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Abstract:
In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen’s consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers’ language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current Fourth Amendment jurisprudence assumes that the authority of armed police officers simply vanishes when they pose their desire to search as a question. We discuss empirical evidence suggesting that people are afraid to decline police officer requests to search, and conclude by discussing the social and psychological cost of the widespread use of consent searches.

consent, language, pragmatics, police, search, seizure, Fourth Amendment, consent search

Abstract:
Humans are hobbled by costly and stubborn biases of reason and emotion. We severely underestimate our health risks and discount the future value of resources. These biases of reason and emotion are not exotic; they afflict normal people under normal stresses. I will argue that nonpaternalistic, institutional assistance can improve judgment, and that these improvements can both promote our autonomy and avoid costly outcomes when the biases go unchecked. In these cases, much of the crucial information is theoretically arcane. Had people known that their reasoning was so unreliable, they would have chosen strategies to counteract such sorry decision-making performance.

paternalism, cognitive bias, autonomy, institutional assistance, policy, decision-making

Abstract:
In an earlier paper, “Paternalism and Cognitive Bias” (Law and Philosophy 24 (4, July), 393-434, 2005), I survey cognitive biases, and conclude that they routinely prevent us from exercising our autonomy. I argue that these obstructions can be sufficiently serious to warrant institutional intervention. Finally, I argue that in many of these cases, the institutional intervention is not paternalistic. In this essay I address three issues that have arisen in critical response to that paper. The first concerns how to define the proper scope of interventions deemed paternalistic. The government routinely restricts our behavior by promising to sanction us if we engage in certain actions. Only the most extreme libertarian - and I hesitate even to use that dignified label for some of these objections - would regard all such constraints as paternalistic. Second, many restrictions that at first appear “paternalistic,” in that they limit a person’s range of choices “for his own good,” may not, in fact, do so “against his will” - thus raising the question of whether such restrictions are really paternalistic at all. Third, I will examine whether long-term goals should be given priority over short-term goals. I will close by considering the value of being explicit about our social priorities.

paternalism, autonomy, decision aids, institutional prosthetics, cognitive bias