If you’ve wondered why there are differing perspectives about the factual basis of litigation, find the cord to your parachute and open your mind to Harvard Law’s Project on Law and Mind Sciences and situationism.
Situationism is premised on the social scientific insight that the naïve psychology—that is, the highly simplified, affirming, and widely held model for understanding human thinking and behavior—on which our laws and institutions are based is largely wrong. Situationists (including critical realists, behavioral realists, and related neo-realists) seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world—including social psychology, social cognition, cognitive neuroscience, and related disciplines…
SLABBED reflects a situationist perspective and even touches on the subject in posts such as:
- Have we seen the end of rational economics? Behavioral Economics explains the Scheme.
- We are all captives of the picture in our head… – so, whose head pictured honest-services fraud?
- Schema of Judge Lackey trumps any meme about his conduct
Recommended holiday (half-time) reading includes the blog post, On the Ethical Obligations of Lawyers: Are We Snakes? Are We Supposed to Be?, and the following readings from the Harvard Project Site:
- System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice
- Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory
- The Great Attributional Divide: How Divergent Views of Human Behavior are Shaping Legal Policy
After you’ve gained a sense of the dispositive nature of current legal theory, reflect on the examples Katrina litigation provides and consider how situationist thinking would have produced a different and more accurate result if applied these cases – and, in light of the recent 5th Circuit ruling in USA v Whitfield, Teel and Minor, check out A Recipe for Bias: An Empirical Look at the Interplay between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making.