The Project on Law and Mind Sciences

This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people’s dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should be a major priority of legal scholars. With such information, legal academics could predict which individuals, institutions, and societies are most likely to produce situationist ideas—in other words, which have the greatest potential for developing the accurate attributions of human behavior that are so important to law.
(57 Emory L.J. 312 (2008))

This is the second article in a multi-part series. In the first part, The Great Attributional Divide, the authors suggested that a major rift runs across many of our major policy debates based on contrasting attributional tendencies (dispositionist and situationist). This article explores how dispositionism maintains its dominance despite the fact that it misses so much of what actually moves us. It argues that the answer lies in a subordinate dynamic and discourse, naïve cynicism: the basic subconscious mechanism by which dispositionists discredit and dismiss situationist insights and their proponents. Without it, 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. Naïve cynicism is thus critically important to explaining how and why certain legal policies manage to carry the day.
(57 Emory L.J. 499 (2008))

This article, the third in the series, illustrates the operation of naïve cynical dynamics in legal-theoretic debates over the last half century, with special focus on reaction of legal economists and economics behavioralists to insights from social psychology and related fields.
(57 Emory L.J. 1087 (2008))

This article provides a broad assessment of the American obesity epidemic from the perspective of "critical realism." The article is focused on exploring the vast divergence between common sense views of the sources of obesity - which typically attribute the phenomena to the individual, private choices of consumers - and the very different conception of the sources of obesity that emerges from the social sciences, which are typically much more focused on environmental influences on consumption behavior.
(Emory Law Review, 53, 1645-1806.)

This article introduces system justification theory (SJT), which explains a powerful motive for human behavior: the motive to defend and justify the social status quo, even among those who are seemingly disadvantaged by it. This article describes the contours of the motive and the contexts in which it operates, specifically the important implications SJT has for law, lawyering, and advocacy for social justice.
(California Law Review, 94, 1119-1168.)

The human tendency to create and rely on knowledge structures—and in particular on categories and schemas—in processing information, drawing conclusions, and in making sense of the world around us reveals itself in the minds and behaviors of those who make the laws and of those who grapple with the theories on which those laws are based. Understanding our schemas and categories, this article argues, can lead to better understanding of legal theory and analysis.
(California Law Review, 77, 1106-1253.)

This article is about some of the schemas and scripts that form and define our lives. It is about the knowledge structures that shape how we view the world and how we understand the limitless information with which we are always confronted. It is also about the “evolution of ideas” underlying corporate law and all of modern policymaking. It is about the ways in which schemas and scripts have influenced how policy theorists, policymakers, lawyers, and many others (particularly in the West) understand and approach policymaking generally and corporate law specifically. It is about both the invisibility and blinding effect of those schemas. It is about the battle over those schemas and the prizes of victory. And, finally, it is about how the now-dominant schemas render us the “unwitting puppets of the intellectual forces that have been undermining the basis of a free society these past decades.”
(Michigan Law Review, 103, 1-149.)

This article describes two randomized field experiments that tested a social-psychological intervention designed to improve minority student performance and increase our understanding of psychological threat mediates performance in chronically evaluative real-world environments. The authors tested whether psychological threat, which undermines academic performance, could be lessened by having students reaffirm their sense of personal adequacy or “self-integrity.” The intervention, a brief in-class writing assignment, significantly improved the grades of African American students and reduced the racial achievement gap by 40%. These results suggest that the racial achievement gap, a major social concern in the United States, could be ameliorated by the use of timely and targeted social-psychological interventions.
(Science, 313, 1307-1310.)

This chapter argues that psychology can make a central contribution to the field of law by clarifying how our system can facilitate public compliance with law. The authors advocate for psychological jurisprudence, or the application of psychological knowledge to core issues within the law. Our legal conception of the person, the article asserts, should come from an empirical perspective, drawing on research about people’s motivation, cognition, and decision making.
(In J. R. P. Ogloff (Ed.), Taking psychology and law into the twenty-first century. New York: Kluwer Academic, Plenum Publishers.)

This article offers a situationist theory for why Supreme Court Justices, such as Harry Blackmun, Lewis Powell, Anthony Kennedy, and Sandra Day O’Connor, have drifted to the left after their appointments, particularly on issues touching upon individual rights. It specifically identifies three situational factors that influence Supreme Court justices: the unusual array of forces that sets judging apart from other lawyerly occupations such as legislating or advocacy; the particular background and experiences of individual judges; and the forces external to the court—including think tanks, the media, the academy, and public attitudes—that appear to strongly influence the judicial decision making process.
(Boston Review, 31.)

This article takes a critical stance on the long (and continuing) history of disparity and inequality in America by looking at the ways we have justified and explained our unjust realities. The article uses public reactions to Hurricane Katrina to show how overlapping and largely camouflaged blame frames obscured and confused the public discourse regarding Katrina. The authors argue that only by understanding the sources and effects of blame frames can we ever hope to end oppression and thereby live according to the fundamental values we espouse.
(Harvard Civil Rights-Civil Liberties Law Review, 41, 413-480.)

An important lesson of behavioralist research is that individuals' perceptions and preferences are highly manipulable. This article presents empirical evidence of market manipulation, a previously unrecognized source of market failure. It surveys extensive qualitative and quantitative marketing research and consumer behavioral studies, reviews common practices in settings such as gas stations and supermarkets, and examines environmentally oriented and fear-based advertising. The article then focuses on the industry that has most depended upon market manipulation: the cigarette industry. Through decades of sophisticated marketing and public relations efforts, cigarette manufacturers have heightened consumer demand and lowered consumer risk perceptions. Such market manipulation may justify moving to enterprise liability, the regime advocated by the first generation of product liability scholars.
(Harvard Law Review, 112, 1420-1572.)

This article is dedicated to retiring the now-dominant "rational actor" model of human agency and replacing it with a new conception of human agency that the authors call the "situational character." It explores the fields of social, cognitive, behavioral, and neural psychology in pursuit of a vision of the human actor that is grounded in social science. Having explicated that conception, the article then outlines some of the basic implications of it for law, legal theory, and social policy. It also analyzes conventional legal scholars' arguments for ignoring the lessons of social science in their treatment of human agency. Finally, the authors briefly look beyond the human actor itself to consider some of the fairly obvious - but generally ignored - realities of our present social situation, and some of their implications for common policy presumptions.
(Georgetown Law Journal, 93, 1-179.)

This article offers a situationist critique of the traditional law and economics model based upon what social psychology has discovered about the human animal. specifically, the authors approach two interrelated puzzles in the traditional model. First, they ask why there has not been an economic analysis of the economic analysis of law; second, they go on to consider why it is that a theory that is the subject of so much skepticism and criticism among legal academics, and that seems to have been rejected by huge segments of that community, has become the dominant theoretical paradigm for understanding and assessing law and policy.
(University of Pennsylvania Law Review, 152, 129-346.)

Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today. Many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. By recognizing that an employer may honestly believe the reasons it offers for a decision, but may nonetheless have been motivated by racial or gender bias in making the decision, the law offers significant possibilities for challenging instances of unconscious discrimination.
(Alabama Law Review, 56, 741-791.)

This article investigates whether the central moral directives of liberalism are ones citizens can—as a matter of human cognition—be expected to honor. Liberalism obliges the state to disclaim a moral orthodoxy and instead premise legal obligation on secular grounds accessible to persons of diverse cultural persuasions. Studies of the phenomenon of cultural cognition, however, suggest that individuals naturally impute socially harmful consequences to behavior that defies their moral norms. As a result, they are impelled to repress morally deviant behavior even when they honestly perceive themselves to be motivated only by the secular good of harm prevention. This article identifies how this dynamic transforms seemingly instrumental debates over environmental regulation, public health, economic policy, and crime control into polarizing forms of illiberal status competition.
(Stanford Law Review, 60, 115-154.)

People disagree about the empirical dimensions of various public policy issues. Were either the indeterminacy of scientific evidence or the uneven dissemination of convincing data responsible, we would expect divergent beliefs to be distributed almost randomly across the population, and beliefs about seemingly unrelated questions to be relatively independent of one another. But this is not the case: factual disagreement is highly polarized across distinct social groups. Moreover, factual beliefs highly correlate across discrete and disparate issues. What explains these patterns? The answer is the phenomenon of cultural cognition. This article discusses original empirical evidence showing that individuals form factual beliefs that reflect and reinforce competing cultural orientations—hierarchic and egalitarian, individualistic and communitarian. It also identifies the social and psychological mechanisms through which these orientations shape factual beliefs and discusses the implications of this phenomenon for enlightened democratic decision-making.
(Yale Law and Policy Review, 24, 149-172.)

Why do white men fear various risks less than women and minorities? Known as the "white male effect," this pattern is well documented but poorly understood. The authors propose a new explanation: identity-protective cognition. Putting work on the cultural theory of risk together with work on motivated cognition in social psychology suggests that individuals selectively credit and dismiss asserted dangers in a manner supportive of their preferred form of social organization. The article presents the results of an 1,800-person study that suggests cultural-identity-protective cognition, and also discusses the implication of these findings for risk regulation and communication.
(Journal of Empirical Legal Studies, 4(3), 465-505.)

Cultural cognition refers to the disposition to conform one's beliefs about societal risks to one's preferences for how society should be organized. Based on surveys and experiments involving some 5,000 Americans, the Second National Risk and Culture Study presents empirical evidence of the effect of this dynamic in generating conflict about global warming, school shootings, domestic terrorism, nanotechnology, and the mandatory vaccination of school-age girls against HPV, among other issues. The Study also presents evidence of risk-communication strategies that counteract cultural cognition.
(Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017189)

In Scott v. Harris, the Supreme Court held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it. We showed the video to a diverse sample of 1,350 Americans. Overall a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities.
(Harvard Law Review, 122, forthcoming)

Recent social cognition research - a mixture of social psychology, cognitive psychology, and cognitive neuroscience - has provided stunning results that measure our implicit bias against various social categories. In particular, they reveal that most of us have implicit biases in the form of negative beliefs (stereotypes) and attitudes (prejudice) against racial minorities. This is notwithstanding sincere self-reports to the contrary. These implicit biases have been demonstrated to have real-world consequence - in how we interpret actions, perform on exams, interact with others, and even shoot a gun. The first half of this article imports this remarkable science into the law reviews and sets out a broad intellectual agenda to explore its implications. The second half explores where implicit bias comes from, and focuses on vicarious experiences with racial others mediated through electronic communications.
(Harvard Law Review, 118, 1489-1593.)

Drawing on recent findings in implicit social cognition (ISC), and applying a legal methodology called behavioral realism, the authors advance four arguments. First, evidence of pervasive implicit bias allows us to avoid problematic backward- and forward-looking justifications for affirmative action and instead focus on addressing discrimination here and now. Second, evidence of biased interpretation and stereotype threat suggests that merit is currently being mismeasured, and that more accurate measurement processes should be adopted. Third, evidence of the malleability of implicit bias suggests interventions different from the traditional social contact hypothesis, such as deploying debiasing agents. Finally, instead of an arbitrary deadline, a better terminus for various affirmative action programs is when our society reaches alignment between explicit normative commit
ments and measures of implicit bias.
(California Law Review, 94, 1063-1118.)

Drawing on recent findings in implicit social cognition, and applying a legal methodology called behavioral realism, the authors advance four arguments. First, evidence of pervasive implicit bias allows us to avoid problematic backward- and forward-looking justifications for affirmative action and instead focus on addressing discrimination here and now. Second, evidence of biased interpretation and stereotype threat suggests that merit is currently being mismeasured, and that more accurate measurement processes should be adopted. Third, evidence of the malleability of implicit bias suggests interventions different from the traditional social contact hypothesis, such as deploying debiasing agents. Finally, instead of an arbitrary deadline, a better terminus for affirmative action programs is when our society reaches alignment between explicit normative commitments and measures of implicit bias.
(California Law Review, 94, 1063-1118.)

Integrating theories of cognitive dissonance, system justification, and dynamic thought systems, the authors hypothesized that people would engage in anticipatory rationalization of sociopolitical outcomes for which they were not responsible. In two studies, the authors found that under conditions evoking high motivational involvement, people judged unfavorable as well as favorable outcomes to be more desirable as their perceived likelihood increased.
(Personality and Social Psychology Bulletin, 28(9), 1300-1312.)

In this article, the author provides a social-psychological explanation for why inside counsel (in-house or corporate counsel) may compromise their ethical obligations or professional duties and acquiesce in managerial misconduct, sometimes amounting to fraud. This social-psychological explanation focuses on the situation that inside counsel finds herself in (as mere employee, as faithful agent, and as team-player), as well as the cognition, incorporating recent psychology studies and recent theories (e.g., dual processing model of cognition) on how the human mind might resolve ethical dilemmas.
(Fordham Law Review, 74, 983-1077.)

Applying insights from cognitive psychology, this article examines the assumptions about human inference embedded in current disparate treatment theory and anti-discrimination law, and questions the premise that discrimination necessarily manifests intent or motive. She suggests that a large number of biased employment decisions result not from discriminatory motivation, as current legal models presume, but from a variety of unintentional categorization-related judgment errors characterizing normal human cognitive functioning. Searching for solutions, the author explores the legal and policy implications of a cognitive process approach to discrimination and equal employment opportunity and evaluates a variety of modifications to existing equal employment opportunity law.
(Stanford Law Review, 47, 1161-1248.)

Experimental psychology has provided substantial evidence that the human mind can operate in automatic, uncontrollable fashion as well as without conscious awareness of its workings and the sources of influence on it. With methods available to measure implicit or less conscious aspects of social cognition, especially group-specific attitudes and stereotypes, several aspects of the nature of implicit social cognition are now regarded as well established. Such results primarily include the pervasive and robust implicit favoritism for one's own groups and socially dominant groups, the dissociation between implicit and explicit social cognition, the ability of both to predict behavior, the greater impact of the former on certain discriminatory behaviors, and the sensitivity of seemingly implicit thoughts, feelings, and behaviors to change in response to situational features and experience.
(Annual Review of Law and Social Science, 3, 427-451.)

This Article ponders the role of situational pressures, fundamental attribution errors, and legal frameworks in how professional sports actors respond to the threat and occurrence of calamities. These phenomena beg an obvious question for legal scholars: Can the law be used to mollify the cognitive distortions and situational influences affecting professional sports actors, and can it direct them towards socially-preferred behavior?
(Willamette Law Review, 42, 585-637.)

This article examines required genetic testing of NBA players from a situationist perspective. Such testing of NBA appears consistent with a broader and largely deleterious agenda by the NBA to control players. The NBA's capacity to do so largely rests in its adroit manipulation of the situational influences that influence fans and media. For instance, because of unappreciated cognitive biases, fans and media often embrace distorted views of player's maturity, arrest propensity, and collegiate experiences. As a result, NBA players tend to be wrongly identified as immature, out-of-control, and hopelessly uneducated. In turn, the NBA has designed policies that ostensibly remedy these feigned problems while less-detectably transferring autonomy from player to league.
(University of Pennsylvania Journal of Labor and Employment Law, 8, 819-860.)

Ideologies that underlie concepts of ethnocentrism, authoritarianism, system justification, social dominance, and morality shape minds in sufficiently deep ways to bring about (a) congruence between implicit and explicit preferences, and (b) a consistently greater preference for socially advantaged groups among political conservatives than liberals on both explicit and implicit measures. Data from large web samples and representative samples from the American National Election Studies (ANES) provide support for these and two additional results: (a) liberals show greater mean dissociation between explicit and implicit attitudes than conservatives, reporting more favorable attitudes toward the underprivileged groups than they demonstrate on implicit measures; and (b) over time, conservatives’ racial preferences converge on those of liberals, suggesting that where liberals are today, conservatives will be tomorrow.
(In J. T. Jost, A. C. Kay, & H. Thoridottir (Eds.), The social and psychological bases of ideology and system justification. Oxford: Oxford University Press.)

Important asymmetries between self-perception and social perception arise from the simple fact that other people’s actions, judgments, and priorities sometimes differ from one’s own. This leads people to see others as more susceptible to a host of cognitive and motivational biases. Although this blind spot regarding one’s own biases may serve familiar self-enhancement motives, it is also a product of the phenomenological stance of naive realism. This article reviews evidence of this asymmetry, its underlying causes and its relation to other psychological phenomena.
(Psychological Review, 111, 781-799.)

People see themselves as less susceptible to bias than others. We show that a source of this bias blind spot involves the value that people place, and believe they should place, on introspective information (relative to behavioral information) when assessing bias in themselves versus others. Participants considered introspective information more than behavioral information for assessing bias in themselves, but not others. This divergence did not arise simply from diVerences in introspective access. The blind spot persisted when observers had access to the introspections of the actor whose bias they judged. And, participants claimed that they, but not their peers, should rely on introspections when making self-assessments of bias. Only after being educated about the importance of nonconscious processes in guiding judgment and action—and thereby about the fallibility of introspection—did participants cease denying their relative susceptibility to bias.
(Journal of Experimental Social Psychology, 43, 565-578.)

Perseverance in the face of group-based stereotypes about one’s limitations poses a daunting challenge. This article reports on three studies that explore women’s bifurcation of feminine identity as a response to threatening stereotypes in the domain of mathematics. This article discusses the practical and theoretical implications of the results, including ways that members of the stereotyped group can satisfy their various identity needs.
(Journal of Experimental Social Psychology, 40, 152-168.)

This article argues that traditional descriptions of legal decision making fall short in their explanation of the ways in which jurors and other factfinders make decisions in civil cases. This article offers social psychological research that suggests legal decision makers may be motivated to pursue a variety of goals in addition to the traditional goals of determining fault, compensating plaintiffs, and deterring defendants. By considering these varied goals and the psychological interplay among them, this article provides a richer picture of the cognitive processing of legal decision making in civil cases.
(Brooklyn Law Review, 68, 1121-1158.)

By offering research that suggests potential offenders do not know the law and do not make rational choices, this article questions the possibility of deterring crime through the manipulation of criminal laws and penalties. Instead, the authors also offer a more realistic view of deterrence, including the particular conditions under which it may work and the possibilities for improving its performance.
(Georgetown Law Journal, 91, 949-1002.)

The authors explore instant assimilation—the immediate incorporation of new information into existing beliefs—and the concurrent formation of implicit reactions and explicit judgments. Their research focuses on a brief vignette described generous and stringent welfare plans, one proposed by Democrats and one by Republicans. While Independents’ evaluations were influenced by only the content of the plans, Democrat and Republican participants were influenced by policy content and by which party proposed the plan, especially implicitly. For all participants, immediately formed implicit preferences mediated the relationship between ideology and plan details in explaining self-reported judgments. This articles suggests that new information can automatically assimilate to pre-existing beliefs, immediately form implicit attitudes, and subsequently influence explicit judgment.
(Available at http://projectimplicit.net/nosek/papers/)

This article analyzes the childhood obesity epidemic, and junk food advertising to children, from the perspective of "critical realism," an approach to legal theory that seeks to incorporate important insights from social psychology and other social sciences. It argues that the central conception of human agency implicit in the Supreme Court's commercial speech jurisprudence rests on intuitively grounded presumptions that are false, and which threaten to leave consumers vulnerable to manipulation through advertising in ways consumers do not anticipate or appreciate. However, the article explains, a second, more accurate, conception of human agency, which takes into account non-intuitive realities concerning the sources of human behavior, is also evident in the Court's commercial speech jurisprudence; by developing and exploiting this second conception, a qualified ban on junk food advertising can be seen as normatively justifiable and constitutionally viable.
(Loyola of Los Angeles Law Review, 507, 506-601.)

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