How We Make Sense of Other People (and Why Legal Scholarship Should Care)

1. How We Make Sense of Other People(and Why Legal Scholarship Should Care) Claire A. Hill University of Minnesota Law School

2. Models of humans in law: • Law and economics/behavioral law and economics (as to people generally) • Capacity and limitations, in particular contexts: • Criminal: responsibility, assisting in one’s defense, execution • Civil Commitment • Ability to enter into contract, wills, dispose of property, etc. • Mostly, binary: people either have capacity • or they don’t

3. None of these models expressly consider how people make sense of others • Implicitly, as to Capacity: • getting it colossally wrong could be indication of incapacity • Implicitly, as to Homo economicus • Just as we are homo economicus, so are others, and they should (for accuracy’s sake) be dealt with as though they are homo economicus.

4. Bottom line thus far: no sophisticated • view in law as to how people make • sense of others • Aims in this paper • Develop a (preliminary) taxonomy of how people make sense of others • Show how taxonomy provides a new objection to the Homo Economicus model • Start considering ways in which taxonomy can be helpful in legal policy

5. Legal Contexts: • General need to ‘get it right’ about people • Judge and jury determinations about mindset/intention • Attribution of own/particular mindsets • Implications for approaches to “others” • hiring, firing, promotion • contracting • Tie-in to general ability to go behind Rawlsian veil