Faculty Bibliography

Formally, the law purports to be based solely in reasoned analysis, devoid of ideological bias or unconscious influences. Judges claim to act as umpires applying the rules, not making them. They frame their decisions as straightforward applications of an established set of legal doctrines, principles, and mandates to a given set of facts. As scholars who carefully study the law understand, that frame is a façade, and the impression that the legal system projects is an illusion. Oliver Wendell Holmes, Jr. made a similar claim more than a century ago when he wrote that “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.” A century later, though, we are much closer to understanding the mechanisms responsible for the gap between the formal face of the law and the actual forces shaping it. Over the last decade or so, political scientists and legal academics have begun studying the linkages between ideologies, on one hand, and legal principles and policy outcomes on the other. During that same period, mind scientists have turned to understanding the psychological sources of ideology. This book is the first to bring many of the world’s experts on those topics together to examine the sometimes unsettling interactions between psychology, ideology and law.

This Article attempts to elucidate how our forebears, who were presumably as devoted to justice and liberty in their times as we are in ours, failed to condemn behaviors that are today widely viewed as patently oppressive, unfair, and even evil. Our argument unfolds in several Parts. Part II summarizes evidence from social psychology and related fields that helps explain how people who imagine themselves fair and just routinely blame the victims of inequities and excuse the perpetrators or passive observers through blame frames. Because humans crave justice, salient suffering or inequalities activate an injustice dissonance within us. Too often, we alleviate that dissonance, not by addressing the injustice, but by creating an illusion of justice through assumptions, arguments, or stereotypes about the blameworthiness of the victim. Part II then describes three powerful blame frames that have coexisted, while alternating in dominance, throughout American history: the God frame, the nature frame, and the choice frame. Part III elucidates through a few prominent examples how blame frames have operated throughout history to relieve our forebears' injustice dissonances and to perpetuate systems of oppression. The motivated attributions underlying those blame frames acted to legitimate laws, customs, and practices that today - with the benefit of hindsight and the lens of a new frame - are recognized as clearly unjust. Part IV argues that we suffer an equally great confusion today, but the injustices that haunt our generation are soothed less by the God and nature frames and more by conceptions of choice. Choicism attributes disparities to the preferences and character of individuals and their groups. Although choicism purports to be colorblind and non-discriminatory, it is, unfortunately, just the latest cloak veiling racism and other groupisms while allowing us to blame victims and excuse non-victims. Part IV, by examining public reactions to Hurricane Katrina and her aftermath, then shows how Americans experienced an unusually powerful and intractable injustice dissonance when the winds, water, and desperation exposed inequalities that choicism could not readily justify. For at least a moment, Americans faced what seemed to be strong evidence of racial injustice. Part IV reveals some of the ways that a set of overlapping and largely camouflaged blame frames obscured and confused the public discourse regarding Katrina and the injustice dissonance she wrought. Finally, this Article argues that only by understanding the sources and effects of blame frames can we ever hope to end oppression and thereby live according to the fundamental values we espouse.