University of Pennsylvania Law Review

November, 2003

**Article**

**\*129** THE SITUATION: AN INTRODUCTION TO THE SITUATIONAL CHARACTER,
CRITICAL

REALISM, POWER ECONOMICS, AND DEEP CAPTURE

Jon Hanson [[\[FNd1\]](#Document1zzFN_Fd1)]{.underline}

David Yosifon [[\[FNdd1\]](#Document1zzFN_Fdd1)]{.underline}

Copyright © 2003 University of Pennsylvania Law Review; Jon Hanson;
David

Yosifon

What social psychology has given to an understanding of human nature is
the discovery that forces larger than ourselves determine our mental
life and our actions\--that chief among these forces . . . \[is\] the
power of the social situation.

\--Mahzarin R. Banaji [[\[FN1\]](#Document1zzFN_F1)]{.underline}

Perceptions are real . . . . They color what we see . . . what we
believe . . . how we behave. They can be managed . . . to motivate
behavior . . . to create positive business results.

\--Burson-Marsteller

Public Relations Firm Home Page
[[\[FN2\]](#Document1zzFN_F2)]{.underline}

Introduction to an Introduction
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I. Setting the Stage: Two Puzzles
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A. The First Puzzle
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B. The Second Puzzle
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II\. Brief Introduction to the Situational Character
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A. Seeing the Actors
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B. Missing the Stage
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C. The Bounds of Dispositionism
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1\. How Fundamental Is Our Dispositionism?
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a\. Economic incentives
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b\. The limits of economists\' situationism \...\...\...\...\...\...\...
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c\. Some situation behind our dispositionism \...\...\...\...\...\....
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2\. How Fundamental an Error Is Our Dispositionism? \...\...\...\.....
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D. Some Sources of Dispositionism
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E. The Fundamental Interior Attribution Error (or, Getting

Ourselves Wrong)
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III\. A Brief Introduction to Critical Realism
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A. \"Realism\"
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181

B. \"Critical\"
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182

C. What Is So Critical About Realism?
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1\. Facing Our Fears of Reality
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2\. Thinking the Unthinkable
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3\. Faith or Social Science?
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D. Some Presuppositions of Critical Realism
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IV\. Brief Introduction to Power Economics
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A. Power
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193

1\. Power Blindness
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2\. Looking for Power
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B. Economics
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197

C. Some Implications of Power Economics
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V. Brief Introduction to Deep Capture
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A. Shallow Capture
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B. Deep Capture: An Historical Example
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C. Deep Capture: History Repeating Itself
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1\. Some Deep Implications of Shallow Capture \...\...\...\...\...\.....
212

2\. The Depth of Capture
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3\. The Invisibility of Capture
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4\. Learning from History
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a\. Institutions to deeply capture
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b\. Fundamental attribution errors
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c\. Incentives to deeply capture
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i\. The stakes of geocentricism \...\...\...\...\...\...\...\...\...\...
223

ii\. The stakes of dispositionism \...\...\...\...\...\...\...\...\....
225

D. The Deep Capture Hypothesis
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VI\. Some Evidence of the Deep Capture Hypothesis
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A. Some Shallow Evidence of Deep Capture
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B. Some Less Shallow Evidence of Deep Capture
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C. Some Cross-Cultural Evidence of Deep Capture
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D. Some Direct Evidence of Deep Capture
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E. Some Deeper Evidence of Deep Capture: The Puzzles Revisited \.... 269

1\. The Demand for Credible Messengers
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2\. The Creation of Credible Messengers
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a\. A market test
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b\. Re-imagining the marketplace of ideas \...\...\...\...\...\...\....
278

VII\. A Theory of Attributional Presumptions
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A. Legal-Theoretic Presumptions
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1\. The Classical Theory of Contract
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2\. The Dispositionism of Post-Classical Contract Theory \...\...\...
292

B. Legal Presumptions
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C. Social Policy Presumptions: Learning from History Again \...\.....
303

1\. The Teacher\'s View of the Learner
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2\. The Master\'s View of the Slave
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a\. The basic message\--dispositionism
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i\. Revealed inferiority
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ii\. Consent\--implied and revealed \...\...\...\...\...\...\...\...\...
319

b\. Amplifying dispositionism: The anti-slavery bogeypeople \.... 321

c\. Dispositionalizing the opposition \...\...\...\...\...\...\...\.....
324

d\. Our dispositionalization of slavery \...\...\...\...\...\...\...\...
326

3\. Conclusion
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D. The Situational Bogeypeople
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1\. The Communism Bogeyman
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2\. The Personal-Responsibility Bogeyman
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3\. The Paternalism Bogeyman
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4\. Summary: The Bogeypeople as Response to, and Creation of,

Threat
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340

Conclusion: Facing our Fears
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**\*132** Introduction to an Introduction

This Article contests some of our most reassuring self-perceptions and
offers a new way of thinking about our legal theories, our laws, our
institutions, and, above all, ourselves.

In lieu of a conventional, preview-heavy opening, we will begin with a
suggestion that you, the reader, consider your situation. We urge you to
examine the internal and external influences that may affect your
experience of this Article. Uncommon advice, perhaps, in a law review
article, but consider the counsel of Italian novelist Italo Calvino:

Relax. Concentrate. Dispel every other thought. Let the world around you
fade . . . .

Find the most comfortable position: seated, stretched out, curled up, or
lying flat. Flat on your back, on your side, on your stomach. In an easy
chair, on the sofa, in the rocker, the deck chair, on the hassock. In
the hammock, if you have a hammock. On top of your bed, of course, or in
the bed. You can even stand on your hands, head down, in the yoga
position. With the book upside down, naturally.

. . . .

. . . Stretch your legs, go ahead and put your feet on a cushion, on two
cushions, on the arms of the sofa, on the wings of the chair, on the
coffee table, on the desk, on the piano, on the globe. Take your shoes
off first. If you want to, put your feet up; if not, put them back.
[[\[FN3\]](#Document1zzFN_F3)]{.underline} We urge you also to consider
any internal influences that may affect your reading\-- elements that
cannot be so readily inventoried, such as your attitudes, motives, and
moods. These are less easily adjusted than the lighting, but can be even
more important to the reading.

Try to be aware of what you bring to this Article; be aware of how you
read, why you are reading, and even that you are reading. Do you have
expectations about what this Article will say or how you will feel about
it? Ask yourself: What am I looking for in this Article, and why? Am I
reading this because it has been assigned and I want a good grade on my
final? Because I am a law professor and that is what law professors do?
Because I need support for a proposition in my own article? Because a
friend recommended it? Because I am snowed in and it is this or nothing?
And as you react to what you read, take a moment to examine those
reactions and their possible sources.

**\*133** In short, try as best you can to read this Article mindfully.
[[\[FN4\]](#Document1zzFN_F4)]{.underline} This promises to be a
difficult, but revealing, process, for the situation \"determine\[s\]
our mental life and our actions\" far more than most of us realize or
care to believe. [[\[FN5\]](#Document1zzFN_F5)]{.underline}

I. Setting the Stage: Two Puzzles

Throughout most of this introductory Article, we will focus our
arguments primarily on economics and law and economics. We believe,
however, that the implications of our inquiry extend far beyond those
domains. The tendencies we hope to elucidate find their origins in the
human animal, not in any particular legal theoretic perspective. It
happens that these tendencies are especially prominent in law and
economics, currently the dominant theoretical paradigm for creating and
analyzing legal policy. But the relevance of our thesis is not confined
to one approach, or even to legal-political questions. All humans are
more or less implicated, whether they are liberals or conservatives,
legal economists or critical theorists, students or scholars, producers
or consumers, elected officials or citizens.
[[\[FN6\]](#Document1zzFN_F6)]{.underline}

A. The First Puzzle

Economists usually assume that each economic actor maximizes something:
consumers maximize utility . . . firms maximize profits, politicians
maximize votes, bureaucracies maximize revenues . . . and so forth.

\--Robert Cooter & Thomas Ulen
[[\[FN7\]](#Document1zzFN_F7)]{.underline}

I do not myself believe that many people do things because they think
they are the right thing to do . . . . I do not think that knowledge of
what is morally right is motivational in any serious sense for anyone
except a handful of saints.

\--Richard Posner [[\[FN8\]](#Document1zzFN_F8)]{.underline}

**\*134** \[T\]he tendency to make unwarranted leaps from acts to
corresponding dispositions is perhaps the most fundamental and most
common failing of social inference.

\--Lee Ross & Richard Nisbett [[\[FN9\]](#Document1zzFN_F9)]{.underline}

Have you ever noticed how quick legal economists are to assume that
individuals and institutions are motivated by selfish interests, usually
wealth and profit? [[\[FN10\]](#Document1zzFN_F10)]{.underline} Have you
ever been puzzled by the fact that they have not applied the same type
of analysis to explain their own work and remarkable success in the
marketplace of ideas? Why, in other words, has there not been \"An
Economic Analysis of the Economic Analysis of Law?\"
[[\[FN11\]](#Document1zzFN_F11)]{.underline}

When legal economists write about their movement,
[[\[FN12\]](#Document1zzFN_F12)]{.underline} they write of its
historical affiliations, distinguished members, theoretical
breakthroughs, scientific methods, rapidly growing numbers, sustained
dominance within legal academia, and significant influence over policy.
[[\[FN13\]](#Document1zzFN_F13)]{.underline} Implicit in these
conventional narratives of the ascension of law and economics is an
abstract and idyllic model of a tournament of ideas played on a level
field, out of which law and economics emerges, on the merits, as a
champion legal theory. [[\[FN14\]](#Document1zzFN_F14)]{.underline} Such
canonical accounts say nothing about the actors\' motives, except
insofar as they imply that the participants have a **\*135** magnanimous
desire to advance scientific knowledge and, perhaps, social welfare
through normal, well-functioning, neutral processes.
[[\[FN15\]](#Document1zzFN_F15)]{.underline}

For example, in his famous exchange with Professor Whitford, who was not
a legal economist, on the enforceability of consumer product warranties,
George Priest, one of the founding fathers of law and economics, wrote:
\"Our objectives . . . are similar: to identify policies that, other
things equal, will reduce the seriousness and frequency of injuries
suffered by consumers.\" [[\[FN16\]](#Document1zzFN_F16)]{.underline}
Priest went on to explain that Whitford, like other scholars who wrote
on this topic, relied on arguments lacking in social scientific rigor
and born of feel-good intuition and emotion. Of the former, Priest
wrote: \"Professor Whitford\'s criticism . . . rests upon a
misunderstanding of the nature of scientific reasoning.\"
[[\[FN17\]](#Document1zzFN_F17)]{.underline} Of the latter, Priest
declared:

If I have distorted the approach of the exploitation theorists, it is
\"distortion\" that comes from the sharpened focus of any careful,
scientific study. Upon closer view, a flat world becomes round, and the
Martian canals are shown to be illusions. The brilliant and moving calls
of Professor Kessler in 1943 and of Professor Leff in 1970 to the attack
on incompletely bargained contracts provoked sympathy in many of us in
the contracts field. Their ideas have dominated our thinking about
contractual relations, especially between manufacturer and consumer, and
have transformed the law of products liability. Unfortunately, the
suppositions upon which their ideas are based are unsupported by the
evidence. The time has come for a new view of the world.
[[\[FN18\]](#Document1zzFN_F18)]{.underline}

Regardless of what one thinks about the strength of Priest\'s arguments
or the reliability of his conclusions, the point is that Priest clearly
sees himself as a (winning) participant in a neutral process of
**\*136** generating knowledge about a topic that will save lives and
reduce injuries. This type of claim to the principles of
science\--neutral testing of hypotheses against meaningful, hard
empirical data\--has been extremely common among legal economists,
particularly in response to critics or potential critics.

To return to the puzzle: why don\'t legal economists analyze themselves
through the same models they apply to everyone else? Why don\'t they
explain their success in economic terms\--the predictable consequence of
selfishly motivated, self-aggrandizing scholars seeking to maximize
their wealth, influence, or reputations? We have an answer and, perhaps
surprisingly, it is an answer that is less about highlighting a
contradiction than it is about locating an underlying consistency.

Simply stated, legal economists are human
[[\[FN19\]](#Document1zzFN_F19)]{.underline} and, being human, they are
subject to biasing cognitive tendencies. Among the most fundamental
biases is what social psychologists have appropriately named the
fundamental attribution error:
[[\[FN20\]](#Document1zzFN_F20)]{.underline} Our proclivity is to
under-estimate the role of situational influences, and to overestimate
the influence of individual dispositions in explaining people\'s
behavior. [[\[FN21\]](#Document1zzFN_F21)]{.underline} \"\[W\]e tend to
look for the person in the situation more than we **\*137** search for
the situation that makes the person.\"
[[\[FN22\]](#Document1zzFN_F22)]{.underline} That is true even though
\"human behavior is much more under the influence of situational
variables than we usually recognize or are willing to admit.\"
[[\[FN23\]](#Document1zzFN_F23)]{.underline}

That tendency, like numerous other interpretive biases, is partially the
result of the mind\'s propensity to conserve scarce resources.
[[\[FN24\]](#Document1zzFN_F24)]{.underline} It is often easy to see a
person\'s role in bringing about a particular event, but it takes a good
deal of thought to understand how the situation may have wielded
influence. [[\[FN25\]](#Document1zzFN_F25)]{.underline} A more general
description of this phenomenon is that the mind tends to downplay the
role of complexifying context and overplay the role of salient behavior.
\"Background factors, social context, roles, or situational pressures
that may have given rise to the behavior are . . . relatively pallid and
dull and unlikely to be noticed in comparison to the dynamic behavior of
the actor.\" [[\[FN26\]](#Document1zzFN_F26)]{.underline}

A second powerful influence over human cognition stems from the fact
that people tend to arrive at conclusions they are motivated to reach:
\"\[M\]otivation may affect reasoning through reliance on a biased set
of cognitive processes: strategies for accessing, constructing, and
evaluating beliefs . . . . \[M\]otivation can be construed as affecting
the process of reasoning: forming impressions, determining one\'s
beliefs and attitudes, evaluating evidence, and making decisions.\"
[[\[FN27\]](#Document1zzFN_F27)]{.underline}

**\*138** One key motivation\--central to \"one of the most influential
social psychological theories\"
[[\[FN28\]](#Document1zzFN_F28)]{.underline}\--is the desire to see
ourselves in self-affirming ways.
[[\[FN29\]](#Document1zzFN_F29)]{.underline} People tend to view
themselves as well-intentioned and good, and will often engage in fairly
dramatic cognitive adjustments to maintain that self-image.
[[\[FN30\]](#Document1zzFN_F30)]{.underline} Moreover, individuals
en-gage in the same kind of motivated reasoning regarding the
institutions, groups, and situations with which they identify. In those
contexts, however, the tendency is often referred to as the
\"ethnocentric\" or \"group-serving\" bias or, more popularly, as
jingoism, racism, sexism, heterosexism, and so on.
[[\[FN31\]](#Document1zzFN_F31)]{.underline} The first lesson of
motivated reasoning, whatever its manifestation, is that we humans tend
to hold beliefs and reach judgments and conclusions that we desire, and
we vastly underappreciate that tendency\--particularly in ourselves.

When those sorts of human tendencies are taken seriously, the initial
puzzle begins to lose its mystery. The puzzle is simply an expression of
the larger human inclination to see disposition where situation is
largely controlling and to do so in a way that is self-affirming. Legal
economists view others as dispositionally\--typically
selfishly\--motivated because they can plausibly infer such information
from people\'s conduct. And the dispositions\--which legal economists
typically call \"preferences\"\--behind that conduct are thereby
\"revealed.\" Or it at least appears that way to legal economists, given
the influence of the fundamental attribution error. Legal economists,
likewise, see themselves (and others in their move-ment) as
dispositionally driven, but their own purposes are presumed less crass,
in part because their personal sense of themselves does not \"reveal\"
such motives, and in part because they are motivated to attribute their
successes and their competitors\' concomitant failures to dispositional,
not situational, forces. [[\[FN32\]](#Document1zzFN_F32)]{.underline}

**\*139** It is not contradiction, then, but consistency that begins to
suggest the more illuminating dimension of this puzzle. Legal economists
presume a dispositional account of behavior, both in their understanding
of economic actors and institutions as selfish, and in their view of
themselves as relatively selfless.
[[\[FN33\]](#Document1zzFN_F33)]{.underline} Social psych-ology,
however, has demonstrated that seemingly dispositional actions are very
often more accurately identified as situational reactions. Since
economists consistently rely on dispositionist attributions, they may be
consistently wrong, both as to others and as to themselves.

The point\--and this is a big one\--is that even though individuals and
institutions may behave as if their goal were to maximize wealth, such
behavior may actually reflect the social stage of interactions (the
situation) more than it does the dispositions of the actors. Moreover,
legal economists have failed to take situation into account in their
understanding of their own success, both individually and as a school of
thought. This tendency, we believe, has blinded us all\--legal
economists, their admirers, and their critics.

The first puzzle thus yields a glimpse of a central claim of this
Article: Legal economists are correct to presume the profound influence
of the profit motive over the behavior of individuals and institutions
in our society, but are mistaken to locate that influence
dispositionally rather than situationally. The latter possibility\--that
situation accounts not only for the behavior that legal economists
analyze, but also for the success of their movement\--brings us to a
second puzzle.

B. The Second Puzzle

Have you ever noticed that many of the most prominent legal scholars
actively reject the tenets of law and economics in their teaching and
writing? And have you ever wondered about the fact that the criticisms
that such scholars have advanced are rarely, if ever,
acknowledged\--much less rebutted\--by legal economists? And, in light
of all that, have you ever wondered why law and economics is
nevertheless commonly (and we think correctly) **\*140** described as
the dominant legal theoretic approach? It may be helpful to describe
this puzzle in greater depth.

In a 1996 survey of the most cited law review articles published from
1982 to 1991, [[\[FN34\]](#Document1zzFN_F34)]{.underline} scholars
taking the critical approach\--critical legal studies, critical race
theory, and feminism\--vastly outpaced those taking a law and economics
approach, forty-three to twelve, respectively.
[[\[FN35\]](#Document1zzFN_F35)]{.underline} From its origins, law and
economics has been subject to powerful and sustained criticisms from a
diverse group of distinguished legal academics
[[\[FN36\]](#Document1zzFN_F36)]{.underline}\-- including, among many
others, Bruce Ackerman, [[\[FN37\]](#Document1zzFN_F37)]{.underline}
Jules Coleman, [[\[FN38\]](#Document1zzFN_F38)]{.underline} Ronald
Dworkin, [[\[FN39\]](#Document1zzFN_F39)]{.underline} Grant Gilmore,
[[\[FN40\]](#Document1zzFN_F40)]{.underline} Mark Kelman,
[[\[FN41\]](#Document1zzFN_F41)]{.underline} Duncan Kennedy,
[[\[FN42\]](#Document1zzFN_F42)]{.underline} Frank Michelman,
[[\[FN43\]](#Document1zzFN_F43)]{.underline} **\*141** Dierdre
McCloskey, [[\[FN44\]](#Document1zzFN_F44)]{.underline} Martha Nussbaum,
[[\[FN45\]](#Document1zzFN_F45)]{.underline} Rick Pildes,
[[\[FN46\]](#Document1zzFN_F46)]{.underline} Margaret Radin,
[[\[FN47\]](#Document1zzFN_F47)]{.underline} Jeanne Schroeder,
[[\[FN48\]](#Document1zzFN_F48)]{.underline} Joe Singer,
[[\[FN49\]](#Document1zzFN_F49)]{.underline} and Mark Tushnet.
[[\[FN50\]](#Document1zzFN_F50)]{.underline}

Indeed, at the same time that legal economists were proclaiming the
strengths and dominance of their approach, prominent critics were
claiming to reveal some of its fundamental flaws and **\*142**
weaknesses. [[\[FN51\]](#Document1zzFN_F51)]{.underline} Legal
economists rarely acknowledged, much less rebutted, those criticisms.
[[\[FN52\]](#Document1zzFN_F52)]{.underline} Many thoughtful observers
therefore anticipated the eventual, if not imminent, demise of law and
economics. For example, Arthur Leff wrote in 1974: \"\[O\]ne would be
forced to conclude that this kind of \'scientific\' study is . . ., as
an attempt to present a total picture, ultimately doomed.\"
[[\[FN53\]](#Document1zzFN_F53)]{.underline} By 1980, Mort Horwitz wrote
that the law and economics movement had \"\'peaked out\' as the latest
fad in legal scholarship.\" [[\[FN54\]](#Document1zzFN_F54)]{.underline}
He went so far as to predict that \"\[f\]uture legal historians will
need to exercise their imaginations to figure out why so many people
could have taken most of this stuff so seriously.\"
[[\[FN55\]](#Document1zzFN_F55)]{.underline}

Outsiders\' predictions were not altogether different from those of
insiders. Early on, even some legal economists admitted to being
surprised by their success. As Judge Posner, in a loose version of our
second puzzle, testified, \"economics has an uphill fight in law, being
disliked both as politically conservative and methodologically radical.
This makes its success . . . all the more striking.\"
[[\[FN56\]](#Document1zzFN_F56)]{.underline}

And yet despite that evidence, those criticisms, those predictions, and
that surprise, there is no dispute that law and economics has long been,
and continues to be, the dominant theoretical paradigm for understanding
and assessing law and policy. Not only is law and economics not a
faddish habit of the past, but in the twenty years **\*143** since
Horwitz\'s prognostication, it has become even more entrenched among
lawmakers, judges, policy shapers, and aca-demics.
[[\[FN57\]](#Document1zzFN_F57)]{.underline} And, as we highlight, lay
versions of the theory have been gaining ground in our culture as a
whole. As one critic laments, \"\[t\]he law and economics movement is
quite strongly entrenched in the law schools, and is more powerful there
than any of the other social sciences.\"
[[\[FN58\]](#Document1zzFN_F58)]{.underline} Marc Galanter and Mark
Edwards, proponents of the \"competing\" law and society approach to
legal theory, concede that \"the flourishing of law and economics \[is\]
undeniable,\" [[\[FN59\]](#Document1zzFN_F59)]{.underline} that
\"\[e\]conomic analysis of law . . . has transformed American legal
thought,\" [[\[FN60\]](#Document1zzFN_F60)]{.underline} and that
efficiency analysis has enjoyed \"unparalleled success in the legal
academy and in the judiciary.\"
[[\[FN61\]](#Document1zzFN_F61)]{.underline} Professor Bruce Ackerman
has described law and economics as \"the most important development in
legal scholarship of the twentieth century.\"
[[\[FN62\]](#Document1zzFN_F62)]{.underline}

Numerous critics have displayed less equanimity in acknowledging the
dominance of law and economics, accusing its adherents of ruthless
\"imperialism.\" [[\[FN63\]](#Document1zzFN_F63)]{.underline} Judge
Posner dismisses such **\*144** accusations as so much
\"\[p\]rofessional envy.\" And who wouldn\'t be jealous? After all:

Economic analysis of law has grown rapidly, has become the largest, most
pervasive interdisciplinary field of legal studies in the history of
American law, has palpably influenced the practice of law and judicial
decisions, has launched lucrative consulting spin-offs, has spawned
courses and textbooks in economic analysis of law, has influenced
legislation (economic analysts of law played an important role in the
deregulation movement), has made it de rigueur for law schools of the
first and second ranks to have one or more economists on their faculty,
has seeded a number of its practitioners in university administration
and the federal judiciary, and has now crossed the Atlantic and begun
making rapid gains in Europe.
[[\[FN64\]](#Document1zzFN_F64)]{.underline}

In short, regardless of how different scholars feel about it, there is
no contesting the fact that law and economics is currently the
undisputed champion of the putative legal-theoretic competition.

So here, again, is the second puzzle: How is it that a theory that is
the subject of so much skepticism and criticism among legal academics,
and that seems to have been rejected (or at least, not embraced) by huge
segments of that community, has become the dominant theoretical paradigm
for understanding and assessing law and policy?

That puzzle begins to come together when one understands that scholars,
as humans, are motivated to believe that the institutions with which
they have a strong affiliation are just
[[\[FN65\]](#Document1zzFN_F65)]{.underline}\--a motivation that may be
particularly intense in this case, given that the legal academy is an
institution to which academy members have committed their professional
lives and upon which their legitimacy is largely based. Absent
undeniable evidence to the contrary, scholars so motivated assume that
the success or failure of a theory reflects the outcome of a reasonably
well-functioning marketplace or tournament of ideas. Success there, like
evolutionary or market success, is thought to reflect a meritocratic
selection process. [[\[FN66\]](#Document1zzFN_F66)]{.underline}

**\*145** Such a faith is implied in many legal theoretic histories.
Robert Cooter and Thomas Ulen, in their authoritative text, Law and
Economics, [[\[FN67\]](#Document1zzFN_F67)]{.underline} attribute the
success of law and economics to its practitioners identifying \"a vacant
niche in the \'intellectual ecology\"\' of legal theory and then
\"rapidly fill\[ing\] it.\" [[\[FN68\]](#Document1zzFN_F68)]{.underline}
Thomas Ulen recently expanded on that survival-of-the-fittest metaphor,
boasting:

Law and economics has been one of the most successful innovations in the
legal academy in the last century. This intellectual revolution began
modestly in the 1960s and 1970s with a few important and innovative
articles and a comprehensive, masterful text that showed the
possibilities of the field. Then, in the 1980s the field exploded into
respectability and prominence\--becoming a regular course in the
curricula of the best law schools, a vibrant legal research style that
figured in a torrent of important books and articles, a force that
transformed many faculty from exclusive practitioners of traditional
doctrinal research to a more social-science-oriented research, and a
substantial justification for important public policy changes. By the
early 1990s, economic analysis suffused a modern legal education, even
one devoid of an explicit course in law and economics.
[[\[FN69\]](#Document1zzFN_F69)]{.underline}

Writing generally about economics, George Stigler explains: \"Economics
is the only reasonably well-developed social science . . . in that it
has an extensive, operable, tested theoretical system.\"
[[\[FN70\]](#Document1zzFN_F70)]{.underline} Posner beats the same drum
when he proclaims that the work of \"anthropologists, sociologists,
psychologists, political scientists, and other social scientists . . .
is insufficiently rich in theoretical or empirical content to create
serious competition for the economists.\"
[[\[FN71\]](#Document1zzFN_F71)]{.underline} Elsewhere, he makes the
point more concretely:

There is a dearth of arresting hypotheses to set off against the Coase
Theorem, the Hand Formula, the efficiency theory of the common law, . .
. the economics of property rights versus liability rules, the **\*146**
activity-level theory of strict liability, . . . and the myriad of other
concepts, many counterintuitive, that have made economic analysis of law
intellectually exciting. [[\[FN72\]](#Document1zzFN_F72)]{.underline}

When explaining their success, legal economists rely not just on proud
descriptions of methods, discoveries, and insights, but also on the
legacy of intellectual giants, from Jeremy Bentham and Adam Smith to
Gary Becker and George Stigler.
[[\[FN73\]](#Document1zzFN_F73)]{.underline} The internal histories of
the emergence of law and economics thus focus on the \"great ideas\" and
\"great men\" [[\[FN74\]](#Document1zzFN_F74)]{.underline} of the
movement, as if Coase and Copernicus played analogous roles in advancing
science. [[\[FN75\]](#Document1zzFN_F75)]{.underline} Even if that is an
overstatement, it is patently clear that legal economists see themselves
as the rightful winners of a fair and effective process\--a success that
is measured largely in terms of real-world influence and without
reference to the serious criticisms of their approach.

Professor Horwitz, though no doubt disappointed with the outcome, also
seemed to view the rise and fall of ideas and theories as part of a fair
competition, or at least that seems an obvious **\*147** inference to
draw from his prediction about the imminent demise of law and economics.
[[\[FN76\]](#Document1zzFN_F76)]{.underline} And Horwitz is by no means
the only non-economist exhibiting such faith. Indeed, it seems to be
widespread in legal academics, as revealed by the fact that unfairness
or bias in the marketplace of ideas is rarely discussed among its
participants\--even among those scholars whose work is built on
identifying and describing such unfairness and bias in other
institutions. [[\[FN77\]](#Document1zzFN_F77)]{.underline} Thus, while
scholars have not always explicitly claimed that theoretical dominance
implies theoretical superiority, such an inference is manifested in the
legal economists\' boasting and the critics\' collective (and now
largely frustrated) expectation that law and economics would pass
quickly.

A closer look at the details of legal theoretic discourse reveals yet
another nuance to the pattern. Legal economists attribute their success
in the tournament to internal or dispositional factors. They seem to
view their methods and insights, perhaps even their intellectual
capacity, as simply superior to those of their competitors.

That dispositional perspective is amplified when economists criticize
their competitors. Not only are outsiders deficient method-ologically,
they are, as our \"just world\"
[[\[FN78\]](#Document1zzFN_F78)]{.underline} requires, also
dispositionally deserving of their fate. Posner, for example, claims
that some **\*148** competitors may have fared better if only they were
not so spiteful about their losses and, so unwilling \"to pick up the
analytic techniques and models of economic analysis and use them in
their own work.\" [[\[FN79\]](#Document1zzFN_F79)]{.underline} According
to Posner, \"no one likes to retool with the methods of a rival
discipline; it is a confession of defeat.\"
[[\[FN80\]](#Document1zzFN_F80)]{.underline} The source of the
competitors\' failure is, in Posner\'s account, not in the situation of
the competition, but in the dispositions of the participants. And it is
not just any disposition, but the disposition of selfishness\--the very
disposition that motivates the agents of legal economists\' models. And
it is also, in Posner\'s view, the disposition of spite and
smallness\--the very sort of qualities that psychologists have shown
that we are motivated to see in \"out groups\" and to deny in our own
groups, and that consequently enable us to feel that the misfortunes of
\"others\" are warranted. [[\[FN81\]](#Document1zzFN_F81)]{.underline}

Consequently, there are two ways in which the largely uncon-tested
\"tournament of ideas\" notion reflects the fundamental attribution
error. First, as we just described, competitors are presumed to win or
lose because of dispositional factors. Second, the operation and
dynamics of the tournament itself is presumed to be independent of
broader situational influences. The metaphor of a tournament or
marketplace highlights the presumption that comp-etition on the merits
is the driving force and that the victor is determined through
successful competitive engagements, full stop. Any forces exogenous to
the tournament are rarely identified, much less systematically analyzed.

Again, it is not contradiction, but consistency, that suggests the more
revealing aspects of this second puzzle. Both legal economists and their
critics presume a dispositionist account of scholarly behavior. But
again, social psychology instructs us that seemingly dispositional
actions are often more accurately understood as situational reactions.
The consistent dispositional attributions, therefore, may be
consistently wrong. A more complete solution to this puzzle, however,
must await the balance of this Article.

We named this Part \"setting the stage,\" not simply because it sets the
stage for the balance of the Article, but also because it is **\*149**
intended to begin to illuminate the power of staging over acting. The
stage is not simply the place where independent, dispositional actions
occur, as is so commonly, so humanly, assumed. The stage is itself an
unseen participant\--one that shapes, transforms, sometimes determines,
and almost always influences, the behaviors of the visible characters.
If that is correct, legal scholars and policymakers need to ascertain
how the stage is set, who has the power to set it, and what the purpose
of the staging is. We all need to be attentive to the situation.

II\. Brief Introduction to the Situational Character

A. Seeing the Actors

Tastes are the unchallengeable axioms of a man\'s behavior: he may
properly (usefully) be criticized for inefficiency in satisfying his
desires, but the desires themselves are data.

\--Gary Becker and George Stigler
[[\[FN82\]](#Document1zzFN_F82)]{.underline}

I find it difficult now to identify the motives for many things I have
done . . . .

I do not have a good answer to the question of my own behavior . . . .

My memory has a strange way of selecting its contents.

\--George Stigler [[\[FN83\]](#Document1zzFN_F83)]{.underline}

In our view, legal theory and the law ought to be informed by as
realistic a vision of humanity as our learning can muster. This Section
begins to formulate such a vision through some of the central lessons of
social psychology. The bulk of this effort must await separate articles.
[[\[FN84\]](#Document1zzFN_F84)]{.underline}

\* \* \*

**\*150** Suppose you are walking down the street, on your way to class,
when a man in a white coat comes up behind you, jabs a gun into your
spine and barks \"get into that building.\" Inside the building, you
find yourself in a small room where the gunman explains that you will be
shot unless you flip a switch (labeled \"DANGER: SEVERE
SHOCK\--XXX\--450 volts\") on some sort of electrical box which is
attached by wires to an electric-chair contraption in which another man
is strapped. The gunman informs you that \"although the shock can be
extremely painful to the person in the chair, it can cause no permanent
tissue damage.\" Meanwhile, that person is squirming, sweating, and
imploring you not to flip the lever. He seems almost as scared as you
are and is saying something about heart trouble and pleading to be
released. The gunman cocks his pistol, aims the barrel at your temple,
and tells you: \"You have no other choice, you must go on.\"

Despite this scene\'s surreal qualities, you believe everything about
it, including that the gun pointed at your head is real and that its
holder is ready to use it. What would you do?

We suspect that many of you would flip the lever, as we probably would.
And we suspect that even those of you who would not would still
sympathize with and hold relatively blameless anyone who did. The
situational pressure is simply too great to withstand. The power of the
gun is unmistakable, and the \"choices\" to enter the building and to
flip the lever are hardly choices at all, for the disposition of the
person who makes them seems so clearly constrained by the situation as
to render the results nearly determined.

Now, suppose you are strolling across your favorite university campus
when you are approached by a clipboard-toting, lab-coated graduate
student who is recruiting participants for an ongoing psychological
experiment testing learning techniques. You agree to take part, and
follow the graduate student into a building where you meet the professor
running the study and another person, who, like yourself, has agreed to
participate. You draw lots and find that in the experiment you will be
the \"teacher,\" and your fellow **\*151** volunteer will be the
\"learner.\" The professor explains that he will read a list of pairs of
associated words to the learner, after which he will read one word from
the pairs as a prompt for the learner to supply the correct associated
word. If the learner fails to provide the correct word, you, as the
teacher, are to flip a switch that will shock him. With each incorrect
answer, the strength of the shock will increase by 15 volts. You follow
the professor into an adjacent room where you watch as the learner is
strapped into a chair and electrodes are attached to his body. Then you
move back to the first room where the professor begins the experiment.
Very soon into the procedure, the subject gets an association wrong. Do
you flip the switch?

Perhaps you do. Now the wrong answers continue to come. With each
mistake you increase the voltage, and you begin to hear the learner
moaning in pain. Poised at 150 volts, the learner exclaims that his
heart is bothering him. When you reach 210 volts, he demands to be
released, saying he refuses to answer any more questions. At 300 volts,
he is screaming in agony. After 330 volts, the learner\'s room becomes
silent. The professor continues to ask questions and announces that
continued silence will be interpreted as a wrong answer, bringing
another shock. You look at the control panel and see that the next level
reads \"DANGER: SEVERE SHOCK\--XXX\--450 volts.\" You hesitate, and the
professor demands, \"You have no other choice, you must go on.\" Do you
flip the switch? Would you have made it to this point in the study?

If you are like most people, you have almost certainly answered a
resounding \"no!\" to those questions. And if you think others would
respond to the scenario similarly, you would expect them to refuse to go
along with the experiments as well. And you would not be alone.

College students asked to evaluate such a proposed experiment estimated
that, on average, most people would go to 135 volts before refusing to
go on, and they said that only one in a hundred would go all the way to
end of the scale\--450 volts.
[[\[FN85\]](#Document1zzFN_F85)]{.underline} Professional psychiatrists
surveyed about the same proposed experiment predicted that only one in a
thousand\--\"the sadists\"\--would go all the way.
[[\[FN86\]](#Document1zzFN_F86)]{.underline}

**\*152** We humans do not understand ourselves well.

The scenario described above\--the one with the graduate student and not
the one with the gun\--was the basis of a series of actual experiments
that Stanley Milgram, a pioneer in the field of social psychology
conducted at Yale University beginning in the early 1960s.
[[\[FN87\]](#Document1zzFN_F87)]{.underline} In the actual experiment,
however, the flipped switches did not actually shock the learner.
[[\[FN88\]](#Document1zzFN_F88)]{.underline} The responses that the
teacher heard were scripted\--a fact unknown to the teacher.
[[\[FN89\]](#Document1zzFN_F89)]{.underline} Milgram\'s expectations
matched those of the college students and psychiatrists who he surveyed
beforehand. [[\[FN90\]](#Document1zzFN_F90)]{.underline} But out of the
first forty teacher subjects he tested, twenty-six of them (sixty-five
percent) went all the way to 450 volts.
[[\[FN91\]](#Document1zzFN_F91)]{.underline} And that was only the
beginning of a long series of studies revealing the disturbing
\"banality of evil.\" [[\[FN92\]](#Document1zzFN_F92)]{.underline}

By now the reason for the experimental results should be clear:
situation, like an invisible hand, moves us.
[[\[FN93\]](#Document1zzFN_F93)]{.underline} Milgram performed this
**\*153** experiment hundreds of times using many different variations.
[[\[FN94\]](#Document1zzFN_F94)]{.underline} By manipulating the
situation, Milgram was able to increase or decrease conformity on the
part of the teachers. For example, when it was not the teacher
administering the shock himself, but rather a peer operating at the
teacher\'s instruction, more than ninety percent of subjects
administered the maximum shock.
[[\[FN95\]](#Document1zzFN_F95)]{.underline} When an ordinary person
rather than a scientist was demanding that the shocking continue,
however, far fewer teachers went to 450 volts.
[[\[FN96\]](#Document1zzFN_F96)]{.underline} The sixty-five percent full
compliance observed repeatedly at Yale shrunk to forty-eight percent
when the study was moved off campus and purportedly run by \"Research
Associates of Bridgeport.\" [[\[FN97\]](#Document1zzFN_F97)]{.underline}

The vast discrepancy between ex ante predictions about the likely
behavior of subjects in these experiments and their actual behavior
reveals a central lesson of social psychology\--namely, the profound
ways in which situation influences our behavior.
[[\[FN98\]](#Document1zzFN_F98)]{.underline} The naive predictions
themselves reveal the gross extent to which we underestimate the power
of the situation and wrongly presume that behavior is motivated by
disposition. [[\[FN99\]](#Document1zzFN_F99)]{.underline}

**\*154** As Milgram\'s experiments help demonstrate, unobserved (though
observable) situation can be as potent as observed situation. And when
it is unobserved situation that moves us, we experience it as
dispositional consent.

Insofar as economics, and law and economics, have been challenged by
critics, most debate has taken place over the extent to which people are
rational. Economists tend to assume that the \"rational actor model\" is
reasonably accurate, or that its inaccuracies do not, for one reason or
another, threaten their conclusions substantially.
[[\[FN100\]](#Document1zzFN_F100)]{.underline} The critics tend to
either roll their eyes at the obvious absurdity of the rational actor
model or, more carefully, provide evidence to support a conclusion that
the rational actor model is flawed and should be adjusted to take into
account the irrational features of the typical human actor. In our view,
both perspectives miss the far more significant assumption behind the
rational actor model: that people are dispositional actors. As the
Milgram experiments so powerfully demonstrate, it is our
situations\--far more than we realize, and often far more than our
dispositions\--that move us. We are, in essence, not rational actors,
but \"situational characters.\"

B. Missing the Stage

We are too ready to read personality and character traits into the
behavioral drama and too resistant to see stage settings as the basis
for the action.

\--Philip G. Zimbardo & Michael Leippe
[[\[FN101\]](#Document1zzFN_F101)]{.underline}

**\*155** All the world\'s a stage . . . And all the men and women
merely players . . . .

\--William Shakespeare [[\[FN102\]](#Document1zzFN_F102)]{.underline}

The \"situational character,\" introduced in this Article and fleshed
out in a companion article
[[\[FN103\]](#Document1zzFN_F103)]{.underline} and in other works,
[[\[FN104\]](#Document1zzFN_F104)]{.underline} is meant not to
reconstruct, but rather to retire the basic rational actor model of law
and economics (including its chief competitors such as the behavioral
actor, the boundedly rational actor, the satisficing actor, and the
autonomous agent of classical liberalism). Our goal is not, in other
words, to offer an alternative dispositionist
[[\[FN105\]](#Document1zzFN_F105)]{.underline} account, but rather to
develop an approach to legal theory that conceptualizes people\'s
behavior more accurately in the locus of situation.

We thus introduce the situational character: 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. To be sure, such a character will often
behave as if she is a dispositional actor, but alter the stage, the
script, and so on, and you will see the pervasive role of situation as
the actor\'s behavior conforms to it.

Consider the following thought experiment:

Your plane, a Boeing 747, is reaching cruising altitude in your flight
from Logan to O\'Hare, and the pilot turns off the \"Fasten Seatbelt\"
sign. You recline in your aisle seat for a catnap when the elderly and
somewhat feeble gentleman next to you stands and politely asks to get
by. You move quickly into the aisle to aid his passage and then return
to your seat as he makes his way slowly to the back of the plane to the
lavatory\--about one-eighth of the length of the plane. You don\'t
re-buckle your seatbelt because you expect him to return shortly and you
want to be prepared to again move into the aisle so that he can reclaim
his seat.

**\*156** Ten minutes pass, and you begin to worry because the elderly
gentleman seemed a little unstable. Still, you are reluctant to meddle
and possibly embarrass him or yourself. When another five minutes have
passed, you decide to alert a flight attendant of your concerns. As you
reach for the call button, the man returns, apparently no worse for
wear. You jump out to let him in, and you both slide into your seats.
You breathe a slight sigh of relief that he is fine after all, and that
you did not have to press the button.

Now, without re-reading any portion of the preceding paragraphs,
estimate the distance that the old man traveled between leaving and
returning to his seat.

If you are like most people we asked about this scenario, you estimated
close to thirty feet. A more accurate estimate, however, would be
roughly 1000 times greater than that\--approximately 150 miles. In other
words, most people see the man moving within the plane, but miss his
situation, the plane itself.
[[\[FN106\]](#Document1zzFN_F106)]{.underline} But even the few who see
the plane tend to miss the movement of the Earth\--a failure that made
Copernicus, one who did notice, the butt of ridicule, and Galileo,
another who saw what others were missing, a prisoner. And even those
great astronomers did not perceive, just as most of us today do not, the
immense currents of the solar system, the galaxy, and the universe.
Indeed, when one takes those additional situa-tional forces into
account, the old man moved, in his visit to the bathroom, something
closer to 350,000 miles. [[\[FN107\]](#Document1zzFN_F107)]{.underline}

**\*157** C. The Bounds of Dispositionism

We have already summarized some of the \"evidence that people are
inclined to offer dispositionist explanations for behavior instead of
situationist ones, and that they make inferences about the
characteristics of actors when they would do well to make inferences
instead about the characteristics of situations . . . .\"
[[\[FN108\]](#Document1zzFN_F108)]{.underline} We have also suggested
that this fundamental attribution error has not spared the professional
and credentialed minds of economists and legal economists\--hence, our
repeated emphasis on the fact that they too are human.

But, if we humans are subject to a tendency to see disposition where
situation is largely controlling, a critical question emerges as to the
strength and expansiveness of that tendency. Of course, this is a
question for which no precise answer can be given. But it is
nevertheless a crucial issue for legal theory, and one that cannot be
papered over by implausibly presuming near-total dispositionism. Some
clarifying light can be shed on the matter by separating it into two
sub-questions. First, at what point and to what degree do lay people and
economists begin to see situation and to take it into account? In other
words, what are the limits to our dispositionism\--how fundamental is
it? Second, to what extent do disposition and situation actually move
us? Put differently, how fundamental an error is our dispositionism? The
first question is about how we perceive what we see, and the second
question is about how accurate our perceptions are.

1\. How Fundamental Is Our Dispositionism?

Regarding the first question, our gun-to-the-head example
[[\[FN109\]](#Document1zzFN_F109)]{.underline} makes clear that our
dispositionism does occasionally give way to situationism. The example
is particularly apt because it appears that we rarely see situation
unless the situation is thrust upon us in the form of another
hard-to-miss actor such as a person wielding a gun.
[[\[FN110\]](#Document1zzFN_F110)]{.underline}

**\*158** a. Economic incentives

Even a very obvious, controllable, and tangible situational influence\--
money\--is commonly overlooked in favor of dispositionist explanations
of behavior. The effects of financial incentives on lay people tend to
be understood in terms of stable dispositional proclivities. This lesson
is rendered explicit by experiments in social psychology.

In one such study, a first group of subjects (the \"observers\") were
asked to monitor and later draw conclusions about the conduct of a
second group of subjects (the \"volunteers\") as part of a study on
decision making. [[\[FN111\]](#Document1zzFN_F111)]{.underline} After
describing a fictitious study to the subjects, the experimenter
announced that before they began the experiment, she \"happen\[ed\] to
have sort of a real decision for \[them\] to make.\"
[[\[FN112\]](#Document1zzFN_F112)]{.underline} The corporate board and
potential financial supporters of the college\'s \"Human Development
Institute\" were gathered in town for the weekend, and the Institute was
seeking students who would help with entertainment and campus tours for
the spouses of these businesspeople. The real experiment, of course, was
underway. Some subjects were offered \$0.50 per hour and some were
offered \$1.50 (or some amount closer to \$3 and \$9, respectively, in
2003 values). Just twenty-four percent of the low-payment subjects
volunteered, while sixty-eight percent of the high-payment subjects did
so. [[\[FN113\]](#Document1zzFN_F113)]{.underline} Volunteering was
therefore correlated with the amount of money offered, hardly a shocking
result.

**\*159** More revealing findings, however, came out of the second part
of the experiment. \"Observers,\" who had been privy to all elements of
the first part of the study, were asked about their perceptions of the
volunteers\' reasons for agreeing or declining to assist the Institute
over the weekend. The observers apparently attributed the differences in
volunteering to the stable dispositions of the individual subjects,
rather than to the amount of money that each was offered in the
situation. Asked \"\[h\]ow likely do you think it is that \[the
subject\] would also volunteer to canvass for the United Fund?,\"
observers responded that those who had volunteered in the present
experiment would be substantially more likely to volunteer for the
United Fund than would those who had not presently volunteered,
regardless of how much they had been offered.
[[\[FN114\]](#Document1zzFN_F114)]{.underline} \"Observers were
apparently misled by the actor\'s behavior, assuming it reflected a
dispositional tendency to volunteer rather than a response to a suitably
compensated \'job opportunity.\"\'
[[\[FN115\]](#Document1zzFN_F115)]{.underline}

This study suggests the depth of our dispositionism. It can run deeper
than any intuitive belief in the selfish or profiteering nature of human
behavior; we think people are the way they are, irrespective of the
influences under which they act at any moment. We are prone to
dispositionism even where situational factors are visible, countable,
and widely acknowledged to be a source of incentives and influence. Of
all the non-human, non-threatening situational factors, it is difficult
to think of one more obvious and unmistakable than cash. And yet, even
when money is the clear motive, we still tend to see disposition.

This is one place where economists part ways with the rest of us, though
as argued in the next subsection, not nearly so far as it might
initially appear. The self-interested, rational actor of many economic
models acts pursuant to one primary situational factor\--money\--in the
forms of prices and incomes. An economist would not miss the implied
upward-sloping supply curve in the experiment just described. The
volunteer ratios would be explained immediately and solely by the
situational distance between \$0.50 and \$1.50.

b\. The limits of economists\' situationism

One should not be fooled by this fleeting attributional accuracy, for it
is just a consequence of the otherwise dispositional assumptions
**\*160** behind the rational actor model. It is actually the important
similarity between the economist and the non-economist as
dispositionists that is most striking.

As we have already suggested, the reason that economists see the
situational role of money is because of their preliminary assumption
that people are dispositionally motivated to pursue little else. Close
inspection reveals that economists actually provide an unjustifiably
anemic version of their favored situational factor, as their models
allow for only a fraction of the situational force of price. For
example, a fundamental assumption of legal economists, one that quietly
makes possible much of their analysis, is that a person\'s willingness
to pay equals her willingness to accept for the same item. That is, a
person would be willing to pay as much for a widget as that person would
be willing to accept in payment from another party for selling that same
widget. That assumption is, for example, central to the Coase Theorem\'s
instruction that well-functioning markets will yield allocatively
efficient outcomes.

Yet, even if one ignores the growing evidence from economic
behavioralists that willingness to pay tends to be significantly lower
than willingness to accept,
[[\[FN116\]](#Document1zzFN_F116)]{.underline} such a starting place
entirely disregards the role of external situation. More specifically, a
\"basic principle of economics\"
[[\[FN117\]](#Document1zzFN_F117)]{.underline} that assets tend to
\"gravitate toward their most valuable uses if voluntary exchange\--a
market\--is permitted\" [[\[FN118\]](#Document1zzFN_F118)]{.underline}
ignores the fact that a person\'s \"willingness to pay,\" will to a
great degree reflect that person\'s \"ability to pay.\" In other words,
the basic principle of economics treats situation (ability to pay) as
disposition (willingness to pay). Richard Posner describes this
translation of situational constraints into dispositional tendencies in
the introduction to his seminal law and economics text:

Suppose that pituitary extract is in very scarce supply relative to the
demand and is therefore very expensive. A poor family has a child who
will be a dwarf if he does not get some of the extract, but the family
cannot afford the price and could not even if they could borrow against
the child\'s future earnings as a person of normal height . . . . A rich
family has a child who will grow to normal height, but the extract will
add a few inches more, and his parents decide to buy it for him.
**\*161** In the sense of value used in this book \[Economic Analysis of
Law\], the pituitary extract is more valuable to the rich than to the
poor family, because value is measured by willingness to pay; but the
extract would confer greater happiness in the hands of the poor family
than in the hands of the rich one.

As this example shows, the term efficiency, when used as in this book to
denote that allocation of resources in which value is maximized, has
limitations as an ethical criterion of social decisionmaking . . . .
Although no effort will be made in this book to defend efficiency as the
only worthwhile criterion of social choice, . . . it is an important
criterion. In many areas of interest to the economic analyst of law, . .
. it is . . . the main thing that students of public policy worry about.
[[\[FN119\]](#Document1zzFN_F119)]{.underline}

In short, economists are situationally sensitive in only the narrowest
sense\--taking into account the way in which price might influence
people\'s actions based on their willingness to pay, but refusing to
look at the situational backdrop to that disposition.
[[\[FN120\]](#Document1zzFN_F120)]{.underline} As the Posner quotation
exemplifies, economists do not typically go very far to justify that
situational blindness. [[\[FN121\]](#Document1zzFN_F121)]{.underline}
But it is a blindness that arguably implicates even the most central
features of their theory.

Indeed, it may be that same type of situational influence (ability to
pay as limited by \"budget constraints\" or prices) and not the presumed
dispositional forces (rational ranking of preferences) that puts the
\"down\" in the downward-sloping demand curve, the crown jewel of
economic theory. [[\[FN122\]](#Document1zzFN_F122)]{.underline} As Nobel
Laureate Gary Becker taught forty years ago:

Negatively inclined market demand curves result not so much from
rational behavior per se as from a general principle which includes a
wide class of irrational behavior as well. Therefore, households can be
**\*162** said to behave not only \"as if\" they were rational but also
\"as if\" they were irrational: the major piece of empirical evidence
justifying the first statement can equally well justify the second . . .
.

\[T\]he change in opportunities resulting from a change in relative
prices also tends to produce a systematic response, regardless of the
decision rule. In particular, the fundamental theorem of traditional
theory\--that demand curves are negatively inclined\--largely results
from the change in opportunities alone and is largely independent of the
decision rule. [[\[FN123\]](#Document1zzFN_F123)]{.underline}

. . . .

Not only utility maximization but also many other decision rules,
incorporating a wide variety of irrational behavior, lead to negatively
inclined demand curves because of the effect of a change in prices on
opportunities. [[\[FN124\]](#Document1zzFN_F124)]{.underline}

. . . .

Hence the market would act as if \"it\" were rational not only when
households were rational, but also when they were inert, impulsive, or
otherwise irrational. [[\[FN125\]](#Document1zzFN_F125)]{.underline}

. . . .

Indeed, the most important substantive result of this paper is that
irrational units would often be \"forced\" by a \[situational\] change
in opportunities to respond rationally. For example, impulsive
households would tend to have negatively inclined demand curves because
a rise in the price of one commodity would shift opportunities toward
others, leaving less chance to purchase this one even impulsively. Other
irrational households would likewise tend to have negatively inclined
demand curves, irrational firms negatively inclined demand curves for
inputs, and irrational workers positively inclined supply curves to
occupations. [[\[FN126\]](#Document1zzFN_F126)]{.underline}

Strikingly, despite Becker\'s demonstration that downward-sloping demand
curves do not imply rational behavior, many subsequent economists
(particularly legal economists) have ignored or trivialized it.
[[\[FN127\]](#Document1zzFN_F127)]{.underline} The idea that situation
is central and disposition is peripheral **\*163** has no purchase,
given what economists seem to \"know\" about their world (as confirmed
by their human vision and, tautologically, by the shape and slope of the
demand curves they have \"seen\").
[[\[FN128\]](#Document1zzFN_F128)]{.underline} It is as though legal
economists, like the rest of us, are so swept up by the play that they
forget that they are watching one and come to believe that the
characters in it are internally, dispositionally motivated. Becker\'s
point has been regarded as a move in a logic game; it is treated as a
bizarre, if strictly speaking correct, theoretical insight.
[[\[FN129\]](#Document1zzFN_F129)]{.underline} His point is stripped of
its power as the human figures are caricatured as \"irrational\" actors
and the more revealing depth of the insight is not pursued: situation is
often more potent than we acknowledge, exerting a greater influence over
our actions than disposition.

Besides the narrow treatment of price and budget, the other major
exception to economists\' dispositionism is, as for the rest of us, the
case in which someone acts in response to a significant threat (usually
of force) posed by another person\--prototypically a bullet to the
brain. Robert Cooter and Thomas Ulen, in their highly regarded law and
economics text, provide a fairly conventional description of when
situation should be considered in the law of contracts:

\[S\]ometimes one of the parties to a bargain faces a dire constraint. A
dire constraint leaves the decision-maker with little or no choice.
Contract law treats dire constraints differently . . . .

Law prohibits people from making threats such as, \"Work for me if you
want your sister to come home safely from school . . . .\"
[[\[FN130\]](#Document1zzFN_F130)]{.underline}

Then, at the conclusion of their analysis, they ask the reader to
explain the efficiency argument against enforcing the following
arrangement: \"Suppose that person A, while aiming a gun at person B,
invites B to write a check.\"
[[\[FN131\]](#Document1zzFN_F131)]{.underline} As such hypotheticals
illustrate, **\*164** situation is easy to see, if not impossible to
miss, when it is brandishing a revolver.
[[\[FN132\]](#Document1zzFN_F132)]{.underline}

Along with those scenarios, Cooter and Ulen offer some less dramatic
examples, such as a crew threatening to walkout midway through a
chartered fishing voyage in an effort to extract higher wages from their
captain. [[\[FN133\]](#Document1zzFN_F133)]{.underline} But even
examples that do not involve violent threats still involve \"threats.\"
[[\[FN134\]](#Document1zzFN_F134)]{.underline} And those threats are
made clear by one or more dispositionally motivated human actors seeking
to force one party to act contrary to his or her interests absent the
threat. In other words, only an extremely narrow range of situational
factors count\--those of dispositionally bad actors. Cooter and Ulen\'s
lesson is that constraints less \"dire\" than the sort indicated in
their examples are ignored in contract law, and properly so from an
economic perspective. [[\[FN135\]](#Document1zzFN_F135)]{.underline}

But these exceptions do not reveal a true sensitivity to situation; they
expose only the tiny and predictable exception to dispositionism that
proves the rule. Indeed, these departures flow from the very same
current that creates the more general phenomenon\--the fundamental
attribution error\--to which they are exceptions. That current, recall,
originates from our cognitive tendency to \"see\" salient actors and
features and to miss the rest.
[[\[FN136\]](#Document1zzFN_F136)]{.underline} The general result is
that we tend to attribute a person\'s actions to her free choices
because we do not see the influence of situation. However, when the
situation takes the form of a threatening actor, we see that
\"situation\" and alter our conclusion regarding how free, in fact, the
first actor\'s **\*165** choices were. Put differently, a person is seen
to give up her seat for an 800-pound gorilla, not by free choice, but
because of the half-ton of hairy, menacing situation. If she gives up
her seat for an elderly person or a parent holding a child, in contrast,
suddenly it is her kind disposition that dominates the field, eclipsing
situation.

In sum, there is little or no place in economists\' models for
situational influences other than prices or narrowly defined threats. It
is not just the inability of poor parents to afford pituitary extract
for their children that the economic approach ignores; it is also the
myriad of situational influences that Milgram\'s studies and countless
other social psychological studies have exposed, and that economists
have yet to see, much less explain.
[[\[FN137\]](#Document1zzFN_F137)]{.underline} It is also the countless
situational influences that invisibly regulate us all\--as they would
the impoverished dwarf in Posner\'s example whose future earnings
presumptively would be less than those of an affluent person of normal
height. [[\[FN138\]](#Document1zzFN_F138)]{.underline} Thus, economists
exclude most of the vast range of situational influences in their
analyses, and provide no explanation for privileging guns and money over
the situational factors that they, like the rest of us, mostly ignore.

c\. Some situation behind our dispositionism

Social psychologists have discovered that our day-to-day dispositionism
goes still further. When we observe a person\'s behavior, we tend to
first characterize that person in terms of her disposition. Only then do
we begin to correct our characterization and take into account some of
the situational variables that may have shaped her behavior.
[[\[FN139\]](#Document1zzFN_F139)]{.underline} For instance, when we
observe someone who is acting nervously, we automatically infer that the
person is a nervous person. If we then discover that the person was
talking about her intimate life, we might adjust our initial inference
to take **\*166** that situational feature into account. We might, in
other words, drop or doubt our inference that she is dispositionally a
nervous person. [[\[FN140\]](#Document1zzFN_F140)]{.underline}

While initially inferring character and temperament from people\'s
behavior is an automatic process, correcting those initial inferences to
account for the situation requires effort.
[[\[FN141\]](#Document1zzFN_F141)]{.underline} We must expend cognitive
resources to correct our initial dispositional impressions. And if our
cognitive resources are being utilized because we are, say, preoccupied,
tired, or intoxicated, then we will be less able to correct our
dispositional inferences about people\'s behavior to account for the
situation. Consequently, we will inaccurately attribute a person\'s
behavior to her disposition rather than the underlying situation.
[[\[FN142\]](#Document1zzFN_F142)]{.underline} Put differently, our
situations influence the extent to which we take into account other
people\'s situations\--a tendency discussed at greater length below.
[[\[FN143\]](#Document1zzFN_F143)]{.underline}

More troubling still, \"even when we appreciate the impact of the
situation, want to correct our inferences for it, and have the cognitive
resources necessary for doing so, we may still fail to make sufficient
corrections.\" [[\[FN144\]](#Document1zzFN_F144)]{.underline} The
dispositional attribution that we initially and automatically make acts
as an anchor on the adjustments that we allow for situational factors.
\"Our ultimate conclusions about a person may remain contaminated by our
initial inferences about this person\'s character even if we consider
these inferences unwarranted and attempt to rid ourselves of this
contamination.\" [[\[FN145\]](#Document1zzFN_F145)]{.underline}

**\*167** 2. How Fundamental an Error Is Our Dispositionism?

As the previous subsection suggested, considerable evidence reveals that
our dispositionism runs very deep.
[[\[FN146\]](#Document1zzFN_F146)]{.underline} But even if most of us,
including legal economists, are hard-core dispositionists, there is a
second, related question regarding the extent to which dispositionism is
wrong: That is, just how influential is situation vis-à-vis disposition?
How much like a play are the settings in which humans actually find
themselves and observe others?

It is difficult to read about Milgram\'s experiments and the reactions
to them without strongly suspecting that the human presumption is
exactly inverted; that what we do not see dominates the little that we
do see. That suspicion would, in our view, be generally correct. But
since those early studies, social psychologists have managed to get a
better measure of that inversion, a sample of which we will highlight
here.

When we introduced Milgram\'s famous experiments, we asserted that most
readers would, like us, predict that they themselves would not have
carried out the instructions to shock a fellow experimental subject at
high voltages. Most readers surely would have predicted ex ante that the
vast majority of others would not have gone through with it either, just
as the lay people and psychologists surveyed by Milgram before his
experiment predicted. [[\[FN147\]](#Document1zzFN_F147)]{.underline}
This divergence between the common sense prediction and the actual
behavior, we indicated, was due to the erroneous presumption that people
behave dispositionally rather than situationally. In fact, the
situational features were central, leading many to shock their fellow
subjects despite having an otherwise normal or benign character.
[[\[FN148\]](#Document1zzFN_F148)]{.underline} Once one is familiar with
Milgram\'s experiments, it would seem difficult to deny his central
claim\--that situation played a major role in causing the subjects to
perform as they did.

And yet, social psychologists have found that even when exposed to the
Milgram study, people continue to conclude that the subjects were
motivated dispositionally and thus miss the power of the **\*168**
situation even when it is made explicit. For example, social
psych-ologist Martin Safer showed students Milgram\'s film, Obedience,
[[\[FN149\]](#Document1zzFN_F149)]{.underline} which portrays the
dynamics of the situational forces operating in Milgram\'s experiments.
One week later, Safer provided his students with a description of the
control experiment where the subject or \"teacher\" was free to choose
the shock level on his own, without any direction by the experimenter to
increase the voltage after each wrong answer.
[[\[FN150\]](#Document1zzFN_F150)]{.underline} Safer then asked the
students to make certain predictions, including the average shock level
set by the teachers in the control experiment and the percentage of
teachers choosing the maximum shock level.
[[\[FN151\]](#Document1zzFN_F151)]{.underline}

Even after seeing the film of the obedience experiment and the
situational pressures of the experiment, Safer\'s students still
believed that disposition was driving the teachers and would do so even
in other situations, including that in which they were given no orders
from the experimenter. When comparing the students\' forecasts to the
actual results of the control experiment, Safer\'s students
significantly overestimated both the average shock level set by the
teachers and the number of teachers who chose the maximum amount of
shock absent the most significant situational forces of the original
obedience experiment. [[\[FN152\]](#Document1zzFN_F152)]{.underline} In
other words, Safer\'s students persisted in believing that the teachers
in Milgram\'s original experiment were motivated by stable disposition
rather than the situation of the experiment.
[[\[FN153\]](#Document1zzFN_F153)]{.underline}

This, of course, completely contradicts the findings of the ex ante
surveys in which people drastically underestimated the amount of
**\*169** shocking that would occur with situational pressures present.
The contradiction again reveals the underlying consistency of the
stubborn command of our dispositionism. Even when the power of the
situation was made explicit, \"subjects continued to interpret behavior
in terms of presumed dispositions, rather than recognizing the crucial
role that Milgram\'s particular situation had played in producing his
disturbing demonstration.\"
[[\[FN154\]](#Document1zzFN_F154)]{.underline} Our dispositionism runs
deep, despite the fact that situation often runs deeper.

In another classic demonstration of this phenomenon, subjects were asked
to read a short essay on \"Castro\'s Cuba\" and to judge the true
attitude of the writer toward Castro. The subjects were informed that
the essay was a prepared answer to an examination question, in which
some exam takers were asked to criticize Castro\'s Cuba and other exam
takers were asked to defend it. Subjects thus understood that the writer
of any exam had little choice with respect to the position he or she
took regarding Castro\'s Cuba. Surprisingly, many of the subjects
nevertheless associated the writer\'s true attitude (disposition) toward
Castro with the content of the essay. If the writer wrote a pro-Castro
essay as (situationally) directed, many subjects concluded that the
writer was privately (dispositionally) pro-Castro, and vice versa.
[[\[FN155\]](#Document1zzFN_F155)]{.underline} Thus, even when
situational influences should be obvious and even when people are
watching what is tantamount to a play, humans still tend to overestimate
the role of disposition.

Consider another exemplary experiment. In this one, college students
participated in a simulated quiz game and were randomly assigned to
either of two roles: contestant or questioner.
[[\[FN156\]](#Document1zzFN_F156)]{.underline} Questioners were asked to
compose general-knowledge queries to be posed to the contestants, and
the contestants were instructed to answer as many of the questions as
they could. [[\[FN157\]](#Document1zzFN_F157)]{.underline} The
situational **\*170** advantage of the questioners is clear, given that
they could draw from their areas of personal expertise, while
contestants were forced to answer questions on unfamiliar topics.
Therefore, it should not have been surprising that contestants could
only give a small percentage of correct answers. Yet, when it came to
estimating the intelligence of the two groups, the situational advantage
was forgotten: both questioners and contestants grossly
under-appreciated the situational benefit of being a questioner. As a
result, both groups ranked the questioners as more generally
knowledgeable than contestants. In other words, the game was perceived
as a fair measure of general knowledge, and the failure of contestants
was attributed to disposition.
[[\[FN158\]](#Document1zzFN_F158)]{.underline} Put differently,
**\*171** participants saw the players and missed the playing field,
thus presuming that it was level.

Finally, consider the following experimental inquiry into the
social-psychological lessons of the classic Christian parable of the
Good Samaritan. In the biblical version of the story, Jesus, in response
to questioning by a lawyer about the meaning of neighborliness, tells of
a man mortally wounded and left on a road by thieves.
[[\[FN159\]](#Document1zzFN_F159)]{.underline} The man was passed first
by a priest, who saw the hurt man but did not stop to help him. Next, a
Levite (a priest\'s assistant) passed the man, saw him, but continued on
without stopping. Finally came a man from Samaria\--a Samaritan. He saw
the wounded man and \"was moved to pity. He went up and bandaged his
wounds . . . brought him to an inn, and looked after him there.\"
[[\[FN160\]](#Document1zzFN_F160)]{.underline} Having told this story,
Jesus turns to the lawyer and asks, \"Which of these three do you think
was neighbor to the man who fell into the hands of the robbers?\"
[[\[FN161\]](#Document1zzFN_F161)]{.underline} The answer, of course, is
that the Samaritan was the neighborly one, hence earning the
dispositional moniker the \"Good Samaritan.\"
[[\[FN162\]](#Document1zzFN_F162)]{.underline}

Social psychology, however, instructs that situation may provide a
better explanation for the conduct of the characters in this tale, as it
does in so much of our social life. This is not merely conjecture; it
has been subject to experiment.
[[\[FN163\]](#Document1zzFN_F163)]{.underline} Princeton Theological
Seminary **\*172** students were asked to prepare a brief extemporaneous
talk that would be recorded in a nearby building.
[[\[FN164\]](#Document1zzFN_F164)]{.underline} The experiment thus
neatly managed to have its subjects parallel the priestly vocations of
the characters in the biblical tale. Some of the students were told to
discuss possible jobs for seminary students, while the others were told
to discuss the parable of the Good Samaritan.
[[\[FN165\]](#Document1zzFN_F165)]{.underline} After informing them
about their respective talks, the experimenter told some of his
subjects, \"Oh, you\'re late. They were expecting you a few minutes ago.
We\'d better get moving.\"
[[\[FN166\]](#Document1zzFN_F166)]{.underline} These students were given
the high-hurry situational condition. Another group of subjects was
given an intermediate-hurry situational condition. This group was told,
\"The assistant is ready for you, so please go right over.\"
[[\[FN167\]](#Document1zzFN_F167)]{.underline} Finally, for a low-hurry
situational condition, the experimenter told the remaining subjects,
\"It\'ll be a few minutes before they\'re ready for you, but you might
as well head on over.\" [[\[FN168\]](#Document1zzFN_F168)]{.underline}

Along the route between the two buildings was a man, the experimenter\'s
undisclosed confederate, \"slumped in a doorway, head down, eyes closed,
not moving\[, coughing, and groaning\].\"
[[\[FN169\]](#Document1zzFN_F169)]{.underline} Only ten percent of the
seminarians who had been told they were running late (the high-hurry
situational condition) stopped to help the ailing man, and only
forty-five percent of the seminarians who were pressed for time (the
intermediate-hurry situational condition) offered help.
[[\[FN170\]](#Document1zzFN_F170)]{.underline} In contrast, among those
who were not pressed for time (the low-hurry situational condition),
sixty-three percent offered to help.
[[\[FN171\]](#Document1zzFN_F171)]{.underline} Again, a minor
situational manipulation produced a major behavioral difference. Perhaps
most indicative of the power of situational influence is that several of
the seminarians who were pressed for time and who were to speak on the
parable of the Good Samaritan \"literally stepped over the victim\" on
the way to give their talks.
[[\[FN172\]](#Document1zzFN_F172)]{.underline}

**\*173** What about dispositions? Before the experiment began, the
seminarians filled out a survey, answering a variety of questions about
themselves. [[\[FN173\]](#Document1zzFN_F173)]{.underline} For example,
the seminarians were asked whether their interest in religion stemmed
primarily from a desire to assure their own personal salvation or
whether it was primarily related to their desire to help others.
[[\[FN174\]](#Document1zzFN_F174)]{.underline} Such dispositional
self-ascriptions had \"virtually no role in determining whether the
subject stopped to help.\"
[[\[FN175\]](#Document1zzFN_F175)]{.underline} After analyzing
psychological evaluations of their forty subjects, the experimenters
found that the only significant variable that correlated with \"helping
behavior\" was time, a situational factor.
[[\[FN176\]](#Document1zzFN_F176)]{.underline} The fact that some of the
seminarians were to speak on the parable of the Good Samaritan, thereby
raising the salience of dispositional helping norms, did not
significantly affect helping behavior in the students.
[[\[FN177\]](#Document1zzFN_F177)]{.underline}

Taken together, these experiments help bring into relief the profound
power of situation over human action. They also reveal that such
influences are usually left unexamined in our daily lives, in our
stories, and in our theories about what moves people. There was little
evidence of a \"good seminarian\" or a \"bad seminarian,\" but there was
much evidence of \"situational seminarians.\" The differ-ence between
the priest who passes on and the Samaritan who stops may be more a
function of a bad or good situation than of a bad or good disposition.
[[\[FN178\]](#Document1zzFN_F178)]{.underline}

We humans tend to perceive disposition as dominating situation even
though evidence from social science strongly suggests the reverse; this
is, again, the fundamental attribution error. The objective here is not
to prove or to claim that disposition plays no role in our behavior, or
even that it does not sometimes play a very important role. Rather, the
objective is to make clear what social science reveals about just how
surprisingly slight that role is most of the time\--at least as compared
to what most of us believe and, **\*174** perhaps, want to believe.
[[\[FN179\]](#Document1zzFN_F179)]{.underline} Readers may, as we do,
take some reassurance from the fact that ten percent of the hurried
seminarians did stop to assist the ailing man, despite their perceived
time crunch. But again, it is easy to miss even the profound situational
influence wielded in that experiment by the groaning, slumped elderly
man. Settings with less compelling situational pressures for help are
likely to yield even less \"goodness.\" Indeed, a disheartening finding
is that, in the many versions of Milgram\'s studies, not a single
subject ever went to check on or assist the learner whom they believed
was being shocked, despite the learner\'s protests and ultimate silence
during the \"experiment\" and despite the teacher\'s own concern about
hurting the learner. [[\[FN180\]](#Document1zzFN_F180)]{.underline} Why
not? A good guess would be that offering such aid was somehow not
situationally scripted. [[\[FN181\]](#Document1zzFN_F181)]{.underline}

D. Some Sources of Dispositionism

Why do we see what isn\'t and fail to see what is? We have already
discussed several reasons. First, part of the answer stems from the fact
that human actions dominate the field in our causal attributions\--we
see what is most obvious and salient, and tend to miss the rest.
[[\[FN182\]](#Document1zzFN_F182)]{.underline} Perhaps that would not be
such a problem were we not so inclined to believe in the accuracy of our
vision\--that we see all there is to see, and that what we miss does not
exist. Second, even when there are situational features that we might
recognize as influential, we make dispositional attributions
automatically, while our situational adjustments require cognitive
effort\--meaning that dispositionism is the default inference, mutable
only when our minds **\*175** are not otherwise occupied.
[[\[FN183\]](#Document1zzFN_F183)]{.underline} Third, even then our
automatic dis-positional attributions will contaminate the adjustments
for situations that we do have the cognitive energy to make.
[[\[FN184\]](#Document1zzFN_F184)]{.underline} As significant as those
reasons are, there is more to consider.

To comprehend the robustness of dispositionism, it is necessary to
understand that the causal ambiguities that fog our experiences allow,
and often encourage, it. As Lee Ross and Richard Nisbett have argued at
length, our dispositionism often appears to be confirmed in the evidence
we encounter in our daily lives.
[[\[FN185\]](#Document1zzFN_F185)]{.underline} That is true in part
because we tend to see what we expect to see, and, particularly in
Western culture, disposition is the general expectation.
[[\[FN186\]](#Document1zzFN_F186)]{.underline} We will return to both of
these points below. [[\[FN187\]](#Document1zzFN_F187)]{.underline} For
now it is enough to say that our construals of what we experience (or of
our memories of what we have experienced) are far more malleable in
service of our expectations than we recognize.

But even if we were seeing what \"is,\" our dispositionist theory of
human conduct will tend to be confirmed by the evidence we encounter,
though our interpretation of that evidence is often fundamentally wrong.
We constantly see people behaving in ways consistent with our
assumptions about their personality traits, and we often conform our own
interactions with them based on those dispositional accounts. Our
predictions are confirmed, however, not because dispositions are in fact
stable, but because situations so often are:

In the course of ordinary experience, we rarely have a chance to observe
the same people in radically different roles or situations in a way that
would test fairly the cross-situational consistency of their geniality,
generosity, or ability to delay gratification. Nor do we systematically
vary our own behavior, or our status and circumstances, or the nature of
our relationships with others, to determine how their responses might
change as a result. [[\[FN188\]](#Document1zzFN_F188)]{.underline}

And even if \"the many situations in which we observe our acquaintances
are quite diverse, they all share an important **\*176** element\--our
presence.\" [[\[FN189\]](#Document1zzFN_F189)]{.underline} What we see
and what we expect to see operate as self-fulfilling, situational forces
on those we are observing [[\[FN190\]](#Document1zzFN_F190)]{.underline}
\--our dispositionism is part of the situation. As Ross and Nisbett
explain, none of this implies that dispositionism is correct; it implies
only that people will experience dispositionism as a reasonably reliable
heuristic for predicting behavior. Because the people we observe will
tend to behave as if they are motivated by disposition and not
situation, the data we collect will appear to confirm our flawed
dispositionist conception of the humans we are observing:

It is precisely the confounding of person and situation that allows
people to be well served by their naïve dispositionism. When we predict
that the behavior of professors will be professorial, that the behavior
of dictators will be dictatorial, that the behavior of servants will be
servile . . . it makes little difference whether we do so because we are
aware of the impact of the respective roles, because we have made
stereotyped judgments about the types of individuals who occupy such
roles, or because we have taken role-prescribed behavior at face value
and ascribed corresponding personality traits to the actor. In each
case, the performances we observe more often than not will confirm our
predictions . . . provided that no other powerful situational factors
suddenly intrude. [[\[FN191\]](#Document1zzFN_F191)]{.underline}

In all those ways, our dispositionism is shielded from having to
regularly confront unambiguously anomalous evidence.

**\*177** E. The Fundamental Interior Attribution Error (or, Getting
Ourselves Wrong)

We all wear glasses that carry a date in time and the name of some
geographic area, and with even the keenest of vision these glasses allow
us to see only limited distances and partial motion of our world.

\--George Stigler [[\[FN192\]](#Document1zzFN_F192)]{.underline}

The upside-down causal ascriptions behind the fundamental attribution
error are also explained by a more subtle, though as we\'ve emphasized
is often the case, no less important understanding of the human animal.
Appreciating its significance requires distin-guishing between two types
of fundamental attribution error. The first is the sort that we have
been discussing since opening the Article and that social psychologists
have in mind when they use the term. We will call this the exterior
fundamental attribution error. When humans look at any setting and make
causal attributions, certain key features of that setting\--the
observable actions of individuals\--exert disproportionate influence
over their evaluations. They see what is easy to see and tend to miss
what is not. Thus, observers give little or no weight to the fact that
Milgram\'s shock box had many switches instead of just one\--a
distinction that most social psychologists now recognize was likely
influential. All the observers see is the teacher shocking (or, if they
are imagining themselves in the teacher\'s role, not shocking) the
learner.

The theoretic primacy of dispositionism also reflects what we call the
interior fundamental attribution error. That error, which is analogous
to its exterior counterpart, is the tendency to \"see\" and attribute a
powerful causal role to certain salient features of our interior that
exercise comparatively little causal influence over our behavior while,
at the same time, failing to see those interior features that are highly
influential. Those salient features of our interior that we see, in
turn, make possible (if not likely) a theory of ourselves in which
dispositions play a role\--usually the dominant role\--in our behavior.
We are primed by our felt interior experience to see dispositions and to
overlook a potentially more significant influence\--the situation. In
that way, the interior fundamental attribution error contributes
significantly to the exterior fundamental attribution error.

**\*178** In a companion article, we describe what many people\--
particularly those of us in the West\--\"see\" when we look into our
interiors: above all, we \"observe\" ourselves thinking, perceive that
we have preferences, experience our \"wills,\" and see our actions,
which we attribute to that salient combination of thought, preferences,
and will. [[\[FN193\]](#Document1zzFN_F193)]{.underline} Again, that
myopic vision of our interiors, just like our vision of our exteriors,
is fundamentally distorted by our oversight of many far more important
influences that elude our conscious awareness.

The bulk of our companion article is devoted to bridging\--though only
loosely\--that gulf and examining the implications of the fundamental
interior attribution error. More specifically, that article describes at
length how causal attributions, motives, emotions, visceral factors,
implicit attitudes, knowledge structures, affiliations and group
memberships, and behavior itself invisibly influence our more visible
cognitions, attitudes, and actions. It explains how the desire to see
ourselves, the groups and institutions with which we identify, and our
world in self-affirming ways, has an immense effect on how we construe
our environs and ourselves, including our own interiors.
[[\[FN194\]](#Document1zzFN_F194)]{.underline} In doing so, the
companion article helps to clarify how the interior and exterior
fundamental attribution errors combine to render \"axiomatic, though
generally implicit, in many modern Western cultures,\" the beliefs that:

• Actions are freely chosen.

• Choices imply a preference.

• Preferences are stable over time.

• Preferences implicate the identity of the self.

• Outcomes are mostly controllable.

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

• Smart (good) people make good choices whose outcomes they are happy
with. [[\[FN195\]](#Document1zzFN_F195)]{.underline}

**\*179** Those axioms are implicit for most of us, and, as this Article
and our next illuminate, they define the starting points for most
scholars and policymakers. Indeed, neoclassical economists have built
their theory around a formal version of those basic axioms. According to
conventional economic assumptions, a person\'s preferences can be
inferred from that person\'s choices\--the latter reveal the former.
[[\[FN196\]](#Document1zzFN_F196)]{.underline} As illustrated in this
Article and its companion, the starting points of dominant legal
theories are unrealistic and are based on fundamentally inaccurate
visions of humanity.

III\. A Brief Introduction to Critical Realism

\[T\]he search was on, from World War II onwards, for a new method to
replace the deductive approach of the late nineteenth century with some
criterion for judicial lawmaking other than open-ended, contextualized
policy analysis, one that would be plausibly non-political.

\--Duncan Kennedy [[\[FN197\]](#Document1zzFN_F197)]{.underline}

The life of the law has not been logic: it has been experience.

\--Oliver Wendell Holmes [[\[FN198\]](#Document1zzFN_F198)]{.underline}

In light of evidence about how real humans actually behave, most
conventional legal theories, which are based primarily on dispositionist
premises, seem suspect. By way of an alternative, therefore, this
Section introduces critical realism\--the legal theoretic approach
hinted at above, named and cursorily defined here, and employed in this
Article and in others to follow.
[[\[FN199\]](#Document1zzFN_F199)]{.underline}

Because terms like \"critical\" and \"realism\" have been widely used to
describe a variety of legal-theoretic approaches, and because they have
been infused with a variety of meanings, we begin by offering a loose,
simple explanation of what we hope to capture by the phrase \"critical
realism.\" [[\[FN200\]](#Document1zzFN_F200)]{.underline}

**\*181** A. \"Realism\"

By \"realism\" we mean, first, to suggest that our approach is a
descendent of American legal realism and to claim allegiance to the
basic assumptions and attitudes that its other descendents, including
law and economics [[\[FN201\]](#Document1zzFN_F201)]{.underline} and law
and society, claim. The theoretical foundation of the legal realist
tradition includes \"a \'scientific outlook\' that posits a knowable
world out there beyond the text, a world whose workings are not
transparent and which invite exploration to discern their deeper and
truer contours.\" [[\[FN202\]](#Document1zzFN_F202)]{.underline} This
tradition of realism has been driven by the desire to \"explain legal
realities\" through a commitment to the belief that \"legal scholarship
(and law) will be enriched by the application of science.\"
[[\[FN203\]](#Document1zzFN_F203)]{.underline} The \"science\" of this
tradition is a social science, for the realist is committed to the
consequentialist belief that \"the meaning of law resides in its effects
on human well-being (variously conceived) **\*182** rather than in its
formal characteristics.\" [[\[FN204\]](#Document1zzFN_F204)]{.underline}
Perhaps most import-antly, legal realists believe that their task is not
only important, but promising; the history of realism has been advanced
under \"a conviction that knowledge derived from \[its\] undertaking can
promote greater felicity by modifying social arrangements.\"
[[\[FN205\]](#Document1zzFN_F205)]{.underline} We will return to this
discussion of realism, but we first want to briefly explain the
\"critical\" side of critical realism.

B. \"Critical\"

By \"critical,\" we mean to suggest that our theory is also a descendent
of critical legal studies and other post-modern approaches to law, such
as feminist legal theory and critical race theory.
[[\[FN206\]](#Document1zzFN_F206)]{.underline} To be critical, we
believe, means to have (as we do) serious reservations about how
\"knowable\" our world is, about the existence of truly neutral,
apolitical social sciences and legal doctrines, and about the
independence of judges, scholars, and other reputedly neutral actors and
institutions from the influence of existing allocations of power.

We do not see any necessary contradiction between the \"realism\" leg
and the \"critical\" leg of our approach, and it is in part our belief
that a successful legal theory must stand on both legs that motivates
this project. Social scientists are never free from the deep biases that
shadow human thinking, and they should therefore be continually
self-critical and suspicious of the \"knowledge\" they produce.
Nevertheless, social science done well can help us understand those
biases and limitations, and, in turn, their influence over our theories
and institutions. Such insights can assist us in better understanding
our social arrangements and in improving overall well-being.

Holmes believed that the life of the law is experience, and so it may
be, but to make sense of and to guide that life, legal scholars, among
others, should be skeptical of how that experience is construed. Legal
analysis, in other words, should begin with a critical examination of
our experience and our perceptions of that experience. So critical
realism is dedicated to gaining knowledge **\*183** about our world
through scientific inquiry and theoretical analysis, while
simultaneously seeking to unearth and understand the myriad biases that
render suspicious the \"knowledge\" that our inquiries and theories
produce. [[\[FN207\]](#Document1zzFN_F207)]{.underline}

C. What Is So Critical About Realism?

We have been moving in a direction in which we have an increasingly
limited control over our own lives, and that movement has been nourished
by a series of arguments which, quite simply, are untrue.

\--Milton Friedman [[\[FN208\]](#Document1zzFN_F208)]{.underline}

With that, we can describe a second, even more important facet of what
we mean by \"critical realism.\" For reasons that were suggested above
and will become more evident below, we believe that, to best promote
human understanding and well-being, legal theories must be anchored in a
reality-based understanding of human thinking and behavior. Realism, we
think, is critical. To be realists, on this telling, means to begin with
real humans and to build models from there, rather than to begin with
models and then view and interpret humans through them. The distinction
may be better understood by contrasting our approach with what we do not
mean by realism, and by describing and distinguishing among the
quasi-realistic commitments that some legal scholars have recently made.

In a related article, we detail the justifications that economists offer
for dispositionism in economics and the extent to which economic and
legal-economic theorists have, in the name of realism, begun to relax
some of the traditional assumptions behind the basic rational actor
model. [[\[FN209\]](#Document1zzFN_F209)]{.underline} As we conclude in
that article, there is no compelling justification for the various
shades of unrealism of economics and law and economics, which are more
or less premised **\*184** on the same fundamental attribution error
that distorts all human reasoning.
[[\[FN210\]](#Document1zzFN_F210)]{.underline} In this Article, we want
to focus briefly on just one of the more common justifications offered
for eschewing a realistic account of the human animal. It seems that a
key reason why legal economists have been so unwilling to get real about
human nature has to do with a somewhat amorphous, but nonetheless
powerful fear, that realism is dangerous.

1\. Facing Our Fears of Reality

For example, in an article devoted to considering the implications of
cognitive psychology for existing products liability laws, Professors
Henderson and Rachlinski generally assume that consumers are
dispositional, if cognitively biased, actors. However, they con-clude
their article by briefly acknowledging the possibility that stable
preferences may not in fact underlie consumer \"choices\":

The notion that manufacturers distort consumer risk\--perception assumes
that there is some natural and appropriate risk-benefit assessment from
which manufacturers lead consumers astray. If we take seriously the
psychological proposition that all preferences are constructed, then
there is no magical correct level of risk that consumers should endure.
[[\[FN211\]](#Document1zzFN_F211)]{.underline}

Their point seems to be that if policymakers were to take seriously that
possibility, then policy theory as we know it would be rendered largely
meaningless. We may agree with that claim. But Henderson and
Rachlinksi\'s closing observation highlights a troubling and common
unwillingness\--even among cognitive psychologists like Rachlinski\--to
confront the reality that the available evidence reveals. If the
implications of cognitive psychology are as drastic as Henderson and
Rachlinski suggest they might be, then why highlight those implications
only in a concluding comment, rather than beginning with them? And why
would Henderson and Rachlinski largely ignore those implications in
reaching definitive policy prescriptions throughout their article (and
work)? [[\[FN212\]](#Document1zzFN_F212)]{.underline}

**\*185** Likewise, numerous psychology-sensitive scholars emphasize the
influence of context or situation when downplaying the relevance of
social psychological insights for policy, but then ignore the behavioral
implications of context in applying the theoretical model of law and
economics to policy analysis.
[[\[FN213\]](#Document1zzFN_F213)]{.underline} One important reason for
this tendency, we suspect, is that these scholars are human, and we
humans want our world to make sense.
[[\[FN214\]](#Document1zzFN_F214)]{.underline} We do not easily
relinquish a model of behavior or a vision of ourselves that provides us
with a feeling of predictability, manageability, and control, or that
allows us to maintain positive self-conceptions. We are afraid of
letting go of comforting, if false, images of our world and of
ourselves. [[\[FN215\]](#Document1zzFN_F215)]{.underline} And that fear,
like most, can be manipulated and exploited.

Like Henderson and Rachlinski, Samuel Issacharoff concludes his review
of behavioralist literature by emphasizing the need for \"humility\"
among those who apply its insights. He does not dispute many of
behavioralism\'s findings; instead, he worries about their application.
As he sees it, individualism and autonomy are themselves threatened by
what behavioralism demonstrates, a threat that counsels caution:

\[Behavioralism\'s insights\] cannot possibly translate into a
justification for greater constraints on individual decision making.
Bounded rationality should not become the pretext for the imposition of
an overarching regulatory structure on individuals . . . . \[I\]t would
indeed be ironic if greater insight into the complexity of human
decision making became the justification for taking the freedom to
decide, even imperfectly, from those very individuals.
[[\[FN216\]](#Document1zzFN_F216)]{.underline}

Issacharoff implies that if a more accurate understanding of human
behavior interferes with our preferred conception of who we **\*186**
are, then the former must yield. Beware of those who challenge the basic
economic model, no matter how unrealistic it may be, he seems to argue,
for their apparent realism may be mere pretextual cover for the
imposition of an \"overarching regulatory structure.\"
[[\[FN217\]](#Document1zzFN_F217)]{.underline} Beware of those who
interfere with your \"individual decision making,\" for what is at stake
is your \"freedom to decide.\"
[[\[FN218\]](#Document1zzFN_F218)]{.underline}

Posner brings Issacharoff\'s closeted bogeyman out into the open. In
responding to Jolls, Thaler, and Sunstein\'s important work on
behavioral economics, [[\[FN219\]](#Document1zzFN_F219)]{.underline} he
writes, again in a concluding paragraph:

I wish to consider briefly \[behavioral economics\'\] possible normative
implications. On the one hand, the picture of the human being that
\[Jolls, Sunstein, and Thaler\] draw is one of unstable preferences and
(what turns out to be related), infinite manipulability. If you give a
worker childbirth coverage, she\'ll like it (endowment effect); but if
you don\'t give it to her, she\'ll dislike it (more precisely, won\'t
pay for it in lower wages) . . . . If you describe the threat of breast
cancer to a woman in one way, she\'ll want a mammogram, but if you
describe it another although logically equivalent way, she won\'t. It
seems then that the politically insulated corps of experts that \[Jolls,
Sunstein, and Thaler\] favor would be charged with determining the
populace\'s authentic preferences, which sounds totalitarian. On the
other hand, . . . \[t\]he expert, too, is behavioral man. Behavioral man
behaves in unpredictable ways. Dare we vest responsibility for curing
irrationality in the irrational?
[[\[FN220\]](#Document1zzFN_F220)]{.underline}

In our view, Posner misrepresents Jolls, Sunstein, and Thaler\'s far
more nuanced and restrained normative prescriptions. (Rest assured, they
never proposed a Bureau of Authentic Preferences.) But, for our
purposes, it is enough to point out the method by which Posner seeks to
persuade his readers. More vividly than the others, he seems to be
stoking\--and perhaps revealing his own\--fear by embracing the very
phenomena that he is attempting to have us disregard. He accepts the
influence of the framing and endowment effects, while at the same time
suggesting that their very invocation raises the specter of
totalitarianism or a \"confederacy of dunces.\"

**\*187** 2. Thinking the Unthinkable

Legal economists often take pride in the fact that they are willing to
reach the conclusions that their theories yield, no matter how unpopular
or unconventional they may be. To them, that willingness helps prove
that they are neutral scientists.
[[\[FN221\]](#Document1zzFN_F221)]{.underline} \"Should the sale of
babies be made legal?\" Richard Posner asks. \"The idea strikes most
people as bizarre and offensive . . . . However, economists like to
think about the unthinkable, so let us examine in a scientific spirit
the objections to permitting the sale of babies for adoption.\"
[[\[FN222\]](#Document1zzFN_F222)]{.underline} Posner acts as if he is
broad-minded, compelled by principles of good science to apply his
paradigm in all settings no matter how much non-economists disagree with
his result.

But this habit of ending articles with a caution to readers about the
perils of taking seriously a realistic account of human behavior (as
noted in the previous subsection) reveals a different picture. These are
not the words of social scientists pursuing truth wherever it leads
them. Rather, these are more the words of a fundamentalist preacher
warning members of his flock to avoid having their minds polluted or
confused by anyone who would argue that dinosaurs once roamed the earth
or that our species \"evolved.\" These, more broadly, are the words of
someone guarding, for himself and his audience, the comfort and
reassurance of a worldview that faithfully yields familiar, easy, and
agreeable answers.

There is far more at stake than whether or not preferences are
manipulable or what products liability law should be. These scholars
seem worried about the threat posed to an entire school of thought and
to their ability to generate credible conclusions using the methods of
that school. They also seem worried about the threat posed to an entire
socioeconomic system that is built on the same basic dispositionist
assumptions that they refuse to challenge. Their implicit warning to
readers is to close their minds, because otherwise something between
chaos and communism will surely be loosed upon us. Because we are human,
taking seriously evidence that thoroughly challenges our worldviews, our
frames of reference, **\*188** our theories, and our systems, is truly
\"think\[ing\] . . . the unthinkable.\"
[[\[FN223\]](#Document1zzFN_F223)]{.underline}

Our biggest problem with this sort of scare tactic is not that there is
no truth to it. If, as the evidence suggests, preferences are unstable,
constructed, and manipulable, this should give rise to concern about the
legitimacy of our systems, about our being manipulated, and even about
our being subjected to some form of totalitarianism. The bogeyman that
law and economics scholars seek to keep at bay may be real. But relying
on models that ignore that possibility does not make the evidence or its
repercussions go away, any more than lying motionless under a blanket
would provide a defense against an authentic monster. Hiding our heads
as a defense tactic succeeds only when the danger is just in our heads.

If we are anything close to infinitely manipulable, as Posner
conjectures, [[\[FN224\]](#Document1zzFN_F224)]{.underline} or if all
preferences are \"constructed,\" as Henderson and Rachlinski
hypothesize, [[\[FN225\]](#Document1zzFN_F225)]{.underline} then the
\"free choice\" that scholars presume to be reflected in our behavior
(and claim to want to protect) may be an illusion. We may already be in
the grips of a bogeyman\--a situation closer to the totalitarian
nightmare than inadequately realistic models enable us to see.

This returns us to one of our main themes: if situation is far more
influential than we realize, then the dispositions that we assume are
primary to the human experience may be largely an illusion. Social
scientists should be committed to examining the implications of what we
know to be true, no matter how much we want to deny it, and rejecting
what we know to be false no matter how much we want to embrace it. That
is what is critical about realism.

**\*189** 3. Faith or Social Science?

\[F\]indings ought not to be judged by the level of comfort they provide
about acceptable views of human nature or the personal comfort the
findings afford. . . . It is not surprising when a lack of synchrony
between our view of ourselves as unbiased (\"I am a morally good
person\") and evidence of ourselves as biased (\"I am not a morally good
person\") controls assessments of the finding of such discrepancies on
the part of laypeople; it is a bit embarrassing when the same is
possibly true of scientists themselves.

\--Mahzarin R. Banaji [[\[FN226\]](#Document1zzFN_F226)]{.underline}

We are now ready to return to our earlier discussion of law and
economics and Posner\'s claims regarding the dominance of that approach.
[[\[FN227\]](#Document1zzFN_F227)]{.underline} In describing his
commitment to objectivity and empiricism, a commitment that is shared
(at least implicitly) by most legal economists, Posner has written
earnestly of the need to employ the scientific method. In one of his
early articles, for example, he wrote:

As biology is to living organisms, astronomy to the stars, or economics
to the price system, so should legal studies be to the legal system: an
endeavor to make precise, objective, and systematic observations of how
the legal system operates in fact and to discover and explain the
recurrent patterns in the observations\--the \"laws\" of the system.
[[\[FN228\]](#Document1zzFN_F228)]{.underline} Nearly two decades later,
he wrote similarly about the aspirations of the approach he helped
found:

To me the most interesting aspect of the law and economics movement has
been its aspiration to place the study of law on a scientific basis,
with coherent theory, precise hypotheses deduced from the theory, and
empirical tests of the hypotheses. Law is a social institution of
enormous antiquity and importance, and I can see no reason why it should
not be amenable to scientific study. Economics is the most advanced of
the social sciences, and the legal system contains many parallels to and
overlaps with the systems that economists have studied successfully.
[[\[FN229\]](#Document1zzFN_F229)]{.underline} **\*190** And recently,
he has written about the concomitant need to dismiss the work of those
who do not operate accordingly:

The rotation of the moons of Jupiter was anomalous in medieval cosmology
because each planet (other than the earth, which was not considered a
planet, but instead the center around which the planets revolved) was
thought to be fastened to a crystalline sphere, which the moons would
have collided with in their rotation. The anomaly could be dispelled by
assuming that the sphere was permeable, or by assuming (as Cardinal
Bellarmine did in his famous dispute with Galileo) that the telescopic
observations that had disclosed the rotation of Jupiter\'s moons were a
deceit by the devil. Whichever route was taken, the amended theory would
not generate any predictions about planetary satellites; all it would
predict was that whatever would be, would be.
[[\[FN230\]](#Document1zzFN_F230)]{.underline} Posner\'s message is
clear: the scientific approach should be embraced, and those theories
grounded in little more than faith or non-falsifiable assertions should
be rejected, particularly when they compete with a viable social
scientific theory.

And it is purportedly based on that Galileo-like self-image that Posner
has asserted that \"the economic theory of law seems the best positive
theory of law extant.\" [[\[FN231\]](#Document1zzFN_F231)]{.underline}
It is simply \"rich\[er\] in theoretical and empirical content\" than
any of its competitors. [[\[FN232\]](#Document1zzFN_F232)]{.underline}
And Posner\'s views are held at least implicitly by most legal
economists. So, for example, Cooter and Ulen \"can say that economics
provides a behavioral theory to predict how people respond to changes in
laws,\" and that this behavioral \"theory surpasses intuition, just as
science surpasses common sense.\"
[[\[FN233\]](#Document1zzFN_F233)]{.underline}

We wholeheartedly agree with the general case for relying on the
scientific method. But, for the reasons we have provided, we reject the
claim by legal economists that the dominance of law and economics has
much to do with its theoretical and empirical content or their loyalty
to the scientific method\--at least in the way they suggest. Legal
economists have missed, among other things, that **\*191** they have
unconsciously adopted, not the scientific approach of Galileo, but the
faith-based approach of Cardinal Bellarmine.
[[\[FN234\]](#Document1zzFN_F234)]{.underline}

It is the economists who resist seeing or taking seriously what others
are revealing, through the scientific method, about what moves us.
[[\[FN235\]](#Document1zzFN_F235)]{.underline} And they are doing so
based on a theory that has been falsified (or is non-falsifiable) and,
which, therefore, is based, at bottom, on an evidence-blind intuition or
faith. Although Posner and other legal economists do not stoop to
warning readers about the \"devil\" being behind the heretical visions
of social psychologists, they do, as we have noted, commonly raise the
specter of a close cousin: \"the totalitarian bogeyman.\"
[[\[FN236\]](#Document1zzFN_F236)]{.underline}

D. Some Presuppositions of Critical Realism

What we do and do not mean by \"critical realism\" will become clearer
below. But before introducing one of its important implications, it may
be helpful to summarize several strong presumptions or axioms that we
intend critical realism to build upon\--principles that we have
suggested in our discussion to this point:

• First, we\--scholars and non-scholars alike\--do not understand
ourselves well, and certainly not as well as we think we do.

**\*192** • Second, the process of developing theories or models is a
human one and is therefore subject to all sorts of biases and
unperceived influences. It is largely for that reason that the
impressions and models\--informal and formal\--that we legal scholars
have created to help us understand ourselves tend to be flawed and
self-serving.

• Third, we cannot hope to make sense of our institutions or ourselves
until we better understand how humans go about trying to make sense of
themselves and their institutions. To develop a theory that is free of,
or at least less distorted by, such biases, it is necessary to more
closely examine both the process that yields those biases and the biases
themselves.

• And, fourth, a promising way to understand human cognition and
behavior is to begin with those schools of thought and those
institutions that are devoted to understanding human cognition and
behavior. In this Article, we look primarily to one such source, social
psychology, [[\[FN237\]](#Document1zzFN_F237)]{.underline} but we will
also look briefly at what market practices can teach us about ourselves.

It is by bringing these principles together with the lessons taught by
social psychology and markets that critical realism provides unique and,
for many, unsettling insights about who we are, why we behave as we do,
and what we should do about it, if anything.

**\*193** IV. Brief Introduction to Power Economics

Most Marxists . . . \[believe\] politics is but a reflection of the
underlying economic order. The bourgeoisie, and especially the large
corporations, will acquire and use the power of the state to protect and
enhance their interests. . . .

But many non-Marxist scholars also doubt that the government will
regulate an industry over the objections or against the interests of
business. This view, held chiefly . . . by certain economists, does not
arise out of any conviction that the historically formed interests of
the dominant social class always find expression in the prevailing
political structure, but rather out of the assumption that individual
behavior can best be understood by assuming that it is rationally
self-interested. Indeed, most economists find the Marxist argument murky
and unconvincing precisely because it lacks any psychological theory
that would explain how class position determines individual behavior.

\--James Q. Wilson [[\[FN238\]](#Document1zzFN_F238)]{.underline}

It\'s true that if you had concentrated power in the hands of an angel
he might be able to do a lot of good, as he viewed it, but one man\'s
good is another man\'s bad. The great virtue of a market capitalist
society is that, by preventing a concentration of power, it prevents
people from doing the kind of harm which concentrated power can do.

\--Milton Friedman [[\[FN239\]](#Document1zzFN_F239)]{.underline}

It is certainly the case that many Nazi concentration camp guards led
blameless lives, both before and after their horrible service. To
explain such complicity, therefore, we must assume the existence of a
specific social and situational context that could induce ordinary
people to commit extraordinarily evil deeds.

\--Ross & Nisbett [[\[FN240\]](#Document1zzFN_F240)]{.underline}

A. Power

Think back to our example of the gunman who commands you to flip a
switch that will deliver a violent electric shock to a pleading victim.
[[\[FN241\]](#Document1zzFN_F241)]{.underline} That is an example of
power, as we mean it in this Article. Power is the use of situational
devices (like guns) to influence **\*194** people\'s choices and to
weaken the effect of their dispositions in order to achieve some goal.
This sort of power is often viewed as illegitimate; offers of \"your
money or your life\" are unacceptable negotiation tactics. Governmental
regimes that rely on such power to exact obedience are typically labeled
authoritarian. Particularly in America, we respect only actions that are
consensual and the actions and institutions that reflect the autonomous
choices of those involved\--hence, our culture\'s celebration of
democracy and capitalism. As we hope readers have begun to see, however,
situation can have enormous consequences for our behavior, even when
there is no gun to our head. Stanley Milgram\'s groundbreaking
experi-ments demonstrate the incredible power of situation over our
actions. People delivered what they believed were dangerous and painful
shocks to fellow humans simply because of the situational pressures of a
seemingly benign psychology experiment. That is frightening. But perhaps
more frightening is that even after learning about Milgram\'s
experiment, most of us still have little appreciation for the power of
situation. [[\[FN242\]](#Document1zzFN_F242)]{.underline}

**\*195** 1. Power Blindness

\[The\] systematic structuring of institutions to reflect the viewpoint
and position of those in power is most often invisible.

\--Martha Chamallas [[\[FN243\]](#Document1zzFN_F243)]{.underline}

There is reason to suspect that in our daily lives, we routinely
overlook the power of our situations. As social psychology teaches,
situational factors are cognitively hidden (often in plain sight),
easily camouflaged and naturalized as mere background. Put differently,
in most situations there is no gun, only an invisible hand and the
seemingly consensual, choice-driven behavior of individuals. Perhaps
that is what political scientists Herbert Kaufman and Victor Jones were
driving at when they wrote:

There is an elusiveness about power that endows it with an almost
ghostly quality. It seems to be all around us, yet this is \"sensed\"
with some sixth means of perception rather than with the five ordinary
senses. We \"know\" what it is, yet we encounter endless difficulties in
trying to define it. We can \"tell\" whether one person or group is more
powerful than another, yet we cannot measure power. It is as abstract as
time yet as real as a firing squad.
[[\[FN244\]](#Document1zzFN_F244)]{.underline}

This is an insight of critical realism. As the quotation indicates, it
is hard to think of anything more \"real\" than power. And, yet, despite
its undeniable existence, the mechanisms of power are often hidden,
ghostlike, in the setting. Hidden there, they tend to be disregarded,
literally overlooked.

Legal economists have reacted to the elusiveness of this realism
characteristically and understandably\--they have ignored it.
[[\[FN245\]](#Document1zzFN_F245)]{.underline} For the most part,
economic thinking has no place for the concept of power. A perusal of
the indices of the major law and economics texts, for example, yields no
references to the word\--except when **\*196** coupled with the word
\"market.\" [[\[FN246\]](#Document1zzFN_F246)]{.underline} Moreover,
many economic presuppositions, such as the presumed autonomy of
choice-making agents, implicitly remove the role of power from the
analysis. If one type of \"autonomy\" is given, then there is no place
for the sort of power illustrated in Milgram\'s experiment to emerge.
[[\[FN247\]](#Document1zzFN_F247)]{.underline} The subjects of the
experiment chose to engage in the experiment. They could have stopped;
they could have walked out, but they didn\'t. Obviously, they were made
better off by shocking the other agents to the fullest extent possible.
Economic models are as blind as we are to situational forces.

This problem of \"unrealism\" in law and economics has been largely
unrecognized by even its critics.
[[\[FN248\]](#Document1zzFN_F248)]{.underline} That may be partially
because the failure, like the problem, is hard to see. And in the rare
instance where legal economists have acknowledged that their models
disregard power, they use it as a basis for claiming that their
power-blind approach is superior to competing theories. Thus, Richard
Posner admonishes sociologists for incorporating power in their work
given that the concept is \"difficult to operationalize.\"
[[\[FN249\]](#Document1zzFN_F249)]{.underline}

2\. Looking for Power

We have three problems with Posner\'s rationale for ignoring power.
First, what good is a theory that ignores a force so potentially
influential that it is actually called \"power,\" purely for the sake of
maintaining an operable model? \"Power economics,\" an element of
**\*197** critical realism, is committed to starting with power and
developing our understanding or model of human behavior from there.

Second, any obstacle in operationalizing the concept of power may
reflect the unrealistic starting presumptions of legal economists more
than the inherent difficulty of incorporating power into a viable social
scientific theory. Were economists more committed to understanding human
behavior, they would be better able to model it. The ghostly quality of
power, we hope to show, is less in the object and more in the lens.
Change the lens and power is more likely to come into focus and will
sometimes be as obvious as a gun to the head. This leads to our third
point.

The clear message of Milgram\'s experiments is that situation influences
us. But Milgram\'s decades-old findings serve as just one example of a
much larger situation. \"Social psychology has by now amassed a vast
store of such empirical parables.\"
[[\[FN250\]](#Document1zzFN_F250)]{.underline} The deeper implication of
those experiments is that situation can be managed, shaped, arranged,
and constructed to influence us in ways that we do not anticipate or
appreciate. Situation is thus a source and vehicle of power. Milgram,
after all, designed and created the situation in his laboratory.
Unfortunately the pursuit of academic or scientific knowledge is not the
only motive that might shape the scenery that surrounds and moves us.

B. Economics

And here is where the economics of \"power economics\" comes into play.
What we know about the situational character makes clear that people\'s
behavior is influenced by situational factors. Thus, the ability to
influence the situation is also the ability to influence people\'s
behavior. Such power can be profitable. Because power is valuable to
those who wield it, and insofar as power can be exercised through
(invisible or, at least, unobserved) situational variables, those
variables are themselves manipulable. And because those variables are
manipulable, profit-driven agents will compete to control or influence
them and, in turn, the people and institutions that tend to be blindly
moved by them. More succinctly, once situation is understood as the
locus of influence, it follows that situation will trade like mousetraps
and widgets.

**\*198** Market actors will exert power\--whether or not they are aware
of it\-- because of the situational pressures of the market. If profit
can be made by influencing the situation, we predict that it will be.
Market competitors will, to survive in the long run, \"discover\"
precisely which situational manipulations most efficiently influence us
and how. Market actors who fail to manipulate situational variables
effectively will sooner or later be supplanted by those who do.

If there is uncertainty regarding the precise workings of power\--the
particular mechanisms by which situational influence is wielded\--that
is a problem of description, not of economics. The market will discover
those workings and exploit them. Because market actors will, indeed
must, attend to the operation of power, legal economists have no excuse,
even on operational grounds, for ignoring it. Market forces guarantee
the exercise of power through situational manipulation\--that is the
essence of power economics.
[[\[FN251\]](#Document1zzFN_F251)]{.underline}

C. Some Implications of Power Economics

More than when I first wrote these pages, I am now impressed with the
role of power in economic life\--and with the great if largely innocent
service of the conventional economic instruction in concealing it . . .
. \[The modern business firm\'s\] influence and power extend to
politicians, Presidents and the Pentagon. This power would be much more
remarked and resisted were it not for the social conditioning of
economics and its instruction. The latter contends that all
producers\--all business firms and corporations, from the smallest to
the largest, from the corner drugstore to Exxon and General Motors\--are
substantially subordinate to the impersonal authority of the market. So
matters are presented in all reputable economic discussion . . . . Power
is much enjoyed, and its economic and political exercise can also be
pleasingly remunerative. Nothing serves it better than a theology that
disguises its exercise.

\--John Kenneth Galbraith [[\[FN252\]](#Document1zzFN_F252)]{.underline}

**\*199** What we know from economics is that markets will eventually
discover and exploit profit-enhancing opportunities for power. Economics
also helps us predict that the market actors who will exploit those
opportunities most successfully will be those with the greatest wealth
and willingness to pay. Large corporations meet those criteria because
they amass extreme amounts of wealth
[[\[FN253\]](#Document1zzFN_F253)]{.underline} and possess the
overriding, narrow interest in profit maximization.
[[\[FN254\]](#Document1zzFN_F254)]{.underline}

**\*200** Power economics predicts that we are living within an ongoing
Milgram experiment, in which we, the subjects, perceive our acts to be
free and dispositionally motivated, but in which the
experimenters\--large business entities\--wield far greater influence
over our movements through situational manipulations than we tend to
recognize. As in Milgram\'s experiment, we predict and report, in our
common sense views and formal theories, that we are largely immune to
such situational manipulations. Power economics predicts that the
totalitarian bogeyman is invisible but real, and that we commonly behave
as if there is a gun to our head.

Of course, very often market actors compete against each other for
situational supremacy. In a previous work, one of us (with Doug Kysar)
has examined the battle for prime placement of products in supermarket
aisles. [[\[FN255\]](#Document1zzFN_F255)]{.underline} Placement at eye
level sells, and someone has got to be on the bottom. In those cases,
competition for situation is often a zero-sum game.

But there are other situational factors that help all firms: for
example, the Muzak that wafts over the entire supermarket and has been
found to increase overall purchasing.
[[\[FN256\]](#Document1zzFN_F256)]{.underline} In the same manner,
competing firms within industries often act in ways that further their
shared interests [[\[FN257\]](#Document1zzFN_F257)]{.underline} or even
join forces when their collective self-interest is at stake.
[[\[FN258\]](#Document1zzFN_F258)]{.underline} All firms share a broad
goal of profit maximization. This leads to secondary shared interests in
promoting markets, preventing profit-restricting regulation, and, most
importantly for our argument here, supporting a concept of human
**\*201** behavior that serves profit-maximizing interests. Because
commercial interests\--particularly corporate entities\--are incredibly
wealthy and powerful forces in society, when they work in complementary
ways, they can have far-reaching effects on how we view society,
justice, and ourselves. [[\[FN259\]](#Document1zzFN_F259)]{.underline}

Power economics predicts that situation is sold to the highest bidders
through largely unseen market processes. Corporate entities manipulate
situation to influence our conduct and dispositional self-conceptions,
thereby building their wealth and increasing their power.
[[\[FN260\]](#Document1zzFN_F260)]{.underline} The analogies
undergirding our conclusions in this section may appear to be loaded. By
likening situational forces to a gun, it may appear that we have likened
market forces to a gunman. Indeed, we have. We are thinking the
unthinkable. Posner\'s bogeyman reigns, but he rules from where Posner
and others have least looked for him\--that is, outside of us, or at
least out of our sight, in the situation.

This talk of power may look like the product of some pretty radical
thinking. However, one can instead see our thesis as nothing more than
the careful application of the logic unhesitatingly embraced by many of
academia\'s most conservative scholars. Here, again, is where the
economics of \"power economics\" plays a role. We are making the same
assumptions as neoclassical economists about how markets work, but we
add a more realistic account of the humans involved in that process.
And, as will become clear in the next Section, we also accept the
conventional economic presumptions with respect to the way regulatory
processes operate\--indeed, in some ways, we take that understanding
more seriously than economists have.

**\*202** V. Brief Introduction to Deep Capture

A. Shallow Capture

One cannot mention regulatory agencies without adding the observation
that, of course, such agencies are likely to be \'captured\' by the
interests they are supposed to regulate. To suggest that matters are any
different from this is to mark oneself as hopelessly naïve, or even
disingenuous.

\--James Q. Wilson [[\[FN261\]](#Document1zzFN_F261)]{.underline}

The basic story of regulatory capture has become so well known\--indeed,
such a truism\--that we think it appropriate to begin as Steven Croley
began his recent retelling: \"You\'ve heard all of this before.\"
[[\[FN262\]](#Document1zzFN_F262)]{.underline}

Because no one wants us to rehearse the details yet again, and because
we also value efficiency, we will base our introductory overview on the
brief rendition offered by an extremely credible source. In his Memoirs
of an Unregulated Economist,
[[\[FN263\]](#Document1zzFN_F263)]{.underline} George Stigler describes
how he came to the work central to his winning the Nobel Prize in
Economics. [[\[FN264\]](#Document1zzFN_F264)]{.underline} According to
Stigler, prior to his work, academic economists writing about state
policies commonly offered their advice on \"what \[the government\]
should do, or refrain from doing.\"
[[\[FN265\]](#Document1zzFN_F265)]{.underline} They published their
normative conclusions naively believing that governments, charged with
enhancing the public welfare, would readily heed sound prescriptions.
But after \"two centuries\" of being disregarded on issues like free
trade, Stigler and a few other economists came to believe that
government officials were not very interested in the \"truths\" of
economics. [[\[FN266\]](#Document1zzFN_F266)]{.underline} It was time to
\"undertake the different and more fundamental task of explaining
**\*203** what states actually do, of discovering what are the forces
that determine which policies will actually be adopted by a
government.\" [[\[FN267\]](#Document1zzFN_F267)]{.underline}

Stigler began that undertaking (much of it with co-author Claire
Friedland) by examining \"the actual effects of economic regu-lations.\"
[[\[FN268\]](#Document1zzFN_F268)]{.underline} By understanding the
effects of regulation, he believed he could infer something about the
forces that created the regulation. Through empirical testing unlike any
that had previously been conducted,
[[\[FN269\]](#Document1zzFN_F269)]{.underline} he discovered that
several prominent regulatory policies of the 1960s\--including the
regulation of electricity rates and the SEC\'s \"elaborate review of the
prospectuses for new security issues\"\--were not having the effects or
yielding the benefits that ostensibly motivated them.
[[\[FN270\]](#Document1zzFN_F270)]{.underline} To be sure, the
regulations were creating benefits. The problem was that those benefits
were accruing to the wrong recipients. For instance, the beneficiaries
of electricity-rate regulation were large commercial customers instead
of con-sumer households. [[\[FN271\]](#Document1zzFN_F271)]{.underline}
Additionally, the effect of the SEC reviews was to inhibit competition
and raise the public\'s costs.

From these and similar findings, the now-dominant conception of
regulation emerged: the \"general theory of the behavior of
governments\" [[\[FN272\]](#Document1zzFN_F272)]{.underline} is that
\"groups possessing political influence use the political process
effectively to increase their incomes.\"
[[\[FN273\]](#Document1zzFN_F273)]{.underline} According to the
\"economics of regulation,\" as this approach was initially dubbed,
[[\[FN274\]](#Document1zzFN_F274)]{.underline} causal relationships and
the direction of influences are the **\*204** reverse of what had been
supposed. The seemingly autonomous administrative agency is, upon
inspection, captured, [[\[FN275\]](#Document1zzFN_F275)]{.underline} and
the seemingly constrained industries are liberated and enriched.
Consequently, the industry tail wags the regulatory dog. As Stigler
laments, \"no matter how disinterested the goal of public policy, the
policy is bent to help politically influential groups at the cost of the
less influential.\" [[\[FN276\]](#Document1zzFN_F276)]{.underline} And
the problem is not just that for every winner, there are losers\--the
real kicker is that the winners often win less than the losers lose.
[[\[FN277\]](#Document1zzFN_F277)]{.underline} Regulation is, in a word,
inefficient. [[\[FN278\]](#Document1zzFN_F278)]{.underline}

The finding that industries tend to benefit from regulation led to
another question for Stigler: \"Why are some industries and activities
regulated by the state, and not others?\"
[[\[FN279\]](#Document1zzFN_F279)]{.underline} One of the most
significant developments that emerged from this dismal perspective on
regulation was a set of insights regarding the sources of political
influence\--or, as we would put it, power. As Stigler recounts,
economists could explain, for example:

\[W\]hy smaller groups do better than large in the political arena.
\[First, t\]he smaller group is more cohesive: It is easier to organize
the small group, collect funds for lobbying, and keep it informed. There
are only about 70,000 beekeepers concentrated in a few western states
(yes, there is a federal program for them) but millions of occasional
consumers of honey. And secondly, it pays each member of a small group
to invest resources in politics, because the payoff will be larger. Each
beekeeper gets hundreds of times as much out of the federal program as
each taxpayer loses. [[\[FN280\]](#Document1zzFN_F280)]{.underline}

Such insights regarding how groups of individuals could effectively
coordinate their behavior in pursuit of common interests were more the
product of some of Stigler\'s contemporaries than of **\*205** Stigler
himself. [[\[FN281\]](#Document1zzFN_F281)]{.underline} But before
leaving our discussion of Stigler, a few observations are in order
regarding his important contributions.

Look carefully at the structure of Stigler\'s work\--at least as we have
summarized it. Stigler was challenging a long-held conven-tional wisdom
that governments and their agencies create beneficial regulations.
Underlying that conventional wisdom was the supp-osition that regulatory
processes were fair and that regulators were dispositionally motivated
to serve the public interest. Stigler\'s challenge to those suppositions
was initiated by his discovery that, in fact, a sanguine view of our
regulatory institutions had no empirical basis and that, if anything,
those institutions\' actions were counterproductive to their espoused
goals. To explain the phenomenon, Stigler looked to the outside
influences on regulators and described how different groups were able to
exert power over the regulators. Thus, Stigler contested the reassuring
conventional wisdom that our institutions are neutral and
well-functioning and rejected the idea that the stated goals of
regulators are controlling. He did so by downplaying dispositional
factors and emphasizing situational factors.
[[\[FN282\]](#Document1zzFN_F282)]{.underline} By taking situation
seriously, he raised the issue of power inasmuch as situations are
largely defined by allocations and dynamics of power. As Stigler and
many others writing in this area have taken for granted (without ever
actually using the term), power is central.

In this way, Stigler\'s work on the economics of regulation pro-vides a
paradigmatic example of power economics. We believe that this Article
finds confirmation in the fact that Stigler and other economists stopped
there\--why, in other words, neoclassical **\*206** economics has not
evolved into to power economics and why capture theory has not evolved
into deep capture theory.

B. Deep Capture: An Historical Example

I, Galileo \[Galilei\], . . . seventy years of age, arraigned personally
for judgment, kneeling before you Most Eminent and Most Reverend
Cardinals Inquisitors-General against heretical depravity in all of
Christendom, . . . swear that I have always believed, I believe now, and
with God\'s help I will believe in the future all that the Holy Catholic
and Apostolic Church holds, preaches, and teaches . . . . I have been
judged vehemently suspected of heresy, namely of having held and
believed that the \[S\]un is the center of the world and motionless and
the \[E\]arth is not the center and moves.

Therefore, desiring to remove from the minds of Your Eminences and every
faithful Christian this vehement suspicion, rightly conceived against
me, with a sincere heart and unfeigned faith I abjure, curse, and detest
the above-mentioned errors and heresies, . . . and I swear that in the
future I will never again say or assert, orally or in writing, anything
which might cause a similar suspicion about me . . . .

\--Galileo Galilei [[\[FN283\]](#Document1zzFN_F283)]{.underline}

With the foundation of shallow capture in place, we can now build upon
it, or dig beneath it, to introduce deep capture. To catch your first
glimpse of the phenomenon, recall the Galileo story. We argued, in a
flip of Posner\'s version of the story, that it was Galileo who was
committed to realism and Bellarmine who, like legal economists, was wed
to an unrealistic, reductionist model.
[[\[FN284\]](#Document1zzFN_F284)]{.underline}

Let us push the analogy further. Galileo was, for most of his life,
devoted to the idea that humans could, through methods of obser-vation,
discover and make sense of the natural order.
[[\[FN285\]](#Document1zzFN_F285)]{.underline} He was committed to
basing theories about our world and the place of it in the universe on
all the evidence and clues available for human inspection, even if doing
so challenged widely held self-affirming and **\*207** faith-based
beliefs about the Earth\'s centrality in the universe.
[[\[FN286\]](#Document1zzFN_F286)]{.underline} Recall that Galileo lived
at a time when most people believed themselves to inhabit a stationary
world. The intellectual establishment of the Renaissance, controlled to
a large degree by the Catholic Church, perceived human knowledge as a
fundamentally static thing.
[[\[FN287\]](#Document1zzFN_F287)]{.underline} Certain environmental
features seemed obvious: the Earth was not moving, and the Sun was
rotating about the earth. The validity of those notions was bolstered by
everyday experience and found confirmation in several biblical texts,
and in the basic assumption that heaven reigned above the Earth and hell
below. [[\[FN288\]](#Document1zzFN_F288)]{.underline}

**\*208** Galileo, informed by the work of fellow astronomical realist
Copernicus, [[\[FN289\]](#Document1zzFN_F289)]{.underline} was
interested in exploring and studying elements of our planet and the
celestial bodies whirling \"above\" it for hard-to-see clues into the
reality of celestial dynamics. Mathematics and a telescope both provided
critical lenses through which he could get a better view.
[[\[FN290\]](#Document1zzFN_F290)]{.underline}

Using these tools, Galileo helped to turn the dominant Aristotelian
model of the universe, and our place in it, on its head.
[[\[FN291\]](#Document1zzFN_F291)]{.underline} **\*209** It is important
to note, however, that the Aristotelian model (as enhanced through
Ptolemy\'s refinements) [[\[FN292\]](#Document1zzFN_F292)]{.underline}
provided an adequate \"as if\" theory, for most purposes.
[[\[FN293\]](#Document1zzFN_F293)]{.underline} Through theory and
observation, Galileo removed the Earth from its stable center, around
which the Sun was revolving, and placed the Sun at the immovable center
of the Earth\'s rotations. Put differently, by studying our astronomical
situation more closely, Galileo discovered our astronomical fundamental
attribution error: attributing the movement of the celestial situation
to the centrality and fixity of the Earth instead of attributing our own
movement, like that of the other heavenly bodies, to the celestial
situation. Galileo did not provide absolute proof for his challenging
worldview, although he believed the telescopic observations were
sufficient to overturn the geocentric model. What he did provide was a
refined theory and new observations\--such as the discovery of four
moons orbiting Jupiter, the phases of Venus, and an exegesis of the
tides\--that strongly **\*210** suggested that the astronomical
situation was far more influential than the then-dominant geocentric
view allowed. [[\[FN294\]](#Document1zzFN_F294)]{.underline}

We want to push this analogy even further. Despite Galileo\'s compelling
evidence that the Earth revolved around the sun, he appeared to have
been wrong. To be sure, we might look today and judge that he was
(comparatively) right, after all. But forget for a moment the revival
and celebration of Galileo\'s pre-abjuration views, beginning in the
eighteenth century, and temporarily ignore his stature today as a father
of modern science. [[\[FN295\]](#Document1zzFN_F295)]{.underline}
Instead, imagine yourself living in early seventeenth-century Italy. It
is Bellarmine\'s view\--informed by biblical passages, religious
authorities, popular perceptions, experience, and naked-eye
observations\--which confirms your intuitions and the formal positions
of the most powerful groups and institutions in Italy.
[[\[FN296\]](#Document1zzFN_F296)]{.underline} And it is Galileo, not
Bellarmine, **\*211** who recants and renounces his earlier \"findings\"
and opinions. Chances are that you, that we, would have believed Galileo
was a heretic and never doubted the process that \"proved\" him to be
one. From this perspective, Bellarmine was obviously right, and Galileo,
clearly wrong.

So how could one of the greatest scientists of all time be so wrong? The
answer is obvious, indeed it is one of the reasons that the story is so
well known: the scientific community was not sufficiently insulated from
powerful institutions with a stake in scientific outcomes.
[[\[FN297\]](#Document1zzFN_F297)]{.underline} More concretely, because
Galileo\'s work was threatening to the Catholic Church and its
teachings, and because of the Church\'s encompassing power, Galileo was
under intense pressure\--indeed, was ultimately convicted by the
inquisitors\--to \"restate\" his views on the structure of the universe.
[[\[FN298\]](#Document1zzFN_F298)]{.underline} Galileo\'s recantation
was the result, not of scientific observation, but of religious
persecution and the very real threat of a horrible death.
[[\[FN299\]](#Document1zzFN_F299)]{.underline} The situational forces
behind Galileo\'s \"restated\" views are thus unmistakable. Galileo made
his recantation decision with the equivalent of a gun to his head. Of
course, as we have argued **\*212** throughout this Article, such
situational pressures are rarely so obvious.

This can all be expressed, somewhat stylistically, in Stiglerian terms.
In recanting, Galileo was \"captured\" by the Church much like, say, the
now defunct Civil Aeronautics Board was once said to be captured by the
airline industry. [[\[FN300\]](#Document1zzFN_F300)]{.underline} He
claimed to be saying what he believed \"with sincere heart and unfeigned
faith,\" [[\[FN301\]](#Document1zzFN_F301)]{.underline} independent of
any pressure from the Church, when in fact he was serving the Church\'s
interests, despite his own beliefs.

C. Deep Capture: History Repeating Itself

\[T\]here have been opened up to this vast and most excellent science,
of which my work is merely the beginning, ways and means by which other
minds more acute than mine will explore its remote corners.

\--Galileo Galilei [[\[FN302\]](#Document1zzFN_F302)]{.underline}

1\. Some Deep Implications of Shallow Capture

In identifying the phenomenon of capture, Stigler and his contemporaries
obliterated the once-conventional view of regulation. They refuted the
naive presumption that had long been protected behind the ambiguous
(and, therefore, easily defended) concept of \"the public interest,\"
and provided a far more realistic (albeit disturbing) account of the
sources and effects of regulation. Regulation was \"caused\" less by
public-spirited and well-advised regulators and more by the situational
constraints imposed upon them by competing economic entities, with the
most powerful entities wielding the most influence. In other words,
Stigler, identified and substantially overturned what might be called
the regulatory fundamental attribution error. The older \"public
interest\" regulatory theory maintained a kind of dispositionist view of
a constant figure, evaluating influences, measuring public welfare, and
**\*213** making decisions accordingly.
[[\[FN303\]](#Document1zzFN_F303)]{.underline} Regulatory theory
essentially rested on a view of the regulator as a rational actor whose
stable preferences were in the public interest. By studying the
regulator\'s actions and ignoring the regulator\'s words, economists
like Stigler were able to see new patterns and surmise some of the
situational influences that generated them.

But Stigler\'s work barely breaks the surface of situationism and
identifies only a very shallow form of capture. When one takes seriously
the power of the situation\--exterior and interior
[[\[FN304\]](#Document1zzFN_F304)]{.underline}\--one can begin to
understand the potential depths of capture. There are several ways in
which capture is likely to run much deeper than Stigler, or others
applying and advancing his insights, have recognized.

2\. The Depth of Capture

Again, returning to Galileo\'s story may help make evident what is
invisible in our midst. First, as the Catholic Church\'s efforts
revealed, there are other capture-worthy and capturable institutions and
individuals beyond merely administrative regulators. Recall that Galileo
had no official regulatory authority either in the state or in the
Church. What he had was a certain level of public legitimacy, and
therefore power, as a renowned scientist.
[[\[FN305\]](#Document1zzFN_F305)]{.underline} His theories, evidence,
and conclusions were important as a confirmation of, or challenge to,
the \"truth\" of the Church\'s teachings.
[[\[FN306\]](#Document1zzFN_F306)]{.underline} As a result, Galileo\'s
positions were well worth capturing. Similarly, today any institutions
or individuals capable of influencing existing wealth and power
distributions will be subject to the pressures of capture. In this
sense, Stigler and those who subscribe to his theory are, like the
public-interest theorists they replaced, far too shallow.

If administrative regulators are vulnerable to the forces of capture by
certain interests, as most everyone agrees they are, then **\*214** the
likelihood of a deeper capture seems undeniable. There is nothing
special about administrative regulators\--except, perhaps, the general
concern that they may be captured. Virtually every other institution in
our society seems just as vulnerable. After all, contemporary scholars
and commentators have rarely even considered, much less taken seriously,
the problem of deep capture. Given that nescience, one would expect
other institutions to be constructed without heed to the dynamics of
capture. In a world without foxes, a farmer will not guard the
hen-house. And because deep capture occurs situationally\--outside of
view by, and with the induced consent of, the captured\--any loss of
eggs will either go unnoticed or will be perceived as natural and just.

There is a second general way in which traditional capture theory is too
shallow. To see this, it is necessary to look deeper than the behavior
of the captured institutions and individuals. Beneath the surface of
behavior, the interior situation of relevant actors is also subject to
capture. Indeed, much of the power of deep capture comes from the fact
that its targets include the way that people think and the way that they
think they think.

The Catholic Church would have been far less troubled by Galileo, we
suspect, if he had not been writing and publishing his ideas broadly in
an attempt to persuade others to reject then-conventional wisdom.
[[\[FN307\]](#Document1zzFN_F307)]{.underline} Eschewing the scientific
conventions of his day, Galileo published many of his discoveries not in
Latin but in Italian. He was committed to altering the opinions of
people in his society, not simply to recording his measurements for a
narrow scientific audience.
[[\[FN308\]](#Document1zzFN_F308)]{.underline} It was the danger Galileo
posed to the Church\'s basic knowledge structures\--which were embraced
by most of the intelligentsia and lay people of the time\--that led
forces, including vested academic interests, to urge the Church to
literally **\*215** capture Galileo.
[[\[FN309\]](#Document1zzFN_F309)]{.underline} Galileo\'s work went
beyond offering a simple challenge to established propositions such as
geocentric cosmology; it advocated an entirely different intellectual
and moral approach, one that aimed to discredit the \"cult\" of
tradition. [[\[FN310\]](#Document1zzFN_F310)]{.underline} Thus, when
Galileo advanced heliocentricism, as he did in his famous letter to the
Grand Duchess Christina, he did so in the context of a more
comprehensive rejection of the view of knowledge as nothing more than a
set of pre-ordained revelations:

\[W\]ho wants the human mind put to death? Who is going to claim that
everything in the world which is observable and knowable has already
been seen and discovered? . . . one must not, in my opinion . . . block
the way of freedom of philosophizing about things of the world and of
nature, as if they had all already been discovered and disclosed with
certainty. Nor should it be considered rash to be dissatisfied with
opinions which are almost universally accepted . . . .
[[\[FN311\]](#Document1zzFN_F311)]{.underline}

The message that common sense notions should be challenged was deeply
threatening to the Catholic Church of the seventeenth century, which
defined faith as it had since the Middle Ages\--as obedience to the
teachings of religious authorities. The highest crime an individual
could commit was that of heresy\--the word itself deriving from the
Greek word hairesis, meaning \"choice.\"
[[\[FN312\]](#Document1zzFN_F312)]{.underline} In order **\*216** to
prevent the wider populace from realizing that a \"choice\" existed,
Galileo had to be silenced.

Those in power thus captured the institutions and individuals that
threatened their dominant position, including an individual scientist
capable of altering ideas or knowledge in a way that might weaken their
power. They did so through a process intended to suggest that Galileo
freely chose his recantation and resultant silence. Galileo, wisely, did
not proclaim that he was being forced to recant under the threat of
death; he stated instead that he was trying to clarify the possible
confusion that his errors had created and make clear that he, upon
reflection, \"abjure\[d\], curse\[d\], and detest\[ed\] the
above-mentioned errors and heresies . . . .\"
[[\[FN313\]](#Document1zzFN_F313)]{.underline} The Church thus applied
situational pressure to generate the appearance of \"dispositional\"
recantation. And the people at that time, inasmuch as their knowledge
structures and understanding of the world were influenced by the Church,
and insofar as the Church managed to squelch other ideas or knowledge
structures, were also deeply captured.

Understanding that capture is directed at both our exteriors and
interiors clears up some confusion and debate in the shallow capture
literature. When Stigler\'s evidence of capture emerged, economists,
political scientists, and public choice theorists got busy trying to
identify the precise mechanics of the regulatory black box that Stigler
mostly ignored. True to form, they began with the rational actor model
of human behavior and sought to explain capture as the consequence of
the self-interested, maximizing dispositions of individual regulators.
[[\[FN314\]](#Document1zzFN_F314)]{.underline} Yet, while simple
formulations have given way to increasingly elaborate ones,
[[\[FN315\]](#Document1zzFN_F315)]{.underline} public-choice theory is
still dogged by the fact that it is unrealistically \"cynical\" (meaning
that the assumed dispositions of regulatory actors are perceived to be
**\*217** unrealistically selfish). After all, many governmental actors
and reg-ulatory agents often claim, and actually seem to be, motivated
by the public interest and try to act that way;
[[\[FN316\]](#Document1zzFN_F316)]{.underline} that is, many
regulators\' actions appear more consistent with their ideological
beliefs than with a narrow conception of self-interest.
[[\[FN317\]](#Document1zzFN_F317)]{.underline}

The problem with shallow capture is not that it cannot always explain
the part played by the dispositions of regulatory actors, but rather
that it takes dispositions so seriously in the first place. Deep capture
makes clear that people\'s intentions and beliefs may have little to do
with their behavior and that, insofar as they do, those intentions and
beliefs are part of what interests compete to capture.

When Catholic astronomers of the seventeenth century stated that they
believed, as most profoundly did, that the Earth was at the center of
the universe, deep capture was at work. Their astronomy was part of a
larger, interconnected set of truths taught to them in seminary and
reinforced at many turns\--some seen, some unseen\--in their society.
Similarly, lay people had no reason to dispute those truths and faced
situational influences just as powerful, despite being less visible, as
the gun to the head or fire to the feet that Galileo experienced. That a
regulator may act out of ideological dispositions no more implies that
she is free from capture than the changing lengths of shadows on a
summer afternoon implies that the sun is revolving around the Earth.

**\*218** The question that should be asked is not: \"Who among the
regulators is corrupt or so selfishly motivated as to disregard the
\'public interest?\"\' The question that should be asked is: \"Who among
us is the most powerful and most capable of deeply capturing our
exteriors and interiors and, even, of capturing what we mean by the
\'public interest?\"\'

3\. The Invisibility of Capture

By \"deep capture,\" then, we are referring to the disproportionate and
self-serving influence that the relatively powerful tend to exert over
all the exterior and interior situational features that materially
influence the maintenance and extension of that power\--including those
features that purport to be, and that we experience as, independent,
volitional, and benign. Because the situation generally tends to be
invisible (or nearly so) to us, deep capture tends to be as well.

This raises the question: if deep capture is so hard to see, then why is
it so obvious in the Galileo example? There are several reasons. To
begin with, at the time, we doubt that it was so visible. We suspect
that few observers saw anything untoward or illegitimate about
Galileo\'s inquisitorial experience or any reason to doubt the
\"knowledge\" that it produced.
[[\[FN318\]](#Document1zzFN_F318)]{.underline} The situational pressures
that, to us, were glaringly excessive during the Inquisition were
probably not perceived as excessive at the time.
[[\[FN319\]](#Document1zzFN_F319)]{.underline}

The situational forces confronting Galileo may be easier for us to see
now because we live in a radically different environment. We are looking
at another generation of people in another country **\*219** whose
situational worldviews we reject and whose victim, Galileo, we revere.
[[\[FN320\]](#Document1zzFN_F320)]{.underline} They are \"them,\" and
Galileo is \"us.\" People are motivated to attribute bad outcomes to
in-group members. [[\[FN321\]](#Document1zzFN_F321)]{.underline} The
contrast is heightened by the historical construction of the event as a
lesson on the horrors of the Inquisition and the dangerous distortions
that result when religion is allowed to dominate (or, we might say,
\"capture\") science. The role of disposition and deep capture in the
Galileo story is, today and to us, conspicuous, almost palpable. But
seeing our own situation and its deep capture is not.

4\. Learning from History

For some of the same reasons that it is difficult to convince people
that they would have been influenced by the situational cues in the
Milgram experiment, [[\[FN322\]](#Document1zzFN_F322)]{.underline} it is
nearly impossible to convince people that they live in, and are part of,
a deeply captured world. To make our preliminary case, therefore, we
will attempt to demonstrate that the situation today is very similar to
the situation that existed in Galileo\'s Italy. Because the existence of
deep capture is easy to see and accept there, by observing it, we may be
better able to see and accept deep capture now. Perhaps by seeing that
we are subject to a parallel influence over a parallel issue, we may be
able to more clearly see ourselves, not in the heroic Galileo, but in
the complacent and complicit adherents of the common sense of his day,
or even in the reactionary Bellarmine.

a\. Institutions to deeply capture

The first parallel is the existence of an institution or collection of
institutions with immense wealth and power and, thus, both the ability
and desire to influence exterior and interior situations to enhance
those advantages. In the Galileo story, that collection of **\*220**
institutions is, for the sake of simplicity, often treated as an
individual actor under the heading of \"the Catholic Church\" or \"the
Vatican.\" Today, we hypothesize that the institutions with the means
and the motive to engage in deep capture are large corporations.
[[\[FN323\]](#Document1zzFN_F323)]{.underline} In virtually any present
metric and manner of understanding power, corporations easily qualify as
immensely powerful.

Let us start with corporations\' immense wealth, a fundamental component
of power in our market economy. As is so often emphasized by legal
economists, resources have a tendency through market processes to move
to those who value them most, as measured by relative willingness to
pay. [[\[FN324\]](#Document1zzFN_F324)]{.underline} Willingness to pay,
of course, is heavily determined by ability to pay. No institutional
actor controls as much wealth in so concentrated a fashion in our
society today as do corporations and those individuals with an important
stake in promoting the power of corporations.
[[\[FN325\]](#Document1zzFN_F325)]{.underline} Thus, valuable resources
(including influence over the situation) tend toward those with the
greatest ability to pay\--that is, corporations.

Large corporate interests have several other power advantages beyond
their wealth\--advantages that likely help them to amass that wealth in
the first place. For instance, like Stigler\'s beekeepers,
[[\[FN326\]](#Document1zzFN_F326)]{.underline} they enjoy a common
single interest and thus an advantage in the competition to
influence\--an assertion that finds considerable support in the shallow
capture literature. [[\[FN327\]](#Document1zzFN_F327)]{.underline}
Insofar as each corporation is devoted to the single goal of profit
maximization, they are, even as they compete in the marketplace,
collectively committed **\*221** to a uniform regulatory end: the
creation and maintenance of a world that maximizes profit opportunities.
[[\[FN328\]](#Document1zzFN_F328)]{.underline}

Moreover, corporations are\--in part because of market processes\--
profoundly effective at uncovering and exploiting the most efficient and
reliable means of influencing people and insti-tutions, a pursuit that
will extend through situational influences.
[[\[FN329\]](#Document1zzFN_F329)]{.underline} Advertising, marketing,
lobbying, and public relations are only the most obvious activities that
corporations have refined in their profit-maximizing pursuits. Even
those practices are largely obscured by our dispositionism and largely
invisible in our theories
[[\[FN330\]](#Document1zzFN_F330)]{.underline}\--an obscurity that
renders them all the more effective. In future work, we hope to describe
those practices in more detail. For now, our point is that the situation
of market competition has led corporations to become far more expert at
manipulating situational factors than other institutions or individuals
have had the need or wherewithal to accomplish.

Finally, the livelihood or economic well-being of the majority of our
population is perceived to depend directly or indirectly on the health
of corporations\--individually and collectively. For example, many
people work for corporations, many people invest in corpor-ations, and,
more generally, the overall health of the economy, in which most of us
feel we have a significant stake, is perceived to depend on the
collective health of corporations. Corporate scholars Henry Hansmann and
Reinier Kraakman, for instance, recently described the expanding base of
shareholders as follows:

Stock ownership is becoming more pervasive everywhere. No longer is it
confined to a small group of wealthy citizens. In the United States,
this diffusion of share ownership has been underway since the beginning
of the twentieth century. In recent years, however, it has accelerated
substantially. Since the Second World War, an ever-**\*222** increasing
number of American workers have had their savings invested in corporate
equities through pension funds. Over the same period, the mutual fund
industry has also expanded rapidly, becoming the repository of an
ever-increasing share of nonpension savings for the population at large.
[[\[FN331\]](#Document1zzFN_F331)]{.underline}

This is not just an academic point. President George W. Bush has been
emphasizing this theme repeatedly in the wake of corporate debacles
since he took office. In response to Enron revelations, for instance, he
explained:

The reason that a single bankruptcy can cause so much concern in America
is that more Americans than ever have invested their money in public
corporations. Today, about 80 million Americans own stock, either
individually or through their pension plans. This is one of the causes
for the expansion in personal wealth over the past 20 years. This has
been an incredibly positive development for America. Stock ownership
allows citizens from all walks of life to own a part of the economy and
to share in its growth. The people who run public companies owe a
special obligation to these investors, many of whom have put their
savings and future security on the line.
[[\[FN332\]](#Document1zzFN_F332)]{.underline}

The widespread sense that our collective welfare turns importantly on
the wealth and success of corporations empowers corporations. It does so
by giving the general population a stake in the health of those
institutions that are already the most wealthy and influential in our
culture. As Hansmann and Kraakman put it:

No longer do labor and capital constitute clearly distinct interest
groups in society. Workers, through share ownership, increasingly share
the economic interests of other equity-holders. Indeed, in the United
States, union pension funds are today quite active in pressing the view
that companies must be managed in the best interests of their
shareholders. [[\[FN333\]](#Document1zzFN_F333)]{.underline} **\*223**
In this way, according to Hansmann and Kraakman, \"a public shareholder
class\" has developed into \"a broad and powerful interest group in both
corporate and political affairs across jurisdictions\" promoting
corporate interests. [[\[FN334\]](#Document1zzFN_F334)]{.underline}

b\. Fundamental attribution errors

The second major parallel between our world and Galileo\'s is the
existence of a widely held attributional intuition that is false, but
generally viewed as a \"truth\"\--and an obvious one at that. At that
time, it was about what, if anything, moved the Earth and the celestial
bodies \"above\" it. Now, it is about what moves us and our
institutions. [[\[FN335\]](#Document1zzFN_F335)]{.underline}

c\. Incentives to deeply capture

The third parallel is that in our world, too, those in power have a
stake in maintaining the apparent veracity of that \"truth\" and, thus,
in heavily promoting it. Instead of the Catholic Church sustaining
geocentricism and dismissing Galileo\'s observations regarding the role
of astronomical situation, today, in our world, it is large corporate
interests promoting dispositionism and dismissing obser-vations
regarding the influence of exterior and interior situations on behavior.

i\. The stakes of geocentricism

To the Catholic Church, maintaining an allegiance to the biblical
account of astronomical structure, no matter how logically dubious, was
extremely important. Although Galileo himself saw no tension between his
scientific findings and his Catholic faith,
[[\[FN336\]](#Document1zzFN_F336)]{.underline} portions of **\*224** the
Catholic hierarchy saw in his discoveries the direct contradiction of
several theological tenets.
[[\[FN337\]](#Document1zzFN_F337)]{.underline} In their eyes, such
weakened links threatened to destroy a whole chain of logic upon which
the Church relied. [[\[FN338\]](#Document1zzFN_F338)]{.underline}

The insistence on intellectual conformity in scientific and
philosophical subjects was intimately connected to the Church\'s
reaction to a far more fundamental challenge to its authority, that of
the Protestant Reformation. That Galileo was linked in the minds of many
Catholic Church leaders to the Protestant Reformation is ironic, since
Galileo probably objected to the Protestant\'s literal interpretations
of the Bible, if not their reformist spirit, even more than he did to
Catholic orthodoxy. [[\[FN339\]](#Document1zzFN_F339)]{.underline} At
the same time, Protestantism seemed to be advancing the same kind of
challenge to core Catholic beliefs that Galileo\'s scientific approach
posed to Aristotelian naturalism.
[[\[FN340\]](#Document1zzFN_F340)]{.underline} On a broader level, at
its inception, Protestant-ism was fundamentally anti-authoritarian in
the sense that its leaders, beginning with Luther, encouraged the
radical decentralization of religious authority and the rationalization
**\*225** of scriptural interpretation. The result was a more personal,
individualized experience and interpretation of the scriptures. To the
Catholic hierarchy, this was the work of the devil. And maintaining a
strict biblical understanding of astronomy was of critical importance in
their broader battle against diabolical corruption of Church dogma.
[[\[FN341\]](#Document1zzFN_F341)]{.underline}

ii\. The stakes of dispositionism

Similarly, today, large corporate interests have a great deal at stake
in maintaining and promoting a dispositionist worldview. As we argued
earlier, it is possible to speak of a \"corporate interest\" in
maximizing profit not because corporations are dispositionally
motivated, but because there are robust and stable situational pressures
encouraging corporations to act \"as if\" they want to pursue that end.
[[\[FN342\]](#Document1zzFN_F342)]{.underline}

**\*226** And, in a similar vein, just as one can speak of
corporations\' individual interests, one can also speak of their shared
or collective interest. Although corporations are often in direct
competition with one another, they share a collective interest in
maximizing profits\--which translates to an interest in maximizing
available markets and minimizing profit-reducing regulation. Phenomena
such as trade associations for lobbying, industry- and sector-wide
advertising and public relations, and illegal collaborative activities
such as price-fixing, evince these shared interests amongst competitors.
[[\[FN343\]](#Document1zzFN_F343)]{.underline} Coordinated lobbying
efforts for policy initiatives like NAFTA
[[\[FN344\]](#Document1zzFN_F344)]{.underline} and for one-or-another
political candidate, [[\[FN345\]](#Document1zzFN_F345)]{.underline}
demonstrate a shared corp-orate interest across markets. But
corporations share an interest in more than just promoting, for example,
global trade policy. They also share a deeper interest in promoting
certain perceptions of global trade policy, and of many other issues
that can influence their common pursuit of profits. It is our contention
that a dispositionist worldview benefits both individual corporations
and the shared corporate interest, and that corporations therefore
individually and jointly will act situationally to promote it. Because
this claim is a major feature of our larger thesis, and because
defending it is somewhat complex, it will be the topic of a separate
article. [[\[FN346\]](#Document1zzFN_F346)]{.underline} We urge the
reader to accept, or at least suspend disbelief in, this claim until we
can flesh it out and (we hope) thoroughly substantiate it. For now, we
will only cursorily highlight portions of that article.

One important reason that corporations have a stake in dispositionism is
that it is the dispositionist perspective that largely justifies their
profit-seeking behavior as socially beneficial. If consumers are assumed
to be dispositional\--that is, if they act according to a stable set of
preferences that only they can access directly\--then it plausibly
follows that the best way to maximize **\*227** welfare is to allow
consumers to satisfy their preferences through free-market transactions.
It is through free markets that otherwise invisible preferences are
satisfied (and revealed) through mutually beneficial transactions that
enhance overall social welfare. As profit-maximizing entities,
corporations act to maximize social welfare by serving consumers\'
supposed dispositional preferences. Profit is the substantiation of
those welfare-enhancing transactions and is there-fore, by definition,
good. In short, profit-maximizing corporations act in the public
interest. [[\[FN347\]](#Document1zzFN_F347)]{.underline}

A dispositionist worldview is similarly valuable to the corporate
interest because it helps minimize profit-reducing regulation. Markets,
which allow the free exercise of dispositions, are understood as more
responsive to consumer preferences than regulators who lack good
information and the appropriate incentives. The dispositionist
presumption translates to a presumption against regulatory intervention
even against visible harms, for the actors involved are presumed to be
choosing the inevitable risks that gave rise to those harms. Regulatory
intervention is warranted only in circumstances in which markets
demonstrably fail to respond to consumer dispositions\--for instance,
when consumers clearly lack information or when a transaction creates
significant negative externalities. But, even in the presence of such
market imperfections, calls for regulation may be rebutted on the
grounds that imperfect markets might be preferable to imperfect
regulations. Expressions like \"the nirvana fallacy\" and \"the law of
unintended consequences\" have been coined to capture this fallback
defense of markets. [[\[FN348\]](#Document1zzFN_F348)]{.underline}

Dispositionism also helps support common arguments for why regulators
cannot be trusted. Regulators, like the rest of us, are presumed to be
motivated to satisfy their self-interest,
[[\[FN349\]](#Document1zzFN_F349)]{.underline} an end that is often in
tension with their purported goal of serving the public interest.
Regulators are often depicted as concerned with job security, career
advancement, and larger budgets, as well-meaning but ill-informed
bunglers, or as zealous intermeddlers seeking to **\*228** impose their
visions of society upon otherwise free consumers. Such dispositions are
likely to lead to wrongful interference in free choices and,
consequently, inefficient outcomes\--the apparent dispositional
mechanism behind Stigler\'s findings.

Another benefit of dispositionism is that it helps to preserve and
legitimate the status quo, in which corporations are the wealthiest and
most powerful entities. Dispositionism places consumers, not
corporations, in the driver\'s seat. Corporations are viewed as
com-peting to fulfill consumers\' desires in a fair competition; they
are viewed as having no role in creating or influencing consumers\'
behavior. If consumers are unhappy with one or another outcome of that
competitive process, they are rebuffed with the observation that the
process is fair and that consumers have no one but themselves to blame.
If consumers claim not to like a given market outcome, they can be told
to change their consumption choices, reexamine their perceived
preferences, or take it up with their fellow consumers.

In addition, corporations gain in innumerable ways from the general
human tendency\--reflected in the fundamental attribution error\--to
attach disproportionate weight to what we see and to see only a small,
salient subset of our environs and interiors. This phenomenon has many
manifestations that tend to benefit large commercial interests. For
example, when the situation is not obvious (as is generally the case),
people believe they are acting autonomously when they are actually
responding to unseen situational cues. Not only do they miss the
situational influence, they don\'t believe there is a situational
influence. Consumers are like competitors in a sprint, who, not seeing
the track, presume that it is flat and fair. The runners measure their
dispositions\--talent and drive\--according to the outcome of the race,
without regard to its situation. In such a setting, corporations can
camouflage their situational manipulations behind reassurances that
those subject to them are, in fact, dispositionally moved. That same
tendency permits corporations to attribute particularly egregious
corporate activities to the dispositions of the handful of human actors
involved or the rather unique corporate disposition (culture) of one
corporation, and not to larger situational influences that might
implicate, say, all corporations or all of corporate law.

Galileo\'s conflict with the Church was not a neutral scientific debate.
It had profound implications for power\--who would have it and how it
would be wielded\--in seventeenth-century Europe. Similarly, the divide
between dispositionism and situationism is not **\*229** an academic
point. It has profound implications for the distribution of power in our
society. Large corporations have a stake in a dispositionist worldview
because it helps them create and maintain vast situational power.
Indeed, by promoting a lopsided worldview, based on individual stable
preferences and autonomous individual choices, corporations can actually
curtail individual autonomy and alter perceived preferences. That is
possible, we assert, because of dispositionism.

D. The Deep Capture Hypothesis

The universal spirit of the laws, of every country is always to favor
the strong against the weak and those who have against those who have
not. This difficulty is inevitable, and it is without exception.

\--Jean Jacques Rousseau [[\[FN350\]](#Document1zzFN_F350)]{.underline}

The twentieth century has been characterized by three developments of
great political importance: the growth of democracy, the growth of
corporate power, and the growth of corporate propaganda as a means of
protecting corporate power against democracy.

\--Alex Carey [[\[FN351\]](#Document1zzFN_F351)]{.underline}

All of the key elements are in place. As with Galileo\'s capture, today
we have an extremely powerful institutional force with an immense stake
in maintaining, and an ability to maintain, a false, though intuitive,
worldview. [[\[FN352\]](#Document1zzFN_F352)]{.underline} Our basic
hypothesis (and prediction) is that large commercial interests act (and
will continue to act) to capture the situation\--interior and
exterior\--in order to further entrench dispositionism. Moreover, they
have done so largely undetected, and without much in the way of
conscious awareness or collaboration. Hence, large corporate interests
have, through **\*230** disproportionate ability to control and
manipulate our exterior and interior situations, deeply captured our
world.

This is a hypothesis that finds support not just in the axiom of history
repeating itself, although the lessons of history do indeed provide
significant support. And it is a hypothesis that follows from more than
just laboratory and field experiments of social psychology, although
that literature alone should be sufficient to reverse our current
presumptions. [[\[FN353\]](#Document1zzFN_F353)]{.underline} The deep
capture hypothesis is also the logical extension of several basic
economic insights, including those associated with capture theory and
market theory\-- informed by a realistic understanding of the human
animal (or situational character). The question remains, however,
whether such a provocative, counterintuitive hypothesis finds much
support in the various institutions that shape our exterior and interior
situation.

VI\. Some Evidence of the Deep Capture Hypothesis

The deep capture hypothesis is too provocative to leave totally
undefended, but covers too vast a set of institutions to adequately
defend here. Much of the remainder of this Article, therefore, will be
devoted to providing a sample of observations that provide support for
our framework. The sample is intended to foster open minds in our
readers (if not to thoroughly destabilize existing dispositionist
worldviews) until we can return with a more fulsome defense of, and more
compelling evidence for, our claims.

Here, we will attempt to show that history is, as usual, repeating
itself\-- that we live in a world much like that of Galileo.
[[\[FN354\]](#Document1zzFN_F354)]{.underline} The dispositionist
worldview, which is so valuable to the most powerful institutions in our
culture, is widely accepted in our population as common-sensical, even
though that view is, according to the best available evidence,
fundamentally lop-sided. Furthermore, those powerful institutions use
their power to advance that view by actively promoting it themselves, by
rewarding others who do so, and by seeking to penalize or delegitimate
those who challenge it. Again, further evidence regarding (1) precisely
how dispositionism is incorrect, (2) exactly how dispositionism serves
large commercial interests (and not the public interest), and (3) how,
in practice, deep capture occurs are the topics of research now in
progress.

**\*231** In this Article, we are, like Stigler was, initially concerned
with just the consequences of (de)regulatory actions. Unlike Stigler,
however, we look less at who benefits from particular regulatory changes
and more at what the regulators say, for it is in framing their
regulations and in assuming one or another vision of the human being
that they reveal their dispositionism. Furthermore, we define
\"regulation\" far more broadly than Stigler did, to include, as we
believe his analysis should have, all institutions that could possibly
influence the fortunes of large commercial interests.
[[\[FN355\]](#Document1zzFN_F355)]{.underline} In this Part, we will
touch on only a few of those.

A. Some Shallow Evidence of Deep Capture

Experience should teach us to be most on our guard to protect liberty
when the government\'s purposes are beneficial. Men born to freedom are
naturally alert to repel invasion of their liberty by evil-minded
rulers. The greater dangers to liberty lurk in insidious encroachment by
men of zeal, well-meaning but without understanding.

\--Justice Louis Brandeis [[\[FN356\]](#Document1zzFN_F356)]{.underline}

First, we will consider the view of human beings adopted by the sort of
administrative regulatory institutions that Stigler and his cohorts did
focus on. Take, for example, the Federal Communications Commission (FCC)
and Chairman Michael Powell\'s
[[\[FN357\]](#Document1zzFN_F357)]{.underline} **\*232** conception of
consumers and the corresponding presumptions about markets and
regulation:

I am committed to building policy that is centered around market
economics. At times, this foundation of my thinking is often questioned
as being somehow anti-consumer. In a television interview, the question
goes something like this: \"Many consumer groups express grave concern
that your laissez-faire approach will harm consumers. They say you are
out of touch with consumers and living in an ivory tower. What say
you?\"

I am always a little puzzled by this question, for the premise of it has
been so thoroughly discredited in this nation and in countries around
the world that it should be beyond challenge. Market systems, far from
being the bane of consumers, have unquestionably produced more consumer
welfare than any other economic model devised by mankind. How is it that
anyone can argue that the pro-market policies of the United States have
not yielded enviable productivity in our economy, jobs for our citizens,
a higher standard of living than nearly any other country in the world,
and a tradition of innovation and invention that has brought new
products, tools and services to our citizens?

A well-structured market policy is one that creates the conditions that
empower consumers:

It lets consumers choose the products and services they want\--which is
their right as free citizens.

. . . .

It allows market forces to calibrate pricing to meet supply and demand.
Consumers get the most cost-efficient prices and enjoy the benefits of
business efficiencies.

The result for consumers is better, more cutting edge products, at lower
prices.

Contrary to the classic bugaboo that markets are just things that favor
big business and big money, market policies have a winning record of
delivering benefits to consumers that dwarfs the consumer record of
government central economic planning. Thus, if you are **\*233** truly
committed to serving the public interest, bet on a winner and bet on
market policy. [[\[FN358\]](#Document1zzFN_F358)]{.underline}

Thus, Powell views consumers as \"free citizens,\" who should therefore
be allowed to \"choose the products and services they want.\" And,
according to that conception of consumers, free choice should be enabled
through \"market systems,\" which are the best mechanism ever \"devised
by mankind\" for \"delivering benefits to consumers,\" \"empower\[ing\]
consumers,\" and thereby producing \"more consumer welfare.\"
[[\[FN359\]](#Document1zzFN_F359)]{.underline}

There are other noteworthy features of Powell\'s remarks. For example,
Powell frames his goals in terms of serving the \"public interest,\" but
this is the same type of assertion that Stigler claimed could not be
trusted. [[\[FN360\]](#Document1zzFN_F360)]{.underline} And certainly
this \"trust\" issue has been raised.
[[\[FN361\]](#Document1zzFN_F361)]{.underline} But Powell reassures
critics by claiming that deregulation tends toward the \"public
interest:\" \"In capital\[ist\] economies,\" he writes, \"the central
premise is that the interests of producers (i.e., money-makers) and
consumers need not diverge, but, in fact, can be synchronous.\"
[[\[FN362\]](#Document1zzFN_F362)]{.underline} That may be true, but it
is equally true that a **\*234** central premise behind regulation is
that the interests of producers and consumers sometimes do diverge. As
if to respond to that potential criticism, Powell takes a page from
Stigler\'s scholarly agenda, writing:

I am the first to admit that deregulation for its own sake is not
responsible policy. What is good policy is to carefully examine rules to
determine if they are actually achieving their stated purposes, or if,
instead, they are, in fact, denying consumers value by impeding
efficient market developments that these consumers would welcome.
Regulations are not innocuous simply because they are promulgated in the
name of consumers. No matter how worthy the purpose, rules that
constrain markets can, in fact, deny or delay benefits to the consuming
public. [[\[FN363\]](#Document1zzFN_F363)]{.underline}

Stigler himself could hardly have said it better. If you want to be sure
that regulations (or deregulations) actually serve the public interest,
then look at their effects. Thus, Powell\'s vision of consumers, like
that of virtually all of the country\'s most prominent regulators,
appears to be very close to the one that George Stigler complained
regulators generally lacked.

But our hypothesis is that shallow capture is still a problem, in part
because the advantages favoring large business interests in the
competition for regulatory influence have not changed, even if the
**\*235** conceptions of consumers, markets, and regulations have. Thus,
the same evidence that, to many scholars, might constitute proof of the
absence of shallow capture, strikes us as evidence of deep capture\--the
faith in pro-market, anti-regulation dispositionism.
[[\[FN364\]](#Document1zzFN_F364)]{.underline}

**\*238** Finally, it is worth pointing out how Powell dismisses those
who doubt that faith. [[\[FN365\]](#Document1zzFN_F365)]{.underline} He
finds such apprehensions, not just \"puzzl \[ing\],\"
[[\[FN366\]](#Document1zzFN_F366)]{.underline} but \"so thoroughly
discredited . . . that \[his view\] should be beyond challenge.\"
[[\[FN367\]](#Document1zzFN_F367)]{.underline} A major part of the
discrediting comes from the fair competition that is presumed to have
occurred in the global marketplace of political-economic systems, a
competition that led to the \"winning record\" of markets and a \"higher
standard of living \[in the United States\] than nearly any other
country in the world.\" [[\[FN368\]](#Document1zzFN_F368)]{.underline}
The not-very-hidden implication is that those who don\'t embrace his
views are favoring a turn toward \"central economic planning,\" perhaps
even communism. [[\[FN369\]](#Document1zzFN_F369)]{.underline} Powell,
in other words, dismisses what he calls \"the classic bugaboo that
markets . . . favor big business and big money\"
[[\[FN370\]](#Document1zzFN_F370)]{.underline} by raising the familiar
specter of the totalitarian bogeyman.
[[\[FN371\]](#Document1zzFN_F371)]{.underline}

**\*239** A look at the Federal Trade Commission (FTC), whose \"efforts
are directed toward stopping actions that threaten consumers\'
opportunities to exercise informed choice,\"
[[\[FN372\]](#Document1zzFN_F372)]{.underline} is similarly revealing.
The current FTC Chairman, Timothy Muris, seems to share Powell\'s
preference for free markets, and for all the same reasons. In 1980, for
instance, Muris wrote (with a co-author) that

\[t\]he relatively unregulated marketplace has significant advantages in
allocating resources and promoting consumer welfare. The market tends to
minimize waste by permitting continuous individual balancing of economic
costs and benefits by consumers and producers. In addition, greater
productive efficiency and more innovation result from the reliance on
market incentives. Competitive markets also reduce the need for central
collection of information; their price signals allow producers and
consumers to respond quickly to change. Finally, competitive markets
tend to decentralize power and make decisions that are fair in the sense
of being impersonal. For these reasons, reliance on the market should be
the norm. [[\[FN373\]](#Document1zzFN_F373)]{.underline}

More recently, he has supplemented that pro-market view by emphasizing
the need for certain types of regulatory interventions in **\*240**
markets. In 1991, for instance, he wrote that \"\[o\]ne of the crucial
roles for government, as we are seeing in Eastern Europe, is to define
and allocate property rights.\"
[[\[FN374\]](#Document1zzFN_F374)]{.underline} And although he
acknowledges the need for certain types of regulation when a market
fails, he cautions that

it is important to talk about the concept of market failure with care
because the issue is failure compared to what. In the real world,
institutions are imperfect, both government institutions and market
institutions. It makes no sense to compare an imperfect reality to a
hypothetical perfection. A vast literature exists on government failure,
as large as or larger than the literature on market failure.
[[\[FN375\]](#Document1zzFN_F375)]{.underline}

With that caution, Muris appears to be emphasizing the work of, among
others, George Stigler, for Muris goes out of his way to stress that

\[g\]overnment agencies are not run by philosopher kings who descend
from Olympus to protect us. Instead, government agencies are,
themselves, governed by rules that constrain what they can do, and they
are run by individuals who are striving to advance or succeed, just as
we all are. These constraints and incentives will influence how an
agency acts in the public interest.
[[\[FN376\]](#Document1zzFN_F376)]{.underline}

Muris also describes how FTC regulation of advertising has moved from
protecting industry members from competition toward serving consumers by
encouraging competition. [[\[FN377\]](#Document1zzFN_F377)]{.underline}

Again, the chairperson of a major federal regulatory institution seems
to embrace the dispositionist case for markets\--as does the Commission
itself. [[\[FN378\]](#Document1zzFN_F378)]{.underline} Again, that
regulator seems quite sensitive to **\*241** the insights of shallow
capture theory. And, again, we would conclude that, insofar as Chairman
Muris fails to consider the role of exterior and interior situation, his
views and, indeed, his position at the FTC, evince deep capture.
[[\[FN379\]](#Document1zzFN_F379)]{.underline}

**\*242** We could continue in this vein at some length, but for
everyone\'s sake, we will stop here.
[[\[FN380\]](#Document1zzFN_F380)]{.underline} In the following Section,
we aim to dig a little deeper and provide some illustrative examples of
how other \"regulators,\" from courts to hard-hitting news networks,
reflect and contribute to deep capture.

B. Some Less Shallow Evidence of Deep Capture

The myth that holds that the great corporation is the puppet of the
market, the powerless servant of the consumer, is, in fact, one of the
devices by which its power is perpetuated.

\--John Kenneth Galbraith [[\[FN381\]](#Document1zzFN_F381)]{.underline}

Consider briefly courts. Consider, for instance, the 1979 dispositionist
language of then-Chief Judge Irving Kaufman of the Second Circuit:

\[N\]o one can determine with any reasonable assurance whether one
product is \"superior\" to another. Preference is a matter of individual
taste. The only question that can be answered is whether there is
sufficient demand for a particular product to make its production
worthwhile, and the response, so long as the free choice of consumers is
preserved, can only be inferred from the reaction of the market.
[[\[FN382\]](#Document1zzFN_F382)]{.underline}

Kaufman, in now-common fashion, treats the market as little more than a
highly responsive conduit of stable, exogenous consumer preferences. The
preferences and free choices of the consumers come first, and the
success or failure of the product comes second, depending on its ability
to satisfy those preferences.
[[\[FN383\]](#Document1zzFN_F383)]{.underline} More recently, Judge
Frank Easterbrook has expressed a similar deference to markets, adding
that, with respect to reducing at least some kinds of personal injury
risks, courts should defer to the incentives of the marketplace rather
than attempt to fashion judge-made incentives. As he puts it, market
incentives, \"\[i\]mperfect as they are, . . . work better than the
alternatives the legal system can offer.\"
[[\[FN384\]](#Document1zzFN_F384)]{.underline} In this vein, too, we
could go on. After all, like Judge Easterbrook, many of the most
prominent and influential judges today made their careers as academics
devoted to promoting the dispositionist views of law and economics and
libertarianism, including: Judge Ralph Winter, Judge Stephen Williams,
Justice **\*243** Stephen Breyer, Justice Antonin Scalia, and, of
course, Judge Richard Posner. Moreover, some who did not begin as
academics nonetheless rose to fame and influence in significant part
because hard-core dispositionism was central to their judicial identity,
such as Judge Alex Kozinski, Judge Michael Luttig, and Justice Clarence
Thomas. Indeed, at this moment in history, it is difficult to imagine
that any federal judge will be appointed or promoted who does not
substantially embrace the hard-core dispositionism promoted by President
Bush, his advisors, and the Federalist Society, which now has immense
influence over the judicial selection process.
[[\[FN385\]](#Document1zzFN_F385)]{.underline}

Dispositionism, as we have already indicated
[[\[FN386\]](#Document1zzFN_F386)]{.underline} and will return to below,
also dominates legal academia. For instance, when, in the mid-1980s, the
American Law Institute (ALI) amassed a large, somewhat representative,
[[\[FN387\]](#Document1zzFN_F387)]{.underline} cast of influential tort
scholars to assess the tort system and to recommend possible reforms,
those scholars began their substantial work by embracing dispositionism.
In their words:

Utilitarian theorists . . . accept as a factual premise that people are
generally the best judges of what actions will maximize their own
utility. This premise implies that society should strive to let states
of affairs be determined by the choices of the individuals affected
rather than by public decision makers.

. . . .

We reject hard paternalism here both because we find it unpersuasive and
because we think that most Americans do not accept **\*244** it. Hence,
we suppose that, presumptively at least, consumers should choose the
accident level. [[\[FN388\]](#Document1zzFN_F388)]{.underline}

The idea that consumers \"choose the accident level,\" might strike some
readers as an unfamiliar notion. Few of us are conscious of having much
influence over, much less selecting, the accident level. But what the
ALI Reporters are indicating, of course, is that through decentralized
individual choice, a collective determination or variety of
determinations is made by consumers. The belief that consumers best know
their own interests and, through choice-based behavior, are best able to
act on that knowledge, is sometimes known as consumer sovereignty\--the
normative principle that the ALI Reporters explicitly endorsed.
[[\[FN389\]](#Document1zzFN_F389)]{.underline}

The ALI Reporters\' terms are revealing (not to mention, constraining).
[[\[FN390\]](#Document1zzFN_F390)]{.underline} \"Hard paternalism\"
conjures up notions of considerable governmental
interference\--something akin to central planning.
[[\[FN391\]](#Document1zzFN_F391)]{.underline} In underscoring the
rejection of such an approach by \"Americans,\" the Reporters seem again
to be implicitly using the shadow of the then-freshly fallen Soviet
Union as an important justification for embracing pro-market
dispositionism and rejecting any alternative.

Whether the ALI Reporters were in fact making such an analogy, we (and
perhaps they) cannot know. But we do know that legal scholars have been
explicit in making just that comparison. For example, in a recent
article, Robert Lande writes:

An optimal level of consumer choice, which has elsewhere been termed
\"consumer sovereignty\" is the state of affairs where the consumer has
the power to define his or her own wants and the ability to satisfy
these wants at competitive prices. The concept of consumer choice even
embodies some implicit notions about the rights of the individual in the
broader society; it is implicitly part of the Western world\'s response
to Marxism and the other totalitarianisms of the Twentieth Century.
[[\[FN392\]](#Document1zzFN_F392)]{.underline} **\*245** Again, the
belief in dispositionism appears to be motivated, at least in part, by a
fear that any other belief would place us on a slippery slope toward
totalitarianism.

But there is more to it than that. If one looks beyond the legal
reporters and law reviews, one will encounter many other, far less
formal, \"regulatory\" institutions that seek to promote dispositionism.
In these contexts, the goal seems to be to present to consumers a vision
of ourselves that we want to hold\--a self-affirming image that we are
not being moved by the situation. For example, Fidelity Investments
tells us:

You are not the kind of investor who blindly reacts to each and every
new market condition. You\'re informed. You\'re involved. You\'re
focused.

. . . .

Being in control of your financial future has never been more important.

. . . .

THERE ARE BULLS AND BEARS. BUT YOU ARE A THINKING ANIMAL.
[[\[FN393\]](#Document1zzFN_F393)]{.underline}

In other words, you, unlike all the other animals on the planet, are
uninfluenced by situation. You think, you prefer, you choose, and you
thereby enjoy dispositional control of your life.

Advertisers do not mind casting the shadow of those un-American
totalitarian regimes to drive the self-affirming dispositionist point
home. For instance, one cable news network recently placed this ad:

**\*246** What makes America . . . America? It\'s the freedom to have an
opinion . . . the freedom to speak your mind. . . . \[W\]e know you can
think for yourself. When it comes to covering the news, we don\'t have
an agenda . . . and don\'t take orders from anyone. Just like every
American. Just like you. America\'s News Channel MSNBC.
[[\[FN394\]](#Document1zzFN_F394)]{.underline}

The point seems to be not just that Americans are situationally
independent (able to think what they want to think and speak what they
want to speak), but also that MSNBC is uninfluenced by outside forces.

MSNBC\'s competitor, FOX News Channel, takes the dispositionist view a
step further and credits its own success to the free-choice-making
dispositions of its viewers:

Thanks to the American people. You\'ve made FOX News Channel the most
watched, most trusted name in news. As active participants in the
American experience, you ensure a free and fair press for all.

We Report. You decide. [[\[FN395\]](#Document1zzFN_F395)]{.underline}

And:

For the 3 out of 4 Americans who believe the news is biased, we present
something quite rare: a news network dedicated to providing fair and
balanced coverage. It\'s cable news for the independent thinker, 24
hours a day. [[\[FN396\]](#Document1zzFN_F396)]{.underline}

This practice of portraying the consumer as nobody\'s fool is extremely
widespread. According to some analysts, two of the most common themes of
cigarette advertising historically were \"choice\" and \"autonomy.\"
[[\[FN397\]](#Document1zzFN_F397)]{.underline} The Marlboro Man, as we
will highlight below, was nothing if not free and autonomous. And this
imagery was not exclusive to men. The demise of the taboo against women
smoking, **\*247** and the concomitant doubling of potential cigarette
consumers, was reinforced by a clever public relations campaign devised
by Edward L. Bernays. [[\[FN398\]](#Document1zzFN_F398)]{.underline} To
cap off that campaign, Bernays enlisted the cooperation of feminist Ruth
Hale to organize a contingent of ten cigarette-puffing women to walk
down New York\'s Fifth Avenue in the 1929 Easter Parade. The feminists\'
involvement was billed and reported as an act of protest and a call for
equality. [[\[FN399\]](#Document1zzFN_F399)]{.underline} And the
cigarettes were, themselves, described as \"torches of freedom.\"
[[\[FN400\]](#Document1zzFN_F400)]{.underline} So it was that American
Tobacco managed, through public relations, to promote smoking in the
name of liberation and autonomy. A look at Virginia Slims\' more recent
advertising campaign slogans from 1968 until today reveals that the beat
goes on: \"You\'ve Come A Long Way, Baby,\" \"It\'s a Woman Thing,\"
\"Find Your Voice,\" and \"See Yourself as a King.\"
[[\[FN401\]](#Document1zzFN_F401)]{.underline}

The similarity of \"seeing yourself as a king\" and \"consumer
sovereignty\" is hard to miss and may not be an accident. The message
not only encourages consumers to purchase cigarettes, it also suggests
some of the larger possible stakes that commercial interests have in
dispositionism. After all, if the consumer is king, then it is hard to
justify making manufacturers pay for simply following orders. And this
ability to place responsibility squarely on consumers\--to say in a tort
case, for instance, that they \"assumed the risk\" of their
actions\--has been fundamental to the tobacco industry\'s success in
selling a product believed to cause more than 440,000 premature deaths
per year in the United States alone.
[[\[FN402\]](#Document1zzFN_F402)]{.underline} **\*248** Thus, an
important reason that sellers might embrace and encourage dispositionism
is their hope of shifting responsibility and avoiding costly regulation
or liability. [[\[FN403\]](#Document1zzFN_F403)]{.underline}

A recent Pfizer Forum advertisement echoed that message: \"Medical
professionals must help patients understand that in return for greater
power, control, and choice over the services and treatments they
receive, they must bear greater responsibility for their own care.\"
[[\[FN404\]](#Document1zzFN_F404)]{.underline} The pharmaceutical
company\'s message, which comes at a time when it seems to be facing
growing threats of liability,
[[\[FN405\]](#Document1zzFN_F405)]{.underline} taps into a
well-established human tendency: where we see the ingredients of
autonomous, volitional, preference-satisfying disposition, we place
responsibility. [[\[FN406\]](#Document1zzFN_F406)]{.underline}

**\*249** And so we see countless instances of groups latching on to
consumer sovereignty in order to meet the threats of heightened
regulation and liability. Take, for example, the Center for Consumer
Freedom, \"a nonprofit coalition supported by restaurants, food
companies, and consumers working together to promote personal
responsibility and protect consumer choices.\"
[[\[FN407\]](#Document1zzFN_F407)]{.underline} The group is one of
several created by Berman and Company, a public relations firm headed by
Richard Berman, whose numerous projects have been heavily funded by the
tobacco, alcohol, and restaurant industries.
[[\[FN408\]](#Document1zzFN_F408)]{.underline} The Center for Consumer
Freedom has, among other things, published and broadcast numerous
advertisements purporting \"to stand up for common sense and personal
choice\" [[\[FN409\]](#Document1zzFN_F409)]{.underline}\--by which it
seems to mean, stereotypes and dispositionism. In one advertisement, the
group warns:

YOU ARE TOO STUPID . . . to make your own food choices. At least
according to the food police and government bureaucrats who have
proposed \"fat taxes\" on foods they don\'t want you to eat. Now the
trial lawyers are threatening class-action lawsuits against restaurants
for serving America\'s favorite foods and drinks. We think they\'re
going too far. It\'s your food. It\'s your drink. It\'s your freedom.
[[\[FN410\]](#Document1zzFN_F410)]{.underline}

To those suggesting that the food industry is partially responsible for
the obesity epidemic, [[\[FN411\]](#Document1zzFN_F411)]{.underline} the
Center for Consumer Freedom maintains its hard-line dispositionism: \"We
need individual solutions for individual problems. And the best
individual solution is personal responsibility.\"
[[\[FN412\]](#Document1zzFN_F412)]{.underline} And just behind that
dispositionism lurks the totalitarian bogeyman. Richard Berman, for
instance, describes those with whom he disagrees as

**\*250** aggressors \[who\] are a blend of self-anointed \"food
police\" activists; overzealous public health \"experts\" who\'d like to
raise our children for us; advocates of \"Twinkie taxes\"; lawmakers who
use the cudgel of government to appear \"enlightened\" enough to be
re-elected; and, yes, those trial lawyers who smell a payday where most
of us just smell dinner. [[\[FN413\]](#Document1zzFN_F413)]{.underline}
And to underscore the point, the Center for Consumer Freedom labels a
recent book criticizing the food industry\'s role in contributing to the
obesity epidemic as a \"\'Big Brother\' Manifesto.\"
[[\[FN414\]](#Document1zzFN_F414)]{.underline}

C. Some Cross-Cultural Evidence of Deep Capture

My research has led me to the conviction that two utterly different
approaches to the world have maintained themselves for thousands of
years. These approaches include profoundly different social relations,
views about the nature of the world, and characteristic thought
processes. Each of these orientations\--the Western and the Eastern\--is
a self-reinforcing, homeostatic system. The social practices promote the
worldviews; the worldviews dictate the appropriate thought processes;
and the thought processes both justify the worldviews and support the
social practices.

\--Richard E. Nisbett [[\[FN415\]](#Document1zzFN_F415)]{.underline}

The previous Sections provided a sample of evidence suggesting that
various regulatory institutions are, indeed, highly dispositionist. This
evidence should not be surprising, given that social psychologists have
demonstrated that we humans tend to see the world dispositionally. So,
although the evidence might be consistent with our deep capture
hypothesis and might well reveal a major cause for concern, it may only
evince a shared cognitive illusion\--a worldview that emerges solely
from forces outside of anyone\'s control.

An important implication of deep capture is that our dispositionism is,
at least in this market-oriented culture, more **\*251** profound than
it would otherwise be. Corporations exercise their enormous power over
situation to encourage and reinforce dispositionism because it is
valuable to them. This presumes that the basic contours of our outlook
are malleable, that even dispositionism is not stable but is subject to
situational influence.

A question thus emerges as to whether dispositionism reflects anything
more than our hardwiring as humans\--a shared interior situation. The
answer seems to be that it does. As we have already indicated,
dispositionism varies somewhat across contexts. Thus, exterior situation
matters too. Social psychologists have begun looking more specifically
at the significance of culture. In a revealing study by Takahiko Masuda
and Richard Nisbett, for example, students at Kyoto University and the
University of Michigan were shown animated underwater scenes containing
images of various undersea objects, such as rocks, small fish, plants,
and a \"focal fish.\" [[\[FN416\]](#Document1zzFN_F416)]{.underline} The
focal fish was larger, brighter and faster moving than the others\--the
sort of characteristics that would, according to conventional
understandings, make them more salient to the observer.
[[\[FN417\]](#Document1zzFN_F417)]{.underline} After viewing the scenes,
students were asked to describe what they saw. Predictably, American
students spoke immediately of the focal fish (e.g., \"a trout, moving
off to the left\") and only later added references to its surroundings.
[[\[FN418\]](#Document1zzFN_F418)]{.underline} The Japanese students, on
the other hand, tended to begin by describing the context (e.g., \"It
looked like a pond\"). [[\[FN419\]](#Document1zzFN_F419)]{.underline}
During the course of their descriptions, students from both universities
made roughly equal references to the focal fish, but the Japanese
participants made over sixty percent more references to contextual
elements and twice as many references to relationships with inanimate
aspects of the environment (e.g., \"the big fish swam past a rock\").
[[\[FN420\]](#Document1zzFN_F420)]{.underline}

According to Nisbett, such evidence confirms the hypothesis that members
of some cultures are more inclined to take in the world as if through a
wide-angle lens, whereas members of other cultures tend to see the world
as if through a zoom. [[\[FN421\]](#Document1zzFN_F421)]{.underline}
Nisbett argues that this **\*252** distinction across cultures has
ancient roots and may even help explain why the Chinese made connections
that Aristotle and Galileo, with their telescopic vision, missed:

The Greeks\' focus on the salient object and its attributes led to their
failure to understand the fundamental nature of causality. Aristotle
explained that a stone falling through the air is due to the stone
having the property of \'gravity.\' But of course a piece of wood tossed
into water floats instead of sinking. This phenomenon Aristotle
explained as being due to the wood having the property of \'levity\'! In
both cases the focus is exclusively on the object, with no attention
paid to the possibility that some force outside the object might be
relevant. But the Chinese saw the world as consisting of continuously
interacting substances, so their attempts to understand it caused them
to be oriented toward the complexities of the entire \'field,\' that is,
the context or environment as a whole. The notion that events always
occur in a field of forces would have been completely intuitive to the
Chinese. The Chinese therefore had a kind of recognition of the
principle of \'action at a distance\' two thousand years before Galileo
articulated it. They had knowledge of magnetism and acoustic resonance,
for example, and believed it was the movement of the moon that caused
the tides, a fact that eluded even Galileo.
[[\[FN422\]](#Document1zzFN_F422)]{.underline} Thus, the tendency goes
beyond perception of non-human objects and is revealed as well in how
\"Easterners\" and \"Westerners\" conceptualize and construe social
contexts. [[\[FN423\]](#Document1zzFN_F423)]{.underline}

**\*253** The evidence about cultural variations in dispositionism
provides some additional support for our hypothesis that humans are both
\"individually\" and \"culturally\" dispositionist, but it may go
further. It suggests that dispositionism is greatest where the
situational influence of large corporate interests has likely been
greatest.

Recall the fundamental attribution error that is at the heart of
dispositionism fallacy\--the tendency to miss the influence of situation
and to overstate the power of disposition in understanding one\'s own
and other people\'s behavior. Earlier, we described the centrality of
that bias to human perception and experience.
[[\[FN424\]](#Document1zzFN_F424)]{.underline} Cross-cultural
comparisons, however, indicate that the fundamental attribution error
may be more fundamental in Western societies than it is in other
societies. [[\[FN425\]](#Document1zzFN_F425)]{.underline} People in
Asia, for example, appear to be less prone to see disposition than are
Westerners. [[\[FN426\]](#Document1zzFN_F426)]{.underline} The \"focal
fish\" experiment provides some support for that conclusion. This
disparity **\*254** has been demonstrated in numerous experiments,
including variations of the famous pro-Castro, anti-Castro speech
experiment highlighted above.
[[\[FN427\]](#Document1zzFN_F427)]{.underline}

In the basic version of that study, recall, subjects who knew that a
student had been instructed to write and deliver a pro-Castro speech
nevertheless thought that the views the student expressed in her speech
were representative of her true dispositional beliefs.
[[\[FN428\]](#Document1zzFN_F428)]{.underline} The same dispositionist
mistake appeared when the study was conducted with a group of East Asian
subjects\--that is, subjects at first overstated the role of disposition
in the students\' speeches.
[[\[FN429\]](#Document1zzFN_F429)]{.underline} A number of similar
studies have documented this basic commonality between Westerners and
Easterners in the tendency to overstate disposition.
[[\[FN430\]](#Document1zzFN_F430)]{.underline} Social psychologists
therefore do believe that dispositionism, in its most basic form, is a
widely shared human tendency.
[[\[FN431\]](#Document1zzFN_F431)]{.underline}

Differences begin to emerge, however, when the basic design of the
experiment is altered to highlight the role of the situational pressure
even more prominently to subjects\--by, for example, placing the subject
in the target\'s shoes and requiring her to write an essay that takes a
particular stance. American subjects continue to exhibit the fundamental
attribution error in significant proportions, while East Asians become
far more likely to acknowledge the role of situation in the speeches
they hear. [[\[FN432\]](#Document1zzFN_F432)]{.underline} This variation
in dispositionism has recurred in several studies comparing Eastern to
Western subjects. [[\[FN433\]](#Document1zzFN_F433)]{.underline} Such
cross-cultural differences in the power of **\*255** the fundamental
attribution error suggest that, although dispositionism may be
universal, the degree of dispositionism varies across cultures.
[[\[FN434\]](#Document1zzFN_F434)]{.underline} Overall, the findings
suggest that dispositionism is itself subject to situational influence,
a reality that helps to make deep capture possible.

Another dimension to these cross-cultural experiments confirms that
hypothesis. In a number of studies, people who are from the East but
living in the West exhibit an outlook that falls between the strong
dispositionism seen in Western subjects and the weaker dispositionism
seen in Eastern subjects. [[\[FN435\]](#Document1zzFN_F435)]{.underline}
A compelling explanation **\*256** for these findings is that when
subjected to different situational influences\--that is, different
cultures\-- people develop differences in how they perceive behavior.
[[\[FN436\]](#Document1zzFN_F436)]{.underline} In other words,
situation, not dispositional factors such as biology or race, makes the
difference. And importantly for our deep capture thesis, the Western
cultural situation appears to drive people into a deeper dispositionism
and away from situationism. Undoubtedly, differences in basic outlook
remain among the many subcultures within Western society.
[[\[FN437\]](#Document1zzFN_F437)]{.underline} The general patterns,
however, are reasonably clear that dispositionism is stronger in the
West than in the East, and that the situational influences of Western
culture powerfully alter outlooks toward dispositionism.
[[\[FN438\]](#Document1zzFN_F438)]{.underline}

The evidence suggesting a greater sensitivity in Eastern society than in
Western society to situational influences over behavior at first appears
to challenge explanations of the fundamental attribution error that are
rooted in the mechanics of human perception. In our earlier discussion
we stressed, as have social psychologists, that one reason for the
fundamental attribution error is the relative facility of seeing
individual behavior compared to the situational influences that may give
rise to it. [[\[FN439\]](#Document1zzFN_F439)]{.underline} Our limited
perceptual and cognitive resources focus on what is stark and miss what
is subtle. Therefore, we see the person who would administer painful
shocks to a test-subject as dispositionally bad or sadistic, rather than
account for the myriad of situational influences that help account for
that behavior. [[\[FN440\]](#Document1zzFN_F440)]{.underline} Notably
for our thesis, social psychologists have not abandoned the basic
perceptual explanation of the human tendency to overstate **\*257**
dispositionist explanations of behavior. Indeed, this basic perceptual
account explains the baseline of similarity seen in the cross-cultural
Castro speech experiments.
[[\[FN441\]](#Document1zzFN_F441)]{.underline}

According to social psychologists, the ultimate divergence in the
commitment to dispositionist explanations is a product of the difference
in the two cultures\' lay theories of the relationship between
individuals and society. [[\[FN442\]](#Document1zzFN_F442)]{.underline}
In the West, the perceptual foundation of the fundamental attribution
error is surrounded by lay **\*258** theories of the self as an
autonomous, free, dispositionally stable individual.
[[\[FN443\]](#Document1zzFN_F443)]{.underline} In this fashion, the
fundamental attribution error serves to confirm the dispositional
worldview for Westerners. On the other hand, cultures in the East
entertain lay theories that portray the individual as situated in an
array of interdependent social relationships in which roles, rather than
individual actors, are emphasized.
[[\[FN444\]](#Document1zzFN_F444)]{.underline} Social psychologists,
thus, attribute to culture the fact that Eastern subjects appear to
correct more easily for the fundamental attribution errors received from
basic perceptual cues than do Western subjects.
[[\[FN445\]](#Document1zzFN_F445)]{.underline} That explanation finds
support in a number of cross-cultural studies. For instance, individuals
who have been \"multiply enculturated\"\--that is, exposed extensively
to two or more cultures\--can be situationally primed to activate the
causal schemas characteristic of either culture. In one study, students
in Hong Kong were shown one of the following: Western images (such as a
cowboy on a horse), Eastern images (such as a dragon), or neutral images
(such as a landscape). [[\[FN446\]](#Document1zzFN_F446)]{.underline}
Afterwards, when making causal attributions, subjects in the first group
were most dispositionist, subjects in the second group were most
situationist, and those in the control group fell in between.
[[\[FN447\]](#Document1zzFN_F447)]{.underline} Studies by developmental
psychologists have found that Eastern and Western children exhibit
common fundamental attribution errors and, unlike their parents, Eastern
children do not correct for those errors when situational constraints
**\*259** are highlighted.
[[\[FN448\]](#Document1zzFN_F448)]{.underline} Having not yet learned
the situational lay-theories that their culture provides, their
perceptions appear to rest on the limitations that give rise to the
fundamental attribution error in Easterners and Westerners alike.
[[\[FN449\]](#Document1zzFN_F449)]{.underline}

It is important to note that Easterners\' tendency to correct for
dispositional overstatements is itself an unseen, subtle process. The
studies revealing the relative depth or shallowness of the fundamental
attribution error show that the adjustments for situation are often made
automatically; they are not the result of a conscious, explicit,
intentional adherence to an ideology or worldview.
[[\[FN450\]](#Document1zzFN_F450)]{.underline} The difference in
outlook, driven by cultural differences, is attributable to unseen
processes, not dispositional choice. Consequently, while exterior
situation helps explain the depth of our dispositionism, that influence
is registered automatically, beneath our conscious control in the
situations of our interiors.

The fact that situational influence determines the depth of our
dispositionism is extremely advantageous to corporations, which, as we
have indicated, have an interest in encouraging such an outlook.
[[\[FN451\]](#Document1zzFN_F451)]{.underline} The capture of this
outlook can be accomplished by exercising power over situation, a
pursuit that is itself enabled by the strength of the dispositionist
theories that support corporate power.
[[\[FN452\]](#Document1zzFN_F452)]{.underline}

**\*260** D. Some Direct Evidence of Deep Capture

As we just reviewed, evidence about cultural variation of dispositionism
is consistent with our deep capture hypothesis in a number of ways.
However, that evidence, by itself, does little to demonstrate that
corporate efforts are an important cause of the heightened
dispositionism of the West. Many would argue that any causal connection
is actually the reverse of the one we have hypothesized. For instance,
the prominence and success of commercial interests in America could well
reflect the heightened dispositionism of Americans.

There is almost certainly some truth to that view. The American
self-conception is one of individualism, a sibling concept of what we
refer to as dispositionism. This individualism seemed to emerge without
much obvious encouragement by large commercial interests and is
sometimes associated with people like Henry David Thoreau, who seem
anything but deeply captured. President Herbert Hoover saw individualism
as the cornerstone of the American character (or disposition):

Individualism has been the primary force of American civilization for
three centuries. It is our sort of individualism that has supplied the
motivation of America\'s political, economic, and spiritual institutions
in all these years. It has proved its ability to develop its
institutions with the changing scene. Our very form of government is the
product of the individualism of our people, the demand for an equal
opportunity, for a fair chance.

The American pioneer is the epic expression of that individualism, and
the pioneer spirit is the response to the challenge of opportunity, to
the challenge of nature, to the challenge of life, to the call of the
frontier. [[\[FN453\]](#Document1zzFN_F453)]{.underline}

In this way, Americans have long seen their individualism as both
obvious [[\[FN454\]](#Document1zzFN_F454)]{.underline} and the most
significant factor behind their relative economic and political success.
That self-affirming self-conception may, however, be yet another example
of the fundamental attribution error. In our view, attributing our
success to our individualist disposition misses the more significant
role of our **\*261** situation, which itself has fostered success and
rendered more plausible our self-conception. Put differently, the
American pioneer may not be \"the epic expression of . . .
individualism,\" [[\[FN455\]](#Document1zzFN_F455)]{.underline} as many
tend to presume. Rather, the individualism is as much the consequence of
the existence of a valuable situation, including an immense frontier.
[[\[FN456\]](#Document1zzFN_F456)]{.underline}

**\*262** Be that as it may, the fact that different cultures tend to be
more or less dispositionist reveals how dispositionism can itself be
influenced by the situation, thus leaving the door open for deep
capture. However, it does not, in and of itself, provide direct evidence
of deep capture. If our culture is especially dispositionist, one would
expect our legal theorists, lawmakers, and laws
[[\[FN457\]](#Document1zzFN_F457)]{.underline} to share or reflect that
fundamental bias. Similarly, one would expect advertisers to reflect
that same view, by design or not, in marketing their products in
America. The Marlboro Man, as a cigarette-smoking frontiersman, may
reflect little more than a shared sense that he is us and we are him:
autonomous, free, and unfettered, . . . the epic expression of
individualism. [[\[FN458\]](#Document1zzFN_F458)]{.underline} Thus, to
support the portion of the deep capture hypothesis that predicts that
large commercial interests actively and sometimes consciously promote
dispositionist worldviews directly, we need a different sort of
evidence, a small sample of which we will highlight here.

Fortunately, providing evidence is quite simple. All one has to do is
point to the hundreds of billions of dollars spent each year on
advertising, marketing, and public relations.
[[\[FN459\]](#Document1zzFN_F459)]{.underline} Large commercial entities
are using and developing the sort of social psychological research of
which the rest of us are either ignorant or dismissive. As one of us has
argued at length (with Doug Kysar), marketing texts and marketing firms
are steeped in an understanding of the powerful role of situation.
[[\[FN460\]](#Document1zzFN_F460)]{.underline} Moreover, they use what
they know (and learn from market experience) to manipulate consumer
perceptions and behavior. [[\[FN461\]](#Document1zzFN_F461)]{.underline}

**\*263** We will not review that work here. For now, we hope it is
sufficient to point out that when social psychologist Robert B. Cialdini
[[\[FN462\]](#Document1zzFN_F462)]{.underline} wrote his popular book,
Influence: The Psychology of Persuasion,
[[\[FN463\]](#Document1zzFN_F463)]{.underline} he devoted one of six
main chapters to the Milgram experiments and their lessons for
marketing. [[\[FN464\]](#Document1zzFN_F464)]{.underline} A review of
the book in the Journal of Retailing raved that \"\[Influence\] could be
required, profitable \'weekend reading\' for business majors.\"
[[\[FN465\]](#Document1zzFN_F465)]{.underline} Another review stated
that \"\[f\]or marketers, \[this book\] is among the most important
books written in the last 10 years.\"
[[\[FN466\]](#Document1zzFN_F466)]{.underline} Similarly, many other
marketing-oriented writings on consumer behavior underscore the
importance of situation over disposition in determining individual
behavior. \"An actor in a play takes his cue from a line or some other
happening or event. The human mind takes its cue from its intentions and
its immediate environment. Such cues can influence what we think about
next.\" [[\[FN467\]](#Document1zzFN_F467)]{.underline} Such is the
starting point for one influential marketing guide promising to
\"demystif\[y\] the effects of advertising and describ\[e\] some of the
psychological mechanisms underlying them . . . written primarily for
those who foot the bill for advertising and those who produce
advertising.\" [[\[FN468\]](#Document1zzFN_F468)]{.underline}

Marketing and advertising practices thus reveal the deep, though
apparently unseen, irony in the advertisements that we summarized
earlier. [[\[FN469\]](#Document1zzFN_F469)]{.underline} Advertisers
commonly present to us a vision of ourselves that confirms our
self-affirming, dispositionist (and non-manipulable) self-image. They do
so, it would seem, in order to manipulate our perceptions and behavior.
The manipulation apparently works, as revealed by their choice to
continue doing so at a substantial cost.

In a way, that is our entire case in a nutshell. We are subject to
influence and manipulation from sources that we do not see or do
**\*264** not consider relevant. Those with the ability to influence
those sources wield immense influence over us, while we continue to
believe that we are acting independently, according to our preferences.
We conclude that advertising works, but deny that it works on us.
[[\[FN470\]](#Document1zzFN_F470)]{.underline} But, to borrow one of the
oldest strategies in the book, do not take our word for it\--listen to
what those in the industry say about what they do. For example, the Web
site for Burson-Marsteller, a public relations firm, has this to say
about their industry:

What makes public relations so important is that people\'s opinion of .
. . a company, or a company\'s products or services is to a great extent
beyond that . . . company\'s control. A public relations agency offers
these . . . companies the resources necessary to make today\'s
incredibly diverse influences work for them. It accomplishes this by
having messages about the . . . company or company product or service
communicated through a credible third party such as a trusted
journalist, physician, television or radio commentator, entertainer, or
influential Internet figure. In essence, a public relation agency
optimizes the power of endorsement by successfully influencing those who
influence a targeted audience.
[[\[FN471\]](#Document1zzFN_F471)]{.underline}

Hill and Knowlton, one of Burson-Marsteller\'s chief competitors and the
firm responsible for designing the tobacco industry\'s response to
evidence that smoking caused lung cancer,
[[\[FN472\]](#Document1zzFN_F472)]{.underline} describes their role in
very similar terms:

Powerful communications that make a difference\[,\] . . . that can
transform, inspire, move and educate is why we exist. This power can be
accessed by our clients wherever and whenever they need it; in
specialist arenas and in global campaigns; in the corridors of **\*265**
government; in the financial centers and in the minds of consumers
everywhere. [[\[FN473\]](#Document1zzFN_F473)]{.underline}

Richard Berman\'s public affairs firm, Berman and Company, which
represents the cigarette, restaurant, and alcohol industries, describes
in like fashion its bold mission to \"\[c\]hange the debate\" for the
sake of its clients: [[\[FN474\]](#Document1zzFN_F474)]{.underline}

Many PR firms promise access to the media. Law firms pledge to defend
their clients. Lobbying firms promise access to friendly legislators. At
Berman and Company we do all this. But we go further. We change the
debate. If necessary, we start the debate.

. . . .

. . . Our success is based on three core competencies: credible research
as the foundation for effective messages disseminated via aggressive
communications. [[\[FN475\]](#Document1zzFN_F475)]{.underline}

By analyzing the way marketers, advertisers, and public relations firms
view us, it is clear that we are not as dispositional as we think we
are. A major sector of our economy is making a huge profit by
maintaining two visions of the human animal. The public vision is often
that of the dispositional, independent, rational actor. The private
vision is that of the situational character, capable of manipulation
through situational influence. Those with the greatest stake in
perpetuating the illusion that we are dispositionists encourage,
promote, and market our dispositionism, in significant part because
doing so helps make the situation that much more invisible. It is
largely through the unseen situation that consumers, like other
individuals, institutions, and entities in our culture, are deeply
captured.

From this vantage point the Marlboro Man reveals himself not as a
reflection of what we\--advertisers and consumers alike\--all see about
ourselves. Rather, he embodies that dispositionist self whom marketers
want us to see, but whom they understand is almost as fictional as the
Marlboro Man himself.

The Marlboro Man first saddled up in the 1950s, as part of a concerted
effort by Philip Morris to attract male smokers who may **\*266** have
been frightened by then-fresh reports of the health risks of smoking.
[[\[FN476\]](#Document1zzFN_F476)]{.underline} Marlboro was a filtered
brand that had originally been marketed, with limited success, as a
woman\'s cigarette behind the slogan \"Mild as May.\"
[[\[FN477\]](#Document1zzFN_F477)]{.underline} The cowboy image
eventually proved the most popular of a group of potential pitchmen,
including explorers, sailors, athletes and other rugged men.
[[\[FN478\]](#Document1zzFN_F478)]{.underline} In a three-page spread in
the January 1957 issue of Life magazine,
[[\[FN479\]](#Document1zzFN_F479)]{.underline} the caption read, \"The
Marlboro Man speaks for himself.\"
[[\[FN480\]](#Document1zzFN_F480)]{.underline} Introducing his Western
way of life, the Marlboro Man states: \"Own my own ranch . . . \[I\]
ride from one end of it to the other every day . . . I like the life a
man leads out here . . . the good feeling of being your own boss.\"
[[\[FN481\]](#Document1zzFN_F481)]{.underline} Over the next four
decades, the Marlboro Man would help Marlboro become, in the words of a
Phillip Morris competitor, \"the most valuable brand item in the
world.\" [[\[FN482\]](#Document1zzFN_F482)]{.underline} The cowboy image
was so successful because it tapped into the same American ideal of the
independent frontiersman that Hoover credits as the \"primary force of
American civilization:\" [[\[FN483\]](#Document1zzFN_F483)]{.underline}

**\*267** \[T\]he cowboy proved to be the advertising \"Big Idea\"
achieving universal appeal. During the 1950s and 60s the popularity of
American cowboy films meant that for most people the cowboy became
\[t\]he symbol of America and the American \"dream,\" cutting across
barriers of sex, and social and cultural divisions.

. . . .

. . . \[T\]he underlying themes of adventure, freedom, independence,
being in charge of your destiny, open spaces and escapism for the urban
dweller have proved appealing to several generations. They still have
contemporary relevance; the cowboy is an icon of sturdy independence,
the kind of person who chooses to smoke, a quiet defender of free
choice. [[\[FN484\]](#Document1zzFN_F484)]{.underline}

That the Marlboro Man portrays an image of \"free choice\" should come
as no surprise. It is more than an appeal to an active American script;
it also deepens that script. Of course, it also helps to sell a product
that most would agree gains its appeal from almost entirely situational
sources. Those sources can be either exterior situational influences,
such as peer pressure, or interior situational influences, such as
addiction. From that perspective, it is striking that \"autonomy\" and
\"free choice\" are the banners behind which cigarettes are sold and the
self-image that consumers gain from smoking them. To confirm this
(incorrect) self-image, cigarette advertisers portray smoking as
something we simply choose to do.

The R.J. Reynolds Tobacco Company used similar means to attract young
customers to smoke Camels. As one internal memorandum put it,
\"Advertising will rely on clearly aspirational appeals (the me I want
to be versus the me I am) to provide the motivation for target smokers
to select CAMEL.\" [[\[FN485\]](#Document1zzFN_F485)]{.underline} A
second RJR memorandum states:

**\*268** The fragile, developing self-image of the young person needs
all of the support and enhancement it can get. Smoking may appear to
enhance that self-image in a variety of ways. If one values, for
example, an adventurous, sophisticated, adult image, smoking may enhance
ones self-image. If one values certain characteristics in specific
individuals or types and those persons or types smoke, then if one also
smokes he is psychologically a little more like the valued image. This
self-image enhancement effect has traditionally been a strong
promotional theme for cigarette brands and should continue to be
emphasized. [[\[FN486\]](#Document1zzFN_F486)]{.underline}

Again, cigarette manufacturers know exactly \"who we are\"\--we are
beings who want to believe that we are autonomous, free choosers, but
who, in reality, are very susceptible to situational forces. We are
especially susceptible to situations that make us feel as if we really
are free choosers acting according to our own will. These advertising
campaigns seek to exploit our situational weaknesses. As a result,
cigarette smoking, a deadly addiction, becomes the epitome of free
choice. [[\[FN487\]](#Document1zzFN_F487)]{.underline}

As Americans, we see ourselves as particularly immune to the role of
situation. We see \"individualism as the primary force\" in defining our
institutions and our lives. In fact, we are not immune to situation, nor
are we as individualistic as we suppose. The fact that profit-driven
actors spend billions of dollars per year to promote a false
dispositionist image of ourselves is direct evidence of both of those
claims and of deep capture.

**\*269** E. Some Deeper Evidence of Deep Capture: The Puzzles Revisited

We have reviewed a sample of the evidence indicating that pro-commercial
dispositionism has been widely accepted as the presumptive starting
place for policy analysis. Many administrative regulators, judges, and
legal scholars, like most consumers\--from cigarette smokers, to
investors, to television-news enthusiasts\--take dispositionism as the
obvious truth. Implicitly, we have also reviewed one of the most common
and effective strategies for promoting pro-commercial views. Before
explicitly naming that strategy, it may be helpful to return briefly to
the Milgram experiments and some variations of the rendition that we
described above.

1\. The Demand for Credible Messengers

With numbing regularity good people were seen to knuckle under the
demands of authority and perform actions that were callous and severe.
Men who are in everyday life responsible and decent were seduced by the
trappings of authority, by the control of their perceptions, and by the
uncritical acceptance of the experimenter\'s definition of the
situation, into performing harsh acts. . . . A substantial proportion of
people do what they are told to do, irrespective of the content of the
act and without limitations of conscience, so long as they perceive that
the command comes from a legitimate authority.

\--Stanley Milgram [[\[FN488\]](#Document1zzFN_F488)]{.underline}

After discovering the unexpected power of the situation in his initial
experiment, Milgram altered the situation in the hope of making visible
some of the previously unseen influences. One of the key factors he
varied was the credibility or authority of the person who gave orders to
the teacher. In the basic experiment, recall that the person prompting
the teacher to continue shocking appeared as a scientist, complete with
a white lab coat. He seemed to have considerable knowledge and
authority. When Milgram replaced that \"experimenter\" with an
\"ordinary man\" to give the orders, the percentage of teachers who
administered the maximum shock (450 volts) dropped from approximately
sixty-five percent to twenty percent.
[[\[FN489\]](#Document1zzFN_F489)]{.underline} Apparently, the same
words were less persuasive or **\*270** influential when they came from
a less credible or authoritative source. In addition, when Milgram
replaced the one lab-coated experimenter with two lab-coated authorities
who gave contradictory orders, the complete compliance percentage
dropped to zero. [[\[FN490\]](#Document1zzFN_F490)]{.underline} In that
variation, teachers could more easily justify ending the shocking
because one person with authority was encouraging them to do so. Those
and other variations help make clear that the credibility of the
messenger is often more important than the message itself.
[[\[FN491\]](#Document1zzFN_F491)]{.underline}

This underscores an important element of the deep capture hypothesis:
the quest to promote certain ideas will include an endeavor to locate,
create, and sponsor credible means of conveying those ideas. Often,
those with the greatest stake in an idea have, for precisely that
reason, questionable credibility when speaking on behalf of the idea.
Thus, the search for an effective means of communication often includes
a search for trustworthy spokespeople. The public relations firm
Burson-Marsteller makes the point in just those terms when it describes
its primary strategy as that of \"having \[one\'s\] messages . . .
communicated through a credible third party\" in order to
\"influenc\[e\] those who influence a targeted audience.\"
[[\[FN492\]](#Document1zzFN_F492)]{.underline}

Berman and Company emphasizes that the \"key\" to its success \"is
getting the most credible messengers to carry the strongest messages.\"
[[\[FN493\]](#Document1zzFN_F493)]{.underline} To access such credible
messengers, Berman and Company developed what it calls an \"academic
research network:\" [[\[FN494\]](#Document1zzFN_F494)]{.underline}

We commission more than a dozen major research projects each year to
independent academics at leading research universities, including:

• University of Chicago

• Florida State University

• University of Texas

• Johns Hopkins University

**\*271** • University of Wisconsin

• Massachusetts Institute of Technology

• University of North Carolina

• University of California, Los Angeles

• Boston University

• Michigan State University

The credibility of the material produced by these independent
researchers is unparalleled among \"brand name\" trade associations, law
firms, or consultants active in the public policy arena.
[[\[FN495\]](#Document1zzFN_F495)]{.underline}

Berman and Company relies on several other tactics to create favorable,
credible third-party messengers for its clients:

Sometimes, the best messengers are line managers from affected
employers. We have more than a decade of experience building and
maintaining sophisticated grassroots activation systems through which
managers can have maximum impact with a minimal investment of time.

CEOs of major employers, working in teams managed by Berman and Company,
repeatedly deliver powerful messages to key legislators and the White
House.

Whether drawing industry allies from associations, think tanks, or the
private sector, Berman and Company reaches out to potential allies on a
daily basis, providing data, information, and refined messages that
others use to make their cases\--and ours\--in the policy arena. Our
clients benefit when more allies use our research and repeat our
messages.

When Berman and Company publishes research from independent academics,
we craft our publicity efforts so that the authors\' credibility shines
in the legislative spotlight.

Sometimes, uncommon allies can get more attention than \"traditional\"
spokespersons. Our staff has developed strong ties to individuals who
are often perceived as \"anti-industry\" but who agree with focused
messages that we seek to publicize.
[[\[FN496\]](#Document1zzFN_F496)]{.underline}

To aggressively disseminate the credible third-party messages, Berman
and Company attempts to \"design unique programs for maximum impact in
the debate . . . \[and to\] stick with the issue for as long as it takes
to win.\" [[\[FN497\]](#Document1zzFN_F497)]{.underline} Those programs
include creating and maintaining \"web sites that constantly elicit the
\'Wow!\' factor from users.\"
[[\[FN498\]](#Document1zzFN_F498)]{.underline} ConsumerFreedom.com,
discussed above, [[\[FN499\]](#Document1zzFN_F499)]{.underline} is an
example of that creative approach. To \"change the debate,\" that Web
site seeks to expose and resist \"the Nanny Culture\"\--\"the growing
fraternity of **\*272** \'food cops,\' health care enforcers, militant
activists, meddling bureaucrats, and violent radicals who think they
\'know what\'s best for you\"\'\--\"and protect consumer choices.\"
[[\[FN500\]](#Document1zzFN_F500)]{.underline}

The same basic principle was at work in the Galileo story: the Catholic
Church dealt with Galileo\'s threatening astronomical views by having
its own worldview \"communicated through\" Galileo\'s recantation.
[[\[FN501\]](#Document1zzFN_F501)]{.underline} Likewise, the principle
seems to underlie Stigler\'s basic shallow capture message: institutions
or groups with the requisite power employ the legitimacy of regulators
to advance their own interests.
[[\[FN502\]](#Document1zzFN_F502)]{.underline}

2\. The Creation of Credible Messengers

There is a vast range of interconnected evidence (too vast to do justice
to in this subsection) of pro-commercial interests investing to deeply
capture the many \"credible third parties\" that might influence the
many \"targeted audiences\" (including all of us) to accept
pro-commercial worldviews. In this subsection we will focus on a small
sample of that evidence. [[\[FN503\]](#Document1zzFN_F503)]{.underline}
Although the sample is small, it will hit close to home for much of our
audience and will, we hope, strike a more direct and personal chord than
the Galileo discussion may have.

Consider the world of legal scholarship. Large business interests have
attempted to locate, create, and sponsor the production and
dissemination of pro-commercial legal scholarship by legal scholars who
have served as credible, if often unwitting, spokespeople for business
ends. More specifically, consider some of the evidence regarding the
goals and influence of the John M. Olin Foundation.

According to the Olin Foundation\'s Web site,

the general purpose of the John M. Olin Foundation is to provide support
for projects that reflect or are intended to strengthen the economic,
political and cultural institutions upon which the American heritage of
constitutional government and private enterprise is based. The
Foundation also seeks to . . . encourag\[e\] the thoughtful study
**\*273** of the connections between economic and political freedoms,
and the cultural heritage that sustains them.
[[\[FN504\]](#Document1zzFN_F504)]{.underline}

To advance that goal the Olin Foundation has, among other things,
awarded tens of millions of dollars to prominent law schools for the
promotion of law and economics scholarship. Over the past twenty years,
Olin money has established law and economics programs, or \"centers,\"
at several prominent law schools: the University of Chicago, Yale,
Stanford, Harvard, Columbia, Georgetown, Duke, the University of
Michigan, the University of Pennsylvania, George Mason, and the
University of Virginia. [[\[FN505\]](#Document1zzFN_F505)]{.underline}
In 1999, a year in which the Foundation paid out almost \$20 million in
grants to organizations around the country,
[[\[FN506\]](#Document1zzFN_F506)]{.underline} Harvard Law School\'s
John M. Olin Center for Law, Economics, and Business was in the middle
of a four-year, \$6 million grant,
[[\[FN507\]](#Document1zzFN_F507)]{.underline} Yale Law School\'s John
M. Olin Program in Law and Economics was in the middle of a three-year,
**\*274** \$1.9 million grant,
[[\[FN508\]](#Document1zzFN_F508)]{.underline} and the University of
Chicago Law School\'s John M. Olin Program in Law and Economics was in
the middle of a six-year, \$2.5 million grant.
[[\[FN509\]](#Document1zzFN_F509)]{.underline} In May 2003, Harvard
received another grant from the Olin Foundation, this time for \$10
million, \"the largest foundation grant in the law school\'s 186-year
history.\" [[\[FN510\]](#Document1zzFN_F510)]{.underline}

Olin money, as we will describe in more detail in subsequent work, has a
significant influence not only in encouraging certain types of
scholarship, [[\[FN511\]](#Document1zzFN_F511)]{.underline} but also in
increasing the credibility of that scholarship. It establishes
\"centers\" dedicated to law and economics theory, provides funding for
journals through which law and economics scholarship can be stamped with
the legitimacy of \"peer review\" by other legal economists, finances a
series of workshops to encourage efficiency-oriented scholars to share
and test their views at elite law schools, and gives scholarships and
fellowships to top law students who participate in law and economics
seminars and produce law and economics scholarship.
[[\[FN512\]](#Document1zzFN_F512)]{.underline} In short, Olin money has
helped to create and advance a critical mass of legal scholars, who
begin with the strong dispositionist axioms of neoclassical economics,
who write largely for one another and policymakers, and who view
themselves (and are viewed by many others) as the only genuinely social
scientific members of the legal academy.

The success of the Olin Foundation\'s funding of law and economics seems
fairly dramatic. Professor Steven Shavell, the director of Harvard Law
School\'s Olin Program, recently provided one measure of that
achievement. Professor Shavell surveyed the academic appointments at the
\"top 10\" law schools over the last **\*275** decade.
[[\[FN513\]](#Document1zzFN_F513)]{.underline} Of forty-three total
placements, he found that, twenty-three were Harvard Law School
graduates, and ten of those had been Olin fellows.
[[\[FN514\]](#Document1zzFN_F514)]{.underline} As Professor Shavell told
the Boston Globe, \"\[i\]n the long run, we\'re going to have a heck of
an impact on who\'s teaching at the leading law schools, and what the
students are learning.\" [[\[FN515\]](#Document1zzFN_F515)]{.underline}

We would go further. The Olin Foundation and the law and economics
scholarship that it has subsidized have already had \"a heck of an
impact.\" Indeed, the scholarly project that the Olin money has
sponsored is the same project that is widely understood today to be the
dominant paradigm for policy analysis.
[[\[FN516\]](#Document1zzFN_F516)]{.underline} Professor Shavell has
emphasized that the economic analysis of law \"has changed the nature of
legal scholarship, influenced legal practice, and already proven its
tremendous value in policymaking and business.\"
[[\[FN517\]](#Document1zzFN_F517)]{.underline} Furthermore, the Olin
Foundation\'s Board of Trustees recently declared that their
contributions have \"supported a wide range of scholars and writers who
significantly changed the content and direction of American academic and
political discussion.\" [[\[FN518\]](#Document1zzFN_F518)]{.underline}

Of course, the fact that the Olin Foundation poured millions of dollars
into promoting law and economics does not necessarily imply that those
investments played a significant causal role in the stunning success of
the now-dominant paradigm. It may be, as most of its proponents presume,
that law and economics was destined for greatness solely on the merits,
and that Olin money simply facilitated an inevitable process that was
already underway. [[\[FN519\]](#Document1zzFN_F519)]{.underline}

a\. A market test

There are several reasons to suspect, however, that the Olin
Foundation\'s support, combined with numerous other situational
influences, has played a pivotal causal role in the success of the law
and economics movement. First, the success of law and economics appears
to map closely with the precise ambitions and strategies of **\*276**
the key individuals behind the Olin Foundation: John Olin, the founder
of the organization, and William Simon, its longtime president. After
leaving his position as Treasury Secretary in the Nixon and Ford
Administrations, Simon wrote two best-selling books that outlined his
conservative and pro-commercial beliefs and his agenda for implementing
them. [[\[FN520\]](#Document1zzFN_F520)]{.underline} Simon was a
prominent, early exponent of the dispositionist, neoliberal worldview
that seeks to promote private enterprise and to minimize the role of
government\--a worldview shared by John Olin. They also shared a belief
that American universities at the time produced ideas and graduates that
were dangerously antithetical to those ends. To Simon, this problem was
tantamount to a war of liberty versus totalitarianism\--a war with three
fronts:

1\. Funds generated by business . . . must rush by multimillions to the
aid of liberty, in the many places where it is beleaguered.

. . . .

. . . \[Foundations established by such funds must\] serve explicitly as
intellectual refuges for the non-egalitarian scholars and writers in our
society who today work largely alone in the face of overwhelming
indifference or hostility. They must be given grants, grants, and more
grants in exchange for books, books, and more books.

2\. Business must cease the mindless subsidizing of colleges and
universities whose departments of economics, government, politics and
history are hostile to capitalism and whose faculties will not hire
scholars whose views are otherwise.

. . . .

. . . America\'s major universities are today churning out young
collectivists by legions, and it is irrational for businessmen to
support them.

. . . .

3\. Finally, business money must flow . . . to media which are either
pro-freedom or, if not necessarily \'pro-business,\' at least
professionally capable of a fair and accurate treatment of procapitalist
ideas, values and arguments. The judgment of this fairness is to be made
by businessmen alone\--it is their money that they are investing.

These are the three fronts on which to act aggressively if we are to
create a sophisticated counter-force to the rising despotism. One of my
own first actions on leaving the post of Secretary of the Treasury was
to accept the job of president of the John N. \[sic\] Olin Foundation,
whose **\*277** purpose is to support those individuals and institutions
who are working to strengthen the free enterprise system.
[[\[FN521\]](#Document1zzFN_F521)]{.underline}

Thus, Simon, with the support of the Olin Foundation, was trying to
alter the playing field on which academic debate takes place\--and
trying to do so situationally. Furthermore, he understood that the
dispositionism of law and economics is pro-business and that many
alternative views, otherwise successful in the marketplace of ideas, are
not. Simon presented American individualism, much as ad agencies
presented the Marlboro Man, as the American tradition and the source of
America\'s greatness. However, like the Marlboro Man\'s creators, Simon
seemed to appreciate that such individualism, to be embraced as deeply
as Philip Morris, Simon, and others desired, had to be heavily promoted,
and reinforced if it is to be widely accepted. And he further understood
that the situation can and should be manipulated by, among other things,
choosing particular academics, programs, and scholarly camps to give
\"grants, grants, and more grants in exchange for books, books, and more
books.\" [[\[FN522\]](#Document1zzFN_F522)]{.underline}

In light of Simon\'s (and thus the Olin Foundation\'s) pro-business
mission, there is good reason to believe that the Olin Foundation\'s
sizeable law and economics investment was money well spent. The point is
strengthened when one considers that the Foundation engaged in a kind of
\"stage financing\" of these programs: grants were intended to last for
only a few years, at which point the Foundation would consider whether
to renew its contribution to a particular program.
[[\[FN523\]](#Document1zzFN_F523)]{.underline} The fact that the
Foundation **\*278** continued to renew many grants provides strong
evidence that it believed that its investments were generating
worthwhile returns in terms of encouraging pro-commercial worldviews
(and discouraging alternatives) among students, academics, and
policymakers. [[\[FN524\]](#Document1zzFN_F524)]{.underline}

b\. Re-imagining the marketplace of ideas

This leads to a second general reason to suspect that Olin\'s
investments have played a critical causal role in the success of law and
economics. As we noted at the outset of this Article, the dominance of
law and economics is puzzling when one attempts to make sense of it
without considering situational forces. Law and economics has been
subject to many (largely unanswered) criticisms by extraordinarily
respected legal academics, and its success seems to have surprised both
its critics and some of its proponents.
[[\[FN525\]](#Document1zzFN_F525)]{.underline} If the success of law and
economics does not square easily with the idealized image of a neutral
tournament of ideas, then that raises the possibility that its success
reflects some largely unseen situational influences.

To advance this argument further, we ask the reader to consider how to
answer the following question: which bird, species A or species B, has
been more successful in the evolutionary process of natural selection?
If you are like us, we suspect that your first thought would be to
compare the relative numbers of the two birds. With a little more time,
you might decide that you would also like to know about relative sizes
since at equilibrium the environment could probably sustain fewer large
birds than small birds. Controlling for habitat needs you would seem to
have a simple, but fairly accurate, measurement process.

Now let us make the question a little more concrete: which bird, the
bald eagle or the chicken, has been more successful in the evolutionary
process of natural selection? Shall we do the math? There are
approximately 70,000 bald eagles in North America, a **\*279** number
that is up considerably in recent years following the bald eagle\'s near
extinction. [[\[FN526\]](#Document1zzFN_F526)]{.underline} It is a
little harder to know just how many chickens there are in this country
at any given moment, but our rough calculations put the number somewhere
between 1.75 and 2 billion.
[[\[FN527\]](#Document1zzFN_F527)]{.underline} That means that for every
bald eagle there are twenty to thirty thousand chickens.

Even discounting the figure slightly to take into account the eagle\'s
larger size and habitat requirements, the numbers are clear: the
standard farm chicken is the bald eagle\'s evolutionary superior. But
that finding seems absurd. We know the bald eagle as our national bird,
a symbol of strength and power. Eagles are extremely well adapted for
survival in nature, given their superb flying, hunting, and
nest-building abilities. [[\[FN528\]](#Document1zzFN_F528)]{.underline}
For centuries, bald eagles thrived, and according to one history, they
may have once numbered half a million.
[[\[FN529\]](#Document1zzFN_F529)]{.underline}

They existed along the Atlantic from Labrador to the tip of south
Florida, and along the Pacific from Baja California to Alaska. They
inhabited every large river and concentration of lakes within North
America. They nested in forty-five of the lower forty-eight states. One
researcher estimated an eagle nest for every mile of shore along
**\*280** Chesapeake Bay. They congregated on the lower Hudson, and were
extremely abundant along the coast of Maine.
[[\[FN530\]](#Document1zzFN_F530)]{.underline}

So then we have missed something. In determining that chickens are more
fit than eagles to withstand nature\'s trials and challenges, we have
ignored critical situational influences. Why are there so many more
chickens than eagles? The more obvious and correct explanation is that
humans value chickens in a way that they have not valued bald eagles.

Indeed, there are robust markets in both chickens and eggs.
[[\[FN531\]](#Document1zzFN_F531)]{.underline} According to a recent
industry-sponsored survey, Americans consume, on average, eighty-one
pounds of chicken per year\--a figure that appears to be going up and
that represents \"the highest per-capita consumption of any of the major
meats.\" [[\[FN532\]](#Document1zzFN_F532)]{.underline} They also
consume approximately 260 eggs per year.
[[\[FN533\]](#Document1zzFN_F533)]{.underline} Unsurprisingly, market
pressures ensure that there are many chickens alive at any given moment.

Well, if bald eagles are so fit, why did they nearly go extinct and why
are there still so few of them? The following history of the bald eagle
helps to shed light on a different sort of situational influence on the
bald eagles\' stature than is imagined in any idealized, unrealistic
\"natural selection\" script.

There is no single cause for the decline in the bald eagle population.
When Europeans first arrived on this continent, bald eagles were fairly
common. As the human population grew, the eagle population declined. The
food supplies for eagles decreased, because the people hunted and fished
over a broad area. Essentially, eagles and humans competed for the same
food, and humans, with weapons **\*281** at their disposal, had the
advantage. As the human population expanded westward, the natural
habitat of the eagles was destroyed, leaving them fewer places to nest
and hunt, which caused the population of bald eagles to decline sharply
by the late 1800s.

By the 1930s, people became aware of the diminishing bald eagle
population, and in 1940 the Bald Eagle Act was passed. This reduced the
harassment by humans, and eagle populations began to recover. However,
at the same time DDT and other pesticides began to be widely used.
Pesticides sprayed on plants were eaten by small animals, which were
later consumed by birds of prey. The DDT poison harmed both the adult
birds and the eggs that they laid. . . .

More than 100,000 bald eagles were killed in Alaska from 1917 to 1953.
Alaskan salmon fisherm\[e\]n feared they were a threat to the salmon
population. [[\[FN534\]](#Document1zzFN_F534)]{.underline}

According to that history, the threat to eagles was not that they were
ill-equipped to survive in nature, but that their success as a species
did not appear to serve the interests of humans. Indeed, the eagles
competed with human interests, including commercial interests.

As a result, the grand, and once ubiquitous, bald eagle was pushed
toward extinction. Meanwhile, chickens were raised in huge numbers to
meet the increasing demand for their eggs and meat. The relative success
of chickens over bald eagles, then, has little to do with the survival
of the fittest and a lot to do with \"the survival of the tastiest\" or
\"the survival of the profittest.\"

In light of that competition among birds, look again at how legal
scholars tend to measure the success of various schools of thought. As
we reviewed earlier, legal academics generally assume that they are
competing in some neutral tournament wherein ideas evolve and good ideas
become more prominent while bad ideas disappear.
[[\[FN535\]](#Document1zzFN_F535)]{.underline} According to this view,
the tournament benefits the outside world by generating and announcing
the winning ideas, which are then relied upon to help make effective and
desirable policy. Thus, when some ideas are more commonly accepted, are
attracting larger audiences and are having more influence outside of law
schools, the assumption is often that those ideas, like the bald eagle,
soar above their ground-bound, clucking competitors.

But here is the problem: the competition among ideas may have much in
common with the imagined competition between chickens **\*282** and
eagles. That is, in both contexts there appear to be very significant
demand-side factors that help determine which ideas will be most
prevalent and seemingly most successful. For reasons that we have
already highlighted, the \"winners\" will be those ideas that are
valuable to the more influential participants on the demand-side of the
marketplace\--specifically, pro-commercial interests.

With that in mind, consider again how legal economists measure their own
success. Richard Posner writes:

Economic analysis of law has grown rapidly, has become the largest, most
pervasive interdisciplinary field of legal studies in the history of
American law, has palpably influenced the practice of law and judicial
decisions, has launched lucrative consulting spin-offs, has spawned
courses and textbooks in economic analysis of law, has influenced
legislation (economic analysts of law played an important role in the
deregulation movement), has made it de rigueur for law schools of the
first and second ranks to have one or more economists on their faculty,
has seeded a number of its practitioners in university administration
and the federal judiciary, and has now crossed the Atlantic and begun
making rapid gains in Europe.
[[\[FN536\]](#Document1zzFN_F536)]{.underline}

Similarly, recall legal economist Thomas Ulen\'s brief history of the
triumph of law and economics:

Law and economics has been one of the most successful innovations in the
legal academy in the last century. This intellectual revolution began
modestly in the 1960s and 1970s with a few important and innovative
articles and a comprehensive, masterful text that showed the
possibilities of the field. Then, in the 1980s the field exploded into
respectability and prominence\--becoming a regular course in the
curricula of the best law schools, a vibrant legal research style that
figured in a torrent of important books and articles, a force that
transformed many faculty from exclusive practitioners of traditional
doctrinal research to a more social-science-oriented research, and a
substantial justification for important public policy changes. By the
early 1990s, economic analysis suffused a modern legal education, even
one devoid of an explicit course in law and economics.
[[\[FN537\]](#Document1zzFN_F537)]{.underline}

Posner and Ulen make no mention, and seem to have no conception, of the
role played by outside forces in creating the appearance of successful
ideas. Posner emphasizes the \"rapid **\*283** growth\" of the
discipline just as Ulen notes the field\'s \"explosion\" in the 1980s.
But neither seems mindful of possible situational contributions to that
explosive growth, much less the fact that it occurred in the 1980s when
the Olin Foundation began to invest significantly in sponsoring various
law and economics programs.
[[\[FN538\]](#Document1zzFN_F538)]{.underline} Posner speaks of the
\"spawning courses and casebooks,\" while Ulen comments on the \"torrent
of important books and articles.\" But neither mentions that the Olin
Foundation\'s targeted efforts encouraged such a spawning and a torrent
through \"grants, grants, and more grants.\"
[[\[FN539\]](#Document1zzFN_F539)]{.underline} Posner recognizes the
\"lucrative\" consulting opportunities created by law and economics,
without considering what makes the ideas so lucrative in the first place
or what those lucrative opportunities may indicate about why the school
of thought is thriving. Ulen emphasizes that law and economics provides
a \"substantial justification for important public policy changes,\"
[[\[FN540\]](#Document1zzFN_F540)]{.underline} and Posner highlights,
more specifically, the fact that \"economic analysts of law played an
important role in the deregulation movement.\"
[[\[FN541\]](#Document1zzFN_F541)]{.underline} But neither seems to
notice just how valuable that justification for deregulation is to large
commercial interests or how it lines up with the specific pro-market and
deregulatory planks of the Olin Foundation\'s mission. Ulen notes that
\"economic analysis suffuse\[s\] a modern legal education,\"
[[\[FN542\]](#Document1zzFN_F542)]{.underline} while Posner maintains
that it \"has palpably influenced the practice of law and judicial
decisions . . . \[and\] legislation.\"
[[\[FN543\]](#Document1zzFN_F543)]{.underline} But neither considers
that such profound effects might well have been the precise ambition of
powerful individuals, entities, and groups in our society with the means
to influence those important institutions through the situation.

In short, as we stated at the outset of this Article, there appears to
be a blindness to situational influences over legal scholarship. And
Posner and Ulen are by no means unusual in falling subject to this
fundamental attribution error. Even the staunchest critics of law and
economics rarely, if ever, consider, much less challenge, its
situational advantages.

**\*284** As we have been arguing, however, the situation is often as
significant as it is invisible. Where Posner, Ulen, and most legal
scholars tend to see a marketplace of ideas in which supply-side
participants determine the winners, we see a marketplace of ideas in
which demand-side actors are wielding an immense, unseen influence over
the playing field and, in turn, the winners. Where Posner, Ulen, and
most other legal scholars see a neutral, fair (and perhaps even natural)
competitive process separating the fit from the unfit, we see large
numbers of chickens, ensconced in elaborate institutions devoted to
promoting the birds\' growth and productivity for a particular end\-- an
end that has little to do with a robust and fair tournament of ideas.

We opened this Article asking why legal economists have tended not to
apply their own sort of market analysis to help them understand their
success. We posited several explanations, which we have expanded on
slightly in this Section. Before moving on, we want to emphasize that we
perceive ourselves to be providing what legal economists have not: a
type of economic analysis of the economic analysis of law. The claim
that legal academia is deeply captured strikes us as consonant, not only
with Stigler\'s shallow capture theory, but also with the sort of
\"consumer sovereignty\" arguments that inform the vast majority of
legal-economic analyses.

We end this Part with several assertions. First, the deep capture of
legal academia is the result of far more situational influences than
just those created by the Olin Foundation\'s funding efforts. Second,
the consequences of the deep capture of legal academia are many, varied,
and immense. And, third, the deep capture of legal academia is, we
believe, only a small, though important, part of a much more
comprehensive web of situational influence over \"regulatory\"
institutions in this country and, increasingly, around the world.
Evidence for those assertions is, again, the subject of future work.

**\*285** VII. A Theory of Attributional Presumptions

I started with the belief that every person who came to the laboratory
was free to accept or to reject the dictates of authority. This view
sustains a conception of human dignity insofar as it sees in each man a
capacity for choosing his own behavior. And as it turned out, many
subjects did, indeed, choose to reject the experimenter\'s commands,
providing a powerful affirmation of human ideals.

\--Stanley Milgram [[\[FN544\]](#Document1zzFN_F544)]{.underline}

We have argued that law and economics is highly dispositionist
[[\[FN545\]](#Document1zzFN_F545)]{.underline} and that its success in
legal academia and in policymaking has been a function of the
situational demand for such a dispositionist theory. In that way, the
exterior situation of the market for legal-policy theory has strongly
promoted law and economics because of its generally pro-commercial
dispositionist assumptions and analyses.

As we noted at the outset, however, the misbegotten attributional
tendencies that we are highlighting in this Article are by no means
limited to legal economists. The dispositionism of human beings is
fairly universal\-- though the particular contours of its manifestation
vary across cultures, groups, individuals, and situations. The
fundamental attribution error is just that\--a strong tendency in all
humans to see only the most salient, moving features of our exteriors
and interiors, like the sun moving across the sky, or our own behavior
in a moment, and to attribute cause and agency to what we see. This urge
to downplay the rest is an animalian tendency. Thus, dispositionalizing
legal economists as dispositionists, while maintaining the view that the
rest of us are not, would only repeat that error. We are all, because of
our shared interior situation, more or less dispositionists.

It is important that we are not misunderstood. The phrase \"more or
less\" in the last sentence is key. Our thesis is not that all of us (or
that any of us) are wholly dispositionist, unable in any circumstance to
recognize the possible role of the situation behind people\'s behavior.
[[\[FN546\]](#Document1zzFN_F546)]{.underline} Neither do we assert that
all of us (or any of us) **\*286** are wholly situational, unable to act
according to our own preferences or attitudes and entirely driven by
unseen forces. We believe that we are all both dispositionists and
situationists in construing our world and that we are all, in fact, both
dispositional and situational.

Recognizing the significance of the situation does not imply that
disposition is irrelevant. Disposition often plays some role, and
sometimes a quite important role, in people\'s behavior. Indeed, even in
Milgram\'s famous demonstration of the power of the situation, a
sizeable minority (and, in some renditions, a clear majority) of
subjects refused to obey the experimenter\'s instructions to continue
the shocking. [[\[FN547\]](#Document1zzFN_F547)]{.underline} Moreover,
if situational considerations are substantial, stable, and consistent
enough, the dispositional assumption may become a more reliable
heuristic for understanding our world.
[[\[FN548\]](#Document1zzFN_F548)]{.underline}

If dispositions can in fact play a major situation-independent role in a
person\'s behavior, or if the \"as if\" dispositional assumption can
sometimes be justified, then the question emerges: is the fundamental
attribution error really so important in legal questions, in theory, in
practice, and in social debate? Should policymakers and policy theorists
really concern themselves with it?

We have already begun our answer to that question in this introductory
Article and will continue to do so in subsequent articles. Our answer
has numerous components, including what follows here. The tendency to
see disposition and overestimate its significance, while missing the
situation or underappreciating its effect, is quite robust. When the
situation is observed, it is usually only a small, particularly salient
piece of the whole. Furthermore, the way an issue is framed\--as
dispositional or situational\--can have an immense effect on what
attributions people make about behavior. Here is **\*287** where deep
capture comes in: the framing of an issue is one of the situational
factors that can be disproportionately influenced by those with the
motive and power to do so. We have argued that those in power have
significant stakes in promoting, among other things, a generally
dispositionist framing of an issue. Those stakes have, indeed, led to
investments attempting to influence the situation, including the
production and distribution of legal-theoretic knowledge that is
strongly dispositionist in orientation. Taken together, those elements
suggest that the fundamental attribution error is playing an immense and
influential role in our policymakers\' worldviews and in their policies.

Our thesis can thus be understood as a positive theory intended to
explain our presumptions about where the threshold between disposition
and situation lies and how high it stands. When do we recognize the role
of situation? And what portion of the situation will we tend to
acknowledge? Thus far, our primary focus has been on describing,
understanding, and critiquing the attributional presumptions of law and
economics. Our argument has been that law and economics scholars
recognize only a tiny portion\--that is, just a few of the most salient
features\--of the situation. We have focused primarily on that theory,
in part, because of its preeminence and, in part, because we believe
that its success both reflects and critically reinforces deep capture.
But our thesis has implications for legal theory and for laws and
policies that seem well outside the purview of law and economics. In
fact, the ubiquity of dispositionism in our legal theories and laws
likely facilitates the reception of law and economics\'s more formal,
axiomatic rendition.

A. Legal-Theoretic Presumptions

In this Section, we want to suggest how the fundamental attribution
error leads to dispositionist presumptions, not just in law and
economics, but also in other mainstream legal theories, and in social
policies that reflect such theories. Though we believe this problem can
be seen in many, if not all, areas of contemporary legal scholarship, it
suffices for our introductory purposes to illustrate the point with
reference to a familiar and important common law subject: contract law.
[[\[FN549\]](#Document1zzFN_F549)]{.underline} Consider the power of
dispositionism **\*288** lurking even in traditional, that is to say
non-economic, scholarship in contract law.

1\. The Classical Theory of Contract

In his influential work, Contract as Promise,
[[\[FN550\]](#Document1zzFN_F550)]{.underline} Professor Charles Fried
builds his case for a classical will theory of contract on a foundation
of positive presumptions steeped in dispositionism.
[[\[FN551\]](#Document1zzFN_F551)]{.underline} For theorists like Fried,
a contract represents the legal manifestation of \"autonomous
self-determination.\" [[\[FN552\]](#Document1zzFN_F552)]{.underline}
Contracting is, from that perspective, a quintessential expression of
individual freedom. So central is the concept of autonomy in the
classical will theory of contract that, for Fried, it provides the very
basis of moral authority for the principle of contractual obligation.
\"The moral force behind contract as promise is autonomy: the parties
are bound to their contract because they have chosen to be.\"
[[\[FN553\]](#Document1zzFN_F553)]{.underline}

Fried appreciates that, to sustain this view of contracts, we must be
confident that the choices embodied in contracts do, in fact, represent
the expression of the individual wills of the parties involved. How can
the traditional contract theorist be certain that disposition is behind
contractual decision making and not situation? Enter the doctrine of
duress. [[\[FN554\]](#Document1zzFN_F554)]{.underline} In his attempt to
explain modern contract doctrines through his will theory, Fried
insightfully acknowledges that, far from playing an outcast or ancillary
role in conventional contract theory, the doctrine of duress and its
**\*289** counterparts are central.
[[\[FN555\]](#Document1zzFN_F555)]{.underline} According to Fried,
\"these doctrines perform distinct functions that are not only
compatible with the concept of contract as promise but even essential to
it.\" [[\[FN556\]](#Document1zzFN_F556)]{.underline} Put in our terms,
Fried\'s treatment of the doctrine of duress plays an essential part in
defining the depth of his theory\'s dispositionism.

It runs deep. As he begins his discussion of duress, Fried never
questions the basic dispositionist conception of the contracting agent.
Duress is only identified as something that thwarts or exploits a will
that remains exogenous to the duress:

Certain contracts are claimed to be unfair although the parties entered
into them with their eyes open.

. . . .

. . . The victim of duress is all too aware of what is happening and
what will happen to him. Duress relates not to rationality or cognition
but to freedom or volition. . . . \[Contract as promise\] excludes cases
in which a person\'s assent is not voluntary. If I am hypnotized into
signing a contract or if my hand is moved by another to make a mark
signifying assent, I have not promised.
[[\[FN557\]](#Document1zzFN_F557)]{.underline}

With such a starting point, only the most salient kinds of situations,
and not necessarily the most powerful, will find their way into the
doctrine of duress. Fried acknowledges that the forced signature and the
hypnotized nod are just \"gross instances of involuntary apparent
assent\" and claims that there are, in fact, \"many kinds of situations
in which it does not seem right to treat a knowing act of agreement as
binding because in one way or another it is felt that there was no fair
choice.\" [[\[FN558\]](#Document1zzFN_F558)]{.underline} But this
concession is not an \"open-ended invitation\[\] to rearrange the
understandings people have reached.\"
[[\[FN559\]](#Document1zzFN_F559)]{.underline} Indeed, Fried goes on to
map a precise and rather closed-ended set of situations that may,
consistent with the will theory of contract, be treated as constituting
duress. [[\[FN560\]](#Document1zzFN_F560)]{.underline}

Keeping close to the case law (as he must to sustain his project of both
explaining and justifying modern contract law), Fried recognizes only
the most salient kinds of situational impediments as creating duress.
The clearest case for Fried, beyond the two above, is **\*290** that now
familiar trope\--the gun to the head: \"An armed robber threatens his
victim on a dark and lonely street: \'Your money or your life.\"\'
[[\[FN561\]](#Document1zzFN_F561)]{.underline}

Fried explains that what is troubling about this case is not that there
is no choice, for clearly there is: \"\[t\]he shrewd and brave man who
hands his wallet over to an armed robber makes a calculated decision.\"
[[\[FN562\]](#Document1zzFN_F562)]{.underline} Rather, what is at issue
is the fairness of the choice.
[[\[FN563\]](#Document1zzFN_F563)]{.underline} To fashion a principle
through which to apply the doctrine of duress in more difficult cases
and across the sweep of contract law requires, Fried concludes, a
normative determination about what is a fair choice.
[[\[FN564\]](#Document1zzFN_F564)]{.underline} For Fried, then, the
doctrine of duress may be managed by his theory of rights: \"\[a\]
proposal is not coercive if it offers what the proponent has a right to
offer or not as he chooses.\"
[[\[FN565\]](#Document1zzFN_F565)]{.underline}

This rights analysis generates for Fried a relatively clear view of the
parameters of duress. Because the robber has no right to threaten your
life to get your money, contracts made in such situations are not
enforced. But, at the other end of this spectrum, merchants have a right
to offer their wares on extremely onerous terms, so contracts entered
with them should be enforced. Our present concern is not so much with
showing why we disagree with this particular doctrinal conclusion, but
in demonstrating the narrow dispositionist direction that the analysis
has taken. Fried began with a case in which the threatening situation
was not only extremely conspicuous, but where the element of choice was
also clear. In looking beyond that extreme case for a general theory of
duress, Fried presumes that the same basic function of dispositional
choice remains in place. [[\[FN566\]](#Document1zzFN_F566)]{.underline}
This dispositionism blinds the theory to the enormous power of the
situation. It ignores the fact that situation shapes the very thoughts
and behavior that manifest as the **\*291** choices Fried crowns with a
dispositionist presumption. For us, an inquiry, which is clearly called
for but wholly unanswered by this kind of classical will theory, is
whether and in what way the situation influences choice.

Fried concludes his analysis without ever moving beyond the
\"conundrums\" raised by the most salient kinds of situational
forces\--that is, beyond those \"bad acts\"
[[\[FN567\]](#Document1zzFN_F567)]{.underline} that can fit within the
basic dispositionist framework. In an interesting parallel with economic
theorists, the closest Fried gets to taking up the situation on a
broader scale is with respect to poverty\--when people do not have
enough money to properly manifest an otherwise dispositionally
determined will. [[\[FN568\]](#Document1zzFN_F568)]{.underline} However,
Fried, like the contract law he describes, is very hesitant to allow the
doctrine of duress to play much part in ameliorating the challenges
posed by that kind of situationist consideration. Keeping the doctrine
of duress from undermining \"the moral status of calculated choices as
embodied in bargains\" is \"a make-or-break challenge to the liberal
economic theory of the market.\"
[[\[FN569\]](#Document1zzFN_F569)]{.underline} It is a threat to the
regime of \"free men freely contracting.\"
[[\[FN570\]](#Document1zzFN_F570)]{.underline}

To the extent that poverty remains a situation in need of attention,
Fried offers what is also a familiar riposte, that the situation should
be handled by the tax-and-transfer system, not contract. Hence, in the
end, the dispositionism that Fried begins with, and which he is so
deeply committed to, not only drastically limits what kinds of
situations are cognizable within the concept of **\*292** duress, but
also what can be done with the doctrine in those situations that it does
recognize.

Fried does not go much further than this with the concept of duress, and
we need not go further here to make our basic point. Conventional
contract theories, of which we believe Contract as Promise is an
influential and representative example, are steeped in dispositionism
even in those areas that purport to be most concerned with the
situation. The lack of any critical examination of the basic
dispositionist presumptions in such legal theories results in a
fundamental failure to account for the role of the situation in shaping
our conduct. It marks an abdication of any realistic inquiry into the
basic forces shaping our own behavior beyond what common sense and our
intuitions will provide. [[\[FN571\]](#Document1zzFN_F571)]{.underline}
Behind this tendency is the fundamental attribution error, which social
psychologists have shown is widespread in humanity, that we have argued
is at the core of conventional economic theory, and that, as this
example suggests, is also robust in more traditional legal theories.

2\. The Dispositionism of Post-Classical Contract Theory

The classical will theory of contract has been subjected to withering
critique by generations now of \"modern\" or \"post-classical\" contract
theorists. [[\[FN572\]](#Document1zzFN_F572)]{.underline} The critiques,
which will not be rehashed here, **\*293** share a common legacy in the
American legal realist tradition, which provided both analytical and
political reasons for doubting the classical approach. Our purpose here
is to show that although the \"modern\" approach begins by rejecting the
will theory of contract, it continues to embrace an unwarranted, and
profoundly limiting, dispositionism. While the post-classical tradition
has questioned the clarity of central concepts in classical theory, the
legal realist approach has nevertheless held tightly to the basic tenets
of dispositionism we have been reviewing here. Our very limited goal in
this Section is to provide further evidence that dispositionism reaches
far beyond law and economics in contemporary legal theory.

We will sketch the dispositionism in modern contract theory through the
work of Karl Llewellyn, specifically in his concept of \"situation
sense.\" [[\[FN573\]](#Document1zzFN_F573)]{.underline} We take this
approach for several reasons, not only because an article that is
entitled The Situation, and that makes the claims we are developing
here, would be remiss not to engage the legacy of situation sense, but
also because Llewellyn\'s work was seminal and is prototypical of the
basic legal realist approach. Moreover, Llewellyn\'s work has been
extremely influential in the post-classical contract theories and
positive law that have followed his work.
[[\[FN574\]](#Document1zzFN_F574)]{.underline}

**\*294** Llewellyn opens Part I of the Common Law Tradition,
[[\[FN575\]](#Document1zzFN_F575)]{.underline} his most sustained
exposition of situation sense, with an announcement that it is now
common knowledge [[\[FN576\]](#Document1zzFN_F576)]{.underline} that
psychologists have undermined the epistemological ground on which the
classical tradition once firmly stood:

When the psychologists began to look into how people go about reaching
decisions, the question they were concerned with was: how do people get
to a decision at all, to any decision, when faced with a
problem-situation out of life? Roughly, they arrived at the conclusion
that if it was a true problem-situation, i.e., if it was really a
puzzler, then it was seldom that the actual deciding was done by way of
formal and accurate deduction in the manner of formal logic. The common
process was rather one either of sudden intuition\--a leap to some
result that eased the tension; or else it was one of successive mental
experiments as imagination developed and passed in review various
possibilities until one or more turned up which had appeal. In any
ordinary case a reasoned justification for the result represented a
subsequent job, testing the decision against experience and against
acceptability, buttressing it and making it persuasive to self and
others.

Today all of this is so familiar and obvious as to bore, but there were
reasons why, four or five decades ago, it shocked our legal world.
[[\[FN577\]](#Document1zzFN_F577)]{.underline}

Llewellyn\'s actual account of modern contract theory, however, reveals
that legal scholars have been too quickly \"bore\[d\]\" by the social
scientists\' challenge to conventional views about the human mind, and
so have failed to truly incorporate its teachings. To begin with,
interior and exterior situations influence far more than just our
ability to reason our way through \"puzzlers.\" Logic and deduction as
the primary causal forces behind our behavior are, we now know, the
exception to the rule.

More generally, in the development of his notion of situation sense,
Llewellyn was unaware of the basic lessons about the situation\'s unseen
power, that psychology, especially social psychology, has now
demonstrated. [[\[FN578\]](#Document1zzFN_F578)]{.underline} After
opening the Common Law Tradition with a **\*295** recognition of the
warning signs about our sense of ourselves, Llewellyn readily disregards
his own cautions by the middle of his book, claiming that situation
sense can clarify what psychology has left obscure:

The argument has been, however, that whereas about other areas of
reaching tough decision the psychologists and sociologists and other
experts are still groping for more than indications . . . yet in our
area \[of study\] the clustered steadying factors combine with our
traditions of craft . . . to provide the wherewithal to reasonably
satisfy even the seemingly unreasonable demands made upon \[judges\] by
the men of law and by the citizens who are the law-consumers.
[[\[FN579\]](#Document1zzFN_F579)]{.underline}

Llewellyn sees the legal analysts\' willingness to move ahead of the
social scientists\' struggles with mere \"indications\" about human
decision making as a great advantage of modern legal theory. This
confidence is supported by his basic dispositionist presumption that
human thought processes are relatively transparent, and that there is a
fairly obvious causal relationship between men and women\'s preferences
and their behaviors or choices. To be sure, not every influence is
spottable, but, as Llewellyn puts it,

the unspottables either cancel out or operate rather on the surface than
at the root of the deciding, or else hit the crux . . . too rarely to do
more than slightly decrease the percentage of available correct
forecasts. This includes such very occasionally vital factors as the
day\'s news, insomnia, a secretary\'s or clerk\'s sickness or blob, the
euphoria from a son\'s engagement to the right girl, and three hundred
assorted other \"irrelevant\" but real stirrers of the man. I discard
them not as negligible, but as not altering a basic workable
reckonability from other and reachable factors alone.
[[\[FN580\]](#Document1zzFN_F580)]{.underline}

For Llewellyn, as with Fried, there is little cause for concern about
\"unspottable\" influences on the mind, and consequently little concern
for ever-present though \"unspottable\" situational influences on
behavior. [[\[FN581\]](#Document1zzFN_F581)]{.underline} In this way,
Llewellyn\'s situation sense is a rejection of **\*296** classical
formalism to be replaced, not by social scientific inquiry, but by
\"common sense\" realism. [[\[FN582\]](#Document1zzFN_F582)]{.underline}

Llewellyn\'s confidence in the reliability of common sense
situation-sensing is further boosted by his assurance that beyond those
assorted pedestrian distracters of humankind, there is no reason to
suspect that more venal distractions might make situation-sensing
problematic. His prose aroused to full flare, Llewellyn writes, \"if you
take the personnel of the appellate bench as an entirety, arranged in
the familiar bell-shaped curve . . . \[and\] knock on that bell, there
may be a bit of dullness in the ring, but it rings true.\"
[[\[FN583\]](#Document1zzFN_F583)]{.underline} So it is that Llewellyn
reassures himself and his readers that judges, like the rest of us, are
not \"unduly easy to bamboozle.\"
[[\[FN584\]](#Document1zzFN_F584)]{.underline}

We believe that Llewellyn\'s situation sense is badly underdeveloped.
Our illusion of dispositionism and blindness to the power of situation
renders us all, Llewellyn included, more or less bamboozled.
[[\[FN585\]](#Document1zzFN_F585)]{.underline} Llewellyn reveals his own
when he writes that \"the situation, however eloquent, \[can\] operate
only insofar as its eloquence \[can\] reach ear and understanding of the
particular court or judge.\"
[[\[FN586\]](#Document1zzFN_F586)]{.underline} Yet it is precisely where
attention to situation is blocked **\*297** from the ear and the
understanding by dispositionism that situation can have its greatest
power.

In addition to shaping Llewellyn\'s conception of the situation-sensing
analyst, dispositionism further limits his conception of the situation
under inspection. Situation sense involves observing and analyzing the
\"immanent law\" [[\[FN587\]](#Document1zzFN_F587)]{.underline} of
type-situations among contracting parties. The raw material for this
study, the focus of the type-situation inquiry, is an inquiry into
patterns of choices and conduct by individuals. The search is for
indications [[\[FN588\]](#Document1zzFN_F588)]{.underline} of
dispositional intent within different kinds of type-situations. When
Llewellyn implores the legal analyst to \"see it as it works\" he is
asking the analyst to follow how the type-situation has been composed by
the dispositional actors that make it up. There is no injunction in
Llewellyn\'s method to seek and account for unseen situational
influences in type-situations. As David Charny summarizes, \"\[i\]t is
apparent that Llewellyn thought that custom was somehow expressive of
the attitudes, preferences, and \'mentality\' of the transactors
themselves . . . .\" [[\[FN589\]](#Document1zzFN_F589)]{.underline}

This is because the situation-sensing analyst is urged to look at that
which is obviously there, rather than that which may be hidden. And what
is obviously there is individual behavior, evidence ready to confirm the
dispositionism of the sensor. Thus, Llewellyn counsels that \"the best
safeguard against counsel\'s mispainting \[of the situation, in an
effort to manipulate the judge\] lies in visualizing the hands-and-feet
operations in the picture, seen as a going scheme, a working setup. Such
operating aspects are curiously hard to fake . . . .\"
[[\[FN590\]](#Document1zzFN_F590)]{.underline} The judge is thus
instructed that, in his search for the \"immanent law\"
[[\[FN591\]](#Document1zzFN_F591)]{.underline} of situation, a reliance
on what is obvious will **\*298** \"safeguard\" against mispainting.
[[\[FN592\]](#Document1zzFN_F592)]{.underline} This \"realism\" is a
strictly positive realism, not a critical realism, and so it is another
symptom of the widely shared perspective in legal theory that begins by
overlooking situation. [[\[FN593\]](#Document1zzFN_F593)]{.underline}

Were we to extend this discussion further, we would argue that the
unreconstructed dispositionism we find in classical and post-classical
contract theory can be seen in most other areas of contemporary legal
theory as well. The fundamentals of Llewellyn\'s situation-sense
approach remain highly influential in leading non-**\*299** economic
approaches to criminal law,
[[\[FN594\]](#Document1zzFN_F594)]{.underline} civil rights and
constitutional law, [[\[FN595\]](#Document1zzFN_F595)]{.underline}
statutory interpretation, [[\[FN596\]](#Document1zzFN_F596)]{.underline}
and international law. [[\[FN597\]](#Document1zzFN_F597)]{.underline} We
will not pursue this exegesis further here, however. Our purpose has
solely been to illustrate that conventional legal theorists, like legal
economists, begin their legal analysis with dispositional assumptions
and, even when claiming to be situationally sensitive, set the threshold
unrealistically high.

B. Legal Presumptions

The attribution error does not stop there. Our laws and policies reflect
the same lopsided perceptions. That is, our laws and policies\--formal
and informal\--mirror our human perceptions and, for all the reasons
that people generally do, place the threshold for recognizing the
situation higher than they should.

To be clear, this is not a claim that our laws totally miss the role of
all situational influences. It is a claim that only the most salient,
unambiguous situational features\--and only those that have fairly
straightforward implications for a generally dispositionist legal
regime\--will be appreciated. As with legal theory, dispositionist
presumptions play a governing role in many, if not most, areas of law.
To continue this limited exposition, we will again limit our focus to
contract law.

The basic dispositionist presumptions seen in Fried\'s classical will
theory of contract are reflected in contemporary contract law.
[[\[FN598\]](#Document1zzFN_F598)]{.underline} The Restatement (Second)
of Contracts, for example, fashions a theory of **\*300** contract that
is rooted in the principle of dispositional intent. A contract
\"requires a bargain in which there is a manifestation of mutual assent
. . . .\" [[\[FN599\]](#Document1zzFN_F599)]{.underline} Assent is
understood in terms of dispositional intention: \"\[t\]he conduct of a
party is not effective as a manifestation of his assent unless he
intends to engage in the conduct . . . .\"
[[\[FN600\]](#Document1zzFN_F600)]{.underline} Of course, at the margins
of contract law there are a few instances when, because of intense
situational forces, the dispositionist presumption may be rebutted. For
example, the Restatement (Second) acknowledges the problem of \"improper
pressure in the bargaining process, in the form of either duress or
undue influence.\" [[\[FN601\]](#Document1zzFN_F601)]{.underline}
Nevertheless, even the doctrine of duress, the doctrine most preoccupied
with situation, is wedded to a strong dispositionist foundation. Like
legal economists and conventional legal theorists, the law can see the
situational power of a gun to the head, but it does not see very much
more. [[\[FN602\]](#Document1zzFN_F602)]{.underline}

Consider the scope of the doctrine of duress as it has been applied in
Massachusetts, which has, like most states, long since adopted the basic
view found in the Restatement (Second).
[[\[FN603\]](#Document1zzFN_F603)]{.underline} The doctrine actually
makes infrequent occurrences in the annals of Massachusetts cases, no
doubt because of the extremely narrow range of situations to which it
applies. This is not to gainsay its fundamental importance, however, for
as Fried recognized, even in its absence, the doctrine serves to
sanctify the great range of **\*301** contracts the enforcement of which
go unimpeded. [[\[FN604\]](#Document1zzFN_F604)]{.underline} Where
duress is explicitly addressed, Massachusetts courts have adopted a
highly dispositionist conception of it. As a recent Massachusetts
appellate court summarized in Randall v. Rapoza,
[[\[FN605\]](#Document1zzFN_F605)]{.underline} \"To avoid a contract on
the basis of duress, a party must show that conduct by the other party
\[to the contract\] caused him to enter into the contract \'under the
influence of such fear as precludes him from exercising free will and
judgment.\"\' [[\[FN606\]](#Document1zzFN_F606)]{.underline} The court
further explained that:

\[t\]o show economic duress a party must show that he has been the
victim of a wrongful or unlawful act or threat, and such act or threat
must be one which deprives the victim of his unfettered will. As a
direct result of these elements, the party threatened must be compelled
to make a disproportionate exchange of values.
[[\[FN607\]](#Document1zzFN_F607)]{.underline}

The defendant in Randall, who was sued on a promissory note he had
signed, told the court that he had entered the contract, under duress
\"\'because of \[Randall\'s\] attitude and demeanor\' \[and\] . . .
\'his harassment.\"\' [[\[FN608\]](#Document1zzFN_F608)]{.underline} He
also told the court that he was having marital troubles and was not
\"\'thinking straight,\"\' and that he had been on anti-depressant
medication when he entered the contract.
[[\[FN609\]](#Document1zzFN_F609)]{.underline} The Massachusetts court,
unsurprisingly, found that these allegations fell \"far short of
painting a picture of duress\" because \"\[h\]is decision was not an
\'arbitrary determination, capricious disposition or whimsical
thinking.\"\' [[\[FN610\]](#Document1zzFN_F610)]{.underline}

Randall provides a typical example of the role that duress plays in
reported cases in Massachusetts. Our purpose is not to provide an
exhaustive account of its application, but rather to highlight that the
\"picture\" of duress made out by the broad strokes of the doctrine
demonstrates the deep dispositionist presumptions of contract law
generally. It is presumed, for example, that in the typical case, where
duress is not present, the choices represented by a contract are the
product of \"unfettered will.\"
[[\[FN611\]](#Document1zzFN_F611)]{.underline} While this might seem
like a **\*302** high standard, the benefit of the dispositionist
presumption actually makes it the routine case. Despite Rapoza\'s
contentions to the contrary, the Randall court concludes that the
contract he entered into was in fact a manifestation of his \"unfettered
will,\" and refuses to find that the doctrine of duress is applicable.
[[\[FN612\]](#Document1zzFN_F612)]{.underline}

As the law is described in Massachusetts, only the most conspicuous
external sources of influence will be recognized as constituting duress.
The court cites as its only example \"signing . . . at the point of a
gun.\" [[\[FN613\]](#Document1zzFN_F613)]{.underline} The fundamental
attribution error at work here sharply limits the range of relevant
situations to only those that can be narrowly attributed to the vivid
\"bad act\" of another individual. The court\'s explication also reveals
a miserly view of what kind of internal situation will be permitted to
implicate the doctrine of duress. Only the most palpable kind of
internal situation will be seen as evidencing duress\--fear. As we have
described, there are certainly many other features of our internal
situations that can exercise as much influence over our conduct as does
the more palpable situation of fear, yet those remain hidden by our
dispositionism and are unseen in the law. Restricted by this
dispositionist framework, the common law of contract has not developed
categories of influence beyond salient external threats and internal
fears through which parties can formulate their claims. Unless a choice
can be shown to have been arbitrary, it is presumed to be the expression
of an unfettered will. With the presumption set so high, parties can
strive only to drum up those aspects of their situations that catch the
dispositionist eye. Against the situational threshold of a gun to the
head, harassing phone calls and anti-depressant drugs will easily fail
to rebut the strong presumption of unfettered will.

Contract law, like many areas of law, recognizes a point where the
situation is seen to be so significant that it renders unreliable the
dispositionist assumptions that would otherwise govern. Making someone
liable for outcomes over which she wielded comparatively little
dispositional control and where her situation is relatively controlling
would be unjust, unfair, or inefficient, depending on the theoretical
focus. If, as we hypothesize, the threshold in the law is fundamentally
misplaced, then the law in many of these areas may be fundamentally
unjust, unfair, or inefficient. Put differently, if the **\*303**
situation was as profoundly recognized in our laws as it is influential
in our lives, the role of the situation would be presumptively
paramount, rather than presumptively irrelevant.
[[\[FN614\]](#Document1zzFN_F614)]{.underline}

C. Social Policy Presumptions: Learning from History Again

There are other places to look to try to assess the significance of
dispositionism. If our hypothesis is correct that the fundamental
attribution error contributes to false impressions and
self-understandings, and misguided legal theories and laws, then it
should find support in the major social policy disputes that animate and
define our history. Furthermore, there should be some evidence that the
dominant view will typically be one that favors those in power\--just as
the geocentric view so clearly served the interests of the Catholic
Church in the seventeenth century and, as we are arguing, the
person-centric view serves the interests of corporations today.

Providing such evidence is also a topic of further work in progress.
[[\[FN615\]](#Document1zzFN_F615)]{.underline} For now, we can highlight
the major thrust of that work, which is that the power of the
dispositionist presumption has had, and is now having, an immense effect
on both the framing and the resolution of virtually every major social
policy debate\--from the obesity epidemic to the War on Terrorism.
Although we will postpone defending that claim, it may be illuminating
to highlight one particularly revealing and tragic example from our
history: slavery. We have chosen that social policy issue to spotlight
because we have suggested in this Article that power\--even oppressive,
totalitarian power\--can be exercised through the unseen situation, in
part, through the creation and promotion of dispositionist worldviews.
Because slavery provides one of the most salient uses of power in United
States history, demonstrating the role of dispositionism in enabling
that oppression provides especially compelling evidence for our claim.

**\*304** 1. The Teacher\'s View of the Learner

First, to set the stage, it may be helpful to return to Milgram\'s basic
research, in which he manipulated hundreds of subjects to behave in a
way that contradicted his and others\' initial expectations and thereby
revealed the otherwise hidden power of the situation. The teacher was
given a situation-induced \"preference\" to shock the learner, a
\"preference\" that in most cases led teachers to continue to increase
the shocks all the way to 450 volts (beyond the point when the learner
fell silent after screaming in agony).
[[\[FN616\]](#Document1zzFN_F616)]{.underline} The focus of social
psychologists analyzing those experiments has long been on certain
situational considerations, such as the authority conferred on the
experimenter by, say, his white lab coat, in creating that
\"preference.\" [[\[FN617\]](#Document1zzFN_F617)]{.underline}

But an interesting issue emerges\--one that has received comparatively
little attention\--about a different situational factor: that is, the
teacher\'s perception of the learner\'s dispositions. The learner was
one of Milgram\'s confederates, but he was assigned his position as
learner by an apparently (but not actually) random process. The teacher
then observed the learner voluntarily agreeing to be strapped into the
chair, understanding that he would be shocked.
[[\[FN618\]](#Document1zzFN_F618)]{.underline} The fact that subjects in
Milgram\'s study appeared to make a free choice to enter into a
\"contract\" may be central to understanding the large number of
teachers who administered the maximum shock level of 450 volts.
[[\[FN619\]](#Document1zzFN_F619)]{.underline}

Once they had committed to participating, the teachers felt as if they
were obligated to continue with and, in most cases, complete the
experiment even when they believed they were inflicting pain or actually
harming the learners. [[\[FN620\]](#Document1zzFN_F620)]{.underline} The
sense of obligation (and the formal appearance of a contract) was likely
strengthened by the fact that teachers were paid \$4.50 for their
services prior to beginning the experiment.
[[\[FN621\]](#Document1zzFN_F621)]{.underline} It was also likely
bolstered by the very structure of the **\*305** experiment, in which
the shock level was increased in only very small increments of 15 volts.
Because the learner did not protest initially, teachers continued to
flip the switch, experiencing little internal conflict. Once the learner
did complain, however, it was difficult to stop, even though many
teachers experienced cognitive dissonance.
[[\[FN622\]](#Document1zzFN_F622)]{.underline}

To reduce this dissonance, people seek ways to justify their actions. In
Milgram\'s original experiment, the teacher\'s initial agreement to
administer the first shock to the learner most likely created internal
pressure to continue with the experiment.
[[\[FN623\]](#Document1zzFN_F623)]{.underline} With each incrementally
higher shock level, the teacher had to justify his actions, and once he
justified a particular shock level, it became increasingly difficult to
determine the level at which he should cease shocking the learner:

How could they say, in effect, \"OK, I gave him 200 volts, but not
215\-- never 215!\" ? Each succeeding shock and its justification laid
the groundwork for the next shock and would have been dissonant with
quitting; 215 volts is not that different from 200, and 230 is not that
different from 215. Those who did break off the series did so against
enormous internal pressure to continue.
[[\[FN624\]](#Document1zzFN_F624)]{.underline}

The fact that the learner willingly provided answers without complaint
through shock level twenty in the initial experiment seemed to provide
proof that he, too, had accepted the terms of the agreement.
[[\[FN625\]](#Document1zzFN_F625)]{.underline} It was only when things
started not to go his way (when he started to get many answers wrong)
that he refused to honor the terms\--a repudiation of the rules of
contract. From the teachers\' perspective, both they and the learner had
voluntarily agreed to participate in an experiment for \$4.50; the
learner had no reason to complain (or void the contract) because his
position was assigned through a fair and random process.
[[\[FN626\]](#Document1zzFN_F626)]{.underline} In the words of Milgram,
**\*306** \"\[t\]hat he later becomes an involuntary subject does not
alter the fact that, initially, he consented to participate without
qualification.\" [[\[FN627\]](#Document1zzFN_F627)]{.underline}

It is noteworthy, we think, that in Milgram\'s film, Obedience, the
learner went out of his way in front of the teacher to stop and
carefully examine the shock generator, with all its levels and warnings.
[[\[FN628\]](#Document1zzFN_F628)]{.underline} And we suspect that the
teachers tended to see the learner as someone who freely and knowingly
chose to participate and who, in essence, wanted, perhaps even deserved,
to be shocked\--at least up to some level. Indeed, the situation-induced
preference to shock the learner might well have solidified that
perception. [[\[FN629\]](#Document1zzFN_F629)]{.underline} In this
sense, the learner could be understood as having accepted his lot and
having assumed the risk that it entailed. Put differently, the learner
appeared to \"reveal his preference\" for getting shocked.

Of course, it is important to note that while theories of contract can
be powerful forces of justification, outweighing complaints by the
victim, they do not appear strong enough to overcome fully the voice of
credible authority. [[\[FN630\]](#Document1zzFN_F630)]{.underline}
Milgram attempted to test the power of contract notions by structuring a
variation of the experiment in which, before signing the release form,
the learner paused and stated, \"I\'ll agree to be in it, but only on
condition that you let me out when I say **\*307** so; that\'s the only
condition.\" [[\[FN631\]](#Document1zzFN_F631)]{.underline} The changing
of the contract seemed to have some effect. Approximately a quarter of
the teachers, who defied the experimenter\'s authority, raised the fact
that the learner had explicitly conditioned her consent to participate
in the experiment. [[\[FN632\]](#Document1zzFN_F632)]{.underline} A
number of other teachers mentioned their concern with the \"legalities\"
of the experiment. [[\[FN633\]](#Document1zzFN_F633)]{.underline}
However, sixteen of the forty teachers continued to the end of the
experiment, as compared to the twenty in the control, thus showing the
enormous power of authority even in the face of contract forces.
[[\[FN634\]](#Document1zzFN_F634)]{.underline}

But suppose Milgram had tested the issue further. Suppose that the
teacher arrived first and that he watched as the learner was dragged to
the room in shackles and strapped into the chair involuntarily while
begging, \"Please, please, I never agreed to be part of this experiment,
I was just walking by on my way to the library!\" Or, for a less vivid
version, suppose the teacher watched as the learner willingly sat in the
chair under the false impression that he was going to participate in a
sleeping experiment and that the straps were on the chair simply to
measure sleep patterns.

We suspect that such variations in the experimental protocol would have
had an even more significant effect than the conditional contract on the
teacher\'s willingness to shock the learner. To put it in more general
terms, we believe that a person\'s willingness to harm another depends
heavily on whether or not that person perceives her victim to have
dispositionally assumed such a risk.

There is, as it turns out, considerable social psychological evidence
that is consistent with that understanding.
[[\[FN635\]](#Document1zzFN_F635)]{.underline} Perhaps more importantly,
however, there is also depressingly weighty support within the annals of
history. When, for instance, Nazis murdered millions, many did so,
secure in their belief that their victims deserved to be exterminated,
for the benefit of the human species and the advancement of evolutionary
trends. [[\[FN636\]](#Document1zzFN_F636)]{.underline} The tendency to
**\*308** dispositionalize in order to oppress has been particularly
strong in the United States, where cultural notions of freedom,
equality, and self-evident, natural rights have been celebrated at the
same time that many of the humans within our borders have been grouped
and subjected to bondage, conquest, and exploitation.
[[\[FN637\]](#Document1zzFN_F637)]{.underline}

Dispositionism has been the legitimating salve.

2\. The Master\'s View of the Slave

I have often been utterly astonished, since I came to the north, to find
persons who could speak of the singing, among slaves, as evidence of
their contentment and happiness. It is impossible to conceive of a
greater mistake. Slaves sing most when they are most unhappy. The songs
of the slave represent the sorrows of his heart; and he is relieved by
them, only as an aching heart is relieved by its tears. At least, such
is my experience. I have often sung to drown my sorrow, but seldom to
express my happiness. Crying for joy, and singing for joy, were alike
uncommon to me while in the jaws of slavery. The singing of a man cast
away upon a desolate island might be as appropriately considered as
evidence of contentment and happiness, as the singing of a slave; the
songs of the one and of the other are prompted by the same emotion.

\--Frederick Douglass [[\[FN638\]](#Document1zzFN_F638)]{.underline}

Let us return to the topic of slavery.
[[\[FN639\]](#Document1zzFN_F639)]{.underline} When plantation owners
traded in human beings, they were confronted with a problem not
**\*309** unlike the one faced by the teachers in Milgram\'s experiment.
In antebellum America, plantation owners and slave traders, among many
others, exploited slaves for financial and social gain, while
maintaining their own perception of themselves as the sort of people who
would never unjustly exploit others.
[[\[FN640\]](#Document1zzFN_F640)]{.underline} All who were more or less
complicit with the practices and systems of slavery needed to believe
that the groups and systems to which they belonged were fair and just,
and somehow not in tension with the principles of equality to which so
many subscribed. [[\[FN641\]](#Document1zzFN_F641)]{.underline}

a\. The basic message\--dispositionism

Faced with this situation, the plantation owners did what we all tend to
do\--and what most of us in their situation would likely have done at
that time. They looked at their social world and inferred dispositionist
distinctions that made slavery not only palatable, but natural, just,
and in effect, Pareto superior. They embraced the self-affirming faith
that their captives were intended (by God or nature) to be slaves, and
that for their own good they needed to be slaves.
[[\[FN642\]](#Document1zzFN_F642)]{.underline} It was the plantation
owners that were **\*310** designed to be the masters, that could tame,
train, and protect the slaves from themselves.
[[\[FN643\]](#Document1zzFN_F643)]{.underline} They found ways to
believe that slavery was precisely what slaves preferred\--for if a
person sings, smiles, and otherwise behaves \"as if\" she is happy, who
can deny that she is? [[\[FN644\]](#Document1zzFN_F644)]{.underline} And
if the slaves were not outwardly happy, there was still no good reason
to conclude that they were unhappy. As Elizabeth Cady Stanton
summarized:

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 mere 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.
[[\[FN645\]](#Document1zzFN_F645)]{.underline}

Put differently, slaveowners (and, to some extent, most of antebellum
society) [[\[FN646\]](#Document1zzFN_F646)]{.underline} inferred
dispositional qualities about the slaves when they considered the
situation of American slavery. They compared those qualities with their
views of their own dispositions and concluded that the African race was
dispositionally inferior in almost every way. This subsection will
attempt to describe some of the manifestations of that fundamental
attribution error\-- missing the situation\--in this human tragedy.

i\. Revealed inferiority

The primary, and perhaps most powerful, tendency of those who defended
or were complicit with slavery was to see Africans in America as a
subhuman species, or at least as less-highly evolved humans.
[[\[FN647\]](#Document1zzFN_F647)]{.underline} The truth of the African
slaves\' inferiority was so obvious **\*311** as to usually be beyond
debate. As Chief Justice Taney put it in the infamous Dred Scott
decision:

\[Blacks\] had for more than a century before been regarded as beings of
an inferior order, and altogether unfit to associate with the white
race, either in social or political relations; and so far inferior, that
they had no rights which the white man was bound to respect; and that
the negro might justly and lawfully be reduced to slavery for his
benefit. He was bought and sold, and treated as an ordinary article of
merchandise and traffic, whenever a profit could be made by it. This
opinion was at that time fixed and universal in the civilized portion of
the white race. It was regarded as an axiom in morals as well as in
politics, which no one thought of disputing, or supposed to be open to
dispute; and men in every grade and position in society daily and
habitually acted upon it in their private pursuits, as well as in
matters of public concern, without doubting for a moment the correctness
of this opinion. [[\[FN648\]](#Document1zzFN_F648)]{.underline}

The consequence of this dispositionist assessment of blacks was
staggering. There were two principle holdings in Dred Scott. First, it
meant that no African could be a citizen of the United States or even of
any state \"within the meaning of the Constitution.\"
[[\[FN649\]](#Document1zzFN_F649)]{.underline} Second, because blacks
were not citizens in the eyes of the law, they could be treated as any
other kind of property. According to the Court, Congress had no power to
treat slaves differently from any other types of property.
[[\[FN650\]](#Document1zzFN_F650)]{.underline} Consequently, the Court
held, Congress could not exclude slavery from the federal territories,
and therefore, that the Missouri Compromise was unconstitutional.
[[\[FN651\]](#Document1zzFN_F651)]{.underline} But of course, the
**\*312** Court\'s holding in Dred Scott was considered common sense in
much of America at that time.
[[\[FN652\]](#Document1zzFN_F652)]{.underline} We all see
dispositionally, and this dispositionism had long made people blind to
the situation of slavery, and to the situational influence on slaves.
[[\[FN653\]](#Document1zzFN_F653)]{.underline}

Yet this common sense dispositionist presumption about Africans had not
always been the common sense. In fact, the dispositionism emerged in
America precisely because it was needed, as indicated above,
[[\[FN654\]](#Document1zzFN_F654)]{.underline} to reconcile principles
with practices. [[\[FN655\]](#Document1zzFN_F655)]{.underline} And few
people, we suspect, felt the dissonance and the need to reconcile more
intensely than did Thomas Jefferson
[[\[FN656\]](#Document1zzFN_F656)]{.underline}\--civil rights theorist,
father of the American Revolution, author of the Declaration of
Independence, President of the United States, and Virginian slaveholder.
[[\[FN657\]](#Document1zzFN_F657)]{.underline} Indeed, **\*313**
Jefferson presumed to analyze the inherent nature of slaves\'
inferiority through a neutral and scientific approach. In an extended
argument in his Notes on the State of Virginia, Jefferson enumerated in
remarkably dispositionist terms the evidence that he found to justify
the maintenance of slavery.
[[\[FN658\]](#Document1zzFN_F658)]{.underline} We quote him here at
length, not only because his analysis is so revealing, but also because
it is his analysis, the careful work of a man whose desire for a shared
freedom for all men is so celebrated in our culture:
[[\[FN659\]](#Document1zzFN_F659)]{.underline}

The first difference which strikes us is that of colour. . . . Is it not
the foundation of a greater or less share of beauty in the two races?
Are not the fine mixtures of red and white, the expressions of every
passion by greater or less suffusions of color in the one, preferable to
that eternal monotony, which reigns in the countenances, that immoveable
veil of black which covers all the emotions of the other race? Add to
these, flowing hair, a more elegant symmetry of form, their own judgment
in favour of the whites, declared by their preference of them, as
uniformly as is the preference of the Oranootan for the black women over
those of his own species. . . . A black, after hard labour through the
day, will be induced by the slightest amusements to sit up till
midnight, or later, though knowing he must be out with the first dawn of
the morning. They are at least as brave, and more adventuresome. But
this may perhaps proceed from a want of forethought, which prevents
their seeing a danger till it be present. When present, they do not go
through it with more coolness or steadiness than the whites. They are
more ardent after their female: but love seems with them to be more an
eager desire, than a tender delicate mixture of sentiment and sensation.
Their griefs are transient. Those numberless afflictions, which render
it doubtful whether heaven has given life to us in mercy or in wrath,
are less felt, and sooner forgotten with them. In general, their
existence appears to participate more of sensation than reflection. To
this must be ascribed their disposition to sleep when abstracted from
their diversions, and unemployed in labour. An animal whose body is at
rest, and who does not reflect, must be disposed to sleep of course.
Comparing them by their faculties of memory, reason, and imagination, it
appears to me, that in memory they are equal to the whites; in reason
much inferior, as I think one could scarcely be found capable of tracing
and **\*314** comprehending the investigations of Euclid; and that in
imagination they are dull, tasteless, and anomalous. . . . But never yet
could I find that a black had uttered a thought above the level of plain
narration; never see even an elementary trait of painting or sculpture.
. . . Misery is often the parent of the most affecting touches in
poetry.\--Among the blacks is misery enough, God knows, but no poetry.
Love is the peculiar oestrum of the poet. Their love is ardent, but it
kindles the senses only, not the imagination.

. . . It is not against experience to suppose, that different species of
the same genus, or varieties of the same species, may possess different
qualifications. [[\[FN660\]](#Document1zzFN_F660)]{.underline} Will not
a lover of natural history then, one who views the gradations in all the
races of animals with the eye of philosophy, excuse an effort to keep
those in the department of man as distinct as **\*315** nature has
formed them? This unfortunate difference of color, and perhaps of
faculty, is a powerful obstacle to the emancipation of these people.
[[\[FN661\]](#Document1zzFN_F661)]{.underline}

Jefferson\'s blindness to the situation is obvious to us now. We can,
from our vantage, see the situation of slavery like we can see a gun to
the head. But, in Jefferson\'s time, the situation was obscured by the
more salient (and affirming) dispositions. While arguing that white
people were obviously more beautiful than blacks, Jefferson cites
blacks\' \"own judgment in favour of the whites,\"
[[\[FN662\]](#Document1zzFN_F662)]{.underline} but does not see the
extreme power disparities that likely lead to this perceived reaction.
This is an egregious instance of dispositions wrongly being thought to
be \"revealed\" through behavior.
[[\[FN663\]](#Document1zzFN_F663)]{.underline} Jefferson does not see
that the situation of forced labor might require the kind of palliative
function of song that Douglass spoke of,
[[\[FN664\]](#Document1zzFN_F664)]{.underline} but rather concludes that
the singing is evidence of a \"carefree\" disposition. Furthermore, he
remarkably infers that blacks dispositionally required less sleep than
whites, ignoring the fact that sleep was situationally less available to
them. [[\[FN665\]](#Document1zzFN_F665)]{.underline} Jefferson also
concludes that blacks had inferior reason and imagination, without
appreciating the situation\--the fact that blacks were denied schooling,
for example, or the opportunity for creative expression
[[\[FN666\]](#Document1zzFN_F666)]{.underline}\--that created that
condition. [[\[FN667\]](#Document1zzFN_F667)]{.underline}

At the same time that blacks were perceived as inferior to whites in
reason, they were seen as dispositionally superior to whites in doing
**\*316** the sort of work that the slaveholders needed. As Jefferson
noted, they seemed to forget their afflictions, required less sleep, and
were more resistant to heat. Therefore, they were well-suited as forced
laborers. [[\[FN668\]](#Document1zzFN_F668)]{.underline}

It is important to note that Jefferson does not entirely disregard the
influence of the situational effects of slavery. In fact, he purports to
examine and control for such evidence. He explains that \"\[t\]he
improvement of the blacks in body and mind, in the first instance of
their mixture with the whites, has been observed by every one, and
proves that their inferiority is not the effect merely of their
condition of life.\" [[\[FN669\]](#Document1zzFN_F669)]{.underline}
Jefferson continues his proof by comparing American slaves to Roman
slaves, who he claims were treated significantly worse than American
slaves\--in other words, their situations were even more stifling.
[[\[FN670\]](#Document1zzFN_F670)]{.underline} But, as he then claims,

notwithstanding these and other discouraging circumstances among the
Romans, their slaves were often their rarest artists. They excelled too
in science, insomuch as to be usually employed as tutors to their
master\'s children. Epictetus, Terence, and Phaedrus, were slaves. But
they were of the race of whites. It is not their condition then, but
nature, which has produced the distinction.
[[\[FN671\]](#Document1zzFN_F671)]{.underline} **\*317** Thomas
Jefferson, who announced to the world that \"all men are created
equal,\" [[\[FN672\]](#Document1zzFN_F672)]{.underline} who founded the
University of Virginia and carried the Enlightenment\'s torch through
his lifelong emphasis on the importance of education, who believed he
was an objective natural historian and scientist, still could not see
the situation in the case of slavery. Dispositionism runs deep, and we
can know with fair confidence that, were we living in Virginia at the
time that Jefferson wrote, our position likely would have been even less
situationally sensitive than his was.
[[\[FN673\]](#Document1zzFN_F673)]{.underline}

A review of Jefferson\'s justifications highlights the source and
destination of our dispositionist tendencies. When we miss or downplay
the situation, and see or exaggerate dispositions, we miss the hurdles,
holes, quicksand, and other obstacles that can influence the outcome of
any race, and instead attribute the outcomes to the racers themselves.
Given the existence of the fundamental attribution error, it is very
hard for us not to assume that we are all competing on a level playing
field, that the victor deserves the spoils and the losers deserve their
fate. And it is not just individuals that are engaged in a dispositional
race. Indeed, entire \"races\" are competing against each other. The
fact that one group dominates another often carries its own
justification. Superior races, as measured by their ability to dominate,
should dominate, as nature appears to reveal.
[[\[FN674\]](#Document1zzFN_F674)]{.underline} As Alabama physician
Josiah Nott put it in 1854, **\*318** shortly before the Dred Scott
decision: [[\[FN675\]](#Document1zzFN_F675)]{.underline} \"Nations and
races, like individuals, have each an especial destiny: some are born to
rule, and others to be ruled. . . . No two distinctly-marked races can
dwell together on equal terms. . . . \[H\]uman progress has arisen
mainly from the war of the races. . . .\"
[[\[FN676\]](#Document1zzFN_F676)]{.underline}

**\*319** ii. Consent\--implied and revealed

Those justifications led to another separate, but related,
dispositionist justification of slavery\--the myth that, were Africans
competent to choose, they would choose slavery for themselves. But
because they were not, the responsibility fell on whites to choose for
them. George Fitzhugh, a slavery proponent and celebrated Southern
polemicist wrote, \"\[the Negro\] is but a grown up child, and must be
governed as a child, not as a lunatic or criminal. The master occupies
towards him the place of parent or guardian.\"
[[\[FN677\]](#Document1zzFN_F677)]{.underline} Proponents argued that
slavery was the best thing for the Africans because it allowed them to
become \"civilized,\" to become Christian, and to live a comfortable
life, free from the dangers of their former life as African savages.
[[\[FN678\]](#Document1zzFN_F678)]{.underline} Thus, there was at least
an implied consent on the part of blacks to the slavery system.

**\*320** A more extreme version of that paternalistic dispositionist
fallacy was the view that slaves actually chose to be slaves\--their
consent and support for the institution was actually revealed by their
happiness and satisfaction. In this view, there was really nothing
paternalistic involved. Slaves were perceived to have consented by the
fact that they seemed to like it. In this conception, slavery was
contrasted with the system of wage labor in the North, and was seen as
clearly superior. Fitzhugh again made the argument:

The negro slaves of the South are the happiest, and, in some sense, the
freest people in the world. The children and the aged and infirm work
not at all, and yet have all the comforts and necessaries of life
provided for them. They enjoy liberty, because they are oppressed
neither by care nor labor.
[[\[FN679\]](#Document1zzFN_F679)]{.underline}

In 1861, former United States Senator James Henry Hammond from South
Carolina explained the seemingly unchallenged \"logic\" of the system:

\"In all social systems there must be a class to do the menial duties,
to perform the drudgery of life. That is, a class requiring but a low
order of intellect and but little skill. Its requisites are vigor,
docility, \[and\] fidelity. Such a class you must have, or you would not
have that other class which leads progress, civilization, and
refinement. It constitutes the very mudsill of society and of political
government. . . . Fortunately for the South, she has found a race
adapted to that purpose at her hand. A race inferior to her own, but
eminently qualified in temper, in vigor, in docility, in capacity to
stand the climate, to answer all her purposes. We use them for our
purpose, and we call them slaves.\"
[[\[FN680\]](#Document1zzFN_F680)]{.underline}

From where Hammond stood, the need for slaves was beyond question. That
was the way great societies had always done it. If you accept as a
starting point that certain people are inherently and **\*321**
dispositionally inferior, the best way to maximize the utility of
society is to put those people at the bottom.
[[\[FN681\]](#Document1zzFN_F681)]{.underline} And if it happens that
even the slaves prefer\--or would if they were competent\--to be slaves,
then the idea of emancipation is ludicrous.

b\. Amplifying dispositionism: The anti-slavery bogeypeople

In addition to those dispositionist rationales, defenders of the status
quo of slavery also pointed to threats of bogeymen lurking in any change
to the situation. Change was frightening, and could be made to seem even
more so, not only to slaveholders, but to lower classes as well,
including non-slaveholding planters and poor white laborers. Each of
these groups viewed the maintenance of the social system as essential to
keeping their fears from becoming reality. As historian James McPherson
puts it, \"\[slaveholders\] managed to **\*322** convince most
non-slaveholding whites in the South (two-thirds of the white population
there) that emancipation would produce economic ruin, social chaos, and
racial war.\" [[\[FN682\]](#Document1zzFN_F682)]{.underline}

Even those that perhaps philosophically favored emancipation feared
that, if blacks were released, hell might break loose. For instance, in
a particularly grave rendition of this concern, Thomas Jefferson
predicted that

\[d\]eep rooted prejudices entertained by the whites; ten thousand
recollections, by the blacks, of the injuries they have sustained; new
provocations; the real distinctions which nature has made; and many
other circumstances, will divide us into parties, and produce
convulsions which will probably never end but in the extermination of
the one or the other race.
[[\[FN683\]](#Document1zzFN_F683)]{.underline} **\*323** Defenders of
slavery pointed to what they saw as the inevitable and total destruction
of the fabric of Southern society if slavery was abolished. As historian
Eugene Genovese notes, \"\[t\]he proslavery theorists never tired of
proclaiming that the greatness of ancient Egypt, Israel, Greece, and
Rome had been based on slavery . . . .\"
[[\[FN684\]](#Document1zzFN_F684)]{.underline} The defenders of slavery
assumed that there could not be a great and prosperous society without
slavery; they were unable to imagine something that differed from the
status quo. The only way to be prosperous, they believed, was the
\"proven\" way, and thinking about alternatives was a dangerous
endeavor. Of course, the views that blacks were inferior, that a
successful society depended on the social system of slavery, and that
only chaos would ensue from changing it, were wrong.

But the fear-mongering served an important purpose for those who engaged
in it beyond simply predicting hypothetical future outcomes. As we have
hinted throughout this Article and as we will describe in more detail in
other work, [[\[FN685\]](#Document1zzFN_F685)]{.underline} there is
considerable and growing social psychological research indicating that
the presence of a threat to existing systems activates in us a general
motive to justify or legitimate the system, as is.
[[\[FN686\]](#Document1zzFN_F686)]{.underline} That research further
reveals that one of the most effective means of legitimating the system
is to dispositionalize those groups that might otherwise be seen as
unjustly victimized. By increasing fears that the system was at risk,
and that any change to the system would be calamitous, the defenders of
slavery were, consciously or not, acting to reinforce the system and the
dispositionism of slaves on which the system relied. And they were
likely having that effect on all groups, regardless of their
relationship with the system of slavery, including those who were in
fact being harmed.

**\*324** c. Dispositionalizing the opposition

We have thus far explored several ways in which knowledge structures
evolved to justify the institution of slavery on behalf of those who
sought to legitimize it. More specifically, we have emphasized how
slaves\--and all identity groups for that matter\--were more or less
dispositionalized in order to \"make sense\" of the systems of slavery,
and to inoculate them with the \"patina of consent.\"
[[\[FN687\]](#Document1zzFN_F687)]{.underline} But the deep capture of
\"knowledge\" is not accomplished without the deep capture of knowledge
production, and that is also part of the unseen situation. As was true
during Galileo\'s struggles with the Catholic Church, as Stigler argued
was true four decades ago of administrative regulators, and as we
hypothesize is generally true today, conceptions of ourselves, others,
and our institutions do not just emerge from bottom-up, individual
analyses of the given facts. Nor do they emerge from a fair tournament
of ideas, in which the most meritorious ideas, beliefs, and knowledge
structures win out. Instead, the winners are created, promoted,
subsidized, and protected by the systems, institutions, and individuals
who enjoy the greatest power to define the situation. Influencing the
interior situation means influencing, among other things, the
information people have access to, how it is framed, and its
credibility. The success of pro-slavery dispositionism required that
dynamic. [[\[FN688\]](#Document1zzFN_F688)]{.underline}

In this subsection, we focus briefly on one of its many elements:
dealing with competing ideas and criticisms of abolitionists. Here was
the problem. Although dispositionalizing slaves helped many Southerners
ease the dissonance they felt from not permitting the self-evident
natural rights that they were preaching, it did not relieve the
dissonance created by the emerging abolition movement. Particularly
after the Nat Turner rebellion in 1831, those who justified and endorsed
slavery had to explain why so many other people were not persuaded by
the force of their seemingly air-tight arguments.

The dissonance was likely significant. According to social
psychologists, when such a conflict grows strong, something usually has
to **\*325** give. [[\[FN689\]](#Document1zzFN_F689)]{.underline} Of
course, a person could reconsider and alter her own views, but that is a
rare event, particularly when there is a lot at stake, as there was on
the issue of slavery. Research shows that an extremely common means of
extinguishing that sort of interpersonal or intergroup dissonance is to
attribute the gap between our outlook and someone else\'s to a lack of
objectivity on their part. We assume that there is some dispositional
source of their bias\--stupidity, or laziness, or corruption, or
self-interest. [[\[FN690\]](#Document1zzFN_F690)]{.underline} Again,
dispositionism saves the day.

And that is largely what happened in the South. To defend slavery and
the entire worldview on which it was based, slavery\'s proponents
dismissed abolitionists and their ilk as ignorant, hypocritical, and
jealous of the success achieved in the South. As historian James
McPherson summarizes:

\[Slavery\] also established the foundation for an upper class of
gentlemen to cultivate the arts, literature, hospitality, and public
service. It created a far superior society to that of the \"vulgar,
contemptible, counter-jumping\" Yankees. . . . \"Instead of an evil,\"
said John C. Calhoun in summing up the southern position, slavery was
\"a positive good . . . the most safe and stable basis for free
institutions in the world.\"
[[\[FN691\]](#Document1zzFN_F691)]{.underline}

Southern newspapers echoed this sentiment. \"\'The great evil of
Northern free society,\"\' insisted a South Carolina newspaper, \"\'is,
that it is burdened with a servile class of MECHANICS and LABOURERS,
unfit for self-government, yet clothed with the attributes and powers of
citizens.\"\' [[\[FN692\]](#Document1zzFN_F692)]{.underline} A Georgia
newspaper was even more emphatic in its distaste:

Free society! we sicken at the name. What is it but a conglomeration of
greasy mechanics, filthy operatives, small-fisted farmers, and
moon-**\*326** struck theorists? . . . The prevailing class one meets
with \[in the North\] is that of mechanics struggling to be genteel, and
small farmers who do their own drudgery, and yet are hardly fit for
association with a southern gentleman\'s body servant.
[[\[FN693\]](#Document1zzFN_F693)]{.underline}

In retrospect, such attacks on the dispositions of abolitionist enemies
appear to be a fairly transparent tactic to discredit them. At the time,
however, those who offered the critiques and those who shared in them,
undoubtedly believed that the attacks were a fairly neutral assessment
of the truth.

d\. Our dispositionalization of slavery

In just that way, today, we look back with horror at slavery and the
institutions, customs, laws, and mindsets that made it possible. We
express outrage that \"those people\" could have embraced such
inappropriate dispositionist assumptions, when it is so clear, in
hindsight, that those assumptions were not only wrong, but self-serving
mechanisms of oppression.

The same central lessons of the Galileo story are all evident here. We
retrospectively witness powerful groups abusing their power by creating
and enforcing oppressive laws based on false, but self-serving,
dispositionist attributions. As with the Galileo story, we manage to
dispositionalize the people involved as \"evil\"\--and obviously
different from us. Yet, we are nonetheless confident that history is not
repeating itself today, confident that we are not blinded too by some
false dispositionism, confident that we are not also unduly missing the
situation. In the examples of Galileo and American slavery we can, in
hindsight, see situation as palpably as we can see a gun to the head.
And such a visible form of influence is, we all agree, unacceptable.
Because we can see the situation in retrospect, we can take comfort in
the belief that we are not subject to anything similar and that, unlike
those who advanced or participated in those oppressive practices or
\"bad acts,\" we are dispositionally \"good.\"

But here is the rub. Those are precisely the same dispositionist
assumptions that the groups who we see as \"bad\" made about themselves.
They did not see oppressive power shaping their society. We suspect
further that we take comfort in our own outrage at these obvious evils
of the past, comfort that helps convince us that we must not be missing
anything like it in our own situation.
[[\[FN694\]](#Document1zzFN_F694)]{.underline} The problem is **\*327**
that we do not understand that the best defense against such patterns
comes less from identifying flawed ideas than it does from identifying
the flaws in those who construct the ideas. The problem is in the human
animal and our faith that we are immune to that which we generally
neither see nor understand: the situation.

Indeed, instead of assuming that our current views about slavery and
Galileo\'s imprisonment provide evidence that we will not again make
such horrific errors, a more reasonable inference would be that those
examples, and the countless others like them, constitute a compelling
indication that history will continue to repeat\--precisely because we
do not appear to know what is moving it. If humans are capable of
believing that those we directly harm (be they slaves, or Milgram\'s
\"learners\") deserve their fate, it should be even easier to
rationalize the harms imposed less directly, less saliently, and more
situationally.

3\. Conclusion

We can thus see that the power of dispositionism, and the patterns to
which it gives shape, are witnessed again and again not just in social
psychology\'s attributional experiments, nor just in the mundane basic
habits of our lives, but in large and central questions of social policy
and human society. We will not pursue this exegesis further here, but
the basic pattern is becoming clear. When we see disposition and miss
situation, we implicitly presume that the situation is neutral, that the
playing field is stable, and that everything else is equal. We see
outcomes, then, as dispositionally deserved. When the system is
challenged or threatened, all those involved in the system have a stake
in reinforcing it and, thus, reinforcing its legitimating
rationalizations.

As this discussion has indicated, the institution of slavery emerged
first and was justified later. And the justifications came piecemeal as
the need arose. Jefferson\'s initial attempt to make sense of the
institution was, at least by comparison to later efforts, quite
tentative. **\*328** By the middle of the nineteenth century, with the
attacks on slavery growing to a feverish pitch, the institution\'s
justifications were fully formed and robust. And they did the trick.
What had once been a \"necessary evil\" had been rendered a just,
natural, and enviable path to civilized greatness. And many in the South
were proud of that transition. South Carolina\'s Senator James H.
Hammond spoke of earlier times when Southerners \"\'believed slavery to
be an evil\--weakness\-- disgrace\--nay a sin. . . . \[I\]n fear and
trembling \[they\] awaited a doom that \[they\] deemed inevitable.\"\'
[[\[FN695\]](#Document1zzFN_F695)]{.underline} But that belief was
temporary, as was the resultant fear. \"\'\[A\] few bold spirits took
the question up; they compelled the South to investigate it anew and
thoroughly, and what is the result?\' \[asked Hammond,\] \'Why, it would
be difficult to find a Southern man who feels the system to be the
slightest burthen on his conscience.\"\'
[[\[FN696\]](#Document1zzFN_F696)]{.underline} Hammond\'s fellow South
Carolinian, John C. Calhoun, recounted the same history from dissonance
to resonance as follows: \"Many in the South once believed that
\[slavery\] was a moral and political evil; that folly and delusion are
gone; we see it now in its true light, and regard it as the most safe
and stable basis for free institutions in the world.\"
[[\[FN697\]](#Document1zzFN_F697)]{.underline} And so it is that visible
evil fades into the situation and, with it, becomes invisible.

D. The Situational Bogeypeople

If not before, it is usually at this point in the presentation of our
ideas to friends, family, students, and colleagues that we are stopped
with one or another version of \"I hear what you are saying and I may
even agree, but I think you are going too far. Is it not dangerous to
take the situation so seriously?\"

We suspect that many of our readers may be experiencing similar
reactions, and we understand the concern. To continue our argument,
then, we think it is necessary to directly engage several versions of
this kind of reaction to our claims. We are doing so not only to try to
mollify our readers\' worries, but also because these common reactions
harmfully narrow the boundaries of most social and political debates in
our society today.

**\*329** One of our main concerns with those arguments is that they are
not always what they purport to be. In our experience, they are not
offered as a concern that emerges once the power of the situation is
fully recognized. Rather, they are implication-based fears that prevent
people from truly understanding the nature of our argument\--that is, of
the situation. Still, those responses are routine, usually as a fallback
position\--a final trump card. So we will do our best in this Section to
respond to commonly held intuitions, which we call situational
bogeypeople\--siblings of those that we encountered earlier.
[[\[FN698\]](#Document1zzFN_F698)]{.underline} These intuitions seem to
come in several varieties.

1\. The Communism Bogeyman

The most popular version of the challenge goes like this:

The playing field is level. And, as long as everyone is starting the
race together, there is no reason to be concerned about the fact that
there will be some winners and some losers. That\'s what a fair
competition is designed to do: separate winners from losers as it
creates incentives to win in the process. Equality of opportunity does
not guarantee equality of outcome. If policymakers were to begin looking
to outcomes as a measure of opportunity, they would transform our free
world into a communist or socialist regime.

A major weakness of this challenge is that it is not actually a response
to, as much as it is a denial of, our point. Our claim that situational
influences benefit some groups and disadvantage others is a claim that
the playing field is, in ways unseen, not level and that we are all
operating under the wrong presumption. To assert that the playing field
is level may, in fact, confirm our point: people do not see relevant
situational influences (which would include many features of the playing
field) and overattribute outcomes to dispositions.

That basic challenge sometimes finds some reinforcement, though, by
retreating to the following version of the communist bogeyman:

Even if the playing field is not perfectly level, it is level enough for
us to attribute success or failure to the participants\' dispositions.
After all, many people who appear to start with situational
disadvantages outrun those who appear to begin with situational
advantages\--simply because they were dispositionally inclined to
overcome those disadvantages. **\*330** This response is just a more
nuanced form of denial. Acknowledging trivial unevenness on the playing
field can often be a disarmingly effective means of justifying ignoring
that unevenness. Of course, it is possible that the field is only
trivially uneven, but the evidence typically adduced for that claim
tends to be very thin and seems to be based more on shared intuition
than situational sensitivity. We do not want to deny that Horatio Alger,
and many like him, have successfully managed to turn adversity into
opportunity\-- or, in other words, have dispositionally chosen to
overcome significant situational opposition. Nor do we want to deny that
the hope of just such an outcome is inspiring for many poor and
hard-working people in our society.
[[\[FN699\]](#Document1zzFN_F699)]{.underline} But neither do we believe
that such exceptional success stories are much more than
that\--exceptional. The fact that there is some movement across
socioeconomic groups does not imply that situation does not immensely
affect outcomes. [[\[FN700\]](#Document1zzFN_F700)]{.underline}

First, when members of disadvantaged groups compete against advantaged
groups, the situation will influence the outcome even if there are
exceptions. An extremely fast and driven runner with a brick tied to his
foot may well outpace a slower, unencumbered runner. But a class of
brick-laden runners will tend to seem plodding or malingering as they
fall behind their brick-free competitors.

Moreover, what may be true individually almost certainly cannot be true
generally. For instance, the fact that some hard-working people manage
to climb out of poverty does not mean that all could, if only they
worked as hard. The point about a competitive race is, **\*331** after
all, to separate winners from losers. The situation of the competition
creates a meaningful limit to the number of winners. If everyone ran as
hard as Horatio Alger, the speed of the race would increase to be sure,
but the number of winners and losers would not.
[[\[FN701\]](#Document1zzFN_F701)]{.underline}

In any event, the claim that policymakers should not look to outcomes to
help determine if there is a problem with the playing field simply
denies a major feature of our argument. Because the playing field is
part of the situation, there is little reason to be confident that we
can know when it is level and fair.

Recall that nobody believed that the teachers in Milgram\'s experiment
would shock the learners all the way up to 450 volts.
[[\[FN702\]](#Document1zzFN_F702)]{.underline} The fact that two-thirds
of them did suggests that even the experts, including Milgram,
misperceived the power of the situation and overestimated the role of
disposition. What social psychology and history teach us is not to trust
our perceptions, but to doubt them.

Of course, claiming that we should learn from outcomes is a very
different claim than \"from each according to his ability, to each
according to his needs \[.\]\"
[[\[FN703\]](#Document1zzFN_F703)]{.underline} Our argument is not that
we should all finish the race together, but that where people finish may
reveal more about the race than it reveals about the racers. Outcomes
can serve an immensely valuable evidentiary role in any serious attempt
to ensure that the playing field is level.

Moreover, the deference to outcomes as a measure of the process is
nothing new. Indeed, it was Stigler who introduced that very methodology
in assessing whether regulations were serving their purported goal of
advancing the public interest. This outcome-based **\*332** assessment,
as we indicated above, is one of the most important foundational
insights of conventional economic theory.
[[\[FN704\]](#Document1zzFN_F704)]{.underline}

Finally, the idea that taking situation into account will somehow reduce
the incentives of the situationally disadvantaged to try to win, strikes
us as counterintuitive and contrary to the most basic assumptions of
those who promote free competition. If, in fact, the playing field is
uneven, it seems that all competitors gain, not lose, incentive to run
faster by leveling the field. Those who are disadvantaged on the current
field will be given a fair chance, and those who are advantaged will be
given a meaningful challenge.
[[\[FN705\]](#Document1zzFN_F705)]{.underline}

2\. The Personal-Responsibility Bogeyman

A second popular version of the situational bogeyman goes like this:

If we begin to take situation into account, people will no longer be
held personally responsible for their actions. Criminals will be able to
blame almost anything they do on the fact that they had a bad situation.
\"It wasn\'t me, it was the situation; I\'m a victim of circumstances\"
will be heard in all the courts of the land and criminals will run free.

We have several responses to this bogeyman.

First, as we summarized above, the law already takes situation into
account, through doctrines like duress in contract,
[[\[FN706\]](#Document1zzFN_F706)]{.underline} necessity in trespass,
and \"heat of passion\" [[\[FN707\]](#Document1zzFN_F707)]{.underline}
in criminal law. [[\[FN708\]](#Document1zzFN_F708)]{.underline} The
problem, as we see it, is that the situation is far from being an
occasional, glaringly obvious gun to the head, as the current law treats
it. It is a **\*333** force of greater or lesser magnitude in nearly
every human interaction. When we argue that the law must take situation
into account, we are asking the law to continue to function as it always
has, but in a way that gives the situation the weight that social
science demonstrates it possesses in human affairs.

Second, there is a strong element of stereotype in the account of this
bogeyman. The stereotype is that the situational character\--our model
of the human animal\--is a puppet on the strings of the situation,
entirely lacking in disposition or volition. But this is a false picture
of our model. We fully agree that humans possess dispositions and that
dispositions likely play some role in a great portion of our behavior.
But, as we argue above, current legal theory and the law overestimate
the point at which disposition ends and the situation begins. No one
wants criminals to run free, but at the same time, we do not want to lay
blame where it is not due. A law that takes a nuanced view of the roles
of situation and disposition will be better able to correctly assign
dispositional responsibility and blame where they belong.

Nevertheless, it might seem that, if the law were to expand its
acknowledgement of situational factors, the result would be to expand
the avenues for evading responsibility. Far from it. As we have shown,
people systematically\--and often quite erroneously\--attribute
causation, responsibility, and blame to the most visible actors in a
given situation. They compound their mistakes through the fundamental
attribution error, by assuming that action is attributable to
disposition, rather than situation. Judges, juries, and legislators are
as vulnerable to these cognitive biases as anyone else. If we are truly
committed to the principle of personal responsibility, then we should be
deeply troubled by the prospect that we are applying it without taking
these biases into account. For the damages to fit the tort or the
punishment to fit the crime, we must first be sensitive to the
situation.

It is our contention that, by ignoring situation, we may be ignoring the
true role of disposition and letting those actors who are most
responsible for the harms we seek to redress off the hook. To better
illustrate this point, we offer a thought experiment, a variation on an
actual experiment. Imagine an alternate world in which Stanley Milgram
is actually interested in studying the effects of negative reinforcement
on learning. Having seen the power of the situation, he designs an
experiment identical in every respect to the actual one, with one
difference: the learner receives real electric **\*334** shocks.
Unfortunately, when Milgram runs these experiments, the learner receives
third-degree burns and sues for damages. Who should be held responsible?

Under commonly held notions of \"personal responsibility,\" some might
blame the learner. He was an adult and ought to have known what he was
getting into. After all, everyone knows that electricity is hot!
Therefore, he should be made to deal with the consequences of his
decision, instead of looking to blame others for them. Some people, also
citing \"personal responsibility,\" might blame the teacher who flipped
the switches because she had many opportunities to stop. There were
teachers who refused to go along with the experiment when they saw the
learner\'s suffering; no one held a gun to this teacher\'s head.
Shouldn\'t she be responsible for the (quite visible) consequences of
her actions?

A typical \"personal responsibility\" view of this lawsuit would likely
stop at that analysis in either allowing the loss or imposing liability.
But what of Stanley Milgram? Shouldn\'t he have known of the risks to
the learner? Shouldn\'t he be held \"personally responsible\" for
setting up a situation in which the teacher was quite likely to flip the
switches? Or perhaps Yale University should be held responsible for not
better monitoring Milgram. Milgram apparently conducted his original
experiments with the university\'s knowledge and may have been motivated
by the university\'s tenure standards to perform this sort of research.
Doesn\'t Yale profit, even to this day, from the attention garnered by
Milgram\'s work?

If any part of this account conflicts with your intuitions, then
consider the famed McDonald\'s coffee case of a few years ago.
[[\[FN709\]](#Document1zzFN_F709)]{.underline} In that case, hot coffee
spilled on Stella Liebeck\'s lap, giving her third-degree burns.
[[\[FN710\]](#Document1zzFN_F710)]{.underline} When she won a verdict
against McDonald\'s, Liebeck became a symbol of the law\'s role in
absolving citizens of personal responsibility and the poster child for
tort reform. [[\[FN711\]](#Document1zzFN_F711)]{.underline} \"\[R\]adio
talk-show hosts around the country . . . lambasted the plaintiff, her
attorneys and the jurors on air. Declining to be interviewed\[,\] . . .
one juror explained that he already had received **\*335** angry calls
from citizens around the country.\"
[[\[FN712\]](#Document1zzFN_F712)]{.underline} Under the common sense
\"personal responsibility\" view, Ms. Liebeck was responsible for
knowing the coffee was hot and ought to have been more careful in
handling it. After all, \"she spilled it on herself.\"
[[\[FN713\]](#Document1zzFN_F713)]{.underline} However, when the jurors
were forced to look at the situation, they were able to see that
McDonald\'s shared responsibility for the burns.
[[\[FN714\]](#Document1zzFN_F714)]{.underline}

We present this case and our hypothetical to make clear that the term
\"personal responsibility\" does not resolve difficult questions of
fault. It merely begs them. Our point is not that people should never be
held responsible for their acts, but that one should not assume that
their \"common sense\" can be trusted to assign responsibility.
[[\[FN715\]](#Document1zzFN_F715)]{.underline} The law must be concerned
with questions of situation. **\*336** How much does the situation
influence individuals? Who controls and profits from particular
situations? How might the situation be altered to influence individuals
in other ways? These are not easy questions, but to avoid them may be to
encourage personal irresponsibility.

Put differently, the concern that taking hard-to-see situation into
account may \"encourage criminals to run freely through our streets\"
ignores the less visible possibility that disregarding situation may
encourage even more.

3\. The Paternalism Bogeyman

No contingent of bogeypeople would be complete without the paternalism
bogeyman. Unlike the prior bogeypeople, the figure of paternalism
appears more prominently and openly in legal theoretic discourse.
Although its precise definition often remains shrouded in mystery, that
has not stopped it from exercising a powerful influence in
legal-theoretic debate. [[\[FN716\]](#Document1zzFN_F716)]{.underline}
Generations of theorists have agreed that paternalism is no friend of
the dispositional human actor presiding at the core of the traditional
liberal picture. John Stuart Mill, who early laid down the line against
paternalism in a \"civilized\" society, stated that, \"the only purpose
for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others. His
own good, either physical or moral, is not a sufficient warrant.\"
[[\[FN717\]](#Document1zzFN_F717)]{.underline}

Professor David Shapiro, in his famous article on the subject, claimed
that the concept of paternalism can be conceived of in a number of
weaker or stronger formulations.
[[\[FN718\]](#Document1zzFN_F718)]{.underline} But the basic
anti-paternalism suspicion has, by now, attached to almost any version
of it. In his article, Shapiro set out, in part, to challenge Duncan
Kennedy\'s seminal claim that paternalism was actually quite widespread
in private and public social arrangements, including, importantly, many
**\*337** areas of the law.
[[\[FN719\]](#Document1zzFN_F719)]{.underline} Shapiro gave a renewed
voice to the traditional view of paternalism as showstopper, arguing
that legal justifications for many of the kinds of arrangements Kennedy
had pointed to were actually well grounded in anti-paternalism (at least
rhetorically). [[\[FN720\]](#Document1zzFN_F720)]{.underline} Professor
Shapiro claimed that, in fact, \"anti-paternalism (which \[we\] should
perhaps . . . \[be\] calling \'pro-autonomy\') is a dominant strain in
our tradition.\" [[\[FN721\]](#Document1zzFN_F721)]{.underline}
Moreover, as we have already indicated, legal economists, when met with
claims they perceive as threatening to individual autonomy, are quick to
retreat behind, not economics per se, but an anti-paternalistic defense
of individual freedom. [[\[FN722\]](#Document1zzFN_F722)]{.underline}
Much of the most recent law and economics-oriented scholarship on
paternalism has been directed at defining the boundaries and types of
paternalistic social policies that can be justified, assuming that
strong deference should be given to the basic \"libertarian\" view of
individual autonomy. [[\[FN723\]](#Document1zzFN_F723)]{.underline} The
paternalism bogeyman, despite the efforts of Kennedy and others, reigns.

**\*338** A central effect of its reign is to scare away potential
interventions in the apparent dispositional choices of individuals or
arguments that would put the meaning of such choices into doubt. To do
so, the paternalism bogeyman patronizes the dispositional actor by
highlighting only the most salient kinds of situational exercises of
power over individuals, calling these paternalism, and demanding they
yield in the name of the freedom that is assumed otherwise to govern. In
this way, the paternalism bogeyman, like the others, succeeds against
our argument only by denying what social science teaches (and markets
reveal) about the power of the unseen situation.

Shapiro, for example, provides a vivid but profoundly dispositionist
picture when he \"lay\[s\] out some baselines\" for the study of
paternalism. [[\[FN724\]](#Document1zzFN_F724)]{.underline} Adopting the
axiom of \"consent\" as central to the analysis, Shapiro discerns the
quintessential form of what he and most theorists find to be a
permissible kind of paternalism \--self-paternalism.
[[\[FN725\]](#Document1zzFN_F725)]{.underline} The guiding figure here
is Odysseus, that hero of the disposition human journey, binding himself
to the mast of his ship as it passes by the Sirens, and instructing his
crew that they should not untie him no matter how vigorously he demands
to be unbound. [[\[FN726\]](#Document1zzFN_F726)]{.underline} Odysseus
fears his future-self will, if set free, choose to stay forever among
the beautiful, seductive voices of the Sirens.
[[\[FN727\]](#Document1zzFN_F727)]{.underline} In contrast to this
permissible \"baseline\" of self-paternalism is an even more vivid
dispositionist vision of the sinister paternalism bogeyman\--the Grand
Inquisitor:

\[T\]he case for a claim of weak paternalism is itself weakened . . .
when the asserted incapacity exists on a question of basic values or
assumptions, especially (but not exclusively) when those values or
assumptions are shared by a large group of mature adults. The Grand
Inquisitor who is convinced that the souls of the heretics can be saved
only if they are coerced into recanting their heresy may see the case as
the quintessence of weak paternalism. But I do not.
[[\[FN728\]](#Document1zzFN_F728)]{.underline}

Shapiro accepts as a premise that power can be exercised to alter
people\'s opinions even on \"basic assumptions,\" but this power is
pictured as a salient external power, in the figure of the Grand
**\*339** Inquisitor. [[\[FN729\]](#Document1zzFN_F729)]{.underline} The
possibility that power is exercised in unseen ways over \"basic
assumptions\" is not even imagined; and the charge of paternalism
becomes a bulwark against examining the power operating in the formation
of those assumptions. If paternalism is a troublesome exercise of power
when implemented through salient situational influences, then critical
realism suggests that we ought to begin our analysis at exactly the
place where Shapiro places the bogeyman\'s barricades. Put differently,
if our ambition is to foster a world in which people are encouraged to
act according to their values, attitudes, and assumptions, then legal
analysts need to look far deeper than just the obvious tip of the
situational iceberg.

Further examination reveals that Shapiro\'s conventional \"baselines\"
are the product not of analysis or theory, but of the fundamental
attribution error. Defending his decision to \"embrace the
anti-paternalist position,\"
[[\[FN730\]](#Document1zzFN_F730)]{.underline} Shapiro falls back, as do
so many, on intuitions and common sense perceptions: \"on so basic a
question of human relations I am not sure how feasible it is to do more
than chart my own course.\"
[[\[FN731\]](#Document1zzFN_F731)]{.underline} Indeed, most defenders of
anti-paternalism, Shapiro admits, have offered weak justification for
their urge \"to defend freedom against its critics.\"
[[\[FN732\]](#Document1zzFN_F732)]{.underline} In charting such a
course, Shapiro argues, \"\[e\]ventually, a leap of faith is
inevitable.\" [[\[FN733\]](#Document1zzFN_F733)]{.underline} In
addition, the stakes in this leap are profoundly important, for \"under
prevailing community standards, the paternalist has the burden of
persuasion.\" [[\[FN734\]](#Document1zzFN_F734)]{.underline}

The problem, of course, is that the prevailing community standards
reflect a fundamental flaw in human attributions, a flaw that appears to
be greatly encouraged and enhanced by those who can best influence our
situation. Thus, in the name of avoiding obvious (that is,
paternalistic) influences on people\'s choices, we may be turning
ourselves over to less obvious, but no less powerful, influences. Or,
put slightly differently, in the name of protecting dispositionism from
**\*340** blatant situational threats, we may be unleashing hidden, but
deeply captured, situational forces that leave us feeling as though we
chose our lot.

Our purpose here is not to propose or defend a strong form of
paternalism. Indeed, we think our argument would demand a thorough
reconceptualization of such conventional categories (strong-form
paternalism, weak-form paternalism, self-paternalism, and so on) before
such a discussion could be fruitful. What we are arguing is that the
charge of paternalism, as it is typically made, is an inadequate
response to the claims we have presented. What we propose is a more
realistic exploration, and acceptance, of the powerful situational
influences over human behavior that go far beyond the ropes of Odysseus
and the fires of the Grand Inquisitor. When we yield in our inquiries to
the paternalism bogeyman, we may be yielding to basic assumptions that
are themselves contestable and the subject of powerful situational
influences. The problem of paternalism is profound, but it cannot be
answered with the conventional bogeyman response.

4\. Summary: The Bogeypeople as Response to, and Creation of, Threat

Some of the owner men were kind because they hated what they had to do,
and some of them were angry because they hated to be cruel, and some of
them were cold because they had long ago found that one could not be an
owner unless one were cold. And all of them were caught in something
larger than themselves. Some of them hated the mathematics that drove
them, and some were afraid, and some worshipped the mathematics because
it provided a refuge from thought and from feeling . . . .\--John
Steinbeck [[\[FN735\]](#Document1zzFN_F735)]{.underline} Although there
are others, [[\[FN736\]](#Document1zzFN_F736)]{.underline} the previous
Sections provide a fair sample of the bogeypeople. We are less
interested in providing a full **\*341** catalogue of the beasts than we
are in understanding what motivates them. People invoking the
bogeypeople often begin by claiming to concede that the situation can
have an immense, unseen effect on people\'s conduct. They then follow
that concession with a general \"so what?\" or, more specifically, with
the invoking of one or more of the bogeypeople to make their case that
it is better to pay no more attention to the situation than people
already do. Upon closer inspection, however, this technique of
responding is better seen as a disarming means of denying our basic
argument about the power of the situation. It is not surprising that our
audience would tend to disbelieve our claims. Indeed, it is to be
expected\--just as it is easy to understand why so many people initially
found Galileo\'s claims to be fanciful. Without the telescope, it was
one person\'s claim against the obvious.

We do not believe that our arguments are immune to critique. We strongly
suspect that they are in many ways flawed. But our worry and our
experience is that they are not given a chance largely because people
reject them because they are hard to see, and, more importantly, because
they do not want to see them. The specter of the bogeypeople provides a
mechanism for evading the situation. Indeed, we suspect that one major
reason for the success of neoclassical economics and disposition-driven
theories of law is not simply that they are good for business, but also
that they serve to protect us all from the disquieting possibilities
that many of our basic systems are both harmful and rigged. With that
possibility in mind, it is illuminating to consider Milgram\'s career.

After revealing, to his own surprise, the power of the unseen situation,
Milgram\'s findings spawned an enormous hullabaloo. In the words of
Thomas Blass, \"more than any other research in social psychology, the
obedience experiments have been embroiled from the beginning in a number
of controversies in which they have played a central and enriching role.
These include the ethics of research, the social psychology of the
psychological experiment, and the deception versus role-playing
controversy.\" [[\[FN737\]](#Document1zzFN_F737)]{.underline} It seems
likely that much of the criticism found its source in the threat that
Milgram\'s results posed to the notion that these systems are just. To
defend against that threat, Milgram\'s work had to be denied,
challenged, and minimized in any way possible.

**\*342** The upset generated by a Milgram . . . in part stems from
ethical concerns. But another part of \[his experiments\'\] power lies
precisely in their demonstration of how strong situational determinants
are in shaping behavior. No resort to a correlation between \'those\'
people who do \'evil\' things is allowed: the subjects were randomly
assigned. [[\[FN738\]](#Document1zzFN_F738)]{.underline}

Despite his profound influence on psychology and the importance of his
work to the fields of philosophy, political science, and education,
Milgram was never granted tenure at Harvard.
[[\[FN739\]](#Document1zzFN_F739)]{.underline} As Blass suggests,
\"\[s\]ome of the opposition toward Milgram came from colleagues who
felt uneasy about him, ascribing to him certain negative properties of
the obedience experiment.\"
[[\[FN740\]](#Document1zzFN_F740)]{.underline} Focusing on Milgram\'s
protocol may well have been a cover for a deeper uneasiness about his
findings, as well as, a means of de-legitimating his work and, more
importantly, legitimating our world.

There is another, perhaps more telling, means of demonstrating that
those who conjure the bogeypeople are, perhaps unconsciously, denying or
minimizing our claim. Consider the likely reaction to our argument if we
were describing more visible, salient, and obvious forms of situational
constraints. Suppose, for example, that we were writing about antebellum
slavery. It does not seem controversial to argue, as we did, that
slavery placed an immense and unjust situational constraint on slaves,
or that slaves\' conduct\--including their singing\--did not reveal
dispositional consent to their fate. We do not believe that the
situational bogeypeople would be invoked in response to those claims.
Nobody would accuse us of being communists for arguing that the
situation of slaves should be taken seriously or that slavery should be
abolished. There is no tendency to invoke the communist bogeyman in that
context because, in retrospect, the situational constraints that caused
the unequal outcomes are clear. If we truly accept the idea that the
situation wields a commanding influence, then the idea of attending to
that influence seems obvious and unobjectionable.

Similarly, the personal-responsibility bogeyman remains dormant when the
situation is slavery. It should be remembered that slaves exercised some
freedom under slavery: they developed their own **\*343** cultural
patterns and practices; they found or created items of value to trade
and sometimes earned money to buy things; they negotiated in various
ways with their masters for, among other things, freedom upon their
master\'s death; they plotted and executed escapes; and in some
circumstances they bought their own freedom.
[[\[FN741\]](#Document1zzFN_F741)]{.underline} So, while slaves
undoubtedly operated under severe situational constraints, they were not
without recourse to influence their own lives. There was room for
disposition, and it undoubtedly played a role in their experiences.

Yet nobody today would claim that slaves should have taken personal
responsibility for the conditions in which they lived. Frederick
Douglass, among others, bought his own freedom, and yet we do not blame
those who did not for their predicament. In such cases, the situation is
obvious, and personal responsibility lies less with those enslaved by
it, and more with those who created it. Placing personal responsibility
on the slave is offensive. When, on the other hand, the situation plays
a significant role in the lives and conditions of those who enjoy
\"freedom\" (here defined as \"not slaves\"), invocations of Horatio
Alger and the personal responsibility bogeymen emerge. If we recognized
the full sweep of the situational influences over our lives, we might be
more hesitant with the charge of \"personal responsibility,\" and the
emergence of this bogeyman might be less automatic.
[[\[FN742\]](#Document1zzFN_F742)]{.underline}

**\*344** Conclusion: Facing our Fears

\"It may be that we are puppets\--puppets controlled by the strings of
society. But at least we are puppets with perception, with awareness.
And perhaps our awareness is the first step to our liberation.\"

\--Stanley Milgram [[\[FN743\]](#Document1zzFN_F743)]{.underline}

Man is the only government-making animal in the world.

\--Frederick Douglass [[\[FN744\]](#Document1zzFN_F744)]{.underline}

We all got to figure. There\'s some way to stop this. It\'s not like
lightning or earthquakes. We\'ve got a bad thing made by men, and by God
that\'s something we can change.

\--John Steinbeck [[\[FN745\]](#Document1zzFN_F745)]{.underline}

The inferno of the living is not something that will be; if there is
one, it is what is already here, the inferno that we live every day,
that we form by being together. There are two ways to escape suffering
it. The first is easy for many: accept the inferno and become such a
part of it that you can no longer see it. The second is risky and
demands constant vigilance and apprehension: seek and learn to recognize
who and what, in the midst of the inferno, are not inferno, then make
them endure, give them space.\'

\--Italo Calvino [[\[FN746\]](#Document1zzFN_F746)]{.underline} We
understand that there is reason to be frightened and to feel threatened.
In fact, that is our point. There is much at stake. But to thwart the
real dangers of the situation\--the vulnerability to manipulation, the
complex legal, social, ethical, and personal problems that it
raises\--we should look beyond the bogeypeople and face our fears.

The goal of this Article is to encourage us to take seriously the
situation. We, and we hope others, will say more in future work about
its implications. Regardless, the most important implication **\*345**
should be evident: there is not going to be a salient, simple policy
solution to our predicament. The belief or hope that such solutions
exist is a manifestation of the problem\--seeing a tiny portion of what
is moving us and assuming that nothing else does.

The problem is akin to another problem that is easier to imagine. Who
was responsible for slavery in this country? Clearly, it was not the
slaves. Their situation was too vividly powerful\--like a gun to the
head\--to conclude otherwise. The most obvious answer is the
slavemaster, and for good reason. Slavemasters bought and sold slaves,
controlled slaves\' environments, and dictated\--often using brutal
force\--much of the slaves\' conduct.
[[\[FN747\]](#Document1zzFN_F747)]{.underline} There is more, however,
to the situation than just the most prominent actors. Slavery was, among
other things, a social system\--a powerful situation\--that was larger
than both the slaves and the masters. Slavery was a highly profitable
industry, not only for the South, but also for the North, where textile
mills, for example, relied on the availability of cheap cotton. A
plantation owner who freed his slaves would not only lose the economic
value of his chattel but also the ability to produce his crops
profitably.

Moreover, freeing slaves was illegal in some states and highly
discouraged by social norms and conventions in all slave states.
[[\[FN748\]](#Document1zzFN_F748)]{.underline} In that and countless
other ways, the laws and the customs that slave owners lived under were
highly constraining. But those situational constraints were not, any
more than the others, a natural, inevitable, or even random
circumstance. The situation was itself the consequence of a profitable
economic system that created institutions and individuals with an
interest in maintaining it.

As we have described, slave owners held situationally influenced
\"knowledge\" and beliefs that also acted to reinforce the system and
justify their place in it as powerful as the economic and social forces
that they faced. As we indicated above, a freed slave was, by some
accounts, unhappy. If a freed African slave could not function outside
of the paternalistic protection of the \"peculiar institution,\" or if
they would almost certainly be kidnapped and sold again into slavery and
perhaps down the river, or if, at best, \"freedom\" meant laboring in
the North where the working conditions were far worse, how could a
plantation owner\--even a \"social welfare-maximizing\" plantation
owner\-- justify freeing his slaves? Furthermore, if **\*346**
slaveowners faced the threat that without slavery their society would
not prosper and evolve, then the emancipation of slaves might come at a
cost to freedom. [[\[FN749\]](#Document1zzFN_F749)]{.underline} In
short, slaves were not the only people who were subject to powerful
situational influences. Slaves, their owners, and their shared society,
were all deeply captured. So, who do we blame?

The point is that this may be the wrong question. Suppose we were given
the task of developing a means of emancipating African Americans from
slavery and the many situational chains that have hindered them since.
Suppose that we had to accomplish that end without the horrors and shame
of the Civil War, of Reconstruction, of Jim Crow, of segregation, and of
disparate opportunities and outcomes that remain with us. What would we
do?

Whatever our answer, it won\'t be simple, and it will require gaining a
better understanding of the situation.

[[\[FNd1\]](#Document1zzFN_Bd1)]{.underline}. Professor of Law, Harvard
University.

[[\[FNdd1\]](#Document1zzFN_Bdd1)]{.underline}. Law Clerk, Judge Patti
B. Saris, United States District Court for the District of
Massachusetts. B.A., Rutgers University; M.A., Carnegie Mellon
University; J.D., Harvard Law School.

We are grateful to Kwaku Akowuah, Tom Allen, Tim Cullen, Chris Egleson,
Garrett Moritz, Lena Salaymeh, Yoni Rosenzweig, Wes Shih, Mila Sohoni,
Dan Weiner, Allen Wong, and Michelle Yau for excellent research
assistance, to Adam Benforado, Jon Goldin, Sam Halabi, Brandon
Hofmeister, Jith Meganathan, Matt Thompson, and Adam Wright for
extraordinary research assistance, and to Carol Igoe for outstanding
secretarial assistance. Financing from the Harvard Law School Summer
Research Fund provided valuable research support. We are also grateful
to participants in the Harvard Law School Faculty Workshop, the
University of Michigan Law and Economics Workshop, and the Harvard Law
School Graduate Student Workshop for helpful comments. We would
particularly like to thank Ian Ayres, Guido Calabresi, Christine Desan,
Phoebe Ellsworth, John Gillis, Lani Guinier, Mort Horwitz, James
Livingston, Duncan Kennedy, Todd Rakoff, the late Gaston Rimlinger,
Scott Sandage, Joseph Singer, Paul Slovic, Peter Stearns, Diana
Strassmann, and Roberto Unger, among many others, for their enriching
situational influences on us and this work. Finally, we would like to
express our love and deepest gratitude to Kathleen, Emily, Erin, and Ian
Hanson; Paula Noyes; and Michael, Viola, Michael, Jr., Tracy, Stephen,
and Evan Yosifon.

[[\[FN1\]](#Document1zzFN_B1)]{.underline}. Mahzarin R. Banaji, Ordinary
Prejudice, 14 Psychol. Sci. Agenda 8, 8 (2001).

[[\[FN2\]](#Document1zzFN_B2)]{.underline}. Sheldon Rampton & John
Stauber, Trust Us, We\'re Experts! 2 (2001) (all but first ellipsis in
original) (quoting Burson-Marsteller, Inc., at http://www.bm.com (Sept.
27, 1997)).

[[\[FN3\]](#Document1zzFN_B3)]{.underline}. Italo Calvino, If on a
Winter\'s Night a Traveler 3-4 (William Weaver trans., Harcourt Brace
Jovanovich 1981) (1979).

[[\[FN4\]](#Document1zzFN_B4)]{.underline}. See Ellen J. Langer,
Mindfulness 62 (1989) (describing the \"key qualities of a mindful state
of being: (1) creation of new categories; (2) openness to new
information; and (3) awareness of more than one perspective\").

[[\[FN5\]](#Document1zzFN_B5)]{.underline}. Banaji, supra note 1, at 8.

[[\[FN6\]](#Document1zzFN_B6)]{.underline}. Readers should not expect,
and will not find, an exhaustive defense of many of this Article\'s
claims and conclusions. Our goal is to establish the basic premises of
our argument and the conclusions to which they lead. We hope to provide
a framework for a much larger project, where we and others defend those
premises and conclusions. That is the subject of numerous works now in
progress, which we cite to loosely by working title.

[[\[FN7\]](#Document1zzFN_B7)]{.underline}. Robert Cooter & Thomas Ulen,
Law and Economics 10-11 (3d ed. 2000).

[[\[FN8\]](#Document1zzFN_B8)]{.underline}. Richard A. Posner, [[Social
Norms, Social Meaning and Economic Analysis of Law: A Comment, 27 J.
Legal Stud. 553, 560
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1458&FindType=Y&ReferencePositionType=S&SerialNum=0109609232&ReferencePosition=560)]{.underline}.

[[\[FN9\]](#Document1zzFN_B9)]{.underline}. Lee Ross & Richard E.
Nisbett, The Person and the Situation 53 (1991).

[[\[FN10\]](#Document1zzFN_B10)]{.underline}. See, e.g., supra text
accompanying note 7 (noting the basic assumptions of legal economists).

[[\[FN11\]](#Document1zzFN_B11)]{.underline}. Cf. Richard Posner, The
Sociology of the Sociology of Law: A View from Economics, 2 Euro J.L. &
Econ. 265 (1995) (claiming to use sociological methodologies to analyze
and criticize sociological legal theories, but failing to apply the same
methods to an analysis of Law and Economics).

[[\[FN12\]](#Document1zzFN_B12)]{.underline}. By \"legal economists,\"
we mean scholars in economics departments and, more commonly, in law
schools who apply neoclassical economics to law and law-related issues.

[[\[FN13\]](#Document1zzFN_B13)]{.underline}. See generally Cooter &
Ulen, supra note 7, at 3 (identifying law and economics as useful to
lawmakers when evaluating policy); Richard A. Posner, Economic Analysis
of Law 21-22 (4th ed. 1992) (providing a history of the law and
economics movement) \[hereinafter Posner, Economic Analysis of Law\];
Richard Posner, Frontiers of Legal Theory 1-2 (2001) \[hereinafter
Posner, Frontiers\] (examining the contributions of other disciplines to
the understanding and improvement of law, including economics); Richard
Posner, Some Uses and Abuses of Economics in Law, 46 U. Chi. L. Rev. 281
(1979) \[hereinafter Posner, Uses and Abuses\] (explaining the
applications and incorrect uses of law and economics).

[[\[FN14\]](#Document1zzFN_B14)]{.underline}. See infra text
accompanying notes 66-81 (describing widely held presumptions regarding
the \"marketplace of ideas\").

[[\[FN15\]](#Document1zzFN_B15)]{.underline}. See, e.g., W. Kip Viscusi,
Smoking: Making the Risky Decision 14 (1992) (\"By adopting a policy
approach that utilizes the choice process to promote market competition
for safer cigarettes, we could better foster individual health and
welfare.\"); George L. Priest, [[Can
Absolute](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=101266&FindType=Y&ReferencePositionType=S&SerialNum=0101351617&ReferencePosition=263)]{.underline}
[[Manufacturer Liability Be Defended?, 9 Yale J. on Reg. 237, 263
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=101266&FindType=Y&ReferencePositionType=S&SerialNum=0101351617&ReferencePosition=263)]{.underline}
(\"The great virtue of the economic approach to the study of the law is
that it attempts to isolate data that bear on conflicting theories to
allow a discerning reader to judge between them. I encourage \[my
critics\] to turn their prodigious energies to the discovery of such
data.\"); cf. Posner, supra note 11, at 275 (\"I am sure that economic
analysts of law would be\...generous to any sociologists of law who
wanted to borrow some of the theoretical or empirical tools of economics
to illuminate sociological topics.\").

[[\[FN16\]](#Document1zzFN_B16)]{.underline}. George L. Priest, Comment,
The [[Best Evidence of the Effect of Products Liability Law on the
Accident Rate: Reply, 91 Yale L.J. 1386, 1386
(1982)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&ReferencePositionType=S&SerialNum=0102597732&ReferencePosition=1386)]{.underline}.

[[\[FN17\]](#Document1zzFN_B17)]{.underline}. Id.; see also id. at 1388
(\"Whitford misconceives the nature of scientific inquiry.\").

[[\[FN18\]](#Document1zzFN_B18)]{.underline}. Id. at 1400 (footnotes
omitted).

[[\[FN19\]](#Document1zzFN_B19)]{.underline}. We do not mean to suggest
that the humanity of legal economists should come as news. We mean only
to point out the obvious, and then to take its implications seriously.
While some critics have demonized or dehumanized legal economists, we
believe that this is wrong in fact and as a critical tactic. See, e.g.,
David Glenn, Calculated Risks: Harvard Professor Says Smokers Know
Exactly What They\'re Doing, Chron. of Higher Educ., May 31, 2002, at
A14 (reporting economist W. Kip Viscusi\'s account of someone reacting
to him as if he were \"Darth Vader\"), available at http://
chronicle.com/free/v48/i38/38a01401.htm.

[[\[FN20\]](#Document1zzFN_B20)]{.underline}. See infra Parts II, VI.C
(describing in greater detail much of the social psychological evidence
regarding this attributional bias); see also Susan T. Fiske & Shelley E.
Taylor, Social Cognition 67-86 (1991) (discussing the fundamental
attribution error, defined as a \"bias in social perception\" whereby a
person\'s behavior is attributed to \"her own dispositional qualities,
rather than to situational factors\"); Ziva Kunda, Social Cognition:
Making Sense of People 430 (1999) (noting that participants in
psychological studies routinely make the fundamental attribution error
by \"underestimat\[ing\] the extent to which behavior is shaped by the
constraints of the situation and overestimat\[ing\] the extent to which
it is shaped by people\'s underlying dispositions\"); Ross & Nisbett,
supra note 9, at 4 (\"People\'s inflated belief in the importance of
personality traits and dispositions, together with their failure to
recognize the importance of situational factors in affecting behavior,
has been termed the \'fundamental attribution error.\"\'); supra
quotation accompanying note 9. See generally Daniel T. Gilbert & Patrick
S. Malone, The Correspondence Bias, 117 Psychol. Bull. 21 (1995)
(providing an intellectual history of the fundamental attribution
error\--or correspondence bias\--and a description of some of its causes
and limits).

[[\[FN21\]](#Document1zzFN_B21)]{.underline}. Kunda, supra note 20, at
429.

[[\[FN22\]](#Document1zzFN_B22)]{.underline}. Philip G. Zimbardo &
Michael Leippe, The Psychology of Attitude Change and Social Influence
93 (1991).

[[\[FN23\]](#Document1zzFN_B23)]{.underline}. Id. Daniel Gilbert and
Patrick Malone also note that:

Three decades of research in social psychology have shown that many of
the mistakes people make are of a kind: When people observe behavior,
they often conclude that the person who performed the behavior was
predisposed to do so\--that the person\'s behavior corresponds to the
person\'s unique dispositions\--and they draw such conclusions even when
a logical analysis suggests they should not.

Gilbert & Malone, supra note 20, at 21.

[[\[FN24\]](#Document1zzFN_B24)]{.underline}. Other cognitive biases
with related origins include well-known heuristics such as availability
and hindsight bias.

[[\[FN25\]](#Document1zzFN_B25)]{.underline}. See Fiske & Taylor, supra
note 20, at 67 (identifying the \"fundamental attribution error\" as a
tendency \"to attribute another person\'s behavior to her own
dispositional qualities, rather than to situational factors\"). For
other possible or partial explanations of the fundamental attribution
error, see infra Parts II, VI.C.

[[\[FN26\]](#Document1zzFN_B26)]{.underline}. Fiske & Taylor, supra note
20, at 67.

[[\[FN27\]](#Document1zzFN_B27)]{.underline}. Ziva Kunda, The Case for
Motivated Reasoning, 108 Psychol. Bull. 480, 480 (1990).

[[\[FN28\]](#Document1zzFN_B28)]{.underline}. Kunda, supra note 20, at
3.

[[\[FN29\]](#Document1zzFN_B29)]{.underline}. Id. at 220-23.

[[\[FN30\]](#Document1zzFN_B30)]{.underline}. Id.; see also Jon Hanson &
David Yosifon, The Situational Character: A Critical Realist Perspective
on the Human Animal (unpublished manuscript, on file with authors)
(reviewing key studies and summarizing evidence on role of motivation).

[[\[FN31\]](#Document1zzFN_B31)]{.underline}. See Hanson & Yosifon,
supra note 30 (describing group-affirming motive); see also Fiske &
TAylor, supra note 20, at 80-81 (noting that the terms \"ethnocentric\"
or \"group-serving bias\" refer to \"the tendency of in-group members to
attribute internal causes to positive in-group behavior and negative
out-group behavior and to attribute negative in-group behavior and
positive out-group behavior to external causes\").

[[\[FN32\]](#Document1zzFN_B32)]{.underline}. See infra text
accompanying notes 106-10 (discussing the actor-observer bias).

[[\[FN33\]](#Document1zzFN_B33)]{.underline}. In responding to these
observations, we suspect that many legal economists would stress that
they too are moved by selfish dispositions to advance their own
interests, financial and otherwise. Our point is that they seem not to
begin with that presumption and build from there, but instead experience
themselves and their ideas as marching beneath the pennant of scientific
truth and, in all cases, take a dispositionist view of their own (and
others\') behavior.

[[\[FN34\]](#Document1zzFN_B34)]{.underline}. Fred R. Shapiro, The
[[Most-Cited Law Review Articles Revisited, 71 Chi.-Kent L. Rev. 751
(1996)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1114&FindType=Y&SerialNum=0106992159)]{.underline}.

[[\[FN35\]](#Document1zzFN_B35)]{.underline}. [[Id. at
751-59.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0106992159)]{.underline}

[[\[FN36\]](#Document1zzFN_B36)]{.underline}. Cf. Lawrence M. Friedman,
A History of American Law 693 (2d ed. 1985) (\"The \'law and economics\'
school was widely attacked as right-wing and excessively narrow; but it
had gained, by the 1980s, a significant place in legal teaching,
thought, and research.\").

[[\[FN37\]](#Document1zzFN_B37)]{.underline}. See, e.g., Bruce Ackerman,
Reconstructing American Law 45 n.16 (1984) (\"\[S\]upporters and
opponents rightly suspect that there is more to \'law and economics\'
than disinterested science\....\"); Bruce A. Ackerman, [[Law, Economics,
and the Problem of Legal Culture, 1986 Duke L.J. 929, 929-34, 946
(1986)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1133&FindType=Y&ReferencePositionType=S&SerialNum=0101984078&ReferencePosition=929)]{.underline}
(arguing that legal academics need to adapt their rhetoric to subsume
law and economics and thereby \"put law and economics in its place\").

[[\[FN38\]](#Document1zzFN_B38)]{.underline}. See, e.g., Jules L.
Coleman, Markets, Morals and the Law 67-150 (1988) (criticizing several
branches of \"the new law-and-economics\" school); Jules L. Coleman, The
Economic Analysis of Law, in Ethics, Economics, and the Law: Nomos XXIV
83, 100-01 (J. Roland Pennock & John W. Chapman eds., 1982) (critiquing
the notion of efficiency central to the law and economics approach);
Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8
Hofstra L. Rev. 509, 526-40 (1980) (evaluating and rejecting Posner\'s
concept of \"wealth maximization\"); Jules Coleman, The [[Normative
Basis of Economic Analysis: A Critical Review of Richard Posner\'s The
Economics of Justice, 34 Stan. L. Rev. 1105, 1106
(1982)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&ReferencePositionType=S&SerialNum=0105120985&ReferencePosition=1106)]{.underline}
(book review) (arguing that \"neither of Posner\'s arguments, nor any
plausible available arguments, justify pursuing certain versions of
efficiency\").

[[\[FN39\]](#Document1zzFN_B39)]{.underline}. See, e.g., Ronald M.
Dworkin, Is Wealth a Value?, 9 J. Legal Stud. 191, 191 (1980) (\"In this
essay I consider and reject a political theory about law often called
the economic analysis of law.\"); Ronald Dworkin, Why Efficiency? A
Response to Professors Calabresi and Posner, 8 Hofstra L. Rev. 563, 563
(1980) (criticizing \"economists of law who contemplate trade-offs\"
between justice and efficiency).

[[\[FN40\]](#Document1zzFN_B40)]{.underline}. See, e.g., Grant Gilmore,
The Ages of American Law 100 (1977) (\"So far as we have been able to
learn, there are no recurrent patterns in the course of human events; it
is not possible to make scientific statements about history, sociology,
economics\--or law.\").

[[\[FN41\]](#Document1zzFN_B41)]{.underline}. Kelman writes:

\[M\]uch of the concrete institutional study done in the Law and
Economics movement, particularly by those whose work has been readily
integrable into mainstream law classroom teaching, is biased, not
because of an inevitable social theoretical tilt but rather either
because the people doing the work explicitly and substantively favor
certain traditional right-wing positions that they have argued for
rather disingenuously or because, in their frenzied desire to
demonstrate the possibility of an economistically governed utopia, they
distort or deny the insuperable difficulties legal institutions would
have in overcoming the problem of \"otherness,\" the problem that
selfish people will inevitably harm others, no matter how we try to
channel their selfishness.

Mark Kelman, A Guide to Critical Legal Studies 151 (1987); see also Mark
Kelman, Consumption Theory, Production Theory, and Ideology in the Coase
Theorem, 52 S. Cal. L. Rev. 669, 673 (1979) (arguing that the Coase
Theorem \"is simply wrong as a purportedly empirical hypothetical about
whether liability rules would affect substantive activity as well as
distribution\").

[[\[FN42\]](#Document1zzFN_B42)]{.underline}. See, e.g., [[Duncan
Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33
Stan. L. Rev. 387, 387-88
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=33STANLREV387&FindType=Y&ReferencePositionType=S&ReferencePosition=387)]{.underline}
(arguing that \"liberal law and economics\" is incoherent when applied
to the whole system of private law rules).

[[\[FN43\]](#Document1zzFN_B43)]{.underline}. See, e.g., Frank I.
Michelman, Ethics, Economics, and the Law of Property, in Ethics,
Economics, and the Law: Nomos XXIV 3, 3-4 (J. Roland Pennock & John W.
Chapman eds., 1982) (asserting that the presumptive efficiency thesis is
false); Duncan Kennedy & Frank Michelman, Are Property and Contract
Efficient?, 8 Hofstra L. Rev. 711, 714 (1980) (arguing that \"the
efficiency of private property and free contract cannot be deduced from
the sole factual supposition of rational maximizing behavior\").

[[\[FN44\]](#Document1zzFN_B44)]{.underline}. See, e.g., Donald N.
McCloskey, The [[Rhetoric of Law and Economics, 86 Mich. L. Rev. 752,
753-54
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&ReferencePositionType=S&SerialNum=0102032217&ReferencePosition=753)]{.underline}
(presenting law as a primarily rhetorical realm where arguments dominate
that are at odds with the mathematical and logical approach of
economics). Donald McCloskey subsequently changed names to Deirdre
McCloskey.

[[\[FN45\]](#Document1zzFN_B45)]{.underline}. See, e.g., Martha C.
Nussbaum, [[Flawed Foundations: The Philosophical Critique of (a
Particular Type of) Economics, 64 U. Chi. L. Rev. 1197, 1198
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0108527884&ReferencePosition=1198)]{.underline}
(arguing that philosophical arguments cast doubts on the foundations of
law and economics theory).

[[\[FN46\]](#Document1zzFN_B46)]{.underline}. See, e.g., Richard H.
Pildes, The [[Unintended Cultural Consequences of Public Policy: A
Comment on the Symposium, 89 Mich. L. Rev. 936, 936-40
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&ReferencePositionType=S&SerialNum=0101391470&ReferencePosition=936)]{.underline}
(explaining that public policy requires more than a simple cost-benefit
analysis).

[[\[FN47\]](#Document1zzFN_B47)]{.underline}. See, e.g., Margaret Jane
Radin, Contested Commodities 1-15 (1996) (critiquing the universal
commodification of important aspects of human life).

[[\[FN48\]](#Document1zzFN_B48)]{.underline}. See, e.g., Jeanne L.
Schroeder, The [[End of the Market: A Psychoanalysis of Law and
Economics, 112 Harv. L. Rev. 483, 491
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&ReferencePositionType=S&SerialNum=0110279162&ReferencePosition=491)]{.underline}
(\"I do not believe law can be reduced to even the most sophisticated
economics\.... It is my judgment \[that\]\.... the ideal of the perfect
market is\...inadequate to the task of making concrete legal policy
recommendations.\").

[[\[FN49\]](#Document1zzFN_B49)]{.underline}. See, e.g., Joseph William
Singer, [[Something Important in Humanity, 37 Harv. C.R.-C.L. L. Rev.
103, 105-08
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1151&FindType=Y&ReferencePositionType=S&SerialNum=0288024002&ReferencePosition=105)]{.underline}
(criticizing welfare economics for discounting fairness as a factor in
normative analysis).

[[\[FN50\]](#Document1zzFN_B50)]{.underline}. See, e.g., Mark Tushnet,
\"[[Everything Old is New Again\": Early Reflections on the \"New
Chicago School,\" 1998 Wis. L. Rev. 579,
581-82](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1290&FindType=Y&ReferencePositionType=S&SerialNum=0109028451&ReferencePosition=581)]{.underline}
(asserting that traditional law and economics has \"become stale\").

[[\[FN51\]](#Document1zzFN_B51)]{.underline}. See C. Edwin Baker,
Starting Points in Economic Analysis of Law, 8 Hofstra L. Rev. 939,
948-53 (1980) (asserting that \"Posner\'s wealth-maximization standard
has seemed normatively ungrounded\" and that \"Posner\'s inability to
identify normatively appropriate starting points leaves him unable to
demonstrate that his wealth-maximization\...criterion is either
appealing or workable\"); James R. Hackney, Jr., Law and Neoclassical
Economics Theory: A Critical History of the Distribution/Efficiency
Debate, 32 J. Socio-Econ. 361, 370-79 (recounting various critiques of
law and economics scholars\' focus on wealth-maximization as the basis
for evaluating societal utility); Duncan Kennedy, Law-and-Economics from
the Perspective of Critical Legal Studies, in 2 The New Palgrave
Dictionary of Economics and the Law 465, 471 (Peter Newman ed., 1998)
(criticizing law and economics theorists for \"manipulating the
apparently value neutral, technocratic discourse of efficiency to
support their preferred outcomes\").

[[\[FN52\]](#Document1zzFN_B52)]{.underline}. See generally Ronald Chen
& Jon Hanson, Distribution Versus Efficiency: Missing the Taste of the
Pie (May 19, 2003) (unpublished manuscript, on file with authors)
(describing history of \"distribution versus efficiency\" debate and
some ways in which legal economists have avoided or postponed addressing
profound criticisms of their approach).

[[\[FN53\]](#Document1zzFN_B53)]{.underline}. Arthur Allen Leff, Law
and, 87 Yale L.J. 989, 1007-08 (1978).

[[\[FN54\]](#Document1zzFN_B54)]{.underline}. Morton J. Horwitz, Law and
Economics: Science or Politics?, 8 Hofstra L. Rev. 905, 905 (1980).

[[\[FN55\]](#Document1zzFN_B55)]{.underline}. Id.

[[\[FN56\]](#Document1zzFN_B56)]{.underline}. Posner, supra note 11, at
274.

[[\[FN57\]](#Document1zzFN_B57)]{.underline}. Richard Posner\'s seminal
book, Economic Analysis of Law, supra note 13, is now in its sixth
edition. The fifth edition, published in 1998, recently won Harvard Law
School\'s prestigious Ames Prize. Press Release, Harvard Law School,
Judge Richard Posner Presented 2003 Ames Prize (Mar. 7, 2003), at
http://www.law.harvard.edu/news/2003/03/07_ames.php. In fact, law and
economics has its own Nutshell and two encyclopedias devoted to it.
Jeffrey L. Harrison, Law and Economics in a Nutshell (2d ed. 2000);
Encyclopedia of Law and Economics (Boudewijn Bouckaert & Gerrit De
Geewst eds., 2000); The New Palgrave Dictionary of Economics and the Law
(Peter Newman ed., 1998).

[[\[FN58\]](#Document1zzFN_B58)]{.underline}. J.S. Sterling, The State
of American Sociology of Law, in Developing Sociology of Law: A
World-Wide Documentary Enquiry 805, 809 (V. Ferrari ed., 1990).

[[\[FN59\]](#Document1zzFN_B59)]{.underline}. Marc Galanter & Mark Alan
Edwards, [[Introduction: The Path of the Law Ands, 1997 Wis. L. Rev.
375,
378](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1290&FindType=Y&ReferencePositionType=S&SerialNum=0107994596&ReferencePosition=378)]{.underline}.

[[\[FN60\]](#Document1zzFN_B60)]{.underline}. Id.

[[\[FN61\]](#Document1zzFN_B61)]{.underline}. Id. at 381.

[[\[FN62\]](#Document1zzFN_B62)]{.underline}. Cooter & Ulen, supra note
7, at 2.

[[\[FN63\]](#Document1zzFN_B63)]{.underline}. See W. Bradley Wendel,
[[Mixed Signals: Rational-Choice Theories of Social Norms and the
Pragmatics of Explanation, 77 Ind. L.J. 1, 29-30
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1167&FindType=Y&ReferencePositionType=S&SerialNum=0287821599&ReferencePosition=29)]{.underline}
(stating that \"scholars in other disciplines often object to the
imperialist tendencies of economic analysis, because of this tendency to
translate the explanatory terms employed by humanistic and social
science disciplines into a few concepts that are deemed admissible in
economics, such as \'preferences\' and \'expected utility\"\'). This
characterization is not new. See, e.g., Economic Imperialism: The
Economic Method Applied outside the Field of Economics, at vii (Gerard
Radnitzky & Peter Bernholz eds., 1987) (attempting to show that
economics can explain the behavior of living systems, despite critics
who accuse economists of \"disciplinary imperialism\"); David M. Krebs,
A Course in Microeconomic Theory 9 (1990) (\"Economists are well-known
among social scientists as imperialists in the sense that economists
attempt to reduce everything to economic notions and paradigms.\").

[[\[FN64\]](#Document1zzFN_B64)]{.underline}. Posner, supra note 11, at
275 (citations omitted); see also Posner, Frontiers, supra note 13, at
35 (\"It is not merely an ivory-towered enterprise, especially in the
United States, where the law and economics movement has influenced legal
reform in such fields as antitrust law, the regulation of public
utilities and common carriers, environmental regulation, the calculation
of damages in personal injury suits\....\").

[[\[FN65\]](#Document1zzFN_B65)]{.underline}. See Hanson & Yosifon,
supra note 30 (discussing motivations relating to an individual\'s group
and system affiliations).

[[\[FN66\]](#Document1zzFN_B66)]{.underline}. To be clear, we do not
believe that perceptive critical scholars (such as Mort Horwitz)
consciously think to themselves that the playing field of legal theory
is a purely meritocratic one. Our point is that even system-sensitive
critical legal scholars implicitly reveal an unexamined trust in current
institutional arrangements (or perhaps situational pressures
discouraging the articulation of distrust), as evinced by the fact that
such biases are rarely even hinted at in writing about what moves
current intellectual trends in legal academia.

[[\[FN67\]](#Document1zzFN_B67)]{.underline}. Cooter & Ulen, supra note
7.

[[\[FN68\]](#Document1zzFN_B68)]{.underline}. Id. at 3.

[[\[FN69\]](#Document1zzFN_B69)]{.underline}. Thomas S. Ulen, [[Firmly
Grounded: Economics in the Future of the Law, 1997 Wis. L. Rev. 433,
434](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1290&FindType=Y&ReferencePositionType=S&SerialNum=0107994599&ReferencePosition=434)]{.underline}
(footnotes omitted).

[[\[FN70\]](#Document1zzFN_B70)]{.underline}. George J. Stigler, Memoirs
of an Unregulated Economist 8 (1988).

[[\[FN71\]](#Document1zzFN_B71)]{.underline}. Posner, Economic Analysis
of Law, supra note 13, at 26; see also Posner, supra note 11, at 273
(\"The sheer modesty\...of American sociology of law has hurt the field
in its competition with critical legal studies, feminist jurisprudence,
political theory, economic analysis of law, and even law and literature
for a place at the legal-studies high table.\").

[[\[FN72\]](#Document1zzFN_B72)]{.underline}. Posner, supra note 11, at
273. Elsewhere, Judge Posner argues that law and economics has benefited
from \"\[r\]apid increases in recent decades in the scope and rigor of
microeconomics (due partly to the increased incorporation of game theory
into economics).\" Posner, Frontiers, supra note 13, at 4.

[[\[FN73\]](#Document1zzFN_B73)]{.underline}. Posner has been repeating
the same basic historiographical thumbnail sketch of the movement in his
writings for decades. See, e.g., Posner, Frontiers, supra note 13, at 31
(\"What I try to do\... in this chapter is to anchor a brief description
of the field by reference to two of its most illustrious progenitors,
Jeremy Bentham and (briefly) Gary Becker\....\"). For other Posnerian
renditions of this sketch, see, for example, Posner, Uses and Abuses,
supra note 13, at 281-84 (1979), where he discusses the role of Jeremy
Bentham, Gary Becker, and others in the development of law and
economics. The same story unfolds in his chapter on the history of law
and economics in his Economic Analysis of Law, supra note 13, at 21-28.

[[\[FN74\]](#Document1zzFN_B74)]{.underline}. Cf. Julie A. Nelson,
Feminism, Objectivity and Economics, at xi (1996) (\"The mainstream
academic and professional discipline of economics\... is built around
distinctly masculine-based notions\....\"); Marianne A. Ferber, The
Study of Economics: A Feminist Critique, 85 Am. Econ. Rev. 357 (1995)
(describing the male-centric bias contained in economics scholarship);
Julie A. Nelson, The Study of Choice or the Study of Provisioning?
Gender and the Definition of Economics, in Beyond Economic Man: Feminist
Theory and Economics 23, 33 (Marianne A. Ferber & Julie A. Nelson eds.,
1993) (\"Feminist theory suggests that the Cartesian divisions between
rationality and embodiment, and between man and nautre, reflect a
masculinist and separate view of the world \....\"); Diana Strassman,
Not a Free Market: The Rhetoric of Disciplinary Authority in Economics,
in Beyond Economic Man: Feminist Theory and Economics, supra, at 54,
56-65 (using \"stories\" to illustrate the present narrowness of
explanatory accounts in economics, which is due to the exclusion of the
woman\'s perspective when formulating theories).

[[\[FN75\]](#Document1zzFN_B75)]{.underline}. See supra text
accompanying notes 16-18 (quoting George Priest for his claim that law
and economics, more so than other fields of legal scholarship, is
grounded in scientific reasoning).

[[\[FN76\]](#Document1zzFN_B76)]{.underline}. See supra text
accompanying notes 54-55 (recounting Horwitz\'s prediction that law and
economics would be only a short-lived \"fad\" in legal academia).

[[\[FN77\]](#Document1zzFN_B77)]{.underline}. For example, at two
Harvard Law School panel discussions on the future of progressive legal
theory, panelists had little to say about the underlying sources of, or
possible solutions to, the fact that progressive legal scholarship has
had comparatively little influence over legal theory or policy while law
and economics has grown dominant. See Ari Z. Weisbard, Professors Debate
Law, Economics, Harv. Crimson, Mar. 20, 2002, http://
www.thecrimson.com/article.aspx?ref=180698 (recounting a progressive
panelist\'s statement that \"our institutions are being reformed
everyday\" by law and economics); Press Release, Harvard Law School, HLS
Faculty Panel to Explore Future of Progressive Legal Scholarship (Feb.
22, 2002), at http://
www.law.harvard.edu/news/2002/02/22_scholarship.php (describing the
participants and sponsors of two panels discussing progressive legal
scholar-ship). Panelists included distinguished progressive scholars
with an acute awareness of legal theoretic trends and historical
sensitivity such as Christine Desan, Kent Greenfield, Janet Halley,
David Kennedy, Duncan Kennedy, Mort Horwitz, Frank Michelman, and Joe
Singer. In our view, the lack of a theoretical explanation for these
trends reflects an implicit (and, we think, unexamined) faith on the
part of even the most institutionally and politically sensitive scholars
in the academic process as basically fair and self-correcting. One goal
of this project is to provide an alternative approach to assessing legal
theoretic trends.

[[\[FN78\]](#Document1zzFN_B78)]{.underline}. See Hanson & Yosifon,
supra note 30 (providing a more detailed discussion of the \"just world
hypothesis\" and \"system-affirming motives\"); infra notes 215, 635,
and 686 and accompanying text (briefly discussing related motives).

[[\[FN79\]](#Document1zzFN_B79)]{.underline}. Posner, supra note 11, at
274.

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

[[\[FN81\]](#Document1zzFN_B81)]{.underline}. See Hanson & Yosifon,
supra note 30 (discussing that tendency in greater detail and more
general social psychological findings regarding inter-and intra-group
motivations); infra notes 689-90 and accompanying text (summarizing the
human tendency to see bias in others that we do not see in ourselves).

[[\[FN82\]](#Document1zzFN_B82)]{.underline}. George J. Stigler & Gary
S. Becker, De Gustibus Non Est Disputandum, 67 Am. Econ. Rev. 76, 76
(1977).

[[\[FN83\]](#Document1zzFN_B83)]{.underline}. Stigler, supra note 70, at
132, 133, 146.

[[\[FN84\]](#Document1zzFN_B84)]{.underline}. See, e.g., David Arkush &
Jon Hanson, Law and Emotion (unpublished manuscript, on file with
authors) (describing the role and influence of emotion, affect, and
feelings, and assessing their relevance for law and legal theory); Chen
& Hanson, supra note 52 (focusing on role and effects of schemas,
scripts, stereotypes, and other knowledge structures and their relevance
for law and legal theory); Ronald Chen & Jon Hanson, The Illusion of Law
I: The Legitimating Schemas of Modern Policy and Corporate Law (May 31,
2003) (unpublished manuscript, on file with authors) (describing the
biased schemas of modern policymaking and corporate law and the
interests they serve) \[hereinafter Chen & Hanson, Illusion of Law I\];
Jon Hanson, Ana Reyes & Daniel Schlanger, Law and Attribution
(unpublished manuscript, on file with authors) (examining how people
make attributions of causation, responsibility, and blame, and
describing the relevance of attribution theory for law and legal
theory); Hanson & Yosifon, supra note 30 (providing a fulsome overview
of the social psychological and social cognition literatures, and, based
on that, offering an alternative conception of the human animal to the
one imagined in law and legal theory, and considering some of the
implications of that new conception for law and legal theory).

[[\[FN85\]](#Document1zzFN_B85)]{.underline}. See Zimbardo & Leippe,
supra note 22, at 67-68 (1991) (\"Most said that no one would go all the
way to 450 volts.\").

[[\[FN86\]](#Document1zzFN_B86)]{.underline}. Id. at 65-74 (summarizing
Stanley Milgram\'s obedience experiments); see also Stanley Milgram,
Obedience to Authority 27-31 (1974) \[hereinafter Milgram, Obedience to
Authority\] (\"Each one of the 110 respondents sees himself disobeying
the experimenter at some point.\"); Stanley Milgram, Some Conditions of
Obedience and Disobedience to Authority, 18 Hum. [[Rel. 57, 72-73
(1965)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=RELNO57&FindType=Y&ReferencePositionType=S&ReferencePosition=73)]{.underline}
\[hereinafter Milgram, Some Conditions of Obedience\] (\"The
psychiatrists predicted that most subjects would not go beyond the tenth
shock level \[150 volts\]\....\").

[[\[FN87\]](#Document1zzFN_B87)]{.underline}. See Milgram, Some
Conditions of Obedience, supra note 86, at 60 (\"Pilot studies\... were
completed in the winter of 1960.\").

[[\[FN88\]](#Document1zzFN_B88)]{.underline}. See Stanley Milgram,
Behavioral Study of Obedience, 67 J. Abnormal & Soc. Psychol. 371,
373-74 (1963) (explaining the basic design of Milgram\'s experiments).

[[\[FN89\]](#Document1zzFN_B89)]{.underline}. See id. at 372 (explaining
that in most versions of the experiment the \"learner\'s\" responses
were tape recorded and played over a sound system in the \"teacher\'s\"
room).

[[\[FN90\]](#Document1zzFN_B90)]{.underline}. See Zimbardo & Leippe,
supra note 22, at 68 (\"Milgram himself foresaw little total
obedience.\").

[[\[FN91\]](#Document1zzFN_B91)]{.underline}. See Milgram, Obedience to
Authority, supra note 86, at 60 tbl.3 (identif-ying these numbers as
resulting from a base-line condition in which the \"learner\" responded
with more than just cries of anguish, including voicing concerns of a
heart problem).

[[\[FN92\]](#Document1zzFN_B92)]{.underline}. See generally Hannah
Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1994);
Daniel Jonah Goldhagen, Hitler\'s Willing Executioners: Ordinary Germans
and the Holocaust (1996); Ervin Staub, The Roots of Evil: The
Psychological and Cultural Origins of Genocide (1992); Philip G.
Zimbardo, The Psychology of Evil, 5 Eye on Psi Chi 16 (2000), http://
www.psichi.org/pubs/articles/article_72.asp.

[[\[FN93\]](#Document1zzFN_B93)]{.underline}. As Milgram learned in his
experiment:

With numbing regularity good people were seen to knuckle under the
demands of authority and perform actions that were callous and severe.
Men who are in everyday life responsible and decent were seduced by the
trappings of authority, by the control of their perceptions, and by the
uncritical acceptance of the experimenter\'s definition of the
situation, into performing harsh acts\....

\...A substantial proportion of people do what they are told to do,
irrespective of the content of the act and without limitations of
conscience, so long as they perceive that the command comes from a
legitimate authority.

Milgram, Some Conditions of Obedience, supra note 86, at 74-75.

[[\[FN94\]](#Document1zzFN_B94)]{.underline}. Milgram conducted at least
twenty-one different variations on the initial experiment. See Milgram,
Obedience to Authority, supra note 86, at 207 n.6 (\"\[Nervousness\]
data \[of the subjects\] are available for twenty-one experimental
conditions\....\").

[[\[FN95\]](#Document1zzFN_B95)]{.underline}. See id. at 119, 121-22
(concluding that \"any factor that will create distance between the
subject and the victim\[\] will lead to a reduction of strain on the
participant and thus lessen disobedience\").

[[\[FN96\]](#Document1zzFN_B96)]{.underline}. See id. at 93-97 (finding
that despite authority \"hovering in the background,\" experiments in
which an ordinary man gave the orders resulted in a \"sharp drop in
compliance\" to twenty percent administering the maximum shock).

[[\[FN97\]](#Document1zzFN_B97)]{.underline}. Id. at 68-69.

[[\[FN98\]](#Document1zzFN_B98)]{.underline}. The discrepancy also
reveals the extent to which even psychologists frequently fail to
anticipate how situation will move their subjects. See Jerry Fodor, Why
We Are So Good at Catching Cheaters, 75 Cognition 29, 32 (2000) (\"When
subjects appear to behave peculiarly in an experimental task, that is
not infrequently because they are sensitive to a material\[\] variable
that the experimenter has failed to notice.\").

[[\[FN99\]](#Document1zzFN_B99)]{.underline}. Milgram\'s research
reflects what many, including Milgram, noticed about Nazi Germany: the
ease with which situational influence can lead humans to engage in
atrocious, morally reprehensible, individual acts. Recent primary
research indicates that \"ordinary men\"\--those who previously led
regular, civilized lives\--overwhelmingly accepted the Nazi regime\'s
call to genocide despite an explicitly available \"choice\" to evade the
action. See Christopher Browning, Ordinary Men 1-3, 55-57
(HarperPerennial 1998) (1992) (reporting how a Nazi battalion commander
in World War II Poland allowed \"any of the older men who did not feel
up to the task\" of participating in a massacre to \"step out\" and be
given an alternative assignment); id. at 64-65 (describing how during
one execution in the Polish woods \"anyone who could not take it any
longer could report\" and be excused); id. at 74 (reporting that despite
the opportunity to drop out, less then twenty percent of the Nazi
policemen evaded the killing of 1500 people\--an entire town). But see
id. at 65-70, 75 (relating the stories of German policemen who chose not
to kill, several of whom felt no need to impress their comrades because
of financial security and a lack of career military ambitions). The
author of Ordinary Men, Christopher Browning, dispositionalized the
massacre by focusing on those who avoided the situational influence\--or
responded to a less prominent situation\--despite the glaring fact that
so few managed to do so.

[[\[FN100\]](#Document1zzFN_B100)]{.underline}. See Hanson & Yosifon,
supra note 30 (reviewing responses of economists and legal economists to
social psychological evidence that conflicts with the rational actor
model).

[[\[FN101\]](#Document1zzFN_B101)]{.underline}. Zimbardo & Leippe, supra
note 22, at 93.

[[\[FN102\]](#Document1zzFN_B102)]{.underline}. William Shakespeare, As
You Like It act 2, sc. 7.

[[\[FN103\]](#Document1zzFN_B103)]{.underline}. See Hanson & Yosifon,
supra note 30.

[[\[FN104\]](#Document1zzFN_B104)]{.underline}. See sources cited supra
note 84.

[[\[FN105\]](#Document1zzFN_B105)]{.underline}. By \"dispositionist\" or
\"situationist,\" we mean to indicate the attributional perception, and
by \"dispositional\" and \"situational\" we mean to indicate the
attributional truth of the matter. Thus, describing people as
situational dispositionists is one way of saying that they are subject
to the fundamental attribution error.

[[\[FN106\]](#Document1zzFN_B106)]{.underline}. Of the thirty-three
people we asked, twenty-four of them provided answers of between zero
and one hundred feet. Nine gave answers that revealed that they
considered the movement of the plane: more than fifty miles. But of
those nine, seven indicated that they considered that movement because
they were looking for the \"trick,\" and that it took them some time to
figure out the second answer. It bears mentioning that even the
respondents in the first group appeared to be looking for the trick,
asking questions about what they had missed, but were still unable to
perceive the plane\'s movement when asked how far the man had
\"traveled\" in fifteen minutes. Within the seemingly fixed environment
of the cabin, one individual\'s movement was far more salient than the
(forgotten) progress of the plane itself.

[[\[FN107\]](#Document1zzFN_B107)]{.underline}. The Earth\'s average
orbital velocity is 18.5 miles per second. See Scott Wilber, How Many
Miles Does the Earth Travel in Space Each Day?, Physlink.com: Physics &
Astronomy Online, at http://
www.physlink.com/Education/AskExperts/ae548.cfm (last visited Oct. 25,
2003) (stating that the \"entire solar system, including the Earth,
moves through the cosmic background\... for a total of 32 million miles
per day\"). In one minute, the elderly man travels 1110 miles due to the
Earth\'s orbital velocity; in fifteen minutes, he travels 16,650 miles.
Factoring in background movement\-- 22,222 miles per minute\--results in
350,000 miles in fifteen minutes.

[[\[FN108\]](#Document1zzFN_B108)]{.underline}. Ross & Nisbett, supra
note 9, at 125.

[[\[FN109\]](#Document1zzFN_B109)]{.underline}. See supra Part II.A
(suggesting that a threat of serious bodily harm would likely cause one
to inflict pain on another despite a disposition against such an
action).

[[\[FN110\]](#Document1zzFN_B110)]{.underline}. There are exceptions to
those basic patterns. Most notably, when making attributions about
ourselves we often are more likely to attribute the cause of bad
outcomes or behavior to exterior situational influences. For example, if
we do poorly on an important test, we may be quick to complain about the
distractions in the testing environment or a biased professor who grades
unfairly. Conversely, when things go well for us we have a tendency to
attribute the cause to our own dispositions\--our intelligence,
diligence, etc.\--rather than situational influences. Those patterns in
the actor-observer bias, as the phenomenon has been dubbed by social
psychologists, echo part of our basic claim here, which is that our
behavioral attributions are often motivated. See Emily Pronin et al.,
Understanding Misunderstanding: Social Psychological Perspectives, in
Heuristics and Biases: The Psychology of Intuitive Judgment 636, 653-65
(Thomas Gilovich et al. eds., 2002) (reviewing social psychological
findings concerning the actor-observer bias); see also Fiske & Taylor,
supra note 20, at 72-75 (discussing actor-observer bias). Social
psychologists have identified other limits to our dispositionism. See
infra text accompanying notes 411-41 (discussing cultural influences
over dispositionist and situationist attributions). Of course, even when
we attribute causation to situation, we often only recognize a tiny
portion of the situation. See also infra text accompanying notes 140-45
(describing other limitations to our ability to appreciate the role of
situation).

[[\[FN111\]](#Document1zzFN_B111)]{.underline}. Richard E. Nisbett et
al., Behavior as Seen by the Actor and as Seen by the Observer, 27 J.
Personality & Soc. Psychol. 154, 155 (1973).

[[\[FN112\]](#Document1zzFN_B112)]{.underline}. Id. at 155-56.

[[\[FN113\]](#Document1zzFN_B113)]{.underline}. Id. at 157.

[[\[FN114\]](#Document1zzFN_B114)]{.underline}. Nisbett et al., supra
note 111, at 156-57.

[[\[FN115\]](#Document1zzFN_B115)]{.underline}. Ross & Nisbett, supra
note 9, at 127.

[[\[FN116\]](#Document1zzFN_B116)]{.underline}. See, e.g., Daniel
Kahneman et al., Experimental Tests of the Endowment Effect and the
Coase Theorem, 98 J. Pol. Econ. 1325, 1325 (1990) (declaring that
\"\[c\]ontrary to theoretical expectations, measures of willingness to
accept greatly exceed measures of willingness to pay\").

[[\[FN117\]](#Document1zzFN_B117)]{.underline}. Posner, Economic
Analysis of Law, supra note 13, at 10.

[[\[FN118\]](#Document1zzFN_B118)]{.underline}. Id.

[[\[FN119\]](#Document1zzFN_B119)]{.underline}. Id. at 13.

[[\[FN120\]](#Document1zzFN_B120)]{.underline}. There are arguably other
minor ways in which economists take into account situational
considerations. For instance, they sometimes take into account the role
of collective, as compared to individual, decisions or decisions
regarding uncertain outcomes. But even then, their analyses are
otherwise based on dispositionist assump-tions. A group of people is
usually assumed to act like a set of dispositionally motivated
individuals who are making a choice, and little or no adjustment is made
to consider the situational influence of even various group dynamics.

[[\[FN121\]](#Document1zzFN_B121)]{.underline}. When pushed, they
instruct those who see it otherwise that such \"distributional\"
concerns are not properly the province of either economists or legal
rules. See Chen & Hanson, supra note 52 (recounting Posner\'s argument
that the economic analysis of law does not take in account income
distributional considerations).

[[\[FN122\]](#Document1zzFN_B122)]{.underline}. See, e.g., Cooter &
Ulen, supra note 7, at 23 (treating as axiomatic the downward-sloping
demand curve\--i.e., the notion that \"when the price of x goes up, the
amount of x that the consumer will purchase goes down, and vice
versa\").

[[\[FN123\]](#Document1zzFN_B123)]{.underline}. Gary S. Becker,
Irrational Behavior and Economic Theory, 70 J. Pol. Econ. 1, 4 (1962).

[[\[FN124\]](#Document1zzFN_B124)]{.underline}. Id. at 5.

[[\[FN125\]](#Document1zzFN_B125)]{.underline}. Id. at 7.

[[\[FN126\]](#Document1zzFN_B126)]{.underline}. Id. at 12.

[[\[FN127\]](#Document1zzFN_B127)]{.underline}. Richard Posner is one of
the few legal economists to address it. See Hanson & Yosifon, supra note
30 (reviewing Richard Posner\'s discussion and dismissal of the issue).
Posner recently ridiculed Ronald Coase for suggesting that the insight
might be taken seriously. See Richard A. Posner, Overcoming law 442
(1995) (\"Could Coase believe that some cognitive or psychological
defect prevents us from moving up the ladder of preferred alternatives
in the manner that I described? That misfiring brain cells make us
disregard opportunity cost or fail to disregard sunk costs?
Unlikely.\"). Very recently, however, behavioral economists have
identified several ways in which arbitrary anchors can provide the
illusion of stable preferences and how there can be \"stable demand
curves without stable preferences\" . See generally Dan Ariely, George
Loewenstein & Drazen Prelec, Coherent Arbitrariness: Stable Demand
Curves Without Stable Preferences, 118 Q.J. Econ. 73 (2003).

[[\[FN128\]](#Document1zzFN_B128)]{.underline}. See, e.g., Posner, supra
note 127, at 441-42 (acknowledging the first point, then trivializing it
through brief tautological assertions).

[[\[FN129\]](#Document1zzFN_B129)]{.underline}. See id. at 442
(\"Becker\'s argument is that since consumers have limited budgets, even
irrational consumers will on average purchase less of a good when
\[the\] price rises, because the consumers\' resources will become
depleted sooner.\").

[[\[FN130\]](#Document1zzFN_B130)]{.underline}. Cooter & Ulen, supra
note 7, at 261.

[[\[FN131\]](#Document1zzFN_B131)]{.underline}. Id. at 263.

[[\[FN132\]](#Document1zzFN_B132)]{.underline}. Revealingly, even in
conditions of unmistakable situational duress, economists sometimes see
a person\'s submission as properly understood as voluntarily and
dispositionally motivated, albeit inefficient. For instance, Judge
Posner writes:

A points a gun at B saying, \'Your money or your life.\' B is very eager
to accept the first branch of this offer by tendering his money. But a
court will not enforce the resulting contract. The reason is not that B
was not acting of his own free will. On the contrary, he was no doubt
extremely eager to accept A\'s offer. The reason is that the enforcement
of such offers would lower the net social product, by channeling
resources into the making of threats and into efforts to protect against
them.

Posner, Economic Analysis of Law, supra note 13, at 116.

[[\[FN133\]](#Document1zzFN_B133)]{.underline}. Cooter & Ulen, supra
note 7, at 263.

[[\[FN134\]](#Document1zzFN_B134)]{.underline}. Id. at 262
(\"Bargaining, which involves demands and offers, is opposite from
coercion, which involves threats.\").

[[\[FN135\]](#Document1zzFN_B135)]{.underline}. See infra text
accompanying notes 550-614 (discussing other legal theorists and the
law\'s treatment of similar issues).

[[\[FN136\]](#Document1zzFN_B136)]{.underline}. See supra text
accompanying notes 21-26 (explaining that the fundamental attribution
error is a function of numerous factors, including the dominant role
that human action generally takes in our causal construal processes).

[[\[FN137\]](#Document1zzFN_B137)]{.underline}. See, e.g., supra notes
86-99; infra notes 148-54, 180-81, 192, 242, 489-91, 616-34 (describing
some of the situational manipulations in Milgram\'s studies and closely
related studies, and how they influenced behavior and expectations). See
generally Hanson & Yosifon, supra note 30 (providing an overview of
situational influences).

[[\[FN138\]](#Document1zzFN_B138)]{.underline}. See supra text
accompanying notes 119-20 (presenting the pituitary extract example).

[[\[FN139\]](#Document1zzFN_B139)]{.underline}. Daniel T. Gilbert,
Thinking Lightly About Others: Automatic Components of the Social
Inference Process, in Unintended Thought 189, 193 (James S. Uleman &
John A. Bargh eds., 1989).

[[\[FN140\]](#Document1zzFN_B140)]{.underline}. Kunda, supra note 20, at
431.

[[\[FN141\]](#Document1zzFN_B141)]{.underline}. Gilbert, supra note 139,
at 193-94.

[[\[FN142\]](#Document1zzFN_B142)]{.underline}. Id. at 194 (finding
empirical support for the hypothesis that a perceiver who is distracted
is more likely to engage in dispositional thinking than a perceiver who
is not \"cognitively busy\"); Kunda, supra note 20, at 431 (\"When we
are preoccupied, tired, intoxicated, or in a hurry, and so unable to
devote careful thought to making sense of others, we may fail to correct
our impressions for situational constraints even if we understand these
constraints.\"); see also Timothy D. Wilson & Nancy Brekke, Mental
Contamination and Mental Correction: Unwanted Influences on Judgments
and Evaluations, 116 Psychol. Bull. 117, 127-28 (1994) (citing this as
an example of the fundamental attribution bias and explaining that we
often attribute a person\'s behavior to certain traits or
attitudes\--i.e., disposition\--implied by such conduct).

[[\[FN143\]](#Document1zzFN_B143)]{.underline}. See infra text
accompanying notes 415-56 (discussing the role of culture); infra Part
VI.C-E (discussing some of the situational influences behind our
culture).

[[\[FN144\]](#Document1zzFN_B144)]{.underline}. Kunda, supra note 20, at
431-32; see also George A. Quattrone, Overattribution and Unit
Formation: When Behavior Engulfs the Person, 42 J. Personality & Soc.
Psychol. 593, 600-01, 604-06 (1982) (reviewing two experiments
demonstrating that there may be circumstances in which observers
overattribute behavior to situational causes while adjusting
insufficiently for information about an actor\'s dispositions).

[[\[FN145\]](#Document1zzFN_B145)]{.underline}. Kunda, supra note 20, at
432; see also Wilson & Brekke, supra note 142, at 127-28 (characterizing
\"the tendency to attribute people\'s behavior to their underlying
dispositions\" as a \"failure\" of the \"unacceptable process\").

[[\[FN146\]](#Document1zzFN_B146)]{.underline}. See Kunda, supra note
20, at 432-41 (providing a fascinating review of additional types of
evidence of the fundamental attribution error).

[[\[FN147\]](#Document1zzFN_B147)]{.underline}. See supra notes 85-86
and accompanying text.

[[\[FN148\]](#Document1zzFN_B148)]{.underline}. See Zimbardo & Leippe,
supra note 22, at 70 (dismissing the argument that Milgram\'s subjects
were somehow \"bad apples\" by pointing out that the experimental
\"results were the same: meek obedience to unjust authority\" across a
wide demographic subject population).

[[\[FN149\]](#Document1zzFN_B149)]{.underline}. Obedience (Stanley
Milgram 1969).

[[\[FN150\]](#Document1zzFN_B150)]{.underline}. Martin A. Safer,
Attributing Evil to the Subject, Not the Situation: Student Reaction to
Milgram\'s Film on Obedience, 6 Personality & Soc. Psychol. Bull. 205,
205-06 (1980).

[[\[FN151\]](#Document1zzFN_B151)]{.underline}. Id. at 206.

[[\[FN152\]](#Document1zzFN_B152)]{.underline}. Id. at 207.

[[\[FN153\]](#Document1zzFN_B153)]{.underline}. Id. at 208. In
Milgram\'s movie about the experiments, only one of the many subjects is
shown flipping the final switch, even though a majority of those
participating did so. Obedience, supra note 149. According to folk
wisdom among social psychologists, that is because the subjects who went
that far did not want to be shown on film doing so, presumably because
they felt that their actions reflected badly on their dispositions. In
other words, it appears that even the subjects interpreted what happened
in largely dispositionist terms. As revealed in one subject\'s
reflections one year after the experiment, subjects and their family
members construed the experiment as revealing dispositionism: \"As my
wife said, \'\[y\]ou can call yourself Eichmann.\' I hope I can deal
more effectively with any future conflicts of values I encounter.\"
Milgram, Obedience to Authority, supra note 86, at 54.

[[\[FN154\]](#Document1zzFN_B154)]{.underline}. Ross & Nisbett, supra
note 9, at 132.

[[\[FN155\]](#Document1zzFN_B155)]{.underline}. See Edward E. Jones &
Victor A. Harris, The Attribution of Attitudes, 3 J. Experimental Soc.
Psychol. 1, 4-8 (1967). Jones and Harris observed similar results in a
second experiment that had the subjects draw dispositional inferences
based on hearing an opening statement in a debate. Id. at 8-14.

[[\[FN156\]](#Document1zzFN_B156)]{.underline}. Lee D. Ross et al.,
Social Roles, Social Control, and Biases in Social-Perception Processes,
35 J. Personality & Soc. Psychol. 485, 485-94 (1977). In a separate
experiment, observers of the simulated quiz game exhibited the same
dispositional bias as the contestants. Thus, even though the observers
were aware of the situational advantage of the questioners, the
observers nonetheless ranked the questioners as more generally
knowledgeable than the contestants. Id. at 490-91.

[[\[FN157\]](#Document1zzFN_B157)]{.underline}. Id. at 489-94.

[[\[FN158\]](#Document1zzFN_B158)]{.underline}. This study (and the many
like) it would be, if they were well known, a favorite among law
students and anyone else on the business end of the Socratic method. Cf.
Lani Guinier et al., Becoming Gentlemen: Law School and Institutional
Change 28 (1997) (noting that many women are alienated by the use of the
Socratic method, especially in the first year of law school); Lani
Guinier et al., [[Becoming Gentlemen: Women\'s Experiences at One Ivy
League Law School, 143 U. Pa. L. Rev. 1, 6-59
(1994)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1268&FindType=Y&ReferencePositionType=S&SerialNum=0104965928&ReferencePosition=6)]{.underline}
(describing in detail the results of the study discussed in Guinier\'s
book).

In another important study, a group of subjects was asked to divide a
set of their peers into two categories: those the subjects thought would
be likely to contribute to a food drive, and those they believed would
be unlikely to contribute. Ross & Nisbett, supra note 9, at 132. Half of
each group\--the \"most likely\" and the \"least likely\"\--was then
sent a personalized letter asking for a specific food donation,
including a map of where to deliver the item. Id. The other half of each
group received a generic form letter requesting only a general food
donation, and with no map. Id.

The study confirmed both the prevalence of dispositionism and the
dominance of situation in determining actual conduct. The subjects who
selected the \"most likely\" and \"least likely\" groups predicted that
dispositional ascriptions, not the type of letter received, would
determine who would actually donate food. Id. at 133. Specifically,
subjects predicted that disposition (the type of person) would be nearly
five times more influential than situation (the type of letter). But
when the letters were sent and the food was collected, it turned out
that the influence of situation was over four times greater than the
influence of disposition\--those who received personal letters with a
map were much more likely to donate food. Id. Of course, even that
figure overstates the role of disposition, because even those seemingly
\"dispositional\" influences may be explained in part by situational
influences beyond the channeling effect of the letter. In any event, the
subjects tended to see what mattered least and miss what mattered most.

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

Subjects predicted that eighty-three percent of the \"most likely\"
group would donate if they received the detailed channeling information,
and that eighty percent of the \"most likely\" group would donate if
they received the general letter. Id. Subjects further predicted that
only seventeen percent of those deemed \"least likely\" would donate if
they received the letter with the channeling information, and that
sixteen percent of the group would donate if they received the general
request. Id. In other words, the subjects expected that the different
letters would have virtually no effect, but that the different \"types\"
of recipients would have an immense effect. The predictions failed: only
four percent of subjects donated food in the non-channeling condition
(none of the \"least likelies\" and eight percent of the \"most
likelies\"), while thirty-three percent donated food in the facilitory
condition (twenty-five percent of the \"least likelies\" and forty-two
percent of the \"most likelies.\"). Id. As the authors of the study
noted, \"\[t\]he situational variables proved more important than the
relevant actors\' dispositions\--more important, at least, than any
dispositions salient to their peers.\" Id.

[[\[FN159\]](#Document1zzFN_B159)]{.underline}. Luke 10:29-37.

[[\[FN160\]](#Document1zzFN_B160)]{.underline}. Id. 10:33-34.

[[\[FN161\]](#Document1zzFN_B161)]{.underline}. Id. 10:36.

[[\[FN162\]](#Document1zzFN_B162)]{.underline}. Perhaps revealingly, the
phrase is not found in the biblical tale at all; rather, it has come
down to us through dispositional interpretations of the parable.

[[\[FN163\]](#Document1zzFN_B163)]{.underline}. See John M. Darley & C.
Daniel Batson, From Jerusalem to Jericho: A Study of Situational and
Dispositional Variables in Helping Behavior, 27 J. Personality Soc.
Psychol. 100, 100-08 (1973).

[[\[FN164\]](#Document1zzFN_B164)]{.underline}. Id. at 103.

[[\[FN165\]](#Document1zzFN_B165)]{.underline}. Id.

[[\[FN166\]](#Document1zzFN_B166)]{.underline}. Id. at 103-04.

[[\[FN167\]](#Document1zzFN_B167)]{.underline}. Id. at 104.

[[\[FN168\]](#Document1zzFN_B168)]{.underline}. Id.

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

[[\[FN170\]](#Document1zzFN_B170)]{.underline}. Id. at 105.

[[\[FN171\]](#Document1zzFN_B171)]{.underline}. Id.

[[\[FN172\]](#Document1zzFN_B172)]{.underline}. Id. at 107.

[[\[FN173\]](#Document1zzFN_B173)]{.underline}. Id. at 102.

[[\[FN174\]](#Document1zzFN_B174)]{.underline}. Id.

[[\[FN175\]](#Document1zzFN_B175)]{.underline}. Ross & Nisbett, supra
note 9, at 131.

[[\[FN176\]](#Document1zzFN_B176)]{.underline}. Darley & Batson, supra
note 163, at 104-06.

[[\[FN177\]](#Document1zzFN_B177)]{.underline}. Id. at 107; see also
Hanson & Yosifon, supra note 30 (discussing a related portion of this
experiment).

[[\[FN178\]](#Document1zzFN_B178)]{.underline}. See also Milgram,
Obedience to Authority, supra note 86, at 205 (\"\[T\]he social
psychology of this century reveals a major lesson: often, it is not so
much the kind of person a man is as the kind of situation in which he
finds himself that determines how he will act.\").

[[\[FN179\]](#Document1zzFN_B179)]{.underline}. See infra text
accompanying notes 193-95, 393-401, 454-56, 638- 81 (suggesting some of
the ways in which dispositionism may be linked to the motive to affirm
ourselves, our groups, and our systems); supra note 110 (describing our
tendency to attribute cause to situation when doing so is
self-affirming).

[[\[FN180\]](#Document1zzFN_B180)]{.underline}. Zimbardo & Leippe, supra
note 22, at 73-74.

[[\[FN181\]](#Document1zzFN_B181)]{.underline}. Without a model of
action, our feelings of upset and our desire to help often lead to no
action. Milgram discussed the frustration of a specific \"teacher\" as
such:

This subject did not want to shock the victim, and he found it an
extremely disagreeable task, but he was unable to invent a response that
would free him from \[the experimenter\'s\] authority. Many subjects
cannot find the specific verbal formula that would enable them to reject
the role assigned to them by the experimenter. Perhaps our culture does
not provide adequate models for disobedience.

Milgram, Some Conditions of Obedience, supra note 86, at 67.

[[\[FN182\]](#Document1zzFN_B182)]{.underline}. See supra text
accompanying notes 21-22.

[[\[FN183\]](#Document1zzFN_B183)]{.underline}. See supra notes 141-43
and accompanying text.

[[\[FN184\]](#Document1zzFN_B184)]{.underline}. See supra notes 144-45
and accompanying text.

[[\[FN185\]](#Document1zzFN_B185)]{.underline}. Ross & Nisbett, supra
note 9, at 145-58.

[[\[FN186\]](#Document1zzFN_B186)]{.underline}. See infra text
accompanying notes 418-52; see also Kunda, supra note 20, at 442
(asserting that Western culture\'s emphasis on personality traits leads
to the expectation that human behavior will be consistent across
different situations).

[[\[FN187\]](#Document1zzFN_B187)]{.underline}. See infra Part VI.C.

[[\[FN188\]](#Document1zzFN_B188)]{.underline}. Ross & Nisbett, supra
note 9, at 147-48.

[[\[FN189\]](#Document1zzFN_B189)]{.underline}. Kunda, supra note 20, at
442.

[[\[FN190\]](#Document1zzFN_B190)]{.underline}. See id. at 442-43
(summarizing the \"considerable amount of evidence \[that\] suggests
that our expectations of others can be self-fulfilling\").

[[\[FN191\]](#Document1zzFN_B191)]{.underline}. Ross & Nisbett, supra
note 9, at 150. Briefly below, and in some detail in Hanson & Yosifon,
supra note 30, we discuss other motives that amplify our dispositionism.
See infra notes 193-94, 393-401, 454-56, 638-81 and accompanying text
(highlighting some of the connections between motivation and
dispositionism). Research in system legitimation theory, for example,
suggests that when we perceive our social systems to be under
threat\--as in periods of social instability\--we exhibit a heightened
tendency to dispositionalize out-groups and individuals within
out-groups, blaming their stable character traits for the threat, and
missing situational factors that may be the real cause of the threat.
See, e.g., John T. Jost, Outgroup Favoritism and the Theory of System
Justification, in Cognitive Social Psychology 86, 101 (Gordon B.
Moskowitz ed., 2001) (noting that \"the presence of an ideological
threat directed against the national system increases stereotypic
differentiation\" between inside groups and outside groups).

[[\[FN192\]](#Document1zzFN_B192)]{.underline}. Stigler, supra note 70,
at 219.

[[\[FN193\]](#Document1zzFN_B193)]{.underline}. See Hanson & Yosifon,
supra note 30.

[[\[FN194\]](#Document1zzFN_B194)]{.underline}. Id.

[[\[FN195\]](#Document1zzFN_B195)]{.underline}. Alan P. Fiske et al.,
The Cultural Matrix of Social Psychology, in 2 The Handbook of Social
Psychology 915, 939 (Daniel T. Gilbert et al. eds., 4th ed. 1998).

[[\[FN196\]](#Document1zzFN_B196)]{.underline}. See Cooter & Ulen, supra
note 7, at 348 (explaining economists\' use of directly observable
choices to impute the decision maker\'s unobservable preferences);
Hanson & Yosifon, supra note 30 (summarizing revealed preference theory
and the dispositionist assumptions of economics and law and economics).

[[\[FN197\]](#Document1zzFN_B197)]{.underline}. Kennedy, supra note 51,
at 468.

[[\[FN198\]](#Document1zzFN_B198)]{.underline}. Oliver Wendell Holmes,
Jr., The Common Law 1 (Little, Brown & Co. 1946) (1881).

[[\[FN199\]](#Document1zzFN_B199)]{.underline}. For a sample of these
works, see manuscripts cited supra note 84.

[[\[FN200\]](#Document1zzFN_B200)]{.underline}. We are not the first to
employ the term \"critical realism.\" In fact, legal scholars have
previously formulated several variants of the phrase, though none of
them have adopted quite the meaning that we intend. Morton Horwitz, for
example, used the term to denote an approach within the tradition of
American legal realism that emphasized the practical political
applications of legal theory. See Morton J. Horwitz, The Transformation
of American Law, 1870-1960: The Crisis of Legal Orthodoxy 209-10 (1992).
Horwitz distinguishes \"critical\" realists from \"constructive\"
realists, who he describes as having been more dedicated than critical
realists to \"subordinat\[ing\] political and moral passion to social
science expertise\" in the study of law. Id. Horwitz characterizes this
brand of critical realism as a predecessor to the critical legal studies
movement. Id. at 270-71.

More recently, a few contemporary scholars have adopted the term
\"critical realism\" to describe their own approach to legal
scholarship. Ruben J. Garcia has employed the phrase to name his work,
which, in the tradition described by Horwitz, is aimed simultaneously at
a critical and a political agenda. See Ruben J. Garcia, [[New Voices at
Work: Race and Gender Identity Caucuses in the U.S. Labor Movement, 54
Hastings L.J. 79, 117
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1159&FindType=Y&ReferencePositionType=S&SerialNum=0292060016&ReferencePosition=117)]{.underline}
(presenting his project as one that embraces a \"\'critical\' view of
the endemic nature of racism and sexism in society but seeks to be
\'realistic\' about potential legal reform programs in light of
contemporary realities and the limits of legal change\").

Howard Engelskirchen employs another modern variant of \"critical
realism\" that is concerned more particularly with analyzing the
\"generative structures or mechanisms at work in nature and society that
cause the manifest phenomena of our natural and social world.\" Howard
Engelskirchen, [[Consideration as the Commitment to Relinquish Autonomy,
27 Seton Hall L. Rev. 490, 500
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1234&FindType=Y&ReferencePositionType=S&SerialNum=0107831465&ReferencePosition=500)]{.underline}.
While part of our endeavor shares in that basic effort, our approach
differs dramatically from that of Engelskirchen in two ways. First, he
emphasizes that he \"want\[s\] to distinguish sharply\...between the
genesis of human actions, lying in the reasons, intentions and plans of
people, on the one hand, and the structures governing the reproduction
and transformation of social activities, on the other.\" [[Id. at
508](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0107831465)]{.underline}
(quoting Roy Bhaskar, The Possibility of Naturalism 35 (2d ed. 1989)).
Second, he \"rel\[ies\] on the fact that the market economy in which we
live is characterized by the private autonomy of its agents.\" [[Id. at
510.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0107831465)]{.underline}
As will become clear, if it is not already, we do not adopt either of
these premises.

Finally, Anthony Fejfar has undertaken still another version of critical
realism based on the work of Bernard J. F. Lonergan, a knowledge
theorist within the philosophy of science tradition. See Anthony J.
Fejfar, [[Insight into Lawyering: Bernard Lonergan\'s Critical Realism
Applied to Jurisprudence, 27 B.C. L. Rev. 681, 682
(1986)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=27BCLREV681&FindType=Y&ReferencePositionType=S&ReferencePosition=682)]{.underline}
(presenting Lonergan\'s theory that knowledge is rooted in
\"affirmations which are made on the level of judgment,\" a presumption
that serves as the foundation of Fejfar\'s approach). According to
Fejfar, \"critical realism envisages a system which is flexible enough
to deal with the human world as it actually exists in the concrete and
particular.\" Id. at 717. Fejfar has also employed concepts from
developmental psychology in his critical realist approach, particularly
with respect to a study on the concept of corporate voluntarism. See
Anthony J. Fejfar, [[Corporate Voluntarism: Panacea or Plague? A
Question of Horizon, 17 Del. J. Corp. L. 859, 863
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1127&FindType=Y&ReferencePositionType=S&SerialNum=0103021638&ReferencePosition=863)]{.underline}
(analyzing corporate voluntarism from the perspective of liberal
rationalist, critical rationalist, and critical realist \"horizons\" to
determine the extent to which one\'s point of view impacts one\'s
analysis of the subject).

As described in the text, we derive our notion of critical realism from
our understanding of the American legal realist tradition and the
critical legal studies movement. Our use of the term is meant to signal
our intention to incorporate the best of what we find in each of these
traditions, but in a manner that we hope advances legal theory in ways
that differ from both of them. We have not been directly informed by,
nor have we attempted to directly engage, the notions of critical
realism employed by the scholars whose use of the term we have noted
here, though we have little doubt that some of our work and some of
theirs are mutually supportive in significant ways.

We also want to distinguish our \"realism\" from that employed in
international relations theory, where the word \"realism\" has come to
be associated with a somewhat-stylized school of thought focusing almost
exclusively on states. Theorists of this school assume states to be
rational, unitary, and functionally identical in their desire to
maximize \"power\" and their unwillingness to subject themselves to
international institutions except where it serves self-interested,
power-maximizing goals. See, e.g., Anne-Marie Slaughter, [[Liberal
International Relations Theory and International Economic Law, 10 Am. U.
J. Int\'l L. & Pol\'y 717, 721-24
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100549&FindType=Y&ReferencePositionType=S&SerialNum=0105466721&ReferencePosition=721)]{.underline}
(defining and discussing \"realism\" in the context of international
relations theory). This dispositionalizing brand of realism
intentionally downplays the role of non-state actors, ideology, and
countless other factors, holding that a simplified, state-centric view
is the most useful heuristic for understanding the operation of
international relations. Thus, in international relations theory,
realism at times becomes somewhat detached from reality; perhaps
ironically, other theories purporting to be more realistic often define
themselves in opposition to \"realism.\" See [[id. at
724-31](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0105466721)]{.underline}
(describing \"institutionalism\" and \"liberalism\" as alternatives to
\"realism\" in international relations theory). By contrast, the kind of
realism articulated in this project differs substantially in that its
basic principles are an openness to rethinking traditional starting
principles and a willingness to question familiar heuristics in light of
empirical observations.

[[\[FN201\]](#Document1zzFN_B201)]{.underline}. But see Posner, supra
note 127, at 3 (criticizing legal realism and downplaying its
relationship to law and economics).

[[\[FN202\]](#Document1zzFN_B202)]{.underline}. Galanter & Edwards,
supra note 59, at 377. For an overview of the develop-ment and
historical significance of American legal realism, see Horwitz, supra
note 200, at 169-92 (1992).

[[\[FN203\]](#Document1zzFN_B203)]{.underline}. Galanter & Edwards,
supra note 59, at 377.

[[\[FN204\]](#Document1zzFN_B204)]{.underline}. Id.

[[\[FN205\]](#Document1zzFN_B205)]{.underline}. Id.

[[\[FN206\]](#Document1zzFN_B206)]{.underline}. For an overview of the
meaning and significance of the critical legal studies movement, see
Roberto Mangabeira Unger, The Critical Legal Studies Movement 5-42
(1986). Although Galanter and Edwards might disagree, see Galanter &
Edwards, supra note 59, at 377-78, we consider critical legal studies
and other critical schools to be as much the heirs of legal realism as
law and economics, if not more.

[[\[FN207\]](#Document1zzFN_B207)]{.underline}. In important ways, we
understand our admittedly loose and ambiguous epistemology to resemble
that of positionality, which \"acknowledges the existence of empirical
truths, values and knowledge, and also their contingency,\" Katharine T.
Bartlett, [[Feminist Legal Methods, 103 Harv. L. Rev. 829, 880
(1990)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&ReferencePositionType=S&SerialNum=0103240576&ReferencePosition=880)]{.underline},
and \"sets an ideal of self-critical commitment whereby I act, but
consider the truths upon which I act subject to further refinement,
amendment, and correction.\" [[Id. at
883.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0103240576)]{.underline}

[[\[FN208\]](#Document1zzFN_B208)]{.underline}. Milton Friedman,
Economic Myths and Public Opinion, Newsweek, Jan. 1976, reprinted in
Bright Promises, Dismal Performance: An Economist\'s Protest 60, 75
(William R. Allen ed., 1983) \[hereinafter Bright Promises\].

[[\[FN209\]](#Document1zzFN_B209)]{.underline}. Hanson & Yosifon, supra
note 30.

[[\[FN210\]](#Document1zzFN_B210)]{.underline}. Id.

[[\[FN211\]](#Document1zzFN_B211)]{.underline}. James A. Henderson, Jr.
& Jeffrey J. Rachlinski,
[[Product-Related](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112965&FindType=Y&ReferencePositionType=S&SerialNum=0283474039&ReferencePosition=258)]{.underline}
[[Risk and Cognitive Biases: The Shortcomings of Enterprise Liability, 6
Roger Williams U. L. Rev. 213, 258
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112965&FindType=Y&ReferencePositionType=S&SerialNum=0283474039&ReferencePosition=258)]{.underline}.

[[\[FN212\]](#Document1zzFN_B212)]{.underline}. It is not as if
Henderson and Rachlinski\'s policy analysis has no real-world influence.
Henderson, as a leading academic scholar and teacher, a busy litigation
consultant and expert, and one of the Chief Reporters for the Third
Restatement of Torts, has had as much real-world influence on tort law
as virtually any other living person.

[[\[FN213\]](#Document1zzFN_B213)]{.underline}. See, e.g., Jennifer
Arlen, [[Comment: The Future of Behavioral Economic Analysis of Law, 51
Vand. L. Rev. 1765, 1765-68
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1277&FindType=Y&ReferencePositionType=S&SerialNum=0110399534&ReferencePosition=1765)]{.underline}
(arguing that while behavioral psychologists\' findings undermine
rational choice theory, their resulting understanding of human behavior
is too uncertain to formulate a credible alternative to the conventional
law and economics framework).

[[\[FN214\]](#Document1zzFN_B214)]{.underline}. See Hanson & Yosifon,
supra note 30.

[[\[FN215\]](#Document1zzFN_B215)]{.underline}. See id. (reviewing
evidence of such motives from social psychology and related fields). For
other examples of this propositions, see Melvin J. Lerner, The Belief in
a Just World: A Fundamental Delusion (1980); John T. Jost et al.,
Non-Conscious Forms of System Justification: Implicit and Behavioral
Preferences for Higher Status Groups, 38 J. Experimental Soc. Psychol.
586 (2002).

[[\[FN216\]](#Document1zzFN_B216)]{.underline}. Samuel Issacharoff,
[[Can There Be a Behavioral Law and Economics?, 51 Vand. L. Rev. 1729,
1745
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1277&FindType=Y&ReferencePositionType=S&SerialNum=0110399532&ReferencePosition=1745)]{.underline}.

[[\[FN217\]](#Document1zzFN_B217)]{.underline}. Id.

[[\[FN218\]](#Document1zzFN_B218)]{.underline}. Id.

[[\[FN219\]](#Document1zzFN_B219)]{.underline}. Christine Jolls et al.,
[[A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1239&FindType=Y&SerialNum=0108978010)]{.underline}.

[[\[FN220\]](#Document1zzFN_B220)]{.underline}. Posner, Frontiers, supra
note 13, at 286-87.

[[\[FN221\]](#Document1zzFN_B221)]{.underline}. Richard A. Posner,
Economic Analysis of Law 141 (3d ed. 1986); cf. Posner, Economic
Analysis of Law, supra note 13, at 25 (\"Economic analysis of law has
aroused considerable antagonism, especially but not only among academic
lawyers who dislike the thought that the logic of the law might be
economics.\").

[[\[FN222\]](#Document1zzFN_B222)]{.underline}. Posner, Economic
Analysis of Law (3d ed.), supra note 221, at 141.

[[\[FN223\]](#Document1zzFN_B223)]{.underline}. Id.

[[\[FN224\]](#Document1zzFN_B224)]{.underline}. See supra quotation
accompanying note 220.

[[\[FN225\]](#Document1zzFN_B225)]{.underline}. See supra quotation
accompanying note 211.

[[\[FN226\]](#Document1zzFN_B226)]{.underline}. Mahzarin R. Banaji,
Implicit Attitudes Can Be Measured, in The Nature of Remembering 137
(Henry L. Roediger III et al. eds., 2001).

[[\[FN227\]](#Document1zzFN_B227)]{.underline}. See supra notes 56, 64,
71-72 and accompanying text.

[[\[FN228\]](#Document1zzFN_B228)]{.underline}. Richard A. Posner,
Volume One of The Journal of Legal Studies\--An Afterword, 1 J. Legal
Stud. 437, 437 (1972).

[[\[FN229\]](#Document1zzFN_B229)]{.underline}. Richard A. Posner,
Foreword to Essays in Law and Economics 5, 5 (Michael Faure & Roger Van
den Bergh eds., 1989).

[[\[FN230\]](#Document1zzFN_B230)]{.underline}. Posner, Frontiers, supra
note 13, at 264.

[[\[FN231\]](#Document1zzFN_B231)]{.underline}. Richard A. Posner, The
Economic Approach to Law, 53 Tex. L. Rev. 757, 774 (1975).

[[\[FN232\]](#Document1zzFN_B232)]{.underline}. Id.

[[\[FN233\]](#Document1zzFN_B233)]{.underline}. Cooter & Ulen, supra
note 7, at 3; see also Mark Klock, Are [[Wastefulness and Flamboyance
Really Virtues?: Use and Abuse of Economic Analysis, 71 U. Cin. L. Rev.
181, 252-53
(2002)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1259&FindType=Y&ReferencePositionType=S&SerialNum=0294608622&ReferencePosition=252)]{.underline}
(\"I predict that the future of law will be characterized by less
commentary arguing that economic analysis is inappropriate and more
reliance on alternative economics models\....\").

[[\[FN234\]](#Document1zzFN_B234)]{.underline}. See Maurice A.
Finocchiaro, Introduction to The Galileo Affair 1, 30 (Maurice A.
Finocchiaro ed. and trans., 1989) \[hereinafter The Galileo Affair\]
(noting that Bellarmine rejected Copernican theory because it conflicted
with the scriptures).

[[\[FN235\]](#Document1zzFN_B235)]{.underline}. Our claim is not that
law and economics is totally devoid of social science; far from it. But
where social science does play a role, economic legal theory rarely
generates clear answers to problems. For example, there is still
considerable debate about what the most efficient liability rule is in
tort law, despite the fact that this is one of the oldest, most
discussed issues in law and economics. See, e.g., Richard S. Markovits,
The [[Allocative Efficiency of Shifting From a \"Negligence\" System to
a \"Strict Liability\" Regime in Our Highly-Pareto-Imperfect Economy: A
Partial and Preliminary Third-Best-Allocative Efficiency Analysis, 73
Chi.-Kent L. Rev. 11, 133
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1114&FindType=Y&SerialNum=0108992035)]{.underline}
(analyzing \"efficiency of a shift from negligence to strict liability
and various other standard-of-liability allocative-efficiency issues\").
See generally John C. Moorhouse et al., [[Law and Economics of Tort Law:
A Survey of Scholarly Opinion, 62 Alb. L. Rev. 667
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3105&FindType=Y&SerialNum=0110317069)]{.underline}.
There is, in other words, considerable scholarly debate about most areas
of law, even where efficiency is accepted as the law\'s underlying
normative goal. This is where the social scientific features of law and
economics take place\--a competition among legal economists offering
different efficiency-oriented stories and, where possible, different
empirical evidence to support their views. Thus, with respect to the
application of the basic theory to various social and policy issues,
social scientific methods are welcome. With respect to the basic theory
and its underlying axioms, in contrast, social scientific methods are
disallowed.

[[\[FN236\]](#Document1zzFN_B236)]{.underline}. See supra text
accompanying notes 221-23.

[[\[FN237\]](#Document1zzFN_B237)]{.underline}. By \"social
psychology,\" we include not only the traditional field of research that
goes by that name, but also numerous related fields, including social
cognition, cognitive neuroscience, and cognitive psychology. For
accessible overviews of the history of relationships between the various
fields, see Fiske & Taylor, supra note 20, at 1-18; Kunda, supra note
20, at 1- 7.

[[\[FN238\]](#Document1zzFN_B238)]{.underline}. James Q. Wilson, The
Politics of Regulation, in The Politics of Regulation 357, 357-58 (James
Q. Wilson ed., 1980).

[[\[FN239\]](#Document1zzFN_B239)]{.underline}. Milton Friedman, Is
Capitalism Humane?, in Bright Promises, supra note 208, at 83, 89.

[[\[FN240\]](#Document1zzFN_B240)]{.underline}. Ross & Nisbett, supra
note 9, at 53.

[[\[FN241\]](#Document1zzFN_B241)]{.underline}. See supra text
accompanying notes 84-85.

[[\[FN242\]](#Document1zzFN_B242)]{.underline}. If members of the law
school community believe they are immune to the power of situation, they
should consult Steven Hartwell\'s study of students at the University of
San Diego. Steven Hartwell, Moral Development, Ethical Conduct, and
Clinical Education, 35 N.Y.L. Sch. L. Rev. 131 (1990). Hartwell set up
an experiment in the guise of a clinical class exercise. Id. at 142.
Each student was to individually advise litigants in a small claims
court, although Hartwell was available in the next room for
consultation. Id. Unknown to the students, each \"litigant\" presented
her student-advisor with an identical problem: how best to make her case
in a rent dispute. Id. As Hartwell recounts, \"I told each student to
advise the client to lie under oath that she had paid the rent. When
students asked for clarification, I uniformly responded\... my advice is
that, if your client wants to win her case, then you must tell her to
perjure herself.\" Id. The idea was for students to feel the \"pull
between loyalty to authority\... and prescribed ethical conduct.\" Id.
Like the evaluators in Milgram\'s initial experiment, Hartwell predicted
that the students would uniformly \"reject my advice and refuse to tell
their client\[s\] to lie.\" Id. And, like Milgram\'s evaluators, he was
surprised to find out how wrong he was. \"Although many of the
twenty-four participating students grumbled either to me or to the
client about my proffered advice, twenty-three told their client to
perjure herself.\" Id. at 142-43.

A more famous example of the power of situation over students (although
not law students) was demonstrated in a classic experiment conducted at
Stanford University, in which students took on the roles of \"prisoner\"
or \"guard\" in a realistic prison environment. Craig Haney et al.,
Interpersonal Dynamics in a Simulated Prison, 1 Int\'l J. Criminology &
Penology 69 (1973). Although the students had been specifically chosen
for their apparent emotional maturity, within only a couple of days the
\"guards\" began to demonstrate extreme cruelty toward the
\"prisoners.\" Id. at 80-81. On the other side, several of the
\"prisoners\" experienced severe emotional depression, while others were
prompted to rebel. Ultimately, the experiment had to be cancelled less
than a week after it began. Id. Rather than showing dispositional
consistency across environments, the students\' behavior corresponded
with situational cues and roles.

[[\[FN243\]](#Document1zzFN_B243)]{.underline}. Martha Chamallas,
Introduction to Feminist Legal Theory 16 (1999).

[[\[FN244\]](#Document1zzFN_B244)]{.underline}. Herbert Kaufman & Victor
Jones, The Mystery of Power, 14 Pub. Admin. Rev. 205, 205 (1954); see
also Robert Dahl, Who Governs? 90 (1961) (\"One who sets out to observe,
analyze, and describe the distribution of influence in a pluralistic
democracy will\...encounter formidable problems.\").

[[\[FN245\]](#Document1zzFN_B245)]{.underline}. Economics does
occasionally take power into account in exceptions that prove the rule.
See, e.g., supra text accompanying notes 130-34 (recounting Cooter and
Ulen\'s examples of economic threats); infra text accompanying notes
267-80 (describing Stigler\'s \"shallow capture\" theory).

[[\[FN246\]](#Document1zzFN_B246)]{.underline}. When economists speak of
\"market power,\" they generally use the term to refer to a firm\'s
control of a significant share of a particular market. Often the term is
associated with monopoly practices, as when a firm enjoys such \"market
power\" that it can reduce output and raise prices without experiencing
a total loss of sales to competitors. See, e.g., W. Kip Viscusi et al.,
Economics of Regulation and Antitrust 164 (3d ed. 2000) (\"Generally
speaking, the market power of a firm is the ability to raise price
without suffering a significant decline in demand. This is typically
measured by the price elasticity of the firm\'s demand curve.\").

[[\[FN247\]](#Document1zzFN_B247)]{.underline}. See supra text
accompanying notes 85-91 (recounting Milgram\'s obedience experiments).

[[\[FN248\]](#Document1zzFN_B248)]{.underline}. The law and traditional
legal education also have no place for the concept of power. Critical
theories represent an important exception inasmuch as they have
influenced law and legal education. For instance, feminist legal
scholarship has been particularly attentive to the operation of power
dynamics in law and related social institutions. See, e.g., Bartlett,
supra note 207, at 849-62 (summarizing and discussing feminist legal
scholarship about relationships between power, gender, and social
institutions).

[[\[FN249\]](#Document1zzFN_B249)]{.underline}. Posner, supra note 11,
at 272.

[[\[FN250\]](#Document1zzFN_B250)]{.underline}. Ross & Nisbett, supra
note 9, at 4.

[[\[FN251\]](#Document1zzFN_B251)]{.underline}. For an earlier statement
of power economics, though not by name, and for considerable evidence
from consumer-product markets confirming our claims, see Jon D. Hanson &
Douglas A. Kysar, [[Taking Behavioralism Seriously: The Problem of
Market Manipulation, 74 N.Y.U. L. Rev. 630
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&SerialNum=0111853405)]{.underline}
\[hereinafter Hanson & Kysar, Taking Behavioralism Seriously I \]; Jon
D. Hanson & Douglas A. Kysar, [[Taking Behavioralism Seriously: Some
Evidence of Market Manipulation, 112 Harv. L. Rev. 1420
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&SerialNum=0111026739)]{.underline}
\[hereinafter Hanson & Kysar, Taking Behavioralism Seriously II\]; Chen
& Hanson, Illusion of Law I, supra note 84; see also infra text
accompanying notes 393-414 (illustrating how commercial interests have,
through situational manipulations, promoted dispositionism).

[[\[FN252\]](#Document1zzFN_B252)]{.underline}. John Kenneth Galbraith,
The Affluent Society, at xiv (4th ed. 1984).

[[\[FN253\]](#Document1zzFN_B253)]{.underline}. Comparing the 2001 Gross
National Income of all nations with the 2001 total revenues of the
Global Fortune 500 companies helps bring this into relief. For example,
Wal-Mart\'s 2001 revenues (\$219.8 billion) were greater than those of
eight-five countries combined. Home Depot had greater revenue (\$53.6
billion) than Hungary (\$49.2 billion). The Gap had greater revenue
(\$13.8 billion) than Bulgaria (\$13.2 billion). Toys \"R\" Us (\$11.0
billion) had greater revenue than Kenya (\$10.7 billion). The revenue of
the #500 company, a Japanese construction firm called Takenaka,
surpassed ninety-four countries. In fact, the sum of the revenues of the
Global 500 firms (\$14 trillion) accounts for forty-five percent of the
total world GDP (\$31.3 trillion). Compare World Bank, 2003 World
Development Indicators (describing the 2001 gross national income of
each nation), with The Global 500: The World\'s Largest Corporations,
Fortune, July 22, 2002, at F-1 to F-10 (listing the gross revenues of
the five hundred largest corporations).

[[\[FN254\]](#Document1zzFN_B254)]{.underline}. Cf. Hanson & Kysar,
Taking Behavioralism Seriously II, supra note 251, at 1467-1553
(providing a case study of how the tobacco industry, based on shared
interest, managed to manipulate consumer perceptions, preferences, and
behavior in order to increase profits). With exceptions that we will
explore in future research, corporations tend to behave as if their
sole\--or, at least, primary\--goal is to maximize profits. See, e.g.,
Chen & Hanson, Illusion of Law I, supra note 84. That is true not
because corporations have dispositions, but because of a confluence of
stable and significant situational factors. Most importantly, firms
participate in a number of market competitions\--for products, for
capital, for managers, for labor, and for acquisitions of firms
themselves. All of these markets work to winnow out those firms and
managers that do not effectively profit maximize. Firms have charters
and bylaws, situational restraints that typically set
profit-maximization as the firm\'s stated goal, and they operate within
a legal environment that places, according to most corporate law
scholars, fiduciary duties on managers to maximize profit.

Moreover, the situational characters who work within firms face strong
cultural norms to maximize profits and are given extensive training in
business schools or by the firms themselves. The American business
culture promotes the idea that \"business is business\" and
considerations other than profit are irrelevant to decisions. For a
history of the basic scripts of business and corporate, see id.
Together, these and other situational forces push firms (and the
situational characters who occupy them) to behave \"as if\" maximizing
profit. Of course, those situational forces are limited, and
corporations and their managers do not always behave in
profit-maximizing ways. Still, most scholars agree that, at least in the
long run, the situational imperatives of profit and the dispositions and
situations of corporate managers combine to push corporations firmly
towards profit-maximizing conduct. It bears noting that our
interpretation of firms as situationally motivated, at least in the long
run, to behave as if they are profit-maximizing is conventional among
corporate law scholars. See id.; Henry Hansmann, The Ownership of
Enterprise 23 (1996) (explaining why it is reasonable to assume that
firms will, over time, tend toward profit-maximizing, or
cost-minimizing, practices); cf. Milton Friedman, The Methodology of
Positive Economics, in Essays in Positive Economics 3, 21-22 (1953)
(examining the hypothesis that individual firms behave as if they were
seeking rationally to maximize profits).

[[\[FN255\]](#Document1zzFN_B255)]{.underline}. See Hanson & Kysar,
Taking Behavioralism Seriously II, supra note 251, at 1448.

[[\[FN256\]](#Document1zzFN_B256)]{.underline}. See id. at 1445
(describing how marketers manipulate consumers\' \"mood states\").

[[\[FN257\]](#Document1zzFN_B257)]{.underline}. See generally Jon D.
Hanson & Douglas A. Kysar, [[Taking Behavioralism Seriously: A Response
to Market Manipulation, 6 Roger Williams U. L. Rev. 259, 337-370
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112965&FindType=Y&SerialNum=0283474040)]{.underline}
\[hereinafter Hanson & Kysar, Taking Behavioralism Seriously III \]
(describing reasons why firms tend not to engage in activities that
increase consumer risk perceptions).

[[\[FN258\]](#Document1zzFN_B258)]{.underline}. For one very recent
example, competing automakers joined together this year in a lawsuit
challenging California\'s strict fuel emission standards. See Bob
Egelko, California, Bush Spar over Clean Air Rules: Appeals Court
Ponders Block on Emissions Standards, S.F. Chron., Feb. 14, 2003, at A8.
For other examples of firm cooperation in self-interest, see Hanson &
Kysar, Taking Behavioralism Seriously II, supra note 251, at 1467-1502
(describing tobacco industry\'s response to industry-wide threats);
Hanson & Kysar, Taking Behavioralism Seriously III, supra note 257, at
361-66 (describing how even competitive industries often manage to
cooperate to advance their shared interests).

[[\[FN259\]](#Document1zzFN_B259)]{.underline}. As will become clear
below and in our future work, it is not necessary that corporate
decision makers make conscious decisions to cooperate with others for
corporations to be acting in complementary ways toward shared goals. See
infra Part VI.B (providing evidence of how dispositionism has been
promoted by commercial interests).

[[\[FN260\]](#Document1zzFN_B260)]{.underline}. See id.

[[\[FN261\]](#Document1zzFN_B261)]{.underline}. James Q. Wilson,
Introduction, in The Politics of Regulation, supra note 238, at ix.

[[\[FN262\]](#Document1zzFN_B262)]{.underline}. Steven P. Croley,
[[Public Interested Regulation, 28 Fla. St. U. L. Rev. 7, 9
(2000)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1141&FindType=Y&ReferencePositionType=S&SerialNum=0284095946&ReferencePosition=9)]{.underline}.

[[\[FN263\]](#Document1zzFN_B263)]{.underline}. Stigler, supra note 70.

[[\[FN264\]](#Document1zzFN_B264)]{.underline}. Also significant was
Stigler\'s work on the \"economics of information.\" See generally
George J. Stigler, The Economics of Information, 69 J. Pol. Econ. 213
(1961) (calling on economists to pay more attention to the importance of
information, for example, in ascertaining market price); George J.
Stigler, An Introduction to Privacy in Economics and Politics, 9 J.
Legal Stud. 623 (1980) (demonstrating how economic analysis illuminates
choices in favor of privacy and the concealment of information).

[[\[FN265\]](#Document1zzFN_B265)]{.underline}. Stigler, supra note 70,
at 114.

[[\[FN266\]](#Document1zzFN_B266)]{.underline}. Id. at 114-15.

[[\[FN267\]](#Document1zzFN_B267)]{.underline}. Id. at 114. Reflecting
the immodesty that seems to characterize those who employ this approach,
see supra text accompanying notes 71-75, Stigler went out of his way to
add that it was \"economists \[who\] initiated the theoretical study of
the actual, in contrast to the desired, functions of the state,\"
because \"\[o\]f all the social scientists, only economists possess a
theoretical system to explain social behavior.\" Stigler, supra note 70,
at 115.

[[\[FN268\]](#Document1zzFN_B268)]{.underline}. Stigler, supra note 70,
at 115.

[[\[FN269\]](#Document1zzFN_B269)]{.underline}. Id. at 117-18.

[[\[FN270\]](#Document1zzFN_B270)]{.underline}. Id. at 116-17.

[[\[FN271\]](#Document1zzFN_B271)]{.underline}. Id. at 116; see also
George G. Stigler & Claire Friedland, What Can Regulators Regulate? The
Case of Electricity, 5 J.L. & Econ. 1, 7-8 (1962) (describing how
commercial customers benefited from regulation).

[[\[FN272\]](#Document1zzFN_B272)]{.underline}. Stigler, supra note 70,
at 118.

[[\[FN273\]](#Document1zzFN_B273)]{.underline}. Id. at 120.

[[\[FN274\]](#Document1zzFN_B274)]{.underline}. Stigler, like many of
his contemporaries, eschewed an anthropomorphic view of the state and,
true to the tenets of his discipline, looked for answers under the
assumptions that governments are made up of individual people who are
rational actors, and who therefore behave according to the very same
principles, and in response to the same sorts of incentives, that
motivate market participants. What they assumed was true of private
choice, Stigler and his contemporaries assumed was also true of \"public
choice\" (the name given to the now-immense field of research that, for
the most part, has a similar premise). See supra text accompanying notes
303, 314-17 (discussing dispositionism of regulators).

[[\[FN275\]](#Document1zzFN_B275)]{.underline}. This is not meant to
imply that the people who run agencies are captured by the process.
According to the basic theory, their interests are advanced by the quid
pro quo inherent in the process. See George Stigler, The Theory of
Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 12-13 (1971)
(arguing that regulators may not antagonize regulated firms because they
want to keep their options open for a high-paying job with a firm upon
departing the regulatory agency).

[[\[FN276\]](#Document1zzFN_B276)]{.underline}. Stigler, supra note 70,
at 119.

[[\[FN277\]](#Document1zzFN_B277)]{.underline}. Id. at 118-20.

[[\[FN278\]](#Document1zzFN_B278)]{.underline}. This was one of several
ways in which neoclassical economics was attempting to demonstrate how
good regulatory intentions tend to create unintended (i.e., inefficient)
consequences. For an overview, see Milton Friedman, Bright Promises,
supra note 208, at 127-28.

[[\[FN279\]](#Document1zzFN_B279)]{.underline}. Stigler, supra note 70,
at 118.

[[\[FN280\]](#Document1zzFN_B280)]{.underline}. Id. at 119.

[[\[FN281\]](#Document1zzFN_B281)]{.underline}. See, e.g., Mancur Olson,
The Logic of Collective Action: Public Goods and the Theory of Groups
53-57 (1971) (discussing the effectiveness of small groups); Russell
Hardin, Collective Action 42-45 (1982) (reviewing Olson\'s analysis of
the correlation between group size and effectiveness). This topic of
what interests will be best able to influence regulation is central to
power economics and our theory of deep capture. We hope to return to it
in much greater detail in future works. In any event, we hope readers
might begin to see its relevance for questions far broader than simply
administrative regulation.

[[\[FN282\]](#Document1zzFN_B282)]{.underline}. This is not to say that
Stigler and other scholars, did not still see an important\--we think
too important\--role for dispositions. The work he began initiated a
great deal of scholarship that assumed that regulators were
dispositionally inclined to be captured. See, e.g., George J. Stigler,
Can Regulatory Agencies Protect the Consumer?, in The Citizen and the
State: Essays on Regulation 178, 181 (1975) (arguing that regulators and
regulation have often failed to protect the public interest relative to
the interests of the regulated industry because \"the logic and basic
forces of regulation\... dictate what type of men\... will typically be
appointed\" and emphasizing dispositional factors).

[[\[FN283\]](#Document1zzFN_B283)]{.underline}. Galileo\'s Abjuration of
June 22, 1633, in The Galileo Affair, supra note 234, at 292, 292.

[[\[FN284\]](#Document1zzFN_B284)]{.underline}. See supra text
accompanying notes 230-36.

[[\[FN285\]](#Document1zzFN_B285)]{.underline}. In 1611, Galileo
described his research methodology this way:

Over a period of two years now, I have tested my instrument (or rather
dozens of my instruments) by hundreds and thousands of experiments
involving thousands and thousands of objects, near and far, large and
small, bright and dark; hence I do not see how it can enter the mind of
anyone that I have simple-mindedly remained deceived in my observations.

Daniel J. Boorstin, The Discoverers 316 (1983).

[[\[FN286\]](#Document1zzFN_B286)]{.underline}. Galileo had, in his
lesser-known work in mechanics, divined the truth of Copernicus\'
revelations long before his invention of the telescope. Giorgio De
Santillana, The Crime of Galileo 5-6 (1955). But Galileo was aware of
how Copernicus had been mocked and marginalized for expressing those
views and thus opted to wait until he had compelling proof before
endorsing Copernican ideas. Id. at 11. In a letter to Kepler, Galileo
remarked:

Like you, I accepted the Copernican position several years ago and
discovered from thence the causes of many natural effects which are
doubtless inexplicable by the current theories. I have written up many
reasons and refutations on the subject, but I have not dared until now
to bring them into the open, being warned by the fortunes of Copernicus
himself\....

Id. The telescope provided Galileo with what he thought would be
\"irrefutable proof to any man in good faith,\" id., or, with what we
might describe as evidence so irrefutable as to pierce the ambiguity
supporting the then-conventional view.

[[\[FN287\]](#Document1zzFN_B287)]{.underline}. At the same time, it is
important to note that the Catholic Church was not an institution that
inherently spurned logic and empirical study. Its guiding philosophy,
Scholasticism, represented an attempt to wed divine revelation,
buttressed by faith, to Aristotelian logical deduction. Id. at 56-57.
Thus, the Church had no problem with, and actually encouraged,
Aristotelian science that generally limited itself to the basic study of
the natural world. Id.

What the Church (and with it, most of European society) valued above all
else, however, was not creativity but authority. Hence, the intellectual
establishment inhabited, and later critiqued, by Galileo was in many
ways profoundly backward-looking, in the sense that the \"the
progressive nature of human knowledge\" was entirely alien to it.
William R. Shea, Galileo\'s Intellectual Revolution: Middle Period,
1620-1632, at 31 (1972). Traditional science and philosophy were rooted
in the insights of the Bible and the work of Ancient Greek thinkers
(notably Aristotle). Scholars were to approach such authorities, not as
advocates of debatable propositions, but as bodies of revealed truth
from whom added insights could then be gained via the process of
deductive reasoning. See Pietro Redondi, Galileo: Heretic 52, 54-55
(Raymond Rosenthal, trans., Princeton Univ. Press 1987) (1983)
(\"Nature\--the Aristotelian professors of philosophy said\--has spoken
through the mouth of Aristotle.\").

[[\[FN288\]](#Document1zzFN_B288)]{.underline}. See, e.g., Psalms 103:11
(\"For, as high as heaven is above the \[E\]arth\....\"); Matthew 11:23
(\"\[W\]ill you be exalted to the skies? No, brought down to the
depths!\").

[[\[FN289\]](#Document1zzFN_B289)]{.underline}. Galileo wrote of
Copernicus\' dedication to realism:

And so he began to investigate what the system of the world could really
be in nature, no longer for the sole convenience of the pure astronomer,
whose calculations he had complied with, but in order to come to an
understanding of such a noble physical problem; he was confident that,
if one had been able to account for mere appearances by means of
hypotheses which are not true, this could be done much better by means
of the true and physical constitution of the world.

Galileo\'s Considerations on the Copernican Opinion (1615), in The
Galileo Affair, supra note 234, at 70, 74 (1989).

[[\[FN290\]](#Document1zzFN_B290)]{.underline}. Galileo stated that:

\"Philosophy is written in this grand book the universe, which stands
continually open to our gaze\.... But the book cannot be understood
unless one first learns to comprehend the language and to read the
alphabet in which it is composed. It is written in the language of
mathematics, and its characters are triangles, circles, and other
geometric figures, without which it is humanly impossible to understand
a single word of it\....\"

Dava Sobel, Galileo\'s Daughter 16 (1999) (quoting Galileo\'s The
Assayer, in Stillman Drake, Galileo (Oxford Univ. Press, 1996) (1980)).

Galileo\'s use of mathematics is crucial. The notion of scientific
empiricism was not, in and of itself, offensive to the Aristotelian
mindset embraced by the Church. Yet, in contrast to Aristotle\'s
relatively simplistic system that relied entirely on concrete
observations that human beings could make with their own senses, Galileo
posited a framework of analysis that was just as abstract and
theoretical as that of the Scholastics. See Redondi, supra note 287, at
52-53 (describing the intricate process of deciphering The Assayer). In
doing so, Galileo saw himself as a kind of \"philosopher of nature,\"
whose work was every bit as important to the project of understanding
Creation as that of the moralist or the theologian. Id. at 53. Thus, to
the established intellectual and religious hierarchy, Galileo\'s ideas
were deeply threatening.

[[\[FN291\]](#Document1zzFN_B291)]{.underline}. Neither Galileo nor
Copernicus was the first to discover the basic astronomical insights
that later made each of them famous. Indeed, many of the early
\"discoveries\" associated with the origins of modern science had been,
in other cultures, long known. As Dick Teresi recently summarized:

\[T\]he ancient Indians, long before Copernicus, knew that the \[E\]arth
revolved around the \[S\]un and, a thousand years before Kepler, knew
that the orbits of the planets were elliptical; the Arabs invented the
observatory and named most of our popular stars; the Chinese mapped the
sky; and the Amerindians noted important events with daggers of light or
optical snakes that thrill us to this day.

Dick Teresi, Lost Discoveries: The Ancient Roots of Modern
Science\--From the Babylonians to the Maya 92-93 (2002). The belief that
Copernicus or Galileo discovered that the Earth circled about the Sun is
tantamount to saying that Columbus discovered South America. It is
accurate only from an ethnocentric vantage point, a problem that plagues
many of our presumed accuracies. See supra text accompanying notes 28-30
(explaining the social psychological findings that people tend to view
themselves in self-affirming ways and make mental adjustments to
preserve that self-image).

[[\[FN292\]](#Document1zzFN_B292)]{.underline}. Aristotle originally
proposed that all celestial bodies were immutable perfect spheres, the
Earth being fixed at the center. See Sobel, supra note 290, at 170-71
(describing the geocentric Aristotelian world view in contrast to the
views of Salviati, Galileo and others). Ptolemy reasoned that this must
be so, since \"if the \[E\]arth were not at the center of the stellar
sphere, we should not be able to always see half of this sphere; but we
do see it\....\" Galileo\'s Reply to Ignoli (1624), in The Galileo
Affair, supra note 234, at 154, 168. When one looks at two fixed stars
opposite each other, such that one rises when the other sets, this shows
that the part of the sky above the Earth is equal to the part below, and
consequently that each is a hemisphere, and, since this phenomenon is
observable for all horizons, that the Earth is at its center. See id. at
168-69 (explaining the basis for Ptolemy\'s reasoning). Galileo called
the argument \"beautiful and worthy of Ptolemy\" but pointed to the (now
obvious) alternative explanation that \"if we let this sphere be still
and let the terrestrial globe turn on itself (as Copernicus does), then
regardless of where it is placed the same thing will happen to the two
fixed stars, namely their simultaneous rising and setting.\" Id.

[[\[FN293\]](#Document1zzFN_B293)]{.underline}. See Albert Van Helden,
Ptolemaic System, at http://
es.rice.edu/ES/humsoc/Galileo/Things/ptolemaic_system.html (last visited
Oct. 31, 2003) (\"Ptolemy was able to account for the motions of
heavenly bodies within the standards of observational accuracy of his
day. The idea was to break down the complex observed planetary motion
into components with perfect circular motions.\").

[[\[FN294\]](#Document1zzFN_B294)]{.underline}. Of course, Galileo\'s
theory was more complicated than the geocentric view and consequently
left many questions unanswered. Among other problems, a heliocentric
Earth, without gravity (a concept which was unavailable at the time)
could neither rotate nor revolve without sending its occupants flying.
The fact that most of the Earth\'s objects seemed fairly secure (with
the exception of the tower in Pisa) was a major reason that he
(incorrectly) turned to the tides for support of his view. See Sobel,
supra note 290, at 75 (outlining the problems with Galileo\'s theory
that the principle of gravity, then undiscovered, would have explained).

Legal economists justify eschewing realism in the name of maintaining a
theory that is falsifiable. As the Galileo story indicates, however,
there are major problems with that justification. First, there is no
reason to believe that the more realistic a model, the less falsifiable
it is. That much is clear from Posner\'s own example of the debate
between Galileo and Bellarmine. See supra text accompanying note 230.
Bellarmine\'s theory was clearly neither realistic nor falsifiable.
Second, even if more realistic theories are less falsifiable, that fact
does not justify ignoring reality. Absent a meta-rule explaining how
realism and falsifiability are to be traded off (again, assuming that
there is such a tradeoff), identifying the problem does not identify how
the tradeoff should be resolved. Thus, Posner\'s claim seems to be a
makeweight argument against realism. Furthermore, if Posner\'s position
is that his theory is superior because it is falsifiable, then he needs
to acknowledge that it has, indeed, been thoroughly falsified (or been
rendered, by his defenses, non-falsifiable). As we discuss elsewhere,
many previous economic theories have been falsified, including those
that resemble the simplistic models of law and economics. See Hanson &
Yosifon, supra note 30 (discussing biology\'s theory of \"spontaneous
generation\" and economists\' theories of intertemporal choice, revealed
preference, and assumptions of \"perfect information\" and \"stable
preferences\" have been more or less falsified.\"); Hanson et al., supra
note 84 (arguing that Posner\'s positive theory of tort law has been
falsified or is non-falsifiable, and provides an alternative positive
theory of tort law).

[[\[FN295\]](#Document1zzFN_B295)]{.underline}. Albert Einstein himself
dubbed Galileo \"the father of modern physics\--indeed of modern science
altogether.\" Sobel, supra note 290, at 326.

[[\[FN296\]](#Document1zzFN_B296)]{.underline}. As expressed in the
Papal Condemnation of June 22, 1633:

That the \[S\]un is the center of the world motionless is a proposition,
which is philosophically absurd and false and formally heretical for
being explicitly contrary to Holy Scripture;

That the \[E\]arth is neither the center of the world nor motionless but
moves even with diurnal motion is philosophically equally absurd and
false, and theologically at least erroneous in the Faith.

Sentence of June 22, 1633, in The Galileo Affair, supra note 234, at
287-88.

[[\[FN297\]](#Document1zzFN_B297)]{.underline}. The adherence to the
Ptolemaic model by university professors was a recurrent theme in
Galileo\'s attempt to bring forth evidence to support the Copernican
view. Professors from Pisa to Bologna to Padua rejected the telescope:
Magini, professor of astronomy in Bologna, promised the new planets
would be \"extirpated from the sky.\" De Santillana, supra note 286, at
9.

[[\[FN298\]](#Document1zzFN_B298)]{.underline}. Daniel Boorstin nicely
summarizes the sweeping threat of Galileo\'s findings to the fabric of
conventional theological and philosophic understandings of the universe:

Each of his simple observations shook another pillar of the
Aristotelian-Ptolemaic universe. Now, with his very own eyes, Galileo
had seen fixed stars beyond his capacity to count them (Was the Universe
infinite?). He had seen that the moon was not more perfect in shape than
the earth itself (Was there perhaps no difference, after all, between
the substance of celestial bodies and that of the Earth?). The Milky Way
then proven to be simply a mass of countless stars (Was there nothing,
after all, to the Aristotelian theory of celestial exhaltations? Were
heavenly processes not essentially different from those on Earth?).

Boorstin, supra note 285, at 320.

[[\[FN299\]](#Document1zzFN_B299)]{.underline}. See Sobel, supra note
290 at 4, 171 (describing how Dominican friar Giordano Bruno was burned
at the stake in 1600 in Rome for asserting heliocentric views of the
world, a fact of which Galileo was aware).

[[\[FN300\]](#Document1zzFN_B300)]{.underline}. See generally Bradley
Behrman, Civil Aeronautics Board, in Wilson, supra note 238, at 75.

[[\[FN301\]](#Document1zzFN_B301)]{.underline}. Galileo\'s Abjuration of
June 22, 1633, in The Galileo Affair, supra note 234, at 292, 292.

[[\[FN302\]](#Document1zzFN_B302)]{.underline}. Galileo Galilei, Two New
Sciences 153-54 (Henry Crew & Alfonso De Salvio, trans., Macmillan 1914)
(1638).

[[\[FN303\]](#Document1zzFN_B303)]{.underline}. See Stigler, supra note
70, at 114-15 (asserting that recent theories on government behavior no
longer attribute public policies to the suggestions of informed economic
advisors, but rather characterize policies as a response to pressure
from interested parties who aim to benefit from them).

[[\[FN304\]](#Document1zzFN_B304)]{.underline}. See supra Part II.E
(briefly describing \"interior\" and distinguishing it from
\"exterior\").

[[\[FN305\]](#Document1zzFN_B305)]{.underline}. See Sobel, supra note
290, at 6-7 (\"Galileo found himself lionized as another Columbus for
his conquests\....\").

[[\[FN306\]](#Document1zzFN_B306)]{.underline}. Id. at 11-12 (describing
Galileo\'s complex relationship with religion and the Catholic Church).

[[\[FN307\]](#Document1zzFN_B307)]{.underline}. Galileo was well-known
and well-liked by prominent Catholics, including the Medicis and Pope
Urban VIII. De Santillana, supra note 286, at 118, 160-62. Thus, the
pressure applied by the Inquisitors might have been reduced had Galileo
attempted only to persuade fellow professors or the Church hierarchy. By
taking his case to the Italian prelates, princes, gentlemen, and men of
business, however, and by writing in Italian rather than Latin, Galileo
presented a significant challenge to the Church. See Mario Biagioli,
Galileo, Courtier: The Practice of Science in the Culture of Absolutism
33-37 (1993) (analyzing Galileo\'s use of patronage relationships as a
source of power throughout his career).

[[\[FN308\]](#Document1zzFN_B308)]{.underline}. See Boorstin, supra note
285, at 323-25 (describing Galileo\'s campaign to \"interest literate
laymen in this new way of thinking\").

[[\[FN309\]](#Document1zzFN_B309)]{.underline}. Following the guilty
verdict, at which time he was seventy years old, Galileo was imprisoned
in his own home for the remainder of his life. Like so many radicals
before and after him, Galileo continued his work while imprisoned,
smuggling out of captivity two books for publication under an assumed
name, which would ultimately become the basis for the theory of dynamics
and gravity developed by Sir Isaac Newton. Boorstin notes that
Galileo\'s imprisonment was mitigated somewhat before his death:

Eventually the Pope allowed him the companionship of a young scholar,
Vincenzo Viviani, who reported Galileo\'s death on January 8, 1642, a
month before his seventy-eighth birthday. \"With philosophic and
Christian firmness he rendered up his soul to its Creator, sending it,
as he liked to believe, to enjoy and to watch from a closer vantage
point those eternal and immutable marvels which he, by means of a
fragile device, had brought closer to our mortal eyes with such
eagerness and impatience.\"

Id. at 326-27.

[[\[FN310\]](#Document1zzFN_B310)]{.underline}. See Redondi, supra note
287, at 501.

[[\[FN311\]](#Document1zzFN_B311)]{.underline}. Galileo\'s Letter to the
Grand Duchess Christina (1615), in The Galileo Affair, supra note 234,
at 87, 96-97.

[[\[FN312\]](#Document1zzFN_B312)]{.underline}. Bernard Hamilton, The
Medieval Inquisition 13 (1981). Heresy extended far beyond the act of
challenging the Church\'s central theological teachings; any
intellectual project that called into question the Church\'s fundamental
intellectual authority was subject to censure. Thus, Cardinal Bellarmine
condemned the Copernican cosmology as heretical not only (or
principally) because it ran afoul of a few passages in the Bible, but
because it stood in sharp contrast to a fundamental Aristotelian law of
physics, which said that \"the \[E\]arth, insofar, as it is the greatest
weight, tends naturally to that natural point which is the center.\"
Redondi, supra note 287, at 39. Because the Church had accepted
Aristotle as the final authority on the laws of nature, all others were
bound to do the same. Id.

[[\[FN313\]](#Document1zzFN_B313)]{.underline}. Galileo\'s Abjuration of
June 22, 1633, in The Galileo Affair, supra note 234, at 292.

[[\[FN314\]](#Document1zzFN_B314)]{.underline}. This is yet another
example of the tendency to infer dispositions from actions. See supra
text accompanying notes 150-78 (describing several experiments in which
participants tended to overestimate the role of disposition even when
situational influence should be obvious).

[[\[FN315\]](#Document1zzFN_B315)]{.underline}. See, e.g., Donald P.
Green & Ian Shapiro, Pathologies of Rational Choice Theory: A Critique
of Applications in Political Science 47-71 (1994) (analyzing the failure
of traditional rational choice theory to explain voter turnout).

[[\[FN316\]](#Document1zzFN_B316)]{.underline}. See, e.g., Mark Kelman,
On [[Democracy-Bashing: A Skeptical Look at the Theoretical and
\"Empirical\" Practice of the Public Choice Movement,
74](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0102017735&ReferencePosition=217)]{.underline}
[[Va. L. Rev. 199, 217-23
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0102017735&ReferencePosition=217)]{.underline}
(arguing that shifts in public policy demonstrate that public leaders
are not motivated purely by self-interest); see also Daniel A. Farber &
Philip P. Frickey, Law and Public Choice: A Critical Introduction 31
(1991) (describing evidence that \"one factor in how a legislator votes
is simply that legislator\'s view of the public interest\").

[[\[FN317\]](#Document1zzFN_B317)]{.underline}. See Farber & Frickey,
supra note 316, at 24-25, 28-33 (discounting the public choice theory as
the sole explanation for legislators\' actions). In such circumstances,
the literature sometimes accommodates such ideological behavior by
treating it as a manifestation of self-interest. See generally Joseph P.
Kalt & Mark A. Zupan, Capture and Ideology in Law and Economics, 74 Am.
Econ. Rev. 279 (1984); James B. Kau & Paul H. Rubin, Self-Interest,
Ideology, and Logrolling in Congressional Voting, 22 J.L. & Econ. 365
(1979). Instead of pursuing the analytic inquiry that this increasingly
non-falsifiable definition of self-interest would entail, scholars
relying on it typically just move on, leaving the dispositionist
rational actor whole and ready to be employed for the next analysis. A
critical realist approach places the exploration of the nature of
preference formation, and the location of its influences, at the start
of an analytic inquiry, instead of avoiding it as an unfortunate impasse
to simple, if unrealistic, analyses and seemingly clear policy
conclusions.

[[\[FN318\]](#Document1zzFN_B318)]{.underline}. Cf. Redondi, supra note
287, at 303 (suggesting that news of Galileo\'s condemnation, although
greeted \"by a salvo of Aristotelian criticism,\" did not rise above the
level of \"routine academic skirmishes\"). Galileo\'s trial itself was,
of course, a hidden proceeding\--a series of private interrogations that
the world did not learn about until after the fact. Id. at 326.

[[\[FN319\]](#Document1zzFN_B319)]{.underline}. Such situational
pressures are less likely to be visibly employed today. The fact that
burning people at the stake is now considered to be an unacceptable
violation of human rights does not mean that blatant situational force
is no longer used to elicit the appearance of free, voluntary action.
The still-significant problem of \"forced confessions\" is just one of
many possible examples of that phenomenon. See Jim Dwyer & Kevin Flynn,
New Light on Jogger\'s Rape Calls Evidence into Question, N.Y. Times,
Dec. 1, 2002, at A1 (discussing recent evidence that the convictions in
the Central Park jogger rape case were based on confessions that likely
were coerced); Susan Saulny, Convictions and Charges Voided in \'89
Central Park Jogger Attack, N.Y. Times, Dec. 20, 2002, at A1
(\"\[L\]awyers for three of the men\... contend that the confessions
were coerced by the police.\").

[[\[FN320\]](#Document1zzFN_B320)]{.underline}. The rehabilitation of
Galileo as an object of reverence was not accomplished until the
nineteenth century, when his cause was taken up by radicals like Auguste
Comte who portrayed him as a \"martyr of the religion of humanity.\"
Redondi, supra note 287, at 321. Today, Galileo is depicted in a
similar\--if not somewhat anach-ronistic\--light as a great crusader for
scientific fact against the superstitious monolith that was the early
modern Catholic Church. As the Indigo Girls sing, \"Galileo\'s head was
on the block, the crime was looking up the truth.\" Indigo Girls,
Galileo, on Rites of Passage (Sony Music Entertainment 1992).

[[\[FN321\]](#Document1zzFN_B321)]{.underline}. See Hanson & Yosifon,
supra note 30 (describing some phenomenon between groups); supra note
110 (discussing actor-observer bias).

[[\[FN322\]](#Document1zzFN_B322)]{.underline}. See supra text
accompanying notes 86-100 (outlining the Milgram experiment).

[[\[FN323\]](#Document1zzFN_B323)]{.underline}. Of course, there are
many dimensions of power, many of them overlapping. We believe that this
theory also predicts the operation of power in other social institutions
and along other dimensions and sources of power, including species,
gender, race, ethnicity, sexual orientation, age, and physical
attractiveness.

[[\[FN324\]](#Document1zzFN_B324)]{.underline}. See supra text
accompanying notes 117-21 (discussing the ways in which measuring value
by willingness to pay highlights a disposition while overlooking an
important situational element\--namely, ability to pay).

[[\[FN325\]](#Document1zzFN_B325)]{.underline}. See supra note 253
(providing evidence of the wealth controlled by corporations). Corporate
interests, to be sure, are not without competitors, such as churches,
foundations, nonprofit organizations, labor unions, trial attorneys,
aggregations of consumers, and individual consumers. In subsequent work
we hope to examine the relative power of such institutions vis-à-vis
corporations, and also the ways in which all of those institutions are
themselves targets of deep capture by large commercial interests.

[[\[FN326\]](#Document1zzFN_B326)]{.underline}. See supra text
accompanying note 280 (describing beekeepers\' advantages over honey
consumers in influencing beekeeper regulations).

[[\[FN327\]](#Document1zzFN_B327)]{.underline}. See supra Part V.A
(summarizing that literature)

[[\[FN328\]](#Document1zzFN_B328)]{.underline}. See supra text
accompanying notes 257-59 (briefly describing shared commercial ends);
Chen & Hanson, Illusion of Law I, supra note 84 (analyzing the schemas
of corporate law and how it benefits corporate interests)

[[\[FN329\]](#Document1zzFN_B329)]{.underline}. See Hanson & Kysar,
Taking Behavioralism Seriously I, supra note 251, at 724-43 (describing
and predicting methods by which manufacturers manipulate consumers);
Hanson & Kysar, Taking Behavioralism Seriously II, supra note 251, at
1428-1501 (illustrating consumer manipulation tactics, including those
used by the tobacco industry).

[[\[FN330\]](#Document1zzFN_B330)]{.underline}. See Hanson & Kysar,
Taking Behavioralism Seriously I, supra note 251, at 725
(\"\[S\]cholars\... have failed to see that manufacturers can take
advantage of such manipulability.\" (emphasis omitted)); Hanson & Kysar,
Taking Behavioralism Seriously II, supra note 251, at 1548-49
(describing \"Viscusi\'s failure to consider how the industry itself
might have influenced consumer risk perceptions and preferences\").

[[\[FN331\]](#Document1zzFN_B331)]{.underline}. Henry Hansmann & Renier
Kraakman, The [[End of History for Corporate Law, 89 Geo. L.J. 439, 452
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1146&FindType=Y&ReferencePositionType=S&SerialNum=0283051329&ReferencePosition=452)]{.underline}
(citations omitted).

[[\[FN332\]](#Document1zzFN_B332)]{.underline}. President George W.
Bush, President Outlines Plan to Improve Corporate Responsibility,
Remarks at Malcolm Baldrige National Quality Award Ceremony (Mar. 7,
2002), available at http://
www.whitehouse.gov/news/releases/2002/03/20020307-3.html; see also
[[President](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=2002WESTLAW14547111&FindType=Y)]{.underline}
[[George W. Bush, President Reiterates Call for Corporate
Responsibility, Remarks to Employees of America II Electronics (Mar. 8,
2002), 2002 WL
14547111](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=2002WESTLAW14547111&FindType=Y)]{.underline}
(\"We\'ve got thousands of citizens who own shares of publicly held
companies, many in pension plans, mutual funds, a lot of them direct
ownership. And this country must hold corporate CEOs\--CEOs of publicly
held companies, to the highest of high standards.\"), available at
http:// www.whitehouse.gov/news/releases/2002/03/20020308-4.html.

[[\[FN333\]](#Document1zzFN_B333)]{.underline}. Hansmann & Kraakman,
supra note 331, at 452.

[[\[FN334\]](#Document1zzFN_B334)]{.underline}. Id.

[[\[FN335\]](#Document1zzFN_B335)]{.underline}. Note that in both cases,
the attributions are self-affirming. We like to see ourselves as
thinking, free actors, and we like to think of our Earth as being
placed, apparently by God, at the center of the universe.

[[\[FN336\]](#Document1zzFN_B336)]{.underline}. Galileo wrote that:

\[T\]hough the Scripture cannot err, nevertheless some of its
interpreters and expositors can sometimes err in various
ways\....\[N\]ature is inexorable and immutable, and she does not care
at all whether or not her recondite reasons and modes of operations are
revealed to human understanding\....

\...\[T\]herefore, whatever sensory experience places before our eyes or
necessary demonstrations prove to us concerning natural effects should
not in any way be called into question on account of scriptural passages
whose words appear to have a different meaning, since not every
statement of the Scripture is bound to obligations as severely as each
effect of nature.

Correspondence from Galileo to Castelli (Dec. 21, 1613), in The Galileo
Affair, supra note 234, at 49, 49-50.

[[\[FN337\]](#Document1zzFN_B337)]{.underline}. In 1546, at the Fourth
Session of the Council of Trent, Church leaders launched the
Counter-Reformation, declaring that:

\[N\]o one relying on his own judgment shall, in matters of faith and
moral pertaining to the edification of Christian doctrine\... presume to
interpret \[the Holy Scriptures\] contrary to that sense which holy
mother Church, to whom it belongs to judge of their true sense and
interpretation, has held and holds, or even contrary to the unanimous
teachings of the Fathers.

Maurice A. Finocchiaro, Introduction to The Galileo Affair, supra note
234; see also id. at 11-12 (summarizing the political background of the
Counter-Reformation).

[[\[FN338\]](#Document1zzFN_B338)]{.underline}. As one scholar of
Galileo has noted:

Bellarmine\'s logic is relentless. If God is the author of Scripture,
everything in the Bible is true, whether it is essential to salvation or
merely a piece of accidental historical information. And his reason for
this is of crucial importance. \"It is necessary to believe them because
they were written.\" \...This truth condition, which is certainly not
limited to only Bellarmine\'s presentation, was clearly destined to
clash with Galileo\'s scientific standard of truth.

Richard J. Blackwell, Galileo, Bellarmine, and the Bible 32 (1991).

[[\[FN339\]](#Document1zzFN_B339)]{.underline}. Cf. De Santillana, supra
note 286, at 326-27 (noting that Galileo was an \"anticlerical
Catholic,\" not a Protestant).

[[\[FN340\]](#Document1zzFN_B340)]{.underline}. See Redondi, supra note
287, at 209 (describing the Protestant challenge to the Catholic
doctrine of transubstantiation).

[[\[FN341\]](#Document1zzFN_B341)]{.underline}. The battle was not
played out merely in the minds of Europeans\-- great armies also were
clashing on European soil. On the eve of Galileo\'s trial, the Thirty
Years War (1618-1648) was going extremely badly for the Catholic side.
In 1632, the Protestant King of Sweden, Gustavus Adolphus, broke through
the armies of the Catholic Holy Roman Emperor in Germany and advanced on
Italy. He probably would have crossed the Alps and marched on Rome
itself but for his own untimely death that same year. See id. at 231. It
was at this time, in February of 1632, that Galileo published The
Dialogue, in which he called into question the entire framework of
Aristotelian cosmology advanced by the Church. See De Santillana, supra
note 286, at 38, 186. (acknowledging dispute between Galileo and
Aristotelians and citing 1632 as the date of publication). So it was
that Galileo slammed into an entire framework of intellectual,
spiritual, and political power and authority that already felt itself to
be under attack. Consequently, the Pope was in no mood to be indulgent,
especially since Bellarmine had forbidden Galileo to advance
heliocentrism in 1616. In response to a plea by the Tuscan ambassador
for lenience, the Pope supposedly \"exploded in anger,\" saying that in
his \"perverse material,\" Galileo had, \"dared enter where he should
not, into the most grave and dangerous subjects that one could possibly
raise at the moment.\" Redondi, supra note 287, at 256.

Had Galileo and his discoveries come earlier, at a time when the
Catholic Church was not losing power and influence, his findings and
ideas might have met a more hospitable audience. Indeed, it was not
until well into the twentieth century and the current Pope\'s tenure
that the Church apologized for silencing Galileo. See William D.
Montalbano, Earth Moves for Vatican in Galileo Case, L.A. Times, Nov. 1,
2002, at A3 (\"The Roman Catholic Church has admitted to erring\... in
formally condemning Galileo Galilei for entertaining scientific truths
it long denounced as against-the-Scriptures heresy.\"); Alan Cowell,
After 350 Years, Vatican Says Galileo Was Right: It Moves, N.Y. Times,
Oct. 31, 1992, at A1 (\"More than 350 years after the Roman Catholic
Church condemned Galileo, Pope John Paul II \[will\] rectify one of the
Church\'s most infamous wrongs\--the persecution of the Italian
astronomer and physicist for proving the Earth moves around the Sun.\").

[[\[FN342\]](#Document1zzFN_B342)]{.underline}. See supra text
accompanying notes 248-51 (noting the situational pressures on market
actors to maximize profits); see also Hansmann & Kraakman, supra note
331, at 441-42 (describing the \"interests\" of institutions\--profit
maximization); Chen & Hanson, Illusion of Law I, supra note 84
(describing those situations in detail).

[[\[FN343\]](#Document1zzFN_B343)]{.underline}. See also supra notes
256-60 and accompanying text (making a related point and providing some
evidence in support).

[[\[FN344\]](#Document1zzFN_B344)]{.underline}. See [[Coalition of
Business Interests is Mobilizing Support for NAFTA, 10 Int\'l Trade Rep.
(BNA) 314, at 314-15 (Feb. 24,
1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3005&FindType=Y&ReferencePositionType=S&SerialNum=0106221293&ReferencePosition=314)]{.underline}
(reporting that a coalition of business interests comprised of over a
thousand organizations was lobbying in support for NAFTA).

[[\[FN345\]](#Document1zzFN_B345)]{.underline}. See David R. Lagasse,
[[Undue Influence: Corporate
Political](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3033&FindType=Y&ReferencePositionType=S&SerialNum=0106527332&ReferencePosition=1385)]{.underline}
[[Speech, Power and the Initiative Process, 61 Brook. L. Rev. 1347, 1385
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3033&FindType=Y&ReferencePositionType=S&SerialNum=0106527332&ReferencePosition=1385)]{.underline}
(describing the collaborative creation of the Business Roundtable as a
corporate lobbying organization).

[[\[FN346\]](#Document1zzFN_B346)]{.underline}. See Jon Hanson, Adam
Wright & David Yosifon, The Situational Stakes of Dispositionism
(unpublished manuscript, on file with authors).

[[\[FN347\]](#Document1zzFN_B347)]{.underline}. Aspects of this script
are described in Chen & Hanson, Illusion of Law I, supra note 84.

[[\[FN348\]](#Document1zzFN_B348)]{.underline}. See Melvin Aaron
Eisenberg, [[Bad Arguments in Corporate Law, 78 Geo. L. J. 1551, 1551-52
(1990)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1146&FindType=Y&ReferencePositionType=S&SerialNum=0101291521&ReferencePosition=1551)]{.underline}
(discussing the use of the Nirvana Fallacy to defend markets); Kenneth
Sanney, [[Cyberjacking, Mousetrapping, and the FTC Act: Are Federal
Consumer Protection Laws Helping or Hurting Online Consumers?, 3 Vand.
J. Ent. L. & Prac. 221, 233 n.40
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=136945&FindType=Y&ReferencePositionType=S&SerialNum=0287162397&ReferencePosition=233)]{.underline}
(defining the law of unintended consequences and discussing its
invocation).

[[\[FN349\]](#Document1zzFN_B349)]{.underline}. See supra text
accompanying notes 7, 303 & 314.

[[\[FN350\]](#Document1zzFN_B350)]{.underline}. Jean-Jacques Rousseau,
Emile 236 (Allan Bloom trans., Basic Books 1979) (1762).

[[\[FN351\]](#Document1zzFN_B351)]{.underline}. Alex Carey, Taking the
Risk Out of Democracy: Corporate Propaganda Versus Freedom and Liberty
18 (Andrew Lohrey ed., 1995).

[[\[FN352\]](#Document1zzFN_B352)]{.underline}. It is important to note
that the deep capture prediction that large commercial interests will
wield disproportionate influence over \"knowledge\" is not limited to
simply dispositionism and dispositionist tendencies. We use
dispositionism as an extremely important example of pro-commercial
\"knowledge.\" For other examples, see Chen & Hanson, Illusion of Law I,
supra note 84 (describing the deeply-captured schemas of policymakers
and corporate law).

[[\[FN353\]](#Document1zzFN_B353)]{.underline}. See Hanson & Yosifon,
supra note 30.

[[\[FN354\]](#Document1zzFN_B354)]{.underline}. See supra pp. 307-12
(describing Galileo\'s struggle against the intellectual establishment
of the Renaissance).

[[\[FN355\]](#Document1zzFN_B355)]{.underline}. See supra text
accompanying notes 305-17 (explaining why Stigler\'s shallow capture
theory and evidence have far deeper implications than he appreciated).

[[\[FN356\]](#Document1zzFN_B356)]{.underline}. [[Olmstead v. United
States, 277 U.S. 438, 479
(1928)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1928126400&ReferencePosition=479)]{.underline}.

[[\[FN357\]](#Document1zzFN_B357)]{.underline}. Michael Powell, son of
Colin Powell, was appointed by President Clinton to the Commission in
1997 and was designated Chairman by President Bush in 2001. Since
joining the FCC, Powell\'s deregulatory rhetoric has coincided with
wide-ranging deregulatory action. It may be helpful to highlight a few
of the key deregulatory actions of the FCC within the past several
months. On February 20, 2003, the FCC voted to eliminate regulations
that required the Bell telephone companies to lease broadband Internet
access to competitors at discounted rates. Jonathan Krim, FCC Delivers
Mixed Vote on Competition: Phone Giants Prevail on High-Speed Internet,
Wash. Post, Feb. 21, 2003, at A1. On May 15, the FCC voted to eliminate
a 40-year-old standard that restricted the leasing of airwaves. The new
regulation allows airwaves license-holders to work out leasing deals
without prior FCC approval. Yuki Noguchi, FCC to Let Companies Sublease
Airwaves, Wash. Post, May 16, 2003, at E5. On June 2, the FCC relaxed
regulations that limit the cross-ownership of newspapers and television
stations. Frank Ahrens, FCC Eases Media Ownership Rules: Party-Line Vote
Clears Way for More Consolidation, Wash. Post, June 3, 2003, at A1. The
FCC regulation would combine two cross-ownership rules\--one preventing
newspaper and broadcast station ownership in the same city and another
limiting radio and TV station ownership in the same market\--into a
single rule that would lift most current restrictions. Frank Ahrens, FCC
Plan to Alter Media Rules: Spurs Growing Debate, Wash. Post, May 28,
2003, at A1 \[hereinafter Ahrens, FCC Plan\]. The plan would
substantially raise the number of television stations a company may own
and allow a company to reach up to 45% of the national audience, up from
35%. It would also relax a ban on newspaper and broadcast
cross-ownership in local markets. Mark Wigfield & John R. Wilke, FCC
Plan Draws Fire: Senators Introduce Bill to Keep Current Media-Ownership
Limits, Wall St. J., May 14, 2003, at B4. The decision has met with
strong resistance. Senators and House Representatives both sponsored
bills that would return the cap on television ownership to 35%. Frank
Ahrens, FCC Rule Fight Continues in Congress: Opponents of Ownership
Consolidation Also Plan Legal Strategy, Wash. Post, June 4, 2003, at E1.
In fact, on September 16, the Senate voted 55 to 40 to override all of
the new media ownership rules. Frank Ahrens, Senate Votes to Block FCC
Media Rules, Wash. Post, Sept. 17, 2003, at A14. The White House has
refused to back down. Id.

[[\[FN358\]](#Document1zzFN_B358)]{.underline}. Michael K. Powell,
Chairman, Federal Communications Commission, Consumer Policy in
Competitive Markets, Remarks Before the Federal Communications Bar
Association, at http:// www.fcc.gov/Speeches/Powell/2001/spmkp106.html
(June 21, 2001).

[[\[FN359\]](#Document1zzFN_B359)]{.underline}. Id.; see also Stephen
Labaton, Policy Defeat Puts F.C.C. Chief in Awkward Spot, N.Y. Times,
Feb. 22, 2003, at C1 (\"Powell\...has set an ambitious agenda of
relaxing or removing many regulations that have limited the nation\'s
largest media conglomerates from becoming bigger or entering new
markets.\").

[[\[FN360\]](#Document1zzFN_B360)]{.underline}. See supra text
accompanying notes 282, 303 (describing Stigler\'s critique of the
supposed neutrality and public spirit of regulatory agencies).

[[\[FN361\]](#Document1zzFN_B361)]{.underline}. At a three-hour hearing
on June 4, 2003, before Republican Senator John McCain\'s Committee on
Commerce, Science and Transportation, many senators expressed criticism
over several of Powell\'s FCC decisions, most prominently the vote to
allow broadcast networks to buy more television stations. See, e.g.,
Frank Ahrens, Senators Attack FCC Rules: Most on Oversight Panel Sign on
to Revise Changes, Wash. Post, June 5, 2003, at E4 (\"\'It looks for all
the world like you could not or would not stand up to corporate
interests\....\"\') (quoting Democratic Senator Byron L. Dorgan); id.
(\"\'Where in the world do you find the grounds for 45 percent?\"\')
(quoting Democratic Senator Ernest F. Hollings).

[[\[FN362\]](#Document1zzFN_B362)]{.underline}. Powell, supra note 358.
Much of Powell\'s rhetoric is based on the idea that regulations inhibit
innovations that would directly benefit the public. In defending the
vote to allow airwaves license-holders to lease without prior FCC
approval, Powell said, \"\'\[o\]ur decision unlocks value trapped for
too many years in a regulatory box.\"\' David Ho, FCC Votes to Let
Cell-Phone Firms Lease Airwaves, Phila. Inquirer, May 16, 2003, at C2
(quoting Powell). He added that the decision \"\'will expand spectrum
access for innovators and entrepreneurs, increasing the number and
variety of wireless applications available to consumers.\"\' Id.
(quoting Powell).

Powell sees the recent move to deregulate cross-ownership rules as
similarly bolstering the public interest by expanding consumer choice.
According to Powell, in situations where a corporation has received a
waiver to own both a newspaper and a television station in the same
city, the result has been better local news coverage. Ahrens, FCC Plan,
supra note 357, at A1. In addition, he has suggested that network
owned-and-operated television stations typically produce more local news
than those not owned by networks. Id. In his words, it \"\'has become
more difficult to simply assert that an ownership restriction is
essential to promoting diverse viewpoints where so many outlets and
owners thrive\....\"\' Associated Press, FCC to Vote on Media Ownership
Rules, San Diego Union Trib., Mar. 28, 2003, at C2 (quoting Powell).

Powell also justifies the cross-ownership changes by claiming they help
support public-interest programming. In his view, if cable continues to
eat away at broadcast, public-interest programming will be jeopardized
because cable channels are under no FCC obligation to provide such
programming. Ahrens, FCC Plan, supra note 357. Allowing media companies
to buy more stations, which typically return profits of 20 to 30%, would
help ensure continued free, over-the-air public-interest broadcasting to
the roughly 15% of viewers who do not have cable or satellite
television. Id.

Although Powell has described public-interest programming as necessary,
he is uncomfortable with the FCC deciding what it should be. \"\'If
you\'re using the government will to impose \"castor oil\" or \"eat your
vegetables\" programming, you\'d better be a little bit concerned that
you\'re going to allow three of five unelected officials to unduly
impose what they prefer to see on TV.\"\' Id. (quoting Powell).

[[\[FN363\]](#Document1zzFN_B363)]{.underline}. Powell, supra note 358.

[[\[FN364\]](#Document1zzFN_B364)]{.underline}. While our main emphasis
in this Article is on how corporations indirectly capture the way we see
and understand the world, we do not mean to suggest that corporations
are not expending a great amount of energy on directly influencing
regulators as well. In anticipation of the FCC\'s recent decision on how
Bell telephone companies lease lines to competitors, \"\[t\]he Bells
spent hundreds of millions of dollars in a furious lobbying campaign to
convince Congress and the FCC that they could not be expected to push
broadband out into rural areas, or invest in new, advanced networks, if
they were forced to then lease them to rivals.\" Krim, supra note 357,
at A1. Moreover, between 1999 and 2002, the top twenty-five media
companies spent \$82 million on lobbying the FCC and Congress and
contributed \$26.7 million in individual, PAC, and soft money donations.
Ctr. for Responsive Politics, Tracking the Payback: Media Ownership, at
http://www.opensecrets.org/payback/issue.asp? issueid=MO1&CongNo=108
(last visited Oct. 16, 2003).

One of the main forces behind the FCC\'s recent decision to relax
regulations that limit the cross-ownership of newspapers and television
stations was Victor Miller, a media analyst at Bear Stearns.
Coincidentally, Bear Stearns has banking and underwriting relationships
or has rated stocks in at least fifteen media companies directly
affected by the FCC\'s proceedings. Mark Wigfield, Bear Stearns Analyst
Helps FCC Reshape Ownership Rules, Wall St. J., June 2, 2003, at C1.
Yet, the media ties do not appear to have resulted in Miller\'s advice
being discounted. According to Susan Eid, Counsel to the FCC Chairman,
Miller \"\'is enormously helpful as you sort through the economic issues
and financial issues in the industry.\"\' Id. (quoting Eid). In the
words of Eid, \"\'His analysis is rock-solid.\"\' Id. (quoting Eid).

Miller\'s example highlights a general trend. \"Wall Street\'s views
have become increasingly important at the FCC since the 1996
Telecommunications Act began substituting market competition for
regulation as the best way to ensure that the nation\'s airwaves are
used in the public interest.\" Id. Today, the FCC appears to rely
heavily on non-governmental private data for a range of critical
regulatory factors such as \"ownership, audience reach and cable
subscribers.\" John Dunbar, Ctr. for Pub. Integrity, A Penchant for
Secrecy: Why is the FCC So Determined to Keep Key Data from the Public?,
at http:// www.openairwaves.org/telecom/report.aspx?aid=18 (May 22,
2003). A more general reliance on corporations, analysts, and investors
in policy making has led some critics to question the neutrality of the
regulatory process. Between September 2002 and June 2003, the nation\'s
top broadcasters had over seventy face-to-face meetings with FCC
officials behind closed doors. Bob Williams, Ctr. for Pub. Integrity,
Behind Closed Doors: Top Broadcasters Met 71 Times With FCC Officials,
at http://www.publicintegrity.org/dtaweb/report.asp?
ReportID=526&L1=10&L2=10&L3=0&L4=0&L5=0 (May 30, 2003).

The closed-door sessions, which are officially called ex parte meetings,
are allowed under FCC rules. The meetings are not recorded, nor are the
participants required to keep detailed minutes of the sessions. Non-FCC
people who participate in the meetings are supposed to file a notice of
the session by the end of the following day. The notice is supposed to
include a summary of what was discussed.

Id. During that same period, the FCC met with two major consumer groups
only five times. Id. Faced with this heavy lobbying, even Powell has
begun to question the benefits of an increasingly close relationship
with interest groups: \"\'I do think \... that sometimes it gets out of
hand\.... I often think that we need time to do our work rather than
hear pitches.\"\' Id. (quoting Powell).

But then as bad as \"pitches\" are, they may not be as troubling as the
\"perks\" passed on to FCC employees in recent years by big business.
The Center for Public Integrity reports that companies and industry
groups paid \$2.8 million over the past eight years for 2,500 trips by
agency officials. Bob Williams & Morgan Jindrich, Ctr. for Pub.
Integrity, On the Road Again\--And Again: FCC Racks up \$2.8 Million
Travel Tab with Industries They Regulate, at http://
www.openairwaves.org/telecom/report.aspx?aid=15 (May 22, 2003).
Ninety-eight of the trips were to London, which is not even in the
FCC\'s jurisdiction. Id. The biggest sponsor happened to be the National
Association of Broadcasters. Id.

There are still other unsettling statistics concerning the \"revolving
door\" between industry and regulators. For example, before coming to
the FCC, Powell worked at the law firm of O\'Melveny & Myers LLP, of
which the GTE Corporation was a major client. GTE later merged with Bell
Atlantic to form Verizon, the largest local phone company in the United
States, but Powell never recused himself from participating in
deliberations or votes relating to either company. Nathaniel Heller,
Ctr. for Pub. Integrity, New FCC Chairman Had Big Telephone Player as a
Major Client, at
http://www.public-i.org/dtaweb/report.asp?ReportID=135&L1=10&L2=70&L3=15&L4=0&L5=0&State=&
Year=2001 (Feb. 13, 2001). To be sure, his actions appear to have been
within the letter of the law. The Code of Federal Regulations requires
only a one-year cooling-off period. [[5 C.F.R.
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=5CFRS2635.502&FindType=L)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=5CFRS2635.502&FindType=L)[
2635.502(b)(1)(iv)
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=5CFRS2635.502&FindType=L)]{.underline}.
However, one wonders how well his actions comport with the spirit of
that law. Since the time Powell took office through the present, Verizon
has had many regulatory issues before the FCC, relating from cell phones
to the Internet. And in his role as Commissioner, Powell has often taken
the pro-Verizon position, bemoaning what he sees as the harsh
\"interconnection and market-opening requirements\" imposed on GTE and
others. Id.

Passing through that same door, but in the opposite direction, Dorothy
Attwood quit her job last year as chief of the FCC\'s Wireline
Competition Bureau and two months later was working at SBC
Communications, guiding the telecom company through the FCC policies on
local telephone competition that she helped draft. John Dunbar, Ctr. for
Pub. Integrity, The FCC\'s Rapidly Revolving Door, at
http://www.public-i.org/dtaweb/report.asp?
ReportID=510&L1=10&L2=10&L3=0&L4=0&L5=0 (Feb. 19, 2003) \[hereinafter
Dunbar, FCC\'s Rapidly Revolving Door\]. Attwood was not a minor player.
As Powell stated several months before Attwood departed, \"She has
played an integral role in the FCC\'s implementation of the
Telecommunications Act of 1996, and in shaping our policies in the
transition to a more competitive telecommunications environment.\" Press
Release, Federal Communications Commission, Powell Announces Changes in
Wireline Competition Bureau 1, at http://
hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-223658A1 (June 21, 2002).
Yet, according to the letter of the law, she was not senior enough to
fall under the \"cooling-off period\" ban. [[5 C.F.R.
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=5CFRS2637.204&FindType=L)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=5CFRS2637.204&FindType=L)[
2637.204
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=5CFRS2637.204&FindType=L)]{.underline}.
Since she began at SBC, Attwood has met with FCC officials, including
Powell\'s senior legal advisor, four times. Dunbar, FCC\'s Rapidly
Revolving Door, supra.

Attwood and Powell are not anomalies. In fact, over the last decade,
several dozen FCC workers have crossed the busy threshold from regulated
industry to regulator or the other way around. Id. Some have taken to
straddling the worlds on both sides of that threshold. Former FCC
Chairman Richard Wiley is now a senior partner at the lobbying firm of
Wiley, Rein & Fielding LLP. Steven Weiss, Interview: Richard Wiley,
Capital Eye (June 2, 2003), at http://
www.capitaleye.org/inside.asp?ID=85. He often appears on the so-called
eighth floor of the FCC to lobby key decision makers on behalf of media
clients like Belo Corporation, Clear Channel, and Gannett. Id.

Not everyone is turning a blind eye to the matter. On June 13, 2003,
Senator McCain proposed a reauthorization bill that would give the FCC
greater authority to regulate and limit the \"revolving door\" influence
on the agency. Statement by Senator John McCain on the Federal
Communications Commission Reauthorization Act of 2003 (June 13, 2003),
available at http://
www.senate.gov/\~commerce/newsroom/printable.cfm?id=205012. To decrease
the influence of the media industry, the bill would bar top staffers
from lobbying for one year after leaving the FCC. See id. (recounting
the various elements of the reauthorization bill). It would also bar
companies and other interest groups from paying travel expenses of FCC
officials for flights to nongovernment sponsored conferences, meetings,
and events. Id.

Unfortunately, these remedies may not ultimately solve the regulatory
capture dilemma because they do not go far enough. They do not
acknowledge the problem that people perceive the playing field as
reasonably level even when it is not. In the debate leading up to the
recent changes in media ownership rules, former FCC Chairman Riley saw a
fair tournament of ideas between consumer groups and media corporations:
\"\[A\] lot of players have gotten onto the field and are participating
in the process at the commission. So there\'s a lot of lobbying, pro and
con.\" Weiss, supra. In his opinion:

Money may permit you to get in the door, but I don\'t think it buys
people\'s votes. Members of Congress are elected because they have
strong viewpoints and they\'re very well-informed people. I don\'t think
they\'re bought and sold quite as effectively or quite as much as people
allege in the campaign finance area.

Id. That he once ran the agency, he believes, is largely irrelevant:

Decisions of the commission are made on the merits. I don\'t want to put
myself or other former commissioners down, but it\'s what you\'re
bringing in there in terms of the merits that is going to win cases at
the FCC. I truly believe that. Hopefully people who know the commission
process can help their clients sort through it, but\... I don\'t think
anybody rolls over because a former chairman or former commissioner
comes in\.... I\'ve won some, I\'ve lost some, and I think that\'s true
of other lawyers around town.

Id.

We do not claim that there is no competition for regulatory influence,
or that all commercial interests will always agree on every regulatory
policy, or that one side of the competition will always win. There does
appear to be a playing field, and, as these examples illustrate, the
competition over regulatory policy can be robust. See Stephen Labaton,
F.C.C. Chief Talks of Frustration and Surprise, N.Y. Times, Sept. 22,
2003, at C1 (describing the competing interests in regulatory policy).
The existence of a competition, however, is not proof of a fair,
meritocratic process, as Wiley seems to suggest. It is still possible to
predict which groups will be advantaged or disadvantaged by the playing
field and the rules of the game. And that is the stuff of shallow
capture. Furthermore, and this is a major theme of this Article, there
are ways of conceptualizing human actors, markets, and regulations in a
way that is broadly pro-commercial. As we have argued, the
dispositionist perspective that frames the discussions and debates about
regulatory policy itself tends toward pro-market and anti-regulatory
policies. That is part of what we mean by deep capture.

Consider the following metaphor: In Major League Baseball, there are
thirty teams, which compete not just on the field in games, but also off
the field in recruiting the best players to play for their teams. While
on-the-diamond competition is played on a level field, the off-the-field
competition is not; the wealthiest teams have a huge advantage in
recruiting top players because they can offer much higher salaries. So
while there is still some competition\--you still have to throw strikes
and score runs\--off-the-field situational advantages have tremendous
impacts on on-the-field outcomes. In 1999, for example, all eight teams
that made the playoffs were among the top ten highest salaried teams in
the league. Although the tenth-highest salaried team made the playoffs
and the fourth-highest did not, none of the twenty lowest salaried teams
made it. In the 1999 World Series, the team with the league\'s highest
payroll, the New York Yankees, defeated the team with the league\'s
third-highest payroll, the Atlanta Braves. While there is a playing
field, the playing field is not level, and the situation of the playing
field affects outcomes. See Lani Canfield Fisher, October is For the
Rich, 19 J. Cosmic Baseball Ass\'n (2000) (describing the payroll
figures for major league teams and their relationship to post-season
appearances), at http:// cosmicbaseball.com/jcba19_octo.html.

[[\[FN365\]](#Document1zzFN_B365)]{.underline}. Powell\'s convictions as
to the righteousness of deregulation are unflappable. After being
challenged by those calling for more public input into the FCC\'s
changes to media ownership rules, Powell retorted: \"\'You don\'t govern
just by polls and surveys\... We have to exercise difficult judgments
and abide by the law. If all of our rulemaking was just a case of put
them out and take a referendum, things would be a lot easier.\"\'
Ahrens, FCC Plan, supra note 357 at A1 (quoting Powell). \"\'I have had
to make peace with myself, to know myself, to know with every fiber of
my being and intellect and faith with the law that this is the right
answer, at least in the short term\.... Though it\'s not the popular
answer.\"\' Frank Ahrens, FCC Set to Vote on Easing Media Ownership
Rules, Wash. Post, June 2, 2003, at A6 (quoting Powell).

[[\[FN366\]](#Document1zzFN_B366)]{.underline}. Powell, supra note 358.

[[\[FN367\]](#Document1zzFN_B367)]{.underline}. Id.

[[\[FN368\]](#Document1zzFN_B368)]{.underline}. Id.

[[\[FN369\]](#Document1zzFN_B369)]{.underline}. Id.

[[\[FN370\]](#Document1zzFN_B370)]{.underline}. Id.

[[\[FN371\]](#Document1zzFN_B371)]{.underline}. Powell is quite adamant
in this respect:

I don\'t know of another economic system in the history of the world
that\'s produced as much consumer welfare for its citizenry as American
capitalism has. You name to me the state central plan system that better
served the maximum consumer welfare of its citizens as the free market
did in American stock capitalism? I think that\'s the penultimate
conclusion of the end of the 20th Century that not only did democracy
prevail, as a social value and political value, but the capital economy
prevailed as the leading environment for the welfare of citizens and for
the ferment of innovation and revolution.

Transcript of Conversation Between FCC Chairman Michael K. Powell and
Sam Donaldson at the NAB 2001 Convention 4 (Apr. 24, 2001), available at
http:// www.fcc.gov/Speeches/Powell/2001/spmkp102.pdf.

[[\[FN372\]](#Document1zzFN_B372)]{.underline}. Fed. Trade Comm\'n,
Vision, Mission & Goals, at http:// www.ftc.gov/ftc/mission.htm (last
updated June 17, 1999).

[[\[FN373\]](#Document1zzFN_B373)]{.underline}. Kenneth W. Clarkson &
Timothy J. Muris, [[Constraining the
Federal](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3194&FindType=Y&ReferencePositionType=S&SerialNum=0101274749&ReferencePosition=81)]{.underline}
[[Trade Commission: The Case of Occupational Regulation, 35 U. Miami L.
Rev. 77, 81
(1980)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3194&FindType=Y&ReferencePositionType=S&SerialNum=0101274749&ReferencePosition=81)]{.underline}
(citation omitted). The FTC made a similarly revealing statement in
1978:

The public policy of this country favors the existence of free markets
to the maximum extent possible. While the complexity of the modern
economy often necessitates a departure from free market organization, as
a general proposition a market-perfecting solution to a perceived
problem is preferable. There should be a heavy burden of proof on those
who would opt for a different form of economic organization\....

Advertising of Ophthalmic Goods and Services, 43 Fed. Reg. 24,001 (June
2, 1978). Former FTC Commissioner Thomas B. Leary stated that,
\"consumer freedom implies the right to buy in open markets\....\"
Thomas B. Leary, Freedom as the Core Value of Antitrust in the New
Millennium, 68 Antitrust L.J. 545, 553 (2000); see also Thomas B. Leary,
Commissioner, Federal Trade Commission, The Federal Trade Commission and
the Defense of Free Markets, Remarks Before the David T. Chase Free
Enterprise Institute, Eastern Connecticut State University (Oct 7, 2002)
\[hereinafter Leary, Defense of Free Markets\] (describing how the FTC
is devoted primarily to protecting the freedom of sellers to sell and
buyers to buy what they choose and the role of efficiency-oriented
scholars in promoting that now-conventional view of the FTC), available
at http:// www.ftc.gov/speeches/leary/willimantic.pdf.

[[\[FN374\]](#Document1zzFN_B374)]{.underline}. Timothy J. Muris,
[[Economics and Consumer Protection, 60 Antitrust L.J. 103, 104
(1991)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1091&FindType=Y&ReferencePositionType=S&SerialNum=0101744301&ReferencePosition=104)]{.underline}.

[[\[FN375\]](#Document1zzFN_B375)]{.underline}. Id.

[[\[FN376\]](#Document1zzFN_B376)]{.underline}. Id. at 105-06.

[[\[FN377\]](#Document1zzFN_B377)]{.underline}. See id. at 117
(contrasting the competition-motivated FTC enforcement in the 1950s and
1960s with the consumer-oriented policy that developed in the 1970s).

[[\[FN378\]](#Document1zzFN_B378)]{.underline}. See, e.g., H.R. Rep. No.
98-156, pt. 1, at 37 (1983) (\"Normally we expect the marketplace to be
self-correcting, and we rely on consumer choice\--the ability of
individual consumers to make their own private purchasing decisions
without regulatory intervention\--to govern the market.\"); Leary,
Defense of Free Markets, supra note 373, at 5 (describing the \"New
Learning\--an efficiency-orientated view of antitrust \[as\], today,
mainstream competition law\"). According to Leary:

Although we may differ on the facts of individual cases, all of my
\[FTC\] colleagues agree that the objective is to maximize efficient
outcomes. We all start in the same place and we are all trying to do the
same thing. This broad consensus is a great demonstration of the power
of ideas and, in my view, has made an immense contribution to consumer
welfare.

Id.

[[\[FN379\]](#Document1zzFN_B379)]{.underline}. Although we were unable
to find much of his writing, it is widely understood that Hal Stratton,
Chair of the Consumer Product Safety Commission has similar, strong
pro-market, anti-regulation presumptions. See, e.g., New Mexico Attorney
General Stratton Repudiates NAAG\'s Horizontal Guidelines, Antitrust &
Trade Reg. Rep., Issue No. 1314, at 869-70 (May 7, 1987) (describing
Stratton\'s objection that the merger guidelines proposed by the
National Association of Attorneys General (\"NAAG\") \"needlessly impose
government regulation in the market place\" in a way that
\"unnecessarily interfere\[s\] with market forces\" and \"that will
prejudice both legitimate business reorganization and consumer
welfare\"); Hal Stratton, Attorneys General in State of Collusion, Wall
St. J., June 10, 1988, at 22, col. 4 (attributing NAAG\'s movement in
this direction to \"\[s\]ome ambitious, high-profile attorneys general
\[that\]\...are using the cover of \'consumer protection\' to impose
their own anti-business, pro-government-regulation views on the entire
nation and are bypassing the legislative process to put in place
\'enforcement guidelines\' that Congress itself refuses to pass\"). One
critic complains that Stratton

inhabits a world in which government has no right to tell business what
to do, a world where consumer choices are the best marketplace
regulators, a world in which product-liability lawsuits stifle
innovation. This would be the same world in which consumer products
never are unsafe, only used incorrectly by careless people. In other
words, a fantasy world.

Editorial, From Bad to Worse, The Blade (Toledo), Nov. 28, 2001,
available at http://www.toledoblade.com/apps/pbcs.dll/article?
Date=20011128&Category=OPINION02&ArtNo=111280045&Ref=AR.

[[\[FN380\]](#Document1zzFN_B380)]{.underline}. For a different but
complimentary analysis of the pro-market and anti-regulation schemas of
policymaking, see Chen & Hanson, Illusion of Law I, supra note 84.

[[\[FN381\]](#Document1zzFN_B381)]{.underline}. John Kenneth Galbraith,
The Age of Uncertainty 258-59 (1977).

[[\[FN382\]](#Document1zzFN_B382)]{.underline}. [[Berkey Photo v.
Eastman Kodak Co., 603 F.2d 263, 287 (2d Cir.
1979)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1979114050&ReferencePosition=287)]{.underline}.

[[\[FN383\]](#Document1zzFN_B383)]{.underline}. Thus, \"in its
advertising, a producer is ordinarily permitted, much like an advocate
at law, to bathe his cause in the best light possible.\" Id.

[[\[FN384\]](#Document1zzFN_B384)]{.underline}. [[Carroll v. Otis
Elevator Co., 896 F.2d 210, 217 (7th Cir.
1990)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1990034596&ReferencePosition=217)]{.underline}
(Easterbrook, J., concurring).

[[\[FN385\]](#Document1zzFN_B385)]{.underline}. See Martin Garbus, A
Hostile Takeover: How the Federalist Society is Capturing the Federal
Courts, Am. Prospect, Mar. 2003, at A16 (discussing the increasing
influence of the Federalist Society on both legal and non-legal
affairs). By 2001 the Federalist Society had become so powerful that
President George W. Bush felt comfortable eliminating \"the longstanding
role in the evaluation of prospective judges by the resolutely centrist
American Bar Association (ABA), whose ratings had long kept extremists
and incompetents off the bench. Today the Federalists have more
influence in judicial-selection than the ABA ever had.\" Id. The
group\'s efforts have also been directed beyond judicial appointments
and clerkships through \"publications, strategy sessions and panel
discussions.\" Id. at A17. With millions of dollars of backing from
pro-market organizations such as the John M. Olin Foundation, the
Federalists have attacked individuals and agencies who attempt to
regulate business, and have celebrated those espousing dispositionism.
Id. at A16.

[[\[FN386\]](#Document1zzFN_B386)]{.underline}. See supra Part I.B.

[[\[FN387\]](#Document1zzFN_B387)]{.underline}. See James A. Henderson,
Jr., [[Revising Section 402A: The Limits of Tort as Social Insurance, 10
Touro L. Rev. 107, 114-15
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1628&FindType=Y&ReferencePositionType=S&SerialNum=0103411496&ReferencePosition=114)]{.underline}
(describing the committee membership as \"a balanced representation of
well-known plaintiffs\' lawyers and well-known defendants\' lawyers\").

[[\[FN388\]](#Document1zzFN_B388)]{.underline}. ALI, 1 Enterprise
Responsibility for Personal Injury: Reporters\' Study 205-07 (1991)
(citation omitted).

[[\[FN389\]](#Document1zzFN_B389)]{.underline}. See id. at 204-08
(justifying their commitment to consumer sovereignty).

[[\[FN390\]](#Document1zzFN_B390)]{.underline}. See id. at 203-32
(illustrating the ALI Reporters\' use of the common, though false,
dichotomy between a \"pure\" market solution and \"hard paternalism\").

[[\[FN391\]](#Document1zzFN_B391)]{.underline}. See id. at 207 (noting
that according to hard paternalism, \"people do not have preferences so
much as they have \'interests\"\' and that \"the state should choose the
legal rule that is in the citizens\' real (rather than their
subjectively perceived) best interest\").

[[\[FN392\]](#Document1zzFN_B392)]{.underline}. Robert H. Lande,
[[Consumer Choice as the Ultimate Goal
of](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1269&FindType=Y&ReferencePositionType=S&SerialNum=0284049457&ReferencePosition=503)]{.underline}
[[Antitrust, 62 U. Pitt. L. Rev. 503, 503
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1269&FindType=Y&ReferencePositionType=S&SerialNum=0284049457&ReferencePosition=503)]{.underline}
(citations omitted).

[[\[FN393\]](#Document1zzFN_B393)]{.underline}. Fidelity Investments,
Advertisement, N.Y. Times, July 14, 2002, § 1, at 15. In light of
recently burst bubbles and other corporate debacles, it is unsurprising
that other strategies include actually emphasizing cognitive quirks. A
recent TIAA-CREF advertisement reads:

Economist Robert Shiller wonders why we have such faith in the utter
rationality of markets when we can be kinda, you know, irrational. Bad
judgment, lousy information, half-baked strategies\--there are times
when money brings out the worst in people. That\'s why Professor
Shiller\'s retirement dollars are invested with a company whose
level-headed thinking stands out in a world where impulse and intuition
are bucking intelligence and insight.

Teacher\'s Ins. & Annuity Ass\'n-Coll. Ret. Equities Fund,
Advertisement, Atlantic Monthly, Jan./Feb. 2003, at 84-85. Thus, the ad
encourages those with doubts in their own rationality to trust the
rationality of a dispositionalized institution and the benevolence of
privatized paternalism. The company is our agent (or friend) looking out
for our interests and avoiding the pulls of our flawed disposition (here
portrayed as \"irrationality\"). The ultimate message is that the
rational dispositional choice of investors can correct for the flawed
dispositional choice of investments: you + TIAA-CREF = rational
dispositional actor.

[[\[FN394\]](#Document1zzFN_B394)]{.underline}. MSNBC, Advertisement,
N.Y. Times, Apr. 12, 2002, at A11.

[[\[FN395\]](#Document1zzFN_B395)]{.underline}. FOX News Channel,
Advertisement, N.Y. Times, Jan. 21, 2003, at C3.

[[\[FN396\]](#Document1zzFN_B396)]{.underline}. FOX News Channel,
Advertisement, N.Y. Times, Sept. 15, 1997, at D16. But cf. Bill Carter &
Jim Rutenberg, Fox News Head Sent a Policy Note to Bush, N.Y. Times,
Nov. 19, 2002, at A27 (describing claims of connections between FOX News
and the Republican Party); Jim Rutenberg, Cable\'s War Coverage Suggests
a New \"Fox Effect\" on Television Journalism, N.Y. Times, Apr. 16,
2003, at B9 (asserting that FOX News \"casts aside traditional notions
of objectivity \[and\] holds contempt for dissent\"); Matt Wells, TV
Watchdog Checks Claims of Bias on Murdoch Channel, Guardian (London),
May 8, 2003, at 5 (explaining investigation in the United Kingdom into
the alleged bias of FOX News).

[[\[FN397\]](#Document1zzFN_B397)]{.underline}. See World Health Org.,
Women and Tobacco 4-5 (1992) (noting that the early twentieth century
witnessed the beginning of public smoking by women as they sought to
assert their newfound emancipation; this habit increased greatly during
World War II as women contributed to the war effort and smoking became
associated with working, independence, emancipation, and patriotism).

[[\[FN398\]](#Document1zzFN_B398)]{.underline}. See Larry Tye, The
Father of Spin: Edward L. Bernays and the Birth of Public Relations ch.
2 (1998) (discussing Bernay\'s efforts in the 1920s and 1930s to
encourage women to smoke); see also Cassandra Tate, Cigarette Wars: The
Triumph of \"the Little White Slaver\" 105-17 (1999) (describing how
such efforts reinforced, but did not initiate, cigarette smoking by
women, and describing many of the situational\--social, political, and
economic\--forces that were more influential).

[[\[FN399\]](#Document1zzFN_B399)]{.underline}. See Stuart Ewen,
Overrated and Underrated: Public Relations Campaign, Am. Heritage,
May/June 2000, at 77, 77-78 (describing and quoting Bernays\'s
conception of the campaign); Steve Craig, \'Torches of Freedom\': Themes
of Women\'s Liberation in American Cigarette Advertising 8 (Feb. 25,
1999) (noting that the campaign sought to distinguish cigarettes as
\"explicit symbols of a woman\'s defiance of traditional social
norms\"), available at
http://www.rtvf.unt.edu/people/craig/pdfs/torches.PDF.

[[\[FN400\]](#Document1zzFN_B400)]{.underline}. Ewen, supra note 399.

[[\[FN401\]](#Document1zzFN_B401)]{.underline}. See Campaign for
Tobacco-Free Kids, Warning: Smoking is a Women\'s Issue, at
http://tobaccofreekids.org/reports/women/ (last modified May 31, 2002)
(describing the tobacco industry\'s historical targeting of women and
girls).

[[\[FN402\]](#Document1zzFN_B402)]{.underline}. See Jon D. Hanson & Kyle
D. Logue, The [[Costs of Cigarettes: The Economic Case for Ex Post
Incentive-Based Regulation, 107 Yale L.J. 1163, 1171
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&ReferencePositionType=S&SerialNum=0108889501&ReferencePosition=1171)]{.underline}
(describing the long-time trend of holding smokers responsible for their
resulting health problems); see also Ctrs. for Disease Control &
Prevention, Annual Smoking-Attributable Mortality, Years of Potential
Life Lost, and Economic Costs: United States 1995-1999, 51 Morbidity &
Mortality Wkly Rep., Apr. 12, 2002, at 300 (reporting the 440,000 figure
and noting that smoking continues to be the leading cause of preventable
death in the United States).

[[\[FN403\]](#Document1zzFN_B403)]{.underline}. See Jon D. Hanson &
Douglas A. Kysar, The Failure of Economic Theory and Legal Regulation,
in Smoking: Risk, Perception, and Policy 229, 253- 54 (Paul Slovic ed.,
2001) (describing how the cigarette industry adopted just that strategy
and its success).

[[\[FN404\]](#Document1zzFN_B404)]{.underline}. Liz Kendall, Pfizer
Forum, Advertisement, Improving Healthcare by Empowering Patients,
Economist, July 13, 2002, at 10 (explaining that patients can and should
take on more responsibility regarding their own healthcare).

[[\[FN405\]](#Document1zzFN_B405)]{.underline}. See Editorial, No Access
to Law, 9 Multinat\'l Monitor (June 1988) (describing lawsuits and
settlements over a heart valve produced by Pfizer), at
http://multinationalmonitor.org/hyper/issues/1988/06/mm0688_03.html;
Elisa Odabashian, Consumer Union, Concealed Danger: Who Is Really Behind
the Bid to Kill the California Corporate Criminal Liability Act, at
http:// www.consumersunion.org/products/pfizerwc900.htm (Apr. 24, 1996)
(suggesting that Pfizer has lobbied against a California liability
statute in order to avoid criminal sanctions and further fines).

[[\[FN406\]](#Document1zzFN_B406)]{.underline}. We feel it is important
to reemphasize that we intend only to scratch the surface of the
evidence for, and mechanisms of, deep capture in this Article. Future
work, much of it well in progress, will flesh out the many ways that
dispositionism benefits powerful interests, particularly large
commercial interests, and the mostly situational mechanisms\--both
abstract and practical\--of deep capture.

On a similar note, we recognize that our small sample of evidence has
the potential for bias, as we have searched for evidence to support our
hypothesis and have postponed any attempt to consider contrary evidence
or to talk much about overall trends. Still, at this point, we do not
believe that the trends that we are suggesting are all that
controversial. For an overview of some of the relevant trends, see Chen
& Hanson, Illusion of Law I, supra note 84. With those who would claim
that our examples are on the extreme side of the dispositionism
spectrum, we might agree but would argue that they represent the vast
bulk of the most influential policymakers and policy theorists today. In
any event, we believe that those who do not occupy that extreme are
nonetheless fairly described as dispositionists. For evidence supporting
that claim, see Hanson & Yosifon, supra note 30; infra Part VII

[[\[FN407\]](#Document1zzFN_B407)]{.underline}. See Ctr. for Consumer
Freedom, What is the Center for Consumer Freedom?, at
http://www.consumerfreedom.com/main_faq.cfm (last visited Oct. 15,
2003).

[[\[FN408\]](#Document1zzFN_B408)]{.underline}. See Ctr. for Media &
Democracy, ActivistCash.com/Center for Consumer Freedom, Impropaganda
Rev. (last visited Oct. 15, 2003) (claiming that Berman receives advice
and funding from industry representatives), at http://
www.prwatch.org/improp/ddam.html.

[[\[FN409\]](#Document1zzFN_B409)]{.underline}. Ctr. for Consumer
Freedom, supra note 407.

[[\[FN410\]](#Document1zzFN_B410)]{.underline}. Ctr. for Consumer
Freedom, Advertisement, U.S. News & World Rep., May 27, 2002, at 21.

[[\[FN411\]](#Document1zzFN_B411)]{.underline}. See, e.g., Kelly
Brownell & Katherine Battle Horgen, Food Fight: The Inside Story of the
Food Industry, America\'s Obesity Crisis and What We Can Do About It
(2003).

[[\[FN412\]](#Document1zzFN_B412)]{.underline}. Ctr. for Consumer
Freedom, Obesity: Individual Problem Demands Individual Responsibility,
at http://www.consumerfreedom.com/headline\_ detail.cfm?HEADLINE_ID=1962
(June 11, 2003).

[[\[FN413\]](#Document1zzFN_B413)]{.underline}. Richard Berman, All-out
Assault by Food Cops: When Will it End?, USA Today, Aug. 15, 2002, at
A13; see also Richard Berman, Beef Against Fast Food Could Lead to
Economic Indigestion, Boston Herald, June 21, 2003, at 16 (\"Laugh now
if you must, but this is serious business. How long before parents are
criminally accountable for allowing their kids to be obese? How long
before restaurants post width scales at the fast-food counter similar to
the height scales on amusement park rides?\").

[[\[FN414\]](#Document1zzFN_B414)]{.underline}. Ctr. for Consumer
Freedom, Would You Take Dietary Advice from this Man?: Kelly Brownell\'s
\"Big Brother\" Manifesto, at http://
www.consumerfreedom.com/article_detail.cfm?ARTICLE_ID=125 (Aug. 26,
2003). For a look at the supposed \"manifesto,\" see Brownell & Horgen,
supra note 411.

[[\[FN415\]](#Document1zzFN_B415)]{.underline}. Richard E. Nisbett, The
Geography of Thought: How Asians and Westerners Think Differently\...
and Why, at xx (2003).

[[\[FN416\]](#Document1zzFN_B416)]{.underline}. Nisbett, supra note 415,
at 89-92; Takahiko Masuda & Richard E. Nisbett, Attending Holistically
Versus Analytically: Comparing the Context Sensitivity of Japanese and
Americans, 81 J. Personality & Soc. Psychol. 922, 924-25 (2001).

[[\[FN417\]](#Document1zzFN_B417)]{.underline}. Masuda & Nisbett, supra
note 416, at 924.

[[\[FN418\]](#Document1zzFN_B418)]{.underline}. Nisbett, supra note 415,
at 90.

[[\[FN419\]](#Document1zzFN_B419)]{.underline}. Id.

[[\[FN420\]](#Document1zzFN_B420)]{.underline}. Id.

[[\[FN421\]](#Document1zzFN_B421)]{.underline}. Id. at 89. Recognizing
the differences between self-conceptions in the East and in the West has
long been a theme in both anthropology and philosophy. See Kunda, supra
note 20, at 515, (noting that anthropologists have long explored
cultural differences in self-perception and social understanding)
(citing Culture Theory: Essays on Mind, Mind Self, and Emotion (Richard
A. Schweder & Robert A. LeVine, eds. 1984)); see also Clifford Geertz,
The Impact of the Concept of Culture on the Concept of Man, in New Views
of the Nature of Man (J. Platt ed. 1966). For a collection of Geertz\'s
influential writings on cultural anthropology, see The Interpretation of
Cultures: Selected Essays by Clifford Geertz (1973). More recently,
social psychologists have begun to demonstrate and examine the
difference. One of their key discoveries is, as we will review in this
Section, that dispositionism varies across cultures. See generally
Kunda, supra note 20, at 515-60 (comparing differences in social
cognition amongst different cultures, and in particular between
Easterners and Westerners).

[[\[FN422\]](#Document1zzFN_B422)]{.underline}. Kunda, supra note 20, at
21-22.

[[\[FN423\]](#Document1zzFN_B423)]{.underline}. We recognize and
apologize for the breadth of these categories. To date, the distinctions
by social psychologists have rarely been refined much past those of
\"Easterners\" and \"Westerners.\" Still, as broad and inadequate as
those two categories may be, they represent a key advance over the
nearly complete lack of categories that otherwise exists in many social
scientific theories and lay theories of human actors. And that
criticism, we confess, applies to much of social psychology and to
virtually all of this Article, which too frequently speak of \"human\"
tendencies\--as if there is just one relevant category of humans as
revealed through studies of mostly college students. This practice is
particularly striking in light of the fact that, as we\'ll describe, the
work comparing \"Easterners\" and \"Westerners\" has demonstrated
significant cross-cultural differences. See infra text accompanying
notes 425-50; see also Nisbett, supra note 415, passim (providing
evidence of how groups in different parts of the world not only think
about different things, but actually think differently). Future work
will likely yield a more refined understanding of how we conceptualize
our worlds and of how those conceptualizations reflect and influence
those worlds.

Additionally, we may find that much of the cognitive processes and
emotions that social psychologists have understood as involuntary may be
somewhat malleable. That, at least, was a recurring theme at a very
recent two-day conference and discussion entitled, Mind and Life XI:
Investigating the Mind: Exchanges Between Buddhism and the Biobehavioral
Sciences on How the Mind Works, (held at MIT, Sept. 13-14, 2003, and
co-sponsored by the McGovern Institute at MIT and the Mind and Life
Institute, and attended by, among others, Daniel Kahneman, Daniel
Gilbert, and the Dalai Lama). For an overview of the conference and
materials, see, Mind & Life Inst., Mind and Life XI: Investigating the
Mind, at http://www.investigatingthemind.org/index.html (last visited
Nov. 22, 2003). For a brief account of some of the exchanges and
dynamics that led to the conference and research that has been initiated
in reaction to previous, related conferences and discussions, see
Stephen S. Hall, Is Buddhism Good for Your Health?, N.Y. Times Mag.,
Sept. 14, 2003, at 46.

The problem is not just that the category \"human\" is too broad. In
fact, it may also be too narrow. We suspect that our conceptions of
other animals will demonstrate that \"humans\"\--there we go again\--are
unique in fewer ways and to a lesser degree than \"humans\" have
historically tended to believe. For recent general accounts along those
lines, see Jeffrey Moussaieff Masson & Susan McCarthy, When Elephants
Weep: The Emotional Lives of Animals (1995); George Page, Inside the
Animal Mind (1999).

[[\[FN424\]](#Document1zzFN_B424)]{.underline}. See supra text
accompanying notes 86-107 (discussing various studies that reveal the
persuasiveness of the fundamental attribution error).

[[\[FN425\]](#Document1zzFN_B425)]{.underline}. See Kunda, supra note
20, at 525-33 (discussing several studies that compare Western and
Eastern paradigms about dispositional and situational attribution);
Nisbett, supra note 415, at 123-27 (\"Westerners tend to assume that
events are caused by the object and Asians are inclined to assign
greater importance to the context.\").

[[\[FN426\]](#Document1zzFN_B426)]{.underline}. Kunda, supra note 20, at
526-27, 529-32.

[[\[FN427\]](#Document1zzFN_B427)]{.underline}. Id. at 532-33
(concluding that \"East Asians are more likely than North Americans to
pick up on cues pointing to the importance of situational
constraints\"); see also Eric D. Knowles et al., Culture and the Process
of Person Perception: Evidence for Automaticity Among East Asians in
Correcting for Situational Influences on Behavior, 27 Personality & Soc.
Psychol. Bull. 1344, 1348-54 (2001) (discussing an experiment that asked
students from the United States and Hong Kong to characterize the
attitude of a speaker, based on the speaker\'s speech about a political
issue). For our earlier description of the Castro experiments, see supra
text accompanying note 155.

[[\[FN428\]](#Document1zzFN_B428)]{.underline}. See supra text
accompanying note 155.

[[\[FN429\]](#Document1zzFN_B429)]{.underline}. Kunda, supra note 20, at
532.

[[\[FN430\]](#Document1zzFN_B430)]{.underline}. Id. at 525-32
(discussing several studies focusing on the dispositional tendencies of
Westerners compared to non-Westerners); Nisbett supra note 415, at 125
(explaining that \"the illusion is sufficiently powerful that even East
Asians are susceptible\").

[[\[FN431\]](#Document1zzFN_B431)]{.underline}. Kunda, supra note 20, at
532; Fiske et al., supra note 195, at 915, 930-33; Knowles et al., supra
note 427, at 1354.

[[\[FN432\]](#Document1zzFN_B432)]{.underline}. Kunda, supra note 20, at
532; Nisbett supra note 415, at 125.

[[\[FN433\]](#Document1zzFN_B433)]{.underline}. Kunda, supra note 20 at
525-32; Fiske et al., supra note 195, at 930-33. Other studies have
yielded more specific evidence of the contours of cultural difference
and how it manifests in broader outlooks and motivations. One study of
American and Japanese subjects, for example, compared self-enhancement
biases in Western and Eastern subjects. Groups of American and Japanese
subjects were asked to provide a list of examples of situations that
they felt had enhanced their self-esteem, and others that they felt had
diminished it. See Shinobu Kitayama et al., Individual and Collective
Processes in the Construction of the Self: Self-Enhancement in the
United States and Self-Criticism in Japan, 72 J. Personality & Soc.
Pyschol. 1245, 1249-54 (1997); see also Kunda, supra note 20, at 542-47
(summarizing Kitayama\'s experiments). The researchers then took a list
of four hundred responses culled from both groups and administered the
list to new subjects, again comprised of American and Japanese subjects.
Id. at 544. The subjects were asked to select the situations that they
felt were applicable to themselves, and how their self-esteem had been
affected by the situation. Id. The results revealed strikingly different
self-perceptions between the American and Japanese subjects. American
subjects exhibited a more pronounced self-serving bias, claiming that a
higher proportion of the self-enhancing situations applied to themselves
than did the Japanese subjects. So significant was that tendency among
Westerners that it held true even for self-enhancing characterizations
that had been provided by the earlier Japanese subjects; that is,
Americans were more likely than Japanese subjects to claim that those
characterizations applied to themselves. Id. at 546-47.

The self-enhancement tendency is one aspect of the broader
dispositionist character that social psychology has documented in
Western society. See supra text accompanying notes 194-95; see also
Hanson & Yosifon, supra note 30. The results of the above study, and
others like it, suggest that the tendency to see oneself as interacting
with the world as a stable dispositional actor is more pronounced in
individuals in Western society than it is among people in the East.
Related studies, for example, demonstrate that self-enhancement biases
are less prevalent in the East than in the West. See Kunda, supra note
20, at 538-43 (recounting a study that suggested Canadians demonstrate a
greater self-enhancing bias than do Japanese).

[[\[FN434\]](#Document1zzFN_B434)]{.underline}. \"All these studies
point to the same conclusion. Westerners tend to view social behavior as
driven by internal, stable dispositions such as traits and attitudes. In
contrast, Easterners tend to view social behavior as determined by the
individual\'s interpersonal relations, roles, circumstances, and
cultural milieu.\" Id. at 531.

[[\[FN435\]](#Document1zzFN_B435)]{.underline}. See id. at 540
(describing studies that show that Asian Canadians\' dispositionist
tendencies fall somewhere between the dispositionist tendencies of
Asians and those of European Canadians). In the self-enhancement study
discussed above, see supra note 433, Japanese subjects living in the
United States were less prone to self-enhancement than American
subjects, but more prone than Japanese subjects living in Japan. Kunda,
supra note 20, at 546. Another study found that Canadians of Asian
heritage exhibited self-enhancing biases at rates lower than those
registered by European Canadians, but higher than those that were seen
in Japanese subjects living in Japan. Steven J. Heine & Darrin R.
Lehman, The Cultural Construction of Self-Enhancement: An Examination of
Group-Serving Biases, 72 J. Personality & Soc. Psychol. 1268, 1278
(1997).

[[\[FN436\]](#Document1zzFN_B436)]{.underline}. See Kunda, note 20, at
540 (\"Canadians of Asian heritage whomay be assumed to absorb Asian
culture at home while being exposed to North American culture everywhere
else show\[\] some but not total adoption of Western cultural
patterns.\").

[[\[FN437\]](#Document1zzFN_B437)]{.underline}. See id. at 549-56
(describing studies on differences in outlook between people in the
Northern and Southern United States).

[[\[FN438\]](#Document1zzFN_B438)]{.underline}. Of course, it should be
recognized that cross-cultural social psychology is a nascent field;
findings are at this point preliminary, and more will be learned about
differences between the social psychologies of different cultures as
this field grows. See Kunda, supra note 20, at 547-49 (cautioning that
the work in this area is at an early stage and therefore \"not
conclusive\").

[[\[FN439\]](#Document1zzFN_B439)]{.underline}. See supra text
accompanying notes 19-23, 139-45, 182-96 (defining the fundamental
attribution error and describing some of the causes).

[[\[FN440\]](#Document1zzFN_B440)]{.underline}. See supra text
accompanying notes 86-99 (discussing the Milgram experiments).

[[\[FN441\]](#Document1zzFN_B441)]{.underline}. Supra notes 425-31 and
accompanying text; see also David M. Buss, Human Nature and Culture: An
Evolutionary Psychological Perspective, 69 J. Personality 955, 968
(2001) (acknowledging a universal human nature, and recognizing that the
human mind contains many complex psychological mechanisms that are
selectively activated, depending on cultural contexts).

[[\[FN442\]](#Document1zzFN_B442)]{.underline}. Cf. Kunda, supra note
20, at 537-38 (concluding that maintaining and enhancing one\'s
self-esteem, \[which is linked to dispositionism\], is more important in
Western cultures than in Eastern cultures because of differing views on
the relation between the individual and society). The Japanese legal
system seems to reflect elements of their lay theories, which focus on
the role of the individual as interdependent with the collective. See,
e.g., Koichiro Fujikura, [[Administering Justice in a Consensus-Based
Society, 91 Mich. L. Rev. 1529, 1541-42
(1993)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1192&FindType=Y&ReferencePositionType=S&SerialNum=0103038449&ReferencePosition=1541)]{.underline}
(discussing the position of Hamilton and Sanders that in Japanese
society \"those who insist on their legal rights may be seen as free
riders, exploiting the collective benefit, and modern legal reforms in
Japan can be interpreted as a \'process of constant adjustments to
thwart the corrosive impact of litigious free riders on a nonlitigious
legal order\"\') (quoting V. Lee Hamilton & Joseph Sanders, Everyday
Justice: Responsibility and the Individual in Japan and the United
States 193 (1992)); V. Lee Hamilton & Joseph Sanders, [[Punishment and
the Individual in the United States and Japan, 22 Law & Soc\'y Rev. 301,
304
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100947&FindType=Y&ReferencePositionType=S&SerialNum=0288121442&ReferencePosition=304)]{.underline}
(suggesting that in Japan, \"the individual is seen as operating in
networks and contexts\... \[so\] sanctions for wrongdoing are influenced
by individuals\' embeddedness in roles\"); Erik W. Ibele, [[Government
Regulation of Technology Licensing in the Pacific Rim: The Legacy of
Industrial Policy, 15 Wis. Int\'l L.J. 299, 301
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100442&FindType=Y&ReferencePositionType=S&SerialNum=0108643039&ReferencePosition=301)]{.underline}
(noting that the \"collective focus is evident in the language of
Article I of the Japanese Patent Law which states, \'the purpose of this
Law shall be to encourage inventions by promoting their protection and
utilization so as \[sic\] to contribute to the development of
industry\"\') (quoting Tokkyoho \[Patent Law\], Law No. 121 of 1959,
art. 1, translated in \[VI Japan\] EHS Law Bull. Series No. 6850A, at
SA-A 2 (1994)); Mark A. Levin, [[Essential Commodities and Racial
Justice: Using Constitutional Protection of Japan\'s Indigenous Ainu
People to Inform Understandings of the United States and Japan, 33
N.Y.U. J. Int\'l L. & Pol. 419, 484-88
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1205&FindType=Y&ReferencePositionType=S&SerialNum=0283572078&ReferencePosition=484)]{.underline}
(discussing the conception of individualism in Japan and how that
outlook has shaped interpretation of the American-influenced,
individualistically-worded constitution); Glenn Theodore Melchinger, For
the [[Collective Benefit: Why Japan\'s New Strict Product Liability Law
is \"Strictly Business,\" 19 U. Haw. L. Rev. 879, 931
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1263&FindType=Y&ReferencePositionType=S&SerialNum=0108811582&ReferencePosition=931)]{.underline}
(arguing that Japan\'s new products liability scheme may seem toothless
by our standards because it takes the cost of social conflict into
account); Masumi Anna Osaki, Comment, [[A Look at Damage Awards Under
Japan\'s Trademark Law and Unfair Competition Prevention Law, 8 Pac. Rim
L. & Pol\'y J. 489, 492
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=102037&FindType=Y&ReferencePositionType=S&SerialNum=0112639197&ReferencePosition=492)]{.underline}
(\"Traditional collectivist values that frown upon personal gain have
contributed to the inadequate enforcement of individual intellectual
property rights in Japan \... \[and have\] traditionally resulted in
limited awards\....\").

[[\[FN443\]](#Document1zzFN_B443)]{.underline}. See supra text
accompanying notes 194-95; see also Hanson & Yosifon, supra note 30.

[[\[FN444\]](#Document1zzFN_B444)]{.underline}. See Kunda, supra note
20, at 537-38 (noting that Eastern cultures tend toward the notion that
individuals are highly interdependent with others in society). But see
Yohtaro Takano & Eiko Osaka, An Unsupported Common View: Comparing Japan
and the U.S. on Individualism/Collectivism, 2 Asian J. Soc. Psychol.
311, 316-30 (1999) (reviewing empirical studies comparing conceptions of
individualism and collectivism in the two nations, and finding that the
standard view, which holds that Japanese are more collectivist than
Americans, is based on flimsy grounds and might be attributable to the
fundamental attribution error).

[[\[FN445\]](#Document1zzFN_B445)]{.underline}. See supra notes 416-23
and accompanying text (reviewing experiments that illustrate this
hypothesis).

[[\[FN446\]](#Document1zzFN_B446)]{.underline}. Ying-yi Hong, et al.,
Bringing Culture out in Front: Effects of Cultural Meaning System
Activation on Social Cognition, in Progress in Asian Social Psychology
139, 141-46 (Kwok Leung et al. eds., 1997).

[[\[FN447\]](#Document1zzFN_B447)]{.underline}. Id. at 146. Researchers
have discovered the same situational sensitivity to cultural primes on
the part of Asian Americans. See Kaiping Peng & Eric Knowles, Culture,
Education, and the Attribution of Physical Causality, 29 Personality &
Soc. Psychol. Bull. 1272, 1279-83 (2003) (demonstrating that culturally
instilled folk theories affect Chinese Americans\' interpretations of
physical phenomena).

[[\[FN448\]](#Document1zzFN_B448)]{.underline}. See Kunda, supra note
20, at 527 (\"Cultural differences in attribution appear to emerge only
in mature individuals who have been well-socialized into their
culture\'s view of the person.\"); see, e.g., Joan G. Miller, Culture
and the Development of Everyday Social Explanation, 46 J. Personality &
Soc. Psychol. 961 (1984) (comparing attributions of Indian Hindu
children with those of American children and finding that children in
the two cultures did not differ in the sorts of explanations they gave
and that explanations did not begin to take culturally scripted form
until adolescence).

[[\[FN449\]](#Document1zzFN_B449)]{.underline}. See Kunda, supra note
20, at 526-27 (discussing the findings of Miller, supra note 448, with
regard to Eastern children\'s attribution behavior).

[[\[FN450\]](#Document1zzFN_B450)]{.underline}. See Knowles et al.,
supra note 427, at 1354 (\"East Asians\... have the ability to
automatically correct \[dispositionist\] inferences in light of
situational constraints.\").

[[\[FN451\]](#Document1zzFN_B451)]{.underline}. See supra Part
V.C.4.c.ii (arguing that a dispositionist worldview benefits
corporations, both individually and collectively).

[[\[FN452\]](#Document1zzFN_B452)]{.underline}. Hence, one might expect
dispositionism to grow more robust in the East, as Western corporations
strive to maximize profits in Eastern markets. On the other hand, we
might expect to see differing methods of deep capture in markets where
dispositionism is less pronounced. Certainly, even in the West, there is
evidence of corporate appeals to group identities and situationist
conceptions, such as is seen in patriotic or racially identified
messages. It is the situation, and not our dispositionism directly, that
makes deep capture possible. If deep capture can be accomplished more
effectively or more efficiently by promoting other worldviews, then such
efforts may take different forms in different cultures.

[[\[FN453\]](#Document1zzFN_B453)]{.underline}. Herbert Hoover, American
Individualism 63-64 (1922).

[[\[FN454\]](#Document1zzFN_B454)]{.underline}. Of course, as we have
emphasized, the fact that something is obvious does not mean it is
entirely true. See Barry Alan Shain, The Myth of American Individualism:
The Protestant Origins of American Political Thought 21 (1994)
(\"Contrary to popular belief, Americans in the years surrounding the
Revolution were not adherents of political individualism\....\").

[[\[FN455\]](#Document1zzFN_B455)]{.underline}. Hoover, supra note 453,
at 63.

[[\[FN456\]](#Document1zzFN_B456)]{.underline}. Again, the cultural
disposition of individualism may well reveal more about the situation
than is commonly recognized. See supra text accompanying notes 444-49
(discussing the link between a culture\'s regard for individualism and
that culture\'s tendency toward dispositionism). \"The frontier\"
provided to those who ventured to America a chance to change their
lives\--an escape in some cases, an opportunity in others. By sailing
West to get to America and then \"going West\" once here, the situation
would have seemed far less constraining: gone were many of the shackles
of religious persecution, population density, employment pressures, and
rigid class norms. Those who survived and thrived did so perceiving they
had acted according to their choices. Seemingly boundless land and
natural resources, together with growing markets and changing
technologies, provided many Americans with a strong perception of
self-reliance and self-determination. To a large degree, that perception
held true\--but largely because the situation permitted it. In other
words, the freedom that we attribute to the disposition of individuals
may more accurately be the consequence of the options afforded by the
situation in a \"land of opportunity.\" Particularly when compared to
the Old World\--where famine, poverty, and political strife rendered the
situation oppressive and salient\--the New World would have felt to many
people (particularly young, strong, entrepreneurial, free, and white
men) as a land where disposition decided one\'s fate. Again, the
frontier on which the American pioneer was permitted to venture was
itself a great situational source of both perceived individualism and
this country\'s success.

With that commentary, we have here inadvertently stumbled into the midst
of a long-standing historiographical battle. The classic work that
initiated that battle was written in the late nineteenth century by
Frederick Jackson Turner. Frederick Jackson Turner, The Significance of
the Frontier in American History (1893), reprinted in The Frontier in
American History 1 (1920). Turner challenged the then-conventional
\"germ theory\" that the American character was a dispositional legacy
of the Old World and emphasized instead the situational effects of the
frontier in giving shape to a distinctly American disposition. In his
words:

\[T\]o the frontier the American intellect owes its striking
characteristics. That coarseness and strength combined with acuteness
and inquisitiveness; that practical, inventive turn of mind, quick to
find expedients; that masterful grasp of material things, lacking in the
artistic but powerful to effect great ends; that restless, nervous
energy; that dominant individualism, working for good and for evil, and
withal that buoyancy and exuberance which comes with freedom\--these are
the traits of the frontier, or traits called out elsewhere because of
the existence of the frontier.

Id. at 37. A century of historical analysis and debate has discredited
many of the details of Turner\'s frontier thesis. See, e.g., Donald
Worster, New West, True West: Interpreting the Region\'s History, 18 W.
Hist. Q. 141, 144-46 (1987) (rejecting the process idea central to
Turner\'s thesis, preferring instead to define the West as a fixed
geographical region). But there remains, we believe, a strong case that
situation\--including our interior situation, which may be motivated to
see ourselves as the rugged individuals that Turner idealized\--plays
far more of a role in defining who we are, or like to believe we are,
than we recognize. Cf. Jared Diamond, Guns, Germs & Steel: The Fates of
Human Societies 25 (1997) (\"History followed different courses for
different peoples because of differences among people\'s environments
\....\").

[[\[FN457\]](#Document1zzFN_B457)]{.underline}. For examples of the
influence of dispositionist presumptions on laws, see Hanson & Yosifon,
supra note 30 (examining dispositionism in contract, tort, and criminal
law); infra text accompanying notes 598-614 (describing the
dispositionism inherent in contract law).

[[\[FN458\]](#Document1zzFN_B458)]{.underline}. See also Bruce A. Lohof,
The Higher Meaning of Marlboro Cigarettes, 3 J. Popular Culture 441, 447
(1969) (comparing the Marlboro image to Frederick Jackson Turner\'s
vision of the frontier).

[[\[FN459\]](#Document1zzFN_B459)]{.underline}. See Ticker, Brill\'s
Content, Oct. 2000, at 33 (detailing the level of advertising
expenditure in the United States).

[[\[FN460\]](#Document1zzFN_B460)]{.underline}. For a discussion of this
point, see Hanson & Kysar, Taking Behavioralism Seriously II, supra note
251.

[[\[FN461\]](#Document1zzFN_B461)]{.underline}. For more on this idea,
see id.; Hanson & Kysar, Taking Behavioralism Seriously I, supra note
251; Hanson & Kysar, Taking Behavioralism Seriously III, supra note 257.
See also Hanson & Kysar, supra note 403 (showing how tobacco
manufacturers manipulate consumer perception and preferences to increase
profits).

[[\[FN462\]](#Document1zzFN_B462)]{.underline}. Robert B. Cialdini is
the Regents\' Professor of Psychology at Arizona State University in
Tempe.

[[\[FN463\]](#Document1zzFN_B463)]{.underline}. Robert B. Cialdini,
Influence: The Psychology of Persuasion (rev. ed. 1993).

[[\[FN464\]](#Document1zzFN_B464)]{.underline}. Id. at 208-36.

[[\[FN465\]](#Document1zzFN_B465)]{.underline}. Roger A. Dickinson,
Influence, 60 J. Retailing, Winter 1984, at 126, 128 (book review).

[[\[FN466\]](#Document1zzFN_B466)]{.underline}. Alan J. Resnik,
Influence: Science & Practice, 23 J. Marketing Res., Aug. 1986, at 305,
305 (1986) (book review).

[[\[FN467\]](#Document1zzFN_B467)]{.underline}. Max Sutherland & Alice
K. Sylvester, Advertising and the Mind of the Consumer: What Works, What
Doesn\'t, and Why 17 (2d ed. 2000).

[[\[FN468\]](#Document1zzFN_B468)]{.underline}. Id. at 4.

[[\[FN469\]](#Document1zzFN_B469)]{.underline}. See supra text
accompanying notes 393-406.

[[\[FN470\]](#Document1zzFN_B470)]{.underline}. See Jean Kilbourne,
Can\'t Buy My Love: How Advertising Changes the Way We Think and Feel 27
(1999) (\"\[J\]ust about everyone in America still feels personally
exempt from advertising\'s influence.\"); see also Emily Pronin, Daniel
Y. Lin & Lee Ross, The Bias Blind Spot: Perceptions of Bias in Self
Versus Others, 28 Personality & Soc. Psychol. Bull. 369, 370-78 (2002)
(summarizing several studies finding that people see motivational and
cognitive biases much more readily in others than in themselves).

[[\[FN471\]](#Document1zzFN_B471)]{.underline}. Burson-Marsteller, Inc.,
Why You Need a PR Firm, at http:// www.bm.com/resources/why_pop.html
(last visited Mar. 5, 2003) (emphasis added).

[[\[FN472\]](#Document1zzFN_B472)]{.underline}. See Karen S. Miller, The
Voice of Business: Hill & Knowlton and Postwar Public Relations 121-45
(1999) (remarking on Hill & Knowlton\'s role in \"promot\[ing\] the
notion that the case against smoking has not been proved,\" and the
later description of Hill & Knowlton\'s work as \"one of PR\'s best
finger-in-the-dike jobs ever\").

[[\[FN473\]](#Document1zzFN_B473)]{.underline}. Hill & Knowlton,
Homepage, at http:// www.hillandknowlton.com/global (last visited Oct.
24, 2003).

[[\[FN474\]](#Document1zzFN_B474)]{.underline}. Berman & Co., Homepage,
at http://www.bermanco.com/ (last visited Oct. 24, 2003).

[[\[FN475\]](#Document1zzFN_B475)]{.underline}. Id.; see infra text
accompanying notes 483-500 (describing in more detail the use of
third-party spokespeople for credibility, and detailing some of the
particular strategies and tactics used to create and maintain access to
such third parties).

[[\[FN476\]](#Document1zzFN_B476)]{.underline}. The tobacco industry
refers to the publication of the first lung cancer reports as the \"Big
Scare,\" a transformative moment for virtually all industry practices,
not just their advertising. Plaintiff\'s Complaint at PP 68-73,
Commonwealth ex rel. Fisher v. Philip Morris, Inc. (Pa. Ct. Com. Pl.
Apr. 1997) (No. 2443), available at http://
www.attorneygeneral.gov/ppd/tobacco/complaint.cfm; see also Hanson &
Kysar, Taking Behaviorism Seriously II, supra note 251, at 1483-87
(describing the \"Big Scare\" and the industry\'s initial concerted
response). See generally Richard Doll, Cancer by the Carton, Reader\'s
Dig. (Dec. 1952).

[[\[FN477\]](#Document1zzFN_B477)]{.underline}. See Katherine M. West,
The Marlboro Man: The Making of an American Image, at
http://www.people.virginia.edu/\~tsawyer/mman/mman.html (last visited
Oct. 24, 2003) (describing the evolution of the Marlboro marketing
campaign).

[[\[FN478\]](#Document1zzFN_B478)]{.underline}. Lohof, supra note 458,
at 443-44 (noting that by the early 1960s the cowboy had surpassed these
other concepts and \"was promoted to supremacy\"); see also Leo Burnett,
Advertisement, The Marlboro Story, New Yorker, Nov. 15, 1958, at 41-43
(describing the marketing campaign of Marlboro in the 1950s).

[[\[FN479\]](#Document1zzFN_B479)]{.underline}. Advertisement, The
Marlboro Man: What\'s He Like, Life, Jan. 21, 1957, at 7, 7-9.

[[\[FN480\]](#Document1zzFN_B480)]{.underline}. Id. at 8.

[[\[FN481\]](#Document1zzFN_B481)]{.underline}. Id. at 8-9.

[[\[FN482\]](#Document1zzFN_B482)]{.underline}. Cover Letter, Mktg.
Intelligence Dep\'t, Brit. Am. Tobacco Co., How Marlboro Led the Pack,
(1994), available at http://
www.library.ucsf.edu/tobacco/batco/OCR/100/177.txt \[hereinafter BATCo
Report\]. According to the report, \"Marlboro \[i\]s the most successful
brand in the history of consumer marketing, more so even than Coca Cola,
which has a higher awareness level but lower profitability\.... \[I\]n
1993, Financial World reported that \[the Marlboro Man was\] the
world\'s most valuable trademark\[,\] valued at \$39.5 billion.\" Id.

[[\[FN483\]](#Document1zzFN_B483)]{.underline}. See supra text
accompanying note 453 (quoting Hoover) (discussing individualism as the
cornerstone of American character).

[[\[FN484\]](#Document1zzFN_B484)]{.underline}. BATCo Report, supra note
482, at 7-8 (emphasis added).

[[\[FN485\]](#Document1zzFN_B485)]{.underline}. Memorandum Regarding
CAMEL New Advertising Development from R.T. Caufield, R.J. Reynolds, to
D.N. Iauco, R.J. Reynolds 2 (Mar. 12, 1986), available at
http://legacy.library.ucsf.edu/cgi/getdoc?
tid=pil75d00&fmt=pdf&ref=results \[hereinafter Memorandum from R.T.
Caufield\]. Camel\'s campaign had two goals. First, it attempted to
convince young smokers that Camels give them the masculine ideal of
\"strength, authenticity and self-confidence.\" Id. at 3.
\"Reinforcement of masculinity is an important want among a large
percentage of males and this is particularly true among less educated
and younger adult males. (i.e., CAMEL\'s prime prospect).\" Id. Second,
the advertising campaign sought to

create the perception that CAMEL smokers project a non-conformist,
self-confident cool attitude which is admired by their peers.

\....

Aspiration to be perceived as cool/a member of the in-group is one of
the strongest influences affecting the behavior of younger adult
smokers.

Personality attributes respected by target smokers and inherent in their
definition of cool include a degree of rebellion or non-conformity,
along with the self-confidence to remain in control of the somewhat
risky, exciting lifestyle associated with these characteristics.

Id. at 4. The irony is striking\--RJR is trying to convince people they
are \"self-confident non-conformists\" by using advertising that
situationally manipulates this very aspiration.

[[\[FN486\]](#Document1zzFN_B486)]{.underline}. Memorandum from Claude
E. Teague, Jr., R.J. Reynolds, Research Planning Memorandum on Some
Thoughts About New Brands of Cigarettes for the Youth Market 7 (Feb. 2,
1973), available at http://
tobaccodocuments.org/rjr/502987357-7368.html.

[[\[FN487\]](#Document1zzFN_B487)]{.underline}. Widely produced
advertising campaigns can affect the self-images of everyone, not just
those who purchase cigarettes. They reinforce our tendency to see
ourselves as dispositional free choosers. RJR recognized this:

Campaigns which rely on literal depiction of smokers to communicate
desired user imagery will ensure that models and situations selected are
highly relevant and appealing to not only target smokers but broader
demographic groups as well. Additionally, the exploratory will cover
approaches which employ universal cues and symbols that effectively
communicate the strategies with motivational value that transcends
demographics.

Memorandum from R.T. Caufield, supra note 485, at 2.

[[\[FN488\]](#Document1zzFN_B488)]{.underline}. Milgram, Some Conditions
of Obedience and Disobedience to Authority, supra note 86, at 74-75.

[[\[FN489\]](#Document1zzFN_B489)]{.underline}. Milgram, Obedience to
Authority, supra note 86, at 93-97. As part of the experiment, when
\"teachers\" refused to go on, the common man, in apparent disgust,
would assert that he would take over administering the shocks. Id. at
97-99. The action was met with strong resistance\--virtually all
protested and five out of sixteen subjects took physical action to
prevent the confederate from completing the experiment. Id. As Milgram
noted, subjects \"felt free to threaten the common man and were not
reluctant to criticize his judgment or personally chastise him; their
attitude contrasts sharply with the deferential politeness subjects
invariably displayed in other experiments, when an authority was at the
helm.\" Id. at 97-98.

[[\[FN490\]](#Document1zzFN_B490)]{.underline}. Id. at 105-07.

[[\[FN491\]](#Document1zzFN_B491)]{.underline}. See generally Cialdini,
supra note 463, at 216-29 (describing some examples of people\'s
willingness to obey authority and how \"compliance professionals\" take
advantage of that willingness).

[[\[FN492\]](#Document1zzFN_B492)]{.underline}. Burson-Marsteller, Inc.,
supra note 471.

[[\[FN493\]](#Document1zzFN_B493)]{.underline}. Berman & Co., at
http://www.bermanco.com/public_affairs.cfm (last visited Oct. 25, 2003).

[[\[FN494\]](#Document1zzFN_B494)]{.underline}. Berman & Co., at
http://www.bermanco.com/research.cfm (last visited Oct. 25, 2003).

[[\[FN495\]](#Document1zzFN_B495)]{.underline}. Id.

[[\[FN496\]](#Document1zzFN_B496)]{.underline}. Berman & Co., supra note
493.

[[\[FN497\]](#Document1zzFN_B497)]{.underline}. Berman & Co., supra note
494.

[[\[FN498\]](#Document1zzFN_B498)]{.underline}. Berman & Co., supra note
493.

[[\[FN499\]](#Document1zzFN_B499)]{.underline}. See supra notes 407-14
and accompanying text.

[[\[FN500\]](#Document1zzFN_B500)]{.underline}. Ctr. for Consumer
Freedom, supra note 407.

[[\[FN501\]](#Document1zzFN_B501)]{.underline}. See supra text
accompanying notes 297-314 (reviewing and evaluating Galileo\'s
recantation).

[[\[FN502\]](#Document1zzFN_B502)]{.underline}. See supra Part V.A
(summarizing Stigler\'s arguments and evidence).

[[\[FN503\]](#Document1zzFN_B503)]{.underline}. In work now in progress,
we provide a more fulsome description of that evidence.

[[\[FN504\]](#Document1zzFN_B504)]{.underline}. John M. Olin Foundation,
Inc., History and General Purposes, at
http://www.jmof.org/history_purposes.html (last visited Oct. 26, 2003).

[[\[FN505\]](#Document1zzFN_B505)]{.underline}. Lawrence C. Soley,
Leasing the Ivory Tower: The Corporate Takeover of Academia 137 (1995);
Michael L. Rustad & Thomas H. Koenig, [[Taming the Tort Monster: The
American Civil Justice System as a Battleground of Social Theory, 68
Brook. L. Rev. 1,
76](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3033&FindType=Y&ReferencePositionType=S&SerialNum=0291532076&ReferencePosition=76)]{.underline}
tbl.2 (2002).

[[\[FN506\]](#Document1zzFN_B506)]{.underline}. John M. Olin Foundation,
Inc., Total Grants Paid, 1999, at http:// www.jmof.org/grants_1996.html
(last visited Oct. 26, 2003).

[[\[FN507\]](#Document1zzFN_B507)]{.underline}. John M. Olin Foundation,
Inc., Schedule of Grants, 1999: H, at
http://www.jmof.org/grants/1999h.htm (last visited Oct. 26, 2003). An
Olin grant helped establish Harvard Law School\'s Law and Economics
Program in 1985. Olin Gift Expands Law and Economics at HLS, Harv. L.
Bull., Summer 1998, at 30. Further support then led to the 1995 opening
of the Olin Center at Harvard Law School, \"now the world leader in
educating students, training academics, and promoting scholarship in law
and economics.\" Id. \"Among \[the Olin Center\'s\] academic offerings
are three economic analysis seminars, courses on the economics on
regulation and antitrust, classes on law and economics and on empirical
methods, and a new course, Analytical Methods for Lawyers,\" for which
the Olin Center faculty is developing a textbook for adoption across the
country. Press Release, Harvard Law School, Harvard Law School Receives
\$10 Million Grant from John M. Olin Foundation, at http://
www.law.harvard.edu/news/2003/05/19_olin.php (May 19, 2003)
\[hereinafter Harvard Law School Press Release\]. Beyond the classroom,
\"\[t\]he Olin Center supports more than twenty John M. Olin Fellows
each year to conduct research on topics ranging from corporate
governance to prenuptial agreements.\" Id. Much of the sponsored
scholarship has involved the application of economic analysis to
controversial issues, including Professor Kip Viscusi\'s criticism of
tobacco and smoking regulation. Id.; see also Viscusi, supra note 15, at
145 (arguing that government policy \"should not be to deter smoking but
to provide information concerning the variety of smoking hazards\" so
that consumers can make their own choice).

[[\[FN508\]](#Document1zzFN_B508)]{.underline}. John M. Olin Foundation,
Inc., Schedule of Grants, 1999: Y, at
http://www.jmof.org/grants/1999y.htm (last visited Oct. 27, 2003).

[[\[FN509\]](#Document1zzFN_B509)]{.underline}. John M. Olin Foundation,
Inc., Schedule of Grants, 1999: U, at
http://www.jmof.org/grants/1999u.htm (last visited Oct. 27, 2003).

[[\[FN510\]](#Document1zzFN_B510)]{.underline}. Harvard Law School Press
Release, supra note 507. The gift is a testament to the great success of
the Center in achieving the goals of the Olin Foundation. In the words
of James Piereson, executive director of the Olin Foundation, \"\[t\]he
school has made an impressive commitment to the field of law and
economics and has created a very strong program of teaching and
research. We hope this gift will enable the school to build on this
record of success.\" Id.

[[\[FN511\]](#Document1zzFN_B511)]{.underline}. For a recent critique of
the John M. Olin Foundation\'s neoconservative influence in law schools,
see Rustad & Koenig, supra note 505, at 74-77.

[[\[FN512\]](#Document1zzFN_B512)]{.underline}. Soley, supra note 505,
at 5-6, 140-41. Not all institutions have accepted the Olin
Foundation\'s handouts. \"A short-lived program in Law and Economics was
offered at UCLA during the 1980s, but was abandoned after a curriculum
committee found that the program was \'taking advantage of students\'
financial need to indoctrinate them with a particular ideology.\"\'
Soley, supra note 505, at 137, 140 (quoting UCLA curriculum committee).

[[\[FN513\]](#Document1zzFN_B513)]{.underline}. See Thomas C. Palmer
Jr., The Right to Self-Destruct, Boston Sunday Globe, Apr. 29, 2001, at
D1 (discussing Shavell\'s work in the context of the Olin Foundation\'s
impending dissolution).

[[\[FN514\]](#Document1zzFN_B514)]{.underline}. Id. at D3.

[[\[FN515\]](#Document1zzFN_B515)]{.underline}. Id.

[[\[FN516\]](#Document1zzFN_B516)]{.underline}. See supra text
accompanying notes 57-64.

[[\[FN517\]](#Document1zzFN_B517)]{.underline}. Olin Gift Expands Law
and Economics at HLS, supra note 507, at 30.

[[\[FN518\]](#Document1zzFN_B518)]{.underline}. John M. Olin Foundation,
Inc., Board Resolution (Sept. 20, 2000), available at
http://www.jmof.org/wes.htm.

[[\[FN519\]](#Document1zzFN_B519)]{.underline}. See supra text
accompanying notes 68-81.

[[\[FN520\]](#Document1zzFN_B520)]{.underline}. William E. Simon, A Time
for Truth (Berkley Books 1979) (1978) \[hereinafter Simon, A Time for
Truth\]; William E. Simon, A Time for Action (1980).

[[\[FN521\]](#Document1zzFN_B521)]{.underline}. Simon, A Time for Truth,
supra note 520, at 246-50.

[[\[FN522\]](#Document1zzFN_B522)]{.underline}. Id. at 247.

[[\[FN523\]](#Document1zzFN_B523)]{.underline}. We suspect that such
financing arrangements may have had some influence over the kind of work
that was produced under the auspices of each program, just as economists
generally tend to assume that such financing arrangements can have
incentive effects over those subject to them. See, e.g., Francesca
Cornelli & Oved Yosha, Stage Financing and the Role of Convertible
Securities, 70 Rev. Econ. Stud. 1 (concluding that venture capital
financing can affect the short-term behavior of the entrepreneur); see
also Paul A. Gompers, Optimal Investment, Monitoring, and the Staging of
Venture Capital, 50 J. Fin. 1461, 1461 (1995) (\"\[T\]he staging of
capital infusions allows venture capitalists to gather information and
monitor the progress of firms, maintaining the option to periodically
abandon projects.\").

John M. Olin, having witnessed the leftward trend of the Ford Foundation
during the 1960s and 1970s, specified that all resources of the Olin
Foundation were to be spent within one generation of his death in order
to prevent its co-option. Shawn Zeller, Conservative Crusaders, 35
Nat\'l J. 1286, 1290-91 (2003). Although currently allocating the
remaining assets of the Foundation, with the idea of closing down by
2005, the Olin board may be making further arrangements to ensure that
Olin\'s goals are not disappointed. In the same statement detailing the
\$10 million grant to Harvard Law School, the Center for Law, Economics
and Business announced that an \"external advisory committee\" was being
set up \"to assist the faculty in guiding its programs\" in the future.
Harvard Law School Press Release, supra note 507. While the structure of
the committee has not yet been discussed, it seems likely that one
purpose of the committee will be to serve as a substitute for
stage-financing.

[[\[FN524\]](#Document1zzFN_B524)]{.underline}. See supra note 510 and
text accompanying note 518 (providing more direct evidence that the
Foundation\'s leaders believe that their efforts have been successful).

[[\[FN525\]](#Document1zzFN_B525)]{.underline}. See supra text
accompanying notes 35-64.

[[\[FN526\]](#Document1zzFN_B526)]{.underline}. Hope Rutledge, American
Bald Eagle Information, at http:// www.Baldeagleinfo.com (last updated
Aug. 26, 2003).

[[\[FN527\]](#Document1zzFN_B527)]{.underline}. There are two general
categories of chickens: \"broilers,\" which are raised and slaughtered
for meat, and \"layers,\" whose primary purpose is to produce eggs.
Livestock, Env\'t & Dev\'t Initiative, Poultry Production (Broilers and
Layers), at http://
lead.virtualcenter.org/en/dec/toolbox/Indust/IndPProd.htm (last visited
Oct. 26, 2003). Approximately 8.5 billion broilers were slaughtered in
the United States in 2001. Nat\'l Agric. Statistics Serv., U.S. Dep\'t
of Agric., Poultry Slaughter: 2001 Annual Summary 2 (2002), available at
http://
jan.mannlib.cornell.edu/reports/nassr/poultry/ppy-bban/pslaan02.pdf.
Assuming that broilers have an industry life expectancy of approximately
two months, the number of broilers existing at any one moment is
something close to 1.5 billion. See Save Animals From Experiments
(SAFE), Profiling New Zealand\'s Shameful \'Clean, Green Living\', at
http:// www.safe.org.nz/campaigns/factory/animalprofiles.php (last
visited Oct. 25, 2003). Their actual life expectancy\--if they were not
slaughtered\--would be fifteen to twenty years. Id. There are
approximately 337 million layers alive at any one time. Nat\'l Agric.
Statistics Serv., U.S. Dep\'t of Agric., Chickens and Eggs: 2002 Summary
1 (2003) available at http://
jan.mannlib.cornell.edu/reports/nassr/poultry/pec-bbl/lyegan03.pdf
\[hereinafter Nat\'l Agric. Statistics Serv., Chickens and Eggs\].
Adding broilers and layers together, the number of chickens alive at any
one moment in this country appears to be somewhere between 1.75 and 2
billion.

[[\[FN528\]](#Document1zzFN_B528)]{.underline}. Neltje Blanchan, Birds
that Hunt and Are Hunted 326-28 (1905).

[[\[FN529\]](#Document1zzFN_B529)]{.underline}. Hope Rutledge, History
of the Bald Eagle, at http:// www.baldeagleinfo.com/eagle/eagle11.html
(last visited Oct. 25, 2003).

[[\[FN530\]](#Document1zzFN_B530)]{.underline}. Id.

[[\[FN531\]](#Document1zzFN_B531)]{.underline}. We have been unable to
ascertain which came first.

[[\[FN532\]](#Document1zzFN_B532)]{.underline}. Press Release, Nat\'l
Chicken Council & U.S. Poultry & Egg Ass\'n, Boom in Chicken Consumption
Has Room to Grow (May 1, 2000), available at
http://www.eatchicken.com/statistics/pr_050100.cfm. According to John
Bekkers, chairman of the National Chicken Council, one important reason
for the growing \"success\" of chicken is its convenience. Id. \"\'The
simple fact is that chicken fits, better than any other meat, the
hectic, harried, time-crunched lifestyle that so many people lead
today.\"\' Id. (quoting Bekkers).

[[\[FN533\]](#Document1zzFN_B533)]{.underline}. American Egg Board, Egg
Consumption Through the Year, at http://
www.aeb.org/eggstravaganza/egg-consumption.htm (last visited Aug. 25,
2003); see also Int\'l Egg Comm\'n, International Egg Market: Report No.
67 (2002) (finding per capita egg consumption in the United States was
251.8 in 2000 and 252.6 in 2001), available at http://
www.internationalegg.com/html/reports/report67/1usa.pdf. There is a
striking similarity between the 252 eggs consumed per person and the 256
eggs produced by the average laying chicken. See Nat\'l Agric.
Statistics Serv., Chicken and Eggs, supra note 527, at 1 (providing
estimate for average laying chicken).

[[\[FN534\]](#Document1zzFN_B534)]{.underline}. Rutledge, supra note
530.

[[\[FN535\]](#Document1zzFN_B535)]{.underline}. See supra text
accompanying notes 12-18 (discussing the presumption that law and
economics emerges from a level playing field in a tournament of ideas).

[[\[FN536\]](#Document1zzFN_B536)]{.underline}. Posner, supra note 11,
at 275; see also Posner, Frontiers, supra note 13, at 35 (\"It is not
merely an ivory-towered enterprise, especially in the United States,
where the law and economics movement has influenced legal reform in such
fields as antitrust law, the regulation of public utilities and common
carriers, environmental regulation, \[and\] the calculation of damages
in personal injury suits\....\").

[[\[FN537\]](#Document1zzFN_B537)]{.underline}. Ulen, supra note 69, at
434.

[[\[FN538\]](#Document1zzFN_B538)]{.underline}. See, e.g., Soley, supra
note 505, at 137-40 (discussing various grants made by the Olin
Foundation to programs of law and economics in the late 1980s).

[[\[FN539\]](#Document1zzFN_B539)]{.underline}. See supra text
accompanying notes 521-22; Simon, A Time for Truth, supra note 520, at
247.

[[\[FN540\]](#Document1zzFN_B540)]{.underline}. Ulen, supra note 69, at
434.

[[\[FN541\]](#Document1zzFN_B541)]{.underline}. Posner, supra note 11,
at 275.

[[\[FN542\]](#Document1zzFN_B542)]{.underline}. Ulen, supra note 69, at
434.

[[\[FN543\]](#Document1zzFN_B543)]{.underline}. Posner, supra note 11,
at 275.

[[\[FN544\]](#Document1zzFN_B544)]{.underline}. Stanley Milgram, Issues
in the Study of Obedience: A Reply to Baumrind, 19 Am. Psychol. 848, 851
(1964).

[[\[FN545\]](#Document1zzFN_B545)]{.underline}. See supra Part I.B
(introducing the idea that legal economists have overestimated the role
of dispositional influences on their success).

[[\[FN546\]](#Document1zzFN_B546)]{.underline}. As emphasized above,
cultural causal schemes, motives and other variables influence the
degree to which groups and individuals tend to appreciate the situation.
See supra text accompanying notes 415-23 (noting corporate motivation
and cultural variations in dispositionism).

[[\[FN547\]](#Document1zzFN_B547)]{.underline}. See Milgram, Obedience
to Authority, supra note 86, at 35 tbl.2 (identifying the various
percentages of subjects who refused to obey).

[[\[FN548\]](#Document1zzFN_B548)]{.underline}. And so it is that we
treat corporations as having a set of stable preferences that they
pursue systematically over time. There is a strong and stable set of
situational forces, including corporate law, regulatory law, the single
maximand of profit, and the markets for products, managers, and capital.
These fairly consistent situational influences may allow for a
relatively precise dispositionist perspective on corporate behavior. See
supra notes 253-54 and accompanying text (discussing how situational
forces make corporations behave as if their primary goal is profit
maximization). Still, we would caution that a more realistic analysis of
corporate conduct is in order, a task that is beyond the scope of this
Article.

[[\[FN549\]](#Document1zzFN_B549)]{.underline}. In an excellent article
that we discovered only as this one was in its very final stage, Lee
Ross (the same Lee Ross whose work we have relied on throughout) and
Donna Shestowsky have recently considered the implications of
situationism for criminal law. See Lee Ross & Donna Shestowsky,
[[Contemporary Psychology\'s Challenges to Legal Theory and Practice, 97
Nw.
U.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&ReferencePositionType=S&SerialNum=0294374782&ReferencePosition=1100)]{.underline}
[[L. Rev. 1081, 1100-14
(2003)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1214&FindType=Y&ReferencePositionType=S&SerialNum=0294374782&ReferencePosition=1100)]{.underline}.
Their focus on criminal law provides a useful complement to our analysis
of contract law and confirms our belief that dispositionism infects
most, perhaps all, areas of law. Their article also usefully considers
some of the possible policy implications of situationism for criminal
law. Id.

[[\[FN550\]](#Document1zzFN_B550)]{.underline}. Charles Fried, Contract
as Promise: A Theory of Contractual Obligation (1981).

[[\[FN551\]](#Document1zzFN_B551)]{.underline}. See id. at 2 (\"The
regime of contract law, which respects the dispositions individuals make
of their rights, carries to its natural conclusion the liberal premise
that individuals have rights. And the will theory of contract, which
sees contractual obligations as essentially self-imposed, is a fair
implication of liberal individualism.\" (footnotes omitted)).

[[\[FN552\]](#Document1zzFN_B552)]{.underline}. Id. at 94.

[[\[FN553\]](#Document1zzFN_B553)]{.underline}. Id. at 57.

[[\[FN554\]](#Document1zzFN_B554)]{.underline}. Fried also addresses
related areas of contract law such as mistake and unconscionability.
Many of his arguments are overlapping and we believe that our
observations here readily apply to these related areas as well. See id.
at 58-63, 103-09.

[[\[FN555\]](#Document1zzFN_B555)]{.underline}. Id. at 93.

[[\[FN556\]](#Document1zzFN_B556)]{.underline}. Id.

[[\[FN557\]](#Document1zzFN_B557)]{.underline}. Id. at 92-93 (footnote
omitted).

[[\[FN558\]](#Document1zzFN_B558)]{.underline}. Id. at 93-94.

[[\[FN559\]](#Document1zzFN_B559)]{.underline}. Id. at 93.

[[\[FN560\]](#Document1zzFN_B560)]{.underline}. See, e.g., id. at 95-96
(offering examples of duress and noting that duress is characterized by
a high degree of coercion).

[[\[FN561\]](#Document1zzFN_B561)]{.underline}. Id. at 95.

[[\[FN562\]](#Document1zzFN_B562)]{.underline}. Id. at 94.

[[\[FN563\]](#Document1zzFN_B563)]{.underline}. See id. at 5 (\"For
promissory obligations to be truly self-imposed, the promise must have
been freely given. If this means no more than that the promisor acted
intentionally, then even an undertaking in response to a gunman\'s
threat is binding.\").

[[\[FN564\]](#Document1zzFN_B564)]{.underline}. See id. at 97 (\"These
conundrums should be sufficient to show that we cannot escape using some
normative criterion to distinguish offers from threats.\").

[[\[FN565\]](#Document1zzFN_B565)]{.underline}. Id.

[[\[FN566\]](#Document1zzFN_B566)]{.underline}. In a footnote, Fried
dismisses one source of opposition to the dispositional presumption.
\"Sometimes it is said that poor people do not understand contractual
provisions or are unable to calculate risks rationally. Such arguments
are often patronizing as well as paternalistic. Where they are valid,
the doctrine of mistake offers some relief.\" Id. at 105 n.\*.

[[\[FN567\]](#Document1zzFN_B567)]{.underline}. Interestingly, Fried
titles this section of his treatment Bad Samaritans. Id. at 109. See
also supra text accompanying notes 163-81 (reviewing a social
psychological study replicating the biblical parable of the Good
Samaritan and suggesting that whether or not a person will act \"as if\"
they are a Good Samaritan may have less to do with the person\'s
disposition than with the situation in which the person finds herself).

[[\[FN568\]](#Document1zzFN_B568)]{.underline}. See supra text
accompanying notes 116-29 (summarizing economists\' analysis of the
theoretical problem posed by poverty).

[[\[FN569\]](#Document1zzFN_B569)]{.underline}. Fried, supra note 550,
at 94. For Fried, the slippery slope of the poverty situation is
perilous. \"If\...duress focuses only on the relative wealth or
advantages of the parties to a transaction and disparities in these are
held to undermine the voluntariness of the choice, then we might just as
well redistribute directly, holding the rich but not the poor to their
bargains.\" Id.

[[\[FN570\]](#Document1zzFN_B570)]{.underline}. Id. Cf. Chen & Hanson,
Illusion of Law I, supra note 84 (describing the way the perception of
system threat has strengthened reliance on policy schemes); Hanson &
Yosifon, supra note 30 (describing the more general phenomena as
discovered by social psychologists); infra text accompanying notes
639-97 (using Southern slavery as an illustration of how system threats
help to promote dispositionism).

[[\[FN571\]](#Document1zzFN_B571)]{.underline}. Like many traditional
theorists, as well as legal economists, Fried repeatedly takes comfort
in the fact that his analysis comports with common sense. See, e.g.,
Fried, supra note 550, at 6 (\"In developing my affirmative thesis
I\...propose to perennial conundrums solutions that accord with the idea
of contract as promise and with decency and common sense as well.\");
id. at 105 (\"What needs probing is the notion of substantive
unfairness. Analysis reveals it to be two parts sentiment and one part
common sense.\"). As we have been arguing, common sense with respect to
the relative roles of disposition and the situation is fundamentally
flawed.

[[\[FN572\]](#Document1zzFN_B572)]{.underline}. The basic legal realist
analytic critique of the classical approach has been the claim that
fundamental doctrines in contract law are far too public, and the intent
of parties far too difficult to discern, for the will theory to explain
contract. The basic political critique has been that so strongly
privileging individual \"will\" in contract law unfairly disadvantages
those without bargaining power. Both of these critiques, while not our
focus here, are consonant with our views of both classical and modern
contract law. The historical and intellectual movement from
\"classical\" to \"modern\" contract theory has been a subject of
sustained analysis by contract theorists. For an overview, see P.S.
Atiyah, The Rise and Fall of Freedom of Contract (1979); Horwitz, supra
note 200, at 33-63; Jack Beatson & Daniel Friedman, Introduction, From
\"Classical\" to Modern Contract Law, in Good Faith and Fault in
Contract Law 3 (Jack Beatson & Daniel Friedmann eds., 1995); see also
Jay M. Feinman, [[Promissory Estoppel and Judicial Method, 97 Harv. L.
Rev. 678
(1984)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3084&FindType=Y&SerialNum=0102032466)]{.underline}
(examining the development of promissory estoppel as one of many reforms
meant to resolve the contradiction in classic contract theory between
freedom and coercion).

[[\[FN573\]](#Document1zzFN_B573)]{.underline}. Of course, we will not
offer a comprehensive treatment of Llewellyn\'s great contribution to
legal theory. We join a long list of commentators who have noted that
\"\[a\]ny effort to summarize Llewellyn\'s elaborate theory and the
importance of \'situation sense\' is bound to fall short.\" David
Shapiro, [[Continuity and Change in Statutory Interpretation, 67 N.Y.U.
L. Rev. 921, 941 n.103
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0103027122&ReferencePosition=941)]{.underline}.
In our view, of all the recent efforts to summarize Llewellyn\'s work,
Professor Rakoff\'s comes closest to accomplishing the feat. See Todd D.
Rakoff, The Implied Terms of Contracts: Of \"Default Rules\" and
\"Situation Sense,\" in Good Faith and Fault in Contract Law, supra note
572, at 191, 214 (defining Llewellyn\'s conception of \"situation
sense\" as a \"process of thinking\" that considers \"the implications
of various legal rules, matched up against reasonably intricate models
of social situations, and brought together in light of the force of all
the claims to be made\").

[[\[FN574\]](#Document1zzFN_B574)]{.underline}. Llewellyn has also had a
tremendous influence on the development of contemporary contract theory
and law through his contribution to the Uniform Commercial Code. See
Lisa Bernstein, The [[Questionable Empirical Basis of Article 2\'s
Incorporation Strategy: A Preliminary Study, 66 U. Chi. L. Rev. 710, 712
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0112629231&ReferencePosition=712)]{.underline}
(noting that Llewellyn was a \"principle drafter\" of Article 2 of the
Uniform Commercial Code); Richard Danzig, A Comment on the Jurisprudence
of the Uniform Commercial Code, [[27 Stan. L. Rev. 621, 624-27
(1975)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=27STANLREV621&FindType=Y&ReferencePositionType=S&ReferencePosition=624)]{.underline}
(offering examples of Llewellyn\'s influence on the Uniform Commercial
Code); Feinman, supra note 572, at 698 (\"The method of analysis perhaps
most characteristic of the modern cases may be characterized in the
language of its principle exponent, Karl Llewellyn, as \'situation
sense.\"\'); Allen R. Kamp, [[Between-the-Wars Social Thought: Karl
Llewellyn, Legal Realism and the Uniform Commercial Code in Context, 59
Alb. L. Rev. 325, 370
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3105&FindType=Y&ReferencePositionType=S&SerialNum=0105926169&ReferencePosition=370)]{.underline}
(considering whether the Uniform Commercial Code reflects Llewellyn\'s
notion of \"reasonableness\").

[[\[FN575\]](#Document1zzFN_B575)]{.underline}. Karl N. Llewellyn, The
Common Law Tradition (1960). Although the book contains his most
compendious discussion of situation sense, he developed the concept in
somewhat piecemeal fashion over the course of over three decades of
influential scholarship.

[[\[FN576\]](#Document1zzFN_B576)]{.underline}. The phrase
\"announcement that it is now common knowledge,\" which aptly describes
the quote that follows, may in a sense sum up the task of the legal
analyst in situation-sense theory.

[[\[FN577\]](#Document1zzFN_B577)]{.underline}. Llewellyn, supra note
575, at 11.

[[\[FN578\]](#Document1zzFN_B578)]{.underline}. See supra text
accompanying notes 82-100 (discussing early experimental evidence of the
situation\'s power to influence behavior); see generally Hanson &
Yosifon, supra note 30 (providing more extensive evidence of that
power). Of course, when Llewellyn wrote, the power of the situation was
much less well understood, even by social psychologists.

[[\[FN579\]](#Document1zzFN_B579)]{.underline}. Llewellyn, supra note
575, at 155.

[[\[FN580\]](#Document1zzFN_B580)]{.underline}. Llewellyn, supra note
575, at 131. Llewellyn\'s comments here parallel the reactions of many
legal economists to the challenges posed by social psychology. See
Hanson and Kysar, Taking Behavioralism Seriously I, supra note 251;
Hanson & Kysar, Taking Behavioralism Seriously II, supra note 251;
Hanson & Kysar, Taking Behavioralism Seriously III, supra note 257.

[[\[FN581\]](#Document1zzFN_B581)]{.underline}. Unspottable, that is,
within a strong dispositionist mindset.

[[\[FN582\]](#Document1zzFN_B582)]{.underline}. Though a precise
definition of \"situation sense,\" is notoriously absent, see supra note
573 and accompanying text, its common sense eclecticism is betrayed in
Llewellyn\'s description of the concept as a \"compound\[\] of Isness
and Oughtness and what have you more\....\" Llewellyn, supra note 575,
at 61. See also id. at 121 (\"The evidence for this \[i.e., that
otherwise good rules can be twisted out of shape by attempts to do
justice in \'hard cases\'\] draws on more than \'common knowledge\'
(which can so often be unmasked as common superstition); it draws on
that most uncommon knowledge which I call horse sense, the balanced
shrewdness of the expert in the art.\"). As far as what goes into this
compound, for Llewellyn, \"the main guide is felt sense and decency.\"
Id. at 135. Professor Rakoff comments that \"\[i\]t appears that
Llewellyn was in some fashion endorsing a method of practical wisdom.\"
Rakoff, supra note 573, at 202. The question though is just what method
guides the practice of situation sense. Llewellyn\'s explanation has
often been characterized as \"unmethodical.\" See, e.g., id. at 203
(suggesting that Llewellyn offers \"many examples \[but\] no clear
description of a method\"). Our concern is not so much that it is
\"unmethodical\" but rather that the method it embraces is
dispositionist.

[[\[FN583\]](#Document1zzFN_B583)]{.underline}. Llewellyn, supra note
575, at 130.

[[\[FN584\]](#Document1zzFN_B584)]{.underline}. Id. at 262. Llewellyn\'s
claims about the abilities of judges often rest on an implicit and
sometimes explicit appeal to the reader to see that \"judges are like
other human beings\....\" Id. at 131.

[[\[FN585\]](#Document1zzFN_B585)]{.underline}. We concur with Llewellyn
that the problem with post-classical contract law is not that it is
naive about the extent to which judges are corrupt or the difficulties
they have paying attention. For us, the problem is in Llewellyn\'s
presumption that, if those factors alone can be discounted, there is
little else to worry about.

[[\[FN586\]](#Document1zzFN_B586)]{.underline}. Llewellyn, supra note
575, at 157.

[[\[FN587\]](#Document1zzFN_B587)]{.underline}. See infra note 591 and
accompanying text (briefly discussing the term \"immanent law\").

[[\[FN588\]](#Document1zzFN_B588)]{.underline}. See supra text
accompanying notes 578-82 (discussing Llewellyn\'s brush past social
sciences\' difficulties in discerning indications of human decision
making).

[[\[FN589\]](#Document1zzFN_B589)]{.underline}. David Charny, The [[New
Formalism in Contract, 66 U. Chi. L. Rev. 842, 846
(1999)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=3039&FindType=Y&ReferencePositionType=S&SerialNum=0112629235&ReferencePosition=846)]{.underline}.
Charny is interested in the extent to which the customary practices of
areas of industry are legislated or stipulated by hierarchical
associations, and the extent to which the trade customs promulgated
through such associations have a formal quality reminiscent of classical
approaches to contract law\--hence, the new formalism in contract. [[Id.
at
842-43.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=0112629235)]{.underline}

[[\[FN590\]](#Document1zzFN_B590)]{.underline}. Llewellyn, supra note
575, at 261.

[[\[FN591\]](#Document1zzFN_B591)]{.underline}. Llewellyn initially
quotes the term \"immanent law\" from the German legal theorist Levin
Goldschmidt:

\"Every fact-pattern of common life, so far as the legal order can take
it in, carries within itself its appropriate, natural rules, its right
law. This is a natural law which is real, not imaginary; it is not a
creature of mere reason, but rests on the solid foundation of what
reason can recognize in the nature of man and of the life conditions of
the time and place; it is thus not eternal nor changeless nor everywhere
the same, but is indwelling in the very circumstances of life. The
highest task of law-giving consists in uncovering and implementing this
immanent law.\"

Id. at 122 (quoting Levin Goldschmidt, Der Entwurf eines
Handelgesetzbuchs für die Preussischen Staaten \[Draft Trade Code for
the Prussian States\], pt. 2, reprinted in 4 Kritische Zeitschrift für
die Gesammte Rechtswissenschaft 289 (Dernburg et al. eds., Heidelberg,
Bangel & Schmitt 1857)).

[[\[FN592\]](#Document1zzFN_B592)]{.underline}. As Jay Feinman states:

The method of situation-sense begins with fact scrutiny, in which the
court analyzes and categorizes the facts as might a lay person familiar
with the context of the dispute. The fact scrutiny may reveal a
consensus regarding applicable values within the affected group or
within society as a whole; at a minimum, such scrutiny will limit the
range of acceptable choices. The court then determines the appropriate
legal remedy for the situation.

Feinman, supra note 572, at 702.

[[\[FN593\]](#Document1zzFN_B593)]{.underline}. Llewellyn rejects
attempts by critics to categorize situation sense and legal realism as a
philosophy in general or as a form of positivism in particular.
Llewellyn, supra note 575, at 508-09. For Llewellyn, situation sense is
an approach to decision making that encourages the decision maker to see
each situation \"fresh\" while positivism is a philosophy giving
legitimacy to law because it is law. See Karl N. Llewellyn, The
Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method,
49 Yale L.J. 1355, 1370-72 (1940); see also Horwitz, supra note 200, at
208-12 (summarizing the critique of Llewellyn\'s situation sense on
grounds that it is positivism). \"Why should realism, which starts out
as a reform movement, carry in its loins \[an\] essentially reactionary
principle?\" Id. at 211 (quoting L.L. Fuller, American Legal Realism, 82
U. Pa. L. Rev. 429, 461 (1934)).

Our critique is somewhat different. Beyond the question of whether other
concerns will inform the judgment, we claim that there is too much
positivism even in that component which is attempting to discern the
\"type-situation.\" Our claim is that the type-situation cannot be
properly seen unless it is viewed from a critical realist perspective.
Post-classical contract theory ultimately rests on the faith that
\"situation sensing\" provides, as Professor Rakoff puts it, \"good
ground\" for legal decision making. Rakoff, supra note 573, at 223; see
also id. at 228 (\"In short, situation-sense is a very good method for
determining what the default rules of contract law should be.\"). In our
view the trouble is that what is obvious to the situation-sensor will
only confirm and encourage dispositionist \"mispainting.\"

[[\[FN594\]](#Document1zzFN_B594)]{.underline}. See, e.g., [[Mark
Kelman, Interpretive Construction in the Substantive Criminal Law, 33
Stan. L. Rev. 591
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DocName=33STANLREV591&FindType=Y)]{.underline}
(applying situation-sense approach to the analysis of criminal law).

[[\[FN595\]](#Document1zzFN_B595)]{.underline}. See, e.g., Richard H.
Fallon, Jr., [[Sexual Harassment, Content Neutrality, and the First
Amendment Dog That Didn\'t Bark, 1994 Sup. Ct. Rev. 1, 40-41
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100400&FindType=Y&ReferencePositionType=S&SerialNum=0105385007&ReferencePosition=40)]{.underline}
(urging the application of \"contextualization\" to constitutional law
problems, although noting that \"\[c\]elebrations of situation sense and
practical reason frequently dissolve into philosophical mush\").

[[\[FN596\]](#Document1zzFN_B596)]{.underline}. See, e.g., David L.
Shapiro, [[Continuity and Change in Statutory Interpretation, 67 N.Y.U.
L. Rev. 921, 941
(1992)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1206&FindType=Y&ReferencePositionType=S&SerialNum=0103027122&ReferencePosition=941)]{.underline}
(noting that a situation-sense approach to statutory interpretation is
\"not without defenders and not without force\").

[[\[FN597\]](#Document1zzFN_B597)]{.underline}. See, e.g., Leon E.
Trakman, The Law Merchant: The Evolution of Commercial Law 93 (1983)
(\"Judges are compelled to synthesize how merchants think and act if the
common law is to progress as international commerce progresses.\").

[[\[FN598\]](#Document1zzFN_B598)]{.underline}. Of course, this is
unsurprising given that Fried\'s project is in part a positive theory of
modern contract law. See supra text accompanying notes 551-71 for a
discussion of Fried\'s theory of contract.

[[\[FN599\]](#Document1zzFN_B599)]{.underline}. [[Restatement (Second)
of Contracts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289906873)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289906873)[
17(1)
(1981)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101603&FindType=Y&SerialNum=0289906873)]{.underline}.

[[\[FN600\]](#Document1zzFN_B600)]{.underline}. Id. § 19(2). The
Restatement consistently refers back to this section as stating the
general rule of assent in contracts.

[[\[FN601\]](#Document1zzFN_B601)]{.underline}. Id. ch.7, topic 2,
introductory note.

[[\[FN602\]](#Document1zzFN_B602)]{.underline}. The same is true in
other areas of the law. In tort law, courts recognize the limits of
property rights when salient situational conditions of \"necessity\" are
in play. A sudden, unexpected tempest, for instance, will mute the
consequences of the otherwise dispositional act of trespass. See, e.g.,
[[Restatement (Second) of Torts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693901)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693901)[
197(1)
(1965)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101577&FindType=Y&SerialNum=0290693901)]{.underline}
(\"One is privileged to enter or remain on land in the possession of
another if it is or reasonably appears to be necessary to prevent
serious harm to the actor\....\"). In criminal law, killing a person in
the \"heat of passion\" is treated as a less egregious offense than
committing the same act in \"cold blood.\" See, e.g., [[United States v.
Bradford, 344 A.2d 208, 215 (D.C.
1975)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=162&FindType=Y&ReferencePositionType=S&SerialNum=1975102519&ReferencePosition=215)]{.underline}
(\"The purpose to kill is in legal contemplation dampened where the
killer has been provoked or is acting in the heat of passion\....\").

[[\[FN603\]](#Document1zzFN_B603)]{.underline}. See, e.g., [[Avallone v.
Elizabeth Arden Sales Corp., 183 N.E.2d 496, 499 (Mass.
1962)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=578&FindType=Y&ReferencePositionType=S&SerialNum=1962117612&ReferencePosition=499)]{.underline}
(explicating the principle of duress as \"\[c\]onduct by one party which
causes another to enter into a contract \'under the influence of such
fear as precludes him from exercising free will and judgment\"\'
(quoting [[Restatement of Contracts
](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)[§](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)[
492(b)
(1932)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0101592&FindType=Y&SerialNum=0289906659)]{.underline})).

[[\[FN604\]](#Document1zzFN_B604)]{.underline}. Fried, supra note 550,
at 93-95.

[[\[FN605\]](#Document1zzFN_B605)]{.underline}. [[Randall v. Rapoza,
2001 Mass. App. Div. 153
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=524&FindType=Y&SerialNum=2001665521)]{.underline}.

[[\[FN606\]](#Document1zzFN_B606)]{.underline}. [[Id. at
156](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=2001665521)]{.underline}
(quoting [[Coveney v. President of Coll. of Holy Cross, 445 N.E.2d 136,
140 (Mass.
1983)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=578&FindType=Y&ReferencePositionType=S&SerialNum=1983105340&ReferencePosition=140)]{.underline}).

[[\[FN607\]](#Document1zzFN_B607)]{.underline}. Id.

[[\[FN608\]](#Document1zzFN_B608)]{.underline}. Id. (alteration in
original) (quoting Rapoza Aff.).

[[\[FN609\]](#Document1zzFN_B609)]{.underline}. Id. (quoting Rapoza
Aff.).

[[\[FN610\]](#Document1zzFN_B610)]{.underline}. Id. (quoting [[Bembe v.
McKesson Wine & Spirits Co., 388 N.E.2d 309, 314 (Mass. App. Ct.
1979)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=578&FindType=Y&ReferencePositionType=S&SerialNum=1979120783&ReferencePosition=314)]{.underline}
(quoting [[Davis v. Boston Elevated Ry. Co., 126 N.E. 841, 844 (Mass.
1920)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=577&FindType=Y&ReferencePositionType=S&SerialNum=1920133627&ReferencePosition=844)]{.underline})).

[[\[FN611\]](#Document1zzFN_B611)]{.underline}. Id.

[[\[FN612\]](#Document1zzFN_B612)]{.underline}. Id.

[[\[FN613\]](#Document1zzFN_B613)]{.underline}. Id. at 155-56.

[[\[FN614\]](#Document1zzFN_B614)]{.underline}. We should not be
understood as arguing that the outcome in Randall was necessarily
incorrect. Our point is that the reasoning is based on a flawed vision
of what moves us\--a flaw with implications that may extend well beyond
this case, the doctrine of duress, or even the law of contracts.

[[\[FN615\]](#Document1zzFN_B615)]{.underline}. See, e.g., Jon Hanson,
David Yosifon & Adam Benforado, Broken Scales: Obesity and Justice in
America (unpublished manuscript, on file with authors).

[[\[FN616\]](#Document1zzFN_B616)]{.underline}. Milgram, supra note 88,
at 376.

[[\[FN617\]](#Document1zzFN_B617)]{.underline}. For a discussion of some
variations of Milgram\'s experiment, see Hanson & Yosifon, supra note
30.

[[\[FN618\]](#Document1zzFN_B618)]{.underline}. Milgram, supra note 88,
at 373.

[[\[FN619\]](#Document1zzFN_B619)]{.underline}. Id. at 377.

[[\[FN620\]](#Document1zzFN_B620)]{.underline}. Id.

[[\[FN621\]](#Document1zzFN_B621)]{.underline}. Id. at 372, 378.
However, Milgram also notes that the results of the experiment, when
conducted with unpaid subjects, were \"very similar to those obtained
with paid subjects.\" Id. at 377 n.4.

[[\[FN622\]](#Document1zzFN_B622)]{.underline}. Id. at 377-78. Cognitive
dissonance is a feeling of internal discomfort produced when a person
holds two or more inconsistent cognitions\--in this case, the desire to
fulfill the terms of a valid contract and the desire not to harm another
person\--and performs an action\--here, shocking the learner\--that is
inconsistent with the person\'s customary positive self-conception. See
Elliot Aronson et al., Social Psychology 174-76 (4th ed. 2002) (defining
and explaining \"cognitive dissonance\"); Hanson & Yosifon, supra note
30 (discussing the cognitive dissonance and several related phenomena
and their relevance for law and legal theory).

[[\[FN623\]](#Document1zzFN_B623)]{.underline}. Milgram, supra note 88,
at 294.

[[\[FN624\]](#Document1zzFN_B624)]{.underline}. Id.

[[\[FN625\]](#Document1zzFN_B625)]{.underline}. Milgram, supra note 88,
at 378.

[[\[FN626\]](#Document1zzFN_B626)]{.underline}. Id. at 377.

[[\[FN627\]](#Document1zzFN_B627)]{.underline}. Id.

[[\[FN628\]](#Document1zzFN_B628)]{.underline}. Obedience, supra note
149.

[[\[FN629\]](#Document1zzFN_B629)]{.underline}. Some anecdotal evidence
provides loose support for this account. First, as noted above, none of
the teachers ever went to find out if the learner was okay. Supra text
accompanying note 180. It is as if the teachers felt that they were not
responsible for the learner\'s condition\--in other words, that the
learner was responsible for himself. In addition, there is some evidence
that the teachers dispositionalized their own actions\--blaming
themselves for the bad \"preference\" that was \"revealed\" by their
actions. According to lore among social psychologists, Milgram was able
to include only one example of a person flipping the final switch (450
volts) in his famous documentary about the experiments, Obedience,
because none of the many others who did so were willing to be shown on
film. Presumably, they did not want to be shown as \"bad people.\"
Milgram included several after-the-fact interviews of subjects, some of
which revealed how the subjects attributed their actions to their own
dispositions. See, e.g., Milgram, Obedience to Authority, supra note 86,
at 54 (\"As my wife said, \'\[y\]ou can call yourself Eichmann.\' I hope
I can deal more effectively with any future conflicts of values I
encounter.\"). Given that they dispositionalized their own
behavior\--behavior that was anything but flattering\--it seems likely
that they also would have partially dispositionalized the learner\'s
behavior. See supra note 110 (describing the heightened tendency to
attribute bad outcomes suffered by others\--as compared to those we
suffer ourselves\--to disposition).

[[\[FN630\]](#Document1zzFN_B630)]{.underline}. See Milgram, Obedience
to Authority, supra note 86, at 66 (finding that \"the social contract
doctrine is a feeble determinant of behavior\").

[[\[FN631\]](#Document1zzFN_B631)]{.underline}. Id. at 64.

[[\[FN632\]](#Document1zzFN_B632)]{.underline}. Id. at 65.

[[\[FN633\]](#Document1zzFN_B633)]{.underline}. Id.

[[\[FN634\]](#Document1zzFN_B634)]{.underline}. Id. at 66.

[[\[FN635\]](#Document1zzFN_B635)]{.underline}. See Hanson & Yosifon,
supra note 30 (summarizing relevant evidence of the \"just world\"
hypothesis and the system-affirming motive in social psychology). For a
sample of that work, see authorities cited infra note 686.

[[\[FN636\]](#Document1zzFN_B636)]{.underline}. See generally Joseph
Tenenbaum, Race and Reich 3-28 (Greenwood Press, 1976) (1956) (relating
German science of racial superiority to the Nazi extermination
campaign). See also Chen & Hanson, supra note 52.

[[\[FN637\]](#Document1zzFN_B637)]{.underline}. See generally Ronald T.
Takaki, Iron Cages: Race and Culture in 19th-Century America (2000)
(examining the cultural and economic foundations of racial subjugation
in the United States); see also sources cited infra note 639 (examining
racism in America).

[[\[FN638\]](#Document1zzFN_B638)]{.underline}. Frederick Douglass,
Narrative of the Life of Frederick Douglass, an American Slave (1845),
reprinted in 1 The Norton Anthology of American Literature 1874, 1887-88
(Nina Baym et al. eds., 3d ed. 1989).

[[\[FN639\]](#Document1zzFN_B639)]{.underline}. There is a vast,
sophisticated, and ever-expanding literature, across many disciplines,
that has contributed greatly to our understanding of the shocking
reality of slavery in the United States. For useful historical overviews
of the ideas we discuss here concerning the basic dispositionist
ideology underlying \"the peculiar institution,\" see generally David
Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823
(1975) (exploring the competing ideologies of anti-slavery and racist
exploitation during the eighteenth and nineteenth centuries); George M.
Fredrickson, The Black Image in the White Mind: The Debate on
Afro-American Character and Destiny, 1817-1914 (1971) (outlining the
rise of formalized racism in the United States from its
nineteenth-century beginnings through its apex during World War I);
George M. Fredrickson, Racism: A Short History (2002) (synthesizing over
thirty years of historical scholarship on racism); Thomas F. Gossett,
Race: The History of an Idea in America (new ed. 1997) (surveying the
development of race theory and race relationships from the colonial
period through the twentieth century); Stephen Jay Gould, The Mismeasure
of Man (rev. ed. 1996) (explaining and refuting various \"scientific\"
theories of racial superiority); Winthrop D. Jordan, White Over Black:
American Attitudes Toward the Negro, 1550-1812 (1968) (analyzing white
men\'s attitudes towards black Africans from the pre-colonial period
through the early nineteenth century); Kenan Malik, The Meaning of Race:
Race, History and Culture in Western Society (1996) (linking
contemporary, post-Cold War racial ideology to the history of race and
racial ideology in the West). Legal scholars have also contributed
significantly to our current understanding of racism in general and
slavery in particular. See generally Critical Race Theory: The Key
Writings That Formed the Movement (Kimberlé Crenshaw et al. eds., 1995)
(collecting seminal writings of critical race theorists engaged in legal
scholarship); A. Leon Higginbotham, Jr., Shades of Freedom: Racial
Politics and Presumptions of the American Legal Process (1996)
(surveying and analyzing the history of racism in the United States and
its impact on legal theory and jurisprudence); Thomas D. Morris,
Southern Slavery and the Law, 1619-1860 (1996) (theorizing the role of
race as a factor influencing the rulings of particular judges in the
American South during the two and a half centuries before the Civil
War); Mark V. Tushnet, The American Law of Slavery 1810-1860:
Considerations of Humanity and Interest (1981) (studying Southern case
law related to slavery); Ariela J. Gross, [[Litigating Whiteness: Trials
of Racial Determination in the Nineteenth-Century South, 108 Yale L.J.
109
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1292&FindType=Y&SerialNum=0110216053)]{.underline}
(examining the role of the law in the construction of race and racism in
the nineteenth-century American South).

[[\[FN640\]](#Document1zzFN_B640)]{.underline}. See supra note 29-31
(providing brief summary of motive to self-affirm); Hanson & Yosifon,
supra note 30 (providing extensive summary of that motive).

[[\[FN641\]](#Document1zzFN_B641)]{.underline}. See Hanson & Yosifon,
supra note 30 (summarizing evidence of people\'s tendency to
group-affirm and system-affirm).

[[\[FN642\]](#Document1zzFN_B642)]{.underline}. Higginbotham, supra note
639, at 14.

[[\[FN643\]](#Document1zzFN_B643)]{.underline}. Id.

[[\[FN644\]](#Document1zzFN_B644)]{.underline}. See infra text
accompanying notes 647-82.

[[\[FN645\]](#Document1zzFN_B645)]{.underline}. Elizabeth Cady Stanton,
Address to the Legislature of New York on Women\'s Rights (Feb. 14,
1854), reprinted in Elizabeth Cady Stanton, Susan B. Anthony:
Correspondence, Writings, Speeches 44, 50 (Ellen Carol DuBois ed.,
1981).

[[\[FN646\]](#Document1zzFN_B646)]{.underline}. See Higginbotham, supra
note 639, at 12 (\"The precept that African Americans were, in some
immutable way, inferior became a powerful principle around which all
white colonists, even those who did not own slaves, could begin to
foster a common identity\....\").

[[\[FN647\]](#Document1zzFN_B647)]{.underline}. A. Leon Higginbotham,
Jr. has identified dispositional inferiority as the first of ten basic
precepts of American slavery jurisprudence, and summarizes it as
follows:

Presume, preserve, protect, and defend the ideal of the superiority of
whites and the inferiority of blacks.

\....

By considering the black as a subspecies of man or, most often, a
heathen from a less advanced, oppressed civilization, many whites could
justify his enslavement. The whites\' \"logic\" went as follows: the
African is different in appearance and manner from us; he must not be
human or at least not equally as human as we are; therefore, he is
inferior to us and can be enslaved by us, his superiors.

A. Leon Higginbotham, Jr., The [[Ten Precepts of American Slavery
Jurisprudence, 17 Cardozo L. Rev. 1695, 1697, 1700
(1996)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1441&FindType=Y&ReferencePositionType=S&SerialNum=0106817251&ReferencePosition=1697)]{.underline}
(citations omitted).

[[\[FN648\]](#Document1zzFN_B648)]{.underline}. [[Dred Scott v.
Sandford, 60 U.S. (19 How.) 393, 407
(1857)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1856193196&ReferencePosition=407)]{.underline}.
Taney was wrong in his monolithic positive description of white
attitudes towards blacks, and we do not mean to suggest that these
attitudes were indeed monolithic. But Taney\'s words certainly
represented the dominant view and the powerful role of dispositionism in
it. See generally Higginbotham, supra note 639, at 66 (analyzing
Taney\'s opinion as an argument that \"slavery did not render African
Americans inferior\" because by Taney\'s logic \"African Americans, by
their very nature, were inferior\").

[[\[FN649\]](#Document1zzFN_B649)]{.underline}. [[Dred Scott, 60 U.S. at
406](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1856193196&ReferencePosition=406)]{.underline}.

[[\[FN650\]](#Document1zzFN_B650)]{.underline}. [[Id. at
451.](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1856193196)]{.underline}

[[\[FN651\]](#Document1zzFN_B651)]{.underline}. See [[id. at
452](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1856193196)]{.underline}
(\"\[T\]he act of Congress which prohibited a citizen from holding and
owning \[slaves\]\... in the territory of the United States north of the
line therein mentioned,\... is therefore void.\").

[[\[FN652\]](#Document1zzFN_B652)]{.underline}. See Higginbotham, supra
note 639, at 66-67 (showing that, although the legal analysis was
somewhat controversial, the presumption of black inferiority was
commonly held); Don E. Fehrenbacher, The Dred Scott Case: Its
Significance in American Law and Politics (1978) (noting that most white
critics of the decision railed against the Missouri Compromise
restriction rather than the issue of Negro citizenship).

[[\[FN653\]](#Document1zzFN_B653)]{.underline}. See Gossett, supra note
639, at 29 (\"The importance of Negro slavery in generating race
theories in this country can hardly be overestimated.\").

[[\[FN654\]](#Document1zzFN_B654)]{.underline}. See supra text
accompanying notes 639-41.

[[\[FN655\]](#Document1zzFN_B655)]{.underline}. Cf. Barbara Jeanne
Fields, Slavery, Race and Ideology in the United States of America, 181
New Left Rev. 95, passim (1990) (arguing that the concept of race
emerged, and continues to this day, in significant part to resolve the
contradiction between espoused rights and ideals and actual practices).

[[\[FN656\]](#Document1zzFN_B656)]{.underline}. We do not mean to
suggest, and would be incorrect if we did, that there was any unanimity
in public opinion about slaves and slavery. See Gossett, supra note 639,
at 53 (noting that, although \"\[t\]he Negro would have to wait a long
time,\" eventually \"impressive voices were raised in behalf of his
innate intellectual and temperamental equality with the whites\"). There
were always dissenters, visionary thinkers, courageous social movements,
and individuals of deep perception, who knew for themselves and shouted
to others that slaves were suffering from a degrading and dehumanizing
situation, not dispositional inferiority. Very often these voices in the
dispositional wilderness came from freed or escaped slaves themselves.
See, e.g., Douglass, supra note 638, at 1887 (remembering slaves\' songs
as \"tones loud, long and deep; they breathed the prayer and complaint
of souls boiling over with the bitterest anguish.\"); Bullwhip Days: The
Slaves Remember 41 (James Mellon ed., 1988) (\"\'That was all the slave
thought about, then: not being a slave. Because slavery time was
hell.\"\' (quoting former slave Mary Gaffney)). Other oral histories
reveal that many slaves themselves internalized the dispositionist
account of their predicament. See generally Fed. Writers\' Project,
Works Progress Admin., Slave Narratives: A Folk History of Slavery in
the United States from Interviews with Former Slaves (1941) (providing
numerous examples from among more than 2,300 first-person accounts of
slavery), available at http://lcweb2.loc.gov/ammem/snhtml/. This human
tendency is part of what makes dispositionism so powerful.

[[\[FN657\]](#Document1zzFN_B657)]{.underline}. See Tania Tetlow, The
[[Founders and Slavery: A Crisis of Conscience, 3 Loy. J. Pub. Int. L.
1, 11
(2001)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=137656&FindType=Y&ReferencePositionType=S&SerialNum=0287738599&ReferencePosition=11)]{.underline}
(noting that Jefferson owned 154 slaves in 1794, only ten percent of
whom he manumitted upon his death).

[[\[FN658\]](#Document1zzFN_B658)]{.underline}. Thomas Jefferson, Notes
on the State of Virginia (1787), reprinted in Thomas Jefferson: Writings
123, 264-70 (Merrill D. Peterson ed., 1984).

[[\[FN659\]](#Document1zzFN_B659)]{.underline}. Much has been written on
Jefferson\'s views about slavery. See, e.g., Aaron Schwabach,
[[Jefferson and Slavery, 19 T. Jefferson L. Rev. 63, 77-87
(1997)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=112966&FindType=Y&ReferencePositionType=S&SerialNum=0108377577&ReferencePosition=77)]{.underline}
(summarizing Jefferson\'s views on slavery and collecting citations of
scholarly work on the issue); Tetlow, supra note 657, at 10-24
(describing the hypocrisy of the founding generation and examining
Jefferson\'s use of racial inferiority to resolve it); see also sources
cited supra note 639 (containing extended analyses of Jefferson\'s
thoughts on, and contributions to, American racism).

[[\[FN660\]](#Document1zzFN_B660)]{.underline}. Jefferson is attaching
himself explicitly to a particular school of thought in the eighteenth
century which held that Africans were in fact the same species as man,
rather than some lesser species. See, e.g., Jordan, supra note 639, at
308 (citing a debate at Harvard\'s 1773 commencement where one student
argued that Africans were the same species as white men). But notice how
little difference it makes with respect to Jefferson\'s dispositionism.
Whether the Africans were an inferior species or a lesser quality of
human, Jefferson sees their condition as resulting from stable, internal
dispositional factors, and not from the situation. Later scholars would
go further than Jefferson and claim to demonstrate that Africans were,
indeed, an inferior race. Samuel Morton, one of the best-known
antebellum scientists, amassed the largest skull collection in the world
in his scientific endeavor to demonstrate that racial distinctions
reflected deep genetic differences. More specifically, he applied this
theory of polygeny to \"prove\" that Africans were inferior. See Samuel
George Morton, Crania Americana 5-7 (1839) (describing the African race
as \"the lowest grade of humanity\"); see also Am. Philosophical Soc\'y,
Samuel George Morton Papers: 1819-1850, at http://
www.amphilsoc.org/library/mole/m/mortonsg.htm (last visited Oct. 30,
2003). \"Morton\'s work met with a receptive audience in much of the
United States. Its massive empirical base was praised by the scientific
elite, and his theories on human relations were endorsed avidly by
pro-slavery advocates.\" Id.; see also Gould, supra note 639, at 101-04
(illustrating the connections between Morton\'s work and American
slavery). For a relatively brief history of the emergence of polygeny in
America, and the role played by numerous scholars, including Morton and
Harvard\'s Louis Agassiz, see Robert Bernasconi, Introduction to
American Theories of Polygenesis, at v-xiii (Robert Bernasconi ed.,
2002). Agassiz, a renowned European scientist who came to America in
1846, had initially concluded that all humans were of one race. Id. But
after being in America and reviewing Morton\'s evidence, he converted to
polygeny. Id. Apparently, it was not just Morton\'s highly credible
statistical analysis that influenced Agassiz. In a letter that he wrote
to his mother, Agassiz indicated that his own personal encounters with
slaves were having an effect. Because they were, by their appearance, an
evidently \"degraded and degenerate race,\" Agassiz found it difficult
\"to repress the feeling that they are not of the same blood as us.\"
Id. For a more extended account of polygeny, see Gould, supra note 639,
at 71-104 (exploring the development of polygeny throughout the
nineteenth century); John S. Haller, Jr., Outcasts from Evolution:
Scientific Attitudes of Racial Inferiority, 1859- 1900 passim (1971)
(describing the work of numerous American scientists in the late
nineteenth century who, inspired largely by Darwin\'s work on evolution,
attempted to use science to prove what they assumed to be true: that
non-white \"races\" were more or less inferior to the whites).

[[\[FN661\]](#Document1zzFN_B661)]{.underline}. Jefferson, supra note
658, at 264-67, 270 (footnote added).

[[\[FN662\]](#Document1zzFN_B662)]{.underline}. Id. at 265.

[[\[FN663\]](#Document1zzFN_B663)]{.underline}. See supra text
accompanying note 32 (discussing the role played by \"revealed\"
preference assumptions in conventional economic theory).

[[\[FN664\]](#Document1zzFN_B664)]{.underline}. See supra text
accompanying note 638.

[[\[FN665\]](#Document1zzFN_B665)]{.underline}. See, e.g., Solomon
Northup, Twelve Years a Slave 167, 171 (Dover Publ\'ns 1970) (1854)
(\"An hour before daylight the horn is blown\.... \[T\]hey oftentimes
labor till the middle of the night\"); cf. William Goodell, The American
Slave Code in Theory and Practice 128-29 (Negro Univs. Press 1968)
(1853) (citing South Carolina\'s prohibition on forcing slaves to work
more than fifteen hours per day in the summer or fourteen hours a day in
the winter).

[[\[FN666\]](#Document1zzFN_B666)]{.underline}. See Eugene D. Genovese,
Roll, Jordan, Roll: The World the Slaves Made 561-63 (1974) (outlining
formal bans on slave education).

[[\[FN667\]](#Document1zzFN_B667)]{.underline}. Of course, Jefferson was
not only wrong in his dispositionist explanation of slaves\' lack of
reason and imagination, he was also wrong to conclude that slaves lacked
those qualities. Scholars have unearthed an incredibly rich world of
slave culture that was, by situational necessity, largely kept hidden
from slaveholders. Seminal studies of the elaborate and extensive
cultures built by slaves include, among many others, Genovese, supra
note 666, and Lawrence W. Levine, Black Culture and Black Consciousness:
Afro-American Folk Thought From Slavery to Freedom (1977).

[[\[FN668\]](#Document1zzFN_B668)]{.underline}. This ability to see
\"superior\" qualities in an \"inferior\" group helps reveal how the
tendency to dispositionalize is often motivated largely by a desire to
justify existing power relationships. See infra notes 685-86. By
attributing superior physical strength and athleticism to slaves,
Jefferson further naturalized the division of labor. Some argue, quite
compellingly, that the same sorts of attributions are made today, to the
same effect. See, e.g., John Hoberman, Darwin\'s Athletes: How Sport Has
Damaged Black America and Preserved the Myth of Race 31-51 (1996)
(arguing that the general success and superstardom of blacks on the
athletic field have helped to justify their exclusion and inferior
status elsewhere while giving the reassuring appearance of integration).

[[\[FN669\]](#Document1zzFN_B669)]{.underline}. Jefferson, supra note
658, at 267 (emphasis added). Jefferson\'s suggestion, here, that the
inferiority of blacks is genetic, remains only an implicit suggestion.
Explicit \"proof\" for that proposition would await further scientific
study by others. See Haller supra note 660, at 3-39 (describing the
schools of thought and methodologies that developed in the nineteenth
century to classify races).

[[\[FN670\]](#Document1zzFN_B670)]{.underline}. Jefferson, supra note
658, at 267-68.

[[\[FN671\]](#Document1zzFN_B671)]{.underline}. Id. at 268 (emphasis
added). Jefferson again, ignored the situation. In Ancient Rome, some
slaves were given tasks requiring literacy, such as accounting and
education. See Orlando Patterson, Slavery and Social Death: A
Comparative Study 180 (1982) (noting that in Ancient Rome \"skilled and
literate slaves came to dominate not only urban industries, but
education, the arts, theater, and literature\"); Thomas Wiedemann, Greek
and Roman Slavery 8 (1981) (noting that Roman slaves were \"entrusted
with supervisory functions such as responsibility for the city accounts
or weights and measures\"). By contrast, in many states in the American
South, especially after the Nat Turner rebellion, it was a crime to
teach a slave to read or write. See Janet Duitsman Cornelius, \"When I
Can Read My Title Clear\": Literacy, Slavery and Religion in the
Antebellum South 32-33 (1991) (describing laws in Georgia, Louisiana,
North Carolina, Virginia, Alabama, and South Carolina prohibiting the
education of slaves).

[[\[FN672\]](#Document1zzFN_B672)]{.underline}. The Declaration of
Independence para. 2 (U.S. 1776).

[[\[FN673\]](#Document1zzFN_B673)]{.underline}. Likely, that is, because
acceptance of slavery was the dominant view, as we have noted, and will
discuss below. What one thought about slavery may have depended,
importantly, not on who one was, but rather where one stood.

[[\[FN674\]](#Document1zzFN_B674)]{.underline}. For many, however, it is
not just revealed by nature, but by God as well. For example, the
religious justification for slavery was also extremely popular and
powerful. See generally Fredrickson, supra note 639, at 15-49
(describing the influence of religion on the advent of racism). The
typical religious justification generally began with the claim that God
recognized and sanctioned slavery in the Old Testament. Abraham, the
benevolent and powerful patriarch, held slaves himself and was therefore
considered the ideal for many slaveholders. See Eugene D. Genovese, The
Slaveholders\' Dilemma: Freedom and Progress in Southern Conservative
Thought, 1820-1860, at 38 (1992) (\"Abraham loomed as the principal Old
Testament figure among the slaveholders.\"). The next step in the
religious argument was the assertion that God wanted Africans to become
slaves. See William John Grayson, The Hireling and Slave 36-39 (1854)
(\"Hence has the negro come, by God\'s command / For wiser teaching, to
a foreign land\....\"). Indeed, even conceding that slavery was a harsh
means, proponents would argue that it was for good ends and part of a
larger divine plan. See id. at 36-37 (\"And though the way be rough, the
agent stern, / No other mode, can human wits discern, / No better
scheme, may wealth or virtue find, / To tame and to instruct the negro
mind\....\" (footnote omitted)); id. at 38 (\"So here, though hid the
end from mortal view, / Heaven\'s gracious purpose brings the negro too;
/ He comes by God\'s decree, not chance nor fate, / Not force, nor
fraud, nor grasping schemes of State\....\"). God worked in mysterious
ways, and mere men were not to question the motives of the Almighty. As
in Galileo\'s time, it was very difficult to question the teachings of
various churches. See Peter Kolchin, American Slavery: 1619-1877, at
185, 186 (1993) (describing the South as the \"home of religious and
social orthodoxy\"). Not surprisingly, the notion that God chose
Africans to be slaves found its way into the legal system as well. See
Higginbotham, supra note 639, at 14 (describing how notions of the
appropriateness of slavery worked their way into court opinions).

[[\[FN675\]](#Document1zzFN_B675)]{.underline}. See supra notes 648-51,
and accompanying text (quoting Chief Justice Taney\'s opinion).

[[\[FN676\]](#Document1zzFN_B676)]{.underline}. J. C. Nott & George R.
Gliddon, Types of Mankind 53, 79 (1854). For an interesting biographical
account of Josiah Nott\'s life as a humanitarian scientist devoted to
understanding and treating yellow fever, on one hand, and as a racial
scientist devoted to advancing racial prejudice and white supremacy on
the other, see Reginald Horsman, Josiah Nott of Mobile: Southerner,
Physician and Racial Theorist (1987).

It is worth pausing to emphasize our belief that the very concept of
\"race\" is itself based mostly on a fundamental attribution error
motivated by this larger motive to justify inequalities. When groups of
people appear to be doing better or worse than other groups, those
experiencing and observing the difference often have a strong desire to
attribute causation for it to a legitimating source. See infra notes
685-86 and accompanying text. Salient group characteristics, if they
exist, are often seized upon to carry that weight. Racial differences,
from skin color to hair texture, fit the bill nicely. As so often
happens, though, the most salient features do not necessarily have much
causal significance. And, as many geneticists, biologists, historians,
and anthropologists have argued, that appears to be the case with many
of the \"racial\" differences that we observe. See, e.g., Joseph L.
Graves, The Emperor\'s New Clothes: Biological Theories of Race at the
Millennium (2003) (reviewing the biological theories of \"race\" and the
evidence that \"race\" has very little to no biological origins beyond
those few that are sometimes evident on the surface); Audrey Smedley,
Race in North America: Origin and Evolution of a Worldview 22 (1993)
(\"\[Race\] was the cultural invention of arbitrary meanings applied to
what appeared to be natural divisions within the human species. The
meanings had social value but no intrinsic relationship to the
biological diversity itself.\"). For an interesting and readable on-line
article on this topic, see Jonathan Marks, Scientific and Folk Ideas
About Heredity, at http://
personal.uncc.edu/jmarks/interests/Baltimore.html (last visited Oct. 26,
2003) (describing the naturalizing but false racial categories that most
of us have internalized and some of the effects of those categories).
Again, there is a strong tendency to miss the larger context and be
fooled by the vivid particulars that stand out. When Jefferson began his
defense of slavery with the phrase \"the first difference which strikes
us is that of colour,\" he was evincing what we would call the
fundamental racial attribution error.

[[\[FN677\]](#Document1zzFN_B677)]{.underline}. George Fitzhugh,
Sociology for the South, or the Failure of Free Society 83 (Burt
Franklin 1965) (1854).

[[\[FN678\]](#Document1zzFN_B678)]{.underline}. This concept is vividly
portrayed in verse:

And yet the life, so unassailed by care,

So blest with moderate work, with ample fare,

With all the good the pauper Hireling needs,

The happier Slave on each plantation leads;

Safe from harassing doubts and annual fears,

He dreads no famine, in unfruitful years;

If harvests fail from inauspicious skies,

The Master\'s providence his food supplies;

\....

No paupers perish here for want of bread,

Or lingering live, by foreign bounty fed;

No exiled trains of homeless peasants go,

In distant climes, to tell their tales of woe;

Far other fortune, free from care and strife,

For work, or bread, attends the Negro\'s life,

And Christian Slaves may challenge as their own,

The blessings claimed in fabled states alone \--

The cabin home, not comfortless, though rude,

Light daily labour, and abundant food,

The sturdy health, that temperate habits yield,

The cheerful song, that rings in every field,

The long, loud laugh, that freemen seldom share,

Heaven\'s boon to bosoms unapproached by care,

And boisterous jest and humour unrefined,

That leave, though rough, no painful sting behind;

While, nestling near, to bless their humble lot,

Warm social joys surround the Negro\'s cot,

The evening dance its merriment imparts,

Love, with his rapture, fills their youthful hearts,

And placid age, the task of labour done,

Enjoys the summer shade, the winter\'s sun,

And, as through life no pauper want he knows,

Laments no poorhouse penance at its close.

Grayson, supra note 674, at 52-54.

[[\[FN679\]](#Document1zzFN_B679)]{.underline}. George Fitzhugh,
Cannibals All! or, Slaves Without Masters 29 (Richmond, A. Morris 1857);
see also Don E. Fehrenbacher, supra note 652, at 428 (noting that Chief
Justice Taney described the lives of slaves as \"usually cheerful and
contented\" (quoting Samuel Tyler, Memoir of Roger Brooke Taney, L.L.D.
660-64 (2d ed. 1876))).

[[\[FN680\]](#Document1zzFN_B680)]{.underline}. Carl T. Rowan, Dream
Makers, Dream Breakers: The World of Justice Thurgood Marshall 10 (1993)
(quoting Senator James Henry Hammond).

[[\[FN681\]](#Document1zzFN_B681)]{.underline}. We can now see what
might be called a \"Pareto inefficiency bogeyman\" to justify slavery.
It was widely held that the lives of blacks wouldn\'t improve much after
slavery, and that the lives of whites would get considerably worse.
Proponents would argue, why rock the boat when it would make some people
worse off without making others better? For instance, Alexis de
Tocqueville surmised that:

If \[a slave\] becomes free, he often feels independence as a heavier
burden than slavery itself, for his life has taught him to submit to
everything, except to the dictates of reason; and when reason becomes
his only guide, he cannot hear its voice. A thousand new wants assail
him, and he lacks the knowledge and the energy needed to resist them.
Desires are masters against whom one must fight, and he has learned
nothing but to submit and obey. So he has reached this climax of
affliction in which slavery brutalizes him and freedom leads him to
destruction.

Alexis de Tocqueville, Democracy in America 318 (J.P. Mayer ed., George
Lawrence trans., 1969) (1850). George Fitzhugh made a similar point:

Would the abolitionists approve of a system of society that set white
children free, and remitted them at the age of fourteen, males and
females, to all the rights, both as to person and property, which belong
to adults? Would it be criminal or praiseworthy to do so? Criminal, of
course. Now, are the average of negroes equal in information, in native
intelligence, in prudence or providence to well-informed white children
of fourteen? We who have lived with them for forty years, think not. The
competition of the world would be too much for the children. They would
be cheated out of their property and debased in their morals. Yet they
would meet every where with sympathizing friends of their own color,
ready to aid, advise and assist them. The negro would be exposed to the
same competition and greater temptations, with no greater ability to
contend with them, with these additional difficulties. He would be
welcome nowhere; meet with thousands of enemies and no friends. If he
went North, the white laborers would kick him and cuff him, and drive
him out of employment. If he went to Africa, the savages would cook him
and eat him. If he went to the West Indies, they would not let him in,
or if they did, they would soon make of him a savage and idolater.

Fitzhugh, supra note 677, at 88.

[[\[FN682\]](#Document1zzFN_B682)]{.underline}. James M. McPherson,
Battle Cry of Freedom: The Civil War Era 8 (1988). This fear expressed
is evident within the Dred Scott decision:

For if \[slaves\] were\...entitled to the privileges and immunities of
citizens, it would exempt them from the operation of the special laws
and from the police regulations which they considered to be necessary
for their own safety. It would give to persons of the negro race, who
were recognised as citizens in any one State of the Union, the right to
enter every other State whenever they pleased\...and it would give them
the full liberty of speech in public and in private upon all subjects
upon which its own citizens might speak; to hold public meetings upon
political affairs, and to keep and carry arms wherever they went. And
all of this would be done in the face of the subject race of the same
color, both free and slaves, and inevitably producing discontent and
insubordination among them, and endangering the peace and safety of the
State.

[[Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 416-17
(1857)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1856193196&ReferencePosition=416)]{.underline};
see also [[Bryan v. Walton, 14 Ga. 185, 202, 206
(1853)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=359&FindType=Y&ReferencePositionType=S&SerialNum=1853001417&ReferencePosition=202)]{.underline}
(\"\[The freed slave\] resides among us, and yet is a stranger\....
Generally, society suffers, and the negro suffers by manumission\....
\[Freedom\] to the colored man\... is worse than slavery itself.\");
Fehrenbacher, supra note 652, at 428 (commenting on Taney\'s view that
\"sudden emancipation \[of African-American slaves\] would mean
\'absolute ruin.\"\'). Many social historians have studied the part
played by the putative advantage of racial superiority in
non-slaveholders\' support for the social system of slavery, and the
racial apartheid that would follow in the Jim Crow period. See David R.
Roediger, The Wages of Whiteness: Race and the Making of the American
Working Class 3-13 (Rev. ed. 1999) (summarizing predecessor scholarship
and arguing that notions of racial superiority allowed the white working
class to distinguish and bolster itself vis-à-vis blacks, thus
encouraging poor whites\' complicity in the social system and inhibiting
the development of social movements based on shared interests among poor
whites and poor blacks).

[[\[FN683\]](#Document1zzFN_B683)]{.underline}. Jefferson, supra note
658, at 264. Abraham Lincoln also feared a version of this bogeyman and,
therefore, at one point early in the Civil War, suggested that blacks be
kept separate from whites after emancipation. See Higginbotham, supra
note 639, at 67 (noting that Lincoln even considered repatriation of
African Americans).

[[\[FN684\]](#Document1zzFN_B684)]{.underline}. Genovese, supra note
674, at 5.

[[\[FN685\]](#Document1zzFN_B685)]{.underline}. See, e.g., Chen &
Hanson, Illusion of Law I, supra note 84; Hanson & Yosifon, supra note
30.

[[\[FN686\]](#Document1zzFN_B686)]{.underline}. A useful sample of that
work containing support for the propositions in this paragraph and much
more would include the following articles: John T. Jost & D. Burgess,
Attitudinal Ambivalence and the Conflict Between Group and System
Justification Motives in Low Status Groups, 26 Personality & Soc.
Psychol. Bull. 293 (2000); John T. Jost et al., Non-Conscious Forms of
System Justification: Implicit and Behavioral Preferences for Higher
Status Groups, supra note 215; John T. Jost, Outgroup Favoritism and the
Theory of System Justification, supra note 191, at 89; John T. Jost &
Orsolya Hunyady, The Psychology of System Justification and the
Palliative Function of Ideology, 13 Eur. Rev. Soc. Psychol. 111 (2002);
John T. Jost & Mahzarin R. Banaji, The Role of Stereotyping in
System-Justification and the Production of False Consciousness, 33 Brit.
J. Soc. Psychol. 1 (1994).

[[\[FN687\]](#Document1zzFN_B687)]{.underline}. The phrase is Duncan
Kennedy\'s. See Duncan Kennedy, Legal Education as Training for
Hierarchy, in The Politics of Law: A Progressive Critique 40, 41 (David
Kairys ed., 1982) (\"Students act affirmatively within the channels cut
for them, cutting them deeper, giving the whole a patina of consent and
weaving complicity into everyone\'s life story.\").

[[\[FN688\]](#Document1zzFN_B688)]{.underline}. For a sample of some of
the laws prohibiting or discouraging the promotion of any ideas that
might encourage questioning or criticism of slavery, see Goodell, supra
note 665, at 384-86.

[[\[FN689\]](#Document1zzFN_B689)]{.underline}. See generally Lee Ross &
Andrew Ward, Naive Realism in Everyday Life: Implications for Social
Conflict and Misunderstanding, in Values and Knowledge 103, passim
(Edward S. Reed et al. eds., 1996).

[[\[FN690\]](#Document1zzFN_B690)]{.underline}. See, e.g., Dale T.
Miller & Rebecca K. Ratner, The Disparity Between the Actual and Assumed
Power of Self-Interest, 74 J. Personality & Soc. Psychol. 53, 60 (1998)
(noting that test-subjects commonly overestimate the impact of
self-interest); Dale T. Miller & Rebecca K. Ratner, The Power of the
Myth of Self-Interest, in Current Societal Concerns About Justice 25, 30
(Leo Montada & Melvin J. Lerner eds., 1996) (same); Emily Pronin, Daniel
Y. Lin & Lee Ross, The Bias Blind Spot: Perceptions of Bias in Self
Versus Others, 28 Personality & Soc. Psychol. Bull. 369 (2002)
(demonstrating our tendency to see other people as biased while assuming
that we are unbiased).

[[\[FN691\]](#Document1zzFN_B691)]{.underline}. McPherson, supra note
682, at 56 (quoting Cong. Globe, 25th Cong., 2d Sess., app. 61-62 (1838)
(remarks of Senator Calhoun)).

[[\[FN692\]](#Document1zzFN_B692)]{.underline}. Lawrence R. Tenzer, The
Forgotten Cause of the Civil War: A New Look at the Slavery Issue 126
(1997) (quoting a South Carolina newspaper),

[[\[FN693\]](#Document1zzFN_B693)]{.underline}. Muscogee Herald
(Georgia), reprinted in N.Y. Trib., Sept. 10, 1856.

[[\[FN694\]](#Document1zzFN_B694)]{.underline}. Today, one of the most
well-known parts of Galileo\'s story is the legend that, as he was
leaving his confession, after he had claimed that the Earth did not
move, Galileo said under his breath, \"and yet it moves.\" It\'s just a
legend; there is, as far as we have been able to discover, no real
evidence that Galileo said it. But, hundreds of years later, we like to
believe he did. It comforts us by illustrating how Galileo\'s capture
and ultimate vindication are so very obvious in retrospect. \"Those
people\" should have known better, and our hero, Galileo, did. What
should be unsettling is that, in Galileo\'s time, this part of the story
was invisible. No one knew, or probably would have even believed, that
Galileo said such a thing. Those living through deep capture are rarely
able to see enough of the situation to realize it.

[[\[FN695\]](#Document1zzFN_B695)]{.underline}. William W. Freehling,
Prelude to Civil War 299 (1966) (quoting Senator James Henry Hammond,
Oct. 29, 1858).

[[\[FN696\]](#Document1zzFN_B696)]{.underline}. Id.

[[\[FN697\]](#Document1zzFN_B697)]{.underline}. Cong. Globe, 25th Cong.,
2d Sess., App. 61-62 (1838) (remarks of Senator Calhoun).

[[\[FN698\]](#Document1zzFN_B698)]{.underline}. See supra text
accompanying notes 219-25, 682-86 (discussing the concepts of the
totalitarian and anti-slavery bogeymen); see also supra notes 312-13 and
accompanying text (discussing the Catholic Church\'s fear of heresy).

[[\[FN699\]](#Document1zzFN_B699)]{.underline}. See Barbara Ehrenreich,
Nickel and Dimed: On (Not) Getting By in America 118 (2001) (recounting
the response of one of her maid service co-workers to the question of
how she feels about working for people with so much when she has so
little: \"All I can think of is like, wow, I\'d like to have this stuff
someday. It motivates me and I don\'t feel the slightest resentment
because, you know, it\'s my goal to get to where they are.\").

[[\[FN700\]](#Document1zzFN_B700)]{.underline}. Perhaps a parallel
argument may be useful to help make our point. The tobacco industry for
decades successfully clouded the causal connection between smoking and
diseases such as lung cancer by emphasizing two key facts: many smokers
do not die of lung cancer, and many non-smokers do die of lung cancer.
See Richard Kluger, Ashes to Ashes 203, 209-11 (1996) (discussing the
debate over the link between smoking and lung cancer in the 1950s). By
focusing on those individuals, cigarette companies succeeded in
distracting us from the fuller situation\--which was that the trends in
lung cancer closely tracked smoking habits, the incidence of lung cancer
among smokers vastly exceeded that of non-smokers, and the amount that a
person smoked correlated with her probability of contracting lung
cancer. Id. at 193-97.

[[\[FN701\]](#Document1zzFN_B701)]{.underline}. For example, at Harvard
Law School, new students are encouraged to believe that by working hard,
they can substantially increase their chances of getting A\'s in their
first-year courses. They are encouraged to attend exam-preparation
sessions and to heed feedback on mid-semester assignments. What students
and faculty often seem to forget, however, is that those efforts will do
little to influence the grade distribution, which is largely determined
by a curve. What they may influence, however, is the sense of
dispositional control and responsibility that students may feel for
their grades. A common complaint among second- and third-year students
is that grading is, in fact, not well correlated with how much energy
they put into their courses\--a belief that may help explain why so many
seem to reduce their efforts.

[[\[FN702\]](#Document1zzFN_B702)]{.underline}. See supra text
accompanying notes 87-99 (describing Milgram\'s experiments).

[[\[FN703\]](#Document1zzFN_B703)]{.underline}. Karl Marx, Critique of
the Gotha Programme, in Justice 162 (Alan Ryan ed., 1993).

[[\[FN704\]](#Document1zzFN_B704)]{.underline}. Supra text accompanying
notes 263-82. Similarly, market-oriented critics of the welfare system
motivate their criticisms largely by arguing that the welfare system has
failed to achieve its ends.

[[\[FN705\]](#Document1zzFN_B705)]{.underline}. Another version of the
argument to which we are responding is that even if situational
influences are significant, it is better to pretend that they are not,
because otherwise doing so would remove any self-help incentive from
those who are situationally disadvantaged. This version of the personal
responsibility argument has several problems. First, it assumes that
nothing can be done about leveling the playing field. Clearly, if the
playing field could be leveled, there would be no need to pretend or to
create the added incentive. Second, it is an argument that seems in
direct tension with the pro-freedom assumptions that most of the people
who offer it, claim to embrace. In the name of individualism, they are
basically calling on us to embrace paternalism: \"let\'s not tell anyone
what we admit to be true, for their own benefit.\"

[[\[FN706\]](#Document1zzFN_B706)]{.underline}. Supra text accompanying
notes 554-614.

[[\[FN707\]](#Document1zzFN_B707)]{.underline}. Supra note 602.

[[\[FN708\]](#Document1zzFN_B708)]{.underline}. Id.

[[\[FN709\]](#Document1zzFN_B709)]{.underline}. See Andrea Gerlin, A
Matter of Degree: How a Jury Decided that a Coffee Spill is Worth \$2.9
Million, Wall St. J., Sept. 1, 1994, at A1 (recounting the events
leading up to the lawsuit and the trial).

[[\[FN710\]](#Document1zzFN_B710)]{.underline}. Id.

[[\[FN711\]](#Document1zzFN_B711)]{.underline}. See, e.g., This is True,
Inc., The TRUE Stella Awards, at http:// www.stellaawards.com (last
updated Apr. 2003) (showcasing abuses of the tort system in America and
naming an award for such abuse after Stella Liebeck).

[[\[FN712\]](#Document1zzFN_B712)]{.underline}. Gerlin, supra note 709,
at A1.

[[\[FN713\]](#Document1zzFN_B713)]{.underline}. Aric Press et al., Are
Lawyers Burning America?, Newsweek, Mar. 20, 1995, at 32, 34.

[[\[FN714\]](#Document1zzFN_B714)]{.underline}. See Gerlin, supra note
709, at A1, A4 (summarizing jurors\' views). Contrary to popular
perceptions, seventy-nine-year-old Liebeck was not driving, nor was the
car in motion, when the accident occurred. Her \"absurd\" conduct was
simply to place the coffee cup between her legs as she tried to remove
the plastic lid. Carl T. Bogus, Why Lawsuits are Good for America 19
(2001). Furthermore, McDonald\'s served its coffee at between 180 and
190 degrees Fahrenheit, whereas the average household cup of coffee is
between 130 and 140 degrees Fahrenheit. Id. A doctor testified that
lower temperatures would have slowed the rate of burning. Gerlin, supra
note 709, at A4. Although McDonald\'s had received 700 complaints of
coffee burns in the preceding decade, it did not sufficiently warn
consumers of the possibility of burns or intend to reduce its coffee
temperature. Press et al., supra note 713, at 35; see also John F.
Bramfeld, Spilled Coffee and a Shot in the Foot, Chi. Daily L. Bull.,
May 18, 1995, at 6 (suggesting that keeping temperatures high despite
complaints was a justified, deliberate, profit-maximizing business
decision).

Before ever filing a suit, Ms. Liebeck reported her injuries to
McDonald\'s and requested compensation for her medical expenses (she
spent eight days in the hospital and underwent a series of skin grafts,
leaving her with permanent scars over sixteen percent of her body).
Bogus, supra, at 19-20; Press et al., supra, at 34. Rebuffing Liebeck\'s
request for \$2,000, McDonald\'s offered \$800 to close the matter. Id.
At trial, Ms. Liebeck only sought damages based on the difference in
injury between spilling 140-degree coffee and spilling 180-degree
coffee. Bogus, supra, at 20. Furthermore, despite media coverage
suggesting a \"rogue verdict,\" the jury did not ignore Liebeck\'s role
in the accident or absolve her of responsibility. They found her to be
twenty percent comparatively negligent and reduced the compensatory
damages for medical costs and disability to \$160,000 from \$200,000.
Id. Moreover, the punitive damages were not quite as arbitrary as
commonly depicted\--the \$2.7 million reflected two days of coffee sales
revenues for McDonald\'s. Gerlin, supra note 709, at A4. The judge later
reduced the punitive damages to \$480,000. Bogus, supra, at 20. Finally,
to avoid an appeal, Liebeck settled the case for an undisclosed amount.
Id.

[[\[FN715\]](#Document1zzFN_B715)]{.underline}. For similar arguments
about other products, see Hanson & Kysar, Taking Behavioralism Seriously
II, supra note 251, at 1467-1553 (providing evidence of how the tobacco
industry manipulated\--and thus shared responsibility for\--consumer
smoking habits); Hanson & Logue, supra note 402, at 1350-52 (challenging
the conventional \"personal responsibility\" argument against cigarette
liability); Hanson, Yosifon & Benforado, supra note 615 (describing the
situational manipulations by the food industry that have contributed to
the obesity epidemic).

[[\[FN716\]](#Document1zzFN_B716)]{.underline}. See, e.g., supra text
accompanying notes 388-92 (describing the ALI Reporters\' rejection of
hard-paternalism in favor of consumer sovereignty).

[[\[FN717\]](#Document1zzFN_B717)]{.underline}. John Stuart Mill, On
Liberty 68 (G. Himmelfarb ed. 1982) (1859).

[[\[FN718\]](#Document1zzFN_B718)]{.underline}. David L. Shapiro,
[[Courts, Legislatures, and Paternalism, 74 Va. L. Rev. 519, 520
(1988)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0102017741&ReferencePosition=520)]{.underline}.

[[\[FN719\]](#Document1zzFN_B719)]{.underline}. Shapiro was primarily
responding to the argument found in Duncan Kennedy, Distributive and
Paternalist Motives in Contract and Tort Law, with Special Reference to
Compulsory Terms and Unequal Bargaining Power, 41 Md. L. Rev. 563,
624-49 (1982). This was also the view taken by H.L.A. Hart. See H.L.A.
Hart, Law, Liberty and Morality 30-34 (1963) (advocating the separation
of law from morality in certain areas of personal conduct).

[[\[FN720\]](#Document1zzFN_B720)]{.underline}. Shapiro, for example,
notes that courts have consistently rested their upholding of \"seat
belt\" or \"helmet laws\" on public policy grounds such as efficiency,
and even, with respect to the upholding of laws against sodomy, on the
ground of supporting public morals or public will. Shapiro, supra note
718, at 541-42. Neither type of law has been justified on the ground
that it forces people into behavior that is good for them despite their
thinking to the contrary. Shapiro himself claims that \"one reason\" he
voted in favor of Massachusetts\' seat-belt law was that it would lower
insurance rates. Id. at 530 n.37.

[[\[FN721\]](#Document1zzFN_B721)]{.underline}. Shapiro, supra note 718,
at 572. While ultimately coming down as a strong anti-paternalist, see
id. at 572-75, part of Shapiro\'s purpose was to present an analysis
from the perspective of \"legal process,\" an approach to thinking about
the law that Shapiro argued had suffered unwarranted neglect by the
critical legal scholars who he saw as emergent in 1988 when he wrote his
article. Id. at 521.

[[\[FN722\]](#Document1zzFN_B722)]{.underline}. See supra text
accompanying notes 551-70; see also Hanson & Yosifon, Missing the
Situation, (unpublished manuscript, on file with authors) (describing
this pattern in legal economists\' writings).

[[\[FN723\]](#Document1zzFN_B723)]{.underline}. See, e.g., Paul Burrows,
[[Analyzing Legal Paternalism, 15 Int\'l Rev. L. & Econ. 489, 497
(1995)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=100297&FindType=Y&ReferencePositionType=S&SerialNum=0105972727&ReferencePosition=497)]{.underline}
(advocating an expanded emphasis on people\'s preferences and choice of
behavior); Colin Camerer et al., Regulation for Conservatives:
Behavioral Economics and the Case for Assymmetric Paternalism
(forthcoming) (on file with authors); Cass R. Sunstein & Richard H.
Thaler, Libertarian Paternalism and the Law (forthcoming) (on file with
authors) (contributing a new perspective to welfare economics); Eyal
Zamier, The [[Efficiency of Paternalism, 84 Va. L. Rev. 229, 230
(1998)](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1359&FindType=Y&ReferencePositionType=S&SerialNum=0108798397&ReferencePosition=230)]{.underline}
(arguing that paternalism is \"compatible with theoretical foundations
of normative economics\" and that \"efficiency analysis provides a
central justification\" for it).

[[\[FN724\]](#Document1zzFN_B724)]{.underline}. Shapiro, supra note 718,
at 523.

[[\[FN725\]](#Document1zzFN_B725)]{.underline}. Id. at 522-25.

[[\[FN726\]](#Document1zzFN_B726)]{.underline}. Homer, The Odyssey
146-47 (Walter Shewring trans., Oxford Univ. Press 1980) (n.d.).

[[\[FN727\]](#Document1zzFN_B727)]{.underline}. Id.

[[\[FN728\]](#Document1zzFN_B728)]{.underline}. Shapiro, supra note 718,
at 529.

[[\[FN729\]](#Document1zzFN_B729)]{.underline}. Id. Readers will no
doubt be reminded that the same salient inquisitorial power was actually
present in the Galileo story. See supra text accompanying notes 297-301.

[[\[FN730\]](#Document1zzFN_B730)]{.underline}. Shapiro, supra note 718,
at 545.

[[\[FN731\]](#Document1zzFN_B731)]{.underline}. Id. The metaphor of
navigational charting may not be coincidence. It implies the kind of
choice-contemplating, choice-making dispositional figure that sets the
\"baselines\" of his view of paternalism and who, like Odysseus, straps
himself to the mast when anticipated temptations loom.

[[\[FN732\]](#Document1zzFN_B732)]{.underline}. Id. at 546.

[[\[FN733\]](#Document1zzFN_B733)]{.underline}. Id.

[[\[FN734\]](#Document1zzFN_B734)]{.underline}. Id. at 545.

[[\[FN735\]](#Document1zzFN_B735)]{.underline}. John Steinbeck, The
Grapes of Wrath 42-43 (Viking Critical Library ed. 1972) (1939).

[[\[FN736\]](#Document1zzFN_B736)]{.underline}. Broadly speaking,
virtually any human motive, we suspect, might be tapped into in order to
generate a bogeyperson. For instance, the human motive for closure, see
Hanson & Yosifon, supra note 30, is often activated by those who seem
unwilling to take \"the situation\" seriously unless its precise
implications for policy and legal doctrine are made explicit. Similarly,
the motive for control, see id., is often tapped into by those who
assert that situational causation is far more difficult to influence in
predictable ways. (As an aside, we suspect that the combined motives for
closure and control may help explain the fundamental attribution error.)

[[\[FN737\]](#Document1zzFN_B737)]{.underline}. Thomas Blass,
Understanding Behavior in the Milgram Obedience Experiment: The Role of
Personality, Situations, and Their Interactions, 60 J. Personality &
Soc. Psychol. 398, 398 (1991) (citations omitted).

[[\[FN738\]](#Document1zzFN_B738)]{.underline}. Robert Helmreich et al.,
The Study of Small Groups, 24 Ann. Rev. Psychol. 337, 343 (1973).

[[\[FN739\]](#Document1zzFN_B739)]{.underline}. Thomas Blass, The Man
Who Shocked the World, Psychol. Today, Mar.- Apr. 2002, at 72, available
at http:// www.psychologytoday.com/htdocs/prod/proarticle/pto-200203.

[[\[FN740\]](#Document1zzFN_B740)]{.underline}. Id. In 1967, Milgram was
given full professor status as head of the social psychology program at
the Graduate Center of the City University of New York.

[[\[FN741\]](#Document1zzFN_B741)]{.underline}. See, e.g., Ira Berlin,
Generations of Captivity: A History of African-American Slaves 5 (2003)
(depicting the cultural habits and beliefs which transformed the
experience of slaves into a culture which joined them together as a
class); Friedman, supra note 36, at 224-27 (discussing the family life
and rights of slaves); Genovese, supra note 666, passim (illuminating
the \"world the slaves made\"); Walter Johnson, Soul by Soul, Life
Inside the Antebellum Slave Market 63-77 (1999) (commenting on the
development of a slave community and the launching of slave revolts).

[[\[FN742\]](#Document1zzFN_B742)]{.underline}. This, of course, is not
to say that we are all slaves, or that the situational constraints on
slaves were not more dramatic and severe than those that surround us
today. It is, however, to suggest that just as the \"personal
responsibility\" trope loses much of its force when situational
constraints are salient, we should be suspicious of its use where
situational influences are less visible.

[[\[FN743\]](#Document1zzFN_B743)]{.underline}.
http://www.stanleymilgram.com/quotes.html (attributing quote to Stanley
Milgram).

[[\[FN744\]](#Document1zzFN_B744)]{.underline}. Frederick Douglass,
Appeal to Congress for Impartial Suffrage (Jan. 1867), available at
http://www.law.ou.edu/hist/suff.html.

[[\[FN745\]](#Document1zzFN_B745)]{.underline}. Steinbeck, supra note
735, 42-43.

[[\[FN746\]](#Document1zzFN_B746)]{.underline}. Italo Calvino, Invisible
Cities 165 (William Weaver trans., Harcourt & Brace Jovanovich 1974).

[[\[FN747\]](#Document1zzFN_B747)]{.underline}. Higginbotham, supra note
639, at 50-51, 201-02.

[[\[FN748\]](#Document1zzFN_B748)]{.underline}. See Goodell, supra note
665, at 338.

[[\[FN749\]](#Document1zzFN_B749)]{.underline}. See McPherson, supra
note 682, at 56 (\"\'Indeed\', said Senator Robert M. T. Hunter of
Virginia, \'there is not a respectable system of civilization known to
history whose foundations were not laid in the institution of domestic
slavery.\' \'Instead of an evil,\' said John C. Calhoun in summing up
the southern position, slavery was \'a positive good \... the most safe
and stable basis for free institutions in the world.\"\').

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