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Abstract: People disagree about the empirical dimensions of various public policy issues. It's not surprising that people have different beliefs about the deterrent effect of the death penalty, the impact of handgun ownership on crime, the significance of global warming, the public health consequences of promiscuous sex, etc. The mystery concerns the origins of such disagreement. Were either the indeterminacy of scientific evidence or the uneven dissemination of convincing data responsible, we would expect divergent beliefs on such issues to be distributed almost randomly across the population, and beliefs about seemingly unrelated questions (whether, say, the death penalty deters and whether global warming is a serious threat) to be relatively independent of one another. But this is not the case: factual disagreement is highly polarized across distinct social groups - ethnic, religious, racial, regional, and ideological. Moreover, factual beliefs highly correlate across discrete and disparate issues. What explains these patterns? The answer, we will argue, is the phenomenon of cultural cognition. We discuss original empirical evidence showing that individuals form factual beliefs that reflect and reinforce competing cultural orientations - hierarchic and egalitarian, individualistic and communitarian. We also identify the social and psychological mechanisms through which these orientations shape factual beliefs. And we discuss the implications of this phenomenon for enlightened democratic decision-making.
cultural cognition, death penalty, gun control, abortion
Abstract: Cultural Cognition refers to the disposition to conform one's beliefs about societal risks to one's preferences for how society should be organized. Based on surveys and experiments involving some 5,000 Americans, the Second National Risk and Culture Study presents empirical evidence of the effect of this dynamic in generating conflict about global warming, school shootings, domestic terrorism, nanotechnology, and the mandatory vaccination of school-age girls against HPV, among other issues. The Study also presents evidence of risk-communication strategies that counteract cultural cognition. Because nuclear power affirms rather than threatens the identity of persons who hold individualist values, for example, proposing it as a solution to global warming makes persons who hold such values more willing to consider evidence that climate change is a serious risk. Because people tend to impute credibility to people who share their values, persons who hold hierarchical and egalitarian values are less likely to polarize when they observe people who hold their values advocating unexpected positions on the vaccination of young girls against HPV. Such techniques can help society to create a deliberative climate in which citizens converge on policies that are both instrumentally sound and expressively congenial to persons of diverse values.
cultural cognition, risk perception, risk regulation, nuclear power, global warming, terrorism, gun control, school shootings, HPV, nanotechnology
Abstract: This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk to the public. Instead, the Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it. We showed the video to a diverse sample of 1,350 Americans. Overall a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities. The paper also addresses the normative significance of these findings. The result in the case, we argue, might be defensible, but the Court's reasoning was not. Its insistence that there was only one reasonable view of facts itself displayed a characteristic of a form of bias - cognitive illiberalism - that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law's legitimacy.
cultural cognition, risk perception, Fourth Amendment, jury
Abstract: This paper addresses the relevance of reciprocity theory to law and public policy. Regulatory law across a wide variety of domains reflects the influence of the rational choice theory of collective action, which holds that individuals can be expected to contribute to societal collective goods only if prodded by material incentives in the form of either subsidies or penalties. The reciprocity theory, in contrast, suggests that individuals will often contribute voluntarily to collective goods so long as they believe that most others are willing to do the same. Promoting trust - in the form of reason to believe that fellow citizens are contributing their fair share - is thus a potential alternative to costly incentive schemes for solving societal collective action problems. Indeed, conspicuous penalties and subsidies, the reciprocity theory implies, might sometimes aggravate rather than ameliorate collective action problems by giving citizens reason to doubt that other citizens are contributing voluntarily to societal collective goods. These conclusions are illustrated with discussions of several regulatory problems, including tax evasion, the siting of toxic waste facilities, and community policing.
Abstract: Why do white men fear various risks less than women and minorities? Known as the white male effect, this pattern is well documented but poorly understood. This paper proposes a new explanation: cultural status anxiety. The cultural theory of risk posits that individuals selectively credit and dismiss asserted dangers in a manner supportive of their preferred form of social organization. This dynamic, it is hypothesized, drives the white male effect, which reflects the risk skepticism that hierarchical and individualistic white males display when activities integral to their status are challenged as harmful. The paper presents the results of an 1800-person survey that confirmed that cultural worldviews moderate the impact of sex and race on risk perception in patterns consistent with status anxieties. It also discusses the implication of these findings for risk regulation and communication.
Abstract: Despite knowing little about nanotechnology (so to speak), members of the public readily form opinions on whether its potential risks outweigh its potential benefits. On what basis are they forming their judgments? How are their views likely to evolve as they become exposed to more information about this novel science? We conducted a survey experiment (N = 1,850) to answer these questions. We found that public perceptions of nanotechnology risks, like public perceptions of societal risks generally, are largely affect driven: individuals' visceral reactions to nanotechnology (ones likely based on attitudes toward environmental risks generally) explain more of the variance in individuals' perceptions of nanotechnology's risks and benefits than does any other influence. These views are not static: even a small amount of information can generate changes in perceptions. But how those perceptions change depends heavily on individuals' values. Using a between-subjects design, we found that individuals exposed to balanced information polarize along cultural and political lines relative to individuals not exposed to information. We discuss what these findings imply for understanding of risk perceptions generally and for the future of nanotechnology as a subject of political conflict and regulation.
risk, norms, cultural cognition, emotion, nanotechnology
Abstract: What dynamics shape public risk perceptions? What significance should such perceptions have in the formation of risk regulation? In Laws of Fear: Beyond the Precautionary Principle (2005), Cass Sunstein catalogs a variety of cognitive and social mechanisms that he argues inflate public estimations of various societal risks. To counter the impact of irrational public fears, he advocates delegation of authority to politically insulated experts using economic cost-benefit analysis. Missing from Sunstein's impressive account, however, is any attention to the impact of cultural cognition, the tendency of individuals to form risk perceptions that reflect and reinforce their cultural worldviews. Relying on existing and original empirical research, we use this dynamic to develop an alternative cultural evaluator model, which better explains individual variation in risk perception, differences of opinions among experts, and the intensity of political conflict over risk than does Sunstein's irrational weigher model. Cultural cognition also complicates Sunstein's policy prescriptions. Because the public fears that Sunstein describes as irrational express cultural values, expert cost-benefit analysis does not merely insulate the law from factual error, as Sunstein argues; rather, it systematically detaches law from popular understandings of the ideal society. Indeed, the best defense of Sunstein's program might be just that: by eliding the role that risk regulation plays in endorsing contested cultural visions, expert cost-benefit analysis protects the law from a divisive and deeply illiberal form of expressive politics. The difficult task for those who understand the phenomenon of cultural cognition and who favor democratic modes of policymaking is to devise procedures that assure that popularly responsive risk regulation is both rational and respectful of diverse cultural worldviews.
Abstract: This paper uses the theory of cultural cognition to examine the debate over rape-law reform. Cultural cognition refers to the tendency of individuals to conform their perceptions of legally consequential facts to their defining group commitments. Results of an original experimental study (N = 1,500) confirmed the impact of cultural cognition on perceptions of fact in a controversial acquaintance-rape case. The major finding was that a hierarchical worldview, as opposed to an egalitarian one, inclined individuals to perceive that the defendant reasonably understood the complainant as consenting to sex despite her repeated verbal objections. The effect of hierarchy in inclining subjects to favor acquittal was greatest among women; this finding was consistent with the hypothesis that hierarchical women have a distinctive interest in stigmatizing rape complainants whose behavior deviates from hierarchical gender norms. The study also found that cultural predispositions have a much larger impact on outcome judgments than do legal definitions, variations in which had either no or a small impact on the likelihood subjects would support or oppose conviction. The paper links date-rape reform to a class of controversies in law that reflect symbolic status competition between opposing cultural groups, and addresses the normative implications of this conclusion.
cultural cognition, criminal law, rape
Abstract: In this article, I renounce my previous defense of shaming penalties. Sort of. In What Do Alternative Sanctions Mean, 63 U. Chi. L. Rev. 591 (1996), I argued that shaming penalties would likely be a politically viable substitute for imprisonment for a range of nonviolent (or relatively nonviolent) offenses because unlike fines, community service, and other alternative sanctions that have encountered decisive resistance, shaming unambiguously expresses moral denunciation of criminal wrongdoers. Drawing on work that I've done since then, I now acknowledge that the premise of this analysis was flawed. Ordinary citizens expect punishments not merely to condemn but to do so in ways that affirm rather than denigrate their core values. By ritualistically stigmatizing wrongdoers as transgressors of shared moral norms, shaming penalties grate against the sensibilities of persons who subscribe to egalitarian and individualistic worldviews. To maximize its chances of widespread adoption, an alternative sanction must be expressively overdetermined - that is, sufficiently rich in meanings to appeal simultaneously to citizens of diverse cultural and moral persuasions. I suggest that restorative justice can satisfy that criterion, but only if its proponents resist the impulse to purge it of expressive elements that make it appealing to the very citizens who were willing to endorse shame.
shame, criminal law, imprisonment, social meaning, expressive theory
Abstract: Recent work in cognitive and social psychology makes it clear that emotion plays a critical role in public perceptions of risk, but doesn't make clear exactly what that role is or why it matters. This paper examines two competing theories of risk perception, which generate two corresponding understandings of emotion and its significance for risk regulation. The irrational weigher theory asserts that lay persons' emotional apprehensions of risk are heuristic substitutes for more reflective judgments, and as such lead to systematic errors. It therefore counsels that risk regulation be assigned to politically insulated experts whose judgments are free of emotion's distorting impact. The cultural evaluator theory, in contrast asserts that emotional apprehensions of risk reflect persons' expressive appraisals of putatively dangerous activities. It implies that emotional apprehensions of risk should at least sometimes be afforded normative weight in law, and also generates distinctive strategies for reconciling sound risk regulation with genuinely participatory, democratic policymaking.
risk, norms, cultural, cognition, emotion
Abstract: In a provocative 1987 article, Aaron Wildavsky asserted that culture operates as the fundamental orienting force in the generation of mass public opinion. The meanings and interpersonal associations that inhere in discrete ways of life, he argued, shape the heuristic processes by which politically unsophisticated individuals, in particular, choose what policies and candidates to support. We systematize Wildavsky's theory and integrate it with existing accounts of mass opinion formation. We also present the results of an original national survey (N = 1843), which found that the cultural orientations featured in Wildavsky's writings accounted for policy-related attitudes on gun control, environment, capital punishment, and gay marriage, even at low levels of political sophistication and after controlling for demographics, left-right ideology, and partisanship. By contrast, much of the predictive power of demographics, left-right ideology, and partisanship on policy attitudes dissipated after taking into account cultural orientations.
Heuristics, gun control, capital punishment, politics
Abstract: Why do white men fear various risks less than women and minorities? Known as the white male effect, this pattern is well documented but poorly understood. This paper proposes a new explanation: identity-protective cognition. Putting work on the cultural theory of risk together with work on motivated cognition in social psychology suggests that individuals selectively credit and dismiss asserted dangers in a manner supportive of their preferred form of social organization. This dynamic, it is hypothesized, drives the white male effect, which reflects the risk skepticism that hierarchical and individualistic white males display when activities integral to their cultural identities are challenged as harmful. The article presents the results of an 1,800-person study that confirmed that cultural worldviews interact with the impact of gender and race on risk perception in patterns that suggest cultural-identity-protective cognition. It also discusses the implication of these findings for risk regulation and communication.
white male effect, risk, risk perception, cultural cognition
Abstract: Ought implies can. This paper investigates whether the central moral directives of liberalism are ones citizens can - as matter of human cognition - be expected to honor. Liberalism obliges the state to disclaim a moral orthodoxy and instead premise legal obligation on secular grounds accessible to persons of diverse cultural persuasions. Studies of the phenomenon of cultural cognition, however, suggest that individuals naturally impute socially harmful consequences to behavior that defies their moral norms. As a result, they are impelled to suppress morally deviant behavior even when they honestly perceive themselves to be motivated only by the secular good of harm prevention. The paper identifies how this dynamic transforms seemingly instrumental debates over environmental regulation, public health, economic policy, and crime control into polarizing forms of illiberal status competition. It also proposes a counterintuitive remedy: rather than attempt to cleanse the law of culturally partisan meanings - the discourse strategy associated with the liberal norm of public reason - lawmakers should endeavor to infuse it with a surfeit of meanings capable of affirming a wide range of competing worldviews simultaneously.
cultural cognition, liberalism, social norms, global warming, gun control
Abstract: What motivates individuals to support or oppose the legal regulation of guns? What sorts of evidence or arguments are likely to promote a resolution of the gun control debate? Using the survey methods associated with the cultural theory of risk, we demonstrate that individuals' positions on gun control derive from their cultural world views: individuals of an egalitarian or solidaristic orientation tend to support gun control, those of a hierarchical or individualist orientation to oppose it. Indeed, cultural orientations so defined are stronger predictors of individuals' positions than is any other fact about them, including whether they are male or female, white or black, Southerners or Easterners, urbanites or country dwellers, conservatives or liberals. The role of culture in determining attitudes towards guns suggests that econometric analyses of the effect of gun control on violent crime are unlikely to have much impact. As they do when they are evaluating empirical evidence of environmental and other types of risks, individuals can be expected to credit or dismiss empirical evidence on "gun control risks" depending on whether it coheres or conflicts with their cultural values. Rather than focus on quantifying the impact of gun control laws on crime, then, academics and others who want to contribute to resolving the gun debate should dedicate themselves to constructing a new expressive idiom that will allow citizens to debate the cultural issues that divide them in an open and constructive way.
Abstract: Cultural cognition refers to the tendency of individuals to form beliefs about societal dangers that reflect and reinforce their commitments to particular visions of the ideal society. Cultural cognition is one of a variety of approaches designed to empirically test the cultural theory of risk associated with Mary Douglas and Aaron Wildavsky. This commentary discusses the distinctive features of cultural cognition as a conception of cultural theory, including its cultural worldview measures; its emphasis on social psychological mechanisms that connect individuals' risk perceptions to their cultural outlooks; and its practical goal of enabling self-conscious management of popular risk perceptions in the interest of promoting scientifically sound public policies that are congenial to persons of diverse outlooks.
cultural cognition, risk perception, culture theory
Abstract: The economic conception of deterrence enjoins us to grade punishments not in proportion to the intrinsic reprehensibility of various forms of wrongdoing but rather in proportion to the goodness of the consequences that punishing them will produce. This paper, however, argues that the economic theory lacks the power, conceptually or practically, to generate results different from the ones generated by perceptions of intrinsic reprehensibility. The economic conception of deterrence presupposes a consequentialist theory of value that specifies what forms of behavior are disvalued and how much. It is perfectly compatible with the economic position for any individual (and any community of individuals) to derive such a theory from the intuitive apprehension of the intrinsic reprehensibility of different forms of wrongdoing. The best understandings of how individuals do and should make decisions under conditions of uncertainty, moreover, predict that decisionmakers who make deterrence judgments informed by a theory of value so derived will reach results identical to the ones they would have reached had they simply punished in proportion to their perceptions of the intrinsic reprehensibility of different forms of wrongdoing. The normative upshot is that deterrence theory can never be said to furnish a persuasive reason for supporting more or less punishment than otherwise seems just.
Abstract: Recent scholarship in law and political science identifies ideology as a major determinant of judicial decisionmaking. This essay suggests the possibility that much if not all the evidence this work rests on might be attributed to the influence of cultural cognition, a set of mechanisms that motivate individuals to conform their factual perceptions to their values. Such an account has the potential to furnish a psychologically richer description of how competing values generate judicial dissensus, a more informed normative appraisal of such dissensus, and a more tractable set of prescriptions for reducing it.
cultural cognition, ideology, judicial decisionmaking
Abstract: Why do certain self-defense cases - ones, e.g., involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens - provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a subtler and more complex explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of self-defensive cognition, it is submitted, shapes individuals' perceptions of violent interactions between parties seen to be complying with or defying contested social norms. As a result, even individuals who are trying to decide such cases based on honest and politically impartial assessments of the facts polarize along cultural lines. The paper presents the results of an original empirical study (N = 1,600) that supports this hypothesis. It also explores the normative significance of this account of the origins of political conflict over self-defense cases and how such conflict can be mitigated.
cultural cognition, self-defense, battered woman, identity-protective cognition
Abstract: The phenomenon of cultural cognition refers to the disposition of individuals to adopt factual beliefs about risk that express their cultural evaluations of putatively dangerous activities. In a previous review essay (119 Harv. L. Rev. 1071 (2006)), we suggested that this phenomenon makes it inappropriate to treat public risk perceptions that differ from those of expert regulators as simple mistakes, which should be denied weight in lawmaking, as opposed to values, which presumably should guide regulatory policy in a democratic society. Cass Sunstein wrote a critical response (119 Harv. L. Rev. 1110 (2006)). Sunstein's basic thesis is that cultural cognition is largely a result of bounded rationality, not an alternative to it, and as such generates beliefs no more entitled to normative respect than those associated with other types of cognitive biases. We offer a (brief) reply, distinguishing the question of whether cultural cognition can be explained by biases and heuristics attributable to bounded rationality (we say, no) from the question of whether beliefs founded on cultural cognition should be normative for law (we say, sometimes).
ultural cognition, risk perception
Abstract: The cultural cognition hypothesis holds that individuals are disposed to form risk perceptions that reflect and reinforce their commitments to contested views of the good society. This paper reports the results of a study that used the controversy over mandatory HPV vaccination to test the cultural cognition hypothesis. Although public health officials have recommended that all girls aged 11 or 12 be vaccinated for HPV - a virus that causes cervical cancer and that is transmitted by sexual contact - political controversy has blocked adoption of mandatory school-enrollment vaccination programs in all but one state. A multi-stage experimental study of a large and diverse sample of American adults (N = 1,500) found evidence that cultural cognition generates disagreement about the risks and benefits of the HPV vaccine. It does so, the experiment determined, through two mechanisms: biased assimilation, and the credibility heuristic. In addition to describing the study, the paper discusses the theoretical and practical implications of these findings.
Abstract: This article uses the reciprocity theory of collective action to evaluate different strategies for policing street crime. The reciprocity theory holds that individuals in collective action settings behave not like rational wealth maximizers but like moral reciprocators: if they perceive that most other individuals are contributing to a collective good, then most individuals prefer to do likewise; if not, then not. The effectiveness of a street-policing strategy, the article argues, depends on how well it responds to three interlocking collective action problems: that between citizens generally, relating to the good of respect for one another's persons and property; that between neighbors, relating to the good of community self-policing; and that between community residents and police, relating to the good of mutual respect. Policing strategies based on the conventional theory of deterrence tend to fail because they inhibit reciprocal cooperation in all three of these collective action settings. The strategies associated with the "New Community Policing", in contrast, foster reciprocal cooperation across one or more of these collective action settings. Nevertheless, most of these strategies - including order-maintenance policing and church-police collaborations - have at least the potential to disrupt reciprocal cooperation within one or more of them as well, constraining their effectiveness. The only technique that is likely to promote reciprocal cooperation uniformly across all the relevant collective action domains, the article concludes, is selective privatization, a highly decentralized and participatory strategy that integrates private citizens into many law enforcement functions.
Abstract: This paper reports the results of an experiment designed to test competing conjectures about the evolution of public attitudes toward nanotechnology. The rational enlightenment hypothesis holds that members of the public will become favorably disposed to nanotechnology as balanced and accurate information about it disseminates. The cultural cognition hypothesis, in contrast, holds that members of the public are likely to polarize along cultural lines when exposed to such information. Using a between-subjects design (N = 1,862), the experiment compared the perceptions of subjects exposed to balanced information on the risks and benefits of nanotechnology to the perceptions of subjects exposed to no information. The results strongly confirmed the cultural polarization hypothesis and furnished no support for the rational enlightenment hypothesis. Data obtained in the experiment also suggested that the observed correlation in the general public between familiarity with nanotechnology and a positive view of it is spurious: familiarity does not cause a favorable view; rather other influences, including individualistic cultural values, incline certain individuals both to form a positive view and to learn about nanotechnology. The paper also discusses the implications of these findings for promoting informed public understandings of nanotechnology.
nanotechnology, cultural cognition, risk perception
Abstract: Cultural cognition refers to the influence that individuals' values have on their perceptions of technological risk. We conducted a study to assess the cultural cognition of synthetic biology risks. Examining the attitudes of a large and diverse sample of Americans (N = 1,500), we found that hierarchical, conservative, and highly religious individuals - persons who normally are most skeptical of claims of environmental risks (including those relating to nuclear power and global warming) - are the persons most concerned about synthetic biology risks. We attribute this inversion of the normal cultural profile of risk perceptions to the seemingly anti-religious connotations of synthetic biology. We discuss implications of this finding for future study and for risk communication.
cultural cognition, risk perception, synthetic biology
Abstract: We present the results from the second in a series of ongoing experimental studies of public perceptions of nanotechnology risks. Like the first study, the current one found that members of the public, most of whom know little or nothing about nanotechnology, polarize along cultural lines when exposed to information about it. Extending previous results, the current study also found that cultural polarization of this sort interacts with the perceived cultural identities of policy advocates. Polarization along expected lines grew even more extreme when subjects of diverse cultural outlooks observed an advocate whose values they share advancing an argument they were predisposed to accept, and an advocate whose values they reject advancing an argument they were predisposed to resist. But when those same advocates were assigned the opposite positions, subjects formed perceptions of nanotechnology risks diametrically opposed to the ones normally associated with their own cultural predispositions. Finally, when there was no consistent relationship between the perceived values of advocates and positions taken on nanotechnology risk and benefits, cultural polarization was neutralized. The significance of these findings for promotion of informed public understanding of nanotechnology is discussed.
nanotechnology, cultural cognition, risk perception, cultural credibility heuristic, polarization, biased assimilation
Abstract: In this article we defend our contention that culture is prior to facts in resolving the gun debate. The basis for this position, simply put, is that culture is prior to facts in human cognition. Through an overlapping set of psychological and social mechanisms, individuals adopt the factual beliefs that are dominant among persons who share their cultural orientations. Far from being updated in light of new evidence, beliefs so formed operate as an evidentiary filter, inducing individuals to dismiss any contrary evidence as unreliable, particularly when that evidence is proffered by individuals of an opposing cultural affiliation. So even accepting - which we do - that individuals care about both what guns do and what guns mean, it's idle to hope that consensus based on empirical research can settle the gun debate: individuals simply won't perceive any such consensus to exist so long as cultural conflict over the meaning of guns persists. We fill out the details of this claim - and the extensive research in social psychology on which it rests - by developing a series of models that simulate the formation and transmission of belief. Section 2 will present the Factual Enlightenment Model, which shows how persuasive empirical proof can indeed generate societal consensus on a disputed issue. Section 3 will present the Cultural Cognition Model, which shows how various social and psychological mechanisms can generate beliefs that are uniform within and polarized across distinct cultural orientations. Section 4 develops a model - Truth vs. Culture - that shows that cultural cognition constrains factual enlightenment when these two dynamics of belief-formation and transmission are pitted against one another. And finally, in section, we develop a Breakthrough Politics Model, which shows how persuasive empirical proof can dispel culturally influenced states of false belief once policy options are invested with social meanings that make them compatible with diverse cultural orientations.
cognition, psychological and social mechanisms, cultural cognition, empirical
Abstract: We describe the results of a study to determine the synthetic-biology risk perceptions of a large and diverse sample of Americans (N = 1,500). The survey found that hierarchical, conservative, and highly religious individuals - one who normally are skeptical of claims of environmental risks (including those relating to global warming) - are the most concerned about synthetic biology risks. We offer an interpretation that identifies how selective risk-skepticism and risk-sensitivity can convey a cultural commitment to traditional forms of authority.
Abstract: Which side of the gun debate loses ground after the Virginia Tech Massacre? Neither. Here's why.
Abstract: In this paper we critique the increasingly prominent claims of punishment naturalism – the notion that highly nuanced intuitions about most forms of crime and punishment are broadly shared, and that this agreement is best explained by a particular form of evolutionary psychology. While the core claims of punishment naturalism are deeply attractive and intuitive, they are contradicted by a broad array of studies and depend on a number of logical missteps. The most obvious shortcoming of punishment naturalism is that it ignores empirical research demonstrating deep disagreements over what constitutes a wrongful act and just how wrongful it should be deemed to be. But an equally serious shortcoming of punishment naturalism is that it fails to provide a credible account of the social and cognitive mechanisms by which individuals evaluate both crime and punishment, opting instead for explanations that are either specific and demonstrably wrong or so vague as to be untestable.
By way of contrast we describe an alternative approach, punishment realism, that develops the core insights of legal realism via psychology and anthropology. Punishment realism, we argue, offers a more complete account of agreement and disagreement over the criminal law and provides a more detailed and credible account of the social and cognitive mechanisms that move people to either agree or disagree with one another on whether and how much praise or punishment a given act deserves. The differences between these two empirical accounts also entail contrasting implications for how those interested in maximizing social welfare and public satisfaction with the law should approach questions of crime and punishment.
Abstract: What explains controversy over outpatient commitment laws (OCLs), which authorize courts to order persons with mental illness to accept outpatient treatment? We hypothesized that attitudes toward OCLs reflect cultural cognition (DiMaggio 1997), which motivates individuals to conform their beliefs about policy-relevant facts to their cultural values. In a study involving a diverse sample of Americans (N = 1,496), we found that individuals who are hierarchical and communitarian tend to support OCLs, while those who are egalitarian and individualistic tend to oppose them. These relationships, moreover, fit the cultural cognition hypothesis: that is, rather than directly influencing OCL support, cultural values, mediated by affect, shaped individuals' perceptions of how effectively OCLs promote public health and safety. We discuss the implications for informed public deliberation over OCLs.
cultural cognition, outpatient commitment
Abstract: American jurisdictions have traditionally resisted fines and community service as alternatives to imprisonment, notwithstanding strong support for these sanctions among academics and reformers. Why? The answer, this article contends, is that these forms of punishment are expressively inferior to incarceration. The public expects punishment not only to deter crime and to impose deserved suffering, but also to make accurate statements about what the community values. Imprisonment has been and continues to be Americans' punishment of choice for serious offenses because of the resonance of liberty deprivation as a symbol of condemnation in our culture. Fines and community service either don't express condemnation as unambiguously as imprisonment, or express other valuations that Americans reject as false. The article also uses expressive theory to explain why the American public has consistently rejected proposals to restore corporal punishment, a form of discipline that offends egalitarian moral sensibilities; and why the public is now growing increasingly receptive to shaming punishments, which unlike conventional alternative sanctions signal condemnation unambiguously.
shame, expressive theory, punishment, shaming sanctions
Abstract: We conducted an experimental public opinion study of the effect of balanced information on nanotechnology risk-benefit perceptions. The study found that subjects did not react in a uniform, much less a uniformly positive manner, but rather polarized along lines consistent with cultural predispositions toward technological risk generally.
cultural cognition, nanotechnology, risk perception, biased assimilation, polarization
Abstract: Why do members of the public disagree - sharply and persistently - about facts on which expert scientists largely agree? We designed a study to test a distinctive explanation: the cultural cognition of scientific consensus. The “cultural cognition of risk” refers to the tendency of individuals to form risk perceptions that are congenial to their values. The study presents both correlational and experimental evidence confirming that cultural cognition shapes individuals’ beliefs about the existence of scientific consensus, and the process by which they form such beliefs, relating to climate change, the disposal of nuclear wastes, and the effect of permitting concealed possession of handguns. The implications of this dynamic for science communication and public policy-making are discussed.
Cultural Cognition, Climate Change, Gun Control, Nuclear Power, Risk, Public Opinion
Abstract: The resistance of law enforcers sometimes confounds the efforts of law makers to change social norms. Thus, as legislators expand liability for date rape, domestic violence, and drunk driving, police become less likely to arrest, prosecutors to charge, jurors to convict, and judges to sentence severely. The conspicuous resistance of these decisionmakers in turn reinforces the norms that law makers intended to change. Can this ?sticky norms? pathology be effectively treated? It can be, this article argues, if law makers apply ?gentle nudges? rather than ?hard shoves.? When the law embodies a relatively mild degree of condemnation, the desire of most decisionmakers to discharge their civic duties will override their reluctance to enforce a law that attacks a widespread social norm. The willingness of most decisionmakers to enforce can initiate a self-reinforcing wave of condemnation, thereby allowing lawmakers to increase the severity of the law in the future without prompting resistance from most decisionmakers. The article presents a formal model of this strategy for norm reform, illustrates it with real world examples, and identifies its normative and prescriptive implications.
Abstract: This article identifies the political and moral economies of deterrence theory in legal discourse. Drawing on an extensive social science literature, it shows that deterrence arguments in fact have little impact on citizens' views on controversial policies such as capital punishment, gun control, and hate crime laws. Citizens conventionally defend their positions in deterrence terms nonetheless only because the alternative is a highly contentious expressive idiom, which social norms, strategic calculation, and liberal morality all condemn. But not all citizens respond to these forces. Expressive zealots have an incentive to frame controversial issues in culturally partisan terms, thereby forcing moderate citizens to defect from the deterrence detente and declare their cultural allegiances as well. Accordingly, deliberations permanently cycle between the disengaged, face-saving idiom of deterrence and the partisan, face-breaking idiom of expressive condemnation. These dynamics complicate the normative assessment of deterrence. By abstracting from contentious expressive judgments, deterrence arguments serve the ends of liberal public reason, which enjoins citizens to advance arguments accessible to individuals of diverse moral persuasions. But precisely because deterrence arguments denude the law of social meaning, the prominence of the deterrence idiom impedes progressives from harnessing the expressive power of the law to challenge unjust social norms. There is no stable discourse equilibrium between the deterrence and expressive idioms, either as a positive matter or a normative one.
Abstract: The most significant law-enforcement advances of the 1990s have involved the use of law to regulate social norms. The effective legal regulation of norms is constrained, however, by the enfeebled legitimacy of the state in the inner-city communities that suffer from the greatest concentration of crime. This essay identifies strategies by which state law-enforcement agencies can enlist the assistance of churches and other civic associations that possess the legitimacy necessary to reshape norms in these communities. Privatization of norm regulation can and should be among the most significant advances in law enforcement as we enter the next century.
Abstract: From stigmatizing publicity to coerced gestures of public contrition to ritualized debasement ceremonies, shaming penalties are on the rise in American law. This paper considers the feasibiltity and value of such penalties for federal white collar offenders. It develops a theoretical model that connects the deterrent efficacy of such penalties to their power to signal the undesirable propensities of wrongdoers and the desirable propensities of citizens who shun wrongdoers. It also considers how the efficiency of such penalties is affected by their power to express publicly valued social meanings. Finally, it examines practical issues relating to the incorporation of shaming penalties into the Federal Sentencing Guidelines.
Abstract: Judgments of and about disgust play a critical role in criminal law. Certain homicides, including homophobic ones, may be graded more severely or less because they are motivated by disgust; certain forms of punishment, including shaming penalties, express public disgust with criminals; and certain sentencing regimes, including those that use the "outrageously or wantonly vile" standard, treat an offender's own appetite for disgust as a ground for capital punishment. Yet disgust has received almost no systematic attention from criminal law theorists. This essay seeks to remedy this inattention by drawing on William Miller's The Anatomy of Disgust (1997). Miller depicts disgust not as an unthinking or instinctive aversion, but rather as a cognitive evaluation that is constructed by, and that reinforces, hierarchic social norms. The centrality of such norms to moral perception explains the ubiquity of disgust judgments in criminal law; dissensus over the content of such norms accounts for the political controversy that disgust judgments typically provoke. This essay uses Miller not only to explain the role of disgust in criminal law, but also to appraise it. Disgust furnishes indispensable but imperfect moral guidance; the way to redeem disgust, Miller's account suggests, is not to ignore it, but rather to test its urgent claims by pitting disgust against other moral sentiments, such as mercy.
Abstract: This article predicts the imminent demise of certain prominent doctrines of criminal procedure. These doctrines were fashioned in the 1960's primarily to combat the use of discretionary policing to exclude African-Americans from the Nation's political life. The political power of African Americans has risen steadily, however, since the passage of the Voting Rights Act of 1965. Today African-Americans exert significant power in the Nation's inner cities. Many are now using their political strength to secure curfews, anti- loitering laws, and other forms of order maintenance policing, which they support as milder alternatives to severe prison sentences. Ironically, doctrines that were designed to counteract institutionalized racism are now being invoked to impede the efforts of minority communities to free themselves from rampant criminality -- itself both a vestige of racism and a potent barrier to the integration of minority citizens into the economic and social mainstream. A doctrinal regime so ripe with contradiction cannot long endure. This article proposes a new regime in which courts would defer to democratic evaluations of discretionary policing so long as it is clear that the community at large is meaningfully sharing in the burdens that such policing places on liberty. It uses this mode of analysis to defend curfews, gang-loitering laws, and other policies that make up the "new community policing."
Abstract: This article argues that "democracy" is an unhelpful criterion for assessing either the desirability or the constitutionality of the delegation schemes that are familiar to American law. Democracy is itself an essentially contested concept; some conceptions emphasize preference aggregation, others deliberation, and still others the promotion of "democratic values" such as equality and autonomy. Delegated lawmaking schemes never disregard these objectives entirely but rather give more or less prominence to one or another of them relative to some nondelegation alternative. Thus, before one can persuasively criticize a delegation scheme on grounds of "democracy," one must identify normative criteria for preferring the conception of democracy that informs one's critique. The most sensible criteria are the policy goals that one believes should guide lawmaking within the regulatory domain in question. Consequently, any "democracy"-grounded critique of a particular delegation scheme -- or at least any such critique that isn't question-begging -- will turn out to be derivative of a policy-grounded critique of it. The argument is illustrated with examples drawn from a variety of administrative law contexts.
Abstract: The principles of legality and separation of powers are conventionally understood to require that law-making, law- interpreting, and law-enforcement be carried out by separate institutions. This paper challenges this understanding in the context of federal criminal law. Descriptively, it maintains that federal criminal law is most accurately conceptualized as a "common-lawmaking" regime in which Congress delegates power to courts by enacting incompletely specified statutes. Normatively, it argues that the law would be better if the delegated-lawmaking authority that courts now exercise were instead wielded by the Department of Justice. The legal mechanism for this reform would be the so-called Chevron doctrine, which requires courts to defer to Executive Branch readings of ambiguous regulatory statutes. The likely advantages of such an arrangement include greater expertise in the making of criminal law, greater uniformity in the interpretation of it, and (most surprisingly) greater moderation in the enforcement of it.
Abstract: The prohibition on retroactive criminal-lawmaking is said to secure the "central values of liberal societies." This essay offers a critical appraisal of this idea. The judicious use of retroactivity, it argues, is perfectly consistent with liberal values; indeed, an absolute prohibition on retroactivity would invariably contract, rather than enlarge, the domain of in which individuals can determine their fate by choice. What's more, the anti-retroactivity principle is fictional: the source of retroactive lawmaking is not the legislative power, which is indeed constrained by the Ex Post Facto Clauses of the U.S. Constitution, but rather the judiciary, which isn't constrained by anything except judges' own situation sense. Finally, the essay defends this allocation of retroactive criminal-lawmaking power. Because the electorate learns of issues in criminal law primarily through exposure to sensationalistic media accounts, legislative retroactivity risks infecting criminal law with political pathologies that disfigure the law relative to the political community's own values. The way to avoid the distorting influence of these pathologies isn't to prohibit retroactive criminal-lawmaking outright, but to track that power to courts, which are modestly insulated from popular will and, even more important, seeped in the every-day exigencies of administering the criminal law.
Abstract: This short essay surveys recent works (including an article by Neal Katyal in the same issue of the Michigan Law Review) that attempt to enrich the standard conception of deterrence by incorporating social norms. The motivation for grouping these works together is as much political as conceptual: to draw attention to their potential to negotiate the space between economic and sociological approaches to crime control. The economic approach rests on an account of human motivations that is too thin to be believable, and generates policies that are too severe to be just. The sociological approach is much richer but also hopelessly impractical; it is clear that American society has neither the social-scientific know-how nor the political will to eradicate the social "root causes" of crime. The works surveyed in this essay, in contrast, focus on social phenomena that are important enough to be worth regulating but malleable enough to be regulated efficiently. (Among these are "social organization," "moral credibility," "social meaning," and "social influence.") The payoff is a host of morally acceptable and politically feasible law-enforcement policies -- from curfews, to gang-loitering laws, to order-maintenance policing, to reverse stings, to shaming penalties -- that deter as well or better than severe prison terms and that cost much less.
Abstract: This (short) essay examines the importance of social meaning for the economic analysis of crime. Against the background of social norms, the actions of individuals and communities convey information about what they value. Individuals take these meanings into account when they are responding to the incentives created by criminal law; communities take them into account when they decide what to punish, how to punish it, and how severely. Because meaning matters in these ways, economic analyses of criminal law that abstract from meaning -- by, say, considering only how various policies affect the expected penalty for wrongdoing -- produce unreliable predictions and prescriptions. The essay makes this claim out by considering a number of concrete examples, including tax evasion, juvenile gun possession, gang criminality, alternative sanctions (such as shaming penalties), and corporate criminal liability.
Abstract: This article describes and evaluates three competing conceptions of federal criminal-lawmaking. The first, which can be called the legislative supremacy position, conceives of federal crimes as purely legislative in origin. This is the dominant understanding of how federal criminal-lawmaking does and should work. It also happens to be a rank fiction. The second conception of federal criminal-lawmaking can be called the common-law position. It depicts the operative rules of federal criminal law as judicial in derivation in much the way that the operative rules of federal antitrust and labor law clearly are. The common-law conception offers the best description of federal criminal-lawmaking as it currently exists. It is also normatively superior to the conventional legislative-supremacy position, although it is afflicted with some fairly obvious pathologies. The third and final conception of federal criminal-lawmaking can be called the administrative-law position. On this view, defining operative rules of federal criminal law would be the responsibility of the Executive Branch of government, which would carry out this task either by promulgating legally binding rules akin to the Federal Sentencing Guidelines, or by announcing statutory interpretations that courts would be bound to defer to in criminal prosecutions. The administrative conception is not the system of criminal lawmaking that we have or that anyone thinks we have. Nevertheless, it's the system that we ought to have, and one we easily could with only modest doctrinal innovation.
Abstract: The standard economic conception of deterrence assumes that individuals obey or break the law depending on the "price" of crime -- that is, the severity of punishment discounted by the probability that it will be imposed. This paper supplements the standard conception by showing that individuals' decisions to commit crimes are also responsive to another factor: the decisions of other individuals to commit them or not. Social psychologists use the term social influence to refer to the pervasive tendency of individuals to conform to the behavior and expectations of others. There is ample evidence that social influence affects the commission of all manner of crime, from theft, to homicide, to tax evasion. Identifying the contribution of social influence to criminality suggests that society should attend not just to law's effect on the price of crime, but also to its social meaning -- that is, its power to shape individuals' perceptions of the conduct and values of other individuals. In some cases, policies that seem to have little effect on the price of crime -- including order-maintenance policing and curfews -- might nonetheless be cost-effective deterrents because of their power to suppress signs that individuals are engaged in or value crime. Likewise, policies that appear to be cost-effective means of raising the price of crime -- such as the substitution of severity of punishment for certainty of conviction -- might in fact undermine deterrence by magnifying the perception that crime is rampant.
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