The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture

Abstract

This article introduces an innovative approach to legal theory which the authors call "critical realism." The approach endeavors to integrate insights of social psychology, and affiliated social sciences, together with the methods of conventional economic analysis, as well as traditional methods of legal inquiry. Canvassing robust findings from across the behavioral sciences, the authors articulate a framework for thinking about human agency in legal analysis that the authors call "the situational character," a conception which is meant to provide a more scientifically grounded understanding of the sources of human behavior and decision-making then is provided by the "rational actor" model that has become so prominent in legal scholarship through the influence of the law and economics movement. The authors further explore the extend to which market-actors, such as corporations, have a stake in promoting to consumers and to policymakers the rational-actor model of human agency, even as market pressures are likely to lead such market-actors to understand and exploit the reality of the "situational character." The authors refer to such efforts on the part of market-actors as "deep capture," an extension of the conception of administrative "capture" long understood by public choice theorists. The authors review several historical episodes and scholarly debates through the innovative framework that their article provides, and suggest many avenues of future research and development of the framework.