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Legal Academic Backlash: The Response of Legal Theorists to Situationist Insights

Adam Benforado

Drexel University Kline School of Law

Jon D. Hanson

Harvard Law School

August 11, 2008

Emory Law Journal, Vol. 57, No. 5, 2008
Harvard Public Law Working Paper No. 08-45

This article is the third of a multipart series. The first part, "The Great Attributional Divide," 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.

The second part, "Naive Cynicism," 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, naive 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. Naive cynicism is thus critically important to explaining how and why certain legal policies manage to carry the day.

Naive cynicism often takes the form of a backlash against situationism that involves an affirmation of existing dispositionist notions and an assault on (1) the situationist attributions themselves; (2) the individuals, institutions, and groups from which the situationist attributions appear to emanate; and (3) the individuals whose conduct has been situationalized. If one were to boil down those factors to one simple naive-cynicism-promoting frame for minimizing situationist ideas, it would be something like this: Unreasonable outgroup members are attacking us, our beliefs, and the things we value.

We predict that naive cynicism is a pervasive dynamic that shapes policy debates big and small. We argue that it can operate at a particular moment or over long periods of time, and that it is embraced and encouraged by both elite knowledge-producers and the average person on the street.

This Article examines the reactions of prominent academics to situationist scholarship. As we argue in this Article, naive cynicism, operating as we predict above, has played a significant role in retarding the growth and influence of more accurate situationist insights of social psychology and related fields within the dominant legal theoretical frameworks of the last half-century.

Number of Pages in PDF File: 61

Keywords: social psychology, social cognition, naive cynicism, naive realism, legal theory, policy debates, economic behavioralism

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Date posted: August 11, 2008 ; Last revised: February 27, 2011

Suggested Citation

Benforado, Adam and Hanson, Jon D., Legal Academic Backlash: The Response of Legal Theorists to Situationist Insights (August 11, 2008). Emory Law Journal, Vol. 57, No. 5, 2008; Harvard Public Law Working Paper No. 08-45. Available at SSRN: https://ssrn.com/abstract=1215879

Contact Information

Adam Benforado
Drexel University Kline School of Law ( email )
3320 Market Street
Philadelphia, PA 19104
United States

Jon D. Hanson (Contact Author)
Harvard Law School ( email )
1563 Massachusetts
Griswold 403
Cambridge, MA 02138
United States
607-496-5207 (Phone)
HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=25

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