BY JEFF DUBNER
On Saturday, Harvard Law hosted the launch of a new initiative uniting legal scholars and social psychologists as the Project on Law and Mind Sciences (PLMS) held its first conference. PLMS seeks to apply the findings of social science to legal processes, bringing into the law a human element that many find lacking from the dominant analytical approaches.
The new organization is the brainchild of Professor Jon Hanson, who has argued that legal institutions should be informed by a “situationist” account of human behavior that acknowledges the countless influences that shape individual preferences and undermine the “dispositionist” model of law and economics. “The conception of the human being that we have in law,” Hanson believes, “is not accurate.” Through the conference, future events, and the Project’s blog, The Situationist, and website (both accessible at www.lawandmind.com and both co-founded by Professor Michael McCann of Mississippi College School of Law), PLMS hopes to make that conception more realistic.
The conference featured presentations by several leading social psychologists and responses from members of the Harvard Law faculty. The speakers’ research explored various components of how individuals form impressions and opinions. Princeton’s John Darley began the conference by describing how judgments of what constitutes justice are in many cases “intuitive products,” rather than carefully reasoned assessments. These intuitive conclusions often prevail over the slower, more deliberative reasoned judgments. “These judgments are based on a just-deserts reaction rather than a legislative, deterrence reaction,” Darley has found.
Darley argued that the legal code should in many regards model this aspect of public morality, as a way of encouraging respect for and compliance with the law. Similarly, his co-panelist Tom Tyler, of NYU, argued that legitimacy and morality are more important factors than fear of sanction in encouraging law-abiding behavior. “Deterrence has a very small effect on compliance with the law,” according to Tyler. Tyler’s research in corporate governance and military practice support this notion that increasing the appearance of fair decision-making processes can contribute to an effective system of laws, perhaps more so than severe punishment.
Stanford’s Lawrence Bobo looked at one reason that punitive criminal policy receives so much support despite its relative inefficacy: the “large and consistent impact of racial resentment.” His studies have found that prejudice is more predictive of support for such policies than do fear of crime or the actual local crime rates.
Bobo’s colleague at Stanford, Jennifer Eberhardt, explained how this prejudice may implicitly influence policy preferences and causal attributions, even in the face of the widespread belief that discrimination is an issue of the past. Race “influences us in unsuspected and undesired ways despite our wish to be egalitarian,” according to Eberhardt. Her research has shown how “subliminal priming”-flashing images of black males too quickly for conscious recognition-increases the speed with which test subjects recognize weapons and other images related to crime. Her work on lineups and sentencing suggests that “black defendants are punished in proportion to the blackness of their physical features.” Her findings reveal an unpleasant but convincing role for implicit prejudices in forming, among other things, the intuitive justice judgments described by Darley. Professor Charles Ogletree, commenting on the application of her research, said, “these presentations were among the most depressing things I’ve experienced in my life, and I applaud you.”
In addition to Hanson and Ogletree, Duncan Kennedy, Kenneth Mack, Martha Minow, and Neil Vidmar (of Duke Law School) all brought their perspectives to the conference and discussed the obstacles to bringing social science insights into the law and the need for such an effort. “There really is no unconscious in the legal system, not to mention no implicit attitudes,” noted Minow. Instead, our doctrine and legal practices have “encased as if it were true a set of 19th-century assumptions” that poorly fit the reality of human behavior. Although at times social science research has influenced the path of the law-such as the “doll test,” famously used in Brown v. Board of Education to demonstrate how segregation instilled a sense of inferiority in black children and captured in video on The Situationist blog-such occasions have been the exception rather than the rule. There are “institutional barriers … against allowing some of these messages in the door,” said Darley.
Hanson and NYU Professor John Jost each addressed some of these barriers. Jost, graciously spending much of his wedding anniversary in Austin North, detailed his research on “system justification”: the tendency that all people have to “defend, bolster, and rationalize the systems that affect.” For example, study participants are more likely to find reports of research “convincing” and “well-conducted” when their conclusions support the American Dream than when they oppose it. In addition to depressing rates of system-implicating claims such as domestic violence and discrimination, this habit keeps out social science viewpoints that may challenge the preeminence of individual responsibility and autonomy.
Hanson looked at how the conception of individuals as choosers with stable and self-made preferences both crowds out situationist, social-science findings and justifies laws that are insensitive to the reality of how people function. The common conceit that people are wholly responsible for their choices and the resultant outcomes, Hanson argues, is belied by the great effort expended on influencing and channeling those choices.
The project will continue next month with an appearance on campus by Phil Zimbardo, the creator of the chilling Stanford Prison Experiment in 1971. Zimbardo’s experiment divided 24 psychologically sound college students at random into “prisoners” and “guards” for a two-week mock incarceration; the experiment was cut short after six days due to its traumatic effects on the prisoners. Zimbardo will speak in early April.