Tom Tyler & Lindsay Rankin: From Instrumentalism to Legitimacy

February 14, 2010

Image courtesy of Sophia Parkwood

Most policies in our legal system are founded on an instrumentalist approach to human behavior:  our systems are set up to encourage individuals through rewards and to deter people through the threat of punishment.  Our criminal justice system, for example, relies upon punishment and deterrence in order to achieve compliance with the law.

In their article “The Mystique of Instrumentalism”, Tom Tyler and Lindsay Rankin take a position against instrumentalism in the law, appealing to empirical data in arguing that a values-based approach would be far more effective in ensuring that individuals comply with the law.

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The Collective Action of Healthcare Reform

February 14, 2010
From WTRF News

From WTRF News

How should an institution inspire collective action?  What’s the best strategy?  The conventional wisdom is that to solve a collective problem, the institution should reward contributors and punish free-riders.  To prevent people from littering, fine them; to induce people to donate to charity, reward them; to move people to invent, lure them with intellectual property—as we discussed last week.  The implicit reasoning is that the typical human agent is a rational wealth-optimizer who won’t contribute to a public good unless he or she is incentivized to do.  Yet, as we also discussed last week, the rational actor model isn’t an accurate depiction of human nature.  Just as the average person doesn’t make the “rational choice” in an ultimatum bargain, the average person doesn’t jump to contribute to a public good on account of a mere carrot or stick.  The conventional wisdom—that the optimal solution for the collective action dilemma is incentive-based—is a gross oversimplification; the almighty incentive is only one aspect of a rich, complex puzzle.  Nonetheless, the conventional solution is unquestioned in our popular discourse regarding collective action.

Enter Professor Dan M. Kahan of Yale Law SchoolAs he’s done for quite a while, Professor Kahan challenges the conventional wisdom.  In the “The Logic of Reciprocity: Trust, Collective Action, and Law,” Professor Kahan argues that the traditional solution for a collective problem is often counter-productive, and offers an alternative theory that is grounded in an ecologically valid appraisal of the human animal.

Before exploring Professor Kahan’s theory, though, consider a recent example of the conventional wisdom’s influence on public discourse from an article in Slate entitled, “The Senator’s Dilemma,” published last week.  There, Christopher Beam argues that the Democratic Party’s strategic stance with respect to health care reform can be viewed as a classic collective action problem.  Although Beam’s characterization of the problem is surely correct, his policy prescription is conventional.

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Callan and Kay: The Law’s Relationship to Self-Interested, Competitive, and Trusting Behavior

February 13, 2010

In “Associations between Law, Competitiveness, and the Pursuit of Self-Interest,” Mitchell Callan and Aaron Kay present and analyze their research regarding whether the existence of law, “implicitly fosters the assumptions that people are self-interested, competitive, and cannot be trusted.” (2)

They outline two primary reasons why individuals may associate the law with notions of self-interested and competitive behavior:

  • Firstly, these associations may occur because of “legal socialization,” which is essentially gaining understanding how our legal system and laws function in society. This understanding may come to us through exposure to popular culture. As the guiding principle of our legal system is that, “the best way of eliciting the truth of a controversy is through confrontation [e.g. plaintiff vs. defendant] and the zealous pursuit of one’s self interests,” Callan and Kay contend that some people associate concepts of pursuing self-interest and competitiveness with the law. (2)
  • Secondly, Callan and Kay argue that the very fact the law has to exist at all leads some people to perceive other’s behavior differently (i.e. as self-interested in nature rather than cooperative), which can impair feelings of trust between individuals.

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Tyler: Early Life Influence on Moral Decision Making

February 13, 2010

NYU’s Professor Tom Tyler and Lindsay Rankin suggest that physical discipline toward a child leads to violent behavior, but in fact the link is more correlational than causal.

DisciplinePhysical discipline is linked directly to aggression and violence toward others in both childhood and adolescence. … Physical punishment of children is therefore not effective in leading to long-term compliance with rules and laws, and it is not effective in producing the type of social values that we argue lead to self-regulation.  Instead, physical discipline leads to just the opposite: aggressive and violent behavior. (Tyler, 28)

Perhaps the children who are physically punished at home are already more likely to engage in aggressive and violent behavior for other reasons, such as their community’s culture or lack of accessibility of positive opportunities. Moreover, in some families, forceful physical and verbal communication are not intended as hurtful but simply the modus operandi for giving instructions.  Read the rest of this entry »


Callan & Kay, on “Law, Competitiveness, and the Pursuit of Self-Interest”

February 13, 2010

The fact that law affects behavior is a truth too obvious to warrant comment.  So much of what we do all the time is in order to comply with some applicable law or another.

Consider: (see captions)

The legal system under which these drivers operate clearly has an effect on their behavior.  But the effects that law has on behavior are not always so obvious.  In, “Associations between Law, Competitiveness and the Pursuit of Self-Interest,” Callan and Kay argue that not only does “thinking about law” — where ‘thinking’ does not mean consciously thinking — lead to more competitive and self-interested attitudes, but that such thinking also produces, under some conditions, more competitive and self-interested behavior.

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Fear Edges out Revenge in the Rhetorical Scrap Over Venue for KSM Trial

February 3, 2010

On November 13th, Attorney General Eric Holder announced that the trial if the 911 attackers will be held in New York City.  The stirring speech notwithstanding, Holder and the Obama administration are now retreating from the decision. CNN reports that the White House and the Department of Justice are considering a move out of NYC.  This development comes amidst the mounting opposition to the original plan, culminating in 18 senators (including two blue dog Dems) introducing a bill to cut funding for the trial.  All indications are that the administration will back down.

For the mind enthusiasts out there, the interesting part may have been the heavy-handed psychological jousting by both sides.  More after the jump.

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Emily Pronin on Bias

February 2, 2010

In March of 2008, at the Second Harvard Conference on Law and Mind Sciences, Situationist Contributor Emily Pronin presented her fascinating and important work in a talk titled “Implications of Personal and Social Claims and Denials of Bias.”  Below we have pasted the abstract and the four video segments of her presentation.

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People’s efforts to make accurate, fair, and sound judgments and decisions often are compromised by various cognitive and motivational biases. Although this is clearly a problem, the solution is less clear due to the fact that people generally deny, and often are literally unaware of, their own commissions of bias – even while they readily impute bias to those around them. I will discuss evidence for this asymmetry in bias perception and for the sources that underlie it, and I will discuss its relevance to three policy concerns – i.e., corruption, discrimination, and conflict. Finally, I will discuss solutions, with a focus on potential pitfalls and how to avoid them.

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To read a Situationist post containing a summary of Pronin’s work and some related links, see “The Situation of Biased Perceptions.”