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Unformatted text preview: John Hanson, Tor ts, Fall 2009 ty lat er analysis; say that it is as though judges making common law were actually engaged in economic efficiency analysis Situationism We are moved by complex forces within and around us. We tell ourselves a story of what is moving us, but this often conceals a complex set of motivations that shape the attributions underlying our rationalizations. We also tend to miss the situational forces that move other people, instead attributing behavior entirely to their disposition. We make the same mistake with tort law, attributing its evolution to doctrinal evolution rather than historical complexity and pitched battles by powerful forces in society to shape, manipulate, and benefit from these changes [which often have significant distributional outcomes that these powerful actors seek to disguise or elide]. Motives Attributional Styles Ideology Concerned with bridling the gap between what actually moves us and what we imagine moves us; rejects the dominant, commonsense account of human behavior and replaces it with one drawn from social sciences. - Legal theory should be based on the most realistic account available of the human - Look to social sciences for insight; and to history for lessons of what forces explain the existence of, and changes in, tort law [as opposed to those mechanisms of changed proposed internally]- We easily see disposition where not exists because of subconscious knowledge structures and implicit motivations with which we make sense of the world; esp. inferences re: motives and intentions these schemas are often misleading (mind-- Premised on the social scientific insight that the nave 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. - We are buffeted and blown about by hard-to-see situational influences around and within us; at the same time we chalk up our behavior to identity-revealing choice - We start with conclusions reached for complex reasons and then rationalize or justify them in terms of a story that sounds rational to ourselves [ideology, efficiency, freedom, etc.] Three main errors : 1. We treat tort law like a person (pretend it has disposition discoverable via the case method) 2. Treat people as though actions are only the consequences of thinking, preferences, and will 3. Presume that our attributions of causation, responsibility, and blame (and underlying assessments of volition, control, intent, and motive) are accurate and based in reality. Situationist approaches requires resistance to inference of disposition and the development of cognitive muscle to see the situation that moves people, tort law, and our attributions 1- Four overlapping situational forces are especially influential 1) Simplicity : We are motivated to accept explanations and attributions that are easily managed within existing knowledge structures and provide cognitive closure, even at cost...
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This document was uploaded on 01/31/2011.
- Fall '09
- Tort Law