The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy

Adam Benforado & Jon Hanson

There is a real, meaningful divide in America—a great rift that extends across debates. As we explore in this Article, the divide is based on two attributional approaches: the dispositionist approach, which explains outcomes and behavior with reference to people’s dispositions (i.e., personalities, preferences, and the like), and the situationist approach, which bases attributions of causation and responsibility on unseen or unappreciated influences within us and around us. Those different methods of constructing causal stories and assigning fault not only color individual issues from gay marriage to welfare and from abortion to social security reform, but also help define the walls of the broader liberal-conservative crevasse.

Marking out its contours is vitally important because law is centrally concerned with making attributions. At its foundation, most law seeks to answer three central questions: (1) What caused an outcome?; (2) Who or what was responsible?; and (3) Is anyone to blame? A legal education trains students in the categories and distinctions of law that help sort out what counts as a harm and what fines, punishments, rewards, and compensations people should receive based on those attributions in different settings. Moreover, attributions matter to legal scholars and lawmakers because, if legal policy prescriptions are based on the wrong attributions, they are unlikely to solve the problems that they are designed to address and, indeed, may make matters worse. Thus, lawmakers and legal theorists should be, and often are, very concerned with determining whether certain attributions are more likely to be correct and, if so, which attributions those are.

As it happens, social scientists have been working hard on those very questions for many decades and have come to some surprising conclusions. Nonetheless, their research has yet to be thoroughly taken up by legal academics, and one purpose of the critical realist project, of which this Article is a component, is to encourage and expedite this process.

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Naive Cynicism: Maintaining False Perceptions in Policy Debates

Adam Benforado & Jon Hanson

Five million years after splitting with our great ape cousins, we humans ought to know ourselves fairly well. Five million years is a lot of time for observation and introspection. It is a lot of time to think about what makes us tick—what moves us to feel Y or do X; what coiled springs propel us forward; what carefully orchestrated counterweights provide the rhythm to our steady march. Yet, despite our apparent successes—our proficiency at building machines to mimic hands and map the brain, our ability to compose poetic verse exploring the human condition, and, lest we forget, our unparalleled talents at casting reality-based television programs—it turns out that we remain rather poor at constructing accurate explanations for our behavior.

Perhaps, because of the remarkable advances we have made in our learning and the evident distinctions between ourselves and those farther down the evolutionary tree, we believe our causal attributions to be, more or less, spot on. We, the inhabitants of the canopy, have the elevated perspective to see things as they really are.

Confoundingly, however, we do not all see the same things. Ours is an aerie of competing perceptions and worldviews, which leads to the realization that some of us, despite feeling certain in the clarity of our vision, do not perceive matters correctly.

The fact that incompatible belief systems manage to coexist forces us to consider two difficult questions: which perceived truth, if any, is closer to the truth?; and, how do people persist in believing in comparative untruths?

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