A discussion with the Harvard Law School professor and Director of the project on Law and Mind Sciences

Jon Hanson: Yeah, I’m Jon Hanson. I’m an Alfred Smart Professor of Law at Harvard Law School and Director of the project on Law and Mind Sciences.

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.

Question: What are some of the changes that the legal system should be making?

Jon Hanson: Well it’s a difficult challenge to figure out now what to do with this information from the Mind Sciences. My prediction is that legal theory is going to be, legal theorists in the law are going to be focused on this and struggling with this and entangled in these difficult questions going forward for who knows how long. One of the things to be aware of is that in every area of law there exists a place where the law and legal decision makers recognize the power of situation and when they do the law changes. The outcome of the law changes.

So I teach Tort Law for example, and we are in Tort Law very prone to say that people assume the risk, that they made choices, and therefore they should bear the consequences. And we are also inclined not to allow there to be liability where we think the parties could have contract so we say look if you use someone else’s stuff and you could have gained consent and you didn’t you’re going to have to pay. We may have to put you in jail. We call this sort of Property Rule Protection. Well there are times when we say that doesn’t apply, that the situation actually played a role that doesn’t typically play a role and so now we’re going to adjust the law. An example, a famous example in Tort Law is the case of a family out on a boat on a lake and a sudden storm comes up and now this family is stuck in the middle of the lake and they need to get somewhere for safety, they see a dock and they approach the dock, they try to get on it and they are pushed off right. And now as a consequence of the person on the dock pushing them off, something that the person is generally entitled to do because it’s their property, so Property Rule Protection, the boat slams against the shore, it’s damaged, and some of the people are injured. So, that’s at least a variation of an actual case.

Tort Law recognizes that in those situations where a storm comes up and people are looking to protect their lives that it’s not exactly their disposition that’s leading them, it’s more their situation. Tort Law says then that your permitted to use someone else’s dock and that if they do try to push you off heir going to have to compensate you for the consequences. So there’s an example of where the law is adjusted to take situation into account. I could take you through every area of law, I won’t. In part because I don’t know them all but if I did I would take you through all of them and show you that in every area of law there’s a place where situation comes in. And so the law has already struggled with this it’s just picked a particular sort of dividing line. So in Contract Law we say if someone puts a gun to your head and says you’re money or you’re life and you give your wallet, that’s not an enforceable contract, it wasn’t your disposition that allowed you to do it, it was your situation and so we change the law to reflect it. I think one general way in which the law is going to have to deal with this is its going to have to slide, slide the sort of the dividing point between when situation matters and when disposition matters. And that’s going to be difficult because there is some simplicity and there’s something affirming about the idea that if something bad happens to someone it’s because they chose it. So there will be resistance to this but I think that the Mind Sciences are going to appeal to those who are committed to kind of a truth to expand those circumstances in which we take situations seriously. Now, if you do that and you begin thinking about problems like crime, this doesn’t mean that you are suddenly saying well, because criminal behavior was situationally caused we should set all the criminals free. It’s actually much more complicated than that. But its implications can be quite concrete.

So one thing it might do is it might suggest to you that if criminals behaved a certain way it’s not a solution to changing that behavior simply to say that those people should be put behind bars. Because if they are indeed moved by situation and we might look at a number of situational factors, but some of the classics that already come to mind are things like poverty and hunger that might lead people to behave in a criminal ways that we’re not going to change that behavior if we attribute what they did simply to their dispositions and miss the fact that they were operating in an environment which would lead many people, including perhaps ourselves, to behave the same way. So, its focus on behavior kind of an instrumentalists view of law, asking how can we change what people do that might lead us to change how we respond to criminal behavior? To be sure, we may put people behind bars but behind bars we may be less likely to say they are of a certain character and therefore we just make them do their time and there’s nothing we can do. Maybe we can change their situation behind bars and maybe we can change the situation of people who are not behind bars to lead others to engage in less of that kind of conduct.

A commitment to trying to do something about the actual problem I think entails a commitment to shedding the simple dispositionist model. And one more concrete thing I would add and that is that our institutions themselves are sort of sources of situational influence. And we have for the most part been blind to those situational influences and have assumed that the way people have operated is a function of their disposition and not their institutions. In part for that reason I think we don’t pay close attention to the way in which there exists a competition over our institutions, a competition that changes our institutions and in turn, changes us. And this might be everything from our government, congress, our judiciary, whether judges, state judges for example are elected it may have real implications for the outcomes of the decisions and what the nature of those elections are. Whether money from large corporations or other groups can influence those institutions is something again, we’ve been not inclined to ask very carefully in part because of our faulty view of the human animal. So I would say there are many concrete ways in which a sort of a more situationist perspective might change the law. The details of it though I think require first accepting kind of the nature of the problem and second, a more general attempt on the part of many of our best and brightest legal scholars and young law students and indeed our judges to help sort out exactly what this means.

Question: How have policy makers responded to your research?

Jon Hanson: Psychology is sort of finding its way into law and legal theory in little bits and pieces and the first way in which it has done so is psychologists have come to law and said gee let’s look at a few settings, let’s look at how juries behave and they apply psychological insights and they can tell us something very interesting about what kinds of jurors will find particular kinds of stories compelling or not for example. Or they might look at say police lineups, how well can people really identify someone that they saw in the midst of a crime. The social psychologists and others have said not very well despite the fact that we think they can. So this is really interesting application of Mind Sciences to an area of law but it’s a very particular area of law. And it’s not surprising that that’s where the Mind Sciences would have their kind of easiest tractions, their firmest initial grip.

Similarly, the Mind Sciences have had a role in tweaking the Rational Actor Model. If what you can do with some psychological experiments is say that the Rational Actor Model as we know it is wrong in a very predictable, small minor way, than that is both interesting because it’s a new insight and it it tractable. It allows those who bring those insights to law and legal theory a way of arguing that you needn’t throw out your Rational Actor Model to take into account these insights. Law and behavioralism is an example of that more bounded approach and they call this Bounded Rationality.

In a way, what they’re trying to do is hold onto the Rational Actor Model, the Dispositionalist Actor Model and to tweak it by showing that there some systematic bias in this direction or that direction. Its great work and it’s important and it’s definitely a step down the road of taking into account these insights. That sort of research has had some impact I think on the Obama Administration. It’s had an impact both in how he frames issues and how he proposed solutions. Just as important, it’s had an impact on the personnel and the people he’s been surrounded with so, terrific work by my colleague Cass Sunstein; for example, of just this type is part of the reason why I think Cass Sunstein is now in a governmental position where he is trying to decide what are the right ways to regulate. And as a now a regulator of sorts he’s trying to find particular applications of this kind of economic behavioralist’s insight.

My view is that the insights of Mind Sciences run much deeper than that. They go places that are much less comfortable and part of what the Mind Scientists have discovered for example is that we humans have a very strong and by the way, I’m being a little broad, I would say at least we Americans at this moment in our history have a very strong craving to believe that our system is just. And that desire to believe that particularly when the system is threatened is going to influence how we interpret our world. Now it’s going to influence what theories and what schemas we find attractive and that we find credible. It’s going to influence what kinds of questions we’re willing to ask and what kinds of answers we’re willing to give. The problem is that an understanding of that and there’s a burgeoning area of work among the more prominent contributors or people like John Jost at NYU who writes about System Justification Theory and Tom Tyler also at NYU who writes about sort of sources of legitimacy.

The problem is that our desire to believe that the system is just and our willing to see, our willingness to see the system as legitimate even when in terms of outcomes, it arguable isn’t means that we can use our laws and our legal theories as part of the palliative to make ourselves feel okay about our world and the way things are. And in you know in a society and in a country that values equality and freedom and liberty and opportunity and thinks that these things ought to apply across many groups; our ability to stomach or countenance vast inequalities, vast ranges of freedom and liberty is in part I think a reflection of our legal system that helps to justify those inequalities and that in turn is in part a reflection of our dispositionist starting point which says that people are where they are because they chose it and it refuses to look at the situational forces behind it. So this in my view is the unhappy news that the Mind Sciences have. I for one things it’s really important to pursue that and to consider its implications but so far, I have not felt that there is the Obama Administration for example has gone anywhere with those particular kinds of insights. [00:27:37.04]

Question: How does ideology constrain us?

Jon Hanson: That’s a, it’s a great question, I believe as many people do and as the Mind Sciences teach, that we need ways of simplifying or world. They absolutely have to have because of the fact that an un-simplified world is simply unmanageable, we can’t understand it. Understanding that we need to simplify is a key sort of starting point for recognizing the ways in which our ideologies might get in the way of actual understanding of clarity in our perspective. My research and the research of others suggests that ideology in a way reflects a set of reasons that lead us to policy conclusions or policy preferences. So, if I like markets or if I like regulations I think it’s my ideology or a set of reasons and attitudes that form my ideology that are the cause of that preference for markets and regulation.

What the Mind Sciences are suggesting is that the reasons we give rarely are very good predictors or explainers of what’s really moving us and the research that I’m doing now with co-author Mark Uboa **** is finding that behind our ideologies often is an attributional style that we tend to look at a world or look at a situation and make an attribution to see choice or to not see choice and to think that that’s a neutral, unfiltered objective, assessment of fact. However, that’s happening more or less because of subconscious reasons and the way it happens also connects us with an ideology so where we see inequalities for example, conservatives, republicans, tend to me more comfortable with that inequality and to make attributions of disposition to explain it. These are people are higher because they deserve to be; these people are lower because they deserve to be it’s their disposition, it’s their choice. Liberals a little bit less so. So behind these ideologies or attributional styles and these attributions that we make vary and flip without our being conscious of it.

So what’s behind those attributional sort of starting points? Well that’s something that Mind Scientists are working with. There’s a lot of possible stories but one of the more interesting possibilities is that if you ask people across you know across ideological spectrum what their, how they feel about chaos, or how much they like clarity and closure, you’ll discover that there’s a range and that the people who really like clarity and really like closure and answers that are clear to questions, tend to be when you ask them about their ideology more conservative. And those who are more comfortable with uncertainty, less seemingly motivated to create closure open to new experience and so forth, tend to be when you put them on the ideological spectrum more liberal. The operating hypothesis is that our degree our sort of our craving for closure how much we feel it may play a causal role in determining our ideologies which in then leads to policy preferences. We might think that it’s our reasons that lead to our policy preferences. We wouldn’t think it’s our craving for closure for example.

And, similarly, the desire sort of people’s reactions to salient inequalities is also an amazingly strong predictor of what their ideology is going to be and how eager they are to explain away inequalities as acceptable or not is also a strong predictor. And again this is a place where the working hypothesis is that this is causal, that people’s craving to explain away inequality is a motive that exists to a greater or lesser degree in people and to the extent its very strong, people tend to me more dispositionists and in turn they tend to prefer conservative policies and they tend to like markets. And if you ask someone why they like markets, they would not tell you it’s because I’m comfortable with inequality and because I crave closure. But the evidence is suggesting though it’s really early to get, you know, you don’t want to go too far with this but the evidence is suggesting that that’s, that is indeed the causal story; that it starts way back at these motives and where those motives start is also a subject of study that people are engaged with, but I’ll stop there for now.

Recorded on February 17, 2010
Interviewed by Austin rnAllen