This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bail-out of the major American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted private/public nature of the corporate form and for examining what it means for a corporation to be American and what duties and benefits such an identity confers.
By examining the ways in which consumable myths of the American corporation interact with the institutions and legal regimes that govern American corporations, I argue that the advertised image of the national in the global economy serves as a broad corporate veil, a way of obscuring the consumer’s understanding of corporate identity and corporate accountability. With these overarching issues and questions as a guide, this Article will historically situate the identification of corporate nationality within a broader framework of debates on corporate social responsibility and interrogate the way that we conceive of the American corporation and corporate decision making.
As someone who was better at English and history than math and science in high school, what I chose to study in college was partly an effort to shy away from the latter fields and take refuge in “softer” subjects. “Leave the questions of science to the scientists, I am concerned with justice and morality,” we, who chose humanities, said! These two domains were exclusive — “non-overlapping magisteria” as Stephen Jay Gould might say. No meaningful dialogue between the disciplines was possible or necessary.
This attitude, however, is lazy and destructive — or at best, hopelessly antiquated.
The scientific study of human behavior is shedding new light on our actions and inner life. To ignore these insights is not just a mistake. It is criminal.
I’m on our school’s mock trial team and have done mock trial for seven years now. There was a point at the beginning when I really felt that I was crusading on the side of righteousness in a system optimized for delivering justice. But eventually, I came to realize the solutions being offered in the courtroom simply could not get to the heart of the matter in the way science could. This realization came not from inside a courtroom, but rather from a brain scientist writing in a magazine.
In an article in The Atlantic, “The Brain on Trial,” David Eagleman makes the case that we must wade out of the swamp of the medieval machinations of our legal system — obsessed with the ancient and largely useless preoccupation with assigning blame.
He cites a seemingly straightforward pedophilia case. Eagleman describes the case of a 40-year-old man who “developed an interest in child pornography” and began to make “subtle sexual advances toward his prepubescent stepdaughter.” Eventually he was sent to prison. It was only after the discovery and successful removal of a tumor in his brain that he was able to abandon his pedophilia. Eagleman explains, “When your biology changes, so can your decision-making and your desires. The drives you take for granted… depend on the intricate details of your neural machinery.” Eagleman argues that “we can build a legal system more deeply informed by science, because when modern brain science is laid out clearly, it is difficult to justify how our legal system can continue to function without taking what we’ve learned into account.”
But, David Eagleman is a neuroscientist. Of course he would be inclined to make such a grandiose claim for his discipline. Well, we are hearing the same calls from within the law.
Jon Hanson is Law Professor at Harvard. He has a bachelor’s degree in Economics and a degree in law. Yet, eventually his studies in law — and specifically the tobacco industry — led him to abandon this field for the study social psychology, social cognition and other mind sciences.
He has since founded “The Project on Law and the Mind Sciences” at Harvard Law School and advocates for his version of the theory he calls “situationism.” As though it were coming straight from the mouth of Eagleman, Hanson writes that situationism “is premised on the social scientific insight that the naïve psychology… on which our laws and institutions are based is largely wrong. Situationists… seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines.”
And those insights are impossible to ignore. Take the MAO-A gene. Having a certain form of this gene (the low MAO-A gene), when combined with childhood mistreatment, significantly increases your chances of becoming violent. Yet, I have only ever heard of one case where such evidence was even up for discussion. In response to that evidence, the D.A. said, “The more of this information that you put before a jury, the [greater the] chances of confusing them.” In other words, the claim is not that such evidence is irrelevant, but rather we are too stupid to handle it. How condescending and pessimistic. Even the prosecution’s rebuttal expert claimed “it’s way too early to use this research in a court of law.” If we are ever to progress morally and socially we cannot afford to hold such views.
Not just our legal system, but our political system too could use an injection of scientific reasoning. Many political claims are testable scientific hypotheses and ought to be treated as such. To support the “war on drugs,” for example, under the claim that it reduces crime and drug use is to make a scientifically testable and falsifiable hypothesis. Of course, the data is messy and experiments hard to come by, but the very act of framing these as scientific questions will help us hack through this choking epistemic relativism in which everyone is entitled to an opinion by virtue of the fact that their justification may correspond to a possible version of reality. The world is not essentially unknowable. And the tools of science can help us peer into the eyes of reality. And from that reality, we should build our society.
I’m not worried that we run the risk of ignoring science as a great tool in our legal system, political debates or moral reasoning. Its encroachment into these domains is inevitable. The question is how quickly we’re going to embrace it rather than resist it at the cost of progress. With great gusto and speed, not only must scientists become lawyers, politicians and preachers but lawyers, politicians and preachers must become scientists.
Five years ago Jon Hanson and Michael McCann wrote and published the following post about Joseph Kony as part of a series on the the situational source of evil. In light of the attention Kony is now getting (see Youtube video, “Kony 2012,” here or at bottom of this post), we thought it might be worth posting again.
* * *
In Parts I, II, and III of his recent posts on the Situational Sources of Evil, Phil Zimbardo makes the case that we too readily attribute to an evil person or group what should be, at least in part, attributed to situation. This was a key lesson of Milgram’s obedience experiments as well as Zimbardo’s Stanford Prison Experiment. And that lesson, unfortunately, seems similarly evident in far too many real-world atrocities.
There are numerous reasons, some of which those earlier posts highlighted, why the situationist lesson is an unpopular one. This post suggests another.
Think for a moment about the sort of evil that is so grotesquely apparent right now in The Sudan and Uganda, both of which are in the midst of civil wars–wars that have featured indescribably horrific acts, such as villages ravaged by soldiers who chop off limbs of children. Perhaps most harrowingly, the “evil-doers” are often children themselves, many of whom are kidnapped and then conscripted into bands of mutilating marauders.
Joseph Kony’s Lord Resistance Army, for example, is comprised mainly of abducted children who roam northern Uganda, where “many families have lost a child through abduction, or their village . . . [have been] attacked and destroyed, families burned out and/or killed, and harvests destroyed by . . . . the Lord’s Resistance Army.”
The plight of Ochola John, pictured below, exemplifies an all-too-common story: his hands, lips, nose, and ears were cut off by members of the Lord Resistance Army. It is a difficult image to take in (note, we opted against many other more graphic photos).
Such atrocities have led many in Uganda toquestion how children could become evil incarnate:
We don’t understand how Kony could have a child soldier slash a fellow child abductee with a machete or make a group of children bite their agemate with their bare teeth till he bleeds to death.
In searching for answers, some have turned to situationist factors:
It is easy to assume that the person who commits such an atrocity is deranged or even inhuman. Sometimes it is the case. But not always. It is possible for a normal individual to commit an abnormal, sick act just because of the situation s/he finds him/herself in, and the training s/he is exposed to.
How could this happen? Zimbardo’s ten-factor list suggests some of situationist grease that no doubt lubricates the wheels of evil. Kony’s methods and ideology are extreme, to be sure, but they are familiar: saving his country from evil by building a theocracy.
In that way, dispositionism can give way to a weak form of situationism, but only up to a point — a tendency that has elsewhere been called selective situationism or naive situationism. Kony’s evil disposition is the “situation” influencing the impressionable young boys. In the end, we place evil almost exclusively in one or a small number of actors — usually human, but sometimes supernatural. No doubt, Kony is immensely blameworthy, so much so that we, the authors, can scarcely bring ourselves even to suggest that the horrors might have multiple origins, beyond the gruesome actions of the most salient actors involved.
By locating evil ultimately in a person or group, we avoid a disconcerting possibility that there is more to the situation beyond the bad individuals. When evil comes packaged within a few human bodies, it is rendered more tractable, identifiable, and perhaps, in a way, less threatening — very “them,” and very “other.” Such a conception undermines the unsettling possibility that, because of the situation, there may be more “evil actors” behind those that we currently face. Get rid of the bad apples, we imagine, and the rest of the batch will be fine. Perhaps more important, it permits us to ignore the possibility that the barrel may be contaminating. We need not confront any apprehensions that our systems are unjust, the groups we identify with are contributing to or benefitting from that injustice, or that we individually play some causal role in it.
Joseph Kony is said to have abducted 20,000 kids in the last 20 years. But he has done so with minimal resistance from Uganda’s government, and with virtually no intervention from foreign powers.
Is there any line at which we non-salient bystanders of the world, including Americans, begin to bear some share of responsibility for suffering such as that endured by Ochola John? Maybe the answer is “no,” as most of us apparetly presume. But maybe it is “yes,” and maybe that line has already been crossed.
We are not making a foreign policy recommendation here. We are simply highlighting a form of blindness that we suspect influences all policy. That is, dispositionism (and motivated attributions generally) helps us push that line of responsibility toward, if not all the way to, the vanishing point — even if it does little to reduce the atrocities themselves. Dispositionism helps us to see the apple, or perhaps the tree, and to miss the orchard and the forest and, perhaps, ourselves.
There are other examples of that tendency of allowing our attributions toward salient (and often despicable) individuals to eclipse any possibility of a more complex, far-reaching causal story. Our criminal justice system is partially built upon it. Consider, also, the widespread response to Susan Sontag’s infamous New Yorker essay, in which she described the of 9/11 terrorism not as
a “cowardly” attack on “civilization” or “liberty” or “humanity” or “the free world” but an attack on the world’s self-proclaimed super-power, undertaken as a consequence of specific American alliances and actions. . . . And if the word “cowardly” is to be used, it might be more aptly applied to those who kill from beyond the range of retaliation, high in the sky, than to those willing to die themselves in order to kill others. In the matter of courage (a morally neutral virtue): whatever may be said of the perpetrators of Tuesday’s slaughter, they were not cowards.
Regardless of the veracity of Sontag’s claims, many Americans did not want to hear such a non-affirming interpretation in the wake of the terror. She not only implicated American policies but suggested that perhaps the attackers were not as “beneath us” as many had portrayed.
As one of us summarized in another article (with Situationist contributors Adam Benforado and David Yosifon), many conservative commentators responded to Sontag and her claims with predictable rage and disgust (while most moderates and liberals took cover in the safety of silence).
Charles Krauthammer called Sontag “morally obtuse,” while Andrew Sullivan labeled her “deranged.”John Podhoretz claimed that she exemplified the “hate-America crowd,” that out-group of Americans who are “dripping with contempt for the nation’s politics, its leaders, its economic system and for their foolish fellow citizens.” And Rod Dreher really drove home the point saying that he wanted“to walk barefoot on broken glass across the Brooklyn Bridge, up to that despicable woman’s apartment, grab her by the neck, drag her down to ground zero and force her to say that to the firefighters.”
We see ourselves as “just,” and don’t like being “implicated” by clear injustice, a discomfort that is often assuaged by looking for the Evil Actor. But when evil continues, even after the evil individuals have been stopped, perhaps we glimpse one reason why, as George Santayana famously put it, “those who cannot remember the past are condemned to repeat it.”
Part VII includes a video entitled “Resisting the Drums of War.” The film was created and narrated by psychologist Roy J. Eidelson, Executive Director of the Solomon Asch Center at the University of Pennsylvania.
To review a larger sample of posts on the causes and consequences of human conflict, click here.
Matty McFeely, former President of SALMS and current 3L, just had a situationist-inspired letter to the editor published in The New Yorker. The article to which he was responding (by Rachel Aviv’s “No Remorse,” January 2, 2012) was about a 15-year-old sentenced to life without parole for shooting his grandfather. Before the murder, the boy’s girlfriend had just dumped him and a number of other things weren’t going his way, and the article asked whether putting a minor away for life was appropriate. Matty’s letter read as follows:
Aviv’s article forces us to rethink the justice system’s treatment of young adults, but it should also be a call for stricter gun control. It was too simple for Eliason to take “his grandfather’s loaded gun off the coatrack” and then shoot his grandfather. Eliason’s grim tale shows what surveys have already told us: the availability of guns is linked to higher rates of both suicide and homicide. A teen-ager’s rather routine funk became a senseless tragedy because a lethal device was at hand. A person’s situation has a lot of power over his or her behavior; we would be wise to recognize that fact and shape our situations accordingly.
Professor Caroline Forell has written a wonderfully thoughtful, situationist article, titled “McTorts: The Social and Legal Impact of McDonald’s Role in Tort Suits (forthcoming in Volume 24 of the Loyola Consumer Law Review) on SSRN. Here’s the abstract.
* * *
McDonald’s is everywhere. With more than 32,000 restaurants around the world, its Golden Arches and “Mc” conjure up both the good and the bad about American capitalism.
This article looks at McDonald’s, impact on public policy, and tort law from historical and social psychology perspectives, following McDonald’s from its beginnings in the mid-1950’s through today. By examining McDonald’s Corp. v. Steel and Morris (McLibel), Liebeck v. McDonald’s Restaurants (Hot Coffee), and Pelman v. McDonald’s Corp. (Childhood Obesity), I demonstrate that certain tort cases involving McDonald’s have had particularly important social and legal consequences that I attribute to McDonald’s special influence over the human psyche, beginning in childhood. In explaining McDonald’s extraordinary power over the public imagination and how this affects lawsuits involving it, I rely on the social psychology approach called situationism that recognizes the strong effect that environmental influences can have on individual decision-making. I conclude that lawsuits involving McDonald’s have had and will continue to have important social and legal consequences because of the unique role this corporation plays in our lives.
* * *
Download the paper for free here.
Related Situationist posts:
Professor Forell relies on an article by Situationist Contributors, Adam Benforado, Jon Hanson, and David Yosifon, entitled “Broken Scales: Obesity and Justice in America,” which you can access here.
Review tens of Situationist posts on the topic of diet and obesity by clicking here.
Ryan Fehr, Michele Gelfand, and Monisha Nag, recently posted their paper, “The Road to Forgiveness: A Meta-Analytic Synthesis of its Situational and Dispositional Correlates” on SSRN. Here’s the abstract.
* * *
Forgiveness has received widespread attention among psychologists from social, personality, clinical, developmental and organizational perspectives alike. Despite great progress, the forgiveness literature has witnessed few attempts at empirical integration. Toward this end, we meta-analyze results from 175 studies and 26,006 participants to examine the correlates of interpersonal forgiveness (i.e. forgiveness of a single offender by a single victim). A tripartite forgiveness typology is proposed, encompassing victims’ cognitions, affect, and constraints following offense. Hypotheses are tested with respect to 22 unique constructs that have been measured across different fields within psychology. We also evaluated key sample and study characteristics including gender, age, time, and methodology as main effects and moderators. Results highlight the multifaceted nature of forgiveness. Variables with particularly notable effects include intent (r̅ = -.49), state empathy (r̅ = .51), apology (r̅ = .42), and state anger (r̅ = -.41). Consistent with previous theory, situational constructs are shown to account for greater variance in forgiveness than victim dispositions, although within-category differences are considerable. Sample and study characteristics yielded negligible effects on forgiveness, despite previous theorizing to the contrary: the effect of gender was non-significant, r̅ = .01 and the effect of age was negligible, r̅ = .06. Preliminary evidence suggests that methodology may exhibit some moderating effects. Scenario methodologies led to enhanced effects for cognitions; recall methodologies led to enhanced effects for affect.
Rebecca Saxe (Carole Middleton Career Development Professor in the department of brain and cognitive sciences at MIT) discusses the under-appreciated power of situation.
Situationist Contributor John Jost recently co-authored a brief comment, titled “Virtue ethics and the social psychology of character: Philosophical lessons from the person–situation debate,” which will be of interest to many of our readers. Here are the opening paragraphs.
* * *
A venerable tradition of ethical theory drawing on Aristotle’s Ethics still flourishes alongside consequentialist (utilitarian) and deontological (Kantian) alternatives. The Aristotelian notion is that if humans develop in themselves and inculcate in others certain settled dispositions to reason and act in characteristic ways—bravely, honestly, generously—they will behave in ways that secure and preserve eudaimonia (happiness or well-being) for themselves and others (Burnyeat, 1980; Hursthouse, 1999; Sherman, 1997). Virtue theorists are therefore committed to the existence of significant moral personality traits that not only summarize good (vs. bad) behavior but also explain the actions of the virtuous (and vicious) agents.
A powerful empirical challenge to virtue theories developed out of Mischel’s (1968) critique of personality traits and social psychological research emphasizing the ‘‘power of the situation” (Ross & Nisbett, 1991). These lessons were applied, perhaps overzealously, to moral philosophy by Flanagan (1991), Harman (1999), Doris (2002), and Appiah (2008). Harman (1999) claimed: ‘‘We need to convince people to look at situational factors and to stop trying to explain things in terms of character traits. . . [and] to abandon all talk of virtue and character, not to find a way to save it by reinterpreting it” (p. 1). This position, which might be termed eliminative situationalism, stimulated useful philosophical debate, but it is too dismissive of the role of personality (or character) in producing ethically responsible behavior.
Situationist Contributor Jon Hanson was recently interviewed by Big Think. Here is his answer to the following question: “How have policy makers responded to your research?”
The sight of human beings, most of them unarmed, being gunned down from above is jarring enough.
But for many people who watched the video of a 2007 assault by an Army Apache helicopter in Baghdad, released Monday by WikiLeaks.org, the most disturbing detail was the cockpit chatter. The soldiers joked, chuckled and jeered as they shot people in the street, including a Reuters photographer and a driver, believing them to be insurgents.
* * *
* * *
In recent days, many veterans have made the point that fighters cannot do their jobs without creating psychological distance from the enemy. One reason that the soldiers seemed as if they were playing a video game is that, in a morbid but necessary sense, they were.
“You don’t want combat soldiers to be foolish or to jump the gun, but their job is to destroy the enemy, and one way they’re able to do that is to see it as a game, so that the people don’t seem real,” said Bret A. Moore, a former Army psychologist and co-author of the forthcoming book “Wheels Down: Adjusting to Life After Deployment.”
Combat training “is the only technique that will reliably influence the primitive, midbrain processing of a frightened human being” to take another life, the colonel writes. “Conditioning in flight simulators enables pilots to respond reflexively to emergency situations even when frightened.”
The men in the Apache helicopter in the video flew into an area that was being contested, during a broader conflict in which a number of helicopters had been shot down.
Several other factors are on display during the 38-minute video, said psychologists in and out of the military. . . .
* * *
The fighters in the helicopter say over the radio that they are sure they see a “weapon,” even though the Reuters photographer, Namir Noor-Eldeen, is carrying a camera.
“It’s tragic that this all begins with the apparent mistaking of a camera” for a weapon, said David A. Dunning, a psychologist at Cornell University. “But it’s perfectly understandable with what we know now about context and vision. Take the same image and put it in a bathroom, and you swear it’s a hair dryer; put it in a workshop, and you swear it’s a power drill.”
* * *
After the helicopter guns down a group of men, the video shows a van stopping to pick up one of the wounded. The soldiers in the helicopter suspect it to be hostile and, after getting clearance from base, fire again. Two children in the van are wounded, and one of the soldiers remarks, “Well, it’s their fault for bringing their kids into a battle.”
Here again, psychologists say, when people are intensely focused on observing some specific feature of the landscape, they may not even see what is obvious to another observer. The classic demonstration of this is a video in which people toss around a basketball; viewers told to count the number of passes rarely see a person in a gorilla suit who strolls into the picture, stops and faces the camera, and strolls out.
* * *
* * *
The soldiers were looking for combatants; experts say it is not clear they would have seen children, even if they should have.
The video’s emotional impact on viewers is also partly rooted in the combination of intimacy and distance it gives them, some experts said. The viewer sees a wider tragedy unfolding, in hindsight, from the safety of a desk; the soldiers are reacting in real time, on high alert, exposed.
In recent studies, researchers have shown that such distance tempts people to script how they would act in the same place, and overestimate the force of their own professed moral principles.
“We don’t express our better angels as much as we’d like to think, especially when strong emotions are involved,” Dr. Dunning said. He added, “What another person does in that situation should stand as forewarning for what we would do ourselves.”
Nestar John Charles Russell is publishing an article, titled “Milgram’s obedience to authority experiments: Origins and early evolution.” Here’s the abstract.
Stanley Milgram’s Obedience to Authority experiments remain one of the most inspired contributions in the field of social psychology. Although Milgram undertook more than 20 experimental variations, his most (in)famous result was the first official trial run–the remote condition and its 65% completion rate. Drawing on many unpublished documents from Milgram’s personal archive at Yale University, this article traces the historical origins and early evolution of the obedience experiments. Part 1 presents the previous experiences that led to Milgram’s conception of his rudimentary research idea and then details the role of his intuition in its refinement. Part 2 traces the conversion of Milgram’s evolving idea into a reality, paying particular attention to his application of the exploratory method of discovery during several pilot studies. Both parts illuminate Milgram’s ad hoc introduction of various manipulative techniques and subtle tension-resolving refinements. The procedural adjustments continued until Milgram was confident that the first official experiment would produce a high completion rate, a result contrary to expectations of people’s behaviour. Showing how Milgram conceived of, then arrived at, this first official result is important because the insights gained may help others to determine theoretically why so many participants completed this experiment.
* * *
You can download the article for free here. (Thanks to Situationist friend, Brandon Weiss, for sending us this link.)
Situationist Contributor Jon Hanson was recently interviewed by Big Think. Here is his answer to the following question: “What are some of the changes that the legal system should be making?”
Situationist Contributor was recently interviewed by Big Think. Here is his answer to the following questions: “What is wrong with our legal system’s notion of human behavior?”; and “What led you to study the link between law and cognition?”
Situationist Contributor Jon Hanson, Kathleen Hanson, and Melissa Hart, have recently posted their outstanding introduction to law and economics (to be published in Dennis Patterson’s forthcoming volume, “Compantion to Philosophy of Law and Legal Theory) on SSRN. The chapter includes a brief discussion of the emergence of economic behavioralism and situationism, and it is now available to download for free here. Here’s the abstract.
* * *
This chapter provides an introduction to the history, uses, methods, strengths, and limits of law and economics. It begins by examining the role of positive and normative approaches to law and economics. To examine the positivist thesis – that the law does in fact tend toward efficiency – the chapter discussed and analyzes the famous Hand Formula developed by Judge Learned Hand in United States v. Carroll Towing. As one of the only traditional cases in which a judge arguably made efficiency his explicit goal, the case presents an excellent opportunity to assess whether, even an efficiency-oriented judge will or can identify the efficient result. The chapter reviews the possible liability rules that might have been applied in Carroll Towing, and uses that review to introduce many of the core concepts and methods of law and economics, including game theory. Ultimately, the chapter concludes that, although the Hand Formula may have led to one of the possible efficient results, there is little reason to be confident, and some reason to doubt, that Judge Hand reached the most efficient outcome. The difficulties inherent in selecting the efficient rule through litigation present a significant challenge to the positivist case for legal economics.
The second part of the chapter considers both the normative support for efficiency and the range of challenges to, and refinements of, the normative position that have developed in recent years. The chapter highlights some of the trade-offs inherent in the law and economics approach and concludes that law and economics has, like any legal theory, both costs and benefits.
Here is Anthony Kammer’s fine article, titled “Meeting of the Minds: Law Students Flock to Psychology Lectures,” in the latest edition of The Harvard Law Record.
* * *
In a recent New York Times column, David Brooks described psychology as a field that was taking off among young people, who were interested in probing for more accurate answers to the mysteries of human behavior. That might help explain why audiences packed the lectures of two Harvard psychologists who presented their research at the law school this September. Both talks, sponsored by the Student Association for Law and Mind Sciences (SALMS), raised intriguing questions about the way our psychological intuitions are formalized in the law.
Wegner’s experiments suggest that people involved in a common activity, such as using an ouija-board, are often unable to discern which actions they produced themselves and which were caused by someone else. He described several other studies in which people misidentify behaviors as their own. It has been shown in cases of facilitated communication, for example, in which a therapist helps an autistic patient type out answers to a question, that the messages communicated actually originate from the therapist and not the autistic patient, although the therapist reports no awareness that he or she actually produced the responses. This work suggests that while people feel as if they are the authors of their choices, this process is an evolved sensation and not the most descriptively accurate account for our behaviors.
On September 21st, Fiery Cushman, a newly-minted PhD recipient and post-doctoral fellow at Harvard’s Mind, Brain and Behavior Initiative, presented some of his recent research at an event titled “Outcome vs. Intent: Which Do We Punish, and Why?” Cushman’s work suggests that at a gut-level, people assess whether a behavior was morally right or wrong by looking at the actor’s intentions, but when assigning punishment, people are overwhelmingly interested in outcomes, even if an outcome was accidental.
Cushman described several experiments where he was able to look at a participant’s intentions in isolation from the actual outcome of the participant’s actions. In one case, participants were given the choice of dice that would later be rolled to assign rewards to a second, receiving party. When given the opportunity, the recipient would consistently punish more often when the dice produced less favorable rewards, even if the initial participant intended to provide rewards generously. This work has interesting implications for tort law, explaining in part why findings of negligence lead to large compensatory rewards even in the absence of any intentional action.
As this article went to press, SALMS was planning further events, including an October 22nd, discussion by [Situationist Fellow] Goutam Jois ’07 entitled “Stare Decisis is Cognitive Error”.
Founded in the late spring of 2009, The Student Association for Law & Mind Sciences (SALMS) is the outgrowth of Professor [& Situationist Contributor] Jon Hanson’s Ideology, Psychology and Law seminar course as well as his Project on Law and Mind Sciences. SALMS is the first student group at any law school merging law and mind and sciences and is already working with students at other law schools to create similar organizations around the country. Its speaker series is intended to both introduce the legal community to relevant work in psychology and the related mind-sciences and to encourage mind scientists to explore the implications of their work for law and policy-making.
In recent years, the number of law review articles citing to prominent mind sciences research has skyrocketed, and most top-tier law schools now offer courses emphasizing relevant insights from social psychology and related fields. In fact, the course descriptions of nine courses in the 2009-2010 HLS course catalog explicitly mention psychology. And in the wake of the recent financial crisis, economists and lawyers have turned increasingly to behavioral economics and social psychology to understand the underlying cognitive mechanisms that shape and influence our institutions. Psychology and neuroscience are increasingly informing and challenging some of the assumptions of the criminal justice system, and the mind science promise to help sharpen and clarify legal concepts.
In addition to co-sponsoring events with other HLS student groups, SALMS has already begun to forge close relationships with organizations across the University, including graduate and undergraduate students affiliated with the Harvard Mind, Brain, and Behavior Initiative.
The group is hoping to start a journal next fall to explore further interdisciplinary work in law and the mind sciences. It would be the first academic journal of its kind in the world.
In the following TED Talk video, Dan Ariely, Professor of Economics at Duke University, behavioral economist, and the author of Predictably Irrational, offers some now-standard but still interesting illustrations of how situation influences our perception and choices.
Situationist Contributer Philip Zimbardo has authored the preface to a new edition of social psychologist Stanley Milgram’s seminal book Obedience to Authority. This is the second of a two-part series derived from that preface. In Part I of the post, Zimbardo describes the inculcation of obedience and Milgram’s role as a research pioneer. In this part, Zimbardo answers challenges to Milgram’s work and locates its legacy.
* * *
Unfortunately, many psychologists, students, and lay people who believe that they know the “Milgram Shock” study, know only one version of it, most likely from seeing his influential movie Obedience or reading a textbook summary.
He has been challenged for using only male participants, which was true initially, but later he replicated his findings with females. He has been challenged for relying only on Yale students, because the first studies were conducted at Yale University. However, the Milgram obedience research covers nineteen separate experimental versions, involving about a thousand participants, ages twenty to fifty, of whom none are college or high school students! His research has been heavily criticized for being unethical by creating a situation that generated much distress for the person playing the role of the teacher believing his shocks were causing suffering to the person in the role of the learner. I believe that it was seeing his movie, in which he includes scenes of distress and indecision among his participants, that fostered the initial impetus for concern about the ethics of his research. Reading his research articles or his book does not convey as vividly the stress of participants who continued to obey authority despite the apparent suffering they were causing their innocent victims. I raise this issue not to argue for or against the ethicality of this research, but rather to raise the issue that it is still critical to read the original presentations of his ideas, methods, results, and discussions to understand fully what he did. That is another virtue of this collection of Milgram’s obedience research.
A few words about how I view this body of research. First, it is the most representative and generalizable research in social psychology or social sciences due to his large sample size, systematic variations, use of a diverse body of ordinary people from two small towns—New Haven and Bridgeport, Connecticut—and detailed presentation of methodological features. Further, its replications across many cultures and time periods reveal its robust effectiveness.
As the most significant demonstration of the power of social situations to influence human behavior, Milgram’s experiments are at the core of the situationist view of behavioral determinants. It is a study of the failure of most people to resist unjust authority when commands no longer make sense given the seemingly reasonable stated intentions of the just authority who began the study. It makes sense that psychological researchers would care about the judicious use of punishment as a means to improve learning and memory. However, it makes no sense to continue to administer increasingly painful shocks to one’s learner after he insists on quitting, complains of a heart condition, and then, after 330 volts, stops responding at all. How could you be helping improve his memory when he was unconscious or worse? The most minimal exercise of critical thinking at that stage in the series should have resulted in virtually everyone refusing to go on, disobeying this now heartlessly unjust authority. To the contrary, most who had gone that far were trapped in what Milgram calls the “agentic state.”
These ordinary adults were reduced to mindless obedient school children who do not know how to exit from a most unpleasant situation until teacher gives them permission to do so. At that critical juncture when their shocks might have caused a serious medical problem, did any of them simply get out of their chairs and go into the next room to check on the victim? Before answering, consider the next question, which I posed directly to Stanley Milgram: “After the final 450 volt switch was thrown, how many of the participant-teachers spontaneously got out of their seats and went to inquire about the condition of their learner?” Milgram’s answer: “Not one, not ever!” So there is a continuity into adulthood of that grade-school mentality of obedience to those primitive rules of doing nothing until the teacher-authority allows it, permits it, and orders it.
My research on situational power (the Stanford Prison Experiment) complements that of Milgram in several ways. They are the bookends of situationism: his representing direct power of authority on individuals, mine representing institutional indirect power over all those within its power domain. Mine has come to represent the power of systems to create and maintain situations of dominance and control over individual behavior. In addition, both are dramatic demonstrations of powerful external influences on human action, with lessons that are readily apparent to the reader, and to the viewer. (I too have a movie, Quiet Rage, that has proven to be quite impactful on audiences around the world.) Both raise basic issues about the ethics of any research that engenders some degree of suffering and guilt from participants. I discuss at considerable length my views on the ethics of such research in my recent book The Lucifer Effect: Understanding Why Good People Turn Evil (2008). When I first presented a brief overview of the Stanford Prison Experiment at the annual convention of the American Psychological Association in 1971, Milgram greeted me joyfully, saying that now I would take some of the ethics heat off his shoulders by doing an even more unethical study!
Finally, it may be of some passing interest to readers of this book, that Stanley Milgram and I were classmates at James Monroe High School in the Bronx (class of 1950), where we enjoyed a good time together. He was the smartest kid in the class, getting all the academic awards at graduation, while I was the most popular kid, being elected by senior class vote to be “Jimmie Monroe.” Little Stanley later told me, when we met ten years later at Yale University, that he wished he had been the most popular, and I confided that I wished I had been the smartest. We each did what we could with the cards dealt us. I had many interesting discussions with Stanley over the decades that followed, and we
almost wrote a social psychology text together. Sadly, in 1984 he died prematurely from a heart attack at the age of fifty-one.
[Milgram] left us with a vital legacy of brilliant ideas that began with those centered on obedience to authority and extended into many new realms—urban psychology, the small-world problem, six degrees of separation, and the Cyrano effect, among others—always using a creative mix of methods. Stanley Milgram was a keen observer of the human landscape, with an eye ever open for a new paradigm that might expose old truths or raise new awareness of hidden operating principles. I often wonder what new phenomena Stanley would be studying now were he still alive.
* * *
To read Part I of this post, click here. To read three related Situationist posts by Phil Zimbardo, see “The Situation of Evil,” Part I, Part II, and Part III.
Below, we’ve posted titles and a brief quotation from some of our favorite non-Situationist situationist blogging during February 2009. (They are listed in alphabetical order by source.)
“Alan Stone in the Boston Review: The power of The Reader, however, is that it is psychologically believable. Schlink’s book is written in short chapters; each offers at least one telling psychological insight about dreams, about memory, about the disconnect between what I do and what I am. Schlink subtly raises the vexing and intriguing problem of responsibility and agency early in the novel.”Read more . . .
“We know from studies on subliminal images and sounds that even when we’re not conscious of these things, they can affect our judgments and actions. But researchers have had difficulty finding any effect of odors that we can’t consciously identify. A team led by Wen Li saw procedural problems in those early studies: An odor that one person can’t detect might still be obvious to someone else. Even the same individual might perceive an odor sometimes and not others (“I thought I smelled smoke, officer!”). Read more . . .
“One of stand-up comic George Carlin’s most famous routines was the seven words you can’t say on TV (obviously, not safe for work). He repeated the words over and over, and it was hilarious — especially back in the days before most people had cable. These days we’ve become desensitized to those words, and it’s hardly surprising any more to see them laced into casual conversation. Or is it?” Read more . . .
“Sullivan says it’s bad faith: This Manzi post would be their argument going forward. Here’s why they are not being intellectually honest, and Manzi’s post includes the relevant facts. The GOP has passed what amounts to a spending and tax-cutting and borrowing stimulus package every year since George W. Bush came to office. They have added tens of trillions to future liabilities and they turned a surplus into a trillion dollar deficit – all in a time of growth. They then pick the one moment when demand is collapsing in an alarming spiral to argue that fiscal conservatism is non-negotiable. I mean: seriously.” Read more . . .
“Eric Zorn argues that the real media bias is against complexity: Like a lot of other Illinois journalists, I’ve just spent the best part of the last year rhetorically pounding the stuffing out of the very white Rod Blagojevich and taking regular whacks at the disgraceful demagoguery of the similarly pasty John McCain. At the same time I was getting slapped around by detractors for allegedly going too easy on African-American candidate, now President Barack Obama.” Read more . . .
“Corpus Callosum comments on all the fussing: One peculiar irony of the 2008 Presidential campaign is that McCain’s theme was “maverick,” and Obama’s was “change.” Those are different expressions of the same idea: do things differently… Those who study family dynamics are familiar with what happens in a social system when someone tries to change. Essentially, the person who is initiating change is told it is wrong. Then he is told to revert to the old ways (change back!), then he is warned of dire consequences. Also, the others attempt to enlist additional parties as allies against the agent of change (this is called triangulation)… This occurs even among others who wanted the change, who welcome the change, and who think it is a good idea.” Read more . . .
“Being a woman is a negative, all other things being equal, but all other things are never equal.” That’s me talking, and I can explain. I was quoted last month in an article by Nora Tooher in Lawyers USA about challenges women lawyers face in the courtroom. (The article was inspired by Elizabeth Parks-Stamm’s article in the November issue of The Jury Expert about how female jurors respond to successful women; Nora found me because I wrote a short comment to Ms. Parks-Stamm’s article for TJE.)” Read more . . .
* * *
For previous installments of “Situationism on the Blogosphere,” click on the “Blogroll” category in the right margin.
Situationist fellow, Goutam Jois recently posted a fascinating, situationist paper provocatively titled, “Stare Decisis is Cognitive Error” on SSRN: Here’s the abstract.
* * *
For hundreds of years, the practice of stare decisis – a court’s adherence to prior decisions in similar cases – has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society’s true preferences with regard to law and policy, may reflect – and exacerbate – our cognitive biases.
The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others’ decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up with simple explanations for observed phenomena; and to construct coherent narratives for the world around us. Taken together, these and other characteristics suggest that we value precedent not because it is desirable but merely because it exists. Three case studies – analyzing federal district court cases, U.S. Supreme Court cases, and development of American policy on torture – suggest that the theory of stare decisis as a heuristic has substantial explanatory power. In its strongest form, this hypothesis challenges the foundation of common law systems.
This Article explores crucial analytic and normative limitations in presently dominant and ascendant approaches to legal theory. The approaches’ failure to provide a satisfying framework for analyzing the obesity epidemic presently raging undeterred in American society reveals these limitations. Conventional law and economics scholars writing on the subject have deployed familiar frameworks to reach predictable conclusions that are neither intellectually nor morally justifiable. This Article argues that recent theoretical innovations promulgated within the burgeoning law and behavioralism movement have thus far provided no more reliable a framework for legal analysis of the obesity epidemic than has conventional law and economics. This Article critiques in particular the behavioral law and economics concepts of “libertarian paternalism” and “asymmetric paternalism,” as well as the concept of “expressive overdeterminism,” recently developed by proponents of “cultural cognition theory.” This project is undertaken as part of a broader effort to develop an alternative approach to legal theory that previous co-authors and I call “critical realism.” The theoretical arguments herein are broad, but this Article aims to also advance obesity epidemic analysis in particular. Part V briefly discusses specific public policy implications of my assessment, with special reference to a policy innovation based in the reform of corporate law.
* * *
To download a copy of Professor Yosifon’s paper for free, click here.
The Situationist 