• Selected
• Entire List

Abstract:
A growing body of empirical evidence from psychology, sociology, law, and criminal justice has demonstrated that lay intuitions about punishment are strongly rooted in retributivism: i.e., the idea that punishment should be distributed in proportion to moral desert. Level of harm is often thought to be indicative of desert, but harm described by victims (or survivors) in the context of victim impact evidence is subjective and often unforeseeable insofar as it is attributable to chance factors. How do observers (such as jurors or judges) use information about consequences determined by chance factors when they judge punishment? The emotional and cognitive processes involved in jurors' use of victim impact evidence potentially reveals key insights about the psychological mechanisms underlying laypersons' punishment judgments generally. This paper explores empirical evidence for the notion that the subjective harm experienced by the victim of an offense serves as proxy for the level of defendant's effort and culpability, and by implication, the perceived seriousness of the crime.

victim impact statements, punishment, retribution, psychology, capital punishment

Abstract:
Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. The focal point theory makes three claims: (1) that the need for coordination is pervasive because "mixed motive" games involving coordination model common disputes; (2) that, in such games, any third-party cheap talk that calls the players' attention to a particular equilibrium tends to produce that equilibrium; and (3) that law, by publicly endorsing a particular equilibrium, tends to call the players' attention to that outcome. After explaining the first and third claim, we offer an experimental test of the second. Specifically, we investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome.

Abstract:
E-mail recently has become a popular mode of communication for lawyers negotiating deals and conducting settlement discussions. But the obvious conveniences of e-mail as a negotiation medium can blind users to its pitfalls. The impoverished nature of the e-mail medium can lead to misunderstandings, sinister attributions, and ultimately, negotiation impasse. How can lawyers make use of the advantages of e-mail for negotiation while overcoming its disadvantages? One solution consists of a very simple insurance measure: small talk. In the empirical demonstration described in this Article, law students each negotiated a commercial transaction with another law student at a different university using e-mail as the mode of communication. Negotiators who engaged in a brief, getting-to-know-you phone conversation built substantial rapport that resulted in positive social and economic benefits for both parties. This initial small talk by telephone made subsequent e-mail interaction proceed more smoothly because the early creation of rapport helped the negotiators approach the negotiation with a more cooperative mental model, thereby trusting in each other's good intentions. This, in turn, led to a successful negotiation that concluded with a contract, and engendered positive feelings about one another and expectations of successful dealings in the future. By contrast, negotiators who did not engage in small talk were over four times more likely to reach an impasse, and ended up feeling resentful and angry about the negotiation. The Article concludes by discussing implications and recommendations for lawyers who use e-mail to negotiate.

Abstract:
In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay sodomy laws, abortion laws, and Prohibition. In this Chapter, we explore the possible mechanisms by which law can influence attitudes and behavior. To this end, we consider informational and group influence of law on attitudes, as well as the effects of salience, coordination, and social meaning on behavior, and the behavioral backlash that can result from a mismatch between law and community attitudes. Finally, we describe two lines of psychological research - symbolic politics and group identity - that can help explain how people use the law, or the legal system, to effect expressive goals.

expressive law, psychology, morality, social meaning, compliance, flouting

Abstract:
In Kelo v. City of New London, the U.S. Supreme Court ruled that governments are permitted to use the power of eminent domain to force the sale of private property for the purpose of promoting economic development. The decision provoked an unusually widespread popular reaction of outrage. In this chapter, we document the extreme public reaction to Kelo, which cut across political party, race, gender, and education. We focus on the rift between the public's expectations about the circumstances under which government should be permitted to take private property, on the one hand, and eminent domain law, on the other. The Supreme Court has long interpreted the "public use" requirement of the Fifth Amendment quite loosely, but for many decades this went mostly unnoticed by the general public until the Supreme Court declared in Kelo that taking homes for the purpose of economic development satisfies the public use requirement. The Kelo decision seemed to trigger a sudden collective recognition of the Court's public use doctrine, and in this chapter we explore the possible reasons for this change.

Law & Psychology, Norms & Informal Order, Property, Land Use & Real Estate Law

Abstract:
What happens when people's common sense view of justice diverges from the sense of justice they see enshrined in particular legal rules and legal outcomes? In particular, does the perception of one particular law as unjust make people less likely to comply with unrelated laws? This article reports an experiment that empirically tested the Flouting Thesis - the idea that the perceived justice of one law can influence the intention to comply with unrelated laws. Participants who were exposed to laws they perceived as unjust were more willing, as a general matter, to flout unrelated laws, compared to participants exposed to laws perceived as just. This willingness to disobey extended far beyond the unjust law in question, resulting in participants expressing plans to flout unrelated laws in their everyday lives (such as traffic violations, petty theft, and copyright restrictions). Factors contributing to the relationship between perceived injustice and flouting include the role of law in American popular culture, the expressive function of the law in producing compliance, and unconscious psychological processes that underlie the diminished willingness to comply with the law.

Abstract:
In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law`s articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that a mandatory legal rule operating in a property dispute influenced compliance only when there is an element of coordination. Experiment 2 demonstrated that a default rule in a contract negotiation acted as a focal point for coordinating negotiation decisions. Both experiments confirm that legal rules can create a focal point around which people tend to coordinate in a mixed motive coordination game.

expressive law, legitimacy, compliance, coordination, negotiation, mixed motive games, hawk-dove game, chicken game, battle of the sexes game, default rules

Abstract:
Social norms play a central role in explaining why people obey the law. Models featuring the expressive function of the law focus on the norm-mediated effect of law on behavior - that is, law influences existing social norms, which in turn influence behavior. In this Article, we focus on the question of how law influences social norms. We seek to understand the characteristics of law that influence people's opinions about the social acceptability of the behavior law seeks to regulate. To address these questions, we examined the practice of sharing digital files of copyrighted material ("file sharing"). We conducted an experiment to identify the characteristics of copyright law that influence perceptions of the consensus about unlawful file sharing. Results suggest that both formal and informal sanctions associated with copyright regulations influence perceptions of file sharing behavior. At the same time, law did not influence perceptions of file sharing behavior in the absence of any sanctions, and making salient the moral justifications for refraining from unlawful file sharing also did not influence perceptions. We discuss the implications of our study both for the theoretical debate about the expressive function of the law, and for the policy debate regarding curbing unlawful file sharing.

Abstract:
What happens when a person's common-sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis - the idea that the perceived legitimacy of one law or legal outcome can influence one's willingness to comply with unrelated laws - and provides original experimental evidence to support this thesis. The results suggest that willingness to disobey the law can extend far beyond the particular unjust law in question, to willingness to flout unrelated laws commonly encountered in everyday life (such as traffic violations, petty theft, and copyright restrictions), as well as willingness of mock jurors to engage in juror nullification. Finally, this Article explores the relationship between perceived injustice and flouting and offers several possible explanations, including the role of law in American popular culture and the expressive function of the law in producing compliance.

justice, legitimacy, psychology, compliance

Abstract:
Consent searches reportedly comprise a vast proportion of government searches. The use of consent searches allows the police to uncover contraband in situations where there is otherwise no lawful basis for conducting a search. The Court's most recent pronouncement about the bounds of consent came this past term in U.S. v. Drayton, in which police boarded a Greyhound bus and asked passengers' permission to search their bags and their persons. Given the enormous practical value of consent in Fourth Amendment jurisprudence, it is not surprising that the Court repeatedly has interpreted freedom to refuse police requests to search very broadly. What is troubling, however, is the ever-widening gap between Fourth Amendment consent jurisprudence, on the one hand, and scientific findings about the psychology of compliance and consent, on the other. Ever since the Court first applied the totality of the circumstances standard to consent search issues, it has held in case after case (with only a couple of exceptions) that a reasonable person in the situation in question would feel free to refuse the police request to search. By contrast, empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness have all converged on the same conclusion: our freedom to refuse to comply under situationally-induced pressures to do so is extremely limited. These situational pressures often are imperceptible to observers; at the same time they can be so overwhelming that attempts to reduce them with prophylactic warnings are insufficient.

In light of mounting empirical evidence, it is remarkable that the totality of the circumstances standard has nearly always led the Court to the conclusion that a reasonable person would feel free to refuse the police request to search. Consent search doctrine is now at a point where the Court's reasoning must struggle against scientific findings about compliance, and against common sense. Thus, the Court's consent doctrine has devolved into a fiction of the crudest sort - a mere device for attaining the desired legal consequence. This has led to suspicionless searches of many thousands of innocent citizens who consent to searches under coercive circumstances. Perhaps the systematic suspicionless searching of innocent citizens is a worthwhile price to pay in exchange for effective law enforcement, but the Court has not engaged in this analysis in any of its Fourth Amendment consent search or seizure cases. Incorporation of empirical findings on compliance and social influence into Fourth Amendment consent jurisprudence would help to dispel the air of unreality that characterizes current doctrine.

search, seizure, Fourth Amendment, consent

Abstract:
The U.S. Supreme Court's decision in Kelo v. City of New London, allowing governments to force the sale of private property to promote economic development, provoked bipartisan and widespread public outrage. Given that the decision in Kelo was rendered virtually inevitable by the Court's earlier public use decisions, what accounts for the dread and dismay that the decision provoked among ordinary citizens? We conducted two experiments that represent an early effort at addressing a few of the many possible causes underlying the Kelo backlash. Together, these studies suggest that the constitutional focus on public purpose in Kelo does not fully, or even principally, explain the public outrage that followed it. Our experiments suggest that subjective attachment to property looms far larger in determining the perceived justice of a taking. We have only begun to map out the contours of this response, but these initial findings show promise in helping to build a more democratic model for the law and policies dealing with takings.

eminent domain, law & psychology, property, subjective value

Abstract:
Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. We argue that mixed motive games involving coordination model many common disputes, and that, in such games, any third-party cheap talk, including legal rules, that calls the players' attention to a particular equilibrium tends to produce that equilibrium. We investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome.

law and social conflict, law and dispute resolution, law and decision making

Abstract:
Two experiments investigated whether outcomes that violate people's moral standards increase their deviant behavior (the moral spillover effect). In Study 1, participants read about a legal trial in which the outcome supported, opposed or was unrelated to their moral convictions. Relative to when outcomes supported moral convictions, when outcomes opposed moral convictions people judged the outcome to be less fair, were more angry, were less willing to accept the outcome, and were more likely to take a borrowed pen. In Study 2, participants who recalled another person's moral violation were more likely to cheat on an experimental task relative to angry or neutral condition participants. Taken together, results provide evidence for moral spillover: outcomes that violate moral standards increase deviant behavior.

moral psychology, legitimacy, compliance, emotion, moral outrage

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:
Although citizen panels have become quite popular for policy making, there is very little research on how the procedures these groups employ to manage consensus affect their decision making. We measured the effect of a simple procedural mechanism, agenda order, on individual and group allocations for an HIV policy. Allocations made in a large-small (state-region-city) order were substantially smaller, overall, than were allocations made in small-large (city-region-state) order, and group allocations were smaller, overall, than were individual judgments. The Social Judgment Scheme model (Davis, 1996) provided a good fit of the group allocation, and suggested a mechanism for this overall downward shift in judgment. Normative (i.e. calibration) analyses, as well as subjective impressions (e.g. confidence, repeat judgments) favored relatively smaller allocations so that judgments made in large-small order, and judgments made in groups were arguably more defensible than were individual or small-large judgments. We discuss these strong agenda influences and their implications both for citizen panels and for theoretical research on group consensus.

group decision making, behavioral economics, consensus, AIDS, social judgment, agendas