Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory
Ron C. Chen
U.S. 2nd Circuit
Jon D. Hanson
Harvard Law School
Southern California Law Review, Vol. 77, p. 1103, 2004
Harvard Public Law Working Paper No. 08-43
This Article focuses primarily on one slice of social psychology and social cognition research, namely the vast and vibrant field examining the integral role that knowledge structures play in the way we attend to, remember, and draw inferences about information we encounter and, more generally, the way we make sense of our world.
The human system of processing information is, in many cases, an efficient means of understanding our worlds and ourselves. Classification of people, objects, and other stimuli is often both indispensable and ineluctable. Still, as social psychologists have demonstrated, "virtually any of the properties of schematic functioning that are useful under some circumstances will be liabilities under others." The categories and schemas that operate, usually automatically, influence all aspects of information processing - from what information we focus on, to how we encode that information, to which features of that information we later retrieve and remember, and to how we draw inferences and solve problems based on that information. Given the unconscious and biasing influence of our schemas, combined with the fact that our schemas themselves will often reflect our unconscious motives, we should be mindful, even distrustful, of our schemas and the conclusions that they generate. These effects, the processes that drive them, and the biases they engender are the primary subject of this Article. A central goal is to offer a broad understanding of how individuals utilize categories, schemas, and scripts to help make sense of their worlds. In doing so, we serve another main objective: to provide a comprehensive (yet manageable) synthesis of a vast body of social psychology literature. This overview should transform how we make sense of our laws and legal-theoretic world.
Part II of this Article is devoted to describing the significance of knowledge structures. Part III briefly summarizes how legal scholars have thus far applied insights about knowledge structures and argues that their most profound implications have yet to be appreciated. Part III then provides a set of predictions regarding the influence of knowledge structures and the biases they likely engender for legal theories and laws.
Number of Pages in PDF File: 153
Keywords: social psychology, social cognition, knowledge structures, categories, schemas, primacy, priming, affect, implicit motivations, legal realism, deep capture, illusion of law
Date posted: August 20, 2008 ; Last revised: November 11, 2008