Behavioral Realism

Definition

Behavioral realism is a school of legal-social scientific thought that was launched approximately in 2005.  In concise, almost algorithmic terms, "behavioral realism" involves a simple three-step process:

First, identify advances in the mind and behavioral sciences that provide a more accurate model of human cognition and behavior. Second, compare that new model with the latent theories of human behavior and decision-making embedded within the law. These latent theories typically reflect "common sense" based on naïve psychological theories. Third, when the new model and the latent theories are discrepant, ask lawmakers and legal institutions to account for this disparity.   An accounting requires either altering the law to comport with more accurate models of thinking and behavior or providing a transparent explanation of "the prudential, economic, political, or religious reasons for retaining a less accurate and outdated view. [Kristin Lane, Jerry Kang, & Mahzarin Banaji, Implicit Social Cognition and the Law, 3 Annu. Rev. Law  Soc. Sci. 19.1-19.25 (2007).]

Etymology / Intellectual History

The notion of "behavioral realism" was first sketched out in a Harvard Law Review article in 2005 by Prof. Jerry Kang.  He wrote:

The upshot is a call for a new school of thought called "behavioral realism," in which legal analysts, social cognitionists (with emphases in implicit bias and stereotype threat literatures), evolutionary psychologists, neurobiologists, computer scientists, political scientists, and behavioral (law and) economists cooperate to deepen our understanding of human behavior generally and racial mechanics specifically, with an eye toward practical solutions. [Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1591-92 (2005).]

In that article, he provided the origins of that term: 

Indeed, it is time for a new 'behavioral realist' approach, which draws on the traditions of legal realism and behavioral science. This term was recently coined in an informal discussion among Mahzarin Banaji, Gary Blasi, Anthony Greenwald, John Jost, Linda Hamilton Krieger, and me to name an ongoing collaboration of legal academics and social cognitionists that seeks to apply the best model of human behavior that science has made available to questions of law and policy.  [Id. at 1494 n.21.] 

In a humorous exchange with Harvard Law Review editors on how to correctly "cite" this naming event, an editor suggested the following as a joke:

See Bunch of Professors, How to Coin Terms and Influence People, Informal Discussion over Beers and Wings at John Harvard's Brewhouse (discussing the need for a group-label with academic street-cred).

Actually, the final agreement on a name for the incipient intellectual movement happened over a lunch in Cambridge, MA at the Bombay Club, not at the Brewhouse. 

The following year, in 2006, the California Law Review published a symposium issue on "behavioral realism."  In that volume, numerous author teams (pairing across social scientific and legal disciplinary boundaries) fleshed out the approach. 

2006 California Law Review Symposium

In that Symposium, Linda Hamilton Krieger and Susan Fiske explained:

This new principle, which the contributors to this Symposium call "behavioral realism," holds that as judges develop and elaborate substantive legal theories, they should guard against basing their analyses on inaccurate conceptions of relevant, real world phenomena. In this respect, behavioral realism echoes naturalizing epistemology, which emerged in the late 1960s with the work of W.V. Quine and has since made preliminary forays into jurisprudence and evidence scholarship.

...

Behavioral realism in law stands for the proposition that legal theories, no less than their epistemological counterparts, both can and should be naturalizing. Behavioral realism, like naturalism, stands for the proposition that judges should not generate the behavioral theories sometimes used in the construction or justification of legal doctrine through a solely conceptual, a priori process. To the extent that legal doctrines rely on stated or unstated theories about the nature of real world phenomena, behavioral realism argues, those theories should remain consistent with advances in relevant fields of empirical inquiry. And where the real world phenomena relevant to a particular area of law concern human social perception, motivation, and judgment, the relevant domains of empirical inquiry with which legal theories should remain consistent include cognitive social psychology and the related social sciences.

...

In the context of antidiscrimination law, behavioral realism stands for the proposition that judicial models - of what discrimination is, what causes it to occur, how it can be prevented, and how its presence or absence can best be discerned in particular cases - should be periodically revisited and adjusted so as to remain continuous with progress in psychological science. [Linda Hamilton Krieger & Susan Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Cal. L. Rev. 997, 1000-01 (2006)]

As Jerry Kang and Mahzarin Banaji described the project in their contribution to the Symposium:

The methodology of behavioral realism forces the law to confront an increasingly accurate description of human decision making and behavior, as provided by the social, biological, and physical sciences. Behavioral realism identifies naive theories of human behavior latent in the law and legal institutions. It then juxtaposes these theories against the best scientific knowledge available to expose gaps between assumptions embedded in law and reality described by science. When behavioral realism identifies a substantial gap, the law should be changed to comport with science.' If legal actors and policy makers decline to revise the law, they should act transparently and provide the prudential, economic, political, or religious reasons for retaining a less accurate and outdated view.  [Jerry Kang & Mahzarin Banaji, Fair Measures: A Behavioral Realist Revision of Affirmative Action, 94 Calif. L. Rev. 1063, 1064-65 (2006).]

Their views were summarized succinctly in a 2007 chapter in the Annual Review of Law and Social Science, quoted at the beginning of this encyclopedia entry.  

Comparison to "Critical Realism" (a.k.a. "situationism")

As has been pointed out, behavioral realism has many similarities with "critical realism" advocated by path-breaking work by Prof. Jon Hanson (Harvard Law School) and his numerous co-authors.   The "critical realism" idea was initially laid out in a 217 page article in the Penn. Law Review in 2003.  [See Jon Hanson & David Yosifon, The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152 U. Penn. L. Rev. 129 (2003)]  After describing the social psychological tendency toward dispositionism and the "fundamental attribution error" (FAE), Hanson and Yosifon suggested a "critical realism" approach, with the following tenets:

First, we--scholars and non-scholars alike--do not understand ourselves well, and certainly not as well as we think we do.

Second, the process of developing theories or models is a human one and is therefore subject to all sorts of biases and unperceived influences. It is largely for that reason that the impressions and models--informal and formal--that we legal scholars have created to help us understand ourselves tend to be flawed and self-serving.

Third, we cannot hope to make sense of our institutions or ourselves until we better understand how humans go about trying to make sense of themselves and their institutions. To develop a theory that is free of, or at least less distorted by, such biases, it is necessary to more closely examine both the process that yields those biases and the biases themselves.

And, fourth, a promising way to understand human cognition and behavior is to begin with those schools of thought and those institutions that are devoted to understanding human cognition and behavior. In this Article, we look primarily to one such source, social psychology, but we will also look briefly at what market practices can teach us about ourselves.

It is by bringing these principles together with the lessons taught by social psychology and markets that critical realism provides unique and, for many, unsettling insights about who we are, why we behave as we do, and what we should do about it, if anything. [Id. at 192.]

In a more recent 2008 articulation, critical realism is described as follows:

Critical realism (or situationism) understands that the naive psychology--that is, the highly simplified, affirming, and widely held model for understanding human thinking and behavior--undergirding our laws and institutions is largely inaccurate. The critical realist project seeks 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, works in the project rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world including social psychology, social cognition, and related disciplines-and the practices of institutions devoted to understanding, predicting, and influencing people's conduct-particularly market practices. [See Adam Benforado & Jon Hanson, The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy, 57 Emory L.J. 311, 315 n.3 (2008) (providing string cite of other works describing critical realism / situationism).]

With this description, the broad similarities in approach between behavioral realism and Hanson's "critical realism" are apparent:  in particular, both schools of thought are committed to bringing a more accurate model of human behavior and decisionmaking into the law and its institutions.  Both schools of thought reject stylized rational choice models of human decisionmaking and behavior as inconsistent with the scientific evidence.  Both schools of thought can be seen as contributing to the development of a larger exploration of the Law & the Mind Sciences.

Other Readings

For examples of behavioral realism, see, e.g.:

• Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1591-92 (2005).
• Symposium on Behavioral Realism, Volume 94, California Law Review, which includes:
• Christine Jolls & Cass Sunstein, The Law of Implicit Bias, 94 Calif. L. Rev. 969 (2006). 
• Linda Hamilton Krieger & Susan Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Cal. L. Rev. 997, 1000-01 (2006)
• Jerry Kang & Mahzarin Banaji, Fair Measures: A Behavioral Realist Revision of Affirmative Action, 94 Calif. L. Rev. 1063 (2006).
• Kristin Lane, Jerry Kang, & Mahzarin Banaji, Implicit Social Cognition and the Law, 3 Annu. Rev. Law  Soc. Sci. 19.1 (2007).
• Sung Hui Kim, Gatekeepers Inside Out, 411 Georgetown J. Leg. Ethics 21 (2008).