A Legal System for Irrational Beings
Jon Hanson is the Alfred Smart Professor of Law at Harvard Law School. He is the Director and co-creator of The Project on Law and Mind Sciences at Harvard Law School and co-creator of, and contributor to, The Situationist blog, which is a forum for identifying, examining, discussing, and debating, the effect of situational forces — that is, non-salient factors around and within us — on law, policy, politics, and legal theory, and on our social, political, and economic institutions.
Question: What is wrong with our legal system’s notion of human behavior?
Jon Hanson: So the legal system begins with a schema or a story or an understanding of what the human animal is and what moves people. And it is a very familiar story. It’s the same kind of scheme of the, it is common sensical that researchers have shown most Americans have about what moves us and that is a very simple kind of set of stable preferences that we have and we take those stable preferences and we use our ability to think and we gather information and we combine our thinking and our preferences, apply a little bit of our will and that leads to our choices, our action. So the simple model that is fundamental to that kind of classic liberalism fundamental to the legal system, fundamental to Law and Economics is that. I call that the Dispositionists Actor Model that individuals are moving, are being moved by their own preferences, their own disposition. You might call is a characterological model or an individualistic model, there are different names you might give it, I call it Dispositionist.
That view of the person turns out to be absolutely fundamental to every legal question that comes up because legal questions are focused on what happens when something goes wrong. Or what happens when something goes right. How are we going to split up what happened between the parties who are involved? And our answers to those questions turn on attributions we make about who played a more significant causal role, what were their motives, what were their intentions and so forth. In answering those questions and the view of the person carries much of the weight in terms of determining the answer.
So if we someone acting and behaving in a certain way and we conclude that that’s because of their preferences, and we conclude in term that as a consequence of their actions their fulfilling their preferences, then from a legal perspective our view is let’s not intervene. They’re pursuing their own welfare.
So if we see individuals eating a lot of food, cheeseburgers, milk shakes and French fries we say they must really like that food. And if they become obese we say that’s what you get you need you know for eating like that, you’ve got to change your behavior if you want to avoid that. What the Mind Sciences suggest is that this basic model of the human animal is fundamentally wrong. Which is not to say that people don’t have some agency; it’s not to say that people can’t make some choices based on something but it’s not based on a stable set of preferences to which we give normative weight and much of the behavior is influenced by forces within in that we’re not conscious of and around us. So that if you go back to that same person who is obese and you look at their situation, you begin to see its more than just an individual’s choices based on their proclivity for milk shakes. And if you want to understand an obesity epidemic, you’ve got to look outside of that simple model which again Mind Scientists have shown is incorrect and began looking at the situation.
From a law perspective, it’s not just a claim that, “gee, what you’re doing is wrong from and inaccurate,” it’s that if you care about problems such as the obesity epidemic or smoking, or name the problem that your focus on the dispositions on the individuals involved is not going to help you solve the problem. At most, it’s going to create an illusion that there is no problem because people chose it or the problem is solved because whoever the bad apple is, the bad actor is has been punished or fined, or put in prison. So that the dispositionist model eclipses the situation, eclipses some of the opportunities that we might have to actually make changes in laws, in customs, and in institutions to change outcomes.
Question: What led you to investigating the link between law and cognition?
Jon Hanson: I was interested in it for a number of reasons. One is that I started as so-called Legal Economists so when I was hired eighteen years ago at Harvard I came in as a Law and Economics Scholar and like other Law and Economic Scholars; I was applying the so-called Rational Actor Model to legal questions. But, even at that point I was, I was highly doubtful about the accuracy and the relevance of that model for a number of reasons. One is that before going to law school I had spent a year on a Fellowship in London, actually of Britain but the first six months of it was in London.
When I attended the sort of the daily rounds with the doctors at various large London Neo-Natal Intensive Care Units and the question I was asking as a young buddy scholar was, how is is that these doctors decide which of the neo-nates, the premature babies and the babies that need a great deal of care both nursing care and special equipment, how do they decide which of those babies are going to get care? Give that the National Health Service at the time had the knowhow, had the equipment, had the ability to take care of kids, but didn’t have enough resources to do it for all of them. So I was studying, first I’d question in the Neo-Natal Intensive Care Units the sort of really first-rate medical facilities in London and then I traveled around England including rural areas and went to areas pediatric hospitals and units to find out what sorts of decisions they were faced with there. And what I came to understand was that the kind of Rational Actor Model, the way we make choices and the way, is very, is very different that on one hand a health economists might say this is the way you maximize life years and yet when you went to the healthcare system that had to make what Guido Calabrese my future teacher called “Tragic Choices” between infants all of whom needed care but only some of whom could get it that this idea of maximizing life years was actually foreign, unusual maybe insulting to the people who were involved and instead, other factors were influencing which of the infants got care.
So when I came to law school with that training and economics on one hand but that insight that the Rational Actor Model just really wasn’t capturing important questions, I brought that to my studies as a law student. I continued though in the Law and Economics tradition and then as a young scholar here at Harvard, I began writing about a question that was pretty much resolved in the law, which was the question of whether tobacco manufacturers should be held liable for the consequences of their products. In terms of lung cancer, heart disease and so forth. The resolution had been clear that for most of the twentieth century the answer was “No.” Sure you can try to bring a case but you were going to lose it and when legal theorists asked the question; and particularly when legal economists asked the question the answer was not just no but it should be no. That normatively that’s the right result and that’s true because smokers are choosing freely to smoke.
And give the sort of premises of law and economics, which assumes that if you,’re choosing something freely and you’re informed of the risk, that you must be better off with the consequence. And after you reach that conclusion, there’s really nothing else that the law should engage with. Then the theory leads to the conclusion that we shouldn’t do anything. I was skeptical of that for some of the same reasons that I had, I had grown skeptical of the sort of the Rational Actor Model in the healthcare context generally and began studying really, what is the nature of the choice to smoke. And in that process also began studying the documents that the manufacturers had and were just beginning to come out as Whistle Blowers and other spirited them away and sent them to lawyers. Lawyers started sending them to me and I ended up with an office full of tobacco documents and spent the better part of a year with some research assistants and future co-authors going through those documents and trying to understand what the industry thought about the smoker and the choice to smoke.
At the end of that process, I came to the conclusion that the industry was telling us one thing, tell us that we were choosers and that we smoked because we wanted to, because it tasted good, because it satisfied us and gave us pleasure but, internally they were saying the reasons that people smoke are very different and they actively attempted to influence the behavior of their consumers and potential consumers with that knowledge. And some of the most important knowledge they used was psychology. That sort of realization and that work in that area lead me to more or less abandon Law and Economics and the Rational Actor Model and to put everything down and to take a couple of years and start teaching myself Social Psychology, Social Cognition and other Mind Sciences. So that’s a bit of the transition and what lead me to this approach.
Recorded on February 17, 2010
Interviewed by Austin Allen
Jon Hanson explains his project to change the law to fit with how humans—who can rarely explain their reasoning behind a decision—really think.
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