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 (1)
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 (2)
INTRODUCTION TO AN INTRODUCTION I. SETTING THE STAGE: TWO PUZZLES A. The First Puzzle B. The Second Puzzle II. BRIEF INTRODUCTION TO THE SITUATIONAL CHARACTER A. Seeing the Actors B. Missing the Stage C. The Bounds of Dispositionism 1. How Fundamental Is Our Dispositionism? a. Economic incentives b. The limits of economists' situationism c. Some situation behind our dispositionism 2. How Fundamental an Error Is Our Dispositionism? D. Some Sources of Dispositionism E. The Fundamental Interior Attribution Error (or, Getting Ourselves Wrong) III. A BRIEF INTRODUCTION TO CRITICAL REALISM A. "Realism" B. "Critical" C. What Is So Critical About Realism? 1. Facing Our Fears of Reality 2. Thinking the Unthinkable 3. Faith or Social Science? D. Some Presuppositions of Critical Realism IV. BRIEF INTRODUCTION TO POWER ECONOMICS A. Power 1. Power Blindness 2. Looking for Power B. Economics C. Some Implications of Power Economics V. BRIEF INTRODUCTION TO DEEP CAPTURE A. Shallow Capture B. Deep Capture: An Historical Example C. Deep Capture: History Repeating Itself 1. Some Deep Implications of Shallow Capture 2. The Depth of Capture 3. The Invisibility of Capture 4. Learning from History a. Institutions to deeply capture b. Fundamental attribution errors c. Incentives to deeply capture i. The stakes of geocentricism ii. The stakes of dispositionism D. The Deep Capture Hypothesis VI. SOME EVIDENCE OF THE DEEP CAPTURE HYPOTHESIS A. Some Shallow Evidence of Deep Capture B. Some Less Shallow Evidence of Deep Capture C. Some Cross-Cultural Evidence of Deep Capture D. Some Direct Evidence of Deep Capture E. Some Deeper Evidence of Deep Capture: The Puzzles Revisited 1. The Demand for Credible Messengers 2. The Creation of Credible Messengers a. A market test b. Re-imagining the marketplace of ideas VII. A THEORY OF ATTRIBUTIONAL PRESUMPTIONS A. Legal-Theoretic Presumptions 1. The Classical Theory of Contract 2. The Dispositionism of Post-Classical Contract Theory B. Legal Presumptions C. Social Policy Presumptions: Learning from History Again 1. The Teacher's View of the Learner 2. The Master's View of the Slave a. The basic message--dispositionism i. Revealed inferiority ii. Consent--implied and revealed b. Amplifying dispositionism: The anti-slavery bogeypeople c. Dispositionalizing the opposition d. Our dispositionalization of slavery 3. Conclusion D. The Situational Bogeypeople 1. The Communism Bogeyman 2. The Personal-Responsibility Bogeyman 3. The Paternalism Bogeyman 4. Summary: The Bogeypeople as Response to, and Creation of, Threat CONCLUSION: FACING OUR FEARS 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. (3) 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.
In short, try as best you can to read this Article mindfully. (4) 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. (5)
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. (6)
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 (7)
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 (8)
[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 (9)
Have you ever noticed how quick legal economists are to assume that individuals and institutions are motivated by selfish interests, usually wealth and profit? (10) 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?" (11)
When legal economists write about their movement, (12) 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. (13) 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. (14) Such canonical accounts say nothing about the actors' motives, except insofar as they imply that the participants have a magnanimous desire to advance scientific knowledge and, perhaps, social welfare through normal, well-functioning, neutral processes. (15)
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." (16) 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." (17) 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 Left 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. (18) Regardless of what one thinks about the strength of Priest's arguments or the reliability of...