The following two articles by Hanson and Yosifon were recently posted to SSRN:
Santa Clara Univ. Legal Studies Research Paper No. 06-17
Harvard Public Law Working Paper No. 08-32
JON D. HANSON, Harvard Law School
DAVID G. YOSIFON, Santa Clara University - School of Law
This article introduces an innovative approach to legal theory which the authors call "critical realism." The approach endeavors to integrate insights of social psychology, and affiliated social sciences, together with the methods of conventional economic analysis, as well as traditional methods of legal inquiry. Canvassing robust findings from across the behavioral sciences, the authors articulate a framework for thinking about human agency in legal analysis that the authors call "the situational character," a conception which is meant to provide a more scientifically grounded understanding of the sources of human behavior and decision-making then is provided by the "rational actor" model that has become so prominent in legal scholarship through the influence of the law and economics movement. The authors further explore the extend to which market-actors, such as corporations, have a stake in promoting to consumers and to policymakers the rational-actor model of human agency, even as market pressures are likely to lead such market-actors to understand and exploit the reality of the "situational character." The authors refer to such efforts on the part of market-actors as "deep capture," an extension of the conception of administrative "capture" long understood by public choice theorists. The authors review several historical episodes and scholarly debates through the innovative framework that their article provides, and suggest many avenues of future research and development of the framework.
"The Situational Character: A Critical Realist Perspective on the Human Animal"
Georgetown Law Journal, Vol. 93, No. 1, 2004Santa Clara Univ. Legal Studies Research Paper No. 06-19
Harvard Public Law Working Paper No. 08-33
This Article is dedicated to retiring the now-dominant "rational actor" model of human agency, together with its numerous "dispositionist" cohorts, and replacing them with a new conception of human agency that the authors call the "situational character." This is a key installment of a larger project recently introduced in an article titled The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 U. Pa. L. Rev. 129 (2003). That introductory article adumbrated, often in broad stroke, the central premises and some basic conclusions of a new approach to legal theory and policy analysis. This Article provides a more complete version of one of those central premises by elucidating a more realistic conception of the human animal than is currently embraced in legal theory. The Article begins with a short introduction to the larger project, and describes the central place that a realist conception of the human actor plays in that project. It then explores several bodies of literature within 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 then analyzes conventional legal scholars', particularly legal economists', arguments for ignoring the lessons of social science in their treatment of human agency. As part of that analysis, this Article describes why recent efforts to incorporate some psychological findings - the sort of work that is often labeled "behavioralist" - have been inadequate. 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. As subsequent work will make clear, this new, situationist conception of the human animal is as important to a realist account of law and legal theory as the dispositionist conception has been to now-dominant accounts.
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