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Ideology, Psychology, and Law$

Jon Hanson

Print publication date: 2012

Print ISBN-13: 9780199737512

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199737512.001.0001

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Backlash: The Reaction to Mind Sciences in Legal Academia

Backlash: The Reaction to Mind Sciences in Legal Academia

Chapter:
(p.501) Chapter 14 Backlash: The Reaction to Mind Sciences in Legal Academia
Source:
Ideology, Psychology, and Law
Author(s):

Adam Benforado

Jon Hanson

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199737512.003.0020

Abstract and Keywords

This chapter demonstrates that naive cynicism is a pervasive dynamic that shapes policy debates big and small. It argues that naïve cynicism can operate at a particular moment or over long periods of time, and that naïve cynicism is embraced and encouraged by both elite knowledge-producers and the average person on the street. Examining the reactions of prominent academics to situationist scholarship, the chapter offers evidence that naive cynicism has played a significant role in retarding the growth and influence of insights drawn from social psychology and related fields within the dominant legal theoretical frameworks of the last half-century. Despite providing a more accurate depiction of the behavior of legal actors, this research from the mind sciences has been dismissed for decades in favor of commonsense dispositionist notions of causation, responsibility, and blame.

Keywords:   backlash, dispositionism, ideology, law, law and mind sciences, legal theory, naïve cynicism, naïve realism, situationism, IAT, racism

Most men … think themselves in possession of all truth, and that wherever others differ from them it is so far error.

—Franklin, Benjamin. (1787, September). On The Constitution. Delivered by James Wilson at the Constitutional Convention, Philadelphia, PA.

Economists are popular.* Well, perhaps not at dinner parties, but there is no disputing that within universities, think tanks, and government agencies, their ideas dominate the scene. In legal academia, for example, no other approach has been as influential as law and economics over the last half-century.

Social psychologists, by contrast, have been largely ignored during the same time period. Indeed, despite their central importance to marketing, public relations, fundraising, lobbying, and business organizations, social psychologists have had a surprisingly small voice, and have generally lacked credibility, in elite policy and academic circles. That is true notwithstanding the fact that social psychology, as a field, is fairly stable and operates, more or less, according to the standards and processes of the best social sciences.

What explains the disparate treatment? Where does the reluctance to engage and incorporate social psychological insights come from? A big part of the answer, we believe, is that while economists provide us with an extremely appealing narrative of human behavior that aligns with our intuitions, what social psychologists have to teach us about ourselves is hardly welcome news—except to those entities and enterprises that seek to use that information to their advantage. The economic model is very much the commonsense dispositionist model we outlined in chapter 9 of this volume: humans are autonomous, self-transparent rational actors with stable personalities and preferences who exercise free choice to satisfy their desires. Research from social psychology and other mind sciences casts doubt on this widely held account: the counter-narrative, which aligns with the generally (p.502) more accurate situationist approach, attributes human actions to unseen or overlooked influences within us and around us. That research generally suggests that we are not the people we believe we are. And it implies that our laws—which are largely grounded in dispositionist notions of causation, responsibility, and blame—may be unjust. As such, the situationism of social psychology and related fields is deeply threatening to our sense of ourselves and the foundational premises underlying most of our basic institutions.

As we described in chapter 13 of this volume, to deal with the threat posed by situationism—and to maintain our economist-loving dispositionist outlook—we commonly rely, in part, on naïve cynicism: the basic subconscious mechanism by which we discredit and dismiss situationist insights and their proponents. Rather than address the substance or merits of the conflicting situationist evidence, naïve cynicism involves an attack on the motivations or dispositions of the individuals and institutions associated with the situationist conception. In other words, we relieve the dissonance created by encountering a situationist attribution that conflicts with our own dispositionist story by explaining the opposing attribution as the product of bias, ignorance, or some other flaw. Without this response, the dominant person schema—dispositionism—would be far more vulnerable to challenge and change, and the more accurate person schema—situationism—less easily and effectively attacked.

We looked at how naïve cynicism can be found in the popular reception of situationist explanations of a particular controversy—detainee abuse at Abu Ghraib, Guantánamo Bay, and elsewhere (chapter 13, this volume). We showed how, consistent with our thesis, members of the Bush administration, conservative talk-show pundits, and others employed naïve cynicism to minimize situationist ideas about the causes of abuse and to assail the individuals and groups associated with those accounts.

Our thesis, however, is far broader than that. We predict that naïve cynicism is a pervasive dynamic that shapes policy debates big and small. We argue that it can operate at a particular moment or over long periods of time, and that it is embraced and encouraged by both the average person on the street and elite knowledge-producers.

Having demonstrated the dynamic at work during a flash in the news cycle, we expand our lens in this chapter to focus on how naïve cynicism can operate over many years to shape a broad scholarly discipline. Thus, while our case study from the popular media (chapter 13, this volume) focused on influential pundits and politicos, like Rush Limbaugh and Donald Rumsfeld, this chapter examines the reactions of prominent academics, like Richard Posner and (p.503) Samuel Issacharoff, to situationist scholarship. The gap between pundits and scholars is, at least by our measure, narrower than it might seem.

Social psychologists tend to be situationists in a dispositionist world. And as we argue in this chapter, naïve cynicism has played a significant role in retarding the growth and influence of the more accurate situationist insights from the mind sciences within the dominant legal-theoretical frameworks of the last half-century.1

While the naïve cynical backlash to such ideas is evident in the popular reception of much of the social psychology upon which the critical realist project builds (chapter 9, this volume), our focus in this chapter is on tracing the history of resistance by legal academics. We look particularly at the response of legal economists to situationist insights as they have been slowly dragged away from the hardcore rational actor model toward a boundedly situationist perspective associated with economic behavioralism and, more recently, toward partial situationism (Benforado & Hanson, 2008a; Hanson & Yosifon, 2004).

Specifically, we document the naïve cynicism dynamic in three overlapping historical phases. As we predicted in chapter 13 of this volume, the situationally sensitive insights offered during those moments exhibit exactly the qualities likely to encourage a naïve cynical backlash: (1) they involve settings with salient actors who appear to be making clear choices; (2) they are complex or counterintuitive; (3) they fail to provide clear answers or cognitive closure; (4) they are made by—or otherwise involve—outgroup members; (5) they threaten our conceptions of ourselves or the groups with which we identify; and (6) they threaten the legitimacy of larger systems. Likewise, in each moment, those attacking the situationist attributions, have promoted perceptions that our commonsense intuitions are right and that the issues are simple and clear. And they have asserted that those behind the attributions are deeply biased and pose a significant threat to our freedoms, beliefs, and systems.

I. Three Moments of Naïve Cynicism

During the first phase that we identify, legal economists gaining in influence within the academy were confronted with evidence and criticisms that, although lacking the rigor of later work by mind scientists, demonstrated a situationist impulse and offered a strong challenge to their core assumptions. We focus particularly on the reaction to Guido Calabresi's (1970) situationist attributions in The Costs of Accidents and Howard Latin's (1985) critique of law and economics, which explicitly drew from social psychology.

(p.504) In the second phase, psychologists and economic behavioralists began studying how risky decisions, judgments, or choices were made and discovered a number of heuristics and biases that led to systematic deviations from the rational actor model. Their work, thus, challenged the rational component of the rational actor model. That phase involved a Nobel Prize-winning psychologist and several prominent pathbreaking economists (economic behavioralists) who challenged and, after facing considerable resistance, began to make inroads among conventional neoclassical economists legal scholars.

During the third phase, which is currently in full swing, social scientific evidence is confronting and questioning the actor component of the familiar model. Scholars in the fields of social psychology, social cognition, and other disciplines are discovering that people are moved by forces within them and around them about which they are largely unaware (at least as significant causal forces in their behavior); that work has, in turn, been taken up by a growing number of legal scholars. As occurred during the first two phases, those asserting such situationist insights are encountering strong naïve cynicism. The history of ignoring, trivializing, and criticizing social psychological research within law and economics, we argue, has reflected less the logic of economics and more an unwillingness to take the lessons of social science seriously (Hanson & Yosifon, 2004)—a response that is partially motivated and justified by naïve cynical backlash.

A. Moment I: Early Situationist Advances by Calabresi and Latin

A half-century ago, as the law and economics movement took its first steps, two important paths emerged for scholars to follow: one, embodied by the work of Richard Posner, was solidly dispositionist; the other, offered by Guido Calabresi, led off in a relatively situationist direction, toward a space where social psychological insights might be countenanced (Benforado & Hanson, 2005). Despite adopting a more accurate attributional posture, Calabresi's outlook and approach—the situationist aspects of his scholarship—were not embraced by other legal economists. Indeed, his relatively situationist perspective ultimately hampered his success because of the power of naïve cynicism.

Calabresi's (1970) seminal work, The Costs of Accidents, while powerfully informed by dispositionism, nonetheless offered a strong challenge to dispositionist assumptions, which incited a backlash against its unsettling arguments and conclusions.

Part of the naïve cynical reaction had to do with Calabresi's choice of subject matter. Calabresi wrote about automobile accidents, a topic in which there are salient actors—the injurer and the victim—who appear to have taken clear (p.505) actions. Calabresi, however, eschewed the obvious dispositionist approach embodied in the fault system; instead, he articulated a comparatively complex and counterintuitive mode of analysis focused on institutional and systemic forces. If the goal was to find “the cheapest way of avoiding accident costs,” it might make sense to ignore the obvious dispositional cause of each individual crash (“absentmindedness,” “too much whiskey,” or “drowsiness”) and focus on modifying subtle recurring causes (“a badly designed curve or inadequate tires”) (1970, p. 256). Thus, Calabresi implied that liability should attach, not to the individuals proximate to the accident and conventionally blamed (that is, outgroup members like drunk drivers), but to the less salient individuals and institutions that exercised the most significant control over the situation in which accidents occur. Indeed, under Calabresi's framework, it might make sense to hold “innocent corporations” liable for harms caused by products that people “freely” chose to buy.

Calabresi's scholarship also proved ripe for backlash because it failed to provide the simple, clear policy answers and closure that relatively dispositionist work, like Richard Posner's, presented. As Posner (1970, p. 642) bemoaned, Calabresi's style was “sinuous and elusive” and his discussion “inconclusive”: “While asserting that we could do better [than the fault system], Calabresi propose[d] no alternative system.”

Moreover, Calabresi's situationist attributions stood as a threat to ourselves, our groups, and our larger system. He argued, for instance, that people were not the reasonable and reasoning actors that they believed they were (and wanted to be). Instead of rational actors—in—control of our lives, making choices and realizing our inner desires—Calabresi's work suggested that humans were quite malleable. Indeed, “wants” might come from actions rather than the other way around: as Calabresi (1970, p. 57) pointed out, “People do not save up for doctors' bills, do not provide for their retirement, do not insure adequately, and yet are basically happy if they are forced to do so.” Likewise, even when in possession of complete information, people were “psychologically unable” to adequately evaluate important risks and make accurate judgments (p. 56). Equally disquieting, Calabresi (1985) indicated that our current system of assigning blame in tort law was not accomplishing its purported goals; some individuals were suffering, not because of their bad choices, but because of the poor design of our legal rules.

Complex, counterintuitive, and challenging to our affirming self-conceptions, Calabresi's early work in tort law had all of the elements necessary to spark a powerful backlash—which is exactly what it would eventually do.

Calabresi's situationist ideas, and similar ideas being embraced by a number of prominent jurists and academics working in the accident context, set off (p.506) a strong naïve cynical response, both inside and outside academia. Dispositionists reinforced simple, commonsense conceptions of causation and blame, while attacking Calabresi and other situationists for concocting such counterintuitive and complicated theories that seemed to remove significant responsibility from the salient actors at the scene of the accident. For instance, in his highly influential book on the need for tort reform, Peter Huber (1991, p. 16) pointed out how obviously incorrect it was to focus on systems instead of individual choices in thinking about accidents:

A cardinal though unstated principle of the modern rules is that it is wrong to blame a victim, or indeed anyone who lacks the funds to pay, for to do so means to give up the quest for victim compensation. The impulse here is surely generous. But accommodating it requires systematic evasion of the truth. It means sending women the message that their own hygiene or sexual habits are not all that important a risk factor in uterine infection or infertility; responsibility lies with the remote corporations that make contraceptives and tampons. It means sending workers the message that lung disease is primarily a function not of their own decision to smoke heavily on the job, or the acts of their employer who happens to be shielded by workers' compensation laws; responsibility lies instead with the distant company that originally made the insulation…. It means telling the individuals close to the accident that they are rarely in a position to make the difference in terms of safety; the ones with real control are the faraway institutions. Such beliefs have been indispensable in accomplishing the objectives of the new tort system. They have been repeated so often in the courts, and then in the press, that many now accept them as true. But they are all in fact dangerously false.

Huber's examples are telling not only because they have been framed to make the correctness of the dispositionist attribution appear particularly apparent but also because they characterize the situationalized subjects as outgroup members with flawed dispositions: “loose women” trying to blame corporations for their own promiscuity and uncleanliness and chain smokers at asbestos factories looking to play the tort lottery when they fall ill from their own chosen habit and job. The situationist understandings, according to Huber, do not merely “eva[de] the truth,” they are “dangerously false” (p. 16).

Captains of the backlash, like Peter Huber, offered up a series of explanations for why the Calabresian school had come to such counterintuitive conclusions, all of which pointed to bias. The “new tort Founders,” Huber (1988, p. 17) emphasized, were at best uninformed and “naïve.” More likely, (p.507) however, they were self-interested actors actively creating a system to better assert their own interests. As Huber writes:

For all practical purposes, the omnipresent tort tax we pay today was conceived in the 1950s and set in place in the 1960s and 1970s by a new generation of lawyers and judges. In the space of twenty years they transformed the legal landscape, proclaiming sweeping new rights to sue. Some grew famous and more grew rich selling their services to enforce the rights that they themselves invented. (1988, p. 4)

If not to get rich, their intermeddling was motivated by a misguided, elitist desire to create a perfect world. They were, in other words, just “traditional utopians”—the kind of ivory tower liberals who thought they knew what was best for the rest of us:

Their vision was a shining one, grand enough to stir the mind, thrill the heart, and inspire the young lawyer. Theirs was a promise of society made more just, generous, and compassionate through the ministrations of activist litigators. Where the private buyer and seller lacked the incentive or the knowledge to make wise judgments about safety, the courts would intervene to substitute their own greater insight. Where the individual lacked the prudence, the foresight, or perhaps merely the wherewithal to secure insurance against misadventure, the courts would intervene once again to correct the error. The objectives were grand, the intentions were good, the promises were wonderfully beneficent. Utopian promises always are.

But utopia, at least along the lines traditionally described, is unattainable, and when the utopians succeed politically, they deliver only tyranny in practice. (1988, p. 231)

Thus, it was not just that Calabresi's ideas were “false” that bothered Huber; it was also that they could lead us into manacles. Outsiders were coming after our freedoms, chipping away at our core values and beliefs. Actually taking up Calabresi's situationist suggestions in the context of tort law could mean sacrificing liberties that we take for granted; it could mean engendering a frightening totalitarian state. Such ideas, as Friedrich von Hayek famously argued, paved The Road to Serfdom (1994; see also Chen & Hanson, 2004).

Although Calabresi's groundbreaking work did help to usher in a new legal-theoretical era, most legal economists in the decades following the publication of The Costs of Accidents did not share his conclusions or his relatively situationist approach. Instead, they embraced the more dispositionist mode typified by the other great founding father of the field, Richard Posner (p.508) (Benforado & Hanson, 2005). Thus, as law and economics burgeoned into the most influential legal theory in the second half of the 20th century, few scholars offered much in the way of a situationist challenge to the basic underlying assumptions shared by Posner and his neoclassical brethren.2

Arguably, it was not until 1985 that the first article to offer a situationist critique of the rational actor model of law and economics and to elicit a sizable response from a legal economist was published. In that article, Professor Howard Latin (1985) set out to challenge the dispositionist presumptions of law and economics. In fact, Latin articulated exactly the types of arguments and evidence that we have maintained are likely to encourage a naïve cynical reaction.

To begin with, Latin, like Calabresi, focused on tort law, an area that has salient actors who seem to make clear choices: a ship captain electing to save his ship in a storm by retying it to a dock; one boy deliberately kicking another in the leg; a girl getting hit by a foul ball at a baseball game that she chose to attend despite the obvious risk (Latin, 1985). Latin's analysis suggested that, in a number of cases, liability should be removed from the individuals who were proximate to the injury and who seemed intuitively blameworthy, and placed on individuals and entities that appeared far more distant to the incident at issue. According to Latin, the “problem-solving attributes [that are of central importance in determining which individual or entity should face liability] are especially prevalent in organizational, commercial, and professional settings, which means that the imposition of accident losses on problem solving actors would often lead to an expansion of enterprise liability” (p. 693). Thus, under Latin's proposed framework, a corporation might face liability for failing to install an airbag in a car despite the fact that the particular accident involved a man falling asleep at the wheel and running into a tree. Where common sense would lead us to see nothing more than a man snoring while driving, Latin, like Calabresi, called the reader's attention to the driver's situation, including things well out of the frame—like the design decisions of the automobile manufacturer.

In addition, Latin attacked the simple, obvious, and affirming person schema that “people act efficiently in their own interests[,] … learn all the presently knowable things it pays them to know—always on average—and act with due regard for this knowledge” (Stigler, 1982, p.16). According to Latin, (1985, p. 685) “This Chicago-school conception is inconsistent with the research findings on cognitive limitations…. Human decision-making appears flawed, sometimes disastrous, from any ‘objective’ viewpoint.” Not only does that dispositionist conception resonate with common sense but it was also actively championed by Chicago School economists. Problematizing the rational actor model, which offered clear and comfortable answers to questions like “who is (p.509) to blame?” and “who should pay?” Latin suggested that “[T]he degree of care individuals exercise in any situation depends on several variables, including (1) their knowledge, which is a function of information, interpretive skills, and access to computational facilities; (2) their personality traits and motivation levels; and (3) the competing demands for their time and attention” (p. 682). Embracing contextual complexity in the interests of accuracy, his relatively “situational analysis” acknowledged that:

[T]he social engineering effects of tort liability are dependent on the actual behavior of people in diverse accident contexts, and that risk-avoidance behavior varies greatly in different contexts and among different categories of actors. [Thus, p]recisely because people respond differently to diverse risks, no single liability theory or alternative compensation system can achieve efficient results in all circumstances. (p. 745)

Although the complexity and counterintuitive nature of Latin's article would be expected to increase the potential for a naïve cynical backlash in and of itself, Latin's work also embodied a powerful threat to conceptions of ourselves, our groups, and our systems.

Latin's suggestion that most people “cannot act as independent rational maximizers for most decisions” (p. 682) is unsettling to some and insulting to others. Most of us do not welcome evidence that we “tend to distort information, and hence analytical results, in response to prior expectations, desired outcomes, and socioeconomic affiliations,” (p. 683) or that we “employ highly simplified decisional criteria or ‘rules of thumb’ to reduce decision-making costs, time requirements, and cognitive strain [even though these] … criteria often introduce biases that can distort computational results” (p. 684). Latin asserted further that our flawed risk-analysis extends to decisions of real importance—that, for example, we “often do not consider low-frequency hazards even when catastrophic losses would occur if the risks materialize” (p. 687). His article indicated not only that we may be making poor decisions with serious consequences but also that we have less control over our own lives and destinies than we like to imagine. Much of our behavior, according to Latin, was “‘programmed’ or habitual … [or] imitative in the sense that choices are adopted largely because other people or groups have also selected them” (p. 684). Our position—or our groups' positions—in society might be less a reflection of our rational decision making and more a matter of situational elements beyond our conscious control.

Latin's scholarship also raised the possibility that our systems might have serious imperfections. Indeed, his basic conclusion was that the existing (p.510) system of tort law was not efficient because “[I]n many settings, people lack sufficient information and expertise to assess risks properly; … are inattentive to known risks; … do not understand the applicable liability doctrines; and compelling nonlegal incentives shape their behavior.” (p. 692). If correct, Latin's work meant that we are making people absorb costs based on flawed justifications. Our current regime, it followed, is unfair.

Predictably——given the extent to which they undermined common perceptions regarding our systems and ourselves—Latin's situationist arguments were dismissed through naïve cynicism, perhaps best exemplified in Richard Posner's (1985) harsh response.

Posner gave short shrift to the situationist evidence that Latin brought to the debate. Instead, his focus seemed to be on offering reassurance—to himself and his readers—that the efficiency-oriented dispositionist view of tort law remained unscathed following Latin's critique. More specifically, Posner evaded the challenge to the dominant attributional framework by arguing that (1) the issues involved were obviously dispositional and simple, and, thus, that the dispositionist way—in this case, the law and economics way—of viewing tort law was accurate and sensible; (2) the individuals Latin situationalized were outgroups with flawed dispositions; (3) Latin himself had a problematic disposition inasmuch as he was naïve, ill-informed, and biased; and (4) Latin's scholarship was extreme, impractical, and dangerous.

In constructing his attack, Posner began by seizing on one of Latin's proposals for an accident setting that seems to involve salient, individual actors making choices: auto accidents. Latin, Posner explained, wanted “to make automobile manufacturers strictly liable in tort for personal injuries resulting from automobile accidents—whether or not the automobile [wa]s defective” (p. 747). In other words, Latin wanted to remove liability from the careless driver and place it on a distant (and innocent) entity with no apparent control over the incident. Indeed, “the logic of [Latin's] argument point[ed] to making the automobile manufacturer liable for drunk-driving accidents” (p. 748). The example is particularly powerful because drunk driving involves a stigmatized outgroup that is commonly seen as making an especially egregious choice. The idea that this obviously “guilty” party should get off paying nothing seems unthinkable. As Posner explained, “[T]his is an astounding suggestion” and a threatening one: “Some 50,000 people die every year in auto accidents in the United States” and many others face nonfatal injuries and property damage making the cost of such a plan astronomical (p. 747). Latin's proposal was not only extreme but also a danger to one of America's most important industries: a threat that would inevitably be borne by regular consumers (that is, “us”), given that “[A]utomobile prices probably would skyrocket” (p. 747).

(p.511) In addition to describing Latin's work as extreme, unproductive, and threatening, Posner spent much of his response assailing the article's lack of rigor and credibility. Posner asserted, for instance, that Latin's arguments should not be countenanced because they did not fit into an existing category of, or approach to, legal research. That his analysis was “rootless” and failed to take up “realistic implementation constraints” was particularly worrisome to Posner, given that Latin was proposing “radical legal change” (p. 748).

As an effective naïve cynic, Posner did not spend much time delving into the details of Latin's situationist proposal or the social psychology on which it was based. Instead, he focused on attacking the motivations of the messenger (Latin) and those like him. Posner himself put it this way: “I am interested less in the proposal than in the reason for it, and less in the reason than in what it tells us about a certain type of legal scholarship” (p. 747).

So what would motivate someone like Latin to advance such absurdities? Latin was, in Posner's estimation, “doctrinaire” (p. 753)—out of touch with the real world and inflexibly attached to his flawed idealist notions. Latin was not a social scientist. Rather, he “persuaded himself” through “intuition” that enterprises “ought to be made liable for all, or almost all, accidents in which they are involved”; had Latin not been so disposed, Posner indicated, he might have used “scientific study” to identify and correct his own errors (pp. 747–48). Posner further admonished readers not to be seduced by Latin's dangerous notions: Latin's paper embodied a “massive reconstitution of tort law” that was “bound to have very serious problems of implementation and efficacy” (p. 751). Rather than proposing a realistic, positive set of reforms, Latin, it turned out, was just another radical critic “pointing out the obvious failings of the present tort system”—a project that Posner found “not very constructive” (p. 751). And although Latin's extreme ideas would be a threat if implemented, according to Posner, they would actually accomplish little in terms of Latin's purported goals; after all, “if people [we]re as irrational as Professor Latin believe[d], shifting liability from individuals to organizations—which are simply groups of individuals—[would be] unlikely to reduce the costs of accidents by much, if anything” (p. 751).

At the same time, Posner (1985, p. 753) framed Latin's scholarship as more than just a potential economic threat; he indicated that Latin's ideas about liability also posed a hazard to the beloved activities of “any red-blooded American.” Indeed, according to Posner, some of Latin's arguments were not only “paternalistic” (p. 749) but also had a distinct “killjoy quality” about them (p. 754). In particular, Posner took issue with Latin's suggestion that “owners of baseball and other athletic stadiums [ought to] be strictly liable to any (p.512) spectator hit by a ball, or injured while scrambling for a ball, or beaten up by a drunk, or otherwise injured at the game” (p. 753). It was easy for Posner to see paternalism when he continued to view the underlying harms as attributable to nothing more than the victim's choice—or, perhaps, that of the violent drunkard. As Posner summarized, “[T]he dangers are hardly concealed and for the most part are best prevented by the potential victims themselves”; by meddling with a perfectly efficient and fair existing system, Latin wanted to raise “our” prices and ruin “our” fun (p. 753). He was an unreasonable outsider haphazardly attacking the things we love and he needed to be stopped in his tracks.

B. Moment II: Behavioralist Challenges to the “Rationality” of the Rational Actor

The sort of challenges to the rational actor model that Posner (and other economists and legal economists) summarily dismissed in the 1970s and 1980s did not disappear. After being forced into a temporary retreat by the overwhelming momentum of the still-burgeoning law and economics movement, the psychology-based work gained strength and returned with greater force and legitimacy. By the mid-1990s, the tide was turning; legal economists, purportedly committed “to a more social-science-oriented research,” could no longer ignore or dismiss all of the insights of social psychologists—particularly those focusing on “choice” biases (Hanson & Yosifon, 2004, p. 145). By 2005, as Anita Bernstein (2005, pp. 303–11) observed, “the dilemma for law and economics [was] clear. Neoclassical assertions of rationality—abstract, laboratory-crystalline, severed from ordinary experience—stray too far from empirical fact to explain or predict much.” In dealing with that dilemma, legal economists, over the last decade, have been begrudgingly acknowledging, and attempting to minimize, the threat posed by relatively situationist insights (Hanson & Yosifon, 2004). As we predicted—and for the reasons we predicted—naïve cynicism has been an important part of that dynamic.

During that period, one influential group of efficiency-minded scholars tried to reconcile the methodology of law and economics with some of the increasingly persuasive psychological evidence challenging economic theory. That group came to be known by several names, most of which contained a variation of the word “behavioral” (Sunstein, 2000). Although behavioralists continued to adhere to the general principles of economics (Jolls, Sunstein, & Thaler, 1998), many conventional scholars found the behavioralist research unsettling. Economic behavioralists were “steadily” discovering “evidence that human decision-making processes are prone to nonrational, yet systematic, tendencies,” that people are subject to cognitive illusions that “are (p.513) not … capable of being unlearned,” and that those biases “affect us all with uncanny consistency and unflappable persistence” (Hanson & Kysar, 1999, pp. 630-33). Others explained that there are “important ‘bounds’ on human behavior, bounds that draw into question the central ideas of utility maximization, stable preferences, rational expectations, and optimal processing of information” (Jolls et al., 1998, p. 1476).

As with Calabresi and Latin, the situationist insights that the behavioralists focused on were direct challenges to the standard economic analysis of the legal settings where law and economics had seemed to apply most unproblematically—situations with clearly identifiable “actors” seemingly making clear “choices.” However, unlike Calabresi and Latin, who focused solely on the spheres of accident and tort law, the behavioralists' work addressed a much broader swath of canonical legal discourses, including constitutional law, employment law, and environmental law, as well as tort law (Jolls et al., 1998; Hanson & Kysar, 1999). In many cases, the challenges were to causal stories that seemed all but settled: consumers agreed to boilerplate contracts when they bought television sets because the specific terms were not objectionable; criminals decided to rob banks because they valued the expected payoff over the expected punishment; and legislators rushed to pass harsh laws restricting asbestos in schools because exposure to asbestos for schoolchildren was a grave and immediate danger. By drawing insights from psychology and undermining those well-entrenched “commonsense” explanations, the behavioralists were threatening not only to revolutionize law and economics but also to destabilize the foundation stone beneath the edifice of dispositionist legal scholarship.

Other features of behavioralism further encouraged naïve cynical reactions. The relatively situationist attributions of behavioralists, for example, were more complex and less intuitive than the attributions offered by neoclassical economists. Similarly, the policy implications of behavioralist analysis were more conditional and qualified than those typically offered by law and economics scholars. As soon as behavioralism began to gain some traction, many conventional legal economists denigrated the new approach for lacking a single, simple theory that could generate at-the-ready testable behavioral predictions (Hanson & Kysar, 2000; Schwartz, 1988; Scott, 1986). As behavioralists Christine Jolls, Cass Sunstein, and Richard Thaler acknowledged:

A possible objection to our approach is that conventional economics has the advantage of simplicity and parsimony. At least—the objection goes—it provides a theory. By contrast, a behavioral perspective offers a more complicated and unruly picture of human behavior, and perhaps that (p.514) picture will make prediction more difficult, precisely because behavior is more complicated and unruly. Everything can be explained in an ex post fashion—some tool will be found that is up to the task—but the elegance, generalizability, and predictive power of the economic method will be lost. Shouldn't analysts proceed with simple tools? (1998, p. 1487)

Although the “tools” of the behavioralists were anything but simple (see Hanson & Kysar, 1999, pp. 693–722), the trade-off of parsimony for accuracy, however, is one that behavioralists argued was worth making (Jolls et al., 1998). As we would predict, however, that loss of simplicity has been frequently cited by rear-guard dispositionists as a reason to reject the new approach.

In addition, the attributions asserted by behavioralists made certain disfavored parties appear less “blameworthy.” Behavioralist evidence began to undermine, albeit only slightly, the popular conceptions of outgroup members—that they choose or are otherwise responsible for their own plights, that they are morally degenerate relative to the majority, and that they compete on a level playing field for social resources. The “rational”—but bad—decisions of criminals to commit crimes or poor individuals to take on great amounts of credit card debt seem far less rational when one views the decisions through a behavioralist lens: rational actors become creatures of “bounded rationality” and “bounded willpower.” (Jolls et al., 1998). Such insights threatened the status quo further when used to support arguments that outgroup members should receive more favorable treatment: for example, that smokers and their families should be compensated by tobacco manufacturers for their smoking-related diseases (Hanson & Kysar, 2000; Hanson & Logue, 1998), that criminals should be given shorter sentences when they are unable accurately to compute the costs and benefits of their crimes (Jolls et al., 1998), and that debtors should be given a “fresh start” under bankruptcy law because they do not fully cognize the likely consequences of their purchasing decisions (Jolls et al., 1998).

Behavioralist evidence not only threatened the dominant view of “outgroups,” it also challenged conventional conceptions of ourselves and our ingroups and raised doubts about the legitimacy of our larger systems. Human beings are not, as Nobel Laureate Gary Becker (1976, p. 14), among others, had assumed, individuals “maximiz[ing] their utility from a stable set of preferences and accumulate[ing] an optimal amount of information and other inputs in a variety of markets”; rather, humans “display bounded rationality, bounded willpower, and bounded self-interest” (Jolls et al., 1998, p. 1476), and their perceptions and preferences are highly manipulable (Hanson & Kysar, 2000). Few of the behavioralists' insights into human (p.515) nature flatter us, while much of their evidence suggests that our self-conceptions tend toward myopia and hubris: human beings “have limited computational skills and seriously flawed memories” (Jolls et al., 1998, p. 1477), and “often take actions that they know to be in conflict with their own long-term interests” (p. 1479). More specifically, we humans are “faulty scientists” (Hanson & Kysar, 2001, p. 240), “unwarranted optimists” (p. 244), “poor statisticians” (p. 245), “hasty impressionists” (p. 246), and “inconsistent preference-holders” (p. 248)—in short, we are all far more biased, irrational, and manipulable decision makers than we are prone to recognize and acknowledge (Jolls et al., 1998).

Just as discomforting, the work of the behavioralists implied that many of our laws are (1) not fair—because they, for example, punish people who are inclined, “irrationally,” to engage in “bad” behavior; (2) not effective—because they are, for instance, based on deterring individuals who are unable to make accurate calculations with respect to the consequences of their actions; or (3) simply wrongheaded—because, for instance, they involve serious expenditures to address risks that are incorrectly perceived (based on the biased assessment of evidence) to be grave but, in fact, amount to minimal dangers. In turn, this suggested that our very system might not be legitimate and might require potentially radical reconfiguring (Jolls et al., 1998).

All of the basic features that we have argued would likely motivate rejection of a new, relatively situationist theory were, therefore, present in the work of the behavioralists, and as we recount below, the resistance took the predictable forms of naïve cynical backlash.

As predicted by the naïve cynicism hypothesis, a primary way to defend or maintain the dispositionist assumptions of law and economics against behavioralist research has been to emphasize that these relatively situationist approaches do not build from a one-size-fits-all theoretical foundation and, thus, fail to deliver clear answers or tractable solutions to a wide range of policy puzzles. For instance, in 1986, legal economist Robert Scott (p. 334) reported being “struck by the atheoretical quality of [the behavioralist research] taken as a whole.” As he explained, “No general theories have been advanced linking the separate processes of searching for information, forming judgments and making choices” (p. 334). Alan Schwartz (1988, p. 380) echoed the theme two years later:

If the psychologists had a general theory about how people make decisions, and the theory generated predictions about what people will do in various circumstances, their experiments could be regarded as testing (p.516) these predictions…. Psychologists lack such a theory, however. They have instead a large set of observations about how experimental subjects behave.

In bemoaning the behavioralists' lack of a general theory, Schwartz was untroubled that their “large set of observations” about human behavior seemed to contradict the rational actor model upon which legal economists had erected their entire positive and normative apparatus.

A decade later, Jennifer Arlen (1998, p. 1765) took the same route as Schwartz, Scott, and other legal economists when she wrote an article assessing “the future of behavioral economic analysis of law.” Although she began her analysis by conceding that “[c]onventional law and economics scholars must take behavioral research into account in analyzing legal issues” (p. 1787), the bulk of her piece seemed to marginalize the relevance of that research. Where she might have delved into the subject of how a more situationist understanding of human behavior might undercut existing laws and legal theories, her focus, instead, was on downplaying the implications of some well-known behavioral heuristics (such as the endowment effect, overoptimism, and fairness and self-serving biases). She defended conventional law and economics by highlighting the lack of clarity and normative closure offered by the more situationally sensitive economic behavioralism:

[B]ehavioral economic analysis of law is likely to remain as a set of suggestions for amending conventional law and economics, together with an associated set of problems that require sustained attention. It is not likely to emerge as an alternative framework for analyzing legal issues. Behavioral economic analysis of law is unlikely to replace conventional law and economics unless it can formulate a superior model of human behavior suitable for making normative decisions about optimal legal regimes. (p. 1787–88)

In this way, Arlen upheld the rational actor model as the best model for law and legal theory—on the grounds that it was simple to use and provided a basis for assessing and designing policy—even while acknowledging it to be inaccurate.

Beyond the critique that situationist insights make theoretical modeling hopelessly complex, and, thus, not useful, legal scholars have gone so far as to suggest that such approaches are actually a threat to us, our freedom, and our system. Arlen, for instance, warned of the possibility that situationist ideas might be employed to “justify additional intervention” into the lives and choices of citizens (1998, p. 1772). Of course, if such freedom-thwarting (p.517) interventions were deemed appropriate on the grounds that a more complete and accurate understanding of human behavior supports them (or reveals that, in fact, they are freedom-enhancing), then “additional intervention” should be seen as desirable.

Hence, it is the potential implications of behavioralism (the perceived threat, for instance, of greater intervention in our lives) that seem to motivate many people's negative reactions to behavioralist evidence—not flaws in the evidence.

Sam Issacharoff (1998, p. 1745), who has written extensively about economic behavioralism and its relevance for law and economics, has defined the boundaries of relevance for situationist insights this way:

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

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

Thus, according to Issacharoff, basing policies on models that provide “greater insight into the complexity of human decision making” poses a risk to our liberty: psychology untempered might mean the end of our own “freedom to decide.” Not science, but the motive to see ourselves as preference-based free-choosers seems to determine what evidence is deemed authoritative and which theories are embraced.

In light of the concern that behavioralist insights potentially threaten our self-conceptions and our perceived liberties, it is unsurprising that legal economists have clung to dispositionism. And, consistent with the naïve cynicism hypothesis, it is also predictable that those scholars legitimate their dispositionist worldviews, in part, by assuring themselves that the lessons of psychology are incapable of undermining the cogency of simpler economic models (e.g., Issacharoff, 1998).

(p.518) Similarly, in considering the possibility raised by behavioralist research that human perceptions and preferences are highly manipulable, James Henderson and Jeffrey Rachlinski (2000, p. 258) cautioned readers:

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.

Beyond making it, Henderson and Rachlinski made no effort to consider the implications of their observation. In other words, they concluded their article, which had been largely devoted to defending existing tort law rules (behavioralist insights notwithstanding), by cautioning readers to be careful to not take psychology too seriously. Doing otherwise would require relinquishing conventional dispositionist assumptions and the concomitant illusion of clear, correct policy answers.

Of course, few scholars have had a greater stake in defending the dispositionist actor model than Richard Posner. As the tide of situationist criticism began to swell, Posner again offered his firm response, this time to an important article by three prominent scholars—Jolls, Sunstein, and Thaler (1998)—regarding the positive and normative implications of behavioralist insights.

After attempting to challenge or trivialize many of the behavioralists' insights, Posner (2001, p. 286) complained that “the human being that [the behavioralists] draw is one of unstable preferences and (what turns out to be related), infinite manipulability.” As he lamented:

On the one hand … [i]t seems then that the politically insulated corps of experts that [the behavioralists] 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? (p. 287)

According to Posner, then, taking behavioralist insights seriously means surrendering not only our self-conceptions but also ourselves to an irrational, unpredictable tyrant.

Gregory Mitchell, a psychologist whose work we examine in more detail below, has similarly warned readers to remain vigilant against legal scholars who suggest that psychological findings have important implications for law and legal theory. Mitchell (2002, pp. 1907–29) attempts to both discredit and (p.519) raise worries about the sizable implications of the new research by claiming that “the controls on the use of legal decision theory scholarship as persuasive authority are weak (particularly when the work is published in non-peer-reviewed journals), whereas the stakes associated with the use of this scholarship as the basis for judicial, legislative, and administrative decisions may be very high.” According to Mitchell, a little bit of psychology can be a dangerous thing, particularly in the wrong hands: “If the policy prescriptions drawn from legal decision theory are based on faulty assumptions, bad research, or incomplete understandings of behavior, then unintended results may ensue following implementation of the suggested reforms and the intellectual integrity of the field may suffer” (p. 1936).

More recently, Mitchell and Jonathan Klick (2006, p. 1620) have argued that a “new paternalism” follows quite directly “from the emerging behavioral law and economics movement.”3 Further, they caution that undue attention to insights from social psychology are, in light of the problem of “self-fulfilling prophecies,” likely to lead individuals “to become the weak decision makers envisioned by paternalistic policy makers, as paternalistic regulations undercut personal incentives to invest in cognitive capital and the regulated parties conform to the expectancies of the paternalist” (pp. 1626–27). The message is clear: in light of what social psychology teaches about what actually moves us, we should be reluctant to take seriously the arguments of those who challenge any aspect of what we imagine, or believe, moves us.

Not only are situationist ideas represented as posing a threat to our freedom but also all those who raise serious doubts about the dispositionist model of human behavior—for instance, in the form of the “sovereign consumer” (Everson, 2006, p. 99)—are lumped together as one outgroup that poses a unitary threat. In this instance, the unreasonable outgroup members are “the paternalists.” This type of discrediting technique is an old one. When John Kenneth Galbraith (1998, p. 127), a relative situationist among economists of his day, argued that commercial enterprises did not so much respond to consumer demand as create it, “bring[ing] into being wants that previously did not exist,” he raised serious questions about who the sovereign actually was and provided an unflattering image of human psychology and decisionmaking. Milton Friedman, perhaps the most influential intellectual leader behind the dispositionist surge of the late 20th century (Chen & Hanson, 2004), responded as follows:

When you hear people objecting to the market or to capitalism and you examine their objections, you will find that most of those objections are objections to freedom itself. What most people are objecting to is (p.520) that the market gives people what the people want instead of what the person talking thinks the people ought to want. That is true whether you are talking of the objections of a Galbraith to the market, whether you are talking of the objections of a Nader to the market, whether you are talking of the objections of a Marx or an Engels or a Lenin to the market. (Friedman, 1983, p. 89)

And, just like that, any critic of dispositionism is made to answer for every critic of the economic status quo, and Galbraith and Lenin are yoked together as comrades engaged in a pastiche-campaign against “freedom itself” and aimed at bending the whole world to their own desires. Once again the message is clear: unreasonable outgroup members are attacking us, our beliefs, and the things we value.

C. Moment III: Situationist Challenges to the “Actor” Element of the Rational Actor

While the work of challenging the rationality of the actor at the core of law and economics and other legal theories has continued, a number of scholars in the fields of social psychology, social cognition, and law have been marshaling evidence that draws into question the actor element of the familiar model (Banks, Eberhart, & Ross, 2006; Blasi & Jost, chapter 3, this volume; Chamallas, 2000; Dasovich, 2006; Kang & Banaji, 2006; Kim, 2005; Krieger & Fiske, 2006; McCann, 2006; Yosifon, 2006). Those scholars have shown that the problem with the rational actor model is not just that humans make “irrational” decisions or predictably “biased” judgments about risk but also, more generally, that humans often are moved by forces that exist outside of their conscious awareness, and their resulting behaviors, thus, cannot be attributed to willed, preference-based “decisions” and “choices.” Research in many areas—including motivation, affect, stereotype threat, and knowledge structures—shows that people, as situational characters, are affected by unseen gravitational forces, winds, and currents within them and around them about which they have little or no awareness (Hanson & Yosifon, 2004). Like the situationist insights of the behavioralists just discussed, this work possesses the exact features that are likely to encourage naïve cynicism. For illustrative purposes, we focus here on scholarship that uncovers, describes, and considers the policy implications of implicit associations and attitudes. As we would predict, this scholarship has spawned a powerful dispositionist backlash.

One of the most important questions facing Americans is how to account for existing disparities across culturally and historically defined groups, particularly in light of the fact that Americans purport to value fairness and (p.521) equality (at least of opportunity, but often more). Although situationists have made occasional inroads over the years, the conversation about racial disparities in income, wealth, opportunities, and privilege is one that dispositionists have generally dominated. Indeed, the emergent conventional wisdom over the last third of the 20th century is a “color-blind” dispositionist account that is widely accepted and that helps to legitimate differing outcomes across different groups: individuals are relatively successful or unsuccessful, rich or poor, and powerful or weak, as a result of the choices that they make. Racism can be controlled because it, similarly, is the product of conscious and self-regulated thoughts and choices. All of this, of course, is the same basic model of the human agent at the foundation of neoclassical economics and conventional law and economics (Hanson & Yosifon, 2004).

Recently, that set of assumptions—which has adherents both inside and outside the academy—has been seriously challenged by work on implicit associations. Numerous studies demonstrate that certain words and concepts are strongly linked in many individuals' minds, while others demonstrate little or no unconscious connection. Utilizing the Implicit Association Test (IAT; Greenwald, McGhee, & Schwartz, 1998), which measures the amount of time it takes individuals to pair different concepts, Mahzarin Banaji, Brian Nosek, and others have shown—in hundreds of research studies with millions of subjects—that many people carry implicit biases against racial minorities, women, homosexuals, and others (Vedantam, 2005).

While the IAT reveals the presence of implicit stereotypes and prejudices, other research suggests that those implicit biases have real-world behavioral effects (Lane, Kang & Banaji, 2007). For instance, in a study of 1250 employers who had placed job advertisements (many of whom professed a strong desire to hire more minorities), economists at the University of Chicago and the Massachusetts Institute of Technology found that identical resumes with white-sounding names triggered 50% more interview callbacks than those with black-sounding names. Moreover, low-skilled, white-named candidates received considerably more interview offers than highly skilled black-named candidates (Bertrand & Mullainathan, 2004).

In a similar study, researchers at Massachusetts General Hospital provided trainee doctors with two hypothetical cases involving a man stricken with chest pain. The only difference between the scenarios was that, in one case, the patient was black. When asked to suggest treatment options, the doctors were less likely to give life-saving medication to the black patient. Their individual decisions correlated with their previously measured levels of unconscious racial bias (Smith, 2007; Green et al., 2007).

(p.522) The results of such studies have gained considerable attention within both academia and the press. And the findings are bound to be unsettling to most of us because they are in tension with the dominant person schemas that attribute beliefs, attitudes, and behavior largely to our conscious preferences, reasoning, will, and intentions, not to subconscious, automatic, inaccessible knowledge structures (Hanson & Yosifon, 2004). Further, this research raises the disturbing possibility that individuals and groups might be seriously hampered (or advantaged) in achieving wealth, success, power, and privilege by largely unseen stereotypes and prejudices.

As we would expect, the work has elicited a strong dispositionist backlash. All of the factors that are apt to encourage naïve cynicism are in place. First, the implicated issues appear to involve salient actors and clear choices: a black woman is impoverished because she is lazy and not self-disciplined enough to progress up the career ladder; a black man is in prison because he is greedy and immoral and made the bad decision to sell drugs. In the latter example, it is the choices—owing to a defective character, odd preferences, or a weak will—that pose the problem, not the situation of the convicted criminal or our system of criminal justice. After all, examples of African Americans who made good decisions and have enjoyed great success come immediately to mind: Barack Obama, LeBron James, Jay-Z, Bill Cosby, Colin Powell, Condoleezza Rice, and Oprah Winfrey. Race and, certainly, racism have nothing to do with it. When racism is involved, we know it. It is recognizable—indeed, unmistakable. Racism is a backwoods skinhead with a Confederate flag in the window of his pickup truck, burning a cross in a black family's yard. Or maybe it is an elderly senator, with a thick southern drawl who, behind closed doors, has a penchant for jokes about “colored people.” At the very least, racism is the product of conscious and self-regulated thoughts and intentions. It is explicit and, to many, it reveals the ugly disposition or the uninformed cognitions of the racist.

Furthermore, the situationist description of implicit biases leads to complex and complicated explanations for disparities. Implicit bias can seem downright counterintuitive when we learn that, for instance, blacks, women, and gays frequently exhibit bias against their own racial, gender, or sexuality ingroups. Likewise, it is hard to understand how educated people with diverse interactions and backgrounds, who believe they harbor no racist feelings and, indeed, may even care about racial justice issues, can receive scores on the IAT that reveal implicit bias. There is still much to learn about what causes our sometimes bizarre implicit biases, and no simple fix is readily imagined.

The picture is clouded further by the fact that, on the one hand, explicit prejudice still does exist and, on the other, many judgments about people may (p.523) have little or nothing to do with racial stereotypes or prejudice. As a result, insights from research on implicit attitudes fail to provide the comfort of cognitive closure. Although implicit bias may result in qualified black candidates not getting called in for job interviews, such bias is obviously not always the reason a black candidates does not land a job. And even if implicit bias is to blame, what is to be done about it? At best, current research can only hint at possibilities. Living in a neighborhood with a high level of diversity may not change IAT scores, but strong friendships with minorities may (Vedantam, 2005, p. W41). Being exposed to counter-stereotypes prior to taking the IAT appears to alter implicit attitudes (Blair, 2002; Hanson & Yeboah, chapter 8, this volume; Hardin, Cheung, Magee, Noel, & Yoshimura, chapter 4, this volume), but it is unclear how lasting the effect may be or how it may transfer to the real world. Our lives are filled with potentially implicated cues, and it is a daunting task to sort out which matter and which, if any, do not.

Another reason to expect a naïve cynical backlash is that the situationist account offered by Banaji, Nosek, and others involves groups that have been culturally and historically associated with disadvantage and prejudice—including racial minorities, the elderly, obese people, women, and homosexuals (Nosek, Greenwald, & Banaji, 2005). There is, therefore, already a habit of victim-blaming as well as a heightened desire to deny that existing disadvantages are in any way connected to historical oppression of those groups.

Perhaps the most important factor in prompting a powerful naïve cynical response is that implicit bias research threatens the conceptions we have of ourselves, our groups, and our systems. With respect to our individual selves, Mahzarin Banaji (2001, p. 8) has summed up the common reaction this way:

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

A situationist perspective poses a threat to “us” collectively as well, inasmuch as situationist attributions indicate that “we” may be causally implicated in, say, existing racial disparities. The message of the implicit bias scholars is clear: there are biases hidden within us that may, nonetheless, have significant consequences in creating substantial advantages and disadvantages among groups in our country; in essence, we may be—and hence, our system may (p.524) be, regardless of our conscious intentions—a partial cause of suffering and injustice. Particularly in light of our motive to believe our system is legitimate and justified, such attributions are disconcerting (see Blasi & Jost, chapter 3, this volume; Hanson & Hanson, 2006).

By contrast, choice-centric dispositionism that typifies current discourse on race (e.g., blacks continue to live in largely segregated neighborhoods because they choose to live with people they feel most comfortable with; more young black males are involved in delinquency than white males because more black fathers choose not to be involved in raising their children) ensures a positive self- and group view for many of us. Because the choice frame is distinguishable from previous, largely discredited dispositionist frames (for example, more young black males are involved in delinquency than white males because blacks are inherently more violent, aggressive, immoral, and animalistic than whites; fewer blacks finish college than whites because they are a less intelligent race), it allows those who embrace it to separate themselves from the few “racists” who still employ the old frames. New dispositionists see “preferences” or “attitudes” or “values” and resultant “choices,” where old dispositionists saw the hand of God or Satan or genetics and heredity (Hanson & Hanson, 2006). Individuals holding such outdated views are viewed by many as particularly repugnant because they are seen as “dispositionally racist” in the sense that they are presumed to have a stable set of explicit attitudes and intentions that lead to racist behavior. With those frames in place, “racists” are, thus, narrowed down to a manageable number of “bad apples” from whom it is psychological child's play for the rest of us to distinguish and distance ourselves.

The threat to the system posed by research on implicit biases is grave. The situationist evidence raises the possibility that the popular image of America as a meritocratic land of opportunity is largely a myth. It suggests that automatic, subconscious tendencies could pervade any, even all, of our institutions, from specific to general and from small to large. If implicit biases are as prevalent and powerful as the scientists studying them tell us, we cannot be sanguine in the face of disparities across today's society, whether they come in the form of education levels, life expectancies, incarceration rates, wealth, or influence. With the system's legitimacy in peril, naïve cynicism is all but certain to uncoil.

With backlash against the situationist insights of scholars writing about the implicit sources of racial disparities so primed, such backlash is easy to find. Some of the reaction has been study-specific. For instance, in response to studies finding that race may play a role in when referees call fouls in NBA games, the reaction was swift and vociferous (Benforado & Hanson, 2008b).

(p.525) The most significant and sustained backlash, however, has been directed to the entire line of implicit association research. In particular, four scholars—three of whom are themselves social psychologists—have been especially active in penning both substantive critiques of, and naïve cynical reactions to, IAT research: Hal Arkes, Gregory Mitchell, Philip Tetlock, and Amy Wax.

In this chapter, our emphasis is solely on the naïve cynicism demonstrated in some of their public writing and we do not address their substantive critiques to the implicit social cognition experiments. That task has been—and continues to be—thoroughly covered by others. Some of that substantive skepticism has been extremely helpful in highlighting shortcomings in methodology and analysis in the IAT research and has led to important improvements in the design of studies. Yet embedded in many of the responses are strong elements of backlash similar to the reactions of neoclassical economists and other academics to the earlier situationist insights of Calabresi, Latin, and the behavioralists.

Many of those scholars' critiques have been framed just as we would predict. For example, the IAT skeptics have repeatedly emphasized that the common dispositionist way of accounting for racial disparities is correct, sensible, and widely held and that the underlying issues are simple, clear, and obviously dispositional. In their 2005 op-ed, responding to implicit association research, Wax and Tetlock (2005, p. A16) began by highlighting that “racists” are widely seen as malignant individuals, that significant progress had been made against that brand of racism since the 1960s, and that, nonetheless, there remains a group of hard-to-satisfy academics who are prone to seeing everyone but themselves as racists:

It was once easy to spot a racial bigot: The casual use of the n-word, the sweeping hostility, and the rigid unwillingness to abandon vulgar stereotypes left little doubt that a person harbored prejudice toward Blacks as a group. But 50 years of survey research has shown a sharp decline in overt racial prejudice. Instead of being a cause for celebration, however, this trend has set off an ever more strident insistence in academia that Whites are pervasively biased.

The op-ed appeals to readers to defer to what they already know—that is, real racism is no longer much of a problem. We know what racists look, sound, and act like, and we also know that those types have died off, changed their views, or otherwise been silenced and marginalized. Today we should be celebrating our progress. After all, in Tetlock's words, “We've come a long way from Selma, Alabama, if we have to calibrate prejudice in milliseconds” (Vedantam, 2005, p. W40). From that perspective, if negative racial associations (p.526) and attitudes are not explicit—the sort that we attribute to Bull Connor and his ilk—then those beliefs and attitudes are not a concern.

More recently, Mitchell and Tetlock (2006) started their long law review article criticizing IAT scholarship by emphasizing the same themes—that the straightforward, commonsensical versions of “racism” are under attack from a growing coterie of academics. According to Mitchell and Tetlock, those scholars are not only changing accepted definitions of racism, they are lowering the bar to such depths that “most, if not all, of us” will be branded “bigots most, if not all, of the time” (p. 1024).

As our hypothesis predicts, the naïve cynics have argued that minorities for whom many hold negative associations are, indeed, outgroup members who pose a threat to “us” and our systems. In their recent work, Tetlock and Arkes (2004), for example, asserted that such negative associations might represent rational reflections about the true state of the world. They noted that data from recent violent crime statistics and census figures suggest that violent crimes are more often committed by blacks than whites, and they concluded that, given the numbers, biases held by individuals against African Americans would be rational (Arkes & Tetlock, 2004). Implicit biases “might reflect simple awareness of the social reality: Some groups are more disadvantaged than others, and more individuals in these groups are likely to behave in undesirable ways” (Wax & Tetlock, 2005, p. A16).

The naïve cynics have also indicated that the implicit bias scholars have bad dispositions and are a threat. Among their other minatory qualities, IAT advocates are paternalistic, ill-informed, and politically motivated. According to Mitchell and Tetlock (2006), the situationists are so bent on finding bias that they go to Herculean efforts to be able to label most people as racists. They have summarized the history as follows:

Following passage of civil rights legislation in the 1960s, overt expressions of racism declined significantly, but large disparities in group outcomes persisted. This disjunction led many racism researchers to suspect that intergroup hostility persisted but had begun manifesting itself in more disguised, socially acceptable, forms. Accordingly, these psychologists developed less obtrusive methods for measuring racism and reconsidered the psychological mechanisms that lead to discrimination. (pp. 1041–42)

In response to the obvious progress our culture has witnessed in the elimination of racism, write Wax and Tetlock,

[s]ome psychologists … simply expanded the definition of racism to include any endorsement of politically conservative views grounded in (p.527) the values of self-reliance and individual responsibility. Opposition to busing, affirmative action or generous welfare programs were tarred as manifestations of “modern” or symbolic racism.

Others took a high-tech path: Racists could be identified by ignoring expressed beliefs and tapping into the workings of the unconscious mind. Thus was born the so-called “implicit association test.” (2005, p. A16)

In addition, the naïve cynics have emphasized that, with regard to that high-tech approach, the IAT scientists are anything but scientific—eager as they are to make a racist mountain out of a rational molehill. For IAT scholars, “facts have nothing to do with it. What began as science has morphed into unassailable faith” (Wax & Tetlock, 2005, p. A16). Whether motivated by guilt, self-righteousness, or something else, the IAT scholars just cannot be satisfied. As Wax and Tetlock (2005, p. A16) have explained:

Advocates want to have it both ways. On the one hand, any steps taken against discrimination are by definition insufficient, because good intentions and traditional checks on workplace prejudice can never eliminate unconscious bias. On the other, researchers and “diversity experts” purport to know what's needed and do not hesitate to recommend more expensive and strenuous measures to purge pervasive racism. There is no more evidence that such efforts dispel supposed unconscious racism than that such racism affects decisions in the first place.

Toward the end of their article, Mitchell and Tetlock (2006) made clear what they had only implied until then—that the underlying motive of the IAT scholars is political or ideological. In their words, this is a “select group of social psychologists and law professors—with a self-declared agenda to transform American law” (p. 1032). This cabal is dressing up its politics as science. For instance, Mitchell and Tetlock (2006, pp. 1116-17) have described

the repeated failure of [IAT] researchers to acknowledge the role that political values unavoidably play in where they set their thresholds of proof…. The resulting distortions help to explain widespread interpretive over-reaching: the willingness to claim revolutionary discoveries well before ruling out alternative, more pedestrian accounts of what implicit measures of prejudice assess.

Elsewhere, they have likened the IAT research to “research on the heritability of intelligence” and indicate that “this branch of psychology is better classified (p.528) as a form of social activism than of science” (pp. 1120-21). Tetlock and Arkes (2004, p. 320) have offered a similarly damning assessment:

[W]e suspect that, when the history of social psychology is written at the end of the 21st century, implicit prejudice research will be a prime exhibit of how society became so obsessed with avoiding stereotypes that it skewered citizens as racists for displaying even trace awareness of politically painful realities.

Finally, Mitchell, Tetlock, and Wax have emphasized that theories of implicit bias are extreme, counterproductive, and radical and pose a threat to “us” and “our system.” Their primary approach, in this regard, has been to mischaracterize the implicit associations argument, which is that the roots of racial disparities are to be discovered less in our intentions and more in our subconscious. The sources of racism, by this account, are different from (or, perhaps, in addition to) popular conceptions. Wax and Tetlock (2005, p. A16), by contrast, have misleadingly summarized the implicit bias theory to be that “[w]e are all racists at heart” (a phrase they use as both the title and the last sentence of their article): “However we think, feel or act, and however much apparent progress has been made, there is no hope for us.”

Therefore, Mitchell and Tetlock (2006, p. 1085) have warned, “[I]f one accepts the approach taken by IAT advocates to the definition of implicit prejudice, then one also accepts that it is reasonable to set one's threshold for labeling people prejudiced so low that virtually everyone—even rational observers of the social scene—qualifies as prejudiced” (p. 1085). In fact, by that definition, even the IAT crowd, most of whose membership admits to having “failed” the IAT, is made up of bigots, “on par with children reared in prejudiced households and taught to hold mean-spirited beliefs about minorities and to act out these prejudices.”

The problem with those authors' stinging conclusions is that they seem to have missed the point of those they are claiming to rebut. They have conflated conventional understandings of “racism” with the unconscious biases that situationist theorists seek to bring to light (Benforado & Hanson, 2008b). Conventional understandings of “racism”—the stuff of “bigots”—entail that a “racist” has consciously chosen to harbor (or at least consciously understands that she harbors) negative preconceptions of racial minorities. Most of us “know” from introspection that we are not racists, so defined, leaving us feeling offended by such a claim. In fact, the conventional conception of racism is associated with attributions of blame precisely because it assumes conscious knowledge, intention, and malice. However, that is precisely the conception of racial bias (p.529) that the IAT research is contesting. In fact, situationists are attempting to demonstrate that the conventional understanding of racism is incorrect—their concern is with something attributionally less blameworthy, though perhaps no less influential over the lives and opportunities of its victims.4

Elsewhere, the naïve cynics have ratcheted up the threat posed by the implicit bias scholarship by highlighting just how dramatic the implications of the IAT project are. As Wax and Tetlock (2005, p. A16) have asserted:

Because most of us are biased, these individuals claim, we can safely assume that every aspect of social life—every school, institution, organization and workplace—is a bastion of discrimination. The most strenuous measures, whether they be diversity programs, bureaucratic oversight, accountability or guilt-ridden self-monitoring, cannot guarantee a level playing field.

The suggestion seems to be that if IAT scholars carry the day, they will call for a massive and intrusive response to their histrionic discoveries of widespread unconscious biases—“an epistemic disaster of minor epic proportions.” (Mitchell & Tetlock, 2006, p. 1118). In Mitchell and Tetlock's words, “It is difficult to overstate the legal significance of this new research if it correctly diagnoses the pervasiveness and potency of implicit prejudice and related discriminatory tendencies” (p. 1054). In addition, the naïve cynics stress that this would mean an expansion of the very policies that have frightened conservatives most: “If we accepted at face value the most ambitious claims about the pervasiveness and potency of unconscious prejudice, then the factual case for more aggressive government intervention to fight discrimination in a wide range of domains would be strengthened” (p. 1116). Elsewhere they explain:

Antidiscrimination law scholars have seized on this new research to argue for changes in the legal landscape … [including] greater use of affirmative action programs … [and] that the IAT be used to read the minds of legislators for evidence of unconscious discriminatory intent in their enactments.

These specific examples are but a small part of an ambitious project to use implicit prejudice research to remake the law. (pp. 1026–28)

Of course, the threat is not just to the future of our legal system but also to the self-confidence of the nation, race relations, and even the goal of eliminating racism:

If the knowledge claims of IAT advocates are as exaggerated as we maintain, IAT advocates are already causing substantial harm to American (p.530) society by: (a) stimulating excessive suspicion of Whites among Blacks, suspicion that can crystallize into conspiracy theories that poison race relations; (b) convincing Blacks that they are held in contempt, thereby inducing “stereotype threat” and “social-identity threat” that, respectively, increase the likelihood of self-fulfilling prophecies in which Blacks act in ways that confirm the ill opinions they imagine others hold and heighten preconscious attention to subtle cues that confirm the devalued role of minority groups; (c) providing authoritative-sounding but false feedback to a million-plus visitors to IAT websites that they are prejudiced; and (d) providing authoritative-sounding but false grounds for commonality-of-cause requirements in class action litigation. (Mitchell & Tetlock, 2006, pp. 1119–20)

The implicit bias work, thus, “shake[s] the ontological foundations of American political culture…. [It implies that] the American dream is vastly more elusive than popularly supposed” (p. 1120).

Once again, relatively situationist insights have provoked a strong naïve cynical backlash by relatively dispositionist scholars highlighted by claims that unreasonable outgroup members, driven by a biased agenda, are attacking us, our beliefs, and the things that we value. Today, while the situationist scholarship by IAT scholars and others continues to develop, its influence continues to be inhibited by the backlash dynamic. The net result is that valuable insights into human thinking and behavior are kept shrouded beneath the dark veil of flawed intuitions.

II. Conclusion

Legal scholars debate substance—at least that is the story we tell ourselves. Go to any law school in the country and you will find us trading in ideas—intellectual jousting, with the sturdiest conceptions and analyses carrying the day. In truth, however, legal academics often exhibit the same behaviors as editorialists, radio talk-show hosts, and, more broadly, members of the general population. As this chapter has shown, policy scholars devote significant time and energy to commenting or speculating about the explicit motives, biases, and prejudices of those with whom they disagree. At the same time, they are unaware of the implicit motives (for, among other things, closure and system affirmation) that influence their own work. They deny in themselves what they impute to others. Of course, a similar process occurs between virtually all conflicting individuals and groups. But what is particularly troubling is that the imputation—the allegations of slant and distortion—matters. Better (p.531) ideas and more accurate understandings can be stymied, and worse ideas and distorted attributions, maintained.

Thus, the narrative of high-minded engagement and the inevitable triumph of the meritorious theory is, in significant part, a myth.5 The naïve cynical process seems to be shaping policies more than the cold hard data are. Social psychology has struggled for acceptance within the legal academy not because the insights of the field lack merit but because social psychology tells us things about ourselves that seem wrong, uncomfortable, and threatening, engendering a strong backlash.

If we want to know what is influencing legal theory and policy, we cannot continue to confine ourselves to studying numbers and graphs, and weighing the strengths of logic-driven arguments. Legal scholars, lawyers, and law students must also consider the operation of unseen dynamics around us and within us that may be the critical factors determining winners and losers in our major debates.

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Notes:

(1.) We use the term “social psychology” to refer to not only the traditional field of research that goes by that name but also to a number of interrelated scholarly fields, including social cognition and cognitive neuroscience.

(2.) That is not exactly right. There were, in fact, some extraordinarily powerful challenges leveled at the basic assumptions of early law and economics that were never fully acknowledged, much less answered. Duncan Kennedy's (1981) article, “Cost-Benefit Analysis of Entitlement Problems,” is a case in point. Kennedy's article was relatively situationist in the sense that it raised doubts about the simplistic preference-based rational actor model that had long characterized law and economics. Specifically, Kennedy articulated and then examined some consequences of what he called “the offer-asking problem,” a phenomenon that has since become known as “the endowment effect” (Korobkin, 2003). Although widely cited by legal scholars generally, Kennedy's article was largely ignored by prominent self-identified legal economists at the time. That response—or nonresponse—reflects a common means of dealing with early criticisms. In fact, ignoring challenges that are viewed as “marginal” is often the best way to disarm them (Hanson & Kysar, 2000).

(3.) Professor Mitchell (2009, p. 10) very recently offered this warning:

The predominant response of behavioral law and economics scholars to evidence of systematic irrational tendencies has been to call for greater (p.532) governmental regulation of consumer behavior and less reliance on market competition to produce efficient outcomes. But the prescriptions of behavioral law and economics extend far beyond the buyer-seller context. No legal actor has been immune from calls for greater oversight and often greater paternalistic protection from the government: voters, judges, jurors, financial brokers, white- and blue-collar workers, the young and the old, the educated and the uneducated, have all been the subject of regulatory proposals due to their supposed irrational tendencies.

(4.) Perhaps reflecting or perhaps exploiting this common reaction, Mitchell and Tetlock (2006) frequently emphasize that IAT scholars are tarring everyone as racists or bigots. In an article containing roughly 50,000 words, they use the word bigot, or one of its variations, 19 times, and the word racism, or one of its variations, roughly 75 times. Likewise, they refer to the IAT theory as “implicit prejudice” roughly 130 times in the text alone. By comparison, in their article, Kang and Banaji (2006) largely avoid such words. In an article of roughly 30,000 words, they use the word bigot, or one of its variations, zero times, and racism or one of its variations, 7 times. They refer to “implicit prejudice” only once, in a footnote parenthetical summarizing an article that used the term, and instead employ the less charged term “implicit bias.”

(5.) Of course, it is not our contention that every article that challenges situationist scholarship demonstrates naïve cynicism or that critiques of situationist work are never valid. Nor do we want to be misunderstood as claiming that all the pieces that we have highlighted as examples of naïve cynicism are wholly lacking in substantive arguments or merit. As we emphasized earlier in the chapter, our focus here has been on exploring the underappreciated power of naïve cynicism, not on the logical or scientific components that occupy some of the work that we have described.