Emotions and Risk Regulation
Susan A. Bandes, Emotions and Risk Regulation, in Bettina Lange, Dania Thomas, Austin Sarat (eds.) From Economy to Society? Perspectives on Transnational Risk Regulation, 62 Studies in Law, Politics, and Society 219-238 (2013). DOI: 10.1108/S1059-4337(2013)0000062009
Posted: 4 Dec 2013 Last revised: 13 Oct 2020
Date Written: December 3, 2013
The concept of risk is often approached as if it is self-defining. Yet placing an event or activity in the category of "risk" is a categorization with consequences. Framing normatively complex problems like immigration, terrorism, or monetary crisis as risks that require regulating suggests that certain cognitive tools are best suited for analyzing them. It suggests that the problems are measurable or quantifiable, that they lend themselves to utilitarian calculus, and that they have ascertainably correct solutions that require no value judgments. This article employs emotion theory to illustrate the difficulties with approaching normatively complex areas of governmental policy through the framework of risk regulation. It argues that interdisciplinary inquiry into the role of emotion in human behavior sheds light on how risks are assessed, prioritized, and ameliorated, on how the category of risk is constructed, and on how that categorization affects the cognitive tools and approaches we bring to normatively complex problems. The article begins with a brief discussion of behavioral law and economics, which styles itself a corrective to law and economics, but which replicates its fatal flaw: its unrealistic view of human behavior. Next it turns to two more specific problems with the standard notion of risk formulation. First, the standard notion reads out the essential role of emotion in deliberation about risk regulation and overvalues top-down expert knowledge. Second, it reads out the heuristics that erase patterns and maintain the status quo. Finally, the article will focus on two illustrative case studies, the Chicago heat wave of 1995, and Hurricane Katrina.
Keywords: risk regulation, behavioral law and economics, emotion theory, cognitive bias, heuristics and bias, judgment under uncertainty
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