Situational Justice

The Providence Journal, August 24, 2006

CAMBRIDGE, Mass.

TO SPORTS FANS, it probably wasn’t a surprise to learn that former Ohio State University football star Maurice Clarett was arrested again the other week. The evasive running back who had carried the Buckeyes to the 2002 National Championship was unsuccessful in evading the police in a car chase that occurred near the home of a witness in his upcoming robbery trial. As if his location and the arsenal of four loaded guns in his car weren’t suspicious enough, Clarett was sporting a Kevlar vest at the time.

Much like Clarett in his glory days, the story has legs, powerful legs. Everyone has now seen the post-arrest photos of Clarett, dressed in a jail-issued jumpsuit and looking beleaguered. Sports writers around America have penned countless condemnations of Clarett and his bad life choices. The following sample of news headlines give a flavor of the indignation:

“After Saying He Had Changed, Clarett Goes Down Familiar Path” (The New York Times).

“Maurice Clarett in Dire Need of a Reality Check” (The Philadelphia Inquirer).

“Clarett’s Misplaced Sense of Manhood Meant Nothing but Trouble” (The Akron Beacon Journal).

Editorialists ratcheted up the righteousness. Scott Soshnick, of Bloomberg News, told readers in a column entitled “Maurice Clarett Doesn’t Deserve Your Sympathy”: “Clarett has no one but himself to blame for his latest incarceration.” An editorial said, “all [Clarett] ever has been is a knucklehead.” Another, entitled “Don’t Cry for Clarett,” attributes his failings to “self-absorption,” “ego, and arrogance.”

Letters to The Columbus Dispatch got even nastier (Ohio State is in Columbus). One: “Big Mo’s actions only confirm what my pappy always said: ‘Beauty is only skin deep, but stupidity goes clear to the bone.’ ” Another called for “a citywide ban against Maurice Clarett,” saying that “[a]nyone wearing No. 13 this year during Buckeyes games should be encouraged to burn their jersey.”

It is obvious that people care about this story; what isn’t so clear is why. Why are Americans so interested in an event that, with a different culprit, would have spread no further than the local crime blotter? And why are so many sports writers preoccupied with a man who never played a down in the National Football League and who hasn’t played college football in over three years? Most perplexing, why the vitriol? Why do we pile insults on a young man who is already a has-been?

Is it because a young black man was arrested and jailed? Nope. After all, we barely notice that over 15 million Americans are arrested each year and one out of every four black men will go to prison in his lifetime.

Might it be because he was carrying concealed weapons? Uh-uh. Thousands of people are arrested each year for that, and it is not a crime that elicits general outrage. In fact, more and more states are passing laws making it easier to carry a concealed weapon.

To understand why we Americans enjoy villainizing certain sports figures (Ron Artest, Terrell Owens, Rafael Palmeiro, Lawrence Phillips, Mike Tyson), it is helpful to understand why we make super-heroes of others.

Consider the most celebrated athlete in recent memory, Lance Armstrong. He has been the recipient of too many accolades to count, including Sports Illustrated’s “Sportsman of the Year,” the Associated Press’s “Male Athlete of the Year” (four times), and ESPN’s ESPY Award for “Best Male Athlete” (again, four times). Is Lance talented and successful? To be sure. And, yes, he won the Tour de France seven times — more than any rider in history.

But those successes alone are not what make Armstrong our hero. In fact, not long ago Americans cared as much about French cycling races as they do about English cricket tournaments. In Armstrong’s case, it wasn’t so much the race that made the man; it was the man who made the race. And what we admire in this man is not that he is a winner, but that he is a winner after having nearly lost his life to testicular cancer.

We love loving Lance because his success confirms our faith in the power of perseverance. The message for us all is the American creed: We can overcome our situation, no matter how grim, if only we work hard and choose wisely.

Consider also ESPN’s award for the “best sports moment of the year.” In the single basketball game that Jason McElwain played in high school, he scored 20 points in just 240 seconds. Sure, that was an outstanding accomplishment, but what made it the “best moment” is that “J-Mac” is autistic and had spent the rest of the season as the team manager.

Oh, we love those stories! Indeed, we pay good money to see movies about fictional sports figures (from Radio to Rudy to Rocky) who overcome their situations.

This brings us back to the more tragic Clarett story. Why do we love hating Maurice? For the same reason — just from a different angle. Clarett was at the cusp of fame. Had he simply chosen better, as one editorialist wrote, Clarett “would be signing autographs in some National Football League training camp right now. He’d be the face of a franchise. He’d be a millionaire. He’d be wearing Nike shoes and getting paid to do it. He’d be posing for magazine covers and billboards, instead of mug shots.”

The message of Clarett’s story is just the flip side of the same creed: If we work hard and make good choices we will succeed, but if we are lazy and make bad choices, we will fail.

And why do we love that message? Social science provides several reasons, but among the most important is our subconscious craving to believe that our world is just and that anyone can overcome circumstances. When our heroes are “good guys” who make “good choices” and our villains are “bad guys” who make “bad choices,” that craving is satisfied.

If someone succeeds, he deserves it; if someone fails, he has no one but himself to blame. Feels good.

Jon Hanson and Michael McCann — professors at, respectively, Harvard Law School and the Mississippi College School of Law — are writing a book on how sports shape beliefs about law and policy.

Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal, 93 GEORGETOWN L.J. 1, 136 – 38 (2004) (footnotes omitted):

Getting to know the situational character . . . teaches us something about what moves our own theories about what moves us. We are not referring here to the many exterior situational forces behind the long and successful “life” of the dispositional actor. . . . We are referring instead to the influence that our interior situation tends to have on the shape of the policy theories likely to be most successful. Legal theory, too, will share much in common with the law. But, as an outside observer, a legal theorist is to law something closer to what a social psychologist is to the human variety of situational characters: an observer attempting to ascertain what really moves the situational character—to see, for example, if the purported attitudes, reasons, and rationalizations of the situational character square with its behavior. Where apparent incoherence is identified, legal scholars offer theories intended either to make sense of the decisions (positive theories, which can be legitimating or delegitimating) or to show how the law, in practice, should be (re)formed or (re)structured to achieve a particular goal (normative theories).

Knowing something more about the situational character, we can better predict which theories will be most highly valued outside of law schools, and thus which ones will tend to be advantaged, other things being equal. First, successful theories will rely on a highly dispositionist view of the human actor—one that presumes that humans will their choices through thought and preferences. The model actor—the one that sets the standard for all of us—will be a fairly robust version of our widely held, dispositionist self-conceptions. The model actor therefore will be a thoughtful, reasoning actor, who approaches questions from a data-driven, bottom-up perspective, one who is not biased by cognitive shortcuts, distorting knowledge structures, emotions, or any unseen interior influences. She will have stable preferences that are consistent over time and with her behavior. And exceptions to that conception will be narrow and snugly anchored to that conception.

Legal conclusions and legal-theoretic inclinations will tend to favor the most powerful groups (and cultural in-groups). Various cloaks of legitimacy will be draped over the law and legal theories. Categories and schemas that tend to favor those groups will be created and perceived as neutral and natural, even when they are false, incomplete, or biasing. Laws and legal theories will also, on the whole, tend to be system-affirming. For all of these reasons, legal theories will, like the laws, tend to underestimate the role of situation—too often ignoring or downplaying the role of unseen forces that move or exploit the situation. Similarly, they will vastly limit our ability to see certain harmful situational forces and our ability to correct for those that we do see, such as the role of market manipulation.

System affirmation will be accomplished in significant part through the dispositionism that already infects our attributions. Throughout, there will be little serious attention given to the possibility that people’s conduct deviates from that of the model (dispositional) actor. That is, only the most obvious interior and exterior situational influences will be acknowledged. And those theorists who challenge the dominant conceptions will be viewed (along with their theories) as members of the same marginal and threatening out-group(s).

The above description, we believe, accurately depicts much of traditional law and economics, and it helps to explain its tremendous real-world influence. Unfortunately, social psychology also strongly suggests that such a legal theory or legal system will have significant harmful effects—even as measured by existing normative theories regarding the goal or goals of law. . . .

Our point here is that a better understanding of the situational character helps us to better understand our policy and policymaking systems. And the lessons of social psychology may be as unsettling and counterintuitive for our understanding of those systems as they have been for our understanding of ourselves. The very theories that we use to legitimate our systems, for example, may in fact be contributing to injustice—as defined by those theories. Insofar as we ignore situation, we ignore the limits of presumed autonomy and many of the most influential forces in our society—often far more influential than personal choice. That situational ignorance, it would seem, likely advantages those people, groups, and interests with the greatest autonomy to start with. Thus, situational ignorance helps to create—and then legitimate and maintain—power relationships. Power that is reinforced by the law is legitimated as the acceptable outcome of neutral legal processes. When those processes are understood as part of the manipulated, constructed, hidden situation that creates that power, any claim of neutrality vanishes—and, with it, the legitimacy that guards associated inequalities.