
Retail Webstore, Web Marketing Today, Issue 33, May 29, 1997, at http://
www.wilsonweb.com/articles/want-to-buy.htm.

[[\[FN166\]](#Document1zzFN_B166)]{.underline}. See Jacques-Philippe
Leyens, Vincent Yzerbyt & Georges Schadron, Stereotypes and Social
Cognition 129 (1994). As will be clear from our discussion of schemas,
many of the functions of categories are also functions of schemas.

[[\[FN167\]](#Document1zzFN_B167)]{.underline}. Id. at 130.

[[\[FN168\]](#Document1zzFN_B168)]{.underline}. Fiske & Taylor, supra
note 111, at 105.

[[\[FN169\]](#Document1zzFN_B169)]{.underline}. See id.

[[\[FN170\]](#Document1zzFN_B170)]{.underline}. That, by the way, is a
picture of the 2004 Honda \"Element,\" found at
http://www.hondacars.com/models/model_overview.asp?
ModelName=Element&bhcp=1&BrowserDetected=True (last visited Sept. 25,
2004).

[[\[FN171\]](#Document1zzFN_B171)]{.underline}. Susan T. Fiske & Steven
L. Neuberg, A Continuum of Impression Formation, from Category-Based to
Individuating Processes: Influences of Information and Motivation on
Attention and Interpretation, in 23 Advances in Experimental Social
Psychology 1, 2 (Mark P. Zanna ed., 1990).

[[\[FN172\]](#Document1zzFN_B172)]{.underline}. See infra Part
II.C.2.a.iv.(g)(iv.) (discussing the process of subcategorization or
subtyping).

[[\[FN173\]](#Document1zzFN_B173)]{.underline}. Fiske & Neuberg, supra
note 171, at 4.

[[\[FN174\]](#Document1zzFN_B174)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45, augmenting it with processes
from Fiske & Neuberg, supra note 171, at 5.

[[\[FN175\]](#Document1zzFN_B175)]{.underline}. See, e.g., Edward E.
Smith & Douglas L. Medin, Categories and Concepts 23 (1981).

[[\[FN176\]](#Document1zzFN_B176)]{.underline}. Augoustinos & Walker,
supra note 114, at 269.

[[\[FN177\]](#Document1zzFN_B177)]{.underline}. See, e.g., Carolyn B.
Mervis & Eleanor Rosch, Categorization of Natural Objects, 32 Ann. Rev.
of Psychol. 89 (1981); Eleanor Rosch, Principles of Categorization, in
Cognition and Categorization 41, 41-43 (Eleanor Rosch & Barbara B. Lloyd
eds., 1978).

[[\[FN178\]](#Document1zzFN_B178)]{.underline}. Fiske & Taylor, supra
note 111, at 106.

[[\[FN179\]](#Document1zzFN_B179)]{.underline}. 2003 Honda Element
Reviews and Buying Guide, at
http://www.car-buying-strategies.com/2003-Honda-Element.html (last
visited Sept. 15, 2004).

[[\[FN180\]](#Document1zzFN_B180)]{.underline}. Augoustinos & Walker,
supra note 114, at 269.

[[\[FN181\]](#Document1zzFN_B181)]{.underline}. Lakoff, supra note 163,
at 39.

[[\[FN182\]](#Document1zzFN_B182)]{.underline}. See id. at 7.

[[\[FN183\]](#Document1zzFN_B183)]{.underline}. Eleanor Rosch, Cognitive
Reference Points, 7 Cognitive Psychol. 532, 544-45 (1975). Some birds,
for instance, are more birdlike than others.

[[\[FN184\]](#Document1zzFN_B184)]{.underline}. Fiske & Taylor, supra
note 111, at 106. See also Martha Chamallas, [[Deepening the Legal
Understanding of Bias: On Devaluation and Biased Prototypes, 74 S. Cal.
L. Rev. 747, 779-80
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1228&FindType=Y&ReferencePositionType=S&SerialNum=0283735690&ReferencePosition=779)]{.underline}
(describing the fuzziness of categories and some of the effects that
this may have on laws addressing sexism and racism).

[[\[FN185\]](#Document1zzFN_B185)]{.underline}. See Fiske & Taylor,
supra note 111, at 106. See also Barbara Hayes-Roth & Frederick
Hayes-Roth, Concept Learning and the Recognition and Classification of
Exemplars, 16 J. Verbal Learning & Verbal Behav. 321 (1977) (providing
evidence that categorization is a less exact process than the classical
view supposed); Michael I. Posner & Steven W. Keele, On the Genesis of
Abstract Ideas, 77 J. Experimental Psychol. 353 (1968) (same); Michael
I. Posner & Steven W. Keele, Retention of Abstract Ideas, 83 J.
Experimental Psychol. 304, 304-08 (1970) (same).

[[\[FN186\]](#Document1zzFN_B186)]{.underline}. Fiske & Taylor, supra
note 111, at 106. See Linda Hamilton Krieger, The [[Content of Our
Categories: A Cognitive Bias Approach to Discrimination and Equal
Employment Opportunity, 47 Stan. L. Rev. 1161, 1189
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0105712518&ReferencePosition=1189)]{.underline}.

[[\[FN187\]](#Document1zzFN_B187)]{.underline}. Fiske & Taylor, supra
note 111, at 106-07.

[[\[FN188\]](#Document1zzFN_B188)]{.underline}. Id.

[[\[FN189\]](#Document1zzFN_B189)]{.underline}. See Schneider, supra
note 110, at 51.

[[\[FN190\]](#Document1zzFN_B190)]{.underline}. The following examples
are summarized in Anderson, supra note 141, at 137-40.

[[\[FN191\]](#Document1zzFN_B191)]{.underline}. Eleanor H. Rosch, On the
Internal Structure of Perceptual and Semantic Categories, in Cognitive
Development and the Acquisition of Language 111, 131-34 (Timothy E.
Moore ed., 1973).

[[\[FN192\]](#Document1zzFN_B192)]{.underline}. Eleanor Rosch, Cognitive
Representations of Semantic Categories, 104 J. Experimental Psychol.:
General 192, 230-32 (1975).

[[\[FN193\]](#Document1zzFN_B193)]{.underline}. Lance J. Rips, Edward J.
Shoben & Edward E. Smith, Semantic Distance and the Verification of
Semantic Relations, 12 J. Verbal Learning & Verbal Behav. 1, 4 (1973).
In this study, the higher the score, the greater the typicality.

[[\[FN194\]](#Document1zzFN_B194)]{.underline}. See id. at 5.

[[\[FN195\]](#Document1zzFN_B195)]{.underline}. Eleanor Rosch, Human
Categorization, in 1 Studies in Cross-Cultural Psychology 1, 24-25 (Neil
Warren ed., 1977).

[[\[FN196\]](#Document1zzFN_B196)]{.underline}. Id.

[[\[FN197\]](#Document1zzFN_B197)]{.underline}. Id.

[[\[FN198\]](#Document1zzFN_B198)]{.underline}. Massimo
Piattelli-Palmarini, Inevitable Illusions 150 (1994).

[[\[FN199\]](#Document1zzFN_B199)]{.underline}. Michael E. McCloskey &
Sam Glucksberg, Natural Categories: Well Defined or Fuzzy Sets?, 6
Memory & Cognition 468, 468-69 (1978).

[[\[FN200\]](#Document1zzFN_B200)]{.underline}. William Labov, The
Boundaries of Words and Their Meanings, in New Ways of Analyzing
Variations in English 356, 356 (Charles James N. Bailey & Roger W. Shuy
eds., 1973).

[[\[FN201\]](#Document1zzFN_B201)]{.underline}. See id.

[[\[FN202\]](#Document1zzFN_B202)]{.underline}. See id.

[[\[FN203\]](#Document1zzFN_B203)]{.underline}. See Fiske & Taylor,
supra note 111, at 109-15.

[[\[FN204\]](#Document1zzFN_B204)]{.underline}. See id. at 109 (citing
L.W. Barsalou, Ideals, Central Tendency, and Frequency of Instantiation
as Determinants of Graded Structure in Categories, 11 J. Experimental
Psychol.: Learning, Memory, and Cognition 629 (1985)).

[[\[FN205\]](#Document1zzFN_B205)]{.underline}. Fiske & Taylor, supra
note 111, at 112 (citing Lee Brooks, Nonanalytic Concept Formation and
Memory for Instances, in Cognition and Categorization 169 (Eleanor Rosch
& Barbara B. Lloyd eds., 1978)); Smith & Medin, supra note 175, at
143-44.

[[\[FN206\]](#Document1zzFN_B206)]{.underline}. See Schneider, supra
note 110, at 51-52.

[[\[FN207\]](#Document1zzFN_B207)]{.underline}. See Fiske & Taylor,
supra note 111, at 115.

[[\[FN208\]](#Document1zzFN_B208)]{.underline}. Id. at 107.

[[\[FN209\]](#Document1zzFN_B209)]{.underline}. Id.

[[\[FN210\]](#Document1zzFN_B210)]{.underline}. We have adapted this
figure from Fiske & Taylor, supra note 111, at 108.

[[\[FN211\]](#Document1zzFN_B211)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45.

[[\[FN212\]](#Document1zzFN_B212)]{.underline}. Markus & Zajonc, supra
note 112, at 151.

[[\[FN213\]](#Document1zzFN_B213)]{.underline}. Schneider, supra note
110, at 49.

[[\[FN214\]](#Document1zzFN_B214)]{.underline}. Id.

[[\[FN215\]](#Document1zzFN_B215)]{.underline}. David Rumelhart,
Schemata and the Cognitive System, in Handbook of Social Cognition,
supra note 111, at 161, 179-80.

[[\[FN216\]](#Document1zzFN_B216)]{.underline}. Fiske and Taylor
explain, for example, that

\[t\]he schema concept raises the\... possibility that some features may
be ignored, if they are not meaningfully associated with the schema\....
Although one could generate a \'typical\' face and body for an
extravert, the schema concept implies that these features are not
usually stored with the abstract knowledge more relevant to being an
extravert.

See Fiske & Taylor, supra note 111, at 117.

[[\[FN217\]](#Document1zzFN_B217)]{.underline}. Kunda, supra note 111,
at 19.

[[\[FN218\]](#Document1zzFN_B218)]{.underline}. Ulric Neisser, Cognition
and Reality: Principles and Implications of Cognitive Psychology 80
(1976).

[[\[FN219\]](#Document1zzFN_B219)]{.underline}. This photograph is
credited to I. Russel Sorgi in LIFE: The First 50 Years, 1936-1986, at
64 (Philip B. Kunhardt, Jr. ed., 1986). The Southern California Law
Review was unable to find contact information for Sorgi to get
permission for this noncommercial, academic use.

[[\[FN220\]](#Document1zzFN_B220)]{.underline}. See generally Phillip G.
Zimbardo & George M. Slavich, When the Mind\'s Eye Goes Blind:
Aschematic Perception in Action (unpublished manuscript, on file with
authors). We understand that the image is ambiguous, and that it is
difficult to make out what the image is in the center. But that is our
point. Our schemas have no place for resolving that ambiguity and it
does not occur to most of us that the blurry figure might be a falling
person. Unfortunately, another image with a similarly ambiguous figure
and the World Trade Center in the background would be unmistakable,
simply because our schema for falling person is so clearly, sadly
activated.

[[\[FN221\]](#Document1zzFN_B221)]{.underline}. John S. Bransford &
Marcia K. Johnson, Considerations of Some Problems of Comprehension, in
Visual Information Processing 383, 400 (W.G. Chase ed., 1973).

[[\[FN222\]](#Document1zzFN_B222)]{.underline}. In another well known
experiment by Bransford and Johnson, subjects read the following
ambiguous text passage:

If the balloons popped, the sound wouldn\'t be able to carry since
everything would be too far away from the correct floor. A closed window
would also prevent the sound from carrying, since most buildings tend to
be well insulated. Since the whole operation depends on a steady flow of
electricity, a break in the middle of the wire would also cause
problems. Of course, the fellow could shout, but the human voice is not
loud enough to carry that far. An additional problem is that a string
could break on the instrument. Then there could be no accompaniment to
the message. It is clear that the best situation would involve less
distance. Then there would be fewer potential problems. With face to
face contact, the least number of things could go wrong.

John D. Bransford & Marcia K. Johnson, Contextual Prerequisites for
Understanding: Some Investigations of Comprehension and Recall, 11 J.
Verbal Learning & Verbal Behav. 717, 718-20 (1972). The subjects either
read the passage by itself or accompanied by either of two
illustrations. Although both illustrations contain identical graphic
elements, only the one with elements organized in a contextually
sensible way (left image) led subjects to feel that the passage was very
comprehensible and facilitated better recall of the story.

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

Still other experiments reveal the same tendency. For instance, in one,
some subjects are asked to walk through a house with burglary in mind
while others are asked to walk through with the thought of buying a
house. The two different frames led to very different attention-related
results. See Fiske & Taylor, supra note 111, at 125.

[[\[FN223\]](#Document1zzFN_B223)]{.underline}. Fiske & Taylor, supra
note 111, at 123. Moreover, people take longer and use greater cognitive
capacity to encode information that is inconsistent with their active
schemas. See infra text accompanying notes 298-305 (discussing when and
why we use schemas rather than data-driven cognitive processes).

[[\[FN224\]](#Document1zzFN_B224)]{.underline}. William von Hippel, John
Jonides, James L. Hilton & Sowmya Narayan, Inhibitory Effect of
Schematic Processing on Perceptual Encoding, 64 J. Personality & Soc.
Psychol. 921, 932 (1993).

[[\[FN225\]](#Document1zzFN_B225)]{.underline}. Kunda, supra note 111,
at 20.

[[\[FN226\]](#Document1zzFN_B226)]{.underline}. As noted earlier, it is
often difficult to isolate the effects caused by mere categorization
from effects caused by the subsequent application of schemas. See John
H. Lingle, Mark W. Altom & Douglas L. Medin, Of Cabbages & Kings:
Assessing the Extendibility of Natural Object Concept Models & Social
Things, in Handbook of Social Cognition, supra note 111, at 71, 107
(noting that \"the impact of simple categorization is surprisingly
pervasive\" and affects memory retrieval as well as inferential
processes). We agree that categorization has effects on recall and
inference. As we discussed, these processes are mediated through the
application of schemas. Thus, we defer much of the discussion of
effects, perhaps generated primarily by the categorization function, for
the next section, because they are more likely a combination of both
categorization and schema application. See infra Part II.C.1.b.-.c.

[[\[FN227\]](#Document1zzFN_B227)]{.underline}. See Henri Tajfel & A.L.
Wilkes, Classification and Quantitative Judgement, 54 Brit. J. Psychol.
101, 101-04 (1963). See also Henri Tajfel, Cognitive Aspects of
Prejudice, 25 J. Soc. Issues 79 (1969) (examining the psychological
aspects of social categorization, stereotyping, and irrational
intergroup relations).

[[\[FN228\]](#Document1zzFN_B228)]{.underline}. In Tajfel and Wilkes\'s
experiment, the lengths of the lines differed by five percent each. See
Tajfel & Wilkes, supra note 227, at 101-04.

[[\[FN229\]](#Document1zzFN_B229)]{.underline}. According to research by
William Battig and Francis Bellezza, categorization of stimuli into a
common category triggers cognitive processing that focuses on the
similarities of the stimuli within the category. See William F. Battig &
Francis S. Bellezza, Organization and Levels of Processing, in Memory
Organization and Structure 321, 321-46 (C. Richard Puff ed., 1979).

[[\[FN230\]](#Document1zzFN_B230)]{.underline}. Tajfel & Wilkes, supra
note 227, at 101-04.

[[\[FN231\]](#Document1zzFN_B231)]{.underline}. Apparently, there need
be no rhyme or reason to the categories. In experiments involving groups
of people (and not lines) \"even clearly arbitrary assignment of group
memberships subsequently affects how a person perceives, judges, makes
attributions about, and rewards others\....\" Lingle et al., supra note
226, at 107. See J. Howard & M. Rothbart, Social Categorization & Memory
for Ingroup & Outgroup Behavior, 38 J. Personality & Soc. Psychol. 301
(1980); Henri Tajfel, A.A. Sheikh & R.C. Gardner, Content of Stereotypes
and Inferences of Similarity Between Members of Stereotyped Groups, 22
Acta Psychol. 191 (1964); Henri Tajfel & Michael Billig, Familiarity and
Categorization in Intergroup Behavior, 10 J. Experimental Soc. Psychol.
159 (1974); David A. Wilder, Perceiving Persons as a Group:
Categorization & Intergroup Relations, Cognitive Processes in
Stereotyping and Intergroup Behavior 213 (David L. Hamilton ed., 1981).

[[\[FN232\]](#Document1zzFN_B232)]{.underline}. See, e.g., Mariëtte
Berndsen, Russell Spears, Joop van der Pligt & Craig McGarty, Illusory
Correlation and Stereotype Formation: Making Sense of Group Differences
and Cognitive Biases, in Stereotypes as Explanations: The Formation of
Meaningful Beliefs About Social Groups 90, 90-91 (Craig McGarty et al.
eds., 2002); Dora Capozza & Rennato Nanni, Differentiation Processes for
Social Stimuli with Different Degrees of Category Representativeness, 16
Eur. J. Soc. Psychol. 399, 400 (1986); Craig McGarty & R.E.C. Penny,
Categorization, Accentuation and Social Judgment, 27 Brit. J. Soc.
Psychol. 147 (1988).

[[\[FN233\]](#Document1zzFN_B233)]{.underline}. Fiske & Taylor, supra
note 111, at 122.

[[\[FN234\]](#Document1zzFN_B234)]{.underline}. Id. See also id. at
122-23 (\"Although people are sensitive to actual differences in
variability within groups, they also perceive a group as less variable
when they receive a schematic label for the group before learning about
its members rather than after, indicating that schemas can reduce
perceived variability.\").

[[\[FN235\]](#Document1zzFN_B235)]{.underline}. Id. at 123. This
tendency may be explained by the fact that it is probably easier to see
outgroup members as similar to one another and harder to take account of
the differences in groups that are not well known. Individuals will tend
to hold less complex characterizations of the individuals in the group,
seeing them as more fuzzy and will therefore not be forced by the
evidence to reconcile the intragroup differences. Fiske and Taylor
explain, \"People not only perceive outgroup members as less variable
than ingroup members, they also have less complex conceptualizations of
them. For example, young people think about old people along fewer
dimensions than they do other young people, and the same is true across
racial groupings\....\" See id. Within ingroups, people likely perceive
subcategories that enhance the perception of diversity within the larger
category; but within outgroups, they likely miss subcategories and thus
perceive similarity throughout.

[[\[FN236\]](#Document1zzFN_B236)]{.underline}. See David L. Hamilton &
Tina K. Trolier, Stereotypes and Stereotyping: An Overview of the
Cognitive Approach, in Prejudice, Discrimination, and Racism 127, 127
(John F. Dovidio & Samuel L. Gaertner eds., 1986). See also Patricia W.
Linville, Gregory W. Fischer & Peter Salovey, Stereotyping and Perceived
Distributions of Social Characteristics: An Application to
Ingroup-Outgroup Perception, in Prejudice, Discrimination and Racism,
supra, at 167, 167-77 (reviewing a large number of studiesdemonstrating
that ingroup members see their own group as more diverse and varied
while viewing outgroups as more homogenous in their behavior and
traits).

[[\[FN237\]](#Document1zzFN_B237)]{.underline}. See Patricia W.
Linville, The Complexity-Extremity Effect and Age-Based Stereotyping, 42
J. Personality & Soc. Psychol. 193 (1982).

[[\[FN238\]](#Document1zzFN_B238)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51, at Part II.B.2.a (summarizing
classic studies by Muzafer Sherif and his colleagues, who discovered the
power of groupism by conducting a series of experiments behind the cover
of a summer camp).

[[\[FN239\]](#Document1zzFN_B239)]{.underline}. See Henri Tajfel,
Cognitive Aspects of Prejudice, 25 J. Soc. Issues 79, 82-83 (1969);
Henri Tajfel & John C. Turner, The Social Identity Theory of Intergroup
Behavior, in Psychology of Intergroup Relations 7, 10-11 (Stephen
Worchel & William G. Austin eds., 1986). Such effects are particularly
strong when there are ingroup and outgroup comparisons. See infra text
accompanying notes 366-71.

[[\[FN240\]](#Document1zzFN_B240)]{.underline}. See Interview with
Steven Jay Gould, at http://
www.pbs.org/race/001_WhatIsRace/001_00-home.htm (last visited Sept. 18,
2004) (describing the development of racial classifications in the
West).

[[\[FN241\]](#Document1zzFN_B241)]{.underline}. See supra text
accompanying notes 69-72.

[[\[FN242\]](#Document1zzFN_B242)]{.underline}. Martha Minow, Making All
the Difference: Inclusion, Exclusion, and American Law 1, 3-4 (1990).

[[\[FN243\]](#Document1zzFN_B243)]{.underline}. Id. at 3.

[[\[FN244\]](#Document1zzFN_B244)]{.underline}. Kunda, supra note 111,
at 18.

[[\[FN245\]](#Document1zzFN_B245)]{.underline}. Id.

[[\[FN246\]](#Document1zzFN_B246)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45.

[[\[FN247\]](#Document1zzFN_B247)]{.underline}. Or, it may be more
accurate to say that he has \"schematized three categories.\"

[[\[FN248\]](#Document1zzFN_B248)]{.underline}. Walter H. Crockett,
Schemas, Affect, and Communication, in Communication, Social Cognition,
and Affect 33, 34 (Lewis Donohew et al. eds., 1988). Similarly, Taylor
and Crocker focus on four key effects: (1) to enable individuals to
infer missing data based on the schema; (2) to facilitate problem
solving processes; (3) to provide a basis for individuals\' evaluations
of experience; and (4) to allow individuals to anticipate, plan, and
adjust for the future. See Taylor & Crocker, supra note 103, at 103-14.

[[\[FN249\]](#Document1zzFN_B249)]{.underline}. Crockett, supra note
248, at 35. See supra text accompanying notes 141-43 (describing the
restaurant script).

[[\[FN250\]](#Document1zzFN_B250)]{.underline}. Of course our prediction
would be much different if the person was a woman wearing a polyester
apron and a pencil behind her ear, for our predictions would be informed
by our role schemas as well as our scripts.

[[\[FN251\]](#Document1zzFN_B251)]{.underline}. See Crockett, supra note
248, at 35.

[[\[FN252\]](#Document1zzFN_B252)]{.underline}. See David L. Hamilton &
Steven J. Sherman, Stereotypes, in 2 Handbook of Social Cognition 1
(Robert S. Wyer & Thomas K. Srull eds., 2d ed. 1994); Gordon B.
Moskowitz, Ian Skurnik & Adam D. Galinsky, The History of Dual-Process
Notions and the Future of Preconscious Control, in Dual-Process Theories
in Social Psychology 12 (Shelley Chaiken & Yaacov Trope eds., 1999).

[[\[FN253\]](#Document1zzFN_B253)]{.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, 595 (1976). See generally Hanson & Yosifon, The
Situational Character, supra note 51, at Part III.B.2.a (describing the
attributions individuals make because of stereotypes and other related
effects of stereotypes).

[[\[FN254\]](#Document1zzFN_B254)]{.underline}. See, e.g., Bernd
Wittenbrink, James L. Hilton & Pamela L. Gist, In Search of Similarity:
Stereotypes as Naive Theories in Social Categorization, 16 Soc.
Cognition 31, 31-32 (1998) \[hereinafter In Search of Similarity\];
Bernd Wittenbrink, Pamela L. Gist & James L. Hilton, Structural
Properties of Stereotypic Knowledge and Their Influences on the
Construal of Social Situations, 72 J. Personality & Soc. Psychol. 526
(1997) \[hereinafter Structural Properties\]. For a more complete
accounting of the cognitive forces that encourage dispositionism, see
Adam Benforado, Jon Hanson & David Yosifon, Broken Scales: Obesity and
Justice in America, 53 Emory L.J. (forthcoming Fall 2004) \[hereinafter
Broken Scales\]; Adam Benforado & Jon Hanson, Naïve Cynicism: Some
Mechanisms of Dispositionism and Other Persistent Attributional Errors
in Policy Debates (unpublished manuscript, on file with authors)
\[hereinafter Naïve Cynicism\].

[[\[FN255\]](#Document1zzFN_B255)]{.underline}. Crockett, supra note
248, at 35.

[[\[FN256\]](#Document1zzFN_B256)]{.underline}. [[Bradwell v. Illinois,
83 U.S. 130, 141-42
(1972)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1872196969&ReferencePosition=141)]{.underline}.

[[\[FN257\]](#Document1zzFN_B257)]{.underline}. Id.

[[\[FN258\]](#Document1zzFN_B258)]{.underline}. See Chen & Hanson, supra
note 86.

[[\[FN259\]](#Document1zzFN_B259)]{.underline}. See Rumelhart, supra
note 215, at 176. See also Taylor & Crocker, supra note 103, at 114-23
(highlighting four possible sources for error when individuals apply
schemas). Note that the sources of biases described in this section
apply not just to our inference process, but also to our initial
categorization and our subsequent memory.

[[\[FN260\]](#Document1zzFN_B260)]{.underline}. See supra text
accompanying note 221.

[[\[FN261\]](#Document1zzFN_B261)]{.underline}. See Rumelhart, supra
note 215, at 177.

[[\[FN262\]](#Document1zzFN_B262)]{.underline}. See Crockett, supra note
248, at 35. Fiske and Taylor note that people will \"extract a trait
prototype from exposure to category-consistent information.\" Fiske &
Taylor, supra note 111, at 107. For example, if you see that a person is
energetic, entertaining and friendly, you may later believe that you
observed that they were outgoing and lively. Id.

[[\[FN263\]](#Document1zzFN_B263)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45.

[[\[FN264\]](#Document1zzFN_B264)]{.underline}. See Brewer & Nakamura,
supra note 111, at 142; Taylor & Crocker, supra note 103, at 99.

[[\[FN265\]](#Document1zzFN_B265)]{.underline}. See Nancy Cantor &
Walter Mischel, Traits as Prototypes: Effects on Recognition Memory, 35
J. Personality & Soc. Psychol. 38, 38-48 (1977).

[[\[FN266\]](#Document1zzFN_B266)]{.underline}. See id.

[[\[FN267\]](#Document1zzFN_B267)]{.underline}. Fiske & Taylor, supra
note 111, at 105. Increased memory for schema-related information is a
finding that stems back to Frederic Bartlett\'s seminal work on memory
and has been supported by numerous subsequent studies. See Bartlett,
supra note 111, at 47-185; Brewer & Nakamura, supra note 111, at 143.

[[\[FN268\]](#Document1zzFN_B268)]{.underline}. See Taylor & Crocker,
supra note 103, at 99. See also Fiske & Taylor, supra note 111, at 105
(\"\[People\] especially remember schema-relevant details more than
irrelevant details.\"); supra text accompanying notes 215-20 (discussing
the role of schema-relevant information on encoding).

[[\[FN269\]](#Document1zzFN_B269)]{.underline}. See Claudia E. Cohen,
Person Categories and Social Perception: Testing Some Boundaries of the
Processing Effects of Prior Knowledge, 40 J. Personality & Soc. Psychol.
441, 444-45 (1981).

[[\[FN270\]](#Document1zzFN_B270)]{.underline}. See id. at 445.

[[\[FN271\]](#Document1zzFN_B271)]{.underline}. See id. at 446-47.

[[\[FN272\]](#Document1zzFN_B272)]{.underline}. Mark Snyder & Seymour W.
Uranowitz, Reconstructing the Past: Some Cognitive Consequences of
Person Perception, 36 J. Personality & Soc. Psychol. 941 (1978).

[[\[FN273\]](#Document1zzFN_B273)]{.underline}. Id. at 949-50.

[[\[FN274\]](#Document1zzFN_B274)]{.underline}. Id.

[[\[FN275\]](#Document1zzFN_B275)]{.underline}. Brewer & Treyens, supra
note 161, at 207-30.

[[\[FN276\]](#Document1zzFN_B276)]{.underline}. See Hastie, supra note
111, at 39-88.

[[\[FN277\]](#Document1zzFN_B277)]{.underline}. See E. Tory Higgins &
John A. Bargh, Social Cognition and Social Perception, 38 Ann. Rev.
Psychol. 369, 379 (1987).

[[\[FN278\]](#Document1zzFN_B278)]{.underline}. Reid Hastie & Purohit
Anand Kumar, Person Memory: Personality Traits as Organizing Principles
in Memory for Behaviors, 37 J. Personality & Soc. Psychol. 25 (1979).

[[\[FN279\]](#Document1zzFN_B279)]{.underline}. See id. Subsequent
research has lent support to Hastie and Kumar\'s findings. See Charles
Stangor & David McMillan, Memory for Expectancy-Congruent and
Expectancy-Incongruent Information: A Review of the Social and
Social-Developmental Literatures, 111 Psychol. Bull. 42 (1992).

[[\[FN280\]](#Document1zzFN_B280)]{.underline}. See Hastie, supra note
111, at 75.

[[\[FN281\]](#Document1zzFN_B281)]{.underline}. Glenn D. Cordua, Kenneth
O. McGraw & Ronald S. Drabman, Doctor or Nurse: Children\'s Perception
of Sex Typed Occupations, 50 Child Dev. 590, 591 (1979).

[[\[FN282\]](#Document1zzFN_B282)]{.underline}. See Rand J. Spiro,
Remembering Information from Text: The \'State of Schema\' Approach, in
Schooling and the Acquisition of Knowledge, supra note 111, at 141,
141-50.

[[\[FN283\]](#Document1zzFN_B283)]{.underline}. See id. at 142.

[[\[FN284\]](#Document1zzFN_B284)]{.underline}. Id.

[[\[FN285\]](#Document1zzFN_B285)]{.underline}. The time allowed to
elapse varied between two days, three weeks, and six weeks.

[[\[FN286\]](#Document1zzFN_B286)]{.underline}. Spiro, supra note 282,
at 143.

[[\[FN287\]](#Document1zzFN_B287)]{.underline}. Id. at 150.

[[\[FN288\]](#Document1zzFN_B288)]{.underline}. See id.

[[\[FN289\]](#Document1zzFN_B289)]{.underline}. Schneider, supra note
110, at 52.

[[\[FN290\]](#Document1zzFN_B290)]{.underline}. See id.

[[\[FN291\]](#Document1zzFN_B291)]{.underline}. Henry L. Roediger III &
Kathleen B. McDermott, Creating False Memories: Remembering Words Not
Presented in Lists, 21 J. Experimental Psychol.: Learning, Memory &
Cognition 803, 807-08, 814 (1995).

[[\[FN292\]](#Document1zzFN_B292)]{.underline}. See id. at 808, 814.

[[\[FN293\]](#Document1zzFN_B293)]{.underline}. Roediger & McDermott
tested a number of lists, such as \"boy, dolls, female, young, dress,
pretty, hair, niece, dance, beautiful, cute, date, aunt, daughter,
sister\" (activating the word \"girl\"), and \"low, clouds, up, tall,
tower, jump, above, building, noon, cliff, sky, over, airplane, dive,
elevate\" (activating the word \"high\"). See id. at 814.

[[\[FN294\]](#Document1zzFN_B294)]{.underline}. Fiske & Taylor, supra
note 111, at 97.

[[\[FN295\]](#Document1zzFN_B295)]{.underline}. Kunda, supra note 111,
at 19. Kunda treats categories and schemas synonymously:

Psychologists have used many different terms to refer to concepts. Some
of these are general enough to refer to just about any concept. These
include mental representations, knowledge structures, and schemas. Some
contain specific assumptions about the nature of representation\....
These include prototypes and frames\.... Among social psychologists, the
single most popular term for mental representation has been schema.

Kunda, supra note 111, at 17.

[[\[FN296\]](#Document1zzFN_B296)]{.underline}. One question remains
regarding the effect of schemas on recall\--the question of source. As
mentioned, it is difficult to separate memory effects from encoding
research, to know whether the memory effect is a result of biases in
information acquisition or in retrieval. Research on the disentanglement
of attentional and retrieval biases remains mixed, with some research
suggesting that the schematic biases stem from the attention and
encoding functions, while other experiments appear to have pinpointed
the schematic biases as resulting from retrieval bias. Compare Myron
Rothbart, Mark Evans & Solomon Fulero, Recall for Confirming Events:
Memory Processes and the Maintenance of Social Stereotypes, 15 J.
Experimental Soc. Psychol. 343 (1979), and Zadny & Gerard, supra note
130, at 34, with Snyder & Uranowitz, supra note 272, at 941-50. Although
the differential effects seem unresolved, the evidence appears to
suggest that there is some effect on both encoding as well as retrieval,
perhaps depending on differences in a range of other variables. Indeed,
studies that have looked for both encoding and retrieval biases have
found both to exist, though generally finding that encoding biases are
stronger. See Taylor & Crocker, supra note 103, at 100.

[[\[FN297\]](#Document1zzFN_B297)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45, augmenting it with processes
from Rumelhart & Ortony, supra note 111, at 161- 88.

[[\[FN298\]](#Document1zzFN_B298)]{.underline}. See Leyens et al., supra
note 166, at 130-33.

[[\[FN299\]](#Document1zzFN_B299)]{.underline}. See supra figure
accompanying note 153.

[[\[FN300\]](#Document1zzFN_B300)]{.underline}. See Rumelhart, supra
note 215, at 181-82.

[[\[FN301\]](#Document1zzFN_B301)]{.underline}. For simplicity, we are
treating schema selection here as if it is a deliberate, conscious
process. In fact, it rarely is. In many instances schema activation and
application are both completely automatic. For a summary of the role of
automaticity in our cognitive processes, see Hanson & Yosifon, The
Situational Character, supra note 51. For a very brief description of
some of the other subtleties of schema application, see infra note 306.

[[\[FN302\]](#Document1zzFN_B302)]{.underline}. Rumelhart, supra note
215, at 180-81.

[[\[FN303\]](#Document1zzFN_B303)]{.underline}. Id.

[[\[FN304\]](#Document1zzFN_B304)]{.underline}. See id. See also David
E. Rumelhart & Donald A. Norman, Accretion, Tuning and Restructuring:
Three Modes of Learning, in Semantic Factors in Cognition 37, 47 (John
W. Cotton & Roberta L. Klatzky eds., 1978).

[[\[FN305\]](#Document1zzFN_B305)]{.underline}. See infra Part
II.C.2.a.iv.(g).

[[\[FN306\]](#Document1zzFN_B306)]{.underline}. The dynamic is more
complex than even that. The categories initially utilized reflect our
activated schemas and, in turn, influence the schemas that will be
activated in the future with respect to that object. A person can fall
into many categories, and familiar categorizations such as race, gender,
and age tend often to be the dimensions along which we categorize. This
tendency reflects the fact that, for reasons we will highlight in this
section, many of us operate with schemas activated that render these
dimensions relevant. See Michael A. Zarate & Eliot R. Smith, Person
Categorization and Stereotyping, 8 Soc. Cognition 161 (1990). Once an
individual has been categorized along such dimensions, however, other
traits that are not associated with those categories will more likely be
ignored and other schemas that might make those other traits relevant
will less likely be activated. As Denise Beike and Steven Sherman write,
\"Alternative categorizations of the same object can result in different
information being encoded and, therefore, being available for later
inference.\" Denise R. Beike & Steven J. Sherman, Social Inference:
Inductions, Deductions, and Analogies, 1 Handbook of Social Cognition
209, 269 (Robert S. Wyer & Thomas K. Srull eds., 1994). Thus, which
schemas are activated both reflects and determines our categorization
and our categorization, in turn, influences which schemas will later be
activated and the inferences that we draw from the underlying
information.

This provides another insight into how schemas will have indirect
effects on the very categorizations on which their use is dependent.
Because schemas are attached to categories, active schemas themselves
will help to determine which categories are most accessible, and
therefore which categories will have a greater likelihood of being
applied. While some researchers indicate that the process of
categorization must occur before the application of schemas, this does
not seem consistent with an understanding of schemas that includes an
ability to influence the encoding stage of information processing. If
schemas do help to guide our attention, as research indicates they do,
then the process of categorization cannot be independent of the schema
function; rather, the question of what things are categorized is one in
which schemas play an important role. Thus, while it may be true that
categorization is required before schemas are applied, the mere presence
of active schemas will help to determine which categories are ultimately
applied. Put differently, schemas and categories may be, like so many
things that our theorizing attempts to separate, mutually constitutive.

[[\[FN307\]](#Document1zzFN_B307)]{.underline}. Johnson, supra note 29.

[[\[FN308\]](#Document1zzFN_B308)]{.underline}. Victor Raskin, Semantic
Mechanisms of Humor 100 (1985).

[[\[FN309\]](#Document1zzFN_B309)]{.underline}. See id. at 105.

[[\[FN310\]](#Document1zzFN_B310)]{.underline}. Id.

[[\[FN311\]](#Document1zzFN_B311)]{.underline}. Interestingly, but
perhaps not surprisingly, research has found evidence that the
incongruity followed by resolution caused by shifts in schemas helps to
determine how funny a joke is. See, e.g., Frank W. Wicker, Irene M.
Thorelli, William L. Barron, III & Marguerite R. Ponder, Relationships
Among Affective and Cognitive Factors in Humor, 15 J. Res. Personality
359 (1981).

[[\[FN312\]](#Document1zzFN_B312)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45, augmenting it with processes
from Rumelhart, supra note 215, at 188, and also adding influences on
choice of schemas, the categorization process, the inference process,
and the retrieval process.

[[\[FN313\]](#Document1zzFN_B313)]{.underline}. As will become clear,
the effects of primacy may overlap considerably with priming effects,
which we discuss in the next section.

[[\[FN314\]](#Document1zzFN_B314)]{.underline}. Langer, supra note 147,
at 17.

[[\[FN315\]](#Document1zzFN_B315)]{.underline}. Robert S. Wyer, Jr. &
Donal E. Carlston, Social Cognition, Inference, and Attribution 39
(1979).

[[\[FN316\]](#Document1zzFN_B316)]{.underline}. Ellen J. Langer & Robert
P. Abelson, The Semantics of Asking a Favor: How to Succeed in Getting
Help Without Really Dying, 24 J. Personality & Soc. Psychol. 26, 27-28
(1972).

[[\[FN317\]](#Document1zzFN_B317)]{.underline}. Id. at 28.

[[\[FN318\]](#Document1zzFN_B318)]{.underline}. See id. It strikes us
that the success of the woman in the \"victim\" role may well have been
related to the stereotypical role of women as victims.

[[\[FN319\]](#Document1zzFN_B319)]{.underline}. See Fiske & Taylor,
supra note 111, at 248.

[[\[FN320\]](#Document1zzFN_B320)]{.underline}. Langer, supra note 147,
at 73.

[[\[FN321\]](#Document1zzFN_B321)]{.underline}. See Fiske & Taylor,
supra note 111, at 247-48.

[[\[FN322\]](#Document1zzFN_B322)]{.underline}. Kunda, supra note 111,
at 21.

[[\[FN323\]](#Document1zzFN_B323)]{.underline}. Id. at 22.

[[\[FN324\]](#Document1zzFN_B324)]{.underline}. See id.

[[\[FN325\]](#Document1zzFN_B325)]{.underline}. As long as we are
speculating about a fictional character, we think it is safe to assert
further that he would have seriously doubted her credentials as a
doctor.

[[\[FN326\]](#Document1zzFN_B326)]{.underline}. See Lingle et al., supra
note 226, at 104; Schneider, supra note 110, at 51 (citing Eliot R.
Smith, Content and Process Specificity in the Effects of Prior
Experiences, in 3 Advances in Social Cognition 1 (Thomas K. Srull &
Robert S. Wyer, Jr. eds., 1990)).

[[\[FN327\]](#Document1zzFN_B327)]{.underline}. Kunda, supra note 111,
at 22 (citing E. Tory Higgins, Knowledge Activation: Accessibility,
Applicability, & Salience, in Social Psychology: Handbook of Basic
Principles 133 (E. Tory Higgins & Arie W. Kruglanski eds., 1996)
\[hereinafter Social Psychology\]).

[[\[FN328\]](#Document1zzFN_B328)]{.underline}. See Wyer & Carlston,
supra note 315, at 40. See also E. Tory Higgins, William S. Rholes &
Carl R. Jones, Category Accessibility and Impression Formation, 13 J.
Experimental Soc. Psychol. 141 (1977) (providing one of the best known
demonstrations of this phenomenon).

[[\[FN329\]](#Document1zzFN_B329)]{.underline}. Kunda, supra note 111,
at 23. See generally Daniel T. Gilbert & J. Gregory Hixon, The Trouble
of Thinking: Activation and Application of Stereotypic Beliefs, 60 J.
Personality & Soc. Psychol. 509 (1991) (providing evidence that,
although priming can activate a schema, activation requires cognitive
resources and that, once a schema is activated, not applying the schema
requires cognitive resources).

[[\[FN330\]](#Document1zzFN_B330)]{.underline}. Kunda, supra note 111,
at 24.

[[\[FN331\]](#Document1zzFN_B331)]{.underline}. Id.

[[\[FN332\]](#Document1zzFN_B332)]{.underline}. Compare, e.g., Deborah
L. Rhode, Justice and Gender (1989), and Deborah L. Rhode, Speaking of
Sex: The Denial of Gender Inequity (1997), with Richard A. Epstein,
Forbidden Grounds: The Case Against Employment Discrimination Laws
(1995). Cf. Wittenbrink et al., In Search of Similarity, supra note 254
(providing evidence that social categorical knowledge includes
assumptions about how stereotypical group attributes are related to one
another); Wittenbrink et al., Structural Properties, supra note 254
(same).

[[\[FN333\]](#Document1zzFN_B333)]{.underline}. See Robert H. Frank,
Thomas Gilovich & Dennis T. Regan, Does Studying Economics Inhibit
Cooperation?, 7 J. Econ. Persp. 159 (1993). See generally Chen & Hanson,
supra note 90 (describing the influence and application of economic
scripts to policy).

[[\[FN334\]](#Document1zzFN_B334)]{.underline}. See Schneider, supra
note 110, at 51. Similarly, individuals in Eastern cultures are less
likely to make dispositionist attributions and more likely to make
situationist attributions. See Hanson & Yosifon, The Situation, supra
note 51, at 250-59.

[[\[FN335\]](#Document1zzFN_B335)]{.underline}. For a thorough review of
the burgeoning literature on the effects of affect, see generally David
Arkush & Jon Hanson, Situating Emotions (July 2004) (unpublished
manuscript, on file with authors).

[[\[FN336\]](#Document1zzFN_B336)]{.underline}. See Susan T. Fiske,
Schema-Triggered Affect: Applications to Social Perception, in Affect
and Cognition: The Seventeenth Annual Carnegie Symposium on Cognition
55, 56 (Margaret Sydnor Clark & Susan T. Fiske eds., 1982).

[[\[FN337\]](#Document1zzFN_B337)]{.underline}. See Crockett, supra note
248, at 39-45; Mark W. Baldwin, Relational Schema Activation: Does Bob
Zajonc Ever Scowl at You from the Back of Your Mind?, in Unraveling the
Complexities of Social Life: A Festschrift in Honor of Robert B. Zajonc
55, 55-70 (Deborah K. Apsley & John A. Bargh eds., 2001).

[[\[FN338\]](#Document1zzFN_B338)]{.underline}. Crockett, supra note
248, at 46-47.

[[\[FN339\]](#Document1zzFN_B339)]{.underline}. See id. at 46.

[[\[FN340\]](#Document1zzFN_B340)]{.underline}. See Ralph Erber,
Affective and Semantic Priming: Effects of Mood on Category
Accessibility and Inference, 27 J. Experimental Soc. Psychol. 480, 480
(1991).

[[\[FN341\]](#Document1zzFN_B341)]{.underline}. As Ziva Kunda explains,
\"motivation\... may influence which concepts, beliefs, and rules we
apply to a judgment; we may be especially likely to apply those that are
congruent with our goals.\" Kunda, supra note 111, at 211.

[[\[FN342\]](#Document1zzFN_B342)]{.underline}. See Fiske & Taylor,
supra note 111, at 178.

[[\[FN343\]](#Document1zzFN_B343)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51.

[[\[FN344\]](#Document1zzFN_B344)]{.underline}. Relatedly, it is
generally considered \"a sign of weakness to show or to admit to
inconsistency \[among beliefs or between beliefs and behavior\], and
people will often go to great lengths to justify apparent
inconsistencies.\" Fiske & Taylor, supra note 111, at 231.

[[\[FN345\]](#Document1zzFN_B345)]{.underline}. Fiske & Neuberg, supra
note 171, at 49. See Fiske & Taylor, supra note 111, at 157.

[[\[FN346\]](#Document1zzFN_B346)]{.underline}. See Fiske & Taylor,
supra note 111, at 157.

[[\[FN347\]](#Document1zzFN_B347)]{.underline}. See infra text
accompanying notes 374-454.

[[\[FN348\]](#Document1zzFN_B348)]{.underline}. For a far more detailed
rendition of this brief summary of the motive to self-affirm, see Hanson
& Yosifon, The Situational Character, supra note 51, at Part
III.C.2.b.i.

[[\[FN349\]](#Document1zzFN_B349)]{.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).

[[\[FN350\]](#Document1zzFN_B350)]{.underline}. See Fiske & Taylor,
supra note 111, at 80-81; Hanson & Yosifon, The Situational Character,
supra note 51, at Part III.C.2.b.ii.

[[\[FN351\]](#Document1zzFN_B351)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51, at Part III.C.2.b.iii. See,
e.g., Melvin J. Lerner, The Belief in a Just World: A Fundamental
Delusion 11-12 (1980); John T. Jost & Orsolya Hunyady, The Psychology of
System Justification and the Palliative Function of Ideology, 13 Eur.
Rev. Soc. Psychol. 111, 114 (2002); Melvin J. Lerner & Dale T. Miller,
Just World Research and the Attribution Process: Looking Back and Ahead,
85 Psychol. Bull. 1030, 1030 (1978).

[[\[FN352\]](#Document1zzFN_B352)]{.underline}. See John Duckitt,
Psychology and Prejudice, A Historical Analysis and Integrative
Framework, 47 Am. Psychologist 1182, 1188-89 (1992); Henri Tajfel & John
C. Turner, The Social Identity Theory of Intergroup Behavior, in The
Psychology of Intergroup Relations 7, 11 (Stephan Worchel & William G.
Austin eds., 2d ed. 1986).

[[\[FN353\]](#Document1zzFN_B353)]{.underline}. See, e.g., Steven Fein &
Steven J. Spencer, Prejudice as Self-Image Maintenance: Affirming the
Self Through Derogating Others, 73 J. Personality & Soc. Psychol. 31, 31
(1997); Jost & Hunyady, supra note 351, at 18-20. For a summary of the
literatures on this topic, see Hanson & Yosifon, The Situational
Character, supra note 51, at Part III.C.2.b.

[[\[FN354\]](#Document1zzFN_B354)]{.underline}. Jennifer S. Lerner &
Philip E. Tetlock, Accounting for the Effects of Accountability, 125
Psychol. Bull. No. 2, 255 (1999). See also Jon D. Hanson & Douglas A.
Kysar, The Joint Failure of Economic Theory and Legal Regulation, in
Smoking: Risk, Perception, and Policy 229, 237-39 (Paul Slovic ed.,
2001) (discussing the accountability motive and the ways in which
cigarette manufacturers manipulated that motive through marketing).

[[\[FN355\]](#Document1zzFN_B355)]{.underline}. Lerner & Tetlock, supra
note 354, at 256.

[[\[FN356\]](#Document1zzFN_B356)]{.underline}. Id. at 257. See Phillip
E. Tetlock, Linda Skitka & Richard Boettger, Social and Cognitive
Strategies for Coping with Accountability: Conformity, Complexity, and
Bolstering, 57 J. Personality & Soc. Psychol. 632 (1989).

[[\[FN357\]](#Document1zzFN_B357)]{.underline}. See Leyens et al., supra
note 166, at 134.

[[\[FN358\]](#Document1zzFN_B358)]{.underline}. See id. at 135-37.

[[\[FN359\]](#Document1zzFN_B359)]{.underline}. Id. at 136.

[[\[FN360\]](#Document1zzFN_B360)]{.underline}. See id. at 136-37;
Phillip E. Tetlock & Jae Il Kim, Accountability and Judgment Processes
in a Personality Prediction Task, 52 J. Personality & Soc. Psychol. 700,
700 (1987).

[[\[FN361\]](#Document1zzFN_B361)]{.underline}. This is a brief summary
of the seminal research in S.E. Asch, Effects of Group Pressure Upon the
Modification and Distortion of Judgements, in Groups, Leadership and Men
177 (Harold Guetzkow ed., 1963). See also Rod Bond & Peter Smith,
Culture and Conformity: A Meta-Analysis of Studies Using Asch\'s (1952b,
1956) Line Judgment Task, 119 Psychol. Bull. 111 (1996) (summarizing the
hundreds of studies based on Asch\'s original).

[[\[FN362\]](#Document1zzFN_B362)]{.underline}. See Asch, supra note
361, at 178.

[[\[FN363\]](#Document1zzFN_B363)]{.underline}. See id. at 178-79.

[[\[FN364\]](#Document1zzFN_B364)]{.underline}. Ziva Kunda, The Case for
Motivated Reasoning, 108 Psychol. Bull. 480, 482-83 (1990).

[[\[FN365\]](#Document1zzFN_B365)]{.underline}. See David O. Sears &
Carolyn L. Funk, The Role of Self-Interest in Social and Political
Attitudes, in 24 Advances in Experimental Social Psychology 1, 1 (1991).

[[\[FN366\]](#Document1zzFN_B366)]{.underline}. See Augoustinos &
Walker, supra note 114, at 270; Jonathon Potter & Margaret Wetherell,
Discourse and Social Psychology: Beyond Attitudes and Behavior 50-52
(1987).

[[\[FN367\]](#Document1zzFN_B367)]{.underline}. Augoustinos & Walker,
supra note 114, at 270.

[[\[FN368\]](#Document1zzFN_B368)]{.underline}. It is also true that
individuals and groups who enjoy less power, wealth, influence, or other
positional privileges tend to adopt schemas that serve their
advancement. It is worth highlighting that those individuals will be
disadvantaged in attempting to convince others of the appropriateness of
their schemas. This is true for several reasons. First, existing schemas
are already skewed in ways that advantage the relatively privileged. See
generally Chen & Hanson, supra note 90 (describing the effects of the
dominant metascript of policy analysis and macroscript of corporate
law); Hanson & Yosifon, The Situation, supra note 51 (describing the
ubiquity and effects of dispositionism and introducing the dynamics of
power economics and deep capture); Hanson & Yosifon The Situational
Character, supra note 51 (describing the ubiquity and effects of
dispositionism); Ronald Chen, Client Primacy and Shareholder Primacy:
The Invisible Hand of Corporate Law and the Ethics of Corporate
Counselors (Working Paper 2004, on file with author) (examining the way
in which the macroscript of corporate law has influenced dominant
critiques of the legal ethics macroscript as it is applied to corporate
counselors); Ronald Chen, The Illusion of Ethics: The Legitimating
Schemas of the Legal Profession (Working Paper 2004, on file with
author) (examining the way in which the competition to influence our
categories, schemas, and broader situation has shaped the legal
profession\'s approach to and understanding of legal ethics). Second,
relatively powerful and advantaged persons exercise the most influence
over those institutions with the greatest ability to alter or maintain
schemas. See Hanson & Yosifon, The Situation, supra note 51 (providing
evidence of deep capture); Jon Hanson & Brandon Hofmeister, Situational
Entrepreneurialism: The Mechanisms of Deep Capture (unpublished work in
progress, on file with authors) (describing strategies, tactics, and
levels of deep capture). And, third, even those who are disadvantaged
under existing arrangements have a strong motive to legitimate existing
systems. That system-legitimacy motive commonly leads the less powerful,
less wealthy, and otherwise less endowed, to embrace the schemas and
stereotypes that make sense of their position. See, e.g., Benforado,
Hanson & Yosifon, Broken Scales, supra note 254, at Parts V-VI
(describing the influence of dispositionist stereotyping to \"make
sense\" of the obesity epidemic).

[[\[FN369\]](#Document1zzFN_B369)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 51, at 308-28 (describing this phenomenon in
the antebellum South).

[[\[FN370\]](#Document1zzFN_B370)]{.underline}. See supra text
accompanying note 68.

[[\[FN371\]](#Document1zzFN_B371)]{.underline}. This dynamic is depicted
powerfully in films like Ethnic Notions and The Celluloid Closet.

[[\[FN372\]](#Document1zzFN_B372)]{.underline}. For an analysis of the
role of such motivated schemas in the obesity debate, see Benforado,
Hanson & Yosifon, Broken Scales, supra note 254. For a similar analysis
of its role in the debates about tort reform and political correctness,
see Benforado & Hanson, Naïve Cynicism, supra note 254.

[[\[FN373\]](#Document1zzFN_B373)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51, at Part III.C.2.d.i. See
generally Benforado & Hanson, Naïve Cynicism, supra note 254
(considering the effect on policy debates of the tendency to see bias in
others but not in ourselves).

[[\[FN374\]](#Document1zzFN_B374)]{.underline}. See, e.g., Arie W.
Kruglanski, Lay Epistemics and Human Knowledge 69-72 (1989); Donna M.
Webster & Arie W. Kruglanski, Individual Differences in Need for
Cognitive Closure, 67 J. Personality & Soc. Psychol. 1049, 1050 (1994).

[[\[FN375\]](#Document1zzFN_B375)]{.underline}. Fiske & Taylor, supra
note 111, at 164.

[[\[FN376\]](#Document1zzFN_B376)]{.underline}. Leyens et al., supra
note 166, at 134.

[[\[FN377\]](#Document1zzFN_B377)]{.underline}. See Mark Fineman, The
Nature of Visual Illusion 26 (1996); Drake R. Bradley & Heywood M.
Petry, Organizational Determinants of Subjective Contour: The Subjective
Necker Cube, 90 Am. J. Psychol. 253, 255 (1977).

[[\[FN378\]](#Document1zzFN_B378)]{.underline}. This figure is available
at http:// mathworld.wolfram.com/KanizsaTriangle.html (last visited
Sept. 20, 2004).

[[\[FN379\]](#Document1zzFN_B379)]{.underline}. Ehrenstein\'s Optical
Illusion is similar in effect:

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

The circles that appear at the crossings do not exist. This illusion is
available at The Grid Illusion of Spot 06, http://
www.blelb.com/english/blelbsopts/sopt06/exsopt06_en.htm (last visited
Sept. 21, 2004).

[[\[FN380\]](#Document1zzFN_B380)]{.underline}. This is an adaptation of
Poggendorf\'s Illusion and is available at Image Gallery #5,
http://eyetricks.com/0501.htm (last visited Sept. 21, 2004).

[[\[FN381\]](#Document1zzFN_B381)]{.underline}. This illusion is
available at Image Gallery #5, http:// www.eyetricks.com/0507.htm (last
visited Sept. 21, 2004). This is an adaptation of the \"Ponzo
Illusion,\" available at http://
mathworld.wolfram.com/PonzoIllusion.html (last visited Sept., 2004).

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

In this basic illusion, the horizontal line at the top (\"a\") is seen
as longer than the horizontal line at the bottom (\"b\").

[[\[FN382\]](#Document1zzFN_B382)]{.underline}. This illusion is
available at http://
mathworld.wolfram.com/ScintillatingGridIllusion.html (last visited Sept.
21, 2004).

[[\[FN383\]](#Document1zzFN_B383)]{.underline}. For a summary of
numerous experiments demonstrating this \"fundamental attribution
error\" or \"correspondence bias,\" see Hanson & Yosifon, The Situation,
supra note 51, at 158-59, 167-74, 253-59.

[[\[FN384\]](#Document1zzFN_B384)]{.underline}. For example, subjects
were told that they would be able to watch a more enjoyable videotape to
motivate them to reach closure. See Donna M. Webster, Motivated
Augmentation and Reduction of the Overattribution Bias, 65 J.
Personality & Soc. Psych. 261 (1993).

[[\[FN385\]](#Document1zzFN_B385)]{.underline}. See, e.g., Michael
Koller & Robert A. Wicklund, Press and Task Difficulty as Determinants
of Preoccupation with Person Descriptors, 24 J. Experimental Soc.
Psychol. 256 (1988).

[[\[FN386\]](#Document1zzFN_B386)]{.underline}. In a subsequent article,
we describe the various ways in which economists and legal economists
treat closure as one of the primary goals and benefits of their
approach. See Chen & Hanson, supra note 86. Likewise, policymakers
prefer policy theorists who can generate clear, concrete answers, even
among economists. So it was that President Truman once pleaded, \"Give
me a one-handed economist.\" Thus, although it may be at times laughable
to \"assume a can opener,\" it is often precisely what is desired. The
tendency is by no means limited to economists. Cf. Richard H. Fallon,
Jr., [[Should We All Be Welfare Economists?, 101 Mich. L. Rev. 979, 1007
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&ReferencePositionType=S&SerialNum=0294502738&ReferencePosition=1007)]{.underline}
(citing Daryl J. Levinson, [[Framing Transactions in Constitutional Law,
111 Yale L.J. 1311
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&SerialNum=0288348337)]{.underline})
(\"\[N\]early all legal analysis\... operates under framing constraints,
with many contingent elements of the social, economic, and legal
structure implicitly accepted as given.\").

[[\[FN387\]](#Document1zzFN_B387)]{.underline}. We want to protect our
schemas because they make our cognitive life simpler, but we also want
to protect our schemas because they are motivated by all of our other
motives. Thus, in this section, when we discuss the mechanisms to
protect our schemas, it is important to notice that the motive behind
the use of those mechanisms is to be found in all of our motives. For
that reason, we refer to the motive to protect our schemas as a
metamotive.

[[\[FN388\]](#Document1zzFN_B388)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51, at Part III.C.2.b.i
(describing the illusion of control).

[[\[FN389\]](#Document1zzFN_B389)]{.underline}. See Jon D. Hanson &
Douglas A. Kysar, [[Taking Behavioralism Seriously: The Problem of
Market Manipulation, 74 N.Y.U. L. Rev. 630, 647-50
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0111853405&ReferencePosition=647)]{.underline}.

[[\[FN390\]](#Document1zzFN_B390)]{.underline}. See id.

[[\[FN391\]](#Document1zzFN_B391)]{.underline}. Both of these phenomena
support the validation phase, discussed below. See infra text
accompanying notes 402-03. For examples of the confirmation bias in
legal-theoretic literatures, see Hanson & Yosifon, The Situational
Character, supra note 51.

[[\[FN392\]](#Document1zzFN_B392)]{.underline}. Augoustinos & Walker,
supra note 114, at 53.

[[\[FN393\]](#Document1zzFN_B393)]{.underline}. See Dieter Frey,
Selective Exposure to Information: A Review of Recent Research, in 19
Advances in Experimental Social Psychology 41, 41 (Leonard Berkowitz
ed., 1986).

[[\[FN394\]](#Document1zzFN_B394)]{.underline}. See supra text
accompanying notes 53-54.

[[\[FN395\]](#Document1zzFN_B395)]{.underline}. See Peter H. Ditto &
David F. Lopez, Motivated Skepticism: Use of Differential Decision
Criteria for Preferred and Nonpreferred Conclusions, 63 J. Personality &
Soc. Psychol. 568, 569 (1992).

[[\[FN396\]](#Document1zzFN_B396)]{.underline}. Kunda, supra note 111,
at 211.

[[\[FN397\]](#Document1zzFN_B397)]{.underline}. See supra text
accompanying notes 387-91 (describing the conformation bias).

[[\[FN398\]](#Document1zzFN_B398)]{.underline}. See Marilyn B. Brewer, A
Dual Process Model of Impression Formation, in 1 Advances in Social
Cognition 1, 25-26 (Thomsas K. Srull & Robert S. Wyer, Jr. eds., 1988).

[[\[FN399\]](#Document1zzFN_B399)]{.underline}. Kunda, supra note 111,
at 229.

[[\[FN400\]](#Document1zzFN_B400)]{.underline}. Id. at 225. Kunda goes
on to note that \"although motivation can bias our judgments, it does
not blind us to reality. Because we feel compelled to be rational, we
will only draw our desired conclusions if we can justify them.\" Id.

[[\[FN401\]](#Document1zzFN_B401)]{.underline}. Id. at 230.

[[\[FN402\]](#Document1zzFN_B402)]{.underline}. See supra text
accompanying notes 275-88.

[[\[FN403\]](#Document1zzFN_B403)]{.underline}. Fiske & Taylor, supra
note 111, at 129-30.

[[\[FN404\]](#Document1zzFN_B404)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51 (describing the many ways that
our interior situation leaves us vulnerable to manipulation).

[[\[FN405\]](#Document1zzFN_B405)]{.underline}. See generally John A.
Bargh & Tanya L. Chartrand, The Unbearable Automaticity of Being, 54 Am.
Psychologist 462, 466-68 (1999) (describing the process by which
automaticity of stereotypes and other cognitive processes occurs and its
effects).

[[\[FN406\]](#Document1zzFN_B406)]{.underline}. See Kunda, supra note
111, at 463.

[[\[FN407\]](#Document1zzFN_B407)]{.underline}. Eliot R. Smith, Mental
Representation and Memory, in 1 The Handbook of Social Psychology 391,
403 (Daniel T. Gilbert et al. eds., 4th ed. 1998).

[[\[FN408\]](#Document1zzFN_B408)]{.underline}. See Ziva Kunda, Dale T.
Miller & Theresa Claire, Combining Social Concepts: The Role of Causal
Reasoning, 14 Cognitive Sci. 551, 574-75 (1990).

[[\[FN409\]](#Document1zzFN_B409)]{.underline}. Kunda, supra note 111,
at 40. The subjects were specifically asked to reconcile the seemingly
inconsistent notions.

[[\[FN410\]](#Document1zzFN_B410)]{.underline}. Id.

[[\[FN411\]](#Document1zzFN_B411)]{.underline}. See supra text
accompanying notes 281-93.

[[\[FN412\]](#Document1zzFN_B412)]{.underline}. See supra Figure 17.

[[\[FN413\]](#Document1zzFN_B413)]{.underline}. Accounts suggest that
Columbus possessed a strong schema-protection motive. See Samuel Eliot
Morison, Admiral of the Ocean Sea 91 (1942). Samuel Morison writes of
Columbus\'s optimistic nautical calculations: \"Of course \[his\]
calculation \[was\] not logical, but Columbus\'s mind was not logical.
He knew he could make it, and the figures had to fit.\" Id. See also id.
at 122-23 (describing how Columbus \"eagerly picked up\" statements
about the narrowness of the ocean and that he \"grasp\[ed\] at every bit
of \'evidence\' as to an excessive length of Asia\").

[[\[FN414\]](#Document1zzFN_B414)]{.underline}. Morison explains that
Marco Polo\'s story \"was the foundation of Columbus\'s ideas regarding
the accessibility of Asia\....\" Id. at 94.

[[\[FN415\]](#Document1zzFN_B415)]{.underline}. Id. at 137.

[[\[FN416\]](#Document1zzFN_B416)]{.underline}. See generally Glyn
Williams, Voyages of Delusion: The Quest for the Northwest Passage
(2003) (recounting the quest for a route through or around the
Americas).

[[\[FN417\]](#Document1zzFN_B417)]{.underline}. H. Andrew Sagar & Janet
Ward Schofield, Racial and Behavioral Cues in Black and White
Children\'s Perceptions of Ambiguously Aggressive Acts, 39 J.
Personality & Soc. Psychol. 590, 593-97 (1980).

[[\[FN418\]](#Document1zzFN_B418)]{.underline}. Id.

[[\[FN419\]](#Document1zzFN_B419)]{.underline}. David Dunning & David A.
Sherman, Stereotypes and Tacit Inference, 73 J. Personality & Soc.
Psychol. 459 (1997).

[[\[FN420\]](#Document1zzFN_B420)]{.underline}. Id. at 468.

[[\[FN421\]](#Document1zzFN_B421)]{.underline}. See David Dunning,
Judith A. Meyerowitz & Amy D. Holzberg, Ambiguity and Self-Evaluation:
The Role of Idiosyncratic Trait Definitions in Self-Serving Assessments
of Ability, 57 J. Personality & Soc. Psychol. 1082, 1084 (1989).

[[\[FN422\]](#Document1zzFN_B422)]{.underline}. Id.

[[\[FN423\]](#Document1zzFN_B423)]{.underline}. See Jason Dana, Roberto
A. Weber & Jason Xi Kuang, Exploiting Moral Wriggle 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. See also
Douglas A. Kysar, Preferences for Processes: The Process/Product
Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev.
(forthcoming 2005) (examining the implications of this evidence for
consumer-choice regulation).

[[\[FN424\]](#Document1zzFN_B424)]{.underline}. See Hanson & Kysar,
supra note 389, at 648.

[[\[FN425\]](#Document1zzFN_B425)]{.underline}. See Christopher K. Hsee,
Elastic Justification: How Tempting but Task-Irrelevant Factors
Influence Decisions, 62 J. Org. Behav. & Hum. Decision Processes 330,
330 (1995). See also Hanson & Kysar, supra note 389, at 677-78
(summarizing \"elastic justification\" in greater detail).

[[\[FN426\]](#Document1zzFN_B426)]{.underline}. See Hsee, supra note
425, at 330-31.

[[\[FN427\]](#Document1zzFN_B427)]{.underline}. See id.

[[\[FN428\]](#Document1zzFN_B428)]{.underline}. See John M. Darley &
Paget H. Gross, A Hypothesis-Confirming Bias in Labeling Effects, 44 J.
Personality & Soc. Psychol. 20, 20 (1983); David L. Hamilton & Terrence
L. Rose, Illusory Correlation and the Maintenance of Stereotypic
Beliefs, 39 J. Personality & Soc. Psychol. 832, 839 (1980).

[[\[FN429\]](#Document1zzFN_B429)]{.underline}. See Kay Deaux & Laurie
L. Lewis, Structure of Gender Stereotypes: Interrelationships Among
Components and Gender Label, 46 J. Personality & Soc. Psychol. 991,
1002-1003 (1984); Hamilton & Rose, supra note 428, at 842; Anne
Locksley, Eugene Borgida, Nancy Brekke, & Christine Hepburn, Sex
Stereotypes and Social Judgment, 39 J. Personality & Soc. Psychol. 821,
821 (1980); Melvin Manis, Thomas E. Nelson & Jonathan Shedler,
Stereotypes and Social Judgment: Extremity, Assimilation, and Contrast,
55 J. Personality & Soc. Psychol. 28, 128(1988).

[[\[FN430\]](#Document1zzFN_B430)]{.underline}. Peter M. Gollwitzer &
Gordon B. Moskowitz, Goal Effects on Action and Cognition, in Social
Psychology, supra note 327, at 361, 385.

[[\[FN431\]](#Document1zzFN_B431)]{.underline}. Id.

[[\[FN432\]](#Document1zzFN_B432)]{.underline}. Kunda, supra note 111,
at 224. See also Kunda, supra note 364, at 482-83 (\"\[P\]eople
motivated to arrive at a particular conclusion attempt to be rational
and to construct a justification of their desired conclusion\... only if
they can muster up the evidence necessary to support it.\").

[[\[FN433\]](#Document1zzFN_B433)]{.underline}. Of course, it is
possible to disregard the evidence by attributing it to some
untrustworthy supernatural force. Attributing dinosaur bones to \"Satan
and his devilish desire to fool us into disbelieving creationism\" is
one such example:

\[N\]o matter how much these other sources might awe us with such tales,
I feel that we should regard them with high suspicion as the deceptive
voices of Satan and his cohorts. Remember too that the actual age of
these \"discoveries\" is based on highly questionable scientific
techniques such as carbon-14 dating which has a record of producing
conflicting ages. The more I read this stuff & compare it with
Scripture, the more I become convinced that it is all part of the Grand
Deception.

The Dinosaur Dilemma and Modern Science, at
http://www.endtimeprophecy.net/\~
tttbbs/EPN-1/Articles/Articles-Scie/dinosr1.html (last visited Sept. 21,
2004).

[[\[FN434\]](#Document1zzFN_B434)]{.underline}. See Morison, supra note
413, at 63 (\"In matters of the Christian religion, without doubt
\[Columbus\] was a Catholic and of great devotion; for in everything he
did and said or sought to begin, he always interposed \'In the name of
the Holy trinity I will do this,\' or \'launch this\' or \'this will
come to pass.\"\').

[[\[FN435\]](#Document1zzFN_B435)]{.underline}. [[Bradwell v. Illinois,
83 U.S. 130, 141
(1872)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1872196969&ReferencePosition=141)]{.underline}.

[[\[FN436\]](#Document1zzFN_B436)]{.underline}. [[Id. at
141-42](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1872196969)]{.underline}
(emphases added).

[[\[FN437\]](#Document1zzFN_B437)]{.underline}. See Reneé Weber &
Jennifer Crocker, Cognitive Processes in the Revision of Stereotypic
Beliefs, 45 J. Personality & Soc. Psychol. 961, 967- 968 (1983).

[[\[FN438\]](#Document1zzFN_B438)]{.underline}. See id. at 969-73.

[[\[FN439\]](#Document1zzFN_B439)]{.underline}. See id. at 961.

[[\[FN440\]](#Document1zzFN_B440)]{.underline}. Miles Hewstone, Nicholas
Hopkins & David A. Routh, Cognitive Models of Stereotype Change: (1)
Generalization and Subtyping in Young People\'s Views of the Police, 22
Eur. J. Soc. Psychol. 219, 219 (1992). See also Miles Hewstone, Lucy
Johnston & Peter Aird, Cognitive Models of Stereotype Change: (2)
Perceptions of Homogeneous and Heterogeneous Groups, 22 Eur. J. Soc.
Psychol. 235 (1992).

[[\[FN441\]](#Document1zzFN_B441)]{.underline}. Kunda, supra note 111,
at 386.

[[\[FN442\]](#Document1zzFN_B442)]{.underline}. Additional studies
indicate that subtyping is more successful when schemas are expected to
be highly heterogeneous. When individuals working with a schema that
predicts homogeneity are faced with disconfirming information, subtyping
is a less successful defense of the overall schema. See Lucy Johnston &
Miles Hewstone, Cognitive Models of Stereotype Change: (3) Subtyping and
the Perceived Typicality of Disconfirming Group Members, 28 J.
Experimental Soc. Psychol. 360, 360 (1992).

[[\[FN443\]](#Document1zzFN_B443)]{.underline}. See Patricia J.
Williams, The Alchemy of Race and Rights 125-30 (1991). There is an
extensive literature on how narratives, stories, and language are used
to shape our understanding of the world\--a literature that in many ways
resonates with what social psychologists have learned about the
influence of schemas and metaphors. See, e.g., Kimberlé Crenshaw,
[[Toward a Race Conscious Pedagogy, 4 S. Cal. Rev. L. & Women\'s Stud.
33
(1994)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=103881&FindType=Y&SerialNum=0105888645)]{.underline}
(discussing the importance of incorporating competing perspectives in
legal discourse); Richard Delgado, [[Storytelling for Oppositionists and
Others: A Plea for Narrative, 87 Mich. L. Rev. 2411
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&SerialNum=0102032303)]{.underline}
(encouraging the use of story-telling by outgroups to challenge
stereotypes). See generally Stanley Fish, Is There a Text in This Class?
The Authority of Interpretive Communities (1980) (discussing how
perspective can color one\'s interpretation of a text); Ruthann Robson,
Sappho Goes to Law School: Fragments in Lesbian Legal Theory (1998)
(discussing the dominant male heterosexual narrative of the law and the
production of lesbian/queer counternarratives); Williams, supra
(discussing the existence of racist myths and stereotypes in dominant
narratives of the law).

[[\[FN444\]](#Document1zzFN_B444)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 51, at 175-76 (summarizing the self-fulfilling
effects of fundamental attribution error, and how the assumption that
personality is the driving force creates a situational pressure for
personalities to be consistent and to drive behavior).

[[\[FN445\]](#Document1zzFN_B445)]{.underline}. See Robert Rosenthal &
Lenore Jacobsen, Pygmalion in the Classroom: Teacher Expectation and
Pupils\' Intellectual Development 65-71 (1968).

[[\[FN446\]](#Document1zzFN_B446)]{.underline}. See id. at 65.

[[\[FN447\]](#Document1zzFN_B447)]{.underline}. See id. at 66.

[[\[FN448\]](#Document1zzFN_B448)]{.underline}. See id. at 74.

[[\[FN449\]](#Document1zzFN_B449)]{.underline}. See Mark Snyder &
William B. Swann Jr., Hypothesis-Testing in Social Interaction, 36 J.
Personality & Soc. Psychol. 1202 (1978).

[[\[FN450\]](#Document1zzFN_B450)]{.underline}. See id. at 1205.

[[\[FN451\]](#Document1zzFN_B451)]{.underline}. See id. at 1207-08.

[[\[FN452\]](#Document1zzFN_B452)]{.underline}. See id. at 1208.

[[\[FN453\]](#Document1zzFN_B453)]{.underline}. Kunda, supra note 111,
at 116 (discussing Snyder & Swann\'s experiment).

[[\[FN454\]](#Document1zzFN_B454)]{.underline}. See Snyder & Swann,
supra note 449, at 1202.

[[\[FN455\]](#Document1zzFN_B455)]{.underline}. See Kunda, supra note
111, at 323. We can personally attest to a similar effect brought on by
the stereotype of aggressive Boston drivers.

[[\[FN456\]](#Document1zzFN_B456)]{.underline}. See Carl O. Word, Mark
P. Zanna & Joel Cooper, The Nonverbal Mediation of Self-Fulfilling
Prophecies in Interracial Interaction, 10 J. Experimental Soc. Psychol.
109, 109 (1974).

[[\[FN457\]](#Document1zzFN_B457)]{.underline}. Scott Plous, The
Psychology of Judgment and Decision Making 238 (1993) (discussing the
results of Word, Zanna, and Cooper\'s experiment).

[[\[FN458\]](#Document1zzFN_B458)]{.underline}. See id. See generally
Interview with Claude Steele, Stanford University, at http://
www.pbs.org/wgbh/pages/frontline/shows/sats/interviews/steele.html (last
visited Sept. 21, 2004) \[hereinafter Interview with Claude Steele\]
(describing \"the idea that students who belong to groups that have been
negatively stereotyped are likely to perform less well \[on\]\...
standardized tests in which they feel they are being evaluated through
the lens of that stereotype\").

[[\[FN459\]](#Document1zzFN_B459)]{.underline}. See Claude M. Steele &
Joshua Aronson, Stereotype Threat and the Intellectual Test Performance
of African Americans, 69 J. Personality & Soc. Psychol. 797 (1995);
Claude M. Steele, Stereotyping and Its Threat Are Real, 53 Am.
Psychologist 680, 680-81 (1998); Claude M. Steele, A Threat in the Air:
How Stereotypes Shape Intellectual Identity and Performance, 52 Am.
Psychologist 613 (1997) \[hereinafter A Threat in the Air\].

[[\[FN460\]](#Document1zzFN_B460)]{.underline}. Interview with Claude
Steele, supra note 458.

[[\[FN461\]](#Document1zzFN_B461)]{.underline}. See Steele & Aronson,
supra note 459, at 797.

[[\[FN462\]](#Document1zzFN_B462)]{.underline}. Id.

[[\[FN463\]](#Document1zzFN_B463)]{.underline}. Id.

[[\[FN464\]](#Document1zzFN_B464)]{.underline}. Kunda, supra note 111,
at 376 (describing Steele and Aronson\'s results).

[[\[FN465\]](#Document1zzFN_B465)]{.underline}. Id. at 323.

[[\[FN466\]](#Document1zzFN_B466)]{.underline}. Carol Hymowitz &
Michaele Weissman, A History of Women in America 66 (1978).

[[\[FN467\]](#Document1zzFN_B467)]{.underline}. See Barbara Welter, The
Cult of True Womanhood: 1820-1860, 18 Am. Q. 151, 151-52 (1966) (arguing
that the four attributes of piety, purity, submission, and domesticity
defined the \"true woman\" in the nineteenth century).

[[\[FN468\]](#Document1zzFN_B468)]{.underline}. See supra text
accompanying notes 55-57. Women whose conduct did not comport with these
emerging schemas were subtyped as \"fallen,\" a category of deviance
that, in both theory and practice, reinforced the general category
\"woman.\" See also Hymowitz & Weissman, supra note 466, at 66 (\"Women
who were obviously strong or brave were seen as deviant and maladjusted
to their \'natural sphere.\"\').

[[\[FN469\]](#Document1zzFN_B469)]{.underline}. See supra text
accompanying notes 50-60.

[[\[FN470\]](#Document1zzFN_B470)]{.underline}. Hymowitz & Weissman,
supra note 466, at 76-77 (quoting Wollstonecraft, supra note 50).

[[\[FN471\]](#Document1zzFN_B471)]{.underline}. See, e.g., Carol
Gilligan, In a Different Voice: Psychological Theory and Women\'s
Development 6 (1993).

[[\[FN472\]](#Document1zzFN_B472)]{.underline}. Cf. An Ethic of Care:
Feminist and Interdisciplinary Perspectives (Thinking Gender) (Mary
Jeanne Larrabee ed., 1992) (containing essays criticizing and debating
Carol Gilligan\'s work).

[[\[FN473\]](#Document1zzFN_B473)]{.underline}. For an example of
fascinating recent research on how people attempt\--subconciously\--to
cope with stereotype threat through various forms of 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).

[[\[FN474\]](#Document1zzFN_B474)]{.underline}. See Chen & Hanson, supra
note 86 (describing the significance and distorting influence of the pie
metaphor).

[[\[FN475\]](#Document1zzFN_B475)]{.underline}. Minow, supra note 242,
at 4.

[[\[FN476\]](#Document1zzFN_B476)]{.underline}. Id. The same might be
said of the elusive, but celebrated \"stay-at-home dad.\"

[[\[FN477\]](#Document1zzFN_B477)]{.underline}. Robert Jay Lifton, The
Nazi Doctors: Medical Killing and the Psychology of Genocide 16 (1986).

[[\[FN478\]](#Document1zzFN_B478)]{.underline}. Id.

[[\[FN479\]](#Document1zzFN_B479)]{.underline}. Robert Proctor, Racial
Hygiene: Medicine under the Nazis 195 (1988).

[[\[FN480\]](#Document1zzFN_B480)]{.underline}. James M. Glass, Life
Unworthy of Life: Racial Phobia and Mass Murder in Hitler\'s Germany 83
(1997).

[[\[FN481\]](#Document1zzFN_B481)]{.underline}. Of course, wars of all
types have a way of transforming language. Today, expressions like
\"preemptive strike,\" \"smart bombs,\" \"surgical air strikes,\"
\"coalition forces,\" \"casualties,\" \"regime change,\" \"liberation,\"
\"shock and awe,\" on one hand and \"irregulars,\" \"death squads,\"
\"suicide bombers,\" and \"weapons of mass destruction\" on the other
are all part of a shared \"war against terrorism\" nomenclature being
promoted by the U.S. military. (We have yet to hear the expression
\"collateral damage,\" an expression widely used during the first Gulf
War. We suspect that this is true because of the very strong negative
associations that people have with the phrase following Timothy
McVeigh\'s use of it to describe the deaths of those he killed in the
Oklahoma City bombing.) The same can be said of the Iraqi military,
which used terms like \"infidels,\" \"jihad,\" \"martyrdom,\" \"land of
Islam,\" \"invaders,\" \"occupiers,\" and \"murderers.\" The language is
not neutral, even if those who use it and those who hear it may often
perceive it as neutral. The language silently paints a picture and
creates and activates schemas that are themselves largely unseen.
Indeed, it may be our inability to see those schemas that helps provide
the appearance of neutral processing; people \"call \'em like they see
\'em\" unaware that what they see is heavily influenced by what they do
not see.

[[\[FN482\]](#Document1zzFN_B482)]{.underline}. See Hymowitz & Weissman,
supra note 466, at 76.

[[\[FN483\]](#Document1zzFN_B483)]{.underline}. See Ellen Carol DuBois,
Introduction to Elizabeth Cady Stanton, supra note 59, at 1, 12-13.

[[\[FN484\]](#Document1zzFN_B484)]{.underline}. 1 History of Woman
Suffrage 68 (Elizabeth Cady Stanton et al. eds., Source Book Press 1970)
(1889).

[[\[FN485\]](#Document1zzFN_B485)]{.underline}. Id. at 70.

[[\[FN486\]](#Document1zzFN_B486)]{.underline}. Id. at 116.

[[\[FN487\]](#Document1zzFN_B487)]{.underline}. For example, Frederick
Douglass began a famous speech thus:

Fellow Citizens: Pardon me, and allow me to ask, why am I called to
speak here today? What have I or those I represent to do with your
national independence? Are the great principles of political freedom and
natural justice, embodied in that Declaration of Independence, extended
to us?\... Your high independence only reveals the immeasurable distance
between us\.... What to the American slave is your Fourth of July? I
answer, a day that reveals to him more than all other days of the year,
the gross injustice and cruelty to which he is the constant victim.

Frederick Douglass, What to the American Slave Is Your Fourth of July,
Address in Rochester, New York (July 4, 1852), http://
douglassarchives.org/doug_al0.htm (last visited Sept. 25, 2004). Martin
Luther King focused on the same theme:

\[W\]e have come to our nation\'s capital to cash a check. When the
architects of our republic wrote the magnificent words of the
Constitution and the Declaration of Independence, they were signing a
promissory note to which every American was to fall heir. This note was
a promise that all men would be guaranteed the inalienable rights of
life, liberty and the pursuit of happiness. It is obvious today that
America has defaulted on this promissory note insofar as her citizens of
color are concerned.

Martin Luther King, Jr., I Have a Dream, Address at the Lincoln
Memorial, Washington D.C. (August 28, 1963), http://
www.americanrhetoric.com/speeches/Ihaveadream.htm (last visited Sept.
25, 2004).

[[\[FN488\]](#Document1zzFN_B488)]{.underline}. See George Lakoff & Mark
Johnson, Metaphors We Live By 10 (1980) ( \"\[A\] metaphorical concept
can keep us from focusing on\... aspects of the concept that are
inconsistent with that metaphor.\"). Jith Meganathan has recently
completed a superb (critical realist) summary of the cognitive
linguistics research on metaphors with a special focus on the
research\'s relevance for judicial opinions.We have benefited from his
helpful and accessible analysis.See Jith Meganathan, Judges as Political
Actors: Cognitive Linguistic Evidence (Apr. 20, 2004) (unpublished
manuscript, on file with author).

[[\[FN489\]](#Document1zzFN_B489)]{.underline}. See id.

[[\[FN490\]](#Document1zzFN_B490)]{.underline}. See id. at 4.

[[\[FN491\]](#Document1zzFN_B491)]{.underline}. Id. at 10.

[[\[FN492\]](#Document1zzFN_B492)]{.underline}. Id. at 156.

[[\[FN493\]](#Document1zzFN_B493)]{.underline}. We have adapted this
figure from Hastie, supra note 111, at 45, augmenting it with processes
from Fiske & Neuberg, supra note 171, at 5, Rumelhart, supra note 215,
at 188, and Rumelhart & Ortony, supra note 111, at 161-88. We also added
influences on choice of schemas, the categorization process, the
inference process, and the retrieval process.

[[\[FN494\]](#Document1zzFN_B494)]{.underline}. Kunda, supra note 111,
at 212.

[[\[FN495\]](#Document1zzFN_B495)]{.underline}. Taylor & Crocker, supra
note 103, at 125 (citing Arthur S. Elstein, Lee S. Shulman & Sarah A.
Sprafka, Medical Problem Solving: An Analysis of Clinical Reasoning
(1978)).

[[\[FN496\]](#Document1zzFN_B496)]{.underline}. Id. at 125 (citing James
H. Davis, Craig E. Spitzer, Dennis Nagao & Garold Stasser, Bias in
Social Decisions by Individuals and Groups: An Example from Mock Juries,
in Dynamics of Group Decisions 33, 41 (Herman Brandstätter et al. eds.,
1978)).

[[\[FN497\]](#Document1zzFN_B497)]{.underline}. Id. (citing Thomas S.
Kuhn, The Structure of Scientific Revolutions (1970)).

[[\[FN498\]](#Document1zzFN_B498)]{.underline}. Id. (citing Irving L.
Janis, Victims of Groupthink (1972); Irving L. Janis & Leon Mann,
Decision Making (1977)).

[[\[FN499\]](#Document1zzFN_B499)]{.underline}. To be sure, there are
some excellent summaries of the literature on schemas, but those
summaries turn out to be narrower than ours is in several ways. Some
summaries focus solely on the categorization function, or,
alternatively, on the schema application function. Those that focus on
schemas rarely attempt to integrate the broad range of research on
factors that influence our schemas (for example, motivation and affect)
in a way that presents a comprehensive and workable framework. Those
that do attempt to address topics such as motivation in the context of
schemas often provide only cursory treatment. None offers a broad
framework designed to facilitate further application in legal
scholarship.

[[\[FN500\]](#Document1zzFN_B500)]{.underline}. The critical realism
perspective is concerned, too, with understanding the external
structural forces that contribute to our knowledge structures. See,
e.g., Chen & Hanson, supra note 90; Hanson & Yosifon, The Situation,
supra note 51.

[[\[FN501\]](#Document1zzFN_B501)]{.underline}. A Westlaw search for
\"Schemas & Scripts & Psychology\" in the \"Journals and Law Reviews
Combined\" database found seventy-two articles (on April 4, 2003 and
eighty-nine articles on August 30, 2004).

[[\[FN502\]](#Document1zzFN_B502)]{.underline}. See, e.g., Chamallas,
supra note 184; Stuart P. Green, [[Prototype Theory and the
Classification of Offenses in a Revised Model Penal Code: A General
Approach to the Special Part, 4 Buff. Crim. L. Rev. 301, 303
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=115161&FindType=Y&ReferencePositionType=S&SerialNum=0283209791&ReferencePosition=303)]{.underline}
(applying the prototype theory of categorization to criminal law);
Rebecca Hanner White & Linda Hamilton Krieger, [[Whose Motive Matters?:
Discrimination in Multi-Actor Employment Decisionmaking, 61 La. L. Rev.
495, 538
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1181&FindType=Y&ReferencePositionType=S&SerialNum=0285660879&ReferencePosition=538)]{.underline}
(drawing upon stereotype research to criticize a requirement of
\"conscious intent\" in disparate treatment cases); Beverly Horsburgh,
The [[Voices of Silence: Cognition, Culture, and Racism, 34 U.S.F. L.
Rev. 497, 506-09
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3108&FindType=Y&ReferencePositionType=S&SerialNum=0118916353&ReferencePosition=506)]{.underline}
(applying stereotype research to racism); Ann Hubbard, [[Understanding
and Implementing the ADA\'s Direct Threat Defense, 95 Nw. U. L. Rev.
1279, 1282
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&ReferencePositionType=S&SerialNum=0287256044&ReferencePosition=1282)]{.underline};
Cass R. Sunstein, Daniel Kahneman, David Schkade & Ilana Ritov,
[[Predictably Incoherent Judgments, 54 Stan. L. Rev. 1153, 1154- 55
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0290565471&ReferencePosition=1154)]{.underline}
(identifying the tendency of individuals to think within categories when
setting penalties) (\"\[I\]n law, as in ordinary life, people\'s
thinking is category-bound. People do not easily cross the boundaries of
categories of harms in their thinking.\").

[[\[FN503\]](#Document1zzFN_B503)]{.underline}. See, e.g., Gregory S.
Alexander, [[A Cognitive Theory of Fiduciary Relationships, 85 Cornell
L. Rev. 767, 769, 776-78
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1111&FindType=Y&ReferencePositionType=S&SerialNum=0115776156&ReferencePosition=769)]{.underline}
(providing a brief summary of role schemas and applying the research to
courts\' interpretations of fiduciary duties); Mark Cammack, In [[Search
of the Post-Positivist Jury, 70 Ind. L. J. 405, 484
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1167&FindType=Y&SerialNum=0105040498)]{.underline}
(criticizing the assumption underlying jury selection rules that \"there
exists a universal perspective from which the true nature of reality can
be discerned,\" as undermined by research on schemas); Krieger, supra
note 186, at 1161; Albert J. Moore, [[Trial by Schema: Cognitive Filters
in the Courtroom, 37 UCLA L. Rev. 273
(1989)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3041&FindType=Y&SerialNum=0102874274)]{.underline}
(drawing upon schema research to understand the way jurors process
information).

One notable exception is Anthony Amsterdam and Jerome Bruner\'s analysis
of the categorization process in judicial decisionmaking. Amsterdam and
Bruner provide an outstanding overview of the research on categorization
and analyze the categorization moves in several Supreme Court opinions.
See Anthony G. Amsterdam & Jerome Bruner, Minding the Law (2000).

[[\[FN504\]](#Document1zzFN_B504)]{.underline}. Not surprisingly, for
example, Linda Hamilton Krieger\'s excellent work on categories in
discrimination law has been applied in over 100 articles in the
discrimination context with little recognition that the psychological
findings on which her arguments rest are equally illuminating in other
arenas.

[[\[FN505\]](#Document1zzFN_B505)]{.underline}. Krieger, supra note 186,
at 1165.

[[\[FN506\]](#Document1zzFN_B506)]{.underline}. Id. at 1167.

[[\[FN507\]](#Document1zzFN_B507)]{.underline}. Id. at 1188.

[[\[FN508\]](#Document1zzFN_B508)]{.underline}. See supra text
accompanying notes Part II.C.1.a.i.(b) and Part II.C.1.a.iv.

[[\[FN509\]](#Document1zzFN_B509)]{.underline}. Krieger, supra note 186,
at 1186-88.

[[\[FN510\]](#Document1zzFN_B510)]{.underline}. The disparate treatment
theory, established in [[McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1973126392)]{.underline},
requires proof not only of less favorable treatment but also that
\"superiors purposefully, deliberately, and intentionally treated him
differently because of his national origin.\" Krieger, supra note 186,
at 1163.

[[\[FN511\]](#Document1zzFN_B511)]{.underline}. Krieger notes that
courts have, strangely enough, distinguished age discrimination from
racial discrimination. The court in [[Syvock v. Milwaukee Boiler
Manufacturing. Co., 665 F.2d 149 (7th Cir.
1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&SerialNum=1981149106)]{.underline},
held that

\[u\]nlike race discrimination, age discrimination may simply arise from
an unconscious application of stereotyped notions of ability rather than
from a deliberate desire to remove older employees from the workforce:
\"Age discrimination is not the same as the insidious discrimination
based on race or creed prejudices and bigotry. Those discriminations
result in nonemployment because of feelings about a person entirely
unrelated to his ability to do a job. This is hardly a problem for the
older jobseeker. Discrimination arises for him because of assumptions
that are made about the effects of age on performance.\"

Id. at 155 (quoting 113 Cong. Rec. 34,742 (1967) (statement of Rep.
Burke)). See Krieger, supra note 186, at 1169.

[[\[FN512\]](#Document1zzFN_B512)]{.underline}. We would add to
Krieger\'s excellent analysis the more recent insights of social
cognition theorists who have shown that automatic stereotypes may exist,
as \"implicit attitudes,\" even among those who are consciously and
attitudinally committed to rejecting those stereotypes. See Hanson &
Yosifon, The Situational Character, supra note 51, at Part III.C.1.c
(reviewing the literature on implicit attitudes); infra text
accompanying notes 559-70. As critical realism would have it, Krieger\'s
illustration of the law\'s too-narrow focus on dispositionist intent
under Title VII is one symptom of a far larger problem that plagues our
entire legal system. See Hanson & Yosifon, The Situation, supra note 51,
at 285-303; Benforado, Hanson & Yosifon, Broken Scales, supra note 254,
at Part VII.

[[\[FN513\]](#Document1zzFN_B513)]{.underline}. See Chamallas, supra
note 184, at 778-800.

[[\[FN514\]](#Document1zzFN_B514)]{.underline}. See id. at 782-83.

[[\[FN515\]](#Document1zzFN_B515)]{.underline}. See id. at 791-92.

[[\[FN516\]](#Document1zzFN_B516)]{.underline}. See id. at 793-95.

[[\[FN517\]](#Document1zzFN_B517)]{.underline}. See id. at 795-801.

[[\[FN518\]](#Document1zzFN_B518)]{.underline}. Id. at 780.

[[\[FN519\]](#Document1zzFN_B519)]{.underline}. Id.

[[\[FN520\]](#Document1zzFN_B520)]{.underline}. Id. at 781.

[[\[FN521\]](#Document1zzFN_B521)]{.underline}. Id. at 782.

[[\[FN522\]](#Document1zzFN_B522)]{.underline}. See also Gordon W.
Allport, The Nature of Prejudice 17 (1954) (recognizing that
stereotyping is functionally similar to categorization); W. Edgar
Vinacke, Stereotypes As Social Concepts, 46 J. Soc. Psychol. 229, 230
(1957) (stereotypes should be understood as cognitive structures no
different from other categorization-related constructs).

[[\[FN523\]](#Document1zzFN_B523)]{.underline}. Edward H. Levi, An
Introduction to Legal Reasoning 3 (1948).

[[\[FN524\]](#Document1zzFN_B524)]{.underline}. See supra text
accompanying notes 212-14.

[[\[FN525\]](#Document1zzFN_B525)]{.underline}. Steven J. Burton, An
Introduction to Law and Legal Reasoning 141 (2d ed. 1995).

[[\[FN526\]](#Document1zzFN_B526)]{.underline}. Minow, supra note 242,
at 1.

[[\[FN527\]](#Document1zzFN_B527)]{.underline}. Amsterdam & Bruner,
supra note 503, at 8-9.

[[\[FN528\]](#Document1zzFN_B528)]{.underline}. Phoebe Ellsworth, Legal
Reasoning, in The Cambridge Handbook of Thinking and Reasoning
(forthcoming Apr. 2005) (manuscript on file with author).

[[\[FN529\]](#Document1zzFN_B529)]{.underline}. We say \"slightly more
explicit\" because, although her description and analysis is clearly
that of a social psychologist operating under the schemas of
\"schemas,\" she does not employ the terms \"knowledge structures,\"
\"schemas,\" and so forth.

[[\[FN530\]](#Document1zzFN_B530)]{.underline}. Ellsworth, supra note
528 (manuscript at 6).

[[\[FN531\]](#Document1zzFN_B531)]{.underline}. See id. (manuscript at
9).

[[\[FN532\]](#Document1zzFN_B532)]{.underline}. Id. (manuscript at 2-3).

[[\[FN533\]](#Document1zzFN_B533)]{.underline}. Id. (manuscript at 6).

[[\[FN534\]](#Document1zzFN_B534)]{.underline}. Thus, Justice Cardozo,
in an unusually frank and introspective moment, admitted \"\'any judge,
one might suppose, would find it easy to describe the process which he
had followed a thousand times and more. Nothing could be farther from
the truth.\"\' Id. (manuscript at 2) (quoting Benjamin N. Cardozo, The
Nature of the Judicial Process 9 (1921)).

[[\[FN535\]](#Document1zzFN_B535)]{.underline}. Id. (manuscript at 3).

[[\[FN536\]](#Document1zzFN_B536)]{.underline}. Id. (manuscript at 7)
(quoting Thomas C. Grey, [[Langdell\'s Orthodoxy, 45 U. Pitt. L. Rev. 1,
11
(1983)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1269&FindType=Y&ReferencePositionType=S&SerialNum=0102791651&ReferencePosition=11)]{.underline}).

[[\[FN537\]](#Document1zzFN_B537)]{.underline}. See supra Part
II.C.1.a.i.(a).

[[\[FN538\]](#Document1zzFN_B538)]{.underline}. See supra Part
II.C.1.a.i.(b).

[[\[FN539\]](#Document1zzFN_B539)]{.underline}. Ellsworth, supra note
528 (manuscript at 9-10) (quoting Oliver Wendell Holmes, The Theory of
Torts, 7 Am. L. Rev. 652, 652 (1873)).

[[\[FN540\]](#Document1zzFN_B540)]{.underline}. See Ellsworth, supra
note 528 (manuscript at 16-20).

[[\[FN541\]](#Document1zzFN_B541)]{.underline}. Id. (manuscript at 16).

[[\[FN542\]](#Document1zzFN_B542)]{.underline}. See supra Part
II.C.1.a.i.(c).

[[\[FN543\]](#Document1zzFN_B543)]{.underline}. See Ellsworth, supra
note 528 (manuscript at 10). See also id. (manuscript at 10-11)
(offering a possible explanation for the endurance of formalism).

[[\[FN544\]](#Document1zzFN_B544)]{.underline}. Id. (manuscript at 10)
(quoting Dan Simon, [[A Psychological Model of Judicial Decision Making,
30 Rutgers L.J. 1, 11
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1226&FindType=Y&ReferencePositionType=S&SerialNum=0110784246&ReferencePosition=11)]{.underline}).
Furthermore, even among legal theorists, the role of hard-and-fast
categories has been revitalized through law and economics, which
Ellsworth characterizes as a new type of formalism employing categories
that are treated as meaningful, clear, and natural. Id. (manuscript at
10).

[[\[FN545\]](#Document1zzFN_B545)]{.underline}. See id. (manuscript at
10-11).

[[\[FN546\]](#Document1zzFN_B546)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 51, at 309-12 (describing some of the
slavery-legitimating knowledge structures promoted through law and
custom in the antebellum South).

[[\[FN547\]](#Document1zzFN_B547)]{.underline}. Fiske & Neuberg, supra
note 171, at 13-22. While some social psychologists have distinguished
between theory-driven, top-down, or conceptually-driven cognitive
processing as compared to bottom-up or data-driven processing, schemas
likely play a critical and constant role in virtually all of our
information processing. Social cognition, Crockett explains, \"involves
a continuous mixture of bottom-up and top-down processing.\" Crockett,
supra note 248, at 36. While data-driven processes are such that stimuli
will trigger the application of appropriate schemas, the subsequent
activation of schemas will have familiar effects. The schemas that are
triggered will be used to form expectations about the stimuli or related
stimuli and thus encourage a cognitive search for particular types of
information\--therefore increasing the likelihood that the individual
will register the schema-relevant information and ignore the irrelevant
information. See id.

[[\[FN548\]](#Document1zzFN_B548)]{.underline}. Augoustinos & Walker,
supra note 114, at 47.

[[\[FN549\]](#Document1zzFN_B549)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51, at Part II.A.1. and Part
III.E.1.

[[\[FN550\]](#Document1zzFN_B550)]{.underline}. See supra text
accompanying notes 154-56.

[[\[FN551\]](#Document1zzFN_B551)]{.underline}. See Galen V. Bodenhausen
& Meryl Lichtenstein, Social Stereotypes and Information-Processing
Strategies: The Impact of Task Complexity, 52 J. of Personality & Soc.
Psychol. 871 (1987).

[[\[FN552\]](#Document1zzFN_B552)]{.underline}. This necessary condition
may imply another: that the schema in question is activated. If not
activated, then even evidence that is relevant may not be attended to.

[[\[FN553\]](#Document1zzFN_B553)]{.underline}. See supra Part
II.C.1.a.iii.

[[\[FN554\]](#Document1zzFN_B554)]{.underline}. The point here is not
that consistent information is as cognitively simple to process as
irrelevant information. After all, the consistent information can often
be valuable to the person seeking support for a schema and thus some
cognitive energy will often be spent in attending to and encoding that
helpful evidence. This, we suspect, helps explain the evidence that
people tend to recall consistent, relevant information. See supra text
accompanying notes 268-76. The point in the text is that consistent
information, unlike inconsistent information, does not tend to cause us
to question the schema in a way that might partially counteract any
biasing effect of the underlying schema.

[[\[FN555\]](#Document1zzFN_B555)]{.underline}. Fiske & Taylor, supra
note 111, at 129.

[[\[FN556\]](#Document1zzFN_B556)]{.underline}. See Crockett, supra note
248, at 36. Ulric Neisser has termed this feedback (between relevant,
inconsistent information and our schemas) the \"perceptual cycle.\"
Neisser, supra note 218, at 20-24. In this section, we are assuming that
inconsistent information is unambiguously and unignorably inconsistent
with a person\'s schema. As we will describe below, a person can, and
often will, treat inconsistent information as consistent or irrelevant
inasmuch as that evidence is ambiguous or ignorable. See supra Part
II.C.2.a.iv.(g). Relatedly, as we have already seen, people are capable
of remembering inconsistent information as consistent. See supra text
accompanying notes 281-90.

[[\[FN557\]](#Document1zzFN_B557)]{.underline}. See, e.g., supra Part
II.C.2.a.iv.(a)-.(g) and Part II.C.2.a.iv. (g)(iii.) (discussing
confirmatory bias, ambiguity, and the role of motivation in our
selection of schemas and interpretation of evidence).

[[\[FN558\]](#Document1zzFN_B558)]{.underline}. One way in which
individuals respond to inconsistent information is to alter the active
schema, to activate another schema, or to create a new schema. That
process is described in greater detail above. See supra text
accompanying notes 298-304.

[[\[FN559\]](#Document1zzFN_B559)]{.underline}. See Kunda, supra note
111, at 317-18.

[[\[FN560\]](#Document1zzFN_B560)]{.underline}. See id. at 320-22.

[[\[FN561\]](#Document1zzFN_B561)]{.underline}. See id. at 326-27;
Hanson & Yosifon, The Situational Character, supra 51 note, at Part
III.C.1.c (summarizing evidence of \"implicit attitudes\").

[[\[FN562\]](#Document1zzFN_B562)]{.underline}. See Kunda, supra note
111, at 326 (citing Patricia G. Devine, Stereotypes and Prejudice: Their
Automatic and Controlled Components, 56 J. Personality & Soc. Psychol. 5
(1989)).

[[\[FN563\]](#Document1zzFN_B563)]{.underline}. Beike & Sherman, supra
note 306, at 257. On the other hand, some research suggests that these
individual characteristics can also be primed\--for example, by
reemphasizing individual information after the categorization process
occurs\--to increase the likelihood of data-driven processes. See Donal
E. Carlston & John J. Skowronski, Trait Memory and Behavior Memory: The
Effects of Alternative Pathways on Impression Judgment Response Times,
50 J. Personality & Soc. Psychol. 5 (1986).

[[\[FN564\]](#Document1zzFN_B564)]{.underline}. See Kunda, supra note
111, at 327.

[[\[FN565\]](#Document1zzFN_B565)]{.underline}. See Devine, supra note
562, at 5.

[[\[FN566\]](#Document1zzFN_B566)]{.underline}. See Beike & Sherman,
supra note 306, at 271-72.

[[\[FN567\]](#Document1zzFN_B567)]{.underline}. Their project Web site,
Project Implicit, is found at https://
implicit.harvard.edu/implicit/research (last visited Sept. 21, 2004).
For a bibliography of the dozens of articles based on their research,
see http:// implicit.harvard.edu/implicit/demo/bibliography.html (last
visited Sept. 21, 2004).

[[\[FN568\]](#Document1zzFN_B568)]{.underline}. Mahzarin R. Banaji,
Ordinary Prejudice, 14 Psychol. Sci. Agenda, Am. Psychol. Ass\'n 8, 10
(2001).

[[\[FN569\]](#Document1zzFN_B569)]{.underline}. Mahzarin R. Banaji,
Implicit Attitudes Can Be Measured, in The Nature of Remembering: Essays
in Honor of Robert G. Crowder 117, 118 (Henry L. Roediger, III et al.
eds., 2001).

[[\[FN570\]](#Document1zzFN_B570)]{.underline}. See Banaji, supra note
568, at 9-10.

[[\[FN571\]](#Document1zzFN_B571)]{.underline}. See Plous, supra note
457, at 239.

[[\[FN572\]](#Document1zzFN_B572)]{.underline}. See id. This is an
attempt to counter directly the biases described earlier in which
individuals tend to seek confirming evidence, thus resulting in
self-fulfilling schemas. See, e.g., Kunda, supra note 111, at 323- 25,
442-43; supra Part II.C.2.a.iv.(g)(v.).

[[\[FN573\]](#Document1zzFN_B573)]{.underline}. See, e.g., Plous, supra
note 457, at 239 (citing J. Edward Russo & Paul J.H. Schoemaker,
Decision Traps: Ten Barriers to Brilliant Decision Making and How to
Overcome Them 103-04 (1989)) (describing the example of a company
president who actively tries to gather disconfirming evidence before
drawing conclusions).

[[\[FN574\]](#Document1zzFN_B574)]{.underline}. See id. at 240 (citing
Asher Koriat, Sarah Lichtenstein & Barich Fischhoff, Reasons for
Confidence, 6 J. Experimental Psychol.: Human Learning & Memory 107
(1980)); Charles G. Lord, Mark R. Lepper & Elizabeth Preston,
Considering the Opposite: A Corrective Strategy for Social Judgment, 47
J. Personality & Soc. Psych. 1231 (1984).

[[\[FN575\]](#Document1zzFN_B575)]{.underline}. See Mark Snyder, Bruce
H. Campbell & Elizabeth Preston, Testing Hypotheses About Human Nature:
Assessing the Accuracy of Social Stereotypes, 1 Soc. Cognition 256
(1982).

[[\[FN576\]](#Document1zzFN_B576)]{.underline}. See Lerner & Tetlock,
supra note 354 (describing preemptive self-criticism as \"more
self-critical, integratively complex ways in which \[individuals\]
consider multiple perspectives on the issue and try to anticipate the
objections\" that others might raise).

[[\[FN577\]](#Document1zzFN_B577)]{.underline}. See supra Part
II.C.2.a.iv.(c). See also Hanson & Kysar, supra note 354, at 237-39
(summarizing Tetlock\'s research).

[[\[FN578\]](#Document1zzFN_B578)]{.underline}. See Thomas Gilovich, How
We Know What Isn\'t So: The Fallibility of Human Reason in Everyday Life
186 (1991).

[[\[FN579\]](#Document1zzFN_B579)]{.underline}. Id. at 187.

[[\[FN580\]](#Document1zzFN_B580)]{.underline}. Id.

[[\[FN581\]](#Document1zzFN_B581)]{.underline}. Id.

[[\[FN582\]](#Document1zzFN_B582)]{.underline}. Id. at 188. See also
Fiske & Taylor, supra note 111, at 151 (\"Perseverance can be undercut
in at least a couple of ways: by asking people to consider the opposite
possible perspective or outcome\....\"); Plous has noted a common theme
to debiasing:

Many of the most effective debiasing techniques involve the
consideration of alternative perspectives\... For instance,
overconfidence is usually reduced by considering why answers might be
wrong. Hindsight biases can be reduced or eliminated by considering
reasons why a different outcome might have occurred. Framing effects are
minimized when the same problem is framed in multiple ways. Groupthink
can be avoided by having one member of the group play the role of
devil\'s advocate. Actor-observer differences in attribution can be
reversed by having actors and observers swap visual orientations. In all
of these cases, \'considering the opposite\' leads to greater accuracy
in judgment.

Plous, supra note 457, at 256.

[[\[FN583\]](#Document1zzFN_B583)]{.underline}. Gollwitzer & Moskowitz,
supra note 430, at 385. See also id. at 388 (describing other corrective
mechanisms).

[[\[FN584\]](#Document1zzFN_B584)]{.underline}. See Langer, supra note
147, at 61-79.

[[\[FN585\]](#Document1zzFN_B585)]{.underline}. Id. at 11.

[[\[FN586\]](#Document1zzFN_B586)]{.underline}. Id. at 61-79.

[[\[FN587\]](#Document1zzFN_B587)]{.underline}. See id.

[[\[FN588\]](#Document1zzFN_B588)]{.underline}. Still, even the most
sophisticated dogs will require training. Plous describes an experiment
in which two psychologists recorded a discussion between members of the
Cambridge Psychological Society. When asked to recall the contents of
their discussion two weeks later, \"respondents typically omitted more
than 90 percent of the specific points that had been discussed\" and
\"of the points that were recalled, nearly half were substantially
incorrect. Respondents remembered comments that were never made, they
transformed casual remarks into lengthy orations, and they converted
implicit meanings into explicit comments.\" Plous, supra note 457, at
37. Plous notes that \"\[e\]ven the most sophisticated decision maker is
susceptible to biases in memory.\" See id.

[[\[FN589\]](#Document1zzFN_B589)]{.underline}. The condition that a
person be aware of her own knowledge structures and of the biasing
effect of those knowledge structures is likely to be rarely satisfied
because knowledge structures are part of the mostly hidden interior
situation. See Hanson & Yosifon, The Situational Character, supra note
51. When individuals or institutions are unaware of the biasing
influence of their knowledge structures or assume themselves to be
operating according to neutral collections and construals of available
evidence, then there is good reason to doubt that they have made any
significant attempt to debias themselves\--even assuming it were an easy
process. Indeed, such people will likely take offense at the very
possibility that they lack objective neutrality in interpreting their
worlds. See generally Benforado & Hanson, supra note 254 (describing
that general tendency and providing evidence of it in several
contracts).

[[\[FN590\]](#Document1zzFN_B590)]{.underline}. Elizabeth Cady Stanton,
Address to the Legislature of New York on Women\'s Rights (Feb. 14,
1854), in Elizabeth Cady Stanton, supra note 59, at 45, 50.

[[\[FN591\]](#Document1zzFN_B591)]{.underline}. Id.

[[\[FN592\]](#Document1zzFN_B592)]{.underline}. Id. at 47.

[[\[FN593\]](#Document1zzFN_B593)]{.underline}. See supra Part
II.C.2.a.iv.(e)-.(f).

[[\[FN594\]](#Document1zzFN_B594)]{.underline}. For example, Kuhnian
insights about the nature of scientific evolution and revolutions map
closely to social psychology\'s insights about the dynamics of knowledge
structures. Hanson & Yosifon, The Situational Character, supra note 51,
at Part III.B.3.b.

[[\[FN595\]](#Document1zzFN_B595)]{.underline}. See supra text
accompanying notes 490-91 (discussing the use of the war metaphor).

[[\[FN596\]](#Document1zzFN_B596)]{.underline}. See supra Part II.C.1.

[[\[FN597\]](#Document1zzFN_B597)]{.underline}. See supra Part
II.C.1.a.iii.

[[\[FN598\]](#Document1zzFN_B598)]{.underline}. See supra Part
II.C.1.a.i.(b).

[[\[FN599\]](#Document1zzFN_B599)]{.underline}. See supra Part
II.C.1.a.i.

[[\[FN600\]](#Document1zzFN_B600)]{.underline}. See supra Part
II.C.1.a.iii and Part II.C.1.b.

[[\[FN601\]](#Document1zzFN_B601)]{.underline}. See supra Part
II.C.1.a.iii, Part II.C.1.c, and Part II.C.2.a.

[[\[FN602\]](#Document1zzFN_B602)]{.underline}. See supra Part
II.C.2.a.iv.(f).

[[\[FN603\]](#Document1zzFN_B603)]{.underline}. See supra Part
II.C.1.a.iv.

[[\[FN604\]](#Document1zzFN_B604)]{.underline}. See supra Part I.A.3-.4
and text accompanying notes 239-41.

[[\[FN605\]](#Document1zzFN_B605)]{.underline}. See supra text
accompanying notes 247-49.

[[\[FN606\]](#Document1zzFN_B606)]{.underline}. See supra text
accompanying notes 247-54.

[[\[FN607\]](#Document1zzFN_B607)]{.underline}. See supra Part
II.C.2.a.iv.(g)(i.)-(v.).

[[\[FN608\]](#Document1zzFN_B608)]{.underline}. See supra text
accompanying notes 255-56.

[[\[FN609\]](#Document1zzFN_B609)]{.underline}. See supra text
accompanying note 258.

[[\[FN610\]](#Document1zzFN_B610)]{.underline}. See supra Part
II.C.2.a-.b.

[[\[FN611\]](#Document1zzFN_B611)]{.underline}. See supra Part II.C.2.b.

[[\[FN612\]](#Document1zzFN_B612)]{.underline}. See supra Part
II.C.2.a.iv.(f) and Part III.B.

[[\[FN613\]](#Document1zzFN_B613)]{.underline}. See supra Part
II.C.2.a.iii.

[[\[FN614\]](#Document1zzFN_B614)]{.underline}. See supra Part
II.C.2.a.iv.(g)(i.)-(iv.).

[[\[FN615\]](#Document1zzFN_B615)]{.underline}. See supra Part
II.C.2.a.iv.(g)(iv.).

[[\[FN616\]](#Document1zzFN_B616)]{.underline}. See supra text
accompanying notes 444-54.

[[\[FN617\]](#Document1zzFN_B617)]{.underline}. See supra text
accompanying notes 413-27.

[[\[FN618\]](#Document1zzFN_B618)]{.underline}. See supra Part
II.C.2.a.iv.(g)(i.).

[[\[FN619\]](#Document1zzFN_B619)]{.underline}. See supra Part
II.C.2.a.iv.(g)(iv.)-(v.).

[[\[FN620\]](#Document1zzFN_B620)]{.underline}. See supra Part III.B.1.

[[\[FN621\]](#Document1zzFN_B621)]{.underline}. The assertions and brief
arguments made in this section are defended and more fully developed in
a number of our other pieces. See, e.g., Benforado, Hanson & Yosifon,
Broken Scales, supra note 254; Hanson & Yosifon, The Situation, supra
note 51; Hanson & Yosifon, The Situational Character, supra note 51;
Benforado & Hanson, Naïve Cynicism, supra note 254.

[[\[FN622\]](#Document1zzFN_B622)]{.underline}. See supra text
accompanying notes 105-07.

[[\[FN623\]](#Document1zzFN_B623)]{.underline}. See Chen & Hanson, supra
note 86; Chen & Hanson, supra note 90; Ronald Chen & Jon Hanson,
Theorizing Illusion: Some Laws Behind Our Laws (Working Paper 2004, on
file with authors).

[[\[FN624\]](#Document1zzFN_B624)]{.underline}. The dispositionist
presumption that we highlighted above is less a metatheoretic insight
and more a pretheoretic axiom in most theories. See Hanson & Yosifon,
The Situational Character, supra note 51, at Part I and Part V. Many of
the insights of dominant legal theories are built upon the
dispositionist foundation.

[[\[FN625\]](#Document1zzFN_B625)]{.underline}. Chen & Hanson, supra
note 623.

[[\[FN626\]](#Document1zzFN_B626)]{.underline}. See, e.g., Louis Kaplow
& Steven Shavell, [[Why the Legal System is Less Efficient than the
Income Tax in Redistributing Income, 23 J. Legal Stud. 667, 669
(1994)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1458&FindType=Y&ReferencePositionType=S&SerialNum=0104444718&ReferencePosition=669)]{.underline};
Duncan Kennedy, Law-and-Economics from the Perspective of Critical Legal
Studies, in New Palgrave Dictionary of Economics and the Law 465, 470-71
(Peter Newman ed., 1998) (identifying the distribution versus efficiency
debate as one of the most significant debates of the twentieth century).

[[\[FN627\]](#Document1zzFN_B627)]{.underline}. Chen & Hanson, supra
note 86.

[[\[FN628\]](#Document1zzFN_B628)]{.underline}. See Chen & Hanson, supra
note 90; Ronald Chen & Jon Hanson, The Illusion of Law: The Legitimating
Schemas of Corporate Law Doctrine\--Part I (Working Paper 2004, on file
with authors) \[hereinafter Illusion of Law I\]; Ronald Chen & Jon
Hanson, The Illusion of Law: The Legitimating Schemas of Corporate Law
Doctrine\--Part II (Working Paper 2004, on file with authors)
\[hereinafter Illusion of Law II\].

[[\[FN629\]](#Document1zzFN_B629)]{.underline}. See supra text
accompanying notes 405-12.

[[\[FN630\]](#Document1zzFN_B630)]{.underline}. See Chen & Hanson, supra
note 90; Ronald Chen & Jon Hanson, The Illusion of Law: False Starts in
the Races for Corporate Law (Working Paper 2004, on file with authors);
Ronald Chen & Jon Hanson, The Illusion of Law: Testing the Promises of
Shareholder Primacy (Working Paper 2004, on file with authors).

[[\[FN631\]](#Document1zzFN_B631)]{.underline}. See Chen & Hanson, supra
note 90.

[[\[FN632\]](#Document1zzFN_B632)]{.underline}. Chen & Hanson, supra
note 628, Illusion of Law I; Chen & Hanson, supra note 628, Illusion of
Law II.

[[\[FN633\]](#Document1zzFN_B633)]{.underline}. This diagram is meant
only as an illustration of a possible schematization of legal categories
and is not meant to be exhaustive.

[[\[FN634\]](#Document1zzFN_B634)]{.underline}. See Hanson & Yosifon,
The Situational Character, supra note 51, at Part III.C.2.d.i.

[[\[FN635\]](#Document1zzFN_B635)]{.underline}. See id. at Part III.B.3
and Part V.

[[\[FN636\]](#Document1zzFN_B636)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 51, passim; Hanson & Yosifon, The Situational
Character, supra note 51, passim; Jon Hanson & Adam Wright, In the
Driver\'s Seat: Why Promoting Dispositionism is Good Business passim
(Working Paper 2004, on file with authors).

[[\[FN637\]](#Document1zzFN_B637)]{.underline}. History of Woman
Suffrage, supra note 484, at 68.

[[\[FN638\]](#Document1zzFN_B638)]{.underline}. Id. See supra text
accompanying notes 483-84.

[[\[FN639\]](#Document1zzFN_B639)]{.underline}. Stanton, supra note 59,
at 31. See supra text accompanying notes 482-87 (referencing the
revolutionary script and the \"Declaration of Women\'s Independence\").

[[\[FN640\]](#Document1zzFN_B640)]{.underline}. Stanton, supra note 590,
at 45.

[[\[FN641\]](#Document1zzFN_B641)]{.underline}. See Hanson & Yosifon,
The Situation, supra note 51, at 181-82 (describing the relationship
between critical realism and legal realism).

[[\[FN642\]](#Document1zzFN_B642)]{.underline}. Llewellyn, supra note 4,
at 453-54.

END OF DOCUMENT