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Can’t Get No Satisfaction!


Jon Hanson and Goutam Jois

Harvard Law Record 10/19/06

Just as it does every year this time, the season has clearly changed at Harvard Law School. We’re not referring to the falling leaves or the failed Sox. We’re talking about hundreds of 2Ls donning business attire for their annual migration to the Charles Hotel. We’re talking about interview season.

Much has been written about the stressful, transformative, and often harmful effect of the Harvard Law School experience on the lives and careers of its students.(1) Certainly Dean Kagan’s tenure has done much to alleviate many of these effects. Still, the interviewing season, except for some added efficiencies, has remained fairly constant. Many students continue to find this period to be the most harried and disconcerting of their three years at HLS. Some sense that their futures are taking directions that seem more predestined than chosen. As one alum describes: “By the time Harvard Law students make the decision to take a job with the high-powered firm they ‘summered at’ the previous year (or another just like it), it is not eminence they feel, but rather resignation, confusion, and a loss of their capacity to chart their own futures or make things happen.”

This all seems a little puzzling. If most students come here because of the amazing career opportunities that a Harvard Law School education affords (and of course they do), then why do so many of those students find the actual job-hunting process so unsatisfying?

* * *

Over forty years ago, Herbert Simon, a Nobel Prize-winning economist, distinguished between two types of decisionmakers: maximizers and satisficers. The maximizers seek the “best” outcome and exhaustively search all possibilities; the satisficers look for an outcome that is “good enough.” Flipping through channels with the TV remote, the maximizer is frantic with concern that, on one of the other 300 channels, a more entertaining show may be underway. The satisficer is happy with any option that isn’t home shopping. Sitting at Chez Henri, where the options include the Rice Crusted Tuna or the Chupe de Longosta, or perhaps the Star Anise & Plum Glazed Duck Breast, a maximizer pores over the menu, scrutinizes the ingredients, cross-examines the waiter, and factors in her tablemates’ selections. A satisficer picks the first entrée that sounds good and returns to the conversation.

At the risk of stating the obvious, HLS is brimming with maximizers. Indeed, the urge to maximize is a de facto prerequisite for admission. At least since high school, we have been making good grades and excelling at extracurriculars to separate ourselves, the few who have gained admittance, from the thousands who, sour grapes aside, wish they had. Not only does maximizing open the HLS doors, it is the main reason that most of us opt to enter. This is an institution that attracts high achievers who, though often uncertain exactly what they want to do with their lives, crave many rewarding options to choose among. As Alexa Shabecoff summarized in these pages a few weeks ago:

many of you may have ended up in law school because you lack a strong sense of what you want to do for a living. Having left college without specific training, and knowing that further education is highly valued, you find comfort in a place that will not only give you more time to prepare for the “real world” but will also give you skills that can be applied in numerous settings.

And once here, the maximization decision strategy is only reinforced. We teach and learn in our courses that policymakers maximize wealth, that consumers maximize utility, and that corporations maximize profit. Professors are measured by their citation ranking while students are measured according to how well they maximize grade points as they as they prepare for positions that increasingly involve maximization of billable hours. In short, most HLS students and professors are here because we were maximizers in the past, are maximizers in the present, and expect to be maximizers in the future.

* * *

That brings us back to interview season. We are in the middle of the hectic job-searching phase in which summer jobs and clerkships are being traded like cattle futures. Mark Weber, who heads the on-campus portion of the interviewing program, describes the process as “intense, exciting, and busy” and the season itself as an “exciting, overwhelming, and emotional time.” Alexa Shabecoff calls it simply, the “fall insanity.”

Here is the strange part. The alleged source of this craziness is-take a breath to let this sink in-too many opportunities. According to Weber, HLS students are “curse[d]” (and blessed) with too “many choices and options.” They “face seemingly endless career choices requiring quick decisions.” As one 2L recently lamented in the Record, “there are so many incredible choices that I’ll never be able to make up my mind.”

Since when did having too many choices become a problem for HLS students? When selecting from the menu at Chez Henri, we maximizers proved our capacity for astute decision-making by gathering information, seeking advice, and, in the end, thoroughly enjoying French cuisine “with a Cuban twist.” Harvard types are proven choosers! Surely HLS students must be at least as good at picking career trajectories and employers – major life decisions that they have been anticipating for years.

Psychologists Sheena Iyengar, Rachael Wells, and Barry Schwartz just published a study that, unfortunately, suggests otherwise.(2) They studied college seniors who were entering the job market. The job seekers were first rated as relative maximizers or satisficers and then followed over time.

Some of the findings should sound familiar. The maximizers searched far more extensively than did the satisficers. They considered more options, but owing to a lack of meaningful information, relied more heavily upon simple, external criteria for evaluating those options. By some measures, the maximization strategy paid off, literally: the maximizers enjoyed average starting salaries that were $7,500 (20-25%) higher than those of their satisficing counterparts. Ka-ching!

Hovering within that silver lining, however, was a dark cloud. The simple external indicators on which job seekers relied revealed little about job fulfillment or overall happiness. “Even though maximizers invested more time and effort during the decision process and explored more options than satisficers-presumably in order to achieve greater satisfaction-they nonetheless felt worse about the outcomes that they achieved.” Indeed, every measure of psychological satisfaction that the researchers devised revealed that maximizers felt much worse: “maximizing tendencies were positively correlated with regret, depression, and decision difficulty, and negatively correlated with happiness, life satisfaction, optimism, and satisfaction with decision outcomes.” To paraphrase the Rolling Stones, it seems that maximizers, though they try, and they try, and they try, can’t get no satisfaction.

This study seems to capture at least part of the problem facing HLS students in their own personalized versions of the experiment. The fresh 2L often lacks good information about herself-exactly what sort of work she will want to do or how she will respond to different work environments-or about her options. At Chez Henri, we can hardly go wrong: the stakes are trivial, the options are mercifully few, and any one of them will be more pleasing than last night’s Ramen noodles. Yet we maximizers rely on the same basic strategy to choose a job as we do to choose our dinner. One student summarized her decision process in The Record this way:

In the past week, I’ve been to the DOJ info session, the DC headhunters talk, an advising appointment with a DC headhunter, an advising appointment with OPIA, firm cocktail receptions, firm brunches. I’ve talked to my parents, best friends from college, law school friends, lawyers whom I happen to know, old bosses. I’ve made a list of firms, proofed my resume, re-read my journal, collected business cards at firm receptions.

Despite these efforts, I don’t seem to be getting any closer to an answer to the question: will I work in a law firm this summer?

Although it may elicit little sympathy from those with fewer options, this student seems to be trapped in a kind of choice hell in which she has obtained advice from every available source and has admittedly “talk[ed] the question to death,” but remains mystified and anxious about her future. So what does the maximizing 2L do? More or less, she decides not to decide: “I’ll submit my bids. Bide my time. Spend another few weeks soul-searching, buying interview shoes, attending firm receptions and OCS tips sessions.” All of this is done in the hope that over time she can muster the courage to choose an option that will provide “long-term satisfaction.” It’s the OCI equivalent of asking the waiter for more time in the hope that she will somehow intuit whether the Chupe de Longosta or the Plum Glazed Duck is tastier.

Even if the 2L decides to spend the summer at a particular firm, she will learn about only one firm for one type of career and will gain little ability to make meaningful comparisons across numerous firms or career paths. Furthermore, that one firm will likely employ a bait-and-switch tactic that, although recognized, still seems to work. The Record recently included a description of “a 2L bragging about his summer job at Über-Prestigious Law Firm. He was looking forward to the lavish lunches and social events, but knew things would change if he accepted an offer there; as a junior associate, he would work nights and weekends, keep his Blackberry with him at all times, and not have much of a life outside work.”

It would be easy to conclude, as many do, that anyone choosing such a job and its gadgets must expect personal benefits to exceed the personal costs. But if many jobs are occupying more hours and foreclosing more of “life,” then perhaps we should worry about whether the benefits truly exceed the costs. That is a concern particularly given that the overall satisfaction levels of lawyers are distressingly low. According to one source, lawyers suffer from major depressive disorder at a rate 3.6 times higher than non-lawyers (fully one-third of them suffer from clinical depression) and are alcoholics at double the rate of adults generally. Divorce, suicide, and stress-related illness rates are also disproportionately high among practicing lawyers.

Perhaps such evidence about “life” as a lawyer helps account for the increasing annual turnover rate in large law firms, which is now close to twenty-five percent. Even those who stay often say later in life that they would not become lawyers again if they had the choice. In an article on big-firm lawyering, a partner at a D.C. firm assessed his life this way: “A lot of us hate ourselves for what we’ve become . . . . We no longer recognize the practice of law as we knew it. I’d never want my kids to lead the life I’ve led.” The lawyer went on, pointing a shelf of memorabilia: “See those trinkets? . . . Each of those reminds me of another slice of my family’s life that went to pot because I had to stay holed up at work.” Ouch!

Assuming it’s not always the path to fulfillment, then what else could explain the heavy foot traffic between the Hark and the Charles? Alexa Shabecoff has argued that, “despite the diverse doors” opened by an HLS degree, many students tend to settle on just one: that of the large law firm. That is true in part because of situational forces that limit options, including huge debt loads and the lack of short-term clarity and closure behind most of the other doors. Commendably, Harvard Law School has lightened that burden by creating the best loan repayment program in the country. “If debt loads can be reduced,” the hope seems to be, “then our students will be free to choose the career path that they prefer.” Unfortunately, student loans are but one of the many situational factors influencing career directions. Another is that students must often look to imperfect sources of information when considering their options: the “choices” of classmates gravitating to big firms, the expectations and pressures of family and friends, “[t]he perceived prestige” of those firms, social status and standing, and, of course, the hard-to-miss and easy-to-compare wage rates.

It turns out that the very thing that attracts so many of us to a place like Harvard Law School-namely, choice-may not be all it is cracked up to be. The more good options we have, the more good options we have to pass up. The more good options we pass up, the worse we feel, especially when the choice is highly consequential. According to Professors Iyengar, Wells, and Schwartz, perceived opportunity costs don’t vanish from a chooser’s imagination once a final selection is made. Instead, those costs continue to haunt the chooser with images of what might have been.

That problem is exacerbated when others are eager to snatch up the job that we might forego. Why work at a place that leaves little room for life? As one Record writer put it, “Do you know how hard it is to get a job there?” And, as another, reminded us: “Here at HLS, we’re privileged to be recruited for law firm jobs that students at other schools fight over.” Still another explained that, although “the work that firms do doesn’t interest me, . . . I go to Har-vard. I made it through my first year. . . . Don’t I ‘deserve’ to earn the $135,000 that a firm is willing to pay me? How can I pass up this wonderful opportunity?”

There exists, it seems, a sort of interpersonal tyranny of the majority that leaves us feeling obliged to choose as we imagine the majority of our cohorts would. Perhaps the majority’s choices will bring greater lifetime satisfaction, but perhaps not. Of course, if our cohorts are similarly motivated, then the career trajectories of many HLS students may simply reflect a shared illusion-a fairly common effect of what social psychologists call pluralistic ignorance. The phenomenon is all-too familiar: when a professor asks a deeply confused class if there are any questions, and every student remains silent (in the false belief that their bewilderment is unique), the professor moves forward as if he or she had been perfectly clear. Presuming that the group marches forward for good reasons, we go along, even though each of us may tread in ignorance. These and other herding tendencies may have motivated Professor Wilkins’s recent caution to HLS students: “keep your eyes open and . . . pay careful attention to what’s happening to your career because nobody really is looking out for you. And if they say they are, they’re mostly being disingenuous.”

* * *

So what might be done to help students really look after themselves? We suspect that many reforms are worth considering. But the best hope for dealing with this problem of “doing better but feeling worse” may be to provide new and improved types of information to students regarding their options-not in terms of the kind of work, rates of pay, and levels of billing but in terms of the kind of lifestyle, rates of depression, levels of satisfaction, and so on.

We humans are far worse than we believe at predicting what will make us happy. We lack the information and the imagination to know what a new situation will feel like and how it will wear. Nonetheless, we place every confidence in our own happiness forecasts. Social Psychologists like Harvard’s Dan Gilbert are making (satisfying) careers demonstrating this embarrassing shortfall.(3) And, according to Gilbert, probably the surest antidote is, not to try to imagine how we will feel about a life change, but to learn how people who have actually experienced the change feel about it. As he explained in a recent interview: “One of the very best ways to find out if you’re going to enjoy taking a job at a particular law firm is simply to see how happy the people who work there are.”

As we’ve discussed, that information is not what HLS students typically receive, nor, because of a misplaced faith in their imaginations, do they demand it. It is true that some general information is available, but it is typically cursory and unreliable. Vault’s “Quality of Life” rankings, for instance, are based on considerations such as training, associate-partner relations, and offices. Valuable data, yes, but they reveal little about how much time associates and partners spend with their families and friends or whether a firm’s lawyers tend to suffer disproportionately from substance abuse problems. Moreover, even the most detailed rankings do not survey government agencies, public interest organizations, or smaller private firms. Yet answering such direct questions could be the only way to provide HLS students with useful information on what their future lives might be like and, thus, on what choices they should be making now.

Of course, filling the information void would be a challenge. Still, it seems doable, and it’s entirely in keeping with the current mission and trajectory of HLS. A valuable way to improve student life further is to help students make good life decisions. And we can better ensure that our students better meet the needs of the legal profession by helping to ensure that the legal profession better meets the needs of our students.

Whether or not the Law School takes up this task, we think it a worthwhile area for further research (a potential 3L paper topic!) and, at the very least, something that students in the throes of this interviewing season should keep in mind.

Though your sample will be small and biased, follow Professor Wilkins’s advice and “keep your eyes open”: look at the lawyers and staff at the places you are interviewing; pay attention to whether they seem happy-not just with their work, but in their lives. Maximize your satisfaction.


2 Sheena S. Iyengar, Rachael E. Wells, & Barry Schwartz, Doing Better but Feeling Worse: Looking for the “Best” Job Undermines Satisfaction. 17 PSYCHOLOGICAL SCI., 143-150. (2006).


William Sloan Coffin


“[T]o show compassion for an individual without showing concern for the structures of society that make him an object of compassion is to be sentimental rather than loving.”

Jon Hanson and Michael McCann: The psychopathology of athlete worship


The Providence Journal, August 24, 2006


TO SPORTS FANS, it probably wasn’t a surprise to learn that former Ohio State University football star Maurice Clarett was arrested again the other week. The evasive running back who had carried the Buckeyes to the 2002 National Championship was unsuccessful in evading the police in a car chase that occurred near the home of a witness in his upcoming robbery trial. As if his location and the arsenal of four loaded guns in his car weren’t suspicious enough, Clarett was sporting a Kevlar vest at the time.

Much like Clarett in his glory days, the story has legs, powerful legs. Everyone has now seen the post-arrest photos of Clarett, dressed in a jail-issued jumpsuit and looking beleaguered. Sports writers around America have penned countless condemnations of Clarett and his bad life choices. The following sample of news headlines give a flavor of the indignation:

“After Saying He Had Changed, Clarett Goes Down Familiar Path” (The New York Times).

“Maurice Clarett in Dire Need of a Reality Check” (The Philadelphia Inquirer).

“Clarett’s Misplaced Sense of Manhood Meant Nothing but Trouble” (The Akron Beacon Journal).

Editorialists ratcheted up the righteousness. Scott Soshnick, of Bloomberg News, told readers in a column entitled “Maurice Clarett Doesn’t Deserve Your Sympathy”: “Clarett has no one but himself to blame for his latest incarceration.” An editorial said, “all [Clarett] ever has been is a knucklehead.” Another, entitled “Don’t Cry for Clarett,” attributes his failings to “self-absorption,” “ego, and arrogance.”

Letters to The Columbus Dispatch got even nastier (Ohio State is in Columbus). One: “Big Mo’s actions only confirm what my pappy always said: ‘Beauty is only skin deep, but stupidity goes clear to the bone.’ ” Another called for “a citywide ban against Maurice Clarett,” saying that “[a]nyone wearing No. 13 this year during Buckeyes games should be encouraged to burn their jersey.”

It is obvious that people care about this story; what isn’t so clear is why. Why are Americans so interested in an event that, with a different culprit, would have spread no further than the local crime blotter? And why are so many sports writers preoccupied with a man who never played a down in the National Football League and who hasn’t played college football in over three years? Most perplexing, why the vitriol? Why do we pile insults on a young man who is already a has-been?

Is it because a young black man was arrested and jailed? Nope. After all, we barely notice that over 15 million Americans are arrested each year and one out of every four black men will go to prison in his lifetime.

Might it be because he was carrying concealed weapons? Uh-uh. Thousands of people are arrested each year for that, and it is not a crime that elicits general outrage. In fact, more and more states are passing laws making it easier to carry a concealed weapon.

To understand why we Americans enjoy villainizing certain sports figures (Ron Artest, Terrell Owens, Rafael Palmeiro, Lawrence Phillips, Mike Tyson), it is helpful to understand why we make super-heroes of others.

Consider the most celebrated athlete in recent memory, Lance Armstrong. He has been the recipient of too many accolades to count, including Sports Illustrated’s “Sportsman of the Year,” the Associated Press’s “Male Athlete of the Year” (four times), and ESPN’s ESPY Award for “Best Male Athlete” (again, four times). Is Lance talented and successful? To be sure. And, yes, he won the Tour de France seven times — more than any rider in history.

But those successes alone are not what make Armstrong our hero. In fact, not long ago Americans cared as much about French cycling races as they do about English cricket tournaments. In Armstrong’s case, it wasn’t so much the race that made the man; it was the man who made the race. And what we admire in this man is not that he is a winner, but that he is a winner after having nearly lost his life to testicular cancer.

We love loving Lance because his success confirms our faith in the power of perseverance. The message for us all is the American creed: We can overcome our situation, no matter how grim, if only we work hard and choose wisely.

Consider also ESPN’s award for the “best sports moment of the year.” In the single basketball game that Jason McElwain played in high school, he scored 20 points in just 240 seconds. Sure, that was an outstanding accomplishment, but what made it the “best moment” is that “J-Mac” is autistic and had spent the rest of the season as the team manager.

Oh, we love those stories! Indeed, we pay good money to see movies about fictional sports figures (from Radio to Rudy to Rocky) who overcome their situations.

This brings us back to the more tragic Clarett story. Why do we love hating Maurice? For the same reason — just from a different angle. Clarett was at the cusp of fame. Had he simply chosen better, as one editorialist wrote, Clarett “would be signing autographs in some National Football League training camp right now. He’d be the face of a franchise. He’d be a millionaire. He’d be wearing Nike shoes and getting paid to do it. He’d be posing for magazine covers and billboards, instead of mug shots.”

The message of Clarett’s story is just the flip side of the same creed: If we work hard and make good choices we will succeed, but if we are lazy and make bad choices, we will fail.

And why do we love that message? Social science provides several reasons, but among the most important is our subconscious craving to believe that our world is just and that anyone can overcome circumstances. When our heroes are “good guys” who make “good choices” and our villains are “bad guys” who make “bad choices,” that craving is satisfied.

If someone succeeds, he deserves it; if someone fails, he has no one but himself to blame. Feels good.

Jon Hanson and Michael McCann — professors at, respectively, Harvard Law School and the Mississippi College School of Law — are writing a book on how sports shape beliefs about law and policy.

He Who Cast the First Stone Probably Didn’t (by Dan Gilbert)


N.Y.Times 072406:

LONG before seat belts or common sense were particularly widespread, my family made annual trips to New York in our 1963 Valiant station wagon. Mom and Dad took the front seat, my infant sister sat in my mother’s lap and my brother and I had what we called “the wayback” all to ourselves.

In the wayback, we’d lounge around doing puzzles, reading comics and counting license plates. Eventually we’d fight. When our fight had finally escalated to the point of tears, our mother would turn around to chastise us, and my brother and I would start to plead our cases. “But he hit me first,” one of us would say, to which the other would inevitably add, “But he hit me harder.”

It turns out that my brother and I were not alone in believing that these two claims can get a puncher off the hook. In virtually every human society, “He hit me first” provides an acceptable rationale for doing that which is otherwise forbidden. Both civil and religious law provide long lists of behaviors that are illegal or immoral — unless they are responses in kind, in which case they are perfectly fine.

After all, it is wrong to punch anyone except a puncher, and our language even has special words — like “retaliation” and “retribution” and “revenge” — whose common prefix is meant to remind us that a punch thrown second is legally and morally different than a punch thrown first.

That’s why participants in every one of the globe’s intractable conflicts — from Ireland to the Middle East — offer the even-numberedness of their punches as grounds for exculpation.

The problem with the principle of even-numberedness is that people count differently. Every action has a cause and a consequence: something that led to it and something that followed from it. But research shows that while people think of their own actions as the consequences of what came before, they think of other people’s actions as the causes of what came later.

In a study conducted by William Swann and colleagues at the University of Texas, pairs of volunteers played the roles of world leaders who were trying to decide whether to initiate a nuclear strike. The first volunteer was asked to make an opening statement, the second volunteer was asked to respond, the first volunteer was asked to respond to the second, and so on. At the end of the conversation, the volunteers were shown several of the statements that had been made and were asked to recall what had been said just before and just after each of them.

The results revealed an intriguing asymmetry: When volunteers were shown one of their own statements, they naturally remembered what had led them to say it. But when they were shown one of their conversation partner’s statements, they naturally remembered how they had responded to it. In other words, volunteers remembered the causes of their own statements and the consequences of their partner’s statements.

What seems like a grossly self-serving pattern of remembering is actually the product of two innocent facts. First, because our senses point outward, we can observe other people’s actions but not our own. Second, because mental life is a private affair, we can observe our own thoughts but not the thoughts of others. Together, these facts suggest that our reasons for punching will always be more salient to us than the punches themselves — but that the opposite will be true of other people’s reasons and other people’s punches.

Examples aren’t hard to come by. Shiites seek revenge on Sunnis for the revenge they sought on Shiites; Irish Catholics retaliate against the Protestants who retaliated against them; and since 1948, it’s hard to think of any partisan in the Middle East who has done anything but play defense. In each of these instances, people on one side claim that they are merely responding to provocation and dismiss the other side’s identical claim as disingenuous spin. But research suggests that these claims reflect genuinely different perceptions of the same bloody conversation.

If the first principle of legitimate punching is that punches must be even-numbered, the second principle is that an even-numbered punch may be no more forceful than the odd-numbered punch that preceded it. Legitimate retribution is meant to restore balance, and thus an eye for an eye is fair, but an eye for an eyelash is not. When the European Union condemned Israel for bombing Lebanon in retaliation for the kidnapping of two Israeli soldiers, it did not question Israel’s right to respond, but rather, its “disproportionate use of force.” It is O.K. to hit back, just not too hard.

Research shows that people have as much trouble applying the second principle as the first. In a study conducted by Sukhwinder Shergill and colleagues at University College London, pairs of volunteers were hooked up to a mechanical device that allowed each of them to exert pressure on the other volunteer’s fingers.

The researcher began the game by exerting a fixed amount of pressure on the first volunteer’s finger. The first volunteer was then asked to exert precisely the same amount of pressure on the second volunteer’s finger. The second volunteer was then asked to exert the same amount of pressure on the first volunteer’s finger. And so on. The two volunteers took turns applying equal amounts of pressure to each other’s fingers while the researchers measured the actual amount of pressure they applied.

The results were striking. Although volunteers tried to respond to each other’s touches with equal force, they typically responded with about 40 percent more force than they had just experienced. Each time a volunteer was touched, he touched back harder, which led the other volunteer to touch back even harder. What began as a game of soft touches quickly became a game of moderate pokes and then hard prods, even though both volunteers were doing their level best to respond in kind.

Each volunteer was convinced that he was responding with equal force and that for some reason the other volunteer was escalating. Neither realized that the escalation was the natural byproduct of a neurological quirk that causes the pain we receive to seem more painful than the pain we produce, so we usually give more pain than we have received.

Research teaches us that our reasons and our pains are more palpable, more obvious and real, than are the reasons and pains of others. This leads to the escalation of mutual harm, to the illusion that others are solely responsible for it and to the belief that our actions are justifiable responses to theirs.

None of this is to deny the roles that hatred, intolerance, avarice and deceit play in human conflict. It is simply to say that basic principles of human psychology are important ingredients in this miserable stew. Until we learn to stop trusting everything our brains tell us about others — and to start trusting others themselves — there will continue to be tears and recriminations in the wayback.

Daniel Gilbert, a professor of psychology at Harvard, is the author of “Stumbling on Happiness.”

Legal Theory


Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal, 93 GEORGETOWN L.J. 1, 136 – 38 (2004) (footnotes omitted):

Getting to know the situational character . . . teaches us something about what moves our own theories about what moves us. We are not referring here to the many exterior situational forces behind the long and successful “life” of the dispositional actor. . . . We are referring instead to the influence that our interior situation tends to have on the shape of the policy theories likely to be most successful. Legal theory, too, will share much in common with the law. But, as an outside observer, a legal theorist is to law something closer to what a social psychologist is to the human variety of situational characters: an observer attempting to ascertain what really moves the situational character—to see, for example, if the purported attitudes, reasons, and rationalizations of the situational character square with its behavior. Where apparent incoherence is identified, legal scholars offer theories intended either to make sense of the decisions (positive theories, which can be legitimating or delegitimating) or to show how the law, in practice, should be (re)formed or (re)structured to achieve a particular goal (normative theories).

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

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

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

The above description, we believe, accurately depicts much of traditional law and economics, and it helps to explain its tremendous real-world influence. Unfortunately, social psychology also strongly suggests that such a legal theory or legal system will have significant harmful effects—even as measured by existing normative theories regarding the goal or goals of law. . . .

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

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